ECC Board of Trustees

Transcription

1 ECC Board of Trustees Executive Summary Date: June 13, 2014 Subcommittee: Other Agenda Item: Naming Rights for Athletic Facilities This item is for: For Board's Approval Backup Documentation: Attached to this document Background Information: The ECC College Board of Trustees approved a resolution January 30, 2014 that authorized the ECC Foundation to negotiate a 10-year agreement for naming rights in the amount of $300,000 providing the donor with naming rights for the Football and Track Stadium at South Campus, Natatorium at the Flickinger Center at City Campus and the Athletic Fields at North Campus between Tech Drive and Youngs Road. Reasons for Recommendation: It is a leadership philanthropic gift that provides a framework for future giving. It further enhances a great partnership with an ECC alum and community leader. It provides an outstanding opportunity for ECC to positively brand its athletics and tie athletics into the college s recruitment and retention strategies. Fiscal Implications: Approval will ensure a $300,000 philanthropic gift for the new academic building at the North Campus. Consequences of Negative Action: The new academic building planned for the North Campus will not receive much-needed philanthropic support and future fundraising efforts will be severely compromised. Steps Following Approval: The ECC Foundation will continue to work with ECC s Buildings & Grounds department, the donor and the sign company to produce and erect the agreed upon signage. This agreement is subject to approval by the Executive Vice President for Legal Affairs. Contact Information If Any Questions: Jeffrey Bagel, CFRE, AVP for Foundation and Alumni Relations at

2 Final Draft NAMING RIGHTS AGREEMENT This NAMING RIGHTS AGREEMENT (the Agreement ) is made as of, 2014, by and between Erie Community College Foundation Inc.( ECCF ), Erie Community College ( ECC ) and West Herr Automotive Group, Inc., a corporation with offices at 3448 McKinley Parkway, Blasdell, New York ( West Herr ) (collectively, the Parties ). In consideration of their mutual promises, the Parties agree as follows: RECITALS WHEREAS, ECC operates three campuses; the South Campus located in Orchard Park, New York, the City Campus located in Buffalo, New York and the North Campus located in Amherst, New York; and WHEREAS, ECC has granted the Erie Community College Foundation (ECCF) the right to negotiate for and obtain a philanthropic gift for naming rights for ECC s athletic facilities, and WHEREAS, upon the Effective Date (defined below) of this Agreement, West Herr has committed to a philanthropic gift of $300,000 to ECCF payable over five years at $60,000 per year beginning in 2014, and by each anniversary date of the effective date of this agreement thereafter, to the Erie Community College Foundation for construction of a new academic building on the North Campus; and WHEREAS, the parties desire to enter into this Agreement to grant West Herr exclusive naming rights for ECC s (i) football stadium/track field at the South Campus; (ii) the natatorium at the Flickinger Center on the City Campus and (iii) the athletic fields on the North Campus (collectively, the Athletic Facilities ); and WHEREAS, upon the Effective Date of this Agreement, Scott Bieler, a principal of West Herr, has committed to make a philanthropic gift to ECCF for the entire cost to purchase and install the Naming Rights Signs described herein (see attachment A); NOW, THEREFORE, in consideration of these Recitals, hereby incorporated into this Agreement, the following mutual promises, and all other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree as follows: AGREEMENT 1. NAMING RIGHTS AND ANCILLARY BENEFITS. A. Venue Name. During the Term of this Agreement, ECC has agreed to be bound and has granted permission to the ECCF to grant exclusive licensing to West Herr to name the Athletic Facilities pursuant to the terms hereunder (the Naming Rights ). As of the Effective Date, the official name of the Athletic Facilities will be as follows: (i) the football stadium/track field at the South Campus shall be West Herr Stadium ; (ii) the natatorium at the Flickinger Center on the City Campus shall be West Herr Natatorium and (iii) the athletic fields on the North Campus shall be West Herr Athletic Field (the Names ), unless amended or changed in accordance with this Agreement. B. Signage and Exposure. In connection with the Naming Rights granted to West Herr hereunder, West Herr will be entitled to have signage at the Athletic Facilities at the locations and in the form and size described on Exhibit 1 attached hereto (the Naming Rights Signs, the West Herr logo and Names are referred to as the Venue Marks ). No change will be made to the size, location or graphics of Page 1 of 8

3 Final Draft the Naming Rights Signs without the mutual agreement and approval of ECCF, ECC and West Herr and at no time during the Term (defined below) shall the signs be altered, covered, blocked or removed. The Naming Rights Signs will be completed and installed no later than September 30, ECC shall at its cost cause all directional roadway and public signs on its campuses to be changed to reflect the new Names of the Athletic Facilities. C. Branding and Collateral Materials. ECC and ECCF at its cost and as soon as reasonably practical, will cause the Names and Venue Marks to be incorporated and used in the printed, website, internet and digital business, marketing, promotional and press materials owned or controlled by ECC, including, without limitation, letterhead, game and event tickets, directories, team, employee and staff credentials, building and security passes, and other forms of identification, as applicable (the Branding and Collateral Materials ). West Herr will provide ECC with acceptable logos or proposed images that can be used on these items. to the Athletic Facilities to include the Names and/or Venue Marks, as applicable. D. Publicity and Promotion. ECC will make commercially reasonable efforts during the Term to: (i) identify the Athletic Facilities by the Name and Venue Marks, as applicable, in all written and oral references to the Athletic Facilities and with respect to any game or event scheduled to take place at the Athletic Facilities, including, without limitation, all official documents, press releases and other public announcements and (ii) to cause the media, broadcasters, and other third parties, including, without limitation, news outlets, web, radio and television broadcasters of the games and/or events, sports teams, service providers, advertisers, promoters and sponsors, to identify the Athletic Facilities by the Names and Venue Marks, as applicable; provided that any failure of such third parties to refer to the Athletic Facilities by the Names and/or Venue Marks will not be considered a breach of this Agreement. The Parties will cooperate in jointly planning a mutually agreeable and mutually executed public relations campaign to announce the Names, Naming Rights and Venue Marks at the time of the Effective Date, or at a mutually agreed upon reasonable time thereafter. E. Exclusivity. In addition to the Naming Rights granted hereunder, ECC agrees (i) not to offer, grant, or sell the right to name any other portion of the Athletic Facilities referred to in paragraph 1(A) of this agreement to any third party; (ii) not to have any sign, advertisement or sponsor promotion at the Athletic Facilities by or for any person or entity engaged in the sales and service of new and used vehicles; (iii) not to have any sign, advertisement or sponsor promotion at the Athletic Facilities whose sign is equal to or larger than the Naming Rights Signs of West Herr at the Athletic Facility; provided, however, it shall not be a breach of this Agreement if a third party using the Athletic Facilities uses a temporary sign contrary to any of the foregoing, so long as the temporary sign does not cover or block any Naming Rights Signs. 2. TERM. The term of this Naming Rights Agreement will begin on July 1, 2014 (the Effective Date ) after the parties have obtained all necessary permits, licenses and/or approvals for this Agreement and the rights and obligations granted herein, and continue through December 31, 2024 (the Expiration Date ), unless extended or terminated in accordance with the terms hereof (the Term ). If West Herr is not in default of this Agreement, then West Herr will have the first option to extend the term of this Agreement (the Option ) for an additional ten (10) year period through (the Extension Term ) on payment of a naming rights fee of $350,000, payable at $35,000/year over 10 years. West Herr will provide ECCF and ECC with written notice of its Option by June 30, 2024 ( Option Expiration Date ). In the event West Herr does timely not exercise its Option to extend the Term hereof, and if ECCF, after the Option Expiration Date, intends to solicit and receive third-party offers for the purchase of the naming rights for one or more of the Athletic Facilities, West Herr shall have the exclusive first right to negotiate in good faith with ECCF for such naming rights following the Expiration Date (the Right of First Negotiation ), and in which case ECCF will provide West Herr with written notice of West Herr s Right of First Negotiation which it shall have for a period of sixty (60) days from the date of notice (the Negotiating Period ). In the event the Parties do not reach an agreement for the naming rights during the Negotiating Period, ECCF will be thereafter free to solicit, receive and negotiate third-party offers regarding the purchase of the naming rights for the Athletic Facilities. 3. COSTS AND MAINTENANCE. ECCF will use the funds received by a separate gift from Scott Bieler for paying the costs and expenses associated with the initial preparation, production, mounting and/or installation of all Naming Rights Signs provided hereunder (the Initial Signage Costs ) and ECC shall be Page 2 of 8

4 Final Draft responsible for causing the installation of the Naming Rights Signs. Following the initial preparation, production, mounting and installation, ECC will be responsible for providing necessary power to any Naming Rights Signs and paying the costs and expenses associated with and the routine and preventative repair and maintenance of all Naming Rights Signs. Notwithstanding the foregoing, West Herr agrees to pay for the cost and expense specifically attributable to costs that are above and beyond the cost that otherwise would be borne by ECC under this provision for routine and preventive repair and maintenance. ECC shall notify West Herr in writing of any repairs required to the Naming Rights Signs of which ECC becomes aware and which would be the expense of West Herr. ECC will be responsible for obtaining, at its sole cost and expense, any and all licenses and permits required in connection with providing the Naming Rights Signs under this Agreement. In the event West Herr or its successor or assignee changes or causes the change of the Name and/or Venue Marks, West Herr, or its successor or assignee, as the case may be, shall to pay, or cause its successor or assignee to pay, all costs and expenses associated therewith, including, without limitation, the cost and expense of: (i) removing, destroying and/or discarding signage reflecting the prior Venue Marks, (ii) preparing, producing, replacing, mounting and/or installing new or altered signage to reflect the name change, (iii) removing, destroying and/or discarding merchandise, equipment or other collateral materials related to the Athletic Facilities branding, promotion and publicity displaying the prior Venue Marks, and (iv) preparing, producing, replacing and/or distributing merchandise, equipment or other collateral materials related to the Athletic Facilities branding, promotion and publicity reflecting the name change. 4. INTELLECTUAL PROPERTY AND OWNERSHIP. A. Venue Marks. The Parties agree that West Herr shall own all right, title and interest in the Venue Marks, including, without limitation, the trademarks and copyrights associated therewith. West Herr hereby grants to ECC and ECCF a limited, non exclusive, royalty free, personal, non-transferable license (with right to sublicense as permitted herein) only to use the Venue Marks, as depicted in Exhibit 1 attached solely for purposes related to performance under this Agreement and subject to West Herr approval. West Herr reserves all rights in the Venue Marks and ECC and ECCF shall have no rights in the Venue Marks other than those expressly granted hereunder. In the event either ECC, ECCF or West Herr becomes aware of any unauthorized use of the Venue Marks, they agree to promptly notify each other of such unauthorized use of the Venue Marks of which the notifying party has actual knowledge and they agree to cooperate in making commercially reasonable efforts to prevent and/or correct any unauthorized use of the Venue Marks. West Herr shall have sole discretion to approve or disapprove of any use of the Venue Marks. B. Independent Marks. Except as to the Venue Marks or as expressly provided in this Agreement, West Herr and ECC and ECCF will retain all ownership, right and title in their respective trademarks, service marks, trade names, insignia, symbols, logos, decorative designs or the like (collectively, the Independent Marks, and individually, a Mark ), and neither party shall use any Mark which is owned by, or licensed or sublicensed to, the other party without the other party s prior written consent. Each party agrees that any use of the other party s Marks under this Agreement will inure to the benefit of and be on behalf of the owning party and will terminate upon the expiration or prior termination of this Agreement. Except as expressly provided herein, the Parties will not have any rights or interest in the other party s Independent Marks without prior written consent 5. REPRESENTATIONS AND WARRANTIES. ECCF, ECC and West Herr represent and warrant to each other each that it has the full right and authority to enter into and fully perform this Agreement in accordance with its terms and that this Agreement has been duly authorized and executed and is a valid and binding obligation in all respects. 6. INDEMNIFICATION AND LIMITATION OF LIABILITY A. West Herr Indemnification. West Herr hereby agrees to indemnify, defend and hold harmless ECC, ECCF, its subsidiaries and affiliates, and their respective members, directors, officers, Page 3 of 8

5 Final Draft servants, agents and employees (the ECC/ECCF lndemnitees ) from and against any and all liabilities, obligations, losses, damages, penalties, actions, suits and proceedings, including legal expenses and reasonable attorneys fees (the Demand(s) ), of any kind and nature, imposed on, incurred by or asserted against the ECC/ECCF lndemnitees arising directly out of or in connection with (i) the negligence of the West Herr Indemnitees, as defined below; (ii) West Herr s performance of this Agreement or the services provided hereunder, (iii) the content of any materials provided by West Herr and displayed and/or exhibited hereunder or (iv) West Herr s breach of any covenant or warranty contained herein; but excluding therefrom any liability arising solely from the negligent or willful actions or omissions of the ECC/ECCF lndemnitees. ECC and ECCF agrees that, once ECC/ECCF or any ECC/ECCF lndemnitee seeking indemnification learns of any such Demand, ECC/ECCF will give West Herr prompt, as in no later than 10 business days, written notice of any allegation of infringement and institution of any such suit. ECC will permit West Herr, through competent counsel of its own choosing, to defend any such suit, provided that West Herr will on a regular basis provide ECC/ECCF with full, complete information and updates relating to such suit and will not enter into any settlement or compromise without ECC/ECCF's prior written consent. The obligations of the Parties under this provision will survive the termination or expiration of this Agreement. B. ECC/ECCF Indemnification. ECC/ECCF hereby agrees to indemnify, defend and hold harmless West Herr, its subsidiaries and affiliates, and their respective shareholders, members, directors, officers, servants, agents and employees (collectively, the West Herr lndemnitees ), from and against any and all liabilities, obligations, losses, damages, penalties, actions, suits and proceedings, including legal expenses and reasonable attorneys fees (the Demand(s) ), of any kind and nature, imposed on, incurred by or asserted against the West Herr lndemnitees arising directly out of or in connection with (i) the negligence of the ECC/ECCF lndemnitees, (ii) ECC/ECCF s performance under this Agreement or the services provided hereunder, (iii) ECC/ECCF s s breach of any covenant or warranty contained herein; but excluding therefrom any liability arising solely from the negligent or willful actions or omissions of the West Herr lndemnitees. West Herr agrees that, once West Herr or any West Herr lndemnitee seeking indemnification learns of any such Demand, West Herr will give ECC/ECCF prompt, as in no later than 10 business days, written notice of any allegation of infringement and institution of any such suit. West Herr will permit ECC/ECCF, through competent counsel of its own choosing, to defend any such suit, provided that ECC/ECCF will on a regular basis provide West Herr with full, complete information and updates relating to such suit and will not enter into any settlement or compromise without West Herr s prior written consent. The obligations of the Parties under this provision will survive the termination or expiration of this Agreement. C. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL THE PARTIES BE LIABLE TO ONE ANOTHER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY LOSS, DAMAGE, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF GOOD WILL, LOSS OF BUSINESS PROFITS (EXCEPT IN THE CASE OF ANY UNAUTHORIZED USE OF ANY TRADEMARKS), COMPUTER FAILURE OR MALFUNCTION, DATA LOSS, OR LOST PROFITS AND OPPORTUNITY COSTS. THE FOREGOING LIMITATION WILL NOT APPLY TO DAMAGES AWARDED WITH RESPECT TO THIRD PARTY CLAIMS FOR WHICH THE PARTIES HAVE AN OBLIGATION TO INDEMNIFY UNDER THE AGREEMENT. D. Insurance. During the Term of this Agreement, West Herr and ECCF each agrees to maintain at its own expense commercial general liability and commercial automobile liability insurance with limits of $2,000,000 per occurrence and in the aggregate for each policy, along with an umbrella policy of not less than $5,000,000. Upon written request from any party, each party agrees to furnish to the requesting party a Certificate of Insurance evidencing such coverage. Both parties agree to endeavor to each other thirty (30) days prior written notice in event of or cancellation of policies require herein. 7. DEFAULT AND TERMINATION. A. Default. The occurrence of any one or more of the following events or actions will constitute a breach of this Agreement (the Default ) by the acting or relevant party (the Defaulting Party ). Page 4 of 8

6 Final Draft i. Cease Operations. Either Party ceases all or substantially all of its operations (except as provided in Section 8.H., below); ii. Bankruptcy or Insolvency. Either Party files, or has filed against it, a petition or other request for relief under federal or state bankruptcy or insolvency laws which is not discharged, dismissed or withdrawn within sixty (60) days of filing; or applying for or consenting to the appointment of a receiver for all or a substantial portion of its assets; iii. Misrepresentation. The making of any representation or warranty by any party in this Agreement that it knows or should have known was materially false as of the Effective Date. iv. Other Material Breach. The breach of any other material covenant, agreement, representation or warranty made under this Agreement, if such breach has not been waived in writing and has not been cured by breaching party within thirty (30) days following receipt of written notice specifying the nature of such breach, or, as agreed by the Parties, is not capable of being cured within such thirty (30) day period. v. Other Conduct Giving Rise to Termination. Either party engaging in any conduct or action that will cause material injury to the other party s image, reputation or ability to carry on its purpose. B. Right to Terminate. In the event of a Default as set forth herein, the parties not in Default (the Non-Defaulting Party ) will have the right to terminate this Agreement upon written notice to the Defaulting Party. Upon termination of this Agreement in accordance with this provision, the Parties agree that in addition to all other rights and remedies (subject to the limitations herein), the Parties will immediately cease to use or display the Venue Marks, and the Defaulting Party will be liable to the Non-Defaulting Party for the payment of all costs and expenses incurred by the Non Defaulting Party in removing, destroying, discarding and/or replacing all signs, materials or other uses of the Venue Marks under this Agreement. Unless otherwise provided in this Agreement, if performance under this Agreement is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the Parties, including but not limited to, fire, flood, epidemic, earthquake, explosion, act of God or public enemy, riot or civil disturbance, strike, labor dispute, war, terrorist threat or activity, any government law, order, or regulation, or order of any court or jurisdiction (a Force Majeure ), the restricted party will not be in breach hereof and the performance or obligation of such party will be excused for a period of time equal to the period during which the Force Majeure prevents such performance. In such event, the Parties will make reasonable efforts to determine sufficient action allowing the restricted Party to satisfy its obligations hereunder. The financial condition, default, breach, or intentional or negligent act or omission of this Agreement by the Party seeking excuse from performance will not constitute a Force Majeure. If a Force Majeure results in the damage or destruction of or the inability to use any of the Athletic Facilities to the extent that events and games must be cancelled or rescheduled, and repair, reconstruction or reopening of an Athletic Facility will take longer than thirty (30) days, the parties will in good faith agree to an appropriate extension of this Agreement without cost or charge to West Herr. 8. GENERAL TERMS. A. Relationship of the Parties. The Parties are independent contractors and nothing contained herein will be interpreted, construed or applied in practice, in any way, as creating or establishing a partnership, agency, joint venture or employment relationship among the Parties. Each party is solely responsible for the payment of all state, federal and local taxes and complying with all laws, regulations and/or requirements related to its business, and each party reserves the sole and exclusive right and authority to handle, decide, supervise, manage and control the financial and other policies related to its business and purpose. B. Jurisdiction and Venue. In addition, the parties hereby agree that jurisdiction and venue for any cause of action arising out of this Agreement shall be in the County of Erie in New York State Supreme Court, Erie County. This Agreement shall be governed by the laws of the State of New York. Page 5 of 8

7 Final Draft C. Notices. Any notice, request, approval or consent under this Agreement will be sufficiently given if in writing and delivered in person, mailed (certified or first class), or by overnight carrier to the address set forth herein, or to such other address as the recipient may furnish in writing to the sender. Notice will be deemed effective upon the earlier of actual delivery or five (5) days following mailing. D. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement will be binding or valid unless in writing and executed by all Parties. No failure to enforce any provision of this Agreement will be construed as a waiver or thereafter prevent any party from enforcing the same or any other provision of this Agreement. E. Equal Bargaining Power. 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, there will be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. F. Severability. If any portion of this Agreement is judged to be illegal, invalid or unenforceable, such portion will be given effect to the maximum extent possible by narrowing, or enforcing in part, such portion to the minimum extent necessary to make it enforceable. Any such invalidity or unenforceability will not in any way affect the validity or enforceability of the remainder of this Agreement which will continue in full force and effect. G. Captions. The captions used in this Agreement are for convenience only and will not define, limit, or otherwise be used in the construction of this Agreement. H. Assignment. It is acknowledged that the decision of a donor to donate for naming rights and the decision to accept a donation in exchange for naming rights are decisions highly dependent upon a number of factors, including, but not limited to, donor intent, donor reputation, relationship between the parties and in the community and other factors. Accordingly, the Parties shall not assign or otherwise transfer any of their respective rights and obligations under this Agreement without the prior written consent of the other parties; provided, however, that the Parties shall not be required to provide such consent unless and until the assignee or transferee shall agree in writing to be bound by each and every term, covenant and obligation of the assigning party hereunder. I. Counterparts. This Agreement may be executed in one or more.counterparts, all of which will be considered one and the same agreement, and will be binding when one or more counterparts have been signed by each of the Parties and delivered, either manually or electronically, to the other party, it being understood that all Parties need not sign the same counterpart. J. Entire Understanding. This Agreement, including all Exhibits referred to herein, constitutes the entire understanding between the Parties and supersedes all prior or contemporaneous negotiations, discussions, understandings and agreements, whether written or oral. K. Executory Clause. This agreement shall be deemed executory only to the extent of the monies appropriated and available for the purpose of the Agreement and no liability on account thereof shall be incurred by Erie Community College or the County of Erie beyond the amount of such monies Page 6 of 8

8 Final Draft IN WITNESS WHEREOF, the parties execute this Agreement as of the first date written below. Erie Community College Foundation Inc. BY: Mark L. Martin, Chairman of the Board West Herr Automotive Group Inc. BY: Scott Bieler, President Date Date Erie Community College BY: Jack Quinn, President Date: Approved as to Content: BY: Jeffrey Bagel, Associate Vice President of Foundation and Alumni Relations Date: Approved as to form: BY: Kristin Klein Wheaton, Esq., Executive Vice President for Legal Affairs Date: BOT Approval Date: Document Number: Page 7 of 8

9 Final Draft EXHIBIT 1 Location, size and design of all Naming Rights Signs and Venue Marks Page 8 of 8

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11 QUOTE 3180 GENESEE STREET, BUFFALO, NEW YORK Erie Community College 121 Ellicott Street Buffalo, NY Date: 4/21/14 Quantity Description AMOUNT Furnish and install the following signage: (A) Single face 5 x8 poly metal sign $ (B) Souble face V-shaped illuminated ground sign with LED full color message sign $31, (C) Single face poly metal/aluminum sign for back side Of press box $6, (D) Single face poly metal/aluminum sign for front side Score board $3, (E) Single face poly metal/aluminum sign for back side Scoreboard $8, (F) Single face poly metal/aluminum sign for pool side $4, (G) Single face poly metal/aluminum sign for pool side $2, (H)&(I) Double face poly metal/aluminum sign for Natatorium $2, *Tax Exempt certificate needed from customer *Electrical primary to be installed by customer for LED pylon *A monthly phone charge to the customer from the customer s service provider may be billed if communication to the LED sign is from a remote location. *Delivery is approx (8) weeks TERMS: DEPOSIT: 1/2 BALANCE: NET 10 DAYS I, the undersigned, hereby agree that in the event of default in the payment of any amount due, and if this account is placed in the hands of an agency or attorney for collection or legal action, to pay an additional charge equal to the cost of collection including agency and attorney fees and costs incurred and permitted by laws governing these transactions. Purchaser s Signature Date ALL QUOTATIONS SUBJECT TO REVISION AFTER 30 DAYS SUBTOTAL $61, TAX PERMIT FEE TOTAL DEPOSIT BALANCE DUE Exempt SILK SCREEN PROCESSING- TRUCK & TRAILOR LETTERING- NEON-PLASTIC ILLUMINATED SIGNS- PLASTIC WOOD-METAL LETTERS

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