HomeMy WebLinkAbout2008-06-10; Public Financing Authority; Resolution 461
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Exhibit 1
RESOLUTION NO. 46
A RESOLUTION OF THE CARLSBAD PUBLIC FINANCING
AUTHORITY MEMORIALIZING TRADEMARK AND
COPYRIGHT RELATED TO THE CROSSINGS AT
CARLSBAD GOLF COURSE
WHEREAS, on October 17, 2006, the City Council selected The Crossings at
Carlsbad as the name of the Carlsbad Municipal Golf Course. The City Council, orally and
° by its actions, granted a non-exclusive, non-transferable, revocable, royalty-free license to
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use its trademarks "The Crossings at Carlsbad" and "TCAC", and its copyrighted design
10 logo that includes stylized waves above the words "The Crossings at Carlsbad" (all of
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which are collectively referred to herein as the "Marks"), for the uses set forth on Exhibit A
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to the Memorandum of Trademark and Copyright License (attached thereto as Exhibit 2)
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to CPFA in connection with The Crossings at Carlsbad golf course and all related goods
and services.
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Public Financing
Authority, as follows:
1. That the above recitations are true and correct.
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2. That the Chairman of Board for Carlsbad Public Financing Authority is
20 hereby authorized to sign the Memorandum of Trademark and Copyright
License on behalf of the City of Carlsbad.
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PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad
Public Financing Authority held on the 10th day of June, 2008, by the following vote to
wit:
AYES: Board Members Lewis, Kulchin, Hall and Nygaard.
NOES: None.
ABSENT: Packard.
LEWIS, Chairman of the Board
ATTEST:
LORRAINE M. WOOD, Secretary
(SEAL)
MEMORANDUM OF TRADEMARK AND COPYRIGHT LICENSE
THIS MEMORANDUM OF TRADEMARK AND COPYRIGHT LICENSE (the
"License") is dated effective as of dbry-^ jc^EOOS, by and between The City of
Carlsbad, a California municipal corporation ("Licensor"), and the Carlsbad Public Financing
Authority, a pubic entity and joint powers authority ("Licensee"), with reference to the following
facts:
A. Licensor is the owner of the trademarks set forth on Exhibit A hereto for the uses
described on Exhibit A, and of the copyrighted design logo represented by the Mark set forth on
Exhibit A that includes stylized waves above the words "The Crossings at Carlsbad" (all of
which are collectively referred to herein as the "Marks");
B. Licensee until now has used Licensor's Marks pursuant to an oral license; and
C. Licensor and Licensee desire to further document the existing non-exclusive, non-
transferable, revocable, royalty-free right and license for Licensee to continue using the Marks in
connection with The Crossings at Carlsbad golf course and all related goods and services.
NOW, THEREFORE, in consideration of the mutual promises set forth in this License,
and other valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereby agree as follows:
1. Licensee's Assignment to Licensor. To the extent Licensee possesses any
common law or other rights of any type in or to the Marks, Licensee hereby assigns all of such
rights to Licensor together with all good will associated with the use of the Marks.
2. Grant of License. Licensor hereby reaffirms the license previously granted to
Licensee on October 17, 2006, of a non-exclusive, non-transferable, revocable, royalty-free
license to use the Marks in connection with the financing and operation of The Crossings at
Carlsbad golf course and all related goods and services (the "License"), and Licensee hereby
affirms its acceptance of the License, subject to the terms and conditions set forth in this License.
All goodwill associated with Licensee's use of the Marks shall continue to inure to the benefit of
Licensor.
3. Ownership of Marks. Licensee acknowledges the ownership of the Marks of
Licensor and agrees that it will do nothing inconsistent with such ownership, and that all uses of
the Marks by Licensee shall continue to inure to the benefit of and be on behalf of Licensor.
Licensee agrees that nothing in this License shall give Licensee any right, title or interest in the
Marks other than the right to use the Marks in accordance with this License, and Licensee agrees
that it will not contest the title of Licensor to the Marks or contest the validity of this License.
4. Quality Standards and Control. Licensee agrees that the nature and quality of:
(i) all services rendered by Licensee in connection with the Marks; (ii) all goods sold by
Licensee under the Marks; and (iii) all related advertising, promotional and other related uses of
the Marks by Licensee, shall continue to conform to standards set by, and be under the control
of, Licensor. Licensee agrees that it will not harm, misuse or bring into disrepute the Marks. All
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uses of the Marks by Licensee are subject to review and approval by Licensor. Any violation of
this provision shall be a default under this License entitling Licensor to terminate this License
pursuant to Section 8. Licensee agrees to cooperate with Licensor in facilitating Licensor's
control of such nature and quality, to permit reasonable inspections of Licensee's operations,
products, services, printed materials, and all other items bearing a Mark, and to supply Licensor
with specimens of all uses of the Marks upon request. Licensee shall comply with all applicable
laws and regulations, and obtain all appropriate government approvals, pertaining to the sale,
distribution and advertising of products and services associated with the Marks.
5. Form of Use. Licensee agrees to use the Marks only in the form and manner and
with appropriate legends as prescribed from time to time by Licensor, and not to use any other
trademark or service mark in combination with the Marks without the prior written approval of
Licensor. Licensee shall not adopt or use any trademark or service mark that is, or is likely to be,
confusingly similar to the Marks.
6. Infringement Proceedings. Licensee agrees to promptly notify Licensor of any
unauthorized use of the Marks by others as such comes to Licensee's attention. Licensor shall
have the sole right and discretion to bring any infringement or unfair competition proceedings
involving the Marks.
7. Term. The term of this License shall commence on the date of this License and
continue in force and effect until the earlier of: (i) Licensee ceases to exist; (ii) Licensee transfers
back to Licensor all rights it possesses that are related to The Crossings at Carlsbad golf course;
or (iii) this License is terminated in accordance with Section 8.
8. Termination. Licensor shall have the right to terminate this License prior to the
expiration of its term upon giving thirty (30) days' prior written notice to Licensee in the event
of: (i) Licensee's breach of any of the provisions of this License; (ii) Licensee's breach of any
other written obligations owed to Licensor; (iii) Licensee's insolvency, upon the appointment of
any receiver or trustee to take possession of the properties of Licensee, or upon the winding-up,
sale, consolidation, merger or any sequestration by governmental authority of Licensee; or (iv)
for any reason in Licensor's sole discretion.
9. Effect of Termination. Upon any termination of this License, Licensee agrees to
immediately discontinue all use of the Marks and any term or terms confusingly similar thereto,
to cooperate with Licensor or its appointed agent to apply to the appropriate authorities to cancel
any recording of this License in any government records, to destroy or return to Licensor all
printed materials bearing the Marks, and to ensure that all rights in the Marks and the goodwill
connected therewith shall remain the property of Licensor.
10. No Warranties. It is understood and agreed that Licensor does not, by virtue of
this License or otherwise, warrant or agree to the validity of any aspect of the Marks, or that their
use will not be affected by any other parties.
11. Warranty; Limited Liability; Indemnification. LICENSOR MAKES NO
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED REGARDING THE MARKS.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR
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INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO THIS
LICENSE. Licensee shall defend, indemnify and hold Licensor harmless from and against any
and all claims, lawsuits, damages, losses, liabilities, judgments, fees and costs, including, without
limitation, reasonable attorneys' fees and costs, claimed or sustained by third parties, whether for
personal injury or otherwise, arising out of or relating to the marketing, distribution, sale or use
of the products, services, information, and materials bearing the Marks or arising out of or
relating to the unauthorized use of the Marks. Licensee shall give Licensor prompt written
notice of any such claim or lawsuit. Licensor shall have the exclusive right to compromise, settle
or control the defense of such claim or lawsuit. However, Licensee may have control over the
defense of the lawsuit if Licensor shall have given prior approval for such control, and approval
of Licensee's legal counsel, but in no event shall Licensee settle or compromise any claims or
lawsuits without the prior consent of Licensor.
12. Governing Law. This License shall be governed by, and construed in accordance
with, the laws of the State of California. Any controversy concerning the terms of this License
shall be determined in the courts located in San Diego County, California, and Licensee
consents to personal jurisdiction and venue therein.
13. Attorneys' Fees. In the event either party shall commence any action or
proceeding against the other party for a breach or claimed breach of this License, or to seek a
judicial declaration of rights under this License, the prevailing party in such action shall be
entitled to recover reasonable attorneys' fees and costs, including such fees and costs incurred in
enforcing any judgment awarded to the prevailing party.
14. Equitable Remedies. Licensee understands and agrees that Licensor will suffer
irreparable harm if Licensee fails to comply with any of Licensee's obligations under this
License, and monetary damages will be inadequate to compensate Licensor for such breach.
Accordingly, Licensee agrees that Licensor shall, in addition to any other remedies available at
law or in equity, be entitled to injunctive relief to enforce the terms of this License, without the
necessity of posting a bond or undertaking.
15. Successors and Assigns. This License shall be binding on, and shall inure to the
benefit of, the parties to it and their respective heirs, legal representatives, successors and
assigns.
16. Waiver. The waiver of any portion of this License shall not constitute a waiver
of any other or future obligations or rights.
17. Notices. All notices required or permitted hereunder shall be given in writing
addressed to the respective parties as set forth below their signatures and shall be deemed to have
been duly given: when delivered, if personally delivered or delivered by a nationally recognized
private courier; three (3) business days after deposit in any United States Post Office, first class
mail with postage prepaid, if mailed; and when receipt is acknowledged or confirmed, if
telecopied or e-mailed. Either party may change its address for purposes hereof by written notice
to the other in accordance with the provisions of this Section.
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18. Severability. If it shall subsequently be determined by a court of competent
jurisdiction that any portion of this License is void, voidable or unenforceable, it shall not
necessarily affect the validity of the remaining provisions of this License. Any such
determination and its effect on this License shall be considered in light of the materiality of such
change, the ability of the parties to comply with the remaining provisions of the License, and a
determination of whether or not the absence of the void, voidable or unenforceable provisions
would have had a material effect on the expectations of the parties at the time they entered into
this License.
19. Headings. The headings to the Sections of this License are included merely for
convenience of reference and shall not affect the meaning of the language included therein.
20. Counterparts. This License may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
21. Relationship of Parties. The parties hereto are independent contractors and not
partners, agents, or joint venturers. Neither party shall have the power or authority to bind the
other party in any transaction with third parties.
22. Assignment. Licensee may not assign, transfer, sublicense or encumber any of
its rights under this License without the prior written consent of Licensor, except that Licensee
may sublicense its rights hereunder to Kemper Sports Management, Inc., an Illinois corporation
("Kemper"), pursuant to that certain Golf Course Management License between Licensee and
Kemper dated May 10, 2006.
23. Entire Agreement; Amendment. This License contains the entire agreement
and understanding of the parties and supersedes all prior and contemporaneous agreements,
whether oral or written, with respect to the subject matter of this License.
[SIGNATURE PAGE FOLLOWS NEXT]
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IN WITNESS WHEREOF, the parties hereto have caused this License to be executed as
of the date first above written.
Licensor:
Title: Mayor
Address:
1200 Carlsbad Village Drive
Carlsbad, California 92008
Attn:
Licensee:
Carlsbad
public e:
Financing Authority,
Nam<
Title: Chairman of the Board
Address:
1200 Carlsbad Village Drive
Carlsbad, California 92008
Attn: ClTN
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EXHIBIT A
Mark Goods or Services
THE CROSSINGS AT CARLSBAD
Golf caps; Golf cleats; Golf shirts; Golf shoes;
Golf spikes; Golf trousers; Belts; Caps; Jerseys;
Ties; Tops; Sweat bands; Sweat pants; Sweat
shirts; Sweat suits; Athletic shoes; Vests; Socks;
Jackets; Rain jackets; Waterproof jackets and
pants; Wind resistant jackets; Visors; Skirts and
dresses; Pants; Dress shirts; Knit shirts; Polo
shirts; Shirts; Sports shirts
THE CROSSINGS AT CARLSBAD
Entertainment in the nature of golf tournaments;
Fitting of golf clubs to individual users; Golf
caddie services; Golf club services; Golf courses;
Golf driving range services; Golf instruction;
Providing a website through which golfers reserve
tee times at golf courses; Providing golf facilities;
Rental of golf equipment
THE CROSSINGS AT CARLSBAD
Divot repair tools; Fitted covers for non-motorized
golf carts; Fitted head covers for golf clubs; Golf
accessory pouches; Golf bag covers; Golf bag
pegs; Golf bag tags; Golf bags; Golf ball markers;
Golf ball retrievers; Golf ball sleeves; Golf balls;
Golf club bags; Golf club covers; Golf club grips;
Golf club heads; Golf club inserts; Golf club
shafts; Golf club swing aids, namely golf club
balancing scales and scale parts thereof, to
analyze, fit and/or make golf clubs; Golf clubs;
Golf flags; Golf gloves; Golf irons; Golf putter
covers; Golf putters; Golf tee markers; Golf tees;
Golf towel clips for attachment to golf bags; Golf
training equipment, namely, a golf training cage;
Grip tapes for golf clubs; Hand grips for golf
clubs; Head covers for golf clubs; Non-motorized
golf carts; Putting practice mats
TCAC
Golf caps; Golf cleats; Golf shirts; Golf shoes;
Golf spikes; Golf trousers; Belts; Caps; Jerseys;
Ties; Tops; Sweat bands; Sweat pants; Sweat
shirts; Sweat suits; Athletic shoes; Vests; Socks;
Jackets; Rain jackets; Waterproof jackets and
pants; Wind resistant jackets; Visors; Skirts and
dresses; Pants; Dress shirts; Knit shirts; Polo
shirts; Shirts; Sport shirts
EXHIBIT A - 1
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Mark Goods or Services
TCAC
Covers for golf clubs; Divot repair tools; Fitted
covers for non-motorized golf carts; Fitted head
covers for golf clubs; Golf accessory pouches;
Golf bag covers; Golf bag pegs; Golf bag tags;
Golf bags; Golf ball markers; Golf ball retrievers;
Golf ball sleeves; Golf balls; Golf club bags; Golf
club covers; Golf club grips; Golf club heads;
Golf club inserts; Golf club shafts; Golf club
swing aids, namely golf club balancing scales and
scale parts thereof, to analyze, fit and/or make golf
clubs; Golf clubs; Golf flags; Golf gloves; Golf
irons; Golf putter covers; Golf putters; Golf tee
markers; Golf tees; Golf towel clips for
attachment to golf bags; Golf training equipment,
namely, a golf training cage; Grip tapes for golf
clubs; Hand grips for golf clubs; Head covers for
golf clubs; Non-motorized golf carts; Putting
practice mats
TCAC
Entertainment in the nature of golf tournaments;
Fitting of golf clubs to individual users; Golf
caddie services; Golf club services; Golf courses;
Golf driving range services; Golf instruction;
Providing a website through which golfers locate
information about golf courses and golf
tournaments; Providing a website through which
golfers reserve tee times at golf courses; Providing
golf facilities; Providing news and information on
the sport of golf; Rental of golf equipment
AT CARLSBAD
Golf caps; Golf cleats; Golf shirts; Golf shoes;
Golf spikes; Golf trousers; Belts; Caps; Jerseys;
Ties; Tops; Sweat bands; Sweat pants; Sweat
shirts; Sweat suits; Athletic shoes; Vests; Socks;
Jackets; Rain jackets; Waterproof jackets and
pants; Wind resistant jackets; Visors; Skirts and
dresses; Pants; Dress shirts; Knit shirts; Polo
shirts; Sport shirts; Shirts
EXHIBIT A - 2
115010/000000/917118.03 1
Mark Goods or Services
AT CARLSBAD GS
Divot repair tools; Fitted covers for non-motorized
golf carts; Fitted head covers for golf clubs; Golf
accessory pouches; Golf bag covers; Golf bag
pegs; Golf bag tags; Golf bags; Golf ball markers;
Golf ball retrievers; Golf ball sleeves; Golf balls;
Golf club bags; Golf club covers; Golf club grips;
Golf club heads; Golf club inserts; Golf club
shafts; Golf club swing aids, namely golf club
balancing scales and scale parts thereof, to
analyze, fit and/or make golf clubs; Golf clubs;
Golf flags; Golf gloves; Golf irons; Golf putter
covers; Golf putters; Golf tee markers; Golf tees;
Golf towel clips for attachment to golf bags; Golf
training equipment, namely, a golf training cage;
Grip tapes for golf clubs; Hand grips for golf
clubs; Head covers for golf clubs; Non-motorized
golf carts; Putting practice mats
AT CARLSBAD GS
Entertainment in the nature of golf tournaments;
Fitting of golf clubs to individual users; Golf
caddie services; Golf club services; Golf courses;
Golf driving range services; Golf instruction;
Providing a website through which golfers locate
information about golf courses and golf
tournaments; Providing a website through which
golfers reserve tee times at golf courses; Providing
golf facilities; Rental of golf equipment
EXHIBIT A - 3
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