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HomeMy WebLinkAboutGilroy Foundation, The - Agreement for funding operations for Gilroy Center for the ArtsAGREEMENT BETWEEN THE CITY OF GILROY AND THE GILROY FOUNDATION REGARDING FUNDING OPERATIONS OF THE GILROY CENTER FOR THE ARTS AND APPOINTING THE FOUNDATION AS ITS EXCLUSIVE OUTSIDE AGENT FOR MARKETING CERTAIN NAMING RIGHTS TO FUND OPERATIONS 44%_ This Agency Agreement ( "Agreement ") is entered into and effective as of the 1 ci day of January, 2005 by and between the City of Gilroy, California, a municipal corporation (the "City "), whose address is 7351 Rosanna Street, Gilroy, CA 95020, and The Gilroy Foundation, a California not - for - profit public benefit corporation (the "Foundation "), whose address is 8339 Church Street, # 119, Gilroy, CA 95020, with a mailing address of P.O. Box 774, Gilroy, CA 95021. All references to the City herein shall mean the City acting through its City Council and/or such other individuals or organizations duly authorized by its City Council. This Agreement is made with reference to the following facts: A. The City has approved the construction of the Gilroy Center for the Arts (the "Project "), which is expected to be completed and operational by 2009. B. The Foundation desires to establish an endowment fund in the amount of at least Three Million Dollars ($3,000,000.00) for the Project (the "Endowment ") which is expected to generate recurring revenues on an annual basis that will assist in funding the day -to -day operations of the Project. The Foundation agrees to assist the City in funding day -to -day operations of the Project in perpetuity in an aggregate annual amount equal to no less than five percent (5 %) of the aggregate amount contributed by donors to the Endowment. C. The Foundation proposes to utilize the volunteer services of a group called the "Arts Center Endowment Committee" (the "Committee ") to perform the fundraising activities on behalf of the Foundation in establishing the Endowment (for purposes of this Agreement, all references to the Foundation shall also include the Committee). D. The Foundation desires the City to appoint the Foundation as the exclusive outside agent of the City in order to raise funds for the Endowment by marketing and soliciting the naming rights (the "Naming Rights ") to the various rooms and /or building features of the Project, and the City desires to appoint the Foundation as its exclusive outside agent for marketing and soliciting the Naming Rights associated with the Project, subject to the terms and conditions of this Agreement. NOW, THEREFORE, the parties agree as follows: 1. APPOINTMENT OF FOUNDATION AS AGENT FOR NAMING RIGHTS. (a) The City hereby appoints the Foundation as its exclusive outside agent for marketing and soliciting the Naming Rights associated with the Project. The City further agrees that the Foundation shall retain all donations received by the Foundation relating to such Naming Rights for the sole purpose of establishing and funding the Endowment. The Foundation hereby acknowledges and agrees this appointment is exclusive as to all third parties; provided, however, the City reserves the right to market and sell the Naming Rights on its own behalf at any and all times during the effectiveness of this Agreement and to retain any funds received by the City through its efforts in securing Naming Rights. The Foundation further acknowledges and agrees that the Foundation has no authority to sell the Naming Rights, but shall forward its recommendations on prospective donors for Naming Rights to the City for its approval at such times and intervals as agreed upon by the Foundation and the City, such approval to be granted or withheld in the City's sole discretion. All Naming Rights shall be subject to the laws, regulations and policies of the City, and shall only be effective upon the completion of the construction of the Project and the Project becoming operational. (b) All rights pertaining to the marketing and solicitation of the Naming Rights that are not expressly granted in this Agreement to the Foundation are retained by the City. 2. DUTIES AND RESPONSIBILITIES OF FOUNDATION. In addition to the duties of the Foundation set forth elsewhere in this Agreement, the Foundation agrees as follows: (a) The Foundation shall use its reasonable best efforts to promote and solicit donors for the Naming Rights associated with the Project and shall forward such recommendations for the Naming Rights to the City in accordance with the terms and conditions of this Agreement. Furthermore, the Foundation shall provide to prospective donors such information relating to the Naming Rights, including, without limitation, any policies of the City relating to Naming Rights, as required by the City in its sole discretion during the solicitation and approval process, or as supplemented thereafter. (b) The Foundation shall report to the City on a regular basis (no less frequently than quarterly on a calendar year basis) on its progress in soliciting donors for the Naming Rights, in a form and manner satisfactory to the City in its sole discretion. In connection with the City's review, the City reserves the right to request additional information from the Foundation and the Foundation shall be obligated to provide such information to the City in a prompt and timely manner. (c) The Foundation shall make no representations, warranties or claims to prospective donors which are false, misleading or inconsistent with the policies of the City relating to the Naming Rights or the terms of this Agreement. (e) The Foundation agrees to comply with all federal, state and local laws and regulations that are applicable to the marketing and solicitation of the Naming Rights pursuant to this Agreement, including, without limitation, the laws, regulations and policies of the City. 3. OBLIGATION OF FOUNDATION TO FUND PROJECT. (a) The Foundation acknowledges and agrees the City is entering into this Agreement based on the agreement of the Foundation, upon the construction of the Project being completed and the Project becoming operational, to distribute to the City in perpetuity for the day -to day operating expenses of the Project an aggregate annual amount equal to no less than five percent (S %) of the aggregate amount contributed by donors to the Endowment. The IMV USC107 9 IN Foundation agrees to provide the City with a financial report reflecting the assets, liabilities and operations of the Foundation and the Endowment on no less frequently than an annual basis, in such form and manner as requested by the City in its sole discretion. The Foundation further hereby acknowledges and agrees that the City shall have the right to revoke, cancel and /or terminate any and all Naming Rights relating to the Project associated with the Endowment upon the failure of the Foundation at any time to satisfy the foregoing aggregate annual funding obligations to the City. The parties hereby acknowledge and agree the foregoing is an integral part of this Agreement, and that the parties would not have entered into this Agreement without the agreement by the Foundation to the foregoing. (b) Except as otherwise provided in this Agreement or as otherwise agreed to by and between the City and the Foundation, the Foundation shall be solely responsible for the collection of all amounts payable by its donors after approval by the City, and the Foundation shall use its reasonable best efforts and resources to collect all such amounts. 4. OWNERSHIP OF NAMING RIGHTS. The City shall have and retain exclusive ownership of all Naming Rights associated with the Project. The Foundation acknowledges it has no ownership in the Naming Rights, and is solely acting in the capacity as exclusive outside agent for the City in marketing and soliciting donors for said Naming Rights, with the corresponding sums collected by the Foundation pursuant to the Naming Rights establishing and funding the Endowment. 5. INDEMNIFICATION. The Foundation hereby agrees to indemnify and hold the City, and its elected and appointed officials, employees, consultants, agents and attorneys', harmless from any and all claims, causes of action, demands, costs, losses, suits, judgments, liabilities, expenses and damages (including attorneys' fees) arising from or in connection with the Foundation's breach of any provision of this Agreement or the performance of the Foundation pursuant to this Agreement. The City shall promptly notify the Foundation when indemnification is sought under this Section. 6. GOVERNING LAW; VENUE. This Agreement shall in all respects be interpreted, construed in accordance with and governed by the internal laws of the State of California, without regard to its conflict of law rules. The place of making and the place of performance of this Agreement shall for all purposes be Gilroy, California, regardless of the actual place of execution or performance. In the event of any litigation between the parties, the parties agree that the sole and exclusive venue and jurisdiction for any such action shall be in the state or federal courts situated in the County of Santa Clara, California. The parties agree that the above referenced courts shall have personal and exclusive jurisdiction over the parties for any dispute arising out of this Agreement. 7. UNFORESEEN EVENTS. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of either party shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of 1MV1R4SiW 9 the party charged with a default, including, but not limited to, causes such as riots, civil disturbances, actions or inactions of governmental authorities, severe weather, fire, earthquakes or acts of God. In the case of any such unforeseen event, the time for performance required by either party under this Agreement shall be extended for any period during which performance is prevented by such event. 8. TERM & TERMINATION. (a) This Agreement shall commence on the date of this Agreement referenced above, and shall continue in full force and effect for an initial term of two (2) years. At the end of this two (2) year term, the Agreement shall automatically renew from year to year unless terminated by either party upon not less than thirty (30) days' written notice prior to the end of the initial term or the subsequent anniversary date on which such termination would occur. Notwithstanding the foregoing, this Agreement may be terminated earlier as provided below in Section 8(b). (b) This Agreement may be terminated at any time: (i) by the City or the Foundation, with or without cause, upon the written notice of not less than thirty (30) days from one party to the other party; (ii) by the City, in the event the Foundation breaches any term hereof, on notice which shall become effective twenty (20) days from the date written notice is given if such breach is not sooner corrected by the Foundation to the City's sole satisfaction; or (iii) by the City, if the Foundation shall be, or becomes, insolvent, or if the Foundation makes an assignment for the benefit of creditors or there is instituted a voluntary or involuntary proceeding in bankruptcy seeking to have the Foundation declared bankrupt, or proceedings are instituted against the Foundation under the insolvency laws or for reorganization or receivership or dissolution and such proceedings are not dismissed within sixty (60) days from its institution, or if the Foundation goes into liquidation and otherwise ceases to conduct its business as a going concern. (c) Except as otherwise provided herein, the City shall not be liable in any manner on account of the termination of this Agreement. Promptly upon termination for any reason, the Foundation shall immediately discontinue all promotion and solicitation of the Naming Rights. The right of termination set forth herein is absolute. Upon termination of this Agreement, the City may, at its option, revoke, cancel and /or terminate any or all Naming Rights associated with the Endowment. Furthermore, upon termination of this Agreement for any reason whatsoever, the Foundation shall promptly deliver, or cause to be promptly delivered, all remaining funds in the Endowment to the City and such funds shall become the sole property of the City. (d) In addition to this Section 8, the following sections of this Agreement shall survive the termination of this Agreement for any reason whatsoever: Section 3 to the extent the funds in the Endowment have not been delivered to the City, Sections 4 through 6 and Sections 9 and 10. 9. NOTICES. All notices pursuant to this Agreement shall be in writing and shall be delivered personally, mailed by certified or registered U.S. airmail, or sent by Federal Express, DHL or UPS to the party to which it is addressed at its address set forth on the first page of this 1MVIfi4SOW 9 Agreement, or at such other address as subsequently shall be given by either party to the other in accordance with this provision, and shall be effective on the earlier of receipt, five (5) days after deposit with all charges prepaid in the U.S. mail or two (2) days after deposit with all charges prepaid with Federal Express, DHL or UPS. 10. GENERAL PROVISIONS. (a) This Agreement cancels and supersedes any previous understandings or agreements between the parties relating to the subject matter hereunder. This Agreement expresses the complete and final understanding of the parties with respect to the subject matter hereunder and may not be changed in any way except by an instrument in writing signed by both parties in the same manner as this Agreement. (b) Headings included in this Agreement are for convenience only and are not to be used to interpret the agreement between the parties. (c) None of the rights of the Foundation hereunder are assignable, nor are any obligations imposed upon the Foundation hereunder delegable, without the prior written permission of the City. Any permitted assignment shall be binding on a party's successors and assigns. (d) The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions. (e) In any litigation proceeding between the parties, the prevailing party shall be entitled to reasonable attorneys' fees and all costs incurred in connection with such proceedings. (1) There shall be no presumption applied against any party on the ground that such party was responsible for preparing this Agreement or any part of it. (g) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. (h) Any and all exhibits attached hereto are hereby incorporated by reference under this Agreement. (SIGNATURE PAGE FOLLOWS) IMV1f SqM 9 c IN WITNESS WHEREOF, the parties have executed this Agreement as of the date referenced above. FOUNDATION: THE GILROY FOUNDATION, a California not - for - profit public benefi rporatio 9A't� By: Name: Donna R. Pray Title: Executive Director MAW OW 9 c CITY: CITY OF GILROY, a municipal N e: Ja B sa Title: City A mistrator