RESOLUTION NO. 23-____
A Resolution Of The City Council Of The City Of Emeryville Authorizing The City Manager To Execute An Event Hosting Agreement With WES Management For The eSC eSkootr Championship Event To Be Held In Emeryville In 2023, 2024 And 2025 WHEREAS, the Emeryville General Plan includes Goals that call for a comprehensive, universally accessible, and multi-modal transportation system; and WHEREAS, the Emeryville Economic Development Strategy calls for the production of an annual, signature event to promote the City; and
WHEREAS, the City’s Draft Active Transportation Plan is anticipated to include micromobility as a multi-modal focus area; and
WHEREAS, the policies outlined in the preceding recitals would support the production of an event that promotes sustainable, equitable transportation; and WHEREAS, electric scooters are a sustainable micromobility transportation solution; and WHEREAS, WES Management Limited (eSC) promotes micromobility transportation solutions through the production of the eSkootr Championship Racing series; and WHEREAS, eSC has expressed interest in partnering with the City of Emeryville to host an eSKootr Championship Race Event in the City of Emeryville; and WHEREAS, an eSkootr Championship Race Event would raise the City of Emeryville’s profile with an international audience and create economic activity benefiting the City of Emeryville; and
WHEREAS, on November 1, 2022 the City Council adopted Resolution No 22-147, establishing an ad-hoc City Council subcommittee for planning the eSkootr Championship Race Event by appointing Mayor John Bauters and former Vice Mayor Ally Medina to the ad-hoc subcommittee; and
WHEREAS, Resolution No. 22-147 authorized the City Manager to execute a non-binding Letter of Intent to negotiate an event hosting agreement with eSC; and WHEREAS, staff has diligently negotiated an event hosting agreement with eSC; and WHEREAS, the City Council wishes to enter into an agreement that sets forth the roles and responsibilities of the City and eSC for the funding and production of an eSkootr Championship Race Event in Emeryville; now, therefore, be it RESOLVED, that the City Council of the City of Emeryville hereby authorizes the City Manager to execute the eSkootr Championship Event Hosting Agreement By and Between WES Management Limited and the City of Emeryville in substantial form as attached hereto as Exhibit A, and be it further
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 Resolution No. 23-___
eSC eSkootr Championship Event – Event Hosting Agreement City Council Meeting | February 7, 2023
RESOLVED, that the City Council of the City of Emeryville hereby authorizes the City Manager to execute minor amendments to the Event Hosting Agreement as may be required to effectuate its purpose, provided that such amendments do not substantially increase the City’s obligations thereunder.
ADOPTED by the City Council of the City of Emeryville at a regular meeting held Tuesday, February 7, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
MAYOR
APPROVED AS TO FORM:
CITY CLERK CITY ATTORNEY
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 1 eSKOOTR CHAMPIONSHIP EVENT HOSTING AGREEMENT BY AND BETWEEN
WES MANAGEMENT LIMITED AND THE CITY OF EMERYVILLE
This eSkootr Championship Event Hosting Agreement (hereinafter referred to as the “Agreement”), dated and effective as of the date of the last signature herein, is entered by and between WES MANAGEMENT LIMITED, an entity incorporated and registered in England and Wales with company number 11778114 (“eSC”) and the CITY OF EMERYVILLE, a municipal corporation organized under the laws of the State of California (the “City” or “Host”). (eSC and the City are sometimes hereinafter collectively referred to as the “Parties” and individually as a “Party”.)
RECITALS
WHEREAS, eSC is an entity incorporated and registered in England and Wales with company number 11778114, with a registered office at 85 Great Portland Street, London, United Kingdom, W1W 7LT; and
WHEREAS, eSC is the organizer and owner of the eSkootr Championship, an international electric scooter racing series; and
WHEREAS, in connection with its ownership of the eSkootr Championship, eSC has rights to certain marks, logos, and other distinctive indicia of the eSkootr Championship; and WHEREAS, the City is a municipal corporation, located in the County of Alameda, State of California, and is organized under the laws of the State of California; and WHEREAS, the City has expressed its interest in hosting eSkootr Championship events in the City of Emeryville and wishes to acquire the rights and benefits of hosting the Event (as that term is defined herein) and to undertake certain obligations related to such hosting, all under the terms and conditions of this Agreement; and
WHEREAS, eSC wishes to grant such rights and benefits to the City under the terms and conditions of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties hereby agree as follows:
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 2 1. TERM. The term of this Agreement shall begin as of the date of the last signature herein (the “Effective Date”) and, unless earlier terminated in accordance with the terms set forth herein, shall continue through and including December 31, 2025 (the “Term”).
2. DESIGNATION OF HOST AND EVENT DATES / LOCATION / COURSE / SAEFTY PLAN / PLAN.
2.1. eSC licenses to the City the right to host the eSkootr Championship: Emeryville, California (“Event”) in the 2023 Season, 2024 Season, and 2025 Season. Each “Season” runs between January 1 to December 31. The Event shall be a 2-day event consisting of various electric scooter races and competitions.
2.2. Event Location. The City accepts such license and agrees to exercise such license to host the Event and to undertake and perform the Host Obligations, as defined herein and as set forth more specifically in Section 4 of this Agreement. The Event shall be held at a location in City of Emeryville where the Event, the Event Course (defined below), and ancillary events/areas will be located (“Event Location”).
2.2.1. 2023 Event Location. eSC shall submit its proposed Event Location for the 2023 Event to the City within the applicable date in Exhibit F (all Key Milestone Dates set out in Exhibit F being referred to as “Key Milestone Dates” and each a “Key Milestone Date”). The 2023 Event Location will be subject to approval in writing by the City by the applicable Key Milestone Date, such approval shall not be unreasonably withheld, delayed or conditioned.
2.2.2. 2024 and 2025 Event Location. To the extent an Event Location proposed for a subsequent Season is materially different from the 2023 Event Location, including but not limited to a different location for the Event Course and/or any ancillary events/areas, such proposed Event Location shall be submitted by eSC to the City by the applicable Key Milestone Date and subject to the approval (not to be unreasonably withheld, delayed or conditioned) in writing by the City no later than the applicable Key Milestone Date.
2.2.3. eSC’s submission for an Event Location shall include, but is not limited to, maps, layout, and designs of the Event Location.
2.3. Event dates.
2.3.1. 2023 Event. The 2023 Event is scheduled to be held in September / October 2023, on the dates to be agreed between the Parties by the applicable Key Milestone Date.
The Parties shall work cooperatively to select and approve the dates for the 2023 Event within such timeframe, such approval by either Party shall not be unreasonably withheld, delayed or conditioned.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 3 2.3.2. 2024 and 2025 Event dates. eSC shall submit in writing its proposed dates for the next Event by the applicable date set out in Exhibit F. Such proposed Event dates shall be subject to the prior written approval of the City by the applicable Key Milestone Date in Exhibit F, such approval shall not be unreasonably withheld, delayed or conditioned.
2.4. Event Course.
2.4.1 For each Event, the City will assist eSC in designing the race route and track on which the races and competitions will take place (“Event Course”). Each Season’s Event Course will be submitted by eSC to the City in accordance with the applicable Key Milestone Date and will be subject to the approval (not to be unreasonably withheld, delayed or conditioned) in writing by the City by the applicable Key Milestone Date.
2.4.2 eSC’s submission for the Event Course shall include, but is not limited to, designs, drawings, and specifications.
2.5. Event Plan/Event Elements.
2.5.1. The Parties shall develop a plan for the Parties’ delivery of the Event setting out all aspects of the Event Requirements (as defined below), including definition of the City’s minimum marketing commitments and anticipated channels and campaign timelines (“Event Plan”); such plan to be completed by the Parties and approved by eSC by no later than the applicable Key Milestone Date.
2.5.2. The Parties shall agree on the preliminary elements of the Event, including but not limited to number and types of races and competitions of the Event, and ancillary and VIP events and entertainment (“Event Elements”). Such Event Elements shall be completed and mutually approved in writing (not to be unreasonably withheld, delayed or conditioned) by the Parties no later than the applicable Key Milestone Date.
2.6. Safety Plan.
2.6.1 eSC shall provide to the City the maps, layout, and designs of the Event Location and the designs, drawings, and specifications of the Event Course, along with a Safety Plan (as defined herein) for the Event no later than the applicable Key Milestone Date. Such “Safety Plan” shall identify the Event Location, all on-street and off-street areas of the Event Location, all structures (both permanent and temporary) within the Event Location, and the areas of the Event Location to be used for the Event Course, participant and competitor staging, spectators, hospitality, VIPs, press and media, DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 4 audiovisual recording, and eSC personnel. Such Safety Plan shall also state the conditions of all streets within the Event Location, the estimated number of spectators per day, and a plan for adequate crowd control and safety measures for all areas of the Event Location.
2.6.2 The Safety Plan will be subject to the approval (not to be unreasonably withheld, delayed or conditioned) in writing by the City by the applicable Key Milestone Date.
2.7. The City shall support eSC in its submission of the Event Location, Event Course and Safety Plan in accordance with this Section 2, by providing eSC with relevant documentation reasonably required by eSC that is within the control of the City.
2.8. Event setup, staging of materials, facilities, and equipment, and construction of the Event Location and Event Course shall not commence until the City, through its City Engineer, has approved (on behalf of the City) in writing eSC’s maps, layout, and designs for the Event Location, designs, drawings, and specifications for the Event Course, and eSC’s Safety Plan in accordance with this Section.
2.9. If the Parties cannot agree (acting reasonably and in good faith) on the applicable Event dates and/or the Event Location in accordance with the applicable Key Milestone Dates for an Event:
(1) the applicable Event shall be cancelled with immediate effect; (2) each Party shall be liable for its own costs incurred (or committed) prior to the cancellation date; and
(3) for the avoidance of doubt, the Term will not automatically extend for a further Season unless otherwise approved in writing between the Parties, unless otherwise agreed in writing between the Parties.
3. CITY’S EVENT MANAGEMENT STRUCTURE. The City will be led by one or more chairperson(s) who will be primarily responsible for performance of the City’s obligations under this Agreement. Such chairperson(s) shall ensure that the City’s representatives relating to the Event include individuals with experience in the following areas and whose responsibilities could be as follows for the Event in the City (the City has the option to have one individual handle more than one responsibility):
Chairperson (Point of Contact for eSC)
Technical Director
Operations Director
Media/Public Relations Director
Marketing Director
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 5 Sales/Sponsorship Director
Volunteer Director
Hospitality Director
Ceremony Coordinator
School/Community Involvement/ Ancillary Events Director
4. HOST OBLIGATIONS.
4.1 In consideration of the license granted by eSC to the City to host the Event as set forth in Section 2.1 and the Host Benefits as set forth in Section 6 of this Agreement and in addition to those other obligations set forth in this Agreement, the City agrees to deliver the following at its cost (collectively, the “Host Obligations”):
4.1.1 Venues and locations the City owns and/or controls within the Event Location.
4.1.2 The City shall provide access to the Event Location at any time during the Event Period, any site visits by any eSC representatives and any other time (subject to eSC providing reasonable prior written notice) reasonably necessary for eSC to deliver its obligations pursuant to this Agreement (without imposition of any site fees), notwithstanding any authorization(s) and/or fee(s) imposed by private property owners.
4.1.3 Ambush-Free Zone. The City agrees to work with eSC to create a zone which consists of the Event Location and a radius around the Event Location (the “Ambush-Free Zone”) that shall be free from temporary unauthorized merchandise vending, temporary advertising, and temporary signs and inflatable items during the Event Period (as defined below). Nothing herein shall obligate the City to take any actions as it relates to permanent retail establishments in the Ambush-Free Zone as of the date Event. The parameters of the Ambush-Free Zone shall be a 300 meter radius of the Start/Finish area.
4.1.4 Ambush Marketing. The City agrees to use its commercially reasonable efforts to:
(a) subject to applicable laws, minimize the “Ambush Marketing” of Event sponsors and local sponsors in and around the City and the Event Location during the Event (eSC acknowledges that providing a cordoned-off area (out of any Event broadcast view and main walkways within the Event) within the Ambush-Free Zone for persons to protest in accordance with applicable laws shall be considered as using commercially reasonable efforts); (b) prevent Commercial Exploitation Rights (as defined in Section 14 herein) identified with the City from being granted by any governmental agency to DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 6 any entity that is not an Event sponsor during the period commencing two (2) weeks prior to the Event through the conclusion of the Event; and (c) prevent other City-controlled and conflicting major sporting, civic or cultural events from being scheduled in the City of Emeryville on the same days as the Event, unless such major sporting, civic or cultural events are approved in writing by eSC, which approval shall not be unreasonably withheld. The provisions of this subdivision (c) do not apply to any event that was authorized or approved by the City prior to the Effective Date. From the Effective Date to the date the Parties agree on the Event Dates for each Season, the City shall promptly notify eSC of any third-party events it is in discussions to stage in the City in September or October of the applicable Season, prior to committing to stage such third-party event on such dates.
It is agreed that the term “commercially reasonable efforts” as used in this Agreement is limited to that which can be undertaken by existing City staff during the normal course of their duties, and which do not displace other projects or priorities of the City.
4.1.5 Merchandise Counterfeiting and Trademark Enforcement. The City shall cooperate with eSC in preventing unauthorized use of eSkootr Championship and Event Marks, admissions for the Event, and other intellectual property, and the sale or distribution of unlicensed merchandise bearing eSkootr Championship and/or Event Marks or any other reference to the eSkootr Championship and/or the Event. Such commitment shall apply and be in force during the Term of this Agreement, particularly with respect to the period beginning four (4) days prior to the Event and continuing through three (3) days following the Event (“Event Period”). The City will cooperate with eSC by permitting eSC the right to pursue (at eSC’s expense) legal enforcement measures to prevent unauthorized use of the intellectual property regarding the eSkootr Championship and the Event, including but not limited to action against any seller or distributor of unlicensed merchandise. The City, in conjunction with such appropriate governmental entities, will help to identify and communicate information to eSC regarding unauthorized use of the intellectual property of eSC, including but not limited to sales or distribution of unlicensed merchandise. The decision to pursue civil legal action or settle claims against an unauthorized user of the intellectual property of eSC or against a seller or distributor of unlicensed merchandise will be at the sole discretion of eSC. Without prejudicing the City’s obligations under this section, the City shall not be responsible for the unauthorized use of the intellectual property of eSC by anyone other than the City.
4.1.6 Media and Marketing Plan Cooperation. The City will cooperate with the media and marketing plan of eSC and its contractors, including accommodating DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 7 television broadcasters, sponsors, and other persons and entities to whom and to which eSC has granted and will grant rights. Promptly following the Effective Date, the City shall provide footage and imagery of various locations within the City of Emeryville and region for use by eSC, Event sponsors that eSC appoints, and broadcasters.
4.1.7 Event Sponsor Recognition. The City agrees that eSC’s sponsors and the Local Event Sponsors (as defined below) shall have the right to have recognition and visibility at the Event Location and that eSC shall determine placement of signage, recognition, and visibility.
4.1.8 Ancillary Events. Before staging any ancillary events in connection with the rights licensed by eSC as set forth in this Agreement, the City shall obtain the prior written approval of eSC for the type, location, and anticipated size of the ancillary event(s) as well as sponsors, such approval shall not be unreasonably withheld.
4.1.9 Sale of Merchandise. The City agrees that no merchandise, including any Cityproduced merchandise approved by eSC under Section 10.3 below, other than that designated by eSC will be sold on-site at the Event Location during the Event without the prior written consent of eSC, such consent shall not be unreasonably withheld.
4.1.10 Reference to “eSkootr” Name. The City shall refer to “eSkootr” and “eSkootr Championship” by the exact name(s) supplied by eSC from time-to-time, including any title or presenting sponsor identification (should title or presenting sponsorship rights be granted), and shall include, in all agreements that the City may enter into with third parties, a requirement that all third parties utilize the exact name(s) for “eSkootr” and “eSkootr Championship” supplied by eSC from time-to-time. Notwithstanding anything to the contrary herein, if eSC changes the name(s) or logo(s) of “eSkootr” and “eSkootr Championship” after the City has created Event related identification, the City shall be required to recreate the applicable Event related identification at eSC’s cost.
4.1.11 Anti-Gouging Provisions. The City shall exercise commercially reasonable efforts to make sure that hospitality services (including lodging and restaurants) are provided at reasonable prices for visitors and tenants and are delivered at a level of quality similar to businesses offering the same or like services in the San Francisco Bay area.
4.1.12 Guidelines and Amendments. All services and other activities required to be performed or provided by the City described in this Agreement will be performed or provided in compliance with all reasonable and customary guidelines, DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 8 standards, policies and directives (collectively, “Guidelines”) developed and issued by eSC from time to time and provided to the City in writing and in a timely manner. The City recognizes that, while the Guidelines issued by eSC represent the current position of eSC on such matters, such material may evolve as a result of technological and other changes, some of which may be beyond the control of the Parties to this Agreement. The Parties reserve the right to propose amendments to this Agreement to address such changes. Should amendments to the Agreement or Guidelines result in adverse effects on the financial or other obligations of the City, the City will so inform eSC in writing and eSC will then negotiate with the City in order to address such adverse effects in a mutually satisfactory manner. In the event an agreement cannot be reached, the City is under no obligation to accept or execute such amendments, unless to do so would conflict with applicable laws.
4.1.13 Progress Updates. At regular intervals during the Term of this Agreement, the City will advise eSC of the status of its plans relating to the Event and Event Location and any related events, including, without limitation, information on: (1) the status of efforts to present local sponsorship opportunities to potential Local Event Sponsors (as defined below); (2) other revenues that the City has generated and expects to generate to pay the costs of discharging its obligations under this Agreement; and (3) whether the City shall deliver any of the Event Requirements (and if so, reasonable details of such delivery).
4.1.14 Promotion of Goodwill. The City agrees to conduct the activities contemplated by this Agreement in such a way as to promote the goodwill associated with eSC, the eSkootr Championship, the Event and the Event Location, and the sponsors of the Event, and will not at any time disparage the good name, reputation, or image of eSC, the eSkootr Championship, the Event and the Event Location, and the sponsors of the Event. This section shall not be interpreted to preclude any action or proceeding by the City to enforce or defend its rights under this Agreement and, subject to its confidentiality obligations under this Agreement, shall not preclude the City or its representatives from communicating information which the City reasonably determines to be factually accurate pertaining to eSC, its organizers or sponsors, the eSkootr Championship, the Event, and the Event Location.
4.2 Event Requirements: The City may (in its sole discretion) deliver any of the Event Requirements, subject to:
(1) the City notifying eSC with its intention to deliver the applicable Event Requirement(s);
(2) the City notifying eSC of the approximate cost for delivering such Event Requirement(s);
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 9 (3) such approximate costs not materially exceeding the estimated cost(s) for the applicable Event Requirement as approved by the Parties pursuant to Section
7.3.7; and
(4) the prior written approval of eSC (not to be unreasonably withheld, delayed or conditioned).
Upon such approval, the City shall deliver such Event Requirement(s) in accordance with the terms of this Agreement (and otherwise to the standard reasonably required by eSC).
The cost to deliver such Event Requirement(s) shall reduce the Event Budget subject to and in accordance with Section 7.3.6.
5 eSC OBLIGATIONS. In consideration of the City delivering the Host Obligations, eSC agrees to the following (at eSC’s cost unless otherwise stated below):
5.1 eSC shall deliver the Event delivery requirements set out in Exhibit A (the “Event Requirements”) in accordance with the terms of this Agreement, unless otherwise delivered by the City pursuant to Section 4.2.
5.2 eSC shall use reasonable endeavors to provide timely notice of any obligations of the City as described in Section 4.12 Guidelines and Amendments.
5.3 eSC and its contractors shall be responsible for producing credentials of all types for the Event and Event Location, including credentials for members of the press, media, VIP, and operational personnel, which credentials shall be produced at the sole expense of eSC. eSC shall be responsible for all decisions regarding to whom press, media, VIP, and operational credentials should be issued and shall establish all rules and regulations regarding media access to the Event and Event Location.
5.4 eSC shall provide, at its sole expense, Event setup, staging materials, and related facilities and equipment for the construction and operation of the Event Course.
5.5 No more than ninety (90) minutes prior to the commencement of the first race on each day of the Event (but no less than thirty (30) minutes prior), eSC shall ensure that the City is authorized to inspect the Event Course with a camera to document the conditions for its records. Notwithstanding this subsection, the City shall ensure that such inspection does not interfere with or compromise the staging of the Event in accordance with the terms of this Agreement.
5.6 Waivers: Volunteers. eSC shall provide for City approval (not to be unreasonably withheld, delayed or conditioned) a Volunteer Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement form to be signed by all volunteers.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 10 5.7 Waivers: Event Participants and Competitors. The Parties agree that all Event participants and competitors will be required to sign a Participant Waiver and Release Liability, Assumption of Risk and Indemnity Agreement form as provided by eSC and approved (not to be unreasonably withheld, delayed or conditioned) by the City. eSC shall obtain and collect from all Event participants and competitors executed Participant Waiver and Release Liability, Assumption of Risk and Indemnity Agreement forms and provide copies to the City at least two (2) days before the commencement of the Event.
No individual shall be permitted to participate and/or compete in the Event without first signing a Participant Waiver and Release Liability, Assumption of Risk and Indemnity Agreement form.
5.8 Airfare and Ground Transportation. eSC will be responsible for the costs of airline travel and ground transportation for its employees, representatives, and agents incurred in connection with eSC’s rights and obligations under this Agreement.
5.9 Food and lodging. eSC will be responsible for the costs of food and lodging for its employees, representatives, and agents incurred in connection with eSC’s rights and obligations under this Agreement.
5.10 Customs, shipping, and storage. eSC will be responsible for the costs of shipping, importing, and storing of its goods, materials, and equipment incurred in connection with eSC’s rights and obligations under this Agreement. eSC will also be responsible for any tariffs, duties, taxes, and customs fees levied on any goods, materials, and equipment shipped and/or imported by eSC in connection with eSC’s rights and obligations under this Agreement.
5.11 Immigration and visas. eSC will be responsible for preparing, filing, processing, and obtaining any immigration and visa paperwork, work permits, COVID-19 exemptions and/or quarantine exemptions, and any such approvals for same, for its employees, representatives, and agents in connection with eSC’s rights and obligations under this Agreement. The City agrees to provide to eSC or any other governmental authority any documentation and information relating to the Event necessary for eSC to fulfill its obligations under this Section 5.11. Such documentation and information is limited to that which the City can reasonably provide and is within the City’s possession, custody, and control. The Parties acknowledge and agree that the City has no obligation to provide eSC with any legal advice pertaining to immigration or visas.
5.12 Utilities. Except for waste management, trash removal services, and recycling services, at its sole expense, eSC will be responsible for the costs of electricity, natural gas, wired and wireless internet, and other utilities incurred in connection with eSC’s rights and obligations under this Agreement.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 11 5.13 VIP Hospitality Zone. The VIP hospitality zone shall be part of the Event Requirements and shall be delivered by eSC in collaboration and consultation with the City.
5.14 Display eSkootr. eSC will (at its cost) provide an official display eSkootr at a destination to be agreed in writing between the Parties from the date the Parties announce that the City will host the Event until the end of the Event in 2023. eSC may display additional display eSkootrs on the request (and at the cost of) the City.
5.15 Within thirty (30) days after the conclusion of the 2023 Event, the Parties shall review all elements of such Event and discuss whether modifications or amendments to this Agreement shall be made in connection with the 2024 and/or 2025 Events. Such discussions shall be conducted in good faith and any modifications and/or amendments shall be in writing and executed by each Party.
5.16 Local Service Providers and Vendors. Where eSC needs to engage service providers and/or vendors to deliver certain Event Requirements, eSC shall, subject to reasonable financial considerations, use reasonable endeavors to prioritize contracting with such service providers and vendors from, in, or around the City. 6 HOST BENEFITS. The Parties acknowledge that all rights of any nature in relation to eSC, the eSkootr Championship and/or the Event including the Host Benefits (as defined below) and the rights to appoint commercial partners, hospitality, production and distribution of visual and audiovisual content via any and all forms of media, merchandising and the collection and exploitation of Event data, which are not expressly granted to the City under this Agreement are reserved by eSC for use and exploitation at eSC’s absolute discretion. In consideration of the City’s agreement to undertake and perform the Host Obligations set forth herein, eSC agrees to provide the following recognition and rights to and for the benefit of the City (collectively referred to as the “Host Benefits”):
6.1 Recognition. eSC shall include recognition of the City as the host of the Event in the official eSkootr Championship and Event website(s), in any media advertising or promoting the Event, and in a press conference announcing that the City has agreed to serve as the host for the Event.
In consultation with the City, eSC shall include a City Mark alongside any eSC Marks to create an Event logo (“Event Mark”). Such Event Mark shall be referred to as an eSC Mark for the purposes of this Agreement. The City shall have the right to use the eSC Marks, in accordance with, and subject to the terms of this Agreement. In addition, the City shall have the right to exclusively use the City Marks on the following branding at the Event:
• 5% of track barrier branding
• 1 x track corner branding
• 1 x track floor branding
• 1 x start ramp interior branding
• eSC press conference logo branding
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 12 • eSC media interview backdrop logo branding
• Race podium branding
• Rider trophy presentation
• Co-branded destination marketing content creation
6.2 Hospitality/Ticketing. At no cost to the City, the City shall have the right to a minimum of the following tickets and hospitality passes at the Event:
• 10 x eSC hospitality zone tickets
• 20 x VIP eSC Paddock tour
• 1 x eSC Riders meet and greet
eSC and the City shall work cooperatively and in good faith to accommodate the City’s reasonable requests for any additional tickets for the City’s officials, dignitaries, and special guests.
6.3 Local Event Sponsors. The City has the right and obligation to use commercially reasonable efforts to (i) solicit and discuss potential Event sponsorship opportunities with Local Event Sponsors in accordance with and subject to the terms of Section 7 and 8 of this Agreement; and (ii) subject to Sections 7.3.6 and 7.3.7, raise US$1,500,000 of Local Event Sponsor Revenues.
6.4 Event and Archive Content. eSC shall provide the City with Archive Content and Event Content (each as defined in Section 10.10) for use by the City (and Local Event Sponsors) in accordance with this Agreement.
7 FINANCIAL
7.1 Event Revenues. The City acknowledges and agrees that eSC shall be entitled to retain all revenues attributable to the Event and Event Location, except those revenues specifically set forth in Sections 7.3 (Local Revenues).
7.2 Expenses. The City agrees that it shall be responsible for the entire cost and expense of undertaking and performing its Host Obligations listed in Section 4 of this Agreement and in otherwise discharging its obligations under this Agreement.
7.3 Local Revenues.
7.3.1 Parking. The City may offer parking for spectators for the Event. The City may retain all revenues from such parking and shall be responsible for all parking expenses.
7.3.2 Food and Beverage Concessions. Except as to certain VIP hospitality to be offered by eSC at eSC’s expense, the City may offer food and beverage concessions at the Event Location DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 13 for purchase. The City may retain all revenues derived from food and beverage concessions purchased at the Event Location and shall be responsible for all expenses attendant to such concessions. The City shall use all commercially reasonable efforts to ensure all food and beverage concessions at the Event Location for purchase are reasonably priced, and are delivered at a level of quality similar to businesses offering the same or like services in the San Francisco Bay area.
7.3.3 Ancillary Events. The City may create, organize, and present events ancillary to the Event, provided eSC has approved such events in advance in writing, and the City may retain all revenues generated thereby. The City shall be responsible for all expenses of creating, organizing, and presenting such ancillary events.
7.3.4 Local Event Sponsor Revenues. The Parties acknowledge that the aggregate cost for the Parties to deliver the Event is approximately US$1,500,000 (as set out in Exhibit A - the “Event Budget”). In consideration for such costs, subject to Sections 7.3.6, 7.3.7, and
7.3.8, eSC shall receive (and the City shall have no right to receive) all cash fees payable by any Local Event Sponsor for any Local Event Sponsor Rights set out in Exhibit E and any commitment by a Local Event Sponsor (or any connected party) to provide goods, facilities, services and/or any other items to eSC (or any connected party) which reduce(s) eSC’s (or any connected party’s) budgeted items as set out in Exhibit A (net of any tax payable) (“Local Event Sponsor Revenues”) up until such revenues (excluding VAT or any applicable sales tax) reach the Event Budget in aggregate for each and every Season.
If the Local Event Sponsor Revenues (excluding VAT or any applicable sales tax) eSC receives in respect of the same Season exceed the Event Budget, such excess Local Event Sponsor Revenues (“Excess Local Event Sponsor Revenues”) shall be split 50/50 between the Parties.
7.3.5 True-Up Report. For the purposes of ensuring the Parties receive their share of the Excess Local Event Sponsor Revenues pursuant to section 7.3.4, within sixty (60) days after the Event in each Season, eSC shall send the City a report with confirming invoicing and backup documentation setting out the total Event Budget, and the total Local Event Sponsor Revenues (excluding VAT and any applicable sales tax) received by eSC in respect of the prior Season (“True-Up Report”). To the extent such report shows there were Excess Local Event Sponsor Revenues, eSC shall pay 50% of such Excess Local Event Sponsor Revenues to the City within thirty (30) days of the expiry of the 60 day period referred to above.
7.3.6 Event Budget Reduction. The Event Budget shall be reduced by the following:
(1) the cost of the Event Requirements (“Event Requirement Cost”) fulfilled by the City; and
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 14 (2) without prejudice to the City’s obligations pursuant to Section 6.3, a commission of 10% (“Commission”) of any cash fees (net of applicable tax) received by eSC from any sponsor introduced by the City to eSC that contracts with eSC (materially as a result of such introduction and any further support eSC reasonably requires the City to provide) and receives sponsorship rights relating to (i) the eSkootr Championships as a whole (including or excluding Local Event Sponsor Rights); or (ii) another event forming part of the eSkootr Championships (other than the Event).
Subject to Sections 7.3.6 and 7.3.7, if the Local Event Sponsor Revenues exceeds the Event Budget, eSC shall pay the Commission directly to the City (in addition to the City’s share of the Excess Local Event Sponsor Revenues pursuant to Section 7.3.4).
7.3.7 Event Budget Change. Furthermore, within thirty (30) days after the Event Location is selected by the Parties, the Parties shall review the Event Requirements and the Event Budget and, subject to the prior written approval of both Parties (such approval not to be unreasonably withheld, delayed or conditioned), provide or update (as applicable) the Event Requirement Costs of each Event Requirement in Exhibit A.
7.3.8 Failure to Raise Local Event Sponsor Revenues. In the event that the Parties fail to receive bona fide written commitments from Local Event Sponsors of:
• no less than US$750,000 on or the applicable Key Milestone Date; and/or • no less than a further US$750,000 by the applicable Key Milestone Date, The Parties may take the following action:
(1) The City may either:
(a) guarantee to contribute the amount required on the applicable Key Milestone Date minus (i) any reduction pursuant to Section 7.3.6; and (ii) any Local Event Sponsor Revenues (“Guaranteed Revenues”) in order to guarantee the integrity and placement of the Event in the championship calendar (as officially published by eSC); or
(b) terminate this Agreement; and/or
(2) eSC may either:
(a) cancel the Event; or
(b) terminate this Agreement, with immediate effect.
7.3.9 The City’s guaranteed payment under Section 7.3.8(1)(a) shall be payable by the City to eSC within thirty (30) days of the expiry of the 60 day period referred to in Section 7.3.5, DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 15 above), and reduced by the amount of any Local Event Sponsor Revenues secured after the date of the City’s guarantee.
8 LOCAL SPONSORSHIPS. The City shall solicit and discuss terms (but not contract) with sponsors that will activate sponsorship rights set out in Exhibit E in the United States only (“Local Event Sponsors”) to support the activities of the Parties in connection with the Event, in accordance with the following terms and conditions:
8.1 Designation. Each local sponsor may be given the designation “Local Event Sponsor,” to the exclusion of any other sponsorship designation. A Local Event Sponsor may neither be referred to nor describe its involvement with the Event by any other designation, including but not limited to a sponsor of the eSkootr Championship.
8.2 Sponsorship Levels. The City may create one or more sponsorship levels for Local Event Sponsors, including a “Local Presenting Sponsor.”
8.3 Local Sponsorship Benefits. The City shall be able to provide Local Event Sponsors with those local sponsorship benefits set out in Exhibit E, to be exploited by Local Event Sponsors strictly in accordance with the terms of this Agreement.
8.4 Local Sponsorship Guidelines. Sale of Local Event Sponsor Rights shall be subject to the following guidelines:
(1) Reserved Sponsor Categories. The City acknowledges that eSC has retained the exclusive right to sell sponsorship rights in specific sponsorship categories to eSkootr Championship Sponsors (“eSkootr Championship Sponsor Categories”). A listing of the current eSkootr Championship Sponsor Categories is set forth on Exhibit B. The City acknowledges that it may not approach or discuss terms with any Local Event Sponsor which manufactures, markets, or distributes products or services in any of the eSkootr Championship Sponsor Categories, such right being reserved to eSC for eSkootr Championship Sponsors. eSC has the right to update Exhibit B within 60 days of the preceding Event to reflect any changes in eSC’s central sponsorship portfolio. (2) eSC Approval. eSC shall have the right of prior review and prior written approval over the identity of each and every proposed Local Event Sponsors as well as recognition and benefits to be provided by the City to such Local Event Sponsors, such approval not to be unreasonably withheld, delayed or conditioned. The City acknowledges that such review and approval is necessary to avoid conflicts between Local Event Sponsors and eSkootr Championship Sponsors. (3) eSC (not the City or any of its connected parties) shall contract with each and every Local Event Sponsor. eSC shall use a contract template mutually approved DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 16 (not to unreasonably withheld, delayed or conditioned) by the City and eSC when contracting with Local Event Sponsors.
(4) Submission of Materials to eSC. The City must submit all prospective sponsor lists and packages, artwork, copy and designs that refer to eSC and/or the eSkootr Championship to eSC for approval in advance.
(5) Recognition of eSkootr Championship Sponsors. The City shall facilitate recognition of eSkootr Championship Sponsors as designated by eSC.
8.5 The Parties shall regularly update each other on its discussions with potential Local Event Sponsors and sponsors of the eSkootr Championships.
9 REQUIRED CLAUSES. The City agrees that, in each and every agreement that the City enters into with regard to the Event, the ancillary events, or rights related to either the Event or the ancillary events, the following required clauses will be incorporated:
9.1 Commercial Identification Prohibition. Unless otherwise agreed in writing by eSC, all parties contracting with or providing goods or services to the City in connection with the Event and/or any ancillary events related thereto must agree that neither they nor their affiliates, agents, representatives, employees, suppliers, or subcontractors shall commercially exploit in any manner the nature of their transaction with goods and/or services provided to the City for the Event, including without limitation: (1) by referring to the transaction or the goods or services, the City as the host of the Event and/or the Event in any sales literature, advertisements, letters, client lists, press releases, brochures or other written, audio or visual materials; and (2) by using or allowing the use of the eSkootr Championship and/or Event Marks or any other service mark, trademark, copyright or trade name now or which may hereafter be owned or licensed to signify the eSkootr Championship and/or Event in connection with any service or product, or (3) by otherwise disclosing their affiliation with the City as the host of the Event and/or the Event for a commercial purpose.
9.2 Clearances and Licenses. All parties contracting with or providing goods or services to the City in connection with the Event or events which the City hosts or associates with during the Event and/or events related thereto must agree that they are responsible for providing all clearances, licenses, permissions, and consents (including without limitation all music clearances, synchronization rights, union and guild fees and the like) as may be necessary for the presentation of all such events, to the extent permitted by eSC, in any and all media and in any and all forms, whether now known or hereafter developed.
9.3 Indemnification. Every party contracting to provide goods or services to the City in connection with the Event and/or events related thereto must agree to indemnify, defend and hold harmless eSC, and its parent, subsidiary, and affiliated companies and eSC’s shareholders, members, trustees, partners, officers, directors, agents, volunteers, employees, and other representatives DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 17 from and against any claims, demands, damages, liabilities, lawsuits, losses or expenses, including without limitation, interest, penalties, reasonable attorney’s fees, and all amounts paid in the investigation, defense or settlement of any or all of the foregoing (“Claim” or “Claims”) resulting from, arising out of or in connection with the contracting parties’ obligations to the City.
9.4 Compliance with Law. Every party contracting with or providing goods or services to the City in connection with the Event and/or events related thereto must agree to comply with all laws, ordinances, orders, rules and regulations (state, federal, municipal, or promulgated by other agencies or bodies having or claiming jurisdiction) applicable to the performance of such party’s obligations to the City.
9.5 Exculpation Clause. Every party contracting with the City in connection with the Event and/or events related thereto must agree to look solely to the City for any payment for such goods or services, and not to eSC for such payment.
9.6 Insurance. Every party contracting with the City in connection with the Event and/or events related thereto must agree to maintain, at no cost to eSC, appropriate insurance coverage for Claims arising out of the contracting party’s operations, personnel, products, and services. All such insurance provided by each contracting party shall be (1) primary to and non-contributory with any insurance maintained by the City and/or eSC; (2) shall be written by insurance companies with ratings of “A” or better in the latest edition of the A.M. Best key rating guide; and (3) shall provide that coverage may not be materially changed, reduced or cancelled unless thirty (30) days prior written notice thereof is furnished the City and eSC. All liability policies shall be endorsed to name the City and eSC as Additional Insureds and shall include a waiver of subrogation in favor of the Additional Insureds. Each contracting party shall be solely responsible for the costs of all deductibles under such policies and shall remain solely and fully liable for the full amount of any Claims not covered by insurance. Each contracting party shall provide the City and eSC with Certificates of Insurance certifying that the appropriate insurance is in place and that the policies have been properly endorsed to meet the insurance requirements as set forth above.
10 LICENSES TO USE MARKS.
10.1 eSkootr Championship and Event Marks. eSC retains the rights to sell title and presenting sponsorships in and to the Event and, in such event, to incorporate the name and/or marks of such title and/or presenting sponsor into the eSkootr Championship and Event Marks or to develop new marks and logos for the eSkootr Championship and Event, acknowledging such title and/or presenting sponsor’s relationship with and support for the eSkootr Championship and Event. The City acknowledges the foregoing and that the terms “eSkootr Championship Marks” and “Event Marks” as used herein may also refer to the eSkootr Championship Marks and Event Marks as such may be expanded to include the name and/or marks of a title and/or presenting sponsor of the Event. Upon being advised by eSC of a change to the eSkootr DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 18 Championship Marks or Event Marks in the event of a sale of title or presenting sponsorships, the City agrees to utilize the updated marks with the name and/or marks of a title and/or presenting sponsor, all as designated by eSC.
10.2 License to Use Event Mark. eSC hereby grants to the City and any Local Event Sponsor, a limited non-exclusive license to use the Event Mark and any other name, logos, trademarks, service marks, designs, product and service identification, artwork and other symbols and distinctive indicia associated with eSC, the eSkootr Championship and/or the Event that are identified in Exhibit C attached hereto (“eSC Marks”) during the Term of this Agreement, in accordance with the terms of this Agreement and the eSC Marks Guidelines set forth in Section
10.6 herein, solely at or in connection with the site of the Event, including the Event Location and only in advertising, marketing and promotions in relation to the Event. The City shall ensure that all Local Event Sponsor comply fully in all respects with the terms of this Agreement, including the eSC Marks Guidelines (including the Brand Guidelines), and the City shall be fully liable for any failure of any Local Event Sponsor to so comply.
10.2.1 The foregoing license is subject to the right of eSC to review and approve in advance all such uses of the eSC Marks (by the City and/or any Local Event Sponsor).
10.2.2 The City shall have no right to assign, license or “pass-through” rights to use the eSC Marks to any other person or entity. In exercising this license to use the eSC Marks and in each and every reference to the eSkootr Championship and the Event, the City shall utilize the eSC Marks and the exact name of the eSkootr Championship designated by eSC, which shall include the name of any title and/or presenting sponsor. The Parties acknowledge and agree that, upon the expiration or termination of this Agreement, the City shall cease to use the eSC Marks, and use commercially reasonable efforts to ensure that Local Event Sponsors cease to use eSC Marks.
10.3 License Does Not Extend to Merchandise. The City shall not manufacture or sell, or license the manufacture or sale of, any promotional or other merchandise which bears eSC Marks without the prior written approval of eSC, which approval shall not be unreasonably withheld. Any such merchandise that is approved shall (i) comply with the Brand Guidelines (as defined below), and (ii) be of satisfactory quality and fit for purpose. The City shall indemnify eSC against any claims or actions brought by any third party in connection with or related to any such merchandise the City (or its appointed agent) is responsible for manufacturing and selling, or component parts of any such products (including the design, and manufacturing of any of the foregoing or sale or distribution of any such product), including, but not limited to, property damage, bodily injury or death, or product liability claims or class actions lawsuits) but excluding the eSC Marks.
10.4 Acknowledgements Regarding Goodwill. The City acknowledges the value of goodwill associated with the eSC Marks. The City acknowledges that the goodwill attached to the eSC DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 19 Marks belongs exclusively to eSC. The City agrees that any and all goodwill and other rights that may be acquired by the use of the eSC Marks by the City shall inure to the benefit of eSC.
10.5 No Disparagement by City. The City will not, at any time, disparage, dilute or adversely affect the validity of the eSC Marks or take any action, or otherwise suffer to be done any act or thing which may at any time, in any way materially adversely affect any rights of eSC in or to the eSC Marks, or any registrations thereof or which, directly or indirectly, may materially reduce the value of the eSC Marks or detract from their reputation. This section shall not be interpreted to preclude any action or proceeding by the City to enforce or defend its rights under this Agreement and shall not, subject to its confidentiality obligations under this Agreement, preclude the City or its representatives from communicating information which the City reasonably determines to be factually accurate pertaining to eSC, its organizers or sponsors, the eSkootr Championship, the Event, and the Event Location.
10.6 eSC Marks Guidelines. Any use of the eSC Marks during the Term shall be further subject to the following conditions and limitations (collectively, the “eSC Marks Guidelines”):
(1) The City shall not use the eSC Marks in any manner that is misleading or that reflects unfavorably upon the reputation of the eSC, the eSkootr Championship, the Event, or any competitor in the Event or in any manner that is contrary to applicable laws and regulations, including, without limitation, those relating to truth in advertising and fair trade practices;
(2) The City shall not (i) permit any tradename or mark of a third party to appear in conjunction with the City’s materials that display any of the eSC Marks; or (ii) participate with any third party in a promotion using the eSC Marks or permit the eSC Marks to be used in a manner that could be reasonably interpreted as a promotion or endorsement of a third party’s products or services; (3) The City shall not use the eSC Marks without the appropriate trademark or copyright designation as required by eSC;
(4) The City shall not use the license granted under this Agreement in any comparative advertising;
(5) The City shall not, after the expiration or termination of this Agreement, use any slogan or graphic device that was developed for use in conjunction with the eSC Marks if such slogan or graphic device implies an ongoing association with eSC and/or the eSkootr Championship; and
(6) As permitted by law, the City shall otherwise comply with the manual (as may be updated from time to time upon written notification by eSC to the City) setting out the guidelines and restrictions relating to the use of any eSC Marks, eSkootr DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 20 Championship Marks and/or Event Marks and any other logos, marks or other branding relating to the Event, as communicated by eSC to the City from time to time (“Brand Guidelines”). To the extent there is any conflict between the terms of this section and the Brand Guidelines, the Brand Guidelines shall take precedence.
10.7 License to Use City Marks. The City hereby grants to eSC a non-exclusive license to use the name, logos, trademarks, service marks, designs, product and service identification, artwork and other symbols and distinctive indicia of the City and identified in Exhibit D attached hereto (the “City Marks”) during the Term of this Agreement (unless otherwise stated in this Agreement) in accordance with the terms of this Agreement and the City Marks Guidelines set forth in Section 10.8 herein, specifically to provide the City with the Host Benefits.
10.7.1 The foregoing license is subject to the right of the City to review and approve (not to be unreasonably withheld, delayed or conditioned) in advance all such uses of the City Marks.
In no event shall the City’s official seal be utilized by eSC.
10.7.2 eSC shall have no right to assign, license or “pass-through” rights to use the City Marks to any person or entity, except as necessary to fulfill its obligations set forth in this Agreement. The Parties acknowledge and agree that, upon the expiration or termination of this Agreement, eSC shall cease to any use of the City Marks other than in respect of eSC’s exploitation of the Event Content and for any factual historical references to the Event by eSC, such license being granted by the City to eSC in perpetuity.
10.8 City Marks Guidelines. Any use of the City Marks during the Term shall be further subject to the following conditions and limitations (collectively, the “City Marks Guidelines”):
(1) eSC shall utilize the City Marks pursuant to the license granted herein in accordance with those graphics standards supplied by the City to eSC in writing from time-to-time;
(2) eSC shall not use the City Marks in any manner that is misleading or that is reasonably likely to reflect unfavorably upon the reputation of the City or in any manner that is contrary to applicable laws and regulations, including, without limitation, those relating to truth in advertising and fair trade practices; (3) eSC shall not participate with any third party in a promotion using the City Marks or permit the City Marks to be used in a manner that could be reasonably interpreted as a promotion or endorsement of a third party’s products or services (other than as set out in this Agreement); and
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 21 (4) eSC shall not, after the expiration or termination of this Agreement, use any slogan or graphic device that was developed for use in conjunction with the City Marks if such slogan or graphic device implies an ongoing association with the City other than in respect of eSC’s exploitation of the Event Footage and for any factual historical references to the Event by eSC, such license being granted by the City to eSC in perpetuity.
10.9 No Disparagement by eSC. eSC will not, at any time, disparage, dilute or adversely affect the validity of the City Marks or take any action, or otherwise suffer to be done any act or thing which may at any time, in any way materially adversely affect any rights of the City in or to the City Marks, or any registrations thereof or which, directly or indirectly, may materially reduce the value of the City Marks or detract from their reputation. This section shall not be interpreted to preclude any action or proceeding by eSC to enforce or defend its rights under this Agreement and shall not preclude eSC or its representatives from communicating information which eSC reasonably determines to be factually accurate pertaining to the City.
10.10 Archive Content and Event Content. eSC grants to the City:
10.10.1a non-exclusive and royalty-free license (and the right to sub-license to Local Event Sponsors) to use the following in the United States during the Term: audiovisual footage and imagery relating to any eSC event (other than the Event), as provided by eSC to the City (“Archive Content") for the purposes of exercising the Host Benefits, and performing the City’s obligations, under and in accordance with the terms of this Agreement; and
10.10.2a non-exclusive and royalty free license to use the following in the United States after the Term in perpetuity: any footage and images relating to the Event that are provided by eSC to the City (“Event Content”) for the purpose of factual historical references to the Event and/or for the promotion of the City of Emeryville.
10.11 The City acknowledges and agrees that the City owns the exclusive right, title and interest in and to the Archive Content and the Event Content, and that any use of the same shall inure to the benefit of eSC.
10.12 The City shall ensure that all uses (including those of the Local Event Sponsors) of the Archive Content and/or the Event Content comply strictly with sections 10 and 13 of this Agreement as if they were eSC Marks.
11 TRADEMARKS
11.1 eSC Marks. eSC Marks, specifically including but not limited to the words “eSkootr Championship,” are and shall remain the property of eSC.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 22 11.1.1 Rights Licensed to City. The rights licensed by eSC to the City with respect to use of the eSC Marks shall convey license rights only and shall convey no rights of ownership in or to the eSC Marks.
11.1.2 eSC represents and warrants that it has the right to use the eSC Marks, specifically including but not limited to the words “eSkootr Championship,” and to license the use of the eSC Marks to the City as set forth in Section 10 herein.
11.1.3 eSC owns all right, title and interest in and to the eSC Marks (excluding any City Mark). eSC shall have the right to take all steps reasonably necessary to protect the eSC Marks through United States Patent and Trademark Office (“PTO”) registrations and such foreign registrations as it deems desirable and through reasonable prosecution of infringements. eSC shall be the record owner of all such registrations for the eSC Marks. The City shall cooperate as reasonably necessary to assist eSC in enforcing such trademark protection and in prosecuting any alleged infringements of the eSC Marks.
11.2 City Marks. The City Marks are and shall remain the property of the City.
11.2.1 Rights Licensed to eSC. The rights licensed by the City to eSC with respect to use of the City Marks shall convey license rights only and shall convey no rights of ownership in or to the City Marks.
11.2.2 The City represents and warrants that it has the right to use the City Marks and to license the use of the City Marks to eSC for use in connection with the Event and to provide the Host Benefits.
11.2.3 The City owns all right, title and interest in and to the City Marks. The City shall have the right to take all steps reasonably necessary to protect the City Marks through PTO registrations and such foreign registrations as it deems desirable and through reasonable prosecution of infringements. The City shall be the record owner of all such registrations for the City Marks. eSC shall cooperate as reasonably necessary to assist the City in enforcing such trademark protection and in prosecuting any alleged infringements of the City Marks.
12 MERCHANDISING.
12.1 The Parties acknowledge and agree that eSC shall be the sole licensor of all Event-related merchandise bearing the eSC Marks and/or otherwise relating to the Event in any way (the “Event-Related Merchandise”).
12.2 The City shall have the right to purchase EventRelated Merchandise from the licensee at an amount to be agreed upon by and among eSC, the City, and such licensee, but shall have no DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 23 right or license to manufacture or distribute Event-Related Merchandise or any other merchandise bearing the eSC Marks.
13 APPROVALS.
13.1 The City agrees to submit to eSC for its prior written approval all proposed uses of the eSC Marks that the City wishes to make pursuant to the limited license granted to the City in this Agreement, including but not limited to submission of representative samples of all advertising, promotional and other materials to be used in connection with the City’s products and services as well as any premiums that the City may wish to use containing the eSC Marks.
If the City’s request is not responded to by eSC within ten (10) business days after eSC has received the material from the City, the City shall provide written notification to eSC of such fact and eSC agrees that any such proposed materials shall be deemed approved if the City’s request is not responded to within five (5) business days following receipt of such written notice.
13.2 The City shall supply free of charge to eSC for administrative and archival purposes two (2) originals of all advertising, promotional or other materials in connection with the products and services to be used by the City in connection with the licenses granted under this Agreement.
13.3 All requests for approval, including representative samples of all advertising, promotional and other materials shall be sent to eSC at the address for notices under this Agreement to the attention of the individual designated to receive notices for eSC. 14 BROADCAST AND MEDIA RIGHTS; OTHER COMMERCIAL EXPLOITATION OF THE EVENT.
14.1 As between the City and eSC, eSC controls all rights to distribute, promote, market and otherwise commercially exploit the eSkootr Championship and the Event by means of any and all audio, visual and audiovisual media of all types, including but not limited to television, radio, Internet and print, and wireless devices as well as with respect to sponsorship, licensing, hospitality, merchandising, and other marketing rights with respect to the Event (“Commercial Exploitation Rights”) and that the City will not purport to grant or license any such rights to a third party without the prior express written approval of eSC.
14.2 The City shall not (and shall not permit any party to): (i) record, produce, distribute, broadcast, sell, license, or deal in any way with any media content of the eSkootr Championship and or the Event; or (ii) create, produce, collate, record, broadcast, generate, transmit, distribute or otherwise exploit any data related to the Event and/or the eSkootr Championship.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 24 15 OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY.
15.1 Ownership of Intellectual Property. Subject to the terms of Section 11 herein, each Party shall own all right, title and interest in and to all intellectual property created by or on behalf of such Party in connection with this Agreement, including without limitation, all logos, names, ideas, concepts, creative materials, promotional materials, advertising, graphics, including all copyrights and proprietary rights therein, and any inventions and discoveries first conceived or developed, whether or not protected by patent, trade secret or copyright, subject to the ownership rights of the other Party to such other Party’s trademarks to the extent that such are incorporated into such intellectual property (such property being collectively referred to as the “Intellectual Property”). (That Intellectual Property which has been created by or on behalf of the City is referred to as the “City Intellectual Property” and that Intellectual Property which has been created on behalf of eSC is referred to as the “eSC Intellectual Property”.)
15.2 The Parties acknowledge and agree that the eSC Marks and the distinctive colors, concepts, indicia and look displayed by eSC throughout the Event and by eSC in its regular business operations and materials shall constitute eSC Intellectual Property and therefore be owned by eSC. The City expressly acknowledges that the Parties have agreed that all copyrightable aspects of the eSC Intellectual Property are to be considered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), of which eSC is to be the “author” within the meaning of such Act. All such copyrightable works, as well as all copies of such works in whatever medium fixed or embodied, shall be owned exclusively by eSC as its creation and the City expressly disclaims any interest in any of them. The City expressly acknowledges that it is not a joint author and that the eSC Intellectual Property and all other work created by eSC hereunder are not joint works under the Act.
15.3 In the event (and to the extent) that any eSC Intellectual Property or any part or element thereof is found as a matter of law not to be “work made for hire” within the meaning of the Act, the City hereby conveys and assigns to eSC the sole and exclusive right, title and interest in the ownership to all such eSC Intellectual Property, and all copies of it, without further consideration, and agrees to assist eSC’s efforts to register, and from time to time to enforce, all patents, copyrights, and other rights and protections relating to the eSC Intellectual Property in any and all countries. To that end, the City agrees to execute and deliver all documents requested by eSC to evidence any assignment as well as otherwise in connection therewith.
15.4 The City understands that the term “moral rights” means any rights of paternity and integrity, including any right to claim authorship of a copyrightable work, to object to a modification of such copyrightable work and any similar right existing under the judicial or statutory law of any country or under any treaty, regardless of whether or not such right is referred to as a “moral right,” including, without limitation, the rights of attribution and integrity in works of visual art pursuant to 17 U.S.C. § 106A. The City irrevocably waives and agrees never to assert any moral rights the City may have in the eSC Intellectual Property, even after any termination or expiration of this Agreement.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 25 15.5 The Parties agree to affix appropriate copyright and trademark notices as reasonably designated by the other, together with their own notices as appropriate, on the eSC Intellectual Property to identify eSC as the owner of the eSC Intellectual Property and the City as the owner of the City Intellectual Property.
15.6 The City acknowledges that it has no right, title or interest in the eSC Marks and that nothing in this Agreement shall be construed as an assignment to the City of any right, title or interest in the eSC Marks, except the license to use of the eSC Marks as provided in this Agreement.
15.7 Protection of Intellectual Property. The City agrees that eSC shall have the sole right to determine whether any action should be taken to terminate unauthorized use of the eSC Marks or to settle any proceeding brought by eSC to terminate such unauthorized use. All proceeds from any enforcement action shall belong exclusively to eSC.
15.8 eSC and the City agree to assist each other in the defense of any proceeding or claim with respect to the use of any eSC Marks by the City in accordance with the terms of this Agreement. eSC agrees to defend, at its expense any such proceeding or claim on behalf of the City. The City shall be permitted to retain, at its expense, separate counsel in such defense. 16 RESERVATION OF RIGHTS
16.1 eSC reserves all rights not expressly licensed to the City under this Agreement. Any and all rights of eSC, including those in and to the eSkootr Championship and Event Marks, not expressly granted to the City under this Agreement are reserved to eSC and may be exercised, marketed, exploited or disposed of by eSC concurrently with the Term of this Agreement in such form and manner as eSC wishes. The City acknowledges and agrees that this Agreement does not convey or grant to it any rights of ownership in or management of the eSkootr Championship, eSC and/or the eSC Marks.
17 REPRESENTATIONS AND WARRANTIES
17.1 Representations by eSC. eSC represents and warrants that:
(1) It has the full right, power and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person, that there are no other agreements or commitments, oral or written, that will interfere with its full performance hereunder and that it will fully comply with all federal, state and local laws, rules and regulations applicable to the day-to-day conduct of its business and to its obligations and performances hereunder; DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 26 (2) The eSC Marks (excluding any City Marks) do not infringe the trademarks or other proprietary rights of any other person or entity; (3) Any materials created by eSC (or its representatives) shall be owned by eSC and shall not infringe any third-party copyright or trademark; (3) It will comply with all applicable laws, regulations and ordinances pertaining to the promotion and conduct of the Event; and
(4) When complying with its obligations under this Agreement, it will exercise its reasonable efforts to ensure that eSC and its officials, employees, agents, representatives, volunteers, and contracted parties promote and protect the goodwill of the City and not engage in conduct which is detrimental to the City. This section shall not be interpreted to preclude any action or proceeding by eSC to enforce or defend its rights under this Agreement and shall not preclude eSC or its representatives from communicating information which eSC reasonably determines to be factually accurate pertaining to the City.
17.2 By the City. The City represents and warrants that:
(1) It has the full right, power and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person, that there are no other agreements or commitments, oral or written, that will interfere with its full performance hereunder and that it will fully comply with all federal, state and local laws, rules and regulations applicable to the day-to-day conduct of its business and to its obligations and performances hereunder; (2) The City owns or has the authority to grant to eSC a license to use the City Marks and any footage and imagery of the various locations within the City of Emeryville that the City provides to eSC;
(3) The City Marks and any footage and imagery of various locations within the City of Emeryville that the City provides to eSC do not infringe the trademarks or other proprietary rights of any other person or entity; (4) Any materials created under the control, direction or supervision of the City shall be original, shall be owned by the City and shall not infringe any third-party copyright or trademark;
(5) It will exercise its best efforts to ensure that City officials, employees, volunteers, agents, representatives, and contracted parties promote and protect the goodwill of eSC, the eSkootr Championship, and the Event and not engage in conduct which is detrimental to eSC and/or its organizers or sponsors. This section DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 27 shall not be interpreted to preclude any action or proceeding by the City to enforce or defend its rights under this Agreement and shall not preclude the City or its representatives from communicating information which the City reasonably determines to be factually accurate pertaining to eSC, its organizers or sponsors, the eSkootr Championship, the Event, and the Event Location; and (6) The City shall own and/or control the Event Location during the Event Period.
Subject to the City’s prior written approval of the Event Location, the Event Course, and the Safety Plan (pursuant to the terms of this Agreement), the Event Location shall be available to stage an Event at any time in September or October in any Season.
18 INDEMNIFICATION AND LIABILITY
18.1 By eSC. eSC shall indemnify, defend and hold harmless the City, its elected officials, executives, directors, agents, employees, volunteers, and other representatives (collectively, the “City Indemnified Parties”), from and against any and all claims, demands, damages, liabilities, lawsuits, losses or expenses, including without limitation, interest, penalties, reasonable attorney’s fees, and all amounts paid in the investigation, defense or settlement of the foregoing (the “Claim” or “Claims”) arising out of, based on or in any other manner related to:
(1) the Material Breach (defined below) of any representation, warranty, material covenant or obligation of eSC under this Agreement;
(2) any negligent act, omission, or willful conduct by eSC; (3) the products, services, and other deliverables provided by eSC and its employees, volunteers, agents, representatives and contractors in carrying out its obligations under this Agreement;
(4) any Claim that the City’s use of the eSC Marks or other eSC Intellectual Property in accordance with this Agreement infringe upon any patent, copyright, trademark, trade secret or any other right of a third party; and (5) the failure or alleged failure by eSC to comply with all laws relating to labor relations, fair employment practices, safety and similar rules and regulations, including without limitation, the requirement of the Occupational Safety and Health Act (OSHA) of 1970 and with all Equal Employment Opportunity (EEO) provisions as required by law, regulation, or executive order.
18.2 By the City. The City shall indemnify, defend and hold harmless eSC, its officers, executives, directors, shareholders, members, agents, employees, volunteers, and other DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 28 representatives (collectively, the “eSC Indemnified Parties”), from and against any and all Claims arising out of, based on or in any other manner related to:
(1) the Material Breach (defined below) of any representation, warranty, material covenant or obligation of the City under this Agreement; (2) any negligent act, omission, or willful conduct by the City; (3) the products, services, and other deliverables provided by the City and its employees, volunteers, agents, representatives, and contractors in carrying out its obligations under this Agreement; provided, however, that the City shall not be responsible for indemnification resulting from road conditions of State of California and/or the Department of Transportation maintained highways and roads;
(4) the exercise by the City of its rights and the Host Benefits under this Agreement, including but not limited to any parking, food and beverage concessions, ancillary events or local sponsorships organized by the City;
(5) advertiser’s liability or other claim arising out of or in connection with the use by the City of the eSC Marks, including but not limited to any claim based upon an allegation of sponsorship or guaranty by eSC of the City; (6) a claim that the City Marks infringe upon any patent, copyright, trademark, trade secret or any other right of a third party; and
(7) the failure or alleged failure by the City to comply with all laws relating to labor relations, fair employment practices, safety and similar rules and regulations, including without limitation, the requirement of the Occupational Safety and Health Act (OSHA) of 1970 and with all Equal Employment Opportunity (EEO) provisions as required by law, regulation or executive order.
This indemnification shall not extend to or include any Claims, damages, suits or attorney’s fees arising out of any claim or allegation that any of the routes, roads, tracks, or other parts of the Event Course were negligently designed, selected, and/or constructed, but only if any such claim relates to loss resulting from eSC’s divergence from any aspect of the routes, roads, tracks, or other parts of the Event Course that were previously preapproved by the City Engineer pursuant to subsection 2.8. Prior approval by eSC of the use of the eSC Marks or other matters as to which eSC approval is required under this Agreement shall not affect eSC’s right to indemnification as to such usage.
18.3 Procedure Regarding Indemnification. Each Party shall give the other Party prompt written notice of any Claim coming within the scope of any indemnity expressly set forth in this DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 29 Agreement. Upon written request of any indemnitee, the indemnitor will assume defense of any such Claim, action or proceeding. The indemnitee shall cooperate with the indemnitor in the investigation, defense and/or settlement of any such Claim. The indemnification obligations in this Section 18 shall survive the expiration and/or termination of this Agreement.
18.4 eSC’s total liability to the City in contract, tort, misrepresentation, breach of duty or otherwise in connection with this Agreement shall not exceed the amount of the applicable insurance coverage (as set forth in Section 21) that eSC has in respect of such claim.
18.5 Except as to claims brought against one Party or both Parties by a third-party, under no circumstance shall either Party be liable to the other for any incidental, consequential, special or punitive damages, including loss of profits or other economic benefit.
18.6 No Party excludes liability for death or personal injury to the extent that the same arises as a result of its negligence or fraud or any other liability that it is not lawfully permitted to exclude.
19 TERMINATION.
19.1 Default. Either Party may terminate this Agreement, at its option, upon written notice to the other Party, upon the occurrence of one or more of the following events (the “Termination Events”):
(1) Material Breach (defined below) of any covenant, agreement, representation, warranty, term or condition of this Agreement, if such breach has not been waived in writing and if such breach is not cured or remedied by the breaching Party to the other Party’s reasonable satisfaction within thirty (30) days (or three (3) days if such breach occurs less than thirty (30) days before the Event dates) after delivery of written notice specifying the nature of the breach, or if the Parties agree that the breach is not capable of being cured or remedied within said thirty (30) days (or three (3) days if such breach occurs less than thirty (30) days before the Event dates), then within the time period mutually agreed to by the Parties in a jointly approved plan of corrective action developed within thirty (30) days (or three days if such breach occurs less than 30 days before the Event dates) after the delivery of written notice to the breaching Party specifying the nature of the breach. For the purposes of Sections 18.1(1) and (2) and 19.1(1), a “Material Breach” means a breach of any of obligation(s) set out in this Agreement that has caused or is reasonably likely to cause a loss of at least US$100,000; or (2) A Party becomes insolvent, fails to pay its debts or perform its obligations in the ordinary course of its business as they become due, admits in writing its insolvency or instability to pay its debts or perform its obligations as they become due, or becomes the subject of any voluntary or involuntary proceeding in DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 30 bankruptcy, liquidation, dissolution, receivership or general assignment for the benefit of creditors, provided that, if such condition is assumed involuntarily, it has not been dismissed with prejudice within sixty (60) days after its commencement; or
(3) A failure to raise Local Event Sponsor Revenues pursuant to Section 7.3.8 and/or the failure to procure and provide the insurance policies and coverage at the limits stated in Sections 21.1 and 21.3 by the applicable Key Milestone Dates.
19.2 Effect of Termination. Should either Party terminate this Agreement as a result of a Termination Event set forth in subsection 19.1 above, then upon termination of this Agreement, the City’s Host Benefits shall terminate and the City shall cease using the eSC Marks.
19.2.1 Termination by City. Should termination result from termination notice given by the City to eSC based on the occurrence of a Termination Event of the type set forth in subsection
19.1 (1) or (2) above, eSC shall repay to the City all amounts actually expended by the City and all amounts for which the City is contractually obligated to pay in performing its obligations hereunder; provided, however that eSC shall not be liable to the City for individual amounts in excess of (i) US$100,000 if the date of termination is prior to three (3) months before the Event; or (ii) US$750,000 if the date of termination is within three (3) months of the Event.
19.2.2 Termination by eSC. Should termination result from termination notice given by eSC to the City based on the occurrence of a Termination Event of the type set forth in subsection
19.1 (1) or (2) above, the City shall repay to eSC all amounts expended by eSC in licensing to the City the right to host the Event, to provide the Host Benefits, and to relocate the site for the Event; provided, however that the City shall not be liable to eSC for individual amounts in excess of (i) US$100,000 if the date of termination is prior to three (3) months before the Event; or (ii) US$750,000 if the date of termination is within three (3) months of the Event.
19.2.3 Upon cancellation of the Event or termination of this Agreement due to a failure to raise Local Event Sponsor Revenues under Section 7.3.8 and/or the failure to procure and provide the insurance policies and coverage at the limits stated in Sections 21.1 and 21.3 by the applicable Key Milestone Dates, each Party shall be liable for the costs each has incurred to that date.
20 INDEPENDENT CONTRACTORS.
20.1 eSC and the City are independent contractors with respect to each other and nothing herein shall be deemed or construed to create any partnership, joint venture or agency relationship between them. The City is simply serving as host to the Event under the license of rights granted herein and is agreeing herein to provide certain services and to undertake certain DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 31 obligations in order to acquire certain marketing rights and benefits. Neither Party shall have any authority to contract or bind the other Party in any manner and shall not represent itself as the agent of the other.
21 INSURANCE.
21.1 Insurance Coverage for eSC. Throughout the Term of this Agreement (including any extensions thereof), eSC shall provide and maintain, at its expense, the following insurance policies which shall protect eSC, its agents, representatives, employees, contractors, and subcontractors on a primary basis from any and all Claims arising out of or in connection with respect to the Event and the obligations of eSC pursuant to this Agreement:
(1) Commercial General Liability insurance with limits not less than 10,000,000 euros (or equivalent amount in US$) each occurrence and 10,000,000 euros (or equivalent amount in US$) in the aggregate. Such insurance shall include coverage for contractual liability, products-completed operations, personal and advertising injury, premises damage, liquor liability, property damage, and bodily injury liability (including death);
(2) Commercial Auto Liability insurance with a limit not less than 2,000,000 euros (or equivalent amount in US$) each accident combined single limit for bodily injury and property damage insurance covering Claims arising out of the use, operation or maintenance of any vehicle whether owned, non-owned, leased, hired, or borrowed;
(3) Workers’ Compensation insurance with limits as required by statutory law, including Employer’s Liability coverage with limits not less than 1,000,000 euros (or equivalent amount in US$) each accident, policy limit bodily injury or disease, and each employee bodily injury or disease;
(4) Umbrella and/or Excess Liability insurance with limits not less than 5,000,000 euros (or equivalent amount in US$) each occurrence shall apply in excess of and on a following form basis to the primary Commercial General Liability, Automobile Liability, Employer’s Liability, and Pollution Liability policies; and (5) Any other insurance necessary and appropriate for the Event as determined by eSC.
All such insurance to be maintained by eSC shall be (1) primary with respect to Claims arising out of any obligations of eSC pursuant to this Agreement; (2) shall be written by insurance companies with ratings of “A-” or better in the latest edition of the A.M. Best key rating guide; and (3) shall provide that coverage may not be materially changed, DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 32 reduced or cancelled unless thirty (30) days prior written notice thereof is furnished to the City.
Within one hundred twenty (120) days after the Effective Date, eSC shall provide the City with a Certificate of Insurance and endorsements certifying that the insurance policies set out in Section 21.1 are in place and that they meet the insurance requirements as also set forth in this Section 21.1. Neither eSC nor any of it employees, volunteers, agents, representatives, contractors, and/or subcontractors shall commence any work, construction, setup, or staging at the Event Location, Event Course, and ancillary areas until eSC has provided such Certificate of Insurance and endorsements.
21.2 eSC Optional Insurance. eSC may, but shall not be obligated to, secure Event Cancellation insurance providing reimbursement of insured losses if the Event does not take place, in whole or in part, due to any act of god or other event beyond the control of eSC and those other circumstances set forth in Sections 22 and 23 herein. Covered perils may include adverse weather conditions; natural disasters; outbreak of disease; damage to or loss of venue; unavoidable transportation delays; non-appearance of key participants due to death, injury or illness; situations which pose significant danger to the public or Event participants; and other causes beyond eSC’s control which are not specifically excluded under the policy. Notable exclusions will include war, civil commotion, riot, martial law, seizure, or radioactive/nuclear contamination, poor event planning and management, fraud, misrepresentation, or concealment. All event cancellation proceeds shall constitute the property of eSC. eSC’s obligation to secure Event Cancellation insurance is limited to the extent such coverage is available at a reasonable cost in the sole discretion of eSC.
21.3 Insurance Coverage for the City. Within ten (10) days after the Effective Date, eSC shall provide to the City a written quote from eSC’s insurer for the additional cost(s) to eSC’s premium to name as additional insureds the City and City Indemnified Parties (as defined in subsection 18.2 above) on eSC’s insurance policies with the same coverage and at the limits identified above in Section 21.1 (1), (2), (3), and (4).
21.3.1 Such additional cost(s) to eSC’s premium for naming the City and City Indemnified Parties (as defined in subsection 18.2 above) on eSC’s insurance policies and at the limits identified above in Section 21.1 (1), (2), (3), and (4) shall not exceed approximately US$50,000 per Season and shall be subject to written approval by the City. Upon such written approval, the City shall remit to eSC payment for the additional cost(s) to eSC’s premium. The Parties acknowledge and agree that such payment by the City shall be part of the Event Requirements, budgeted at the Event Budget.
21.3.2 All policies shall waive or shall permit eSC to waive all rights of subrogation which may be obtained by eSC or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured under this Agreement, and eSC agrees to waive all such rights of subrogation.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 33 21.3.3 Such insurance coverage shall be primary insurance as respects the City and City Indemnified Parties. Any insurance or self-insurance maintained by the City and City Indemnified Parties shall be excess of the insurance provided by eSC and shall not be called upon to contribute with it. The insurance coverage provided by eSC shall contain standard separation of insureds provisions.
21.3.4 Within one hundred twenty (120) days after the Effective Date, eSC shall provide the City with a Certificate of Insurance and endorsements certifying that the appropriate insurance is in place and that the policies have been properly endorsed to meet the insurance requirements as set forth in this Section 21.3. Neither eSC nor any of it employees, volunteers, agents, representatives, contractors, and/or subcontractors shall commence any work, construction, setup, or staging at the Event Location, Event Course, and ancillary areas until eSC has provided such Certificate of Insurance and endorsements.
21.3.5 If eSC fails to deliver the Certificate of Insurance and endorsements in accordance with Section 21.3.4 (other than due to factors within the reasonable control of eSC), either Party may either cancel the Agreement or terminate this Agreement.
21.3.6 Throughout the Term of this Agreement (including any extensions thereof), eSC and its insurer shall maintain as additional insureds the City and City Indemnified Parties (as defined in subsection 18.2 above) on the policies and at the limits identified above in Section 21.1 (1), (2), (3), and (4).
21.4 Insurance Coverage for Contractors/Subcontractors. All of eSC’s contractors and subcontractors shall meet the requirements of Section 21.1 (1), (2), (3), (4), and (5).
21.4.1 Each contractor and subcontractor of eSC shall name the City and City Indemnified Parties (as defined in subsection 18.2 above) as additional insureds on their General Liability insurance policy.
21.5 Each Party shall report to the other Party, in addition to any insurers, any and all insurance claims submitted in connection with the Event and/or any obligations performed under this Agreement.
22 FORCE MAJEURE.
If a Party is totally or partially prevented from performing any of its obligations under this Agreement as a result of any act of god or other event beyond the reasonable control of the affected Party(ies), including without limitation, weather, fire, flood, act of public enemy or terrorism, strike or labor dispute, pandemic or epidemic, governmental action or directive or local, regional or national day of mourning (“Force Majeure”), the affected Party shall promptly serve notice on the other Party specifying the matter(s) constituting the Force DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 34 Majeure event and providing the other Party with its best estimate of the likely extent and duration of the Force Majeure event. Subject to both Parties (acting reasonably and in good faith) agreeing there has been a Force Majeure, the Party prevented from performing its obligations shall be excused performance of such obligations from the date of such notice for so long as the Force Majeure event shall continue provided that:
(1) throughout the duration of the Force Majeure event, it shall take all reasonable steps to mitigate the effects of the Force Majeure event; and
(2) upon cessation of the Force Majeure event, it shall promptly serve notice on the other Party of such cessation.
If performance by a Party of its obligations under this Agreement is only partially affected by a Force Majeure event, such Party shall nevertheless remain liable for the performance of those obligations not affected by the Force Majeure Event and therefore which it can reasonably perform, save where the Parties agree otherwise.
If the Event cannot be staged at the Event Location during the designated dates as a result of a Force Majeure event, the Parties shall use their reasonable endeavors to reschedule the Event in the City on an alternative date mutually acceptable to the Parties. To the extent this is not reasonably possible prior to the Event Period (both parties acting reasonably and in good faith), either Party shall be entitled to terminate this Agreement without penalty upon notice to the other Party and the Event shall be cancelled.
Should the Event be cancelled, in whole or in part, due to an event of Force Majeure, eSC shall have no further obligation, financial or otherwise, to the City and the City shall have no further obligation to eSC in connection with the Event. In the event that the Event is postponed, in whole or in part, due to an event of Force Majeure and eSC intends to reschedule the Event, eSC and the City shall discuss in good faith the terms under which such rescheduling should occur. In the event of such cancellation or postponement due to a Force Majeure event, the obligations of the Parties and the rights of the City shall be as specifically set forth in this Section 22 as the sole and exclusive remedy by virtue of such cancellation or postponement. 23 CANCELLATION OR POSTPONEMENT OF EVENT FOR REASON OTHER THAN FORCE MAJEURE. Other than as set out in this Agreement, eSC shall have the sole right to cancel or postpone the Event for reasons other than Force Majeure. However, should eSC unilaterally cancel the Event for reasons other than Force Majeure or a Termination Event, eSC shall, subject to the terms of Section 19, repay to the City amounts reasonably expended by the City in performing its obligations hereunder. In the event of such cancellation or postponement for a reason other than Force Majeure, the obligations of eSC and the rights of the City shall be as specifically set forth in this Section 23 as the sole and exclusive remedy by virtue of such cancellation or postponement. Upon providing notice of cancellation or DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 35 postponement, eSC shall have no further obligation to provide the City with any of the Host Benefits and the City need not continue to perform the Host Obligations. 24 PUBLIC ANNOUNCEMENT AND CONFIDENTIALITY.
24.1 The Parties agree to make a joint public announcement and press release in the near future following execution of this Agreement. The Parties agree that the form and substance of such announcement and press release shall be mutually agreed between the Parties.
24.2 Subject to subsection 24.3, each Party agrees to keep, and to ensure that its respective advisors, officers, agents, and employees do not disclose, any information supplied by the other Party relating to the business of the applicable Party, the eSkootr Championship, the Event (including the terms and existence of this Agreement) (“Confidential Information”).
24.3 Each Party may disclose the other Party's Confidential Information:
(1) to its employees, officers, representatives, contractors, subcontractors, and advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors, and advisers to whom it discloses the other Party's Confidential Information comply with this subsection; and (2) as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority. eSC acknowledges that the City is subject to the Ralph M. Brown Act (“Brown Act”) and the California Public Records Act (“CPRA”), and that the City is, at all times, bound by the publication and disclosure requirements of the Brown Act and CPRA.
25 LIABILITY OF CITY. The City acknowledges and agrees that it shall be responsible for each of its obligation under this Agreement and, therefore, that any liability for breach of any obligation of the City hereunder shall constitute an obligation of City. The City shall be liable for the actions taken by any third party it appoints to deliver any of its obligations under this Agreement as if the City took such actions itself. Insofar as this Section 25 conflicts with the Government Code with respect to vicarious liability and any immunities afforded to the City, the Government Code shall take precedence.
26 SPECIFIC PERFORMANCE. The duties, obligations, and responsibilities of the Parties under this Agreement are unique, and, therefore, the Parties agree that monetary damages may not be an adequate remedy for breach of this Agreement. The Parties acknowledge and agree that, in the event of a breach by either Party, the other Party may suffer irreparable harm.
Therefore, such non-breaching Party shall be entitled to the remedy of specific performance, which shall not be the exclusive remedy for any violation of breach of this Agreement.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 36 27 MISCELLANEOUS.
27.1 Assignment. Neither Party may assign any rights or obligations under this Agreement or this Agreement itself, in whole or in part, without the prior express written consent of the other Party. Notwithstanding the foregoing, both eSC and the City may retain the services of subcontractors to discharge certain obligations under this Agreement subject to the relevant Party remaining liable for its subcontractors’ performance of its obligations as if they were its own.
27.2 Notices. Except as expressly provided to the contrary herein, any notice which is required to be given hereunder, or which either Party may desire to give to the other, shall be in writing and may be personally delivered or given by email or mailing the same by courier (e.g., Federal Express or comparable courier) for delivery the next business day addressed to the other Party as follows:
If to City: If to eSC:
City Manager,
City of Emeryville
1333 Park Avenue
Emeryville, California 94608
Email:
[email protected]
With copy to:
City Attorney,
City of Emeryville
1333 Park Avenue
Emeryville, California 94608
Email: [email protected]
(or such other person and place the
City may designate by written notice)
WES MANAGEMENT LIMITED
85 Great Portland Street
London, United Kingdom, W1W 7LT
Attn: Khalil Beschir
Email: [email protected]
(or such other person and place eSC
may designate by written notice)
Either Party may change its address and designee to receive notices by notifying the other Party of such change in writing. Notice shall be deemed given at the time of personal delivery or after forty-eight (48) hours from the time of mailing of such notice by courier DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 37 (e.g., Federal Express or comparable courier) for delivery the next business day addressed to the other Party.
27.3 Entire Agreement; Modifications. This Agreement constitutes the entire agreement of the Parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to the subject matter hereof. This Agreement may not be modified, amended, or supplemented or otherwise changed, except by a written document executed by an authorized representative of each of the Parties hereto.
27.4 No Waiver of Rights and Breaches. No failure or delay of any Party in the exercise of any right given to such Party hereunder shall constitute a waiver thereof, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.
The waiver by a Party of any default of any other Party hereunder shall not be deemed to be a waiver of any such subsequent default or other default of any Party.
27.5 Captions. Captions and section headings used in this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
27.6 Recitals and Exhibits. All recitals and exhibits referred to herein, and any exhibits or schedules which may from time to time be referred to in any duly executed amendment hereto, are by such reference incorporated herein and shall be deemed a part of this Agreement as if set forth fully herein.
27.7 No Presumption Against the Drafter. This Agreement shall be interpreted and construed only by the contents hereof and there shall be no presumption or standard of construction in favor of or against either Party. Neither of the Parties shall be deemed the drafter of this Agreement and the presumption against the drafter under Civil Code section 1654 shall not apply.
27.8 Independent Legal Counsel. Each Party represents, warrants, and acknowledges that it had the opportunity to consult with independent legal counsel of its own choosing in connection with the negotiation and execution of this Agreement.
27.9 Authority to Enter Agreement. Each Party represents, warrants, and acknowledges that it has read this Agreement and signs this Agreement freely and voluntarily. Each individual signing this Agreement represents that he/she/they is authorized to act as agent for, and to bind, the Party indicated to the terms of this Agreement.
27.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and authorized assigns.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 38 27.11 Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of California and for all purposes governed by and construed in accordance with the laws of the State of California.
27.12 Venue and Exclusive Jurisdiction. The Parties agree that venue of any judicial action in connection with this Agreement shall lie exclusively in the Superior Court of California in and for the County of Alameda. eSC accepts, generally and unconditionally, the exclusive jurisdiction of such court and any related appellate court and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. eSC further agrees that it irrevocably waives any objection it may now have or hereafter have as to the jurisdiction or venue of any such suit, action or proceeding brought in such court or that such court is an inconvenient forum. eSC acknowledges that it possesses the requisite minimum contacts with the State of California sufficient to establish jurisdiction over eSC by the Superior Court of California.
27.13 Survival. Those covenants, acknowledgments, representations, agreements, and obligations contained in Sections 10.4, 10.5, 10.6 (6), 14-18, 19.2, and 21-27 of this Agreement shall survive the expiration and/or termination of this Agreement (and any other sections/subsections that are expressly or impliedly intended to do so in this Agreement).
27.14 Compliance with Law, Rules, and Regulations. The Parties agree to comply with all federal, state, and local laws, ordinances, orders, rules and regulations applicable to the performance of their respective obligations under this Agreement, both now existing and as such may hereinafter be adopted.
27.15 Time of Essence. The Parties agree that time is not of the essence in performing obligations under this Agreement.
27.16 Severability. The determination that any provision of this Agreement is invalid or unenforceable shall not invalidate this Agreement, all of such provisions being inserted conditionally upon their being considered legally valid, and this Agreement shall be construed and performed in all respects as if such invalid or unenforceable provision(s) were omitted.
27.17 Further Assurances. The Parties agree to execute and deliver, or cause to be executed and delivered, such instruments and documents as either Party may reasonably request or require to carry out more effectively the purpose and intent of this Agreement.
27.18 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement
27.19 No Third-Party Beneficiaries. It is expressly understood that there are no third-party beneficiaries to this Agreement.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 39 27.20 Non-Discrimination. At all times during the Term of this Agreement neither eSC nor the City will discriminate in any way on the basis of age, race, religion, color, sex, gender, national origin, disability or any other characteristic protected by law, in the conduct of its activities.
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to execute this Agreement on their respective behalf as of the dates indicated below. eSC
WES MANAGEMENT LIMITED
85 Great Portland Street
London, United Kingdom, W1W 7LT
By:
Name:
Title:
Date:
City
CITY OF EMERYVILLE
1333 Park Avenue
Emeryville, California 94608
By:
Name:
Title: City Manager
Date:
ATTEST:
Name:
Title: City Clerk
APPROVED AS TO FORM:
John I. Kennedy
City Attorney
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 40 EXHIBIT A – EVENT REQUIREMENTS
TOPIC ITEM DETAILS TOTAL (EUR)
Infrastructure Steel structure Staging
The host must provide a level deck that can attach to the back of our start ramp.
This will vary in height between 1.2m (4ft) and 2.4m (8ft) depending on the size of ramp we build.
The platform must be 12m wide and 3m deep.
There must be handrail to the back and sides.
There must be stepped or ramped access to the back or side.
There must be a way of joining the ramp to this deck. Drawings will be provided.
Local
Tent Structures 6m x 3m Pop Up Gazebos. Local
Containers Local
Fencing Race Barriers
These are provided and transported by eSC, however, if there are local or national road carriage restrictions it will be necessary to unload in a location near to the track where we can drag the barriers into position using forklifts and 4 x 4 ATV’s. This area must be:
• Secure and/or 24hr security must be provided.
• Must have flat easy unrestricted access to the track. i.e.no steps bridges with weight limits or kerbs Barriers must be delivered before we start to lay out, as in Sion we must have secure space within easy reach of the track and accessible with fork-lifts and gators so we can move to track. If barriers are there for a period of time, there must be security with them
Other Barriers
Security 2m high fencing for the paddock area and the TV Compound. 2m high fencing for generator compound.
The appropriate no. of 2m high fences for specific areas to hide unsightly areas from cameras or public view.
These will be clad by eSC team with eSC provided branding.
Pedestrian barrier for the perimeter of the racetrack to provide public safety and security.
Local
Audio/Video/Light TBD Local
FF&E TBD Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 41 Flooring Racetrack
The size of this will be agreed venue by venue.
The agreed space for the track will have a good surface for racing.
Any groundworks required, will be carried out by an approved contractor, in an approved manner, at the city’s expense.
Surface should be asphalt, smooth paving or where possible a consistent grip level, we must avoid polished surfaces, e.g. polish concrete, painted surfaces, cobles, shiny tiles.
Timing Grooves depends on timing partner and track locations.
As a minimum we will need to cut a 3mm deep groove into the racetrack surface.
If the track is completely enclosed by tall buildings, we may need to add in other timing grooves around the track.
Where surfaces do not have enough grip for races or where there are particularly slippery surfaces e.g. Drain covers we will use a removable grip paint.
This grip paint may also be used for branding on the track surface.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 42 Power Due to eSC aiming for carbon neutral our ideal locations require mains electricity straight form the power grid Should this not be possible we would like to explore the use of hydrogen generators to provide the equivalent power as below.
As a last resort we would tolerate the use of Biodiesel generators, but this is a last resort and should only be used in the event of there being no alternative
TV Compound
307KW
Provided as 400a 3ph Powerloc
Distributed down to:
3 x 125a 3ph
3 x 32a 3ph
2 x 63a 3ph
Paddock
220KW
Provided as 1 x 400a Powerloc supply. This can be a lugged connection eSC to distribute
Trackside
63a 3ph Distributed down to multiple single-phase outputs around the perimeter of the track VIP
63a 3ph
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 43 Power (Bio Diesel
Generators – if mains
power can’t be supplied)
TV Compound
1 x 250KVa Generator for TV.
Distributed as per above for mains
Paddock
1 x 180 KVa Generator
Track
Approximately 75KVa generator and distribution
VIP
1 x 75KVa Generator
If all offices are temporary building the city must provide adequate power. Suggest 40KVa.
Should any Cables cross public walkways we will require adequate cable covers or bridges to be provided by the city.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 44 Water A wholesome drinking water refill point near the paddock ,TV Compound and Trackside near Race control. eSC single use plastic must be adhered to.
We will need access to Water Hydrants for removal of grip paint We will need the hosts to provide the necessary key to operate the hydrant.
Ideally these will be located around the track.
Access to a fast fill water point for our water tanks located in the paddock for fire suppression.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 45 IT & Technology Technical Kit
PA
Track wide PA system for commentary and music & Screen Audio.
Host must supply all control equipment & technical crew.
Screens
2 x 25m2 Screens for live relay of race.
Feed to come from Broadcast team.
Host must supply all control equipment & technical crew.
Depends on circuit length and location.
Internet
TV Compound
1 GB Hard wired WLAN for TV Compound.
Provided into the TV Compound.
This must have an open IP.
Comms Office
1 GB Hard wired WLAN for Comms & Timing Provided at Comms Office location - This must have an open IP.
eSC will distribute from these locations
Local
Equipment Plant & Gator Hire
4 x 1.5t Counterbalance forklifts.
2 sets of forklift extensions.
1 x 5/6m telehandler.
2 x 4 x 4 ATV Gators.
Local
Branding
Depend on Location and track layout.
Collaboration with local media outlets for advance advertising.
Collaboration with advance advertising around the city.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 46 Event Spaces Space Required
Paddock
Ideal area 3000m2 (32,291Sq. ft.)
Minimum area 2000m2 (21,527 Sq. ft.)
This space should be no more than 100m from the race start line.
Ideally situated next to the track.
This space must be accessible for Articulated trucks with no width, height, or weight restrictions.
TV Compound
This space should be no more than 200m from the race start line.
Space required approximately: Maximum area 1000m2 (10793.91 Sq.Ft) - 4 x Articulated lorries.
This space must be accessible for Articulated trucks with no width, height, or weight restrictions.
Office Spaces
All offices must be a convenient distance from the track.
Race Control – Trackside
Minimum Size 6m x 6m This will be a double portacabin (no internal joining wall) with air con.
Could also be a watertight marquee structure with flooring and air con.
Enough Space and furniture for 10 persons.
Race Office
Ideal Location Trackside next to Race Control.
Minimum Size 6m x 3m with Aircon.
Enough Space and furniture for 5 persons.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 47 Timekeeping
This will always sit next to Race control, trackside.
Minimum Size 6m x 3m With Aircon.
Enough Space and furniture for 4 persons.
Comms Office
6m x 6m or 2 x 6m x 3m With Aircon
This must be located no more than 200m from Racetrack and Paddock.
Enough Space and furniture for 4 persons.
Event Office
Enough space and furniture for 10 persons.
Press & Media Office
Enough space and furniture for 30 persons.
Commission Office
Enough space and furniture for 5-6 persons.
Riders Lounge
9m x 9m Space covered with soft furnishings and TV with race feed.
This should have a “chill out vibe” as it is an area for riders to relax and relieve some pressure.
This space must be located in or next to the Paddock.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 48 Guest Hospitality – Depends on stakeholder requirements An Appropriate space near the track (ideally overlooking) Power
Decorations
Furniture
Kitchen Equipment
An agreed food and beverage offer to VIP guests
Physio Room
6m x 3m Space
Located in the Paddock or building near the paddock.
Fan Zone
Depending on location and agreements between both parties.
Total infrastructure
cost
TBC
Event Services Catering eSC Operation and Sporting Catering Crew Catering for 200 Crew for practice and race days.
Suitably sized structure for above.
All Crew & Equipment for above.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 49 Cleaning Waste Management
Trackside waste bins for use by public.
Track side litter pickers for practice and race days.
Waste bins at all offices.
Litter pickers for office area.
Small bins in Paddock & TV.
Large skips for recycling.
Litter pickers for all areas for duration.
All waste must be sorted and recycled. Proof of waste management policy to be provided by the city or waste management contractor.
Welfare Facilities
Trackside Marshall Facilities
Toilet for 20 persons.
Race Control.
1 male toilet.
1 female toilet.
TV Compound
Enough toilets for 35 people.
Approximately 70/30 male-female split.
Paddock
Enough toilets for 125-150 people .
50/50 male-female split.
Offices
Enough toilets for 50-70 people.
50/50 male-female split.
Local
Entertainment TBD Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 50 Security 2 x 24-hour security on Paddock.
From when trucks get unloaded until trucks get reloaded Minimum of 1 x 24hour security for TV Compound from the moment the trucks arrive until they leave 1 x security for offices Hours TBC
4 x overnight security for track during build & on race days 2 x daytime security for track during build (these are mainly for public safety during the build of the track) Track security will be decided on how many openings we have for track crossing points and if we do have to have, public crossing points This security must have their own communication by way of 2-way radios The security supervisor must speak competent English langauge and can communicate with their team.
The security supervisor will sit in event control.
Local
Staff Local
Insurances and Admin Local
Ambulance & Fire Medical Cover
1 x Race Doctor.
2 x Ambulances with fully trained paramedic crew.
1 x medical buggy (or small vehicle) with stretcher.
Fully equipped race medical centre, within 1 minute of the track.
Fully equipped and operated First aid point for general public There must be a medical supervisor. The medical supervisor must speak English and can communicate with their team
The Supervisor will sit in event control.
Depending on the location of the nearest hospital these medical requirements are subject to change.
Fire
1 x Appropriate fire appliance able to access track.
Appropriate Fire crew for above vehicle.
2 x Scooter recovery gators with trailer.
2 x Fire crew for scooter recovery.
These vehicles will carry Ballistics blankets and cold fire extinguishers that are provided by eSC.
There must be a Fire supervisor who speaks English and can communicate with their team.
The Fire supervisor will sit in event control.
We will provide 2-way comms for the fire team.
Local
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 51 Side Events Local
Mark Comms Local
Total Event Services TBC
Broadcast
Production
Broadcast production
Broadcast distribution
Total Broadcast
Production
250,000
Logistics Championship -
Shipping & Transport
Final cost dependent on site visit and agreed event dates for full logistic plan and quotation 120,000 Travel and
Accommodations
(flights and hotels;
based on no. of people)
Depends on overall eSC operational and sporting numbers, details be provided by eSC. 75,000 Total Logistics
(Estimated)
195,000
Championship
Related Costs
Personnel & Pre Event
Travel
Circuit design, build and
derig + Homologation
Race operations
Content creation and
social media
Governing body fee and
personnels, overheads
costs
Event Personnel (locals
- Marshalls and
volunteers)
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 52 New Mobility Forum (If
agreed extra fee to be
added)
Medical center for Race,
incl governing body
medical personnel and
safety team
Accreditation & Media
Centre
Total Championship
Related Costs
470,000
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 53 EXHIBIT B – eSkootr Championship Sponsor Categories
Sponsorship categories that are reserved for eSC and not be included as Local Event Sponsors unless otherwise agreed between the parties are:
- Apparel (e.g. clothing, sportswear, designers)
- Timing (e.g. watches)
- Logistics (e.g. shipping, freight)
- Foreign Exchange (e.g. currency services, money transfer) DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 54 EXHIBIT C – eSC MARKS
(To be provided)
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 55 EXHIBIT D – CITY MARKS
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 56 EXHIBIT E – LOCAL EVENT SPONSOR RIGHTS
The below table sets out the rights that the City may grant to Local Event Sponsors subject to and in accordance with this terms of this Agreement.
Category Right Metric Quantity
Branding Trackside Barrier
Branding % of track barrier 60% (including host city package) Track floor branding Number of locations 1
Track corner branding Number of locations 1
Start ramp (interior)
branding Number and location 1 - Bottom Row
Start ramp (exterior)
branding Number of locations 6
eSC race podium logo
branding Number of locations 1
Virtual track branding
Number of logos per
race (e.g. 14 races
per event)
1 Media
Backdrops
eSC Press Conference
logo branding
% of conference
backdrop
10% (event title
partner only)
Media interview
backdrop logo branding
% of interview
backdrop
10% (event title
partner only)
Event
Activation
Riders Lounge brand
logo integration N/A Included
Rider trophy presentation Number of right 2
Pre-race activation
moment
N/A YES
Right to produce fan
zone activation space N/A As per event space
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 57 Right to event product
placement N/A 2 Brands
Tickets eSC Event Tickets Q of tickets per
Event 200
eSC Event Hospitality
Tickets
Number of tickets
per Event 50
VIP Paddock Tour Number of spaces 40
Content
Creation
Co-branded content
creation N/A YES
Brand Logo on Event
Partner Page N/A YES
Marketing and
Comms
Right to use eSC event
imagery and library
footage
N/A YES
Right to use Riders in an
Event Promotional
Campaign
N/A YES
Rider meet and greet N/A YES
Branded Event Email
Campaign N/A YES
Example Event Partner Packages
Package for Official Event Title Partner of an ESC Event ‘Official Event Title Partner’; Rights and Benefits
TERRITORY
Domestic market
EVENT
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 58 The eSkootr Championship; ‘Host’ Race, Presented by PROSPECT.
PRODUCT CATEGORY
To be defined
DESIGNATIONS
▪ Official Event Partner of [Host] ESC (non-exclusive); ▪ Official CATEGORY Partner of the [Host] ESC
▪ Official CATEGORY of the [Host] ESC; and
▪ Such other designation(s) as may be agreed.
PRESS RELEASE
The Parties will issue a joint press release announcing PROSPECT as Official CATEGORY Partner of the Event.
USE OF INTELLECTUAL PROPERTY AND BRAND ASSOCIATION
▪ Use of the Event Marks by PROSPECT for promotional purposes as Official CATEGORY Partner of the Event, subject to ESC’s prior written approval. ▪ Use of Official Partner composite logos, each comprising an Event Mark and PROSPECT Mark, by PROSPECT for promotional purposes as Official CATEGORY Partner of the Event.
▪ Use of library video footage and photographs from the Event for promotional purposes by PROSPECT, including for use in advertising and social media by PROSPECT. ▪ PROSPECT brand recognition commensurate with its status as Official CATEGORY Partner and with any other Official Partners appointed by ESC.
EVENT, VENUE & BROADCAST BRANDING FOR PROSPECT BRAND
▪ PROSPECT shall receive recognition in the form of branding at areas under the control of ESC in the respective venues of the Event, the quantum, sizing, prominence and positioning of such branding shall be commensurate with PROSPECT’s status as Official Title Partner of the Event, and with any other Official Partners appointed by ESC including:
o Venue and trackside branding (including side of the racetrack, start line, virtual branding, podium branding, media backdrops etc), commensurate with Title Event partner level;
o In the Hospitality Area, commensurate with Title Event partner level; DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 59 o Other branding opportunities as may be agreed between the parties. ▪ Use of ESC Event Marks during and in respect of each Event in "above the line" media by PROSPECT for promotional purposes as Official Title Partner of the Event.
ESC COMMUNICATIONS AND DIGITAL MEDIA
▪ Branding recognition, commensurate with its status as Official CATEGORY Partner on the ‘Partners’ page of the official ESC Event website and on social networking sites controlled by ESC.
▪ Hyperlink to an agreed page on PROSPECT’s official website from the official ESC Event website.
▪ Connected social media posts to PROSPECT accounts via ESC Twitter, Facebook and Instagram accounts.
HOSPITALITY & EVENT EXPERIENCE
▪ Ten (10) complimentary VIP hospitality passes per official race day of the Event. ▪ Right, subject to availability and commensurate with its status as Official Title Partner of the Event to purchase additional VIP hospitality passes for each official race day of the Event.
PROMOTIONAL RIGHTS
▪ Right to showcase and promote PROSPECT products/services in the ESC Event Zone during the Event.
▪ Right to promote at outside locations (e.g. Retail, POS displays, etc.) during the Event at PROSPECT’s cost.
▪ Access to ESC executive staff, team principals and Riders for appearances at PROSPECT’s cost, to co-promote the Event and drive interest.
▪ Option for co-marketing promotions and activation with other ESC partners during the Event.
ACCREDITATION PASSES
▪ ESC shall provide PROSPECT with a reasonable number of accreditations to allow PROSPECT to carry out its partner program and services during the Event.
Package for Official Event Partner of an ESC Event
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 60 ‘Official Event Partner’; Rights and Benefits
TERRITORY
Domestic Market
EVENT
eSkootr Championship
PRODUCT CATEGORY
To be defined.
DESIGNATIONS
▪ Official Partner of the Event (non-exclusive);
▪ Official CATEGORY Partner of the Event; and
▪ Such other designation(s) as may be agreed.
PRESS RELEASE
The Parties will issue a joint press release announcing PROSPECT as Official CATEGORY Partner of the Event.
USE OF INTELLECTUAL PROPERTY AND BRAND ASSOCIATION
▪ Use of the Event Marks by PROSPECT for promotional purposes as Official CATEGORY Partner of the Event, subject to ESC’s prior written approval. ▪ Use of Official Partner composite logos, each comprising a ESC Event Mark and PROSPECT Mark, by PROSPECT for promotional purposes as Official CATEGORY Partner of the Event.
▪ Use of library video footage and photographs from the Event for promotional purposes by PROSPECT, including for use in advertising and social media by PROSPECT. ▪ PROSPECT brand recognition commensurate with its status as Official CATEGORY Partner of the Event and with any other Official Partners appointed by ESC.
EVENT, VENUE & BROADCAST BRANDING FOR PROSPECT BRAND
▪ PROSPECT shall receive recognition in the form of branding at areas under the control of ESC in the respective venues of the Event, the quantum, sizing, prominence and DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 61 positioning of such branding shall be commensurate with PROSPECT’s status as an Official Partner of the Event, and with any other Official Partners appointed by ESC including:
o Various elements within the race Venue (including podium, media and interview backdrops etc);
o In the Hospitality Area, commensurate with Title Event partner level; o Other branding opportunities as may be agreed between the parties. ▪ Use of ESC Event Marks during and in respect of each Event in "above the line" media by PROSPECT for promotional purposes as Official Title Partner of the Event.
ESC COMMUNICATIONS AND DIGITAL MEDIA
▪ Branding recognition, commensurate with its status as Official CATEGORY Partner of the Event on the ‘Partners’ page of the official ESC Event website and on social networking sites controlled by ESC.
▪ Hyperlink to an agreed page on PROSPECT’s official website from the official ESC Event website.
▪ Connected social media posts to PROSPECT accounts via ESC Event Twitter, Facebook and Instagram accounts.
HOSPITALITY & GUEST EXPERIENCE
▪ Five (5) complimentary VIP hospitality passes per official race day of the Event. ▪ Right, subject to availability and commensurate with its status as Official Partner of the Event to purchase additional VIP hospitality passes for each official race day of the Event.
PROMOTIONAL RIGHTS
▪ Right to showcase and promote PROSPECT products/services in the ESC Event Venue during the Event.
▪ Right to promote at outside locations (e.g. Retail, POS displays, etc.) during the Event - at PROSPECT’s cost.
▪ Access to ESC executive staff, team principals and Riders for appearances at PROSPECT’s cost, to co-promote the Event and drive interest.
▪ Option for cross promotions with other partners during the Event.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 62 ACCREDITATION PASSES
▪ ESC shall provide PROSPECT with a reasonable number of accreditations to allow PROSPECT to carry out its partner program and services during the Event.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175 63 EXHIBIT F – KEY MILESTONES
2023 Event
Key
Milestones
Key Milestone Date
Event
Elements
Parties: within sixty (60) days after the Effective Date.
Event Dates Parties: within sixty (60) days after the Effective Date.
Event
Location
eSC: within sixty (60) days after the Effective Date.
City: approval within (thirty) 30 further days from receipt.
Event
Course
eSC: within ninety (90) days after the Effective Date for the 2023 Event.
City: approval within thirty (30) further days from receipt.
Safety Plan eSC: within three (3) months prior to the Event.
City: no later than two (2) months before the commencement of the Event.
Event Plan Parties: by four (4) months before the start of the Event.
Local Event
Sponsor
Revenues
US$750,000 by sixty (60) days after the Effective Date.
US$750,000 by one hundred twenty (120) days after the Effective Date.
eSC
insurance
By one hundred twenty (120) days after the Effective Date.
City’s
insurance
By one hundred twenty (120) days after the Effective Date. 2024 and 2025 Events
Event Dates eSC: no later than three (3) months after the conclusion of the previous Season’s Event.
City: approval within thirty (30) days of receipt by the City.
Event
Elements
Parties: at least six (6) months before the applicable Event.
Event
Location
eSC: at least six (6) months before the applicable Event.
City: approval within thirty (30) further days from receipt by the City.
Event
Course
eSC: at least five (5) months before the applicable Event dates. approval within thirty (30) further days from receipt.
Safety Plan eSC: within three (3) months prior to the Event.
City: no later than two (2) months before the commencement of the Event.
Event Plan Parties: by four (4) months before the start of the Event.
Local Event
Sponsor
Revenues
US$750,000 by six (6) months prior to the applicable Event dates.
US$750,000 by 4 months prior to the applicable Event dates.
DocuSign Envelope ID: FF56C7A9-72F3-4855-908B-EC1D61D6F175