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HomeMy WebLinkAboutC2022-054 - Athletics Investgment Group LLC dba The Oakland AthleticsEXECUTION VERSION Page 1 of 14 TOWN OF FOUNTAIN HILLS – ATHLETICS INVESTMENT GROUP LLC SPRING TRAINING SPONSORSHIP AGREEMENT This Spring Training Sponsorship Agreement (“Sponsorship Agreement”) is effective as of 10th day of November, 2021 (“Effective Date”) by and between ATHLETICS INVESTMENT GROUP LLC, d.b.a. THE OAKLAND ATHLETICS (“AIG”), and TOWN OF FOUNTAIN HILLS (“SPONSOR”) (individually a “Party,” or collectively the “Parties,” as the case may be). SPONSOR desires to be a sponsor of AIG and its Major League Baseball (“MLB”) team, commonly known as the “Oakland A’s”, and in conjunction therewith, contracts for certain benefits and terms with regard to the “Sponsorship Benefits”, as defined below and provided for in “Exhibit A” (which is incorporated herein by this reference). In consideration of the covenants, warranties, representations, terms and conditions, and other good and valuable consideration contained in this Sponsorship Agreement, the receipt of which is acknowledged, the Parties agree as follows: Article I: Business Terms 1. Term. The “Term” of this Sponsorship Agreement is for the 2022 MLB “Spring Training Season.” For purposes of this Sponsorship Agreement, the term “Spring Training Season” shall include the MLB Spring Training Season (as such term is commonly understood in MLB) and shall specifically exclude the MLB “Regular Season” (as such term is commonly understood in MLB), any other exhibition games, All-Star games or related events and any MLB “Post-Season” (i.e. the Wild Card, League Division Series, League Championship Series and the World Series, as such terms are commonly understood in MLB) in which the Oakland A’s participate. 2. Sponsorship Benefits. AIG hereby grants to SPONSOR the Sponsorship Benefits. Except as may be otherwise provided in Exhibit A, SPONSOR is responsible for (i) supplying all applicable scripts, artwork, signage, electronic media, promotional materials and/or other relevant information to AIG upon any deadline provided by AIG, (ii) all costs associated with the scripts, artwork, signage (i.e. placement, maintenance, alteration and/or removal), electronic media, promotional materials and/or other relevant information, including costs associated with any changes required by MLB and (iii) receiving AIG’s advance written approval of the scripts, artwork, signage, electronic media, promotional materials and/or other relevant information. 3. Non-Exclusive Sponsorship. The Parties acknowledge and agree that the Sponsorship Benefits granted to SPONSOR herein shall be considered “non-exclusive.” AIG may solicit and enter into any other agreements with third parties, including without limitation third parties that may desire to sponsor the Oakland A’s and its Spring Training Season games (“Home Game(s)” and/or “Away Game(s)”, collectively “Game(s)”). SPONSOR acknowledges that unless specifically stated otherwise, this Sponsorship Agreement does not provide Sponsorship Benefits for event(s) other than Home Games at Hohokam Stadium in Mesa, Arizona (the “Stadium”). SPONSOR acknowledges that AIG does not control sponsorship arrangements for MLB and therefore AIG does not guarantee and/or otherwise warrant to SPONSOR any prohibition, restriction and/or protection against the placement and/or exclusivity of competing sponsors and their respective products at the Stadium during any Home Games, exhibition games or related events and any other similar events and games during the Term. Moreover, the rights described herein shall not preclude MLB sponsors from exercising their contractual rights. SPONSOR acknowledges the undertaking of any advertisement at the Stadium is subject to the terms of the Facilities Use Agreement between AIG and the City of Mesa Arizona dated April 5, 2013, as amended from time to time (the “Mesa Agreement”). 4. Sponsorship Fee. In consideration of the Sponsorship Benefits, and the other terms and conditions of this Sponsorship Agreement, SPONSOR agrees to pay AIG the following “Sponsorship Fee”: Sponsorship Fee Payable As Follows: 2022 = $5,000. net cash Due and payable by SPONSOR to AIG in full upon receipt of invoice. 5. Insurance. AIG and SPONSOR shall procure and maintain in full force and effect during the Term, at each Party’s sole expense, insurance of the following types of coverage and limits of liability: EXECUTION VERSION Page 2 of 14 A. General Comprehensive Public Liability Insurance. A general comprehensive liability insurance policy with a limit of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate. B. Workers’ Compensation Insurance. Workers’ Compensation Insurance as required by applicable state law, including, but not limited to, Arizona statutory Disability Benefits Liability and Employer’s Liability Insurance in an amount of not less than Five Hundred Thousand Dollars ($500,000.00). C. Automobile Liability Insurance. If the use of a motor vehicle is required for performance of any obligations under this Sponsorship Agreement, Automobile Liability Insurance that covers Bodily Injury and Property Damage Coverage, and including Owned, Non-Owned, Leased, and Hired Auto Liability and associated defense costs. D. Insurance Primary. All coverage must be: (i) primary and non-contributory; (ii) written on an occurrence basis (unless otherwise stated); and (iii) maintained without interruption from the date of this Sponsorship Agreement through thirty (30) days after the Term of the Sponsorship Agreement or any extension thereof. E. Insurance Expiration. The insurance policies and coverages required by this Sponsorship Agreement must not expire for at least one (1) year from t he date of issuance and the insurance coverages afforded under the policies will not be canceled during the Term unless the other Party has received at least thirty (30) days prior written notice. SPONSOR shall name AIG, the City of Mesa, Arizona, and the officials, officers, owners, parent, directors, agents, service contractors, concessionaires and employees of each as additional insureds. Upon written request from AIG, SPONSOR shall supply AIG with certificates and endorsements verifying the herein described insurance coverage. F. Privacy, Data Breach and Network Security Liability Insurance. Professional liability insurance, including Privacy, Data Breach and Network Security Liability coverage, in excess of the policies required above, with a limit of not less than Ten Million Dollars ($10,000,000.00) per occurrence and in the aggregate. Article II: General Terms and Conditions 1. Subordination. A. Notwithstanding any other provision herein, this Sponsorship Agreement and any rights or exclusivities granted by AIG hereunder shall in all respects be subordinate to each of the following, as may be amended from time to time (collectively, “MLB Documents”): (i) any present or future agreements entered into by, or on behalf of, any of the MLB entities or affiliates, or the member clubs acting collectively, including, without limitation, agreements entered into pursuant to the Major League Constitution, the Basic Agreement between the MLB clubs and the MLB Players Association, the Professional Baseball Agreement, the Major League Rules, the Interactive Media Rights Agreement, and each agency agreement and operating guideline among the MLB clubs and an MLB entity, or (ii) the present and future mandates, rules, regulations, policies, bulletins or directives issued or adopted by the Commissioner, MLB or the MLB entities. The issuance, entering into, amendment, or implementation of any of the MLB Documents shall be at no cost or liability to any MLB entity or affiliate or to any individual or entity related thereto. The territory within which SPONSOR is granted rights is limited to, and nothing herein shall be construed as conferring on SPONSOR rights in areas outside of, the Spring Training Territory of the Oakland A’s, as established and amended from time to time. No rights, exclusivities or obligations involving the Internet or any interactive or on-line media (as defined by the MLB entities) are conferred by this Sponsorship Agreement, except as are specifically approved in writing by the applicable MLB entity. 2. Intellectual Property. A. SPONSOR’s Use of MLB Marks. SPONSOR specifically acknowledges that it acquires no right to use any MLB name, logo, emblem or insignia (collectively, the “MLB Marks”) by way of this Sponsorship Agreement. B. SPONSOR’s Use of Team Marks. (i) SPONSOR hereby acknowledges the proprietary nature of all names, word marks, logos, uniform designs, mascots, images, colors and color combinations, trade dress, characters, symbols, designs, EXECUTION VERSION Page 3 of 14 likenesses and/or visual representations owned, controlled, first used and/or applied for or registered with the United States Patent and Trademark Office by AIG (such marks are collectively referred to herein as “Team Marks”). SPONSOR further acknowledges that all rights, title, and interest to the Team Marks belong to AIG. SPONSOR agrees that during the Term of this Sponsorship Agreement and after the expiration or termination of this Sponsorship Agreement it shall refrain from any use of any of the Team Marks, any mark that is confusingly similar to any of the Team Marks, any mark that is dilutive of any of the Team Marks and/or any mark that is likely to mislead the public into falsely believing that there is an affiliation or relationship between SPONSOR and AIG without first obtaining AIG’s prior written consent. SPONSOR further acknowledges that for purposes of this Article II, Paragraph 2(B)(i) “use” includes, but is not limited to, trademark, fair, incidental, descriptive or functional uses. (ii) SPONSOR acknowledges the proprietary nature of all copyright rights that are owned, controlled or licensed by AIG including, without limitation, all accounts, descriptions, radio broadcasts, television broadcasts and streamed versions of all Games and events involving AIG (and excerpts thereof). SPONSOR hereby covenants that it will not use any of the foregoing without the prior written consent of AIG. (iii) SPONSOR represents and warrants that it will not conduct any promotions, ticket giveaways, contests or sweepstakes relating to or associated with AIG without first obtaining the prior written consent of AIG. (iv) During the Term, SPONSOR may use the Team Marks in the manner and for the purposes permitted by Exhibit A, provided, that each use shall otherwise be subject to this main Sponsorship Agreement. C. AIG’s Use of SPONSOR Marks. SPONSOR grants to AIG the non-exclusive right to use SPONSOR’s names, brand names, trademarks, service marks, logos, emblems or insignia and other identification (“Sponsor Marks”) in connection with the promotion of events at the Stadium and SPONSOR’s sponsorship of the Oakland A’s. D. SPONSOR’s Use of Stadium Name/Premises. Nothing in this Sponsorship Agreement shall license or grant to and/or otherwise authorize SPONSOR to uti lize the name of the Stadium (i.e., “Hohokam Stadium”) or any related Oakland A’s facilities (i.e., “Fitch Park”) for promotional and/or advertising purposes (except for the sole purpose of location identification). Furthermore, nothing in this Sponsorship Agreement shall license or grant to and/or otherwise authorize SPONSOR to advertise on the exterior of the Stadium or on or about the Stadium complex’s parking lot and/or premises. 3. Force Majeure and Changes to Benefits. A. Force Majeure. For purposes of this Sponsorship Agreement, a “Force Majeure” shall mean and include (i) the relocation of the Oakland A’s from the City of Mesa, Arizona or (ii) any event or cause beyond a Party’s reasonable control (including without limitation, fire, flood, explosions, damage by third parties whether negligently or intentionally caused, strikes, work stoppages, picketing, lockouts and/or any other concerted action by any employees or any labor organization, acts of God or other casualties, terrorism, domestic terrorism and mass shootings, the laws or actions of any governmental authority, any MLB rule or directive, any directive from the Commissioner , failure of digital signage and/or any other equipment, or any other event or cause that is beyond the reasonable control of the Party affected by the Force Majeure), as a result of which at any time, and from time to time during the Term (1) any Home Game is not played at the Stadium; or (2) SPONSOR does not receive the advertising and promotional benefits for which it has contracted under this Sponsorship Agreement. In the event either Party is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Sponsorship Agreement, then the Party affected by Force Majeure shall immediately give written notice with explanation to the other Party. Following such notice, the affected obligations of the Party giving notice shall be suspended only during the continuance of the conditions giving rise to the Force Majeure provided that the Parties are acting with due diligence to remedy the conditions giving rise to the Force Majeure. B. Options in Event of Force Majeure. If a Force Majeure occurs during the Term and it affects four (4) or more scheduled Home Games, AIG shall provide one of the following remedies to SPONSOR, which shall be mutually agreed upon: (i) extend the Term of this Sponsorship Agreement beyond its expiration to make up for lost exposure by SPONSOR; (ii) terminate this Sponsorship Agreement, and either return or credit to EXECUTION VERSION Page 4 of 14 SPONSOR a pro rata portion of any advance payment of the Sponsorship Fee equal to SPONSOR’s lost advertising and promotional rights, as reasonably determined by the Parties (if a credit is provided, such credit shall be applied to a subsequent sponsorship agreement between the Parties); or (iii) provide to SPONSOR during such contract year advertising and/or promotional rights of substantially equivalent value, as reasonably determined by the Parties. Should the Parties be unable to agree on one of the preceding options, SPONSOR shall receive the remedy specified in this Article II, paragraph 3(B)(iii). C. Limitation of Remedy. SPONSOR acknowledges and agrees that AIG makes no representation or warranty as to the number of Games that the Oakland A’s will play in any Spring Training Season or the number of Games played the Stadium at regular audience capacity. In no event will AIG be liable and/or otherwise obligated to SPONSOR and/or any third party for any special, consequential or other damages in any way related to any canceled Games or Games played with no or limited numbers of fans. Moreover, except as related to cancellation of Games due to Covid-19, there shall be no obligation/liability under this Article II, Paragraph 3 for AIG to SPONSOR with respect to any Games that are considered shortened but completed or suspended/cancelled under MLB rules. D. Options in Event of Games Without Fans. The Parties acknowledge and agree that due to MLB directives and/or government mandates resulting from the ongoing Covid -19 pandemic, fan attendance at Games may be prohibited. In the event that fans are not permitted to attend Games at the Stadium during the Spring Training Season, SPONSOR may terminate this Sponsorship Agreement and receive a pro-rata credit of the Sponsorship Fee based on the number of scheduled Home Games during the Spring Training Season. Such credit will be applied to a subsequent sponsorship agreement between the Parties. 4. Indemnification. A. Indemnification by SPONSOR. SPONSOR indemnifies and agrees to defend and hold harmless the Oakland A’s, AIG and its affiliates (and their respective agents, servants, employees, officers, directors and other officials) from any loss, liability, damage, cost or expense (including reasonable attorneys’ fees), arising out of any claim, suit, arbitration, governmental inquiry or other proceeding against any of them by reason of or relating to (i) the manufacture, distribution, advertising, promotion, offering for sale and sale of SPONSOR’s products or services otherwise permitted by the terms hereof or any other article or good, (ii) SPONSOR’s exercise of any of the Sponsorship Benefits or other promotion permitted hereunder, (iii) any negligent or willful act or omission or violation of any contractual arrangement of SPONSOR or its affiliates, or the officers, directors, partners, agents or employees of each, in connection with its or their performance relating to this Sponsorship Agreement, (iv) any breach or failure to perform by SPONSOR of any terms or covenants contained in this Sponsorship Agreement, including without limitation any claims alleging any unauthorized or infringing use by S PONSOR of any patent, process, trade secret, copyright, trademark, Team Marks or publicity right or other similar property, or (v) any alleged defects (design, manufacturing, handling or other use) or inherent dangers in SPONSOR’s products, services or any other article or good or the use thereof. B. Indemnification by AIG. AIG shall defend, indemnify and hold harmless SPONSOR, its affiliates and the officers, directors, partners, agents and employees of each, from and against any claim arising out of or based on: (1) AIG’s breach or default under this Sponsorship Agreement; or (2) any negligent or willful act or omission or violation of any contractual arrangement of AIG or its affiliates, or the officers, directors, partners, agents or employees of each, in connection with its or their performance relating to this Sponsorship Agreement. C. Conditions on Indemnification. The Party to whom indemnification is owed (the “Indemnified Party”) shall give written notice to the Party required to provide indemnification under this Sponsorship Agreement (the “Indemnifying Party”) of any action or proceeding for which indemnification is sought and the Indemnifying Party (at its expense) shall assume the defense of any claim (with counsel reasonably satisfactory to the Indemnified Party and with the Indemnified Party having the right , at its expense, to join in any such action or proceeding). The Indemnifying Party shall not consent to a settlement or entry of any judgment, award or order that (1) could affect the intellectual property rights or other business interests of the Indemnified Party or (2) does not include an unconditional release (including release under California Civil Code Section 1542 or other analogous law) from all liability with respect to such claim or litigation. The foregoing indemnification obligations and the provisions of Article II, Paragraphs 4(A) and 4(B) shall not apply to the extent any claim arises as a result of any breach by the Indemnified Party of any representation or warranty in the performance of its obligations under this Sponsorship Agreement. EXECUTION VERSION Page 5 of 14 D. Survivability. The provisions of this Article II, Paragraph 4 shall survive the expiration or termination of this Sponsorship Agreement. 5. Authority. Each of the Parties hereto represents that: (i) the execution, delivery and performance of this Sponsorship Agreement has been duly and validly authorized by all necessary corporate or partnership action, as applicable; (ii) this Sponsorship Agreement constitutes the legally valid and binding obligation of each Party; and (iii) the execution, delivery and performance of this Sponsorship Agreement will not violate or constitute a breach or default under any other agreement by which the Parties are bound. Each of the Parties acknowledges and agrees that, except as expressly set forth herein, neither Party has made, and neither Party is relying on, any representation or warranty, express or implied, with respect to the subject matter hereof. The representations and warranties contained herein shall survive the execution, delivery, expiration or termination of this Sponsorship Agreement. 6. No Legal Partnership. The Parties expressly understand and agree they are independent contractors unrelated to each other or each others’ subsidiaries or affiliates. Nothing in this Sponsorship Agreement is intended to create a relationship, express or implied, of employer-employee or principal-agent or master-servant, between the Parties. AIG does not have the authority to bind or act in any respect on behalf of SPONSOR, and SPONSOR does not have authority to bind or act in any respect on behalf of MLB, the Oakland A’s, AIG or any of its affiliates. 7. Transferability; Successors. AIG may unilaterally assign its rights and/or obligations under this Sponsorship Agreement to any purchaser of AIG or successor in interest to AIG or its assets. No other assignment will be valid without the prior written consent of both Parties. All of the Parties’ respective duties and obligations under this Sponsorship Agreement shall be binding upon and inure to the benefit of the heirs, devisees, successors in interest and permitted assignees of each of the Parties hereunder. 8. Termination Rights. A. Termination by AIG. Without prejudice to any other right or remedy available to AIG at law or in equity and in addition to AIG’s rights under Paragraph 8(C) below, AIG may terminate this Sponsorship Agreement by written notice if: (1) SPONSOR conducts any promotion or uses any marketing, advertising, fan giveaway items, advertising copy or other promotional material containing any trademarks of the Oakland A’s or AIG or its affiliates in a manner not expressly approved by AIG in writing in advance; (2) SPONSOR fails to perform any of its obligations under this Sponsorship Agreement and such failure shall continue uncured for a period of five (5) days after written notice thereof from AIG (or, if such cure cannot reasonably be accomplished within such 5 -day period, SPONSOR shall not in good faith have commenced such cure within such 5 -day period and shall not thereafter proceed diligently to completion); (3) SPONSOR’s corporate or trade name or principal line of trade or business shall no longer be the same as upon execution of this Sponsorship Agreement; and/or (4) AIG determines that, as the result of any occurrence or change of circumstances involving SPONSOR, the continued association with SPONSOR as provided for hereunder would have an adverse impact on the name, image, reputation, goodwill or proprietary rights of MLB, the Oakland A’s, AIG or its affiliates. If AIG terminates this Sponsorship Agreement pursuant to this Paragraph 8(A) or Paragraph 8(C) below, then AIG shall, without prejudice to any other right or remedy available to it, be entitled to retain any and all sums paid by SPONSOR hereunder. B. Termination by SPONSOR. Without prejudice to any other right or remedy available to SPONSOR at law or in equity and in addition to SPONSOR’s rights under Paragraph 8(C) below, SPONSOR may terminate this Sponsorship Agreement by written notice if AIG fails to perform any material agreement, term, covenant or condition to be performed by AIG pursuant to this Sponsorship Agreement (which is not excused by Force Majeure) and such material failure shall continue uncured for a period of five (5) days after written notice thereof from SPONSOR (or, if such cure cannot reasonably be accomplished within such 5-day period, AIG shall not in good faith have commenced such cure within such 5-day period and shall not thereafter proceed diligently to completion). If SPONSOR terminates this Sponsorship Agreement pursuant to this Paragraph 8(B) or Paragraph 8(C) below, then SPONSOR shall, without prejudice to any other right or remedy available to it, be entitled to a reimbursement from AIG of the unearned portion of any payment under this Sponsorship Agreement paid by SPONSOR to AIG for the year in which such termination occurs (pro -rated as of the effective date of termination). C. Other Termination Grounds. Without prejudice to any other right or remedy available to either Party at law or in equity and in addition to the provisions of Paragraphs 8(A) and 8(B) above, this Sponsorship EXECUTION VERSION Page 6 of 14 Agreement may be terminated by either of the Parties if the other Party, or any parent of such other Party, fails to maintain required insurance as specifically provided in Article I, Paragraph 5, becomes insolvent, admits its inability to pay its debts as such debts become due, seeks protections from creditors, makes a general assignment for the benefit of creditors, files for reorganization or if a receiver is appointed for its business. D. Termination Due to Covid-19. If as a result of an MLB directive and/or government mandate in response to the Covid-19 pandemic, the Spring Training Season is cancelled in whole or in part, SPONSOR may terminate this Agreement in whole or in part. In the event of such termination, AIG shall provide one of the following remedies to SPONSOR, which shall be mutually agreed upon: (i) provide to SPONSOR during such contract year advertising and/or promotional rights of substantially equivalent value, as reasonably determined by the Parties; or (ii) terminate this Sponsorship Agreement and provide a pro-rata refund or credit to SPONSOR of the Sponsorship Fee based on the number of scheduled Home Games during the Spring Training Season. If a credit is provided, such credit will be applied to a subsequent sponsorship agreement between the Parties. 9. Construction; Severability. This Sponsorship Agreement has been fully reviewed and negotiated by the Parties and their respective legal counsel. Accordingly, in interpreting this Sponsorship Agreement, no weight shall be placed upon which Party (or Party’s counsel) drafted the provision being interpreted. If any term or provision of this Sponsorship Agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this Sponsorship Agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, and the remainder of this Sponsorship Agreement shall be given effect as if the Parties had not included the severed term herein. 10. Late Payments and Collections Matters. SPONSOR agrees that AIG may impose a charge of up to 1.5% per month (18.00% per annum) on any undisputed invoiced amount that SPONSOR fails to pay within thirty (30) days of its due date. Where a legal action is commenced to collect any amounts due under this Spo nsorship Agreement, the Party that prevails in such legal action shall have its reasonable attorneys’ fees and costs promptly reimbursed by the other Party upon conclusion of the action. 11. Counterparts. This Sponsorship Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one (1) and the same instrument. This Sponsorship Agreement may be executed via an electronic medium and such signature shall constitute an original signature for all purposes. 12. Notices. All notices or other communications required or permitted to be given pursuant to this Sponsorship Agreement shall be in writing and shall be considered as properly given or made if delivered personally or by messenger or mailed from within the United States by first class United States mail, postage prepaid, overnight carrier, email, or sent by facsimile transmission and sent to the intended recipient at the following addresses or numbers: If to AIG: D’Lonra Ellis If to SPONSOR: Grady E. Miller General Counsel Town Manager Oakland Athletics Town of Fountain Hills 7000 Coliseum Way 16705 E. Avenue of the Fountains Oakland, CA 94621 Fountain Hills, AZ 85268 Fax: 510-430-9757 Ph: 480-816-5107 Legal-Notices@athletics.com Email: gmiller@fh.az.gov With a copy to: Joe Castor President SportsCastor Marketing, Inc. 362 E. Briarwood Terrace Phoenix, AZ 85048 Email: joe@sportscastor.com 13. Non-Waiver of Rights. Neither the failure to insist upon strict performance of any of the agreements, terms, covenants or conditions hereof, nor the acceptance of monies due hereunder with knowledge of a breach of this Sponsorship Agreement, shall be deemed a waiver of any rights or remedies that either Party hereto may have or a waiver of any subsequent breach or default in any of such agreements, terms, covenants or conditions. No EXECUTION VERSION Page 7 of 14 delay of or omission in the exercise of any right, power or remedy accruing to any Party under this Sponsorship Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of any future exercise of any right, power or remedy. 14. Governing Law; Venue. This Sponsorship Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflict of laws principles thereof. Alameda County, California shall be the venue of any legal action arising out of any dispute between the Parties. 15. Compliance with Laws. SPONSOR will ensure that its activities pursuant to the Sponsorship Agreement, including, without limitation, any promotion, charitable activity, giveaway, contest and/or sweepstakes (collectively “Promotions”) shall in all cases be in compliance with (A) all applicable federal, state and local laws and regulations (including but not limited to (i) California Business and Professions Code 17539.1-.3 and (ii) the General Data Protection Regulation or any similar data privacy regime (i.e. the California Consumer Privacy Act)) and not require the purchase of any product to qualify to enter such Promotions; (B) the provisions of Article II, Paragraph 1 of this Sponsorship Agreement; and (C) Exhibit B attached hereto . 16. Agreement; Integration. This Sponsorship Agreement, which includes its Exhibit(s), constitutes the entire agreement between SPONSOR and AIG and supersedes all prior agreements and understandings relating to the subject matter hereof. The terms and conditions set forth in Exhibit B shall supersede and/or control any and all terms and conditions set forth in the main body of this Sponsorship Agreement and any other Exhibit(s) (excluding Exhibit B) in the event of a conflict, otherwise, the terms and condition set forth in the main body of this Sponsorship Agreement shall supersede and/or control any and all terms and conditions set forth in any and all Exhibit(s) (excluding Exhibit B) in the event of a conflict. This Sponsorship Agreement may be amended and/or supplemented only by a writing signed by SPONSOR and AIG. Any amendments or supplements will at all times be subservient to and controlled by this Sponsorship Agreement. IN WITNESS WHEREOF, the undersigned have caused this Sponsorship Agreement to be duly entered into as of the date above written. ATHLETICS INVESTMENT GROUP LLC TOWN OF FOUNTAIN HILLS By: By: Name: Name: Title: Title: Approved as to Form: By: ________________________________ Name: Aaron D. Arnson Title: Town Attorney Elizabeth Klein (Dec 14, 2021 07:49 MST) EXECUTION VERSION Page 8 of 14 EXHIBIT A SPONSOR shall receive the following Sponsorship Benefits during the 2022 Spring Training Season (unless specified, timing, content, suite and ticket locations, and other details of all Sponsorship Benefits will be determined in AIG’s sole discretion): 1) Public Address (“PA”) Announcement Advertisement. SPONSOR will receive one (1) PA announcement each Home Game. All associated PA content will be approved by AIG in its sole discretion. 2) Scoreboard Advertisements. SPONSOR will receive one (1) between inning scoreboard graphic and one (1) half-inning exclusive scoreboard advertisement for each home game. All associated content appearing on the videoboard will be approved by AIG in its sole discretion. SPONSOR shall pay to AIG a Sponsorship Fee of five thousand dollars ($5,000.00) net cash which shall be due in full upon receipt of invoice. Terms and Conditions I. This Agreement is subject and subservient at all times to (i) the rules, regulations, bulletins and directives of Major League Baseball and (ii) the Mesa Agreement, any of which may require, but not be limited to: (a) the revising, rescheduling or canceling of any promotion, give-away or community relations program described in this Sponsorship Agreement and/or (b) the reschedulin g or canceling of any Games described in this Sponsorship Agreement. II. Unless otherwise specifically described in this Sponsorship Agreement: (a) all costs associated with all elements of the Sponsorship Benefits shall be borne by SPONSOR; (b) all elements of the Sponsorship Benefits (including, but not limited to, the logos, announcements, content, signage, giveaways, artwork, scoreboard messages, appearance, distribution, location, display and size) are subject to AIG’s prior written approval; (c) all dates, times, and airings related to all elements of the Sponsorship Benefits are subject to AIG’s prior written approval and are to be determined at AIG’s sole discretion; (d) all ticket and suite locations and dates are subject to availability and are determined by AIG at its sole discretion; (e) In the event AIG either (i) cannot provide any Spring Training single game tickets, or (ii) can provide some but not all Spring Training single game tickets comprising Sponsorship Benefits as determined in AIG’s sole discretion, due to MLB directives and/or government mandates relating to the Covid- 19 pandemic, AIG shall provide an appropriate refund or credit of the Sponsorship Fee as mutually determined by the Parties; (f) SPONSOR will not have the right to use the Oakland A’s/Oakland Athletics name and logo without AIG’s prior written consent. Capitalized terms used in this Exhibit A, but not defined in this Exhibit A, have the meanings as defined in the Sponsorship Agreement. In the event of a conflict, the terms and conditions of the Sponsorship Agreement shall supersede and/or control any and all terms and conditions set forth in this Exhibit A or any other Exhibit(s). EXECUTION VERSION Page 9 of 14 EXHIBIT B Information Security: 1. Definitions. In addition to any defined terms set forth in the Sponsorship Agreement, with respect to this Exhibit B, the following additional defined terms shall apply: “Applicable Law” means any applicable federal, state or foreign law, rule, regulation, ordinance, directive, decision of, or agreement with or by, any legislative, administrative, judicial, or other governmental authority, including, without limitation, those relating to privacy, data protection, marketing, or data security. “Authorized Persons” means (i) SPONSOR’s employees who have a need to know or otherwise access AIG Data to enable SPONSOR to perform its obligations under this Sponsorship Agreement; and (ii) SPONSOR’s contractors, agents and auditors who have a need to know or otherwise access AIG Data to enable SPONSOR to perform its obligations under this Sponsorship Agreement, and who, in each case, are bound in writing by obligations no less restrictive than those set forth in this Sponsorship Agreement. “AIG Data” means information, in any form, format, or media, accessed or otherwise Processed by SPONSOR or any Authorized Person in connection with the performance of SPONSOR’s obligations under this Sponsorship Agreement, including, without limitation, all Personal Information and all other confidential information under this Sponsorship Agreement that is Processed in connection with this Sponsorship Agreement, for clarity, whether such information is that of AIG or any affiliate of AIG. “Personal Information” means information, in any form, format or media, accessed or otherwise Processed by SPONSOR or any Authorized Person in connection with the performance of SPONSOR’s obligations under this Sponsorship Agreement that relates to an identified or identifiable individual, including, without limitation, any of the following: names; signatures; dates of birth; addresses; telephone numbers; fax numbers; e -mail addresses or other online identifiers (including, without limitation, IP addresses, cookie information and other browser or device data); employee identification numbers, Social Security numbers, passport numbers, taxpayer identification numbers, driver’s license numbers or other government -issued identification numbers; passwords, personal identification numbers, access codes, or answers to security questions or other information that would permit access to an online or other account; credit or debit card numbers or any other financial account numbers, with or without any required security code; credit report information; and biometric data, health insurance information or any other health data. “Processing” (including its cognate, “process”) means any operation or set of operations that is performed upon data, whether or not by automatic means, including, without limitation, collection, recording, organization, storage, access, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, making available, alignment, combination, blocking, deleting, erasure or destruction. “Security Breach” means: (i) any actual or suspected compromise either of the security, confidentiality or integrity of AIG Data or the physical, technical, administrative or organizational safeguards put in place by SPONSOR (or any Authorized Persons) that relate to the protection of the security, confidentiality or integrity of AIG Data, including, without limitation, any unauthorized access to, acquisition of or other Processing of AIG Data or the keys, passwords or passcodes needed to access AIG Data; or (ii) receipt of a complaint in relation to the privacy practices of SPONSOR (or any Authorized Persons) or a breach or alleged breach of this Sponsorship Agreement relating to such privacy practices. “Services” means those services that SPONSOR performs pursuant to this Sponsorship Agreement. 2. Standard of Care (a) SPONSOR acknowledges and agrees that, in the course of its engagement by AIG, SPONSOR may receive or have access to AIG Data. SPONSOR shall comply with the terms and conditions set forth in this Sponsorship Agreement and all Applicable Law in its collection, receipt, transmission, storage, disposal, use, disclosure and other Processing of such AIG Data and be responsible for the unauthorized collection, receipt, transmission, access, storage, EXECUTION VERSION Page 10 of 14 disposal, use, disclosure and other Processing of AIG Data under its control or in its possession or under the control of or in the possession of any Authorized Persons. SPONSOR shall put in place reasonable measures to ensure the reliability of any Authorized Persons with access to AIG Data, and SPONSOR shall be responsible for, and remain liable to, AIG for the actions and omissions of all Authorized Persons as if they were SPONSOR’s own actions and omissions. (b) As between the parties, AIG and/or any of AIG’s applicable affiliate(s) is the sole owner of all AIG Data. For clarity, Personal Information is deemed to be confidential information of AIG and is not confidential information of SPONSOR. In the event of a conflict or inconsistency between this Section and Sections 12 and 16 of the Sponsorship Agreement, the terms and conditions set forth in this Section shall govern and control. (c) In recognition of the foregoing, SPONSOR agrees and covenants that it shall: (i) keep and maintain all AIG Data in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, disclosure or other Processing; (ii) use, disclose and otherwise Process AIG Data solely and exclusively for the purposes of providing Services to AIG, and not use, sell, rent, transfer, distribute, disclose, make available or otherwise Process AIG Data for SPONSOR’s own purposes or for the benefit of anyone other than AIG or AIG’s affiliates, in each case, without AIG’s prior written consent; and (iii) not, directly or indirectly, disclose AIG Data to any person other than its Authorized Persons without express written consent of AIG. (d) With respect to any AIG Data that SPONSOR or any Authorized Person collects on behalf of AIG, SPONSOR represents, warrants and covenants that it has and will provide appropriate notice, obtain all necessary consents, authorizations and approvals and otherwise comply with Applicable Law with respect to the Processing of such AIG Data. Without limitation, SPONSOR will obtain AIG’s prior approval of the form and mechanism of such notice and consent regarding the Processing of such AIG Data, and SPONSOR agrees to make any changes to such notice and consent as directed by AIG from time-to-time and to implement auditable records of the delivery of required notices and consents. (e) Reserved. (f) With respect to any Personal Information, SPONSOR agrees that: (i) (x) where such concept is recognized under Applicable Law, AIG or an AIG affiliate is the “Controller” of all Personal Information. AIG, on behalf of itself or the applicable AIG affiliate, will direct SPONSOR in connection with the Processing of Personal Information, (y) AIG reserves the right to submit further written instructions with regard to the processing of Personal Information from time to time after execution of this Sponsorship Agreement and for the duration of the term of the Sponsorship Agreement and (z) SPONSOR shall immediately inform AIG if it is of the opinion that an instruction of AIG regarding Processing Personal Information violates Applicable Law. (ii) (x) SPONSOR shall not transfer Personal Information from any jurisdiction to any other jurisdiction (the European Economic Area constituting a single jurisdiction for this purpose), without the prior written consent of AIG and, if applicable, without putting in place an appropriate transfer agreement or other mechanism appropriate to comply with Applicable Law and (y) if requested by AIG in order to enable it to comply with any Applicable Law, SPONSOR shall enter into any supplemental terms in order to enable AIG to comply with Applicable Law, including by executing a version of a model contract deemed by the European Commission or applicable regulator to offer adequate data protection safeguards in relation to the transfer of Personal Information as AIG deems reasonably necessary to comply with Applicable Law. EXECUTION VERSION Page 11 of 14 (iii) (x) SPONSOR shall provide all assistance necessary for AIG to meet its obligations under Applicable Law, including, without limitation, in respect of individuals’ rights relating to Personal Information, su ch as, where applicable, those set out in Chapter III of the General Data Protection Regulation (“GDPR”) or any similar data privacy regime (i.e. the California Consumer Privacy Act), (y) without limiting SPONSOR’s obligations under this Section 2(f)(iii), and to the extent required by Applicable Law, SPONSOR shall grant access to, provide a copy of, cease or restrict Processing, update, revise, correct or delete Personal Information as directed by AIG or, upon AIG’s prior approval, by an individual to whom the Personal Information relates and (z) SPONSOR agrees to assist AIG in any way reasonably necessary to cooperate with and meet its obligations to the appropriate regulatory authorities and/or under Applicable Law. (iv) SPONSOR shall notify AIG and Major League Baseball information security in writing within five (5) calendar days of receipt of any inquiry, notice or complaint from any individual relating to SPONSOR’s or an Authorized Person’s Processing of Personal Information and shall further provide all reasonable assistance to AIG in responding to all such communications. 3. Information Security (a) SPONSOR represents, warrants and covenants that its collection, access, use, storage, disposal, disclosure and other Processing of AIG Data does and will continue to comply with all Applicable Law. (b) Without limiting SPONSOR’s obligations under Section 3(a), SPONSOR represents, warrants and covenants that it has implemented and shall continue to maintain a written information security program that includes effective administrative, physical and technical safeguards designed to protect AIG Data and SPONSOR’s facilities, systems, networks and assets against external and internal threats and ensure the reliability and integrity of such AIG Data and facilities, systems, networks and assets. Such safeguards are and shall remain no less rigorous than accepted industry practices (e.g., the National Institute of Standards and Technology’s (NIST) the Cybersecurity Framework 1.1 standard or the International Organization for Standardization’s standards ISO/IEC 27001:2013 – Information Security Management Systems – Requirements and ISO-IEC 27002:2013 – Code of Practice for International Security Management, or the NIST standards: the Cybersecurity Framework, Special Publication 800-171 and Special Publication 800-53 and/or any successor standards thereto) and other applicable industry standards for information security. SPONSOR shall ensure that all such safeguards, including, without limitation, the manner in which AIG Data is collected, accessed, used, stored, disposed of, disclosed and otherwise Processed, comply with Applicable Law and the terms and conditions of this Sponsorship Agreement. (c) SPONSOR represents, warrants and covenants that the information provided by SPONSOR in relation to its cybersecurity program is, and, except as approved in writing by AIG, will remain, true, accurate and complete as of the Effective Date of this Sponsorship Agreement. (d) If, in the course of its engagement by AIG, SPONSOR has access to or will collect, access, use, store, dispose of, disclose or otherwise Process credit, debit or other payment cardholder information, SPONSOR shall at all times be and remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including, without limitation, remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at SPONSOR’s sole cost and expense. (e) At a minimum, SPONSOR’s safeguards for the protection of AIG Data shall include: (i) limiting access to AIG Data to Authorized Persons; (ii) securing business facilities, data centers, paper and electronic files, servers, back- up systems and computing equipment, including, without limitation, all mobile devices and other equipment with information storage capability; (iii) implementing network, device application, database and platform security, including, without limitation, regular automated penetration testing and vulnerability scanning designed to assess the effectiveness of such security; (iv) securing systems acquisition, development and maintenance, including, without limitation, supplier relationships; (v) securing information transmission, storage and disposal; (vi) implementing authentication and access controls within media, applications, operating systems and equipment based on the principle of least privilege; (vii) encrypting AIG Data both in transit and at rest; (viii) strictly segregating AIG Data from information of SPONSOR and its other customers so that AIG Data is not commingled with any other types of information; (ix) implementing appropriate personnel security and integrity procedures and practices, including, EXECUTION VERSION Page 12 of 14 without limitation, conducting background checks consistent with Applicable Law; (x) establish ing and maintaining an incident response, planning and management program; (xi) establishing and maintaining procedures for business continuity management and disaster recovery; (xii) providing appropriate data privacy, cybersecurity and information security training to Authorized Persons; and (xiii) designating defined organizational roles relating to information security and incident response. (f) During the term of each Authorized Person’s work for SPONSOR, SPONSOR shall at all times cause such Authorized Persons to abide strictly by SPONSOR’s obligations under this Sponsorship Agreement. SPONSOR further agrees that it shall maintain a process to address any unauthorized access, use, disclosure or other Processing of AIG Data by any of SPONSOR’s officers, partners, principals, employees, agents or contractors. Upon AIG’s written request, SPONSOR shall promptly identify for AIG in writing all Authorized Persons as of the date of such request. (g) Upon reasonable request, SPONSOR shall promptly respond to AIG’s written requests for information about SPONSOR’s information technology network infrastructure and all equipment used in relation to fulfilling of its obligations under this Sponsorship Agreement. 4. Security Breach Procedures (a) SPONSOR shall: (i) provide AIG with the name and contact information for an employee of SPONSOR who shall serve as AIG’s primary information security contact and shall be available to assist AIG twenty-four (24) hours per day, seven (7) days per week as a contact in resolving obligations associated with a Security Breach; (ii) notify AIG of a Security Breach as soon as practicable, but no later than twenty-four (24) hours after SPONSOR becomes aware of it; and (iii) notify AIG and Major League Baseball information security of any Security Breaches by telephone at the following number(s): (510) 563-2243 for the AIG and (212) 931-7777 for Major League Baseball and by e-mailing AIG with a read receipt at Legal-Notices@athletics.com and with a copy by e-mail to SPONSOR’s primary business contact within AIG and Major League Baseball with a read receipt at infosec@mlb.com. (b) Immediately following SPONSOR’s notification to AIG of a Security Breach, the parties shall coordinate with each other to investigate the Security Breach. SPONSOR agrees to cooperate with AIG and Major League Baseball in the handling of the matter, including, without limitation: (i) assisting with any investigation; (ii) providing AIG and Major League Baseball with physical access to the facilities and operations affected; (iii) facilitating interviews with Authorized Persons and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting and other materials required to comply with Applicable Law, regulation, industry standards or as otherwise required by AIG. (c) SPONSOR shall immediately remedy any Security Breach and prevent any further Security Breach at SPONSOR’s expense in accordance with applicable privacy rights, standards and Applicable Law. SPONSOR shall reimburse AIG for actual reasonable costs incurred by AIG and Major League Baseball in responding to, and mitigating damages caused by, any Security Breach, including, without limitation, all costs of notice and/or remediation pursuant to Section 4(d). SPONSOR shall indemnify and hold harmless AIG and its affiliates and their respective parents, owners, officers, directors, and employees from and against all losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with any third party claim which is in any way related to a Security Breach. For the duration of the term of the Sponsorship Agreement, SPONSOR shall maintain in full force and effect Technology Errors and Omissions or equivalent Professional Liability insurance providing coverage for claims arising out of the Services to be provided under the Sponsorship Agreement, including Privacy, Data Breach and Network Security Liability coverage, with minimum limits of $10,000,000 per claim, naming AIG and its affiliates and their respective parents, owners, officers, directors, and employees as additional insureds on such insurance policy. EXECUTION VERSION Page 13 of 14 (d) SPONSOR agrees that it shall not inform any third party of any Security Breach without first obtaining AIG’s prior written consent, other than to inform a complainant that the matter has been forwarded to AIG’s legal counsel. Further, SPONSOR agrees that AIG shall have the sole right to determine: (i) whether notice of the Security Breach is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies or others as required by Applicable Law, or otherwise in AIG’s discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons and the nature and extent of any such remediation. (e) SPONSOR agrees to cooperate at its own expense with AIG and/or Major League Baseball in any litigation or other formal action deemed necessary by AIG or Major League Baseball to protect its rights relating to the use, disclosure, protection and maintenance of AIG Data. 5. Compliance (a) SPONSOR represents, warrants and covenants that it shall, at its sole expense, undergo each year an independent evaluation by a recognized third-party security firm covering the preceding 12 -month period and the information security controls relevant to SPONSOR’s performance under this Sponsorship Agreement and any third party facilities, systems, networks and assets used to provide Services to AIG. SPONSOR shall ensure this evaluation includes, without limitation, obtaining vulnerability scans and network- and application-level penetration tests. (b) Without limitation to Section 5(a), SPONSOR represents, warrants and covenants that it shall, at its sole expense, undergo each year an independent evaluation by a recognized third-party audit firm in the form of a Auditing Standards Board of the American Institute of Certified Public Accountants (“AICPA”) compliant Service Organization Control (“SOC”) 2 Type 2 audit covering the preceding 12-month period and the relevant scope of systems, applications and services used in complying with its obligations under this Sponsorship Agreement (collectively with the independent evaluation by a recognized third-party security firm required as set forth in Section 5(a) above, the “Control Audit(s)”). SPONSOR shall meet or exceed the Security and the Confidentiality portions of the Trust Services Principles, Criteria and Illustration issued by AICPA to the extent they are relevant to the Services under this Sponsorship Agreement. (c) SPONSOR shall ensure reports are generated from each Control Audit and, unless otherwise agreed to in writing by the parties, shall provide AIG with such reports within six months of the Effective Date of this Sponsorship Agreement. SPONSOR shall continue to provide reports generated from the most recent Control Audit to AIG annually thereafter, within thirty (30) days of such reports being available to SPONSOR, during the term of this Sponsorship Agreement. (d) To the extent that any testing or Control Audit conducted pursuant to Section 5 identifies alleged risks or threats and/or nonconformance to generally accepted trade practice in the industry or other breach of this Sponsorship Agreement (each a “Security Issue”), SPONSOR shall, within thirty (30) days of receipt of notification of any such alleged risks, threats and/or nonconformance, either correct such Security Issues or provide AIG with a plan acceptable to AIG for remediating the Security Issues. If any Security Issues are not promptly corrected or if an acceptable plan for correcting them is not agreed to during the specified time periods or implemented pursuant to its schedule, AIG may, by giving SPONSOR written notice thereof, immediately terminate this Sponsorship Agreement in whole or in part, at which time AIG is entitled to a pro rata refund of the fees paid or payable under this Sponsorship Agreement, which SPONSOR shall promptly deliver to AIG. (e) For the avoidance of doubt, nothing in this Section 5 shall be understood to relieve SPONSOR of its obligation to conduct audits, vulnerability scans and network- and application-level penetration assessments more frequently than required in this Section 5, as may be appropriate or necessary to protect the AIG Data and SPONSOR’s facilities, systems, networks and assets against external and internal threats and ensure the reliability and integrity of such AIG Data and facilities, systems, networks and assets. 6. Return or Destruction of AIG Data At any time during the term of the Sponsorship Agreement at the AIG’s request for any reason or upon the termination or expiration of this Sponsorship Agreement, SPONSOR shall, and shall instruct all Authorized Persons EXECUTION VERSION Page 14 of 14 to, promptly return to the AIG all copies, whether in written, electronic or other form or media, of AIG Data in its possession or the possession of such Authorized Persons, or securely dispose of all such copies, and certify in writing to the AIG that such AIG Data has been returned to AIG or disposed of securely. SPONSOR shall comply with all reasonable directions provided by AIG with respect to the return or disposal of AIG Data.