HomeMy WebLinkAboutCarlsbad Library and Arts Foundation, The; 2007-02-06;LIBRARY NAMING RIGHTS AGREEMENT
BETWEEN THE CITY OF CARLSBAD AND
THE CARLSBAD LIBRARY AND ARTS FOUNDATION
FOR THE LIBRARY LEARNING CENTER AT 3368 EUREKA PLACE
THIS NAMING RIGHTS AGREEMENT ("Agreement) is entered into as of the ^
day of^jJkx^o^A 2007 ("Effective Date"), by and among the City of Carlsbad, a
municipal corporation ("City") with its principal place of business located at 1200
Carlsbad Village Drive, Carlsbad, CA 92008 and The Carlsbad Library and Arts
Foundation, a California public benefit nonprofit corporation ("Foundation") with its
principal office at 1775 Dove Lane, Carlsbad, CA 92009.
RECITALS
A. City owns all the intellectual property rights associated with the naming of
all or designated areas within any City park and municipal facility, including the Library
Learning Center ("Learning Center").
B. City desires to license the naming rights to designated areas within the
Learning Center for the purpose of raising money towards the Foundation's $1.5 million
dollar capital campaign goal for the Learning Center.
C. In pursuit of this goal, City requested and Foundation submitted a
proposal that would allow Foundation to act on behalf of City and market the opportunity
to potential donors to have the donor's name associated with a pre-designated area
within the Learning Center so long as the donor meets the naming criteria established
by the City and the Donor Appreciation Committee.
D. On a nonexclusive nontransferable basis, the City desires that the
Foundation market the naming rights opportunity within the Learning Center to potential
donors and Foundation accepts this non-exclusive license, subject to the terms and
conditions set forth herein, to market to potential donors the opportunity for donors to
have their name associated with designated areas within the Learning Center.
NOW, THEREFORE, in consideration of the mutual promises, duties and
obligations set forth herein, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
AGREEMENT
1. Definitions.
A. "Capital Campaign" means the Foundation's pledge to raise $1.5 million
toward the construction of the Library Learning Center.
B. "Donor" means the person or entity that gave a Gift to the Foundation, either
by payment in full or who has entered into a multi-year agreement, towards the
Foundation's $1.5 million dollar Capital Campaign fund. Multi-year agreements shall not
exceed 3 years in duration.
C. "Donor Appreciation Committee" means that entity, which may be composed
of representatives of the Foundation's Board of Directors, including the Chair of the
Strategic Planning Committee; representatives from the Library's Board of Directors; the
Carlsbad Library Director; and representatives nominated by the City Manager and
confirmed by the City Council. The Donor Appreciation Committee will establish naming
criteria, Gift acceptance guidelines, recognition and procedures that advances the City's
norms and values and the Foundation's mission statement.
D. "Gift(s)" means monies or other financial instruments, including but not limited
to trusts, pledges, bonds, stocks, and securities, and/or real property received for the
benefit of City, Library or Library Learning Center.
E. "Library Learning Center" or "Learning Center" means that area where the
Learning Center is located and which is owned by and under the control of City.
F. "Learning Center Naming Opportunities" refers collectively to specified areas
within the Learning Center that have been identified by City to be named as more
particularly detailed in Exhibit A, together with all substitutions, deletions and additions
thereto which may subsequently be agreed to by the parties.
G. "Donation(s)" means the Gift(s) that a Donor has irrevocably transferred or
given to the Foundation for the placement of the Donor's specified name on or at a
specified location within the Learning Center as more particularly detailed in Exhibit A.
H. "Naming Rights" or "Naming Rights Opportunity" means the nonexclusive
nontransferable license granted by the City to the Foundation to act on behalf of the City
to market the Learning Center Naming Opportunities.
2. Grant of Nonexclusive Nontransferable Naming Rights Opportunity. City hereby
grants the following rights to Foundation:
a. Naming Rights. During the Term of this Agreement, City hereby grants
Foundation a nonexclusive nontransferable license to market Learning Center Naming
Opportunities to potential Donors willing to Donate to the Foundation the minimum
predetermined Gift amount.
b. No Other Rights Acquired. Other than the rights specified in this Agreement,
Foundation shall not obtain any other rights or interest in any City owned property,
including personal, real or intellectual (e.g. copyright, trademark, etc.) except by a
separate and written agreement.
3. City Retained Naming Rights. City reserves the right to independently offer
Learning Center Naming Opportunities to individuals, corporations or charitable
organizations wishing to make a financial contribution directly to the City or Library.
Notwithstanding this reservation of Naming Rights, in the event that a person or entity
contacts the City regarding making a contribution to the City or Learning Center related
to available Learning Center Naming Opportunities, City may, but is not obligated to
refer the person or entity to the Foundation. Further, City will take reasonable efforts to
coordinate Learning Center Naming Opportunities for Gifts received directly by the City
with Foundation to assure non-duplication of naming offers.
4. Term. This Agreement will be effective as of the date first above written and will
continue until: (1) all the Learning Center Naming Opportunities are encumbered by
Donors; (2) Foundation has reached its Capital Campaign goal and those monies, other
financial instruments, and/or real property have been transferred to the City for the
benefit of the Learning Center; or (3) the Agreement is terminated pursuant to Section 9
below.
5. Disposition of Donations and Fundraising Efforts. Donations and funds are to be
received by Foundation and directed to Foundation's Learning Center Capital Campaign
commitment. All Donations and other funds raised associated with the Naming Rights
Opportunities are to be turned over to the City, within Df days of receipt, for the specific
purpose of funding the Learning Center, even if funds raised or Gifts received exceed
Foundation's Capital Campaign fundraising target. Foundation shall not deduct any
costs, expenses, overhead, administration or any other fee from any Gifts and/or fund
received. Foundation shall use commercially reasonable fundraising efforts during the
term of this Agreement to market Naming Rights Opportunity to Donors.
6. Foundation - Donor Agreements. Foundation will enter into a written agreement
("Donor Agreement") with each Donor to ensure that the Donor's Donation is received in
accordance with the desires of the Donor and Section 7 below. The Donor Agreement
will identify that area sought to be named from the Learning Center Naming
Opportunities, the name the Donor desires to be placed on or affixed to that area, the
Donation, any Donor requested restrictions or conditions sought, any formal, informal or
anonymous recognition sought related to the naming or contribution given, the duration
of the naming, termination or revocation provisions, name approval/denial procedures,
indemnification of City and Foundation, Force Majeure provisions, and other terms and
conditions, all of which are subject to written approval by City. Learning Center Naming
Opportunities will be in effect for the life of that portion of the Learning Center unless
terminated pursuant to Section 9 below.
7. Approval of Naming and Creation of the Donor Appreciation Committee. Final
approval on naming rests with the City Council or its designee whose decision shall be
final. The City, Foundation, the Library Board and the Library Director will act in
partnership and in accordance with this Agreement to create a Donor Appreciation
Committee that will ensure appropriate management of a process for review and
approval of Donor naming.
8. Records and Audit Rights. Foundation shall maintain full and accurate books,
records, documents and other evidence sufficient to document all Naming Rights, Gifts,
Donations, and other funds for the City ("Records"). Foundation shall maintain the
Records at its principal office in Carlsbad, CA for three (3) years after completion or
termination of this Agreement. At the end of the third year, Foundation shall transfer the
Records to the City. The City and its representative or designee shall have the right to
examine and audit the Records at Foundation's principal office. The audit shall be
conducted during normal business hours no more than once per year, with thirty (30)
days advance written notice, unless otherwise required by law. If an audit indicates a
discrepancy of 5% or more of any Gifts or other funds, Foundation will reimburse the
City for the cost of the audit.
9. Termination.
a. Failure of Foundation to Pay Amounts Due. Foundation will notify City when
Learning Center Naming Opportunity is encumbered under a Donor Agreement.
Concurrent to this notification, Foundation will advise City when the Gift will be
transferred to the City or paid in full or otherwise mature so as to be a quantifiable dollar
capable of being transferred to the City (collectively "Amount Due"). In the event that
Foundation fails to pay to City any Amount Due as required by this Agreement to be
paid for a period of fifteen (15) days following receipt of written notice from City
specifying such default, to cure such default by payment of the Amount Due, then City
shall have the right to (1) terminate this Agreement upon the expiration of the cure
period, (2) remove immediately the Donor name from the designated area within the
Learning Center and return the designated area to the Learning Center Inventory,
and/or (3) assert any and all other remedies which City may have pursuant to law or
equity, notwithstanding any provision within the Donor Agreement.
b. Either party may cancel this Agreement, without liability to the other party, on
30 day written notice to the other party.
c. Either party may cancel this Agreement immediately, without liability to the
other party, upon the happening of any of the following or any other comparable event:
(1) insolvency of the other party; (2) filing of any petition by or against the other party
under any bankruptcy, reorganization or receivership law; or (3) execution of any
assignment for the benefit of the other party's creditors; unless such petition,
assignment or appointment be withdrawn or nullified within fifteen (15) days of such
event.
d. The City shall have the right to cancel the Donor Agreement immediately,
without liability to Foundation or Donor, upon the happening of any of the following or
any other comparable events: (1) Donor, or if applicable, any of its officers, directors, or
principals (for purposes of this section, collectively referred to as "Donor") is charged
with a criminal offense; (2) Donor substantially engages in the sale or marketing of
alcohol, tobacco or firearms; (3) Donor acquires, is acquired or merges with another
business that substantially engages in selling or marketing alcohol, tobacco or firearms;
and (4) Donor, in the sole discretion of the City Council or designee, no longer satisfies
the Donor Appreciation Committee's established naming criteria and Gift acceptance
guidelines.
10. Force Majeure. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party or parties.
Such acts shall include, but not be limited to, acts of God, fire, strikes, compliance with
laws or regulations, riots, acts of war, or any other conditions beyond the reasonable
control of a party.
11. Indemnification. Foundation agrees to indemnify and hold harmless the City and
its officers, officials, employees and volunteers from and against all claims, damages,
losses and expenses including attorneys fees arising out of the marketing of Naming
Rights Opportunities described herein caused in whole or in part by any willful
misconduct or negligent act or omission of the Foundation, or anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
12. City and Foundation acknowledge that each party owns certain names,
trademarks, service marks, copyrights and other intellectual property ("Marks"), and
owns or has certain merchandising rights in and to the Marks, and all goodwill
associated with or symbolized by the Marks. It is understood that in promoting the
Naming Rights Opportunities ("Promotional Activity") as contemplated by this
Agreement, the City and Foundation may make various references to these Promotional
Activities and may display the Marks of the City and/or Foundation, and pictures, if any,
of the Promotional Activities. Each party hereto grants to the other a nonexclusive,
nontransferable license to use its Marks during the term of this Agreement and subject
to the terms and conditions hereinafter set forth, solely in connection with the
Promotional Activities, including advertising and promoting the Learning Center
Inventory to potential Donors.
13. General Provisions.
a. This Agreement constitutes the entire agreement between the parties with
respect to any matter referenced herein and supersedes any and all other prior writings
and oral negotiations. The terms of this Agreement shall prevail over any inconsistent
provision in any other contract document appurtenant hereto, including exhibits to this
Agreement.
b. This Agreement may be modified only in writing, and signed by the parties.
c. Any notices, documents, correspondence or other communications concerning
this Agreement may be provided by personal delivery, facsimile or mail and shall be
addressed as set forth below. Such communication shall be deemed served or
delivered: a) at the time of delivery if such communication is sent by personal delivery;
b) at the time of transmission if such communication is sent by facsimile; and c) 48
hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such
communication is sent through regular United States mail.
If to Foundation: If to City:
The Carlsbad Library and Arts Foundation Dove Library
1775 Dove Lane 1775 Dove Lane
Carlsbad, CA 92009 Carlsbad, CA 92009
Fax: 760. Fax: 760.602-2056
Tel: 760. 6>cz--z.<ifeo Tel: 760.602-7942
Attn: James Comstock, President Attn: Heather Pizzuto, Director
d. This Agreement shall be governed by and construed under the laws of the
State of California without giving effect to that body of laws pertaining to conflict of laws.
In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction
located in San Diego County, California.
e. Foundation shall not voluntarily or by operation of law assign, transfer, sublet
or encumber all or any part of Foundation's rights, interests, or duties in this Agreement
without City's prior written consent. Any attempted assignment, transfer, subletting or
encumbrance shall be void and shall constitute a breach of this Agreement and cause
for termination of this Agreement. Regardless of City's consent, no subletting or
assignment shall release Foundation or Foundation's obligation to perform all other
obligations to be performed by Foundation hereunder for the term of this Agreement.
f. Foundation has been advised and is aware that this Agreement and any other
reports, documents, information and data including, but not limited to, computer tapes,
discs or files furnished or prepared by City or Foundation pertaining to Naming
Opportunities may be subject to public disclosure as required by the California Public
Records Act (California Government Code Section 6250 et. seq.).
g. This Agreement is entered into for the sole benefit of City and Foundation and
no other parties are intended to be direct or incidental beneficiaries of this Agreement
and no third party shall have any right in, under or to this Agreement.
h. Section headings contained in this Agreement are included solely for
convenience and are not intended to modify, explain or to be a full or accurate
description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
i. The parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises with
respect to this Agreement, this Agreement shall be construed as if drafted jointly by the
parties and in accordance with its fair meaning. There shall be no presumption or
burden of proof favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
j. If any provision of this Agreement is determined by a court of competent
jurisdiction to be unenforceable in any circumstance, such determination shall not affect
the validity or enforceability of the remaining terms and provisions hereof or of the
offending provision in any other circumstance. Notwithstanding the foregoing, if the
value of this Agreement, based upon the substantial benefit of the bargain for any party
is materially impaired, which determination as made by the presiding court of competent
jurisdiction shall be binding, and then both parties agree to substitute such provision(s)
through good faith negotiations.
14. Authority. The individuals executing this Agreement and the instruments
referenced in it on behalf of Foundation each represent and warrant that they have the
legal power, right and actual authority to bind Foundation to the terms and conditions of
this Agreement.
THE CARLSBAD LIBRARY AND
ARTS FOUNDATION
Or
sign here)
«* c> t s 5 o s^ rf
CITY OF CARLSBAD, a municipal
corporation of the State of California
City Manager or Mayor
(print name/title)ATTEST:
(e-mail address)
(sign here)
LORRAINE M. WOOD
City Clerk
(print name/title)
(e-mail address)
If required by City, proper notary acknowledgment of execution by contractor
must be attached. If a Corporation. Agreement must be signed by one corporate
officer from each of the following two groups.
*Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
RONALD R. B&£tTEity Attorney
jputy City Attorney
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Attachment A
LEARNING CENTER NAMING OPPORTUNITIES
CAPITAL CAMPAIGN GOAL
NAMING OPPORTUNITIES FOR DONORS
FACILITIES
Family Wing (first floor North) $750,000
Success Wing (second floor North) $500,000
First Floor Lobby (plan #101) In Honor of Cliff Lange
Children/Family Area (#112 & #113) $250,000
Life Skills Presentation Room $150,000
& Terrace (#205 & 233)
Children's Story Time Area (#116) $125,000
Computer Literacy Training Room (#202) $100,000
Adult Computer Room (#119) $75,000
Children's Computer Area $75,000
High School Reading Room & Terrace (215 & 233) $65,000
Adult Classroom/Tutor Training Room $50,000
& Terrace (#206 & 234)
Adult Literacy Collection Area (#213) $50,000
Circulation & Reference Area/Service Desk (#120) $35,000
Reception Area Second Floor (#209) $35,000
Staff Lounge & Kitchen (#106) $35,000
Adult Classroom (#208) $35,000
Atrium Bridge - Second Floor $30,000
Small Group Room (#220) $25,000
Confidential Interview Room (#229) $25,000
Coordinator's Office (#111 & 228) 2 available $25,000 each
Homework Center (#107-110) 4 available $25,000 each
Individual Tutoring Room $20,000 each
(#216-219, 222-226) 9 available
NOTE:
Rooms on the first floor bear numbers 100-199; second floor rooms are
numbered 200-299.
ENDOWMENTS
Permanently named endowment funds may be established with gifts of $50,000
or more to support the operation of the Learning Center.
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