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HomeMy WebLinkAboutCO 06-249 - Mark Christopher Charity Classic aCilyucamonga^ UMBg,Fij, VICTORIA GARDENS CULTURAL CENTER4 SPONSORSHIP, NAMING/PRESENTING RIGHTS AGR • This SPONSORSHIP, NAMING/PRESENTING RIGHTS AGREEMENT ("Agreement") is entered into this 15th day of May, 2006 ("Effective Date"), by and between The City of Rancho Cucamonga, a municipal corporation ("City'), the Rancho Cucamonga Community Foundation, a California non-profit entity ("Foundation") and Mark Christopher Charity Classic, a Diamond Level Promoting Arts & Literacy (PAL) donor ("Sponsor"). A. Recitals. (i) The City is authorized to grant to persons and/or entities desiring to make financial donations to the Foundation for the benefit of the residents of the City, certain privileges, including naming/presenting and signage rights, as to certain facilities and/or areas of the City, as specified herein. (ii) Sponsor desires to make an irrevocable donation to the Foundation, for the benefit of the City, and City desires to provide Sponsor with donor privileges, including signage rights as to certain premises of the City specified in this Agreement, and subject to the terms and conditions set forth herein. B. Agreement. Now therefore, in consideration of covenants and mutual consideration set forth hereinafter, the parties agree as follows: 1. Donor Status and Privileges. Following the Effective Date of this Agreement and upon receipt of the initial donation payment, as described below, the Sponsor shall be designated and recognized by the City as a Sponsor at a specified level. This designation shall afford Sponsor certain donor privileges, including, without limitation, the following: • Naming Rights in perpetuity of the "Reading Enrichment Center Supporting Literacy". • Prominent Star Recognition, "Mark Christopher Charity Classic" Tile on Donor Wall. • Personalized Brick Paver, "Mark Christopher Charity Classic" on Donor Walkway. • Patron Level Membership to the Lewis Family Playhouse. • Presenting Sponsor for the 2006 "Gala for the Arts". • Full page advertisement in the 2006 "Gala for the Arts" Program. • Eight(8) tickets to the 2006 "Gala for the Arts". • Title Sponsor for the 2006 Library Telethon. • Seven (7) minute personalized taped segment to be aired daily during the 2006 Library Telethon. • Celebrity Status in phone bank for 2-hours daily during the 2006 Library Telethon. 2. Sponsorship, Naming/Presenting. (a) Upon the effective date of this Agreement, Sponsor shall be entitled to exclusive naming/presenting rights to specified areas of the Cultural Center(building, lobby, dressing rooms, plaza, etc., as designated for such use in advance by the City). For naming rights donors, the name of the area or facility to which naming rights are granted to the Sponsor("named area") shall thereafter bear the Sponsors name and/or logo (e.g., "The John Doe Company Theatre"). The City shall have sole discretion to approve the name and/or logo to be used, and to determine what areas and facilities are eligible to be named. Such determination shall take into account the minimum level of qualifying donation for each area. Prior to the latest date by which Sponsor must make an initial payment of the donation, the City and Sponsor shall meet and confer in good faith in order to agree on the area to be named/presented. In the event the City and Sponsor cannot agree on an area to be named, then either party may terminate this Agreement as provided in Section 8, below, or they may continue to negotiate in good faith and the payment date shall be extended until an agreement is reached. (b) To the extent permitted by law, naming/presenting and signage rights shall endure in perpetuity, subject only to an unforeseen need of the City to engage in repair, construction or relocation of its facilities and/or other property bearing such signage. In such event, the City will utilize its best efforts to provide an alternative location for signage satisfactory to the Sponsor. The City will take all necessary steps to advise all local governments and agencies of the change of name, and to ensure that the Sponsors name is reflected in the new name of the named area in publications, directional signs, directories, websites, maps and collateral material, as determined by City. Sponsor agrees and understands that the City will not be able to immediately complete all name changes in all mediums. However, the City will begin the process immediately and will complete all signage installation, name changes and updates within twelve (12) months of the Effective Date hereof, unless otherwise agreed upon. Thereafter, the City shall maintain all signage in good condition, normal wear and tear excepted. In the event your sign is damaged beyond repair or stolen, then City shall replace the sign at its expense. Any sign damaged through negligence of the City shall be replaced at City's expense. 3. Landmark Signage. Landmark signage indicating the Sponsors name and the named/presented area or public facility theatre, lobby, etc.") name shall be sized and located as set forth in Attachment"A" hereto which attachment is hereby incorporated by reference. In the event that Sponsor changes its name or corporate logo, City agrees to cooperate in good faith to implement the updating of such signage, at Sponsors expense, and subject to the obligation to meet and confer. 4. Trademarks. City acknowledges that all rights to the trademark, service mark and trade name, together with any associated logos or designs belong to Sponsor, to the extent permitted by law, and that City is acquiring no rights to any of the Sponsors trademarks, service marks, trade names or other intellectual property rights as a result of entering into this Agreement. 5. Term. The term of this Agreement shall begin on the Effective Date and continue in perpetuity until terminated. 6. Sponsors Donation. Over a maximum of a four(4) year term commencing on the Effective Date, Sponsor shall irrevocably donate a total amount not less than $100,000.00 to the Foundation for the benefit of the "Promoting Arts and Literacy" (PAL) campaign. Subject to Sponsors right to make full payment prior to the end of the four year term, Sponsor agrees to the following payment structure: (a) It is noted that Sponsor to date has made payments totaling $62,500 towards their$100,000 pledge. (b) Thereafter, the following monies will be irrevocably paid to Foundation for the PAL Campaign over a period not to exceed three (3) years as follows: At least$12,500.00 on or before March 1, 2007 At least$12,500.00 on or before March 1, 2008 At least$12,500.00 on or before March 1, 2009 The City or Foundation shall invoice Sponsor for the foregoing amount at least thirty (30) days prior to the due date for pledge payment provided, however, that a failure to provide such invoice shall not affect the Sponsors obligation to pay. The City and Foundation jointly reserve the right to require any of the required payments to be made directly to the Foundation if determined to be in the best interest of the City and Foundation. 7. Expenses. Except as otherwise provided herein, the Foundation shall bear all of its own costs and expenses arising out of its performance or obligations under this Agreement, and shall bear all costs and expenses incurred by the City for installing, maintaining, and/or operating landmark signage bearing the Sponsors name and/or logo. 8. Warranties and Representations (a) By City. As an inducement to Sponsor to enter into and consummate this Agreement, City represents, warrants and covenants as follows: (i) No Conflict. The entering and performance of this Agreement by the City does not and will not violate, conflict with or result in a material default under another contract, agreement, decree, judgment, undertaking, conveyance, lien or encumbrance to which the City is a party or by which it or any of its property is or may become subject or bound. Except as otherwise required by law, the City will not grant any rights under any future agreement, nor will it permit or suffer any lien, obligation or encumbrances, or enter into any contract that will conflict with the full enjoyment by Sponsor of its rights under this Agreement or the performance by the City of its obligations under this Agreement. (ii) Right to Make Full Grant. The City has and shall have all requisite ownership, rights and licenses to perform its obligations under this Agreement fully as contemplated hereby and to grant to Sponsor all rights purported to be granted hereunder, free and clear of any and all agreements, liens, adverse claims, encumbrances and interests of any person or party. (iii) Misuse of Sponsor Name or Logo. The City will cooperate with Sponsor to ensure that the integrity of the Sponsor name and logo is not compromised and that they are properly utilized in publication, signage, and other sources with which the City is involved. (b) By Sponsor. As an inducement to the City and Foundation entering into and consummating this Agreement, Sponsor represents, warrants and covenants as follows: (i) Organization and Enforceability. If the Sponsor is a corporation, then Sponsor represents that it is duly organized, validly existing and in good standing in the State of California. The execution and delivery of this Agreement by Sponsor and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Sponsor and its officers. This Agreement constitutes a valid and binding obligation of Sponsor that is enforceable in accordance with its terms. (ii) No Conflict. The entering into and performance of this Agreement by Sponsor does not and will not violate, conflict with or result in a material default under any other contract, agreement, decree, judgment, undertaking, conveyance, lien or encumbrance to which Sponsor is a party or by which it or any of its property is or may become subject or bound. (iii) Ownership of Name. Sponsor warrants that it has sole proprietary right to use of the name and any logos or commercial marks to be used in connection with this Agreement. Notwithstanding the foregoing, the Sponsor agrees to indemnify, defend and hold the City, its elected officials, officers and employees harmless, as to any damages, judgments or liabilities arising out of any claim alleging that the City has infringed any proprietary or intellectual property right in connection with its naming any area or facility or installing any signage incorporating any of Sponsors names, logos or marks, in connection with this Agreement. 8. Termination. (a) In the event of a breach or failure by one party to meet the obligations set forth in this Agreement, the parties agree to take the following steps: (1)the complaining party must provide written notice specifying the breach or violation; (2) if the receiving party fails to cure the breach or violation within thirty (30) days following service of written notice by the complaining party, the parties specifically agree that their principals will meet in person within thirty (30) days thereafter to discuss methods of resolution. If the parties are unable to resolve the dispute during their meeting, the complaining party shall issue a notice of termination. Thirty (30) days following the issuance of the notice of termination, the parties may exercise their right to seek relief through arbitration or litigation and any and all Sponsor signage shall be removed and destroyed, and the City shall use its best efforts to promptly cause the Sponsors name to be removed from all documents, publications, websites and/or any other materials that include Sponsors name and/or logo as a result of this Agreement. (b) In addition to the rights afforded subsection (a), Sponsor may terminate this Agreement at any time for any or no reason by providing not less than thirty (30) days prior written notice to the City and Foundation, in which case, any and all Sponsor signage shall be removed and destroyed, and the City shall use its best efforts to promptly cause the Sponsors name to be removed from all documents, publications, websites and/or any other materials which include Sponsors name and/or logo as a result of this Agreement. If Sponsor terminates this Agreement under this subsection prior to making all payments as required herein, as a result of Sponsors reasonable and good faith determination, set forth in writing and provided to the City, that the named area and/or the operational management thereof has, in some specific way, become detrimental to Sponsor's interests, then Sponsor will no longer be obligated to make any remaining donation payments as required by Section 6(b) herein. Under no circumstances shall Sponsor be entitled to receive a full or partial refund of any payments made. However, at Sponsors request, the City will take all other remedial steps required by this Section. (c) Notwithstanding any other provision of this Agreement, the City shall have discretion to terminate this Agreement, without obligation, as to any corporate or other business Sponsor, and remove all signs naming Sponsor from any City area or facility, should Sponsor cease doing business for any reason or be convicted of a crime. 9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. It is further understood and agreed that it is the parties' intent and desire that all obligations of exclusivity, granted to Sponsor and Sponsors signage rights in perpetuity which are binding on City hereunder, shall also be binding upon any persons and/or entities controlling, controlled by or under common control by the City, and the City agrees to take no action for the purpose of avoiding any such obligation. Notwithstanding the foregoing, nothing herein shall be deemed to create or convey to Sponsor any ownership or possessory interest in any property of the City or Foundation. 10. Notices. All notices hereunder shall be in writing and shall be effective upon delivery. Notices may be sent by registered or certified mail, or by overnight delivery service providing confirmation of receipt. The parties hereto shall notify each other of any change in their addresses for notice. Unless notice is given to the contrary, all notices to Sponsor shall be sent to: With Copy to: Mr. Stephen Wagner, Executive Director Mark Christopher Charity Classic 9559 Center Avenue, Suite I Rancho Cucamonga, CA 91730 Unless notice is given to the contrary, all notices to the City/Foundation shall be sent to: Paula Pachon, PAL Campaign Coordinator City of Rancho Cucamonga 10500 Civic Center Drive— P.O. Box 807 Rancho Cucamonga, CA 91729 11. Execution of Further Documents. The parties agree to cooperate in good faith to execute any other document reasonably required to further the purpose of the Agreement. 12. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and understandings, oral or written. This Agreement may be modified only by an instrument in writing duly executed by both parties. 13. Assignment. Sponsor may not assign any of its rights hereunder with the City's prior written consent which shall not be unreasonably withheld if such assignment is to a subsidiary, successor in interest or other entity directly or indirectly controlling, controlled by or under common control of the Sponsor. 14. Attorneys Fees. The prevailing party in any action brought for breach or to enforce any provision of this Agreement shall be entitled to receive its reasonable attorneys fee, costs of experts and all other costs of suit. 15. Force Majeure. Neither party will incur any liability to the other party on account of loss or damage resulting from delay or failure to perform all or any part of this Agreement to the extent that such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes shall include without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions. 16. Venue and Governing Law. The provisions of this Agreement shall be governed by the laws of the State of California. Venue for any litigation arising out of or connected with this Agreement shall be the Superior Court of the County of San Bernardino, California. 17. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. IN W ESS THEREOF, the parties hereto have executed this Agreement as of the date first s t f rth above. SPONSO By: '? By: Name: Nam :/ 7k_ Title: /" Title. V,ko- -/rmaci (two officers' signatures required if corporation) CITY FOUNDATION (!/,�}} By: a By: -�„ 2�/� Name: VS ..cs �r Name: Title: CIDtr.M Title: