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HomeMy WebLinkAboutResolution - 2003-R0132 - Naming Agreement With Alon USA, L.P - 03_27_2003Resolution No. 2003-R0132 March 27, 2003 Item No. 39 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement with Alon USA, L.P., entitled "Crossroads in Time Sculpture Garden Naming Agreement" and all related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 27th day of March UGAL. MAYOR ATTEST: J Rebecca Garza, City Secretary APPROVED AS T CO TE T: C4� Corbin Pemberton, Community rojects Manager APPROVED AS TO FORM: _�tiM1 -�\ j.,.�� ��� ! ..�.... J i'sZ�--Y•'1 +tom/i1'��............ Linda L. Chamales, Supervising Attorney Office Practice Section City att / Linda / Res - Alon USA Resolution No. 2003-RO132 March 27, 2003 Item No. 39 CROSSROADS IN TIME SCULPTURE GARDEN NAMING AGREEMENT CROSSROADS IN TIME SCULTURE GARDEN NAMING AGREEMENT effective as of this 27th day of March , 2003, by and between the City of Lubbock, a corporate body politic of the State of Texas (the "City") and Alon USA, LP, a Texas limited partnership ("Naming Sponsor"). WHEREAS, the City Council of the City of Lubbock was authorized in a Capital Improvements Bond Election, September 18, i999, by the citizens of Lubbock to issue general obligation bonds of the City in the principal amount of $14,765,000 for permanent public improvements and public purposes to acquire or improve, or both land for park purposes; and WHEREAS, one of the proposed public improvement projects for the park presented to the voters at that time was the development of an amphitheatre in Mackenzie Park; and WHEREAS, the Millennium Advisory Committee, created by the City Council of the City of Lubbock December 9, 1999, was tasked with recommending ways in which the new amphitheater could become a world class, multi -dimensional facility that meets the needs of numerous user groups and celebrates the new millennium by reflecting the art, architecture, heritage, and history of Lubbock and the Llano Estacado; and WHEREAS, the Committee, choosing "Crossroads in Time" as its theme and working with a local architecture firm and a local artist to develop a concept, secured funding for and recommended as a project a unique Sculpture Garden that will reflect Lubbock's rich history and heritage; and WHEREAS, the Sculpture Garden is scheduled to be installed in November 2003, and City desires to grant the Naming Rights for this project described herein to Naming Sponsor, and Naming Sponsor desires to acquire the Naming Rights from City, all as hereinafter described in more detail, and for the consideration set forth herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound, the parties agree as follows: i. Definitions. The following capitalized terms will have the meaning indicated: "City" means the City of Lubbock, Texas "Naming Rights" means the rights granted by City to Naming Sponsor hereunder with respect to the naming of the sculpture garden, as described in Section 6. "Naming Sponsor" means Alon USA, LP. "Naming Sponsor Fee" means the amount which Naming Sponsor has agreed to pay for the Naming Rights, as set forth in Section 3. "Sculpture Garden Name" means "FINA / ALON USA Crossroads in Time Sculpture Garden". 2. Term This agreement shall, unless sooner terminated in accordance with the provisions set forth elsewhere in this Agreement, be effective on the date hereof and shall continue for a period of thirty (30) years or so long as the City continues to operate the Sculpture Garden, whichever is less. 3. Naming Sponsor Responsibilities Naming Sponsor agrees to acquire the Naming Rights granted hereunder for the period from the date hereof until the City no longer operates the outdoor Amphitheatre and Sculpture Garden in Mackenzie Park. In consideration for such rights, Naming Sponsor agrees to pay to City for construction costs of the Amphitheatre and for sponsorship of the fundraiser gala referenced in item (b) below, One Hundred Fifty Thousand Dollars ($150,000.00) per the following schedule: (a) Fifty thousand dollars ($50,000.00) to be paid upon the official opening of the sculpture garden which is anticipated to be November, 2003; (b) Fifty thousand dollars ($50,000.00) paid by January 15, 2004, after a fundraiser gala (described in the attached Exhibit 1) to be held prior to January 1, 2004; and (c) Fifty thousand dollars ($50,000.00) to be paid upon the official opening of the amphitheater. 4. City Responsibilities (a) City will install a sculpture garden, substantially in accordance with the design attached as Exhibit 2, at the site of the historic County Precinct Building on East Broadway, which is the entrance to the soon to be constructed outdoor amphitheatre in Mackinzie Park; (b) City will provide support services for the fundraiser gala described in Exhibit 1; support services, promotions, products and collateral materials for the grand opening event for the sculpture garden; and Naming Sponsor name recognition status at the opening of the amphitheater; PAGE 2of12 (c) City will operate the Sculpture Garden in good working order and in a clean, sanitary and safe condition in accordance with all applicable laws, ordinances and regulations; (d) As funding is available, City will continue to develop Mackenzie Park with the Centennial Project that will graphically interpret Lubbock's rich history and heritage, including working toward locating the 4th U.S. Cavalry Regiment Memorial re-enactment group at the Outdoor Center and the locating of an Agricultural Heritage Museum in Mackenzie Park to prominently display a collection of rare and antique farm implements. 5. Trademarks and Licensing (a) Naming Sponsor warrants that it is a licensed user of the marks "ALON USA" and " FINA" for petroleum products and associated goods and services (the "Designated Products.") Naming Sponsor's marks, business name and logos (the "Marks") are famous, enjoy very substantial and favorable public acceptance, and represent invaluable goodwill to Naming Sponsor. Naming Sponsor shall be the owner of the Sculpture Garden Name and any logo, trademark, service mark, trade name or other identifications of the Sculpture Garden that incorporates any portion of the Marks or Sculpture Garden Name that may be hereafter developed (collectively, the "Sculpture Garden marks"). (b) City acknowledges that Naming Sponsor is the sole owner of the Marks and the Sculpture Garden Marks, and that all goodwill relating to the Marks and the Sculpture Garden Marks shall be and remains the sole and exclusive property of Naming Sponsor. City does not and shall not have any right, title, interest or claim of ownership in the Marks or the Sculpture Garden Marks, except for the license granted to them under this agreement. City agrees to use the Sculpture Garden Marks only in accordance with the terms of this Agreement. City agrees not to use the Sculpture Garden Marks in an altered or modified form, not to misuse the Sculpture Garden Marks, and not to bring the Sculpture Garden Marks into disrepute. (c) Naming Sponsor hereby licenses City to use and authorizes City to sublicense others to use the Sculpture Garden Marks, and to subcontract others to manufacture products incorporating or bearing the Sculpture Garden Marks, and to subcontract others to manufacture products incorporating or bearing the Sculpture Garden Marks, for Sculpture Garden supplies, furniture, and equipment, novelties, souvenirs, publications and other products used in the operation of the Sculpture Garden, the promotion of City, the Amphitheatre, and the Sculpture Garden, such products being of the types listed on Exhibit 3, attached hereto and incorporated as if fully set forth herein, or as may PAGE 3 of 12 be approved from time to time by Naming Sponsor. All of such products may be used, consumed, or given away or may be sold or held for sale. This license shall be a non-exclusive license to City. City shall not be obligated to pay or to cause any sublicense to pay any royalty or other fee to Naming Sponsor with respect to any such use. (d) Naming Sponsor will negotiate with City on the terms of the standards for the use of the Sculpture Garden Marks. Naming Sponsor shall have the right to supplement or change the standards for the use of the Sculpture Garden Marks from time to time upon agreement by City. City agrees that it will use the Sculpture Garden Marks in accordance with the terms of this agreement and such standards. City further agree that in sublicensing the use of the Sculpture Garden Marks it will i). Not sublicense the use of the Sculpture Garden Marks other than in accordance with this agreement; ii) Make reasonable efforts to choose sub licensees who are financially and by experience likely to meet the standards then in effect, to comply with the terms of such sublicense, not to use the marks other than in connection with licensed products and to follow in all material respects any graphics guidelines as to color and display of those marks; and iii) In the event that they become aware that a sub licensee has violated the terms of its sublicense or has violated the rights of Naming Sponsor in the Marks or the Sculpture Garden Marks, notify the sub licensee that it must cease and desist from such violation, and thereafter, if such violation is not terminated, cooperate with Naming Sponsor to obtain compliance; and iv) In the event that Naming Sponsor notifies City that a sub licensee is using a Mark, or the Sculpture Garden Name in a manner that it does not want the Mark or the Sculpture Garden Name to be used, whether or not such use is in accordance with the terms of a sublicense or does not violate the terms of this Agreement, City will make reasonable attempts to obtain the agreement of sub licensee to cease use of the Mark or the Sculpture Garden Name in such a manner. (v) The Naming Sponsor agrees and understands that the City must comply with all federal and state laws in granting a sublicense to a potential sub license. Nothing in this agreement prohibits the City from granting a sublicense in accordance with federal and state law. (vi) Unless otherwise agreed, neither party shall have the right to use in any way the corporate or trade name(s), trademark(s), service PAGE 4 of 12 mark(s), logo(s) or other identifications of the other parry or its affiliates without the other parry's prior written consent. 6. Naming Rights. The City grants to Naming Sponsor, subject to the terms and conditions hereof, the Naming Rights described in this Section. (a) Naming Sponsor shall have the right to designate the name of the Sculpture Garden (the "Sculpture Garden Name"). Naming Sponsor has designated "FINA / ALON USA Crossroads in Time Sculpture Garden" as the Sculpture Garden Name. City shall cause the name of the Sculpture Garden to be so designated and will not employ nicknames or encourage others to employ nicknames or other names for the Sculpture Garden. (b) Naming Sponsor shall have the right, subject to approval by the Zoning Board of Adjustment of the City of Lubbock when required, to have the Sculpture Garden Name and/or the Sculpture Garden Marks on all signage identifying the Sculpture Garden. 7. Future Name Change. (a) Naming Sponsor agrees that it shall have no right to change the Sculpture Garden Name except as provided herein. During the entire term of this A#ftrfient, Naming Sponsor shall have the right to cause the natht of the Sculpture Garden to be changed once in compliance with all the terms of this Section. In order to change the name of the Sculpture Garden, Naming Sponsor shall notify City that it desires to change the name of the Sculpture Garden and disclose the new name. City shall not unreasonably withhold approval of the new name if the following conditions are satisfied: (i) The new name may only be the brand name under which Naming Sponsor, or its successor in interest, actively markets the Designated Products, or a significant portion thereof, then being marketed by Naming Sponsor or its successor in interests. GO The new name cannot be of a nature which would seriously offend the reasonable sensibilities of the public at large, or which would violate Federal, state or local law. (b) In any other circumstances in which the conditions of Section 7(a) are not satisfied, either because the name has already been changed PAGE 5 of 12 once or the name chosen does not satisfy the above criteria, or for any other reason, City will consider requests by the Naming Sponsor to change the name. However, Naming Sponsor acknowledges that the continuity of the name of a facility such as the Sculpture Garden, once it has been established is of primary importance and that consent to change is not likely to be granted. (c) If City consents, it agrees to evidence its consent in writing within forty-five days and promptly submit all necessary requests for the approval of all governmental agencies whose approval is necessary at such time. (d) In the event that Naming Sponsor proposes to change the Sculpture Garden Name, Naming Sponsor agrees that it will be solely responsible for all costs and expenses that may be incurred by City, or of y of its affiliated entities as a result of such change. (e) If the Sculpture Garden Name is changed, the new name shall become the Sculpture Garden Name for all purposes of this Agreement from that day forward, including, without limitation, the licenses granted hereunder to use the Sculpture Garden Name. 8. Termination (a) Upon the termination of this Agreement, the licenses granted under this Agreement shall immediately terminate, and City and its respective sublicenses shall cease to use the Sculpture Garden Marks, including, but not limited to, the making of necessary physical changes to the Sculpture Garden and its components and the discontinuance of the use of promotional materials then on hand. In the event of a termination under paragraph (b) below, City shall have a reasonable time, not to exceed ninety (go) days, in which to comply with the foregoing sentence. During the period prior to termination or expiration of this Agreement, the parties will each comply with all of the requirements of the Agreement. (b) The following shall constitute "Naming Sponsor Defaults." (i) Failure to make payment of the fee required in Paragraph 3 upon execution of this Agreement; (ii) Naming Sponsor fails to comply with any obligation of Naming Sponsor set forth in this Agreement other than the failure to make payment, including any representations and warranties of Naming Sponsor under this Agreement, and such failure shall continue for a period of thirty (3o) days after written notice to Naming Sponsor; or PAGE 6 of 12 (iii) Naming Sponsor makes an assignment for the benefit of creditors, or a trustee, receiver or similar officer of any court is appointed for Naming Sponsor or for a substantial part of its property, whether with or without its consent, or an action for bankruptcy, composition, reorganization, insolvency or liquidation proceedings is instituted by or against Naming Sponsor, if such proceedings shall not be dismissed within sixty (6o) days from the date of the institution thereof. (c) In the event of the occurrence of a Naming Sponsor Default, City shall have the right, if such failure is material, to cause this Agreement to end on a date designated in such notice, which date may be not less than thirty days after the date of such notice. (d) In the event that this Agreement terminates due to Naming Sponsor Default, Naming Sponsor shall, in addition to any other damages for which it may be held liable, be obligated to pay all costs, losses and expenses incurred by City in complying with the provisions of Section 8(a), including but not limited to the cost of removing all signs and disposing of other displays and materials containing the Sculpture Garden Marks and the cost of any materials containing the Sculpture Garden . Marks which must be discarded as a result of the termination. The City shall retain ownership of the all signage materials upon termination of this Agreement. (e) The following shall constitute "City Defaults." (i) If City fails to comply with any of its obligations under this Agreement, and such failure shall continue for a period of thirty (3o) days after notice thereof to City from Naming Sponsor; or (ii) As a result of a Force Majeure, City fails to reopen the Sculpture Garden for normal operations for a period of six (6) consecutive months. (f) In the event that the City discontinues use of the Sculpture Garden, this Agreement shall terminate immediately and all rights and responsibilities of the parties granted by that portion shall terminate immediately. If this occurs within the first five years, City shall return the money on a pro rata basis, one -fifth for each year remaining in the five-year period. (g) Should this agreement or any provision hereof violate any federal or state law or regulation, the parties shall then negotiate in good faith to modify this Agreement to the extent reasonably necessary to bring about compliance with such law, rules; provided, however, that if PAGE 7of12 such modification would cause this Agreement to fail in its essential purpose or purposes, or the parties are unable to reach agreement after negotiating in good faith, either Naming Sponsor or City may elect to terminate this Agreement. (h) In the event that a party is successful in a court of competent jurisdiction in obtaining legal or equitable relief from a default by another party, the successful party shall be entitled to recover the fees and expenses of its counsel in such proceedings. 9. Limitation on Assignment ment (a) Subject to the terms and conditions of this Section, this Agreement and all of the terms and provisions hereof will be binding upon, enforceable against, and will inure to the benefit of, the parties hereto and their respective successors and assigns. (b) Naming Sponsor shall have the right to assign this Agreement, in whole but not in part in a transaction in which all or substantially all of its assets, or all or substantially all of its business in the Designated Products are acquired by the assignee. If assignment of this Agreement is made pursuant to this Section, it shall not include the right to change the Sculpture Garden Name, other than specifically in accordance with the provisions of Section 7 hereof. It shall be a condition precedent to any such assignment and transfer that the assignee specifically assume all of the liabilities and obligations of the Naming Sponsor hereunder, and that the Naming Sponsor and the assignee execute and deliver to City such assignments, assumptions, and other documents as City reasonably requests to evidence such transactions and the assumptions. For purposes of defining an assignment under this paragraph, no exchange or trade of shares in stock, other than those resulting in a material change of control, shall be deemed to effect an assignment of this Agreement. "Control" for this definition shall be defined as holding at least a majority of voting power or operating control. io. Independent Contractor The parties shall be and act as independent contractors, and under no circumstances shall this Agreement by construed as one of agency, partnership, joint venture or employment between the parties. The parties shall each be solely responsible for the conduct of their respective employees, agents and contractors in connection with the performance of their obligations hereunder. PAGE 8of12 11. Indemnification To the extent permitted by law, City agrees to indemnify, protect and hold harmless Naming Sponsor and its affiliates, and each of their respective directors, officers, employees and agents from and against any and all claims, demands, losses and causes of action of every kind and character, including the costs of defense thereof, from injury to persons (including death) and any loss of or damage to property occurring at or in connection with the Sculpture Garden, excepting those claims, demands, losses and causes of action arising out of the negligence of Naming Sponsor or its agents. 12. Notices All notices, offers, consents or other communications required or permitted hereunder shall be in writing and shall be deemed duly given if delivered personally or by messenger or if sent by certified mail, postage fully prepaid, addressed to the appropriate address set forth below, or to such other person or address as either party may designate by notice to the other party given as herein provided: If to Naming Sponsor: Alon USA, LP 7616 LBJ Frwy, Suite 300 Dallas, Texas 75251-1100 Attention: Jeff Morris, President and CEO If to City: The City of Lubbock PO Box 2000 Lubbock, Texas 79457 Attention: Corbin Pemberton, Community Projects Manager 13. Representations and Warranties (a) Naming Sponsor represents, warrants and covenants to the City as follows: PAGE 9 of 12 0) It has the frill right and legal authority to enter into and fully perform this agreement in accordance with its terms. (ii) This Agreement, when executed and delivered by Naming Sponsor, will be its legal, valid and binding obligation enforceable against Naming Sponsor in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, or other similar laws affecting creditors' rights generally. (iii) The execution and delivery of this Agreement has been duly authorized by Naming Sponsor, and such execution and delivery and the performance by Naming Sponsor of its obligations hereunder do not and will not violate or cause a breach of any other agreements or obligations to which it is a parry or by which it is bound, and no approval or other action by any governmental authority or agency is required in connection herewith. (iv) Each of the foregoing representation, warranties and covenants shall be true at all times during the term hereof. Naming Sponsor acknowledges that each of such representations, warranties and covenants are deemed to be material and have been relied upon by City notwithstanding any investigation made by City. (b) City represents, warrants and covenants to Naming Sponsor as follows: (i) It has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms. (ii) It has the right to grant the Naming Rights to Naming Sponsor. (iii) This Agreement, when executed and delivered by the City, will be its legal, valid and binding obligation, enforceable against the City in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, or other similar laws affecting creditors' rights generally. (iv) The execution and delivery authorized by the City and action by any governmental connection herewith. of this Agreement has been duly no additional approval or other authority or agency is required in (v) Each of the foregoing representations, warranties and covenants shall be true at all times during the term hereof. City PAGE 10 of 12 acknowledges that each of such representations, warranties and covenants are deemed to be material and have been relied upon by Naming Sponsor notwithstanding any investigation made by Naming Sponsor. 14. Compliance with the Law Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or the application thereof to any party or circumstance is prohibited by or invalid under applicable law, that provision shall be effective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or the application of such provision to other parties or circumstances. 15. Failure to Object Not a Waiver The failure or delay of either party to object to, or to take affirmative action with respect to, any conduct of the other party which is in violation of any of the terms or provisions of the Agreement, or to exercise rights or powers under this Agreement, shall not be construed, taken or held to be a waiver of any default _ or acquiescence therein, or to impair the right or power or to waive any other default or any future breach of any such term or provisions or of any other wrongful conduct. 16. Governing Law This Agreement will be deemed to have been executed and delivered in the State of Texas and will be construed and interpreted according to the laws of that State. 17. Entire Agreement: Amendments This Agreement constitutes the entire understanding and agreement between the parties with respect to the Naming Rights and supersedes any and all prior negotiations, understandings or agreements in regard hereto, including any prior agreements. This agreement may be amended only by written instrument signed by the parties hereto, specifically referring to this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives on the date first above written, and each of the individuals executing this Agreement certifies that he or she is duly authorized to do so. PAGE 11 of 12 TUP OTT'V (1F T TTRTZr)0 - 1� Alon USA, LP By: Alon USA GP, LLC, Its general partner By: Harlin Dean, Secretary and General Counsel ATTEST: -D, Reb cca Garza, City Secretary APPROVED AS TO CQN7 7ENT: Corbin Pemberton, Comr aunity Projects Manager APPROVED AS TO FORM: _ s Linda L. Chamales, Supervising Attorney Ucityatt/linda/Sculpture Garden Naming Rights Agreement-Alon.doc PAGE 12 of 12 Exhibit 1 Pursuant to Section 3 of the attached Naming Rights Agreement, ALON USA, LP ("ALON") will pay $50,000 to sponsor a gala fundraiser, which will serve as a kick-off event for the community art project and tie-in to the opening of the sculpture garden. The purpose of the event is to generate awareness for the art project and the company's support of the City's "Crossroads in Time" sculpture garden and Amphitheater. Proceeds from the event would be contributed to the City's Amphitheater project. This event will be held prior to January 1, 2004. The gala will include, but not be limited to the following: A dinner, cash bar, live music, display of art, and a program consisting of speakers involved with the community art project, the "Crossroads in Time" project and the Amphitheater. In exchange for $50,000, the City Of Lubbock will coordinate the following: o Secure the venue. Possible venues include the Texas Tech Museum (first choice) or the Civic Center (second choice). o Secure any related in -kind services (ie. graphic design, printing invitations; entertainment; catering; decorations; on -site staffing etc.) o Provide free ad space, where possible, to promote the gala (ie. PSA time on TV and radio) and seek out in -kind donation of print promotions including billboards and newspapers. o Provide staffing to help coordinate the event with ALON's Public Relations agency, NorthStar Communications. o Provide mailing lists for invitations for the gala. o Provide RSVP mechanism (ie. local phone number/address/table assignments). o Help coordinate a group of community leaders/business people to serve as the committee that is responsible for generating gala participation. o Coordinate volunteers to solicit participation for the event (ie. phone calls, additional mailings/emails, etc.) o Secure Mayor and City Council Members participation in the gala event. o Help coordinate a press conference to announce the gala with Mayor/ Council Member participation F�1q j�u�rv.5 �P J "9LNL-k\iq mom it =aaanacegr�Na EXHIBIT 2 The stelae (des 1,2, and 3) The Llano Estacado relief anti canyon awk)olt (theme 41 EXHIBIT 2 Plow and Fend (themes 5 and 6) 1WN09 H .1 Vortex (theme 7) Gateway Family Photo Albums (themes Sr 9, f 0, and f f ): Exhibit 3 Potential Convention and Tourism Uses of the Name "FINA / ALON USA CROSSROADS IN TIME SCULPTURE GARDEN" by the City of Lubbock or Convention and Visitors Bureau as part of a facility name include, but are not limited to: Electronic Advertising EX: Television Radio Web -site Print Advertising Trade Publications EX: Facilities & Event Management Aud-Arena Guide Trade Show Weekly Billboard Pollstar Amusement Business TSAE Directory and publications Chamber of Commerce publications Newcomers Guide Other Facility Directories Group Tour Manual Meeting Planners Guide Travel/Tourism/Special Interest Publications EX: Texas Highways Texas Monthly Southern Living Midwest Living Adventure Road West Texas Travel Guide Southwest Spirit Other Airline on -board publications Telephone Directories Local Newspapers Area Newspapers Exhibit Booth Display to promote use of facility Other Local, National and International Magazines, Newspapers and Printed Publications Exhibit 3 — Page 1 Facility Brochure Schedule of Events Outdoor/Indoor Electronic Message Centers Signage on the facility itself Concession Stands/Menus Drinking Cups Facility Souvenir and Promotional Items Event Programs Dedication Plaque Invitations to performances, receptions or events Notepads Banners, both interior and exterior Advertising placed by Promoters/Lessees: The facility has no control over which media and/or publications that Promoters/Lessees use to advertise an event at the facility. The advertising would include both electronic and print advertising, posters, flyers, tickets, or anything that would identify the name of the facility as the location of the event. Exhibit 3 Page 2