Loading...
HomeMy WebLinkAboutDomenic Iorfino and Victoria Alberty-deGoede - 2009-10-197 ,,A&:0e, r-z- Council/Agency Meeting Held: D� Deferred/Continued to: �AA rov d i ' I y p Ty ❑ Denied Ci le 's ignatur Council Meeting Date: 10/19/2009 Department ID Number: 09-64 SUBMITTED TO: HONORABLE MAYOR AND CITY C+0ECONOMIC L MEMBERS SUBMITTED BY: FRED A. WILSON, CITY ADMINIST PREPARED BY: STANLEY SMALEWITZ, DIRECTOR DEVELOPMENT SUBJECT: APPROVE MEMORANDUM OF UNDERSTANDING FOR OPERATION OF THE SURF CITY SAVINGS PROGRAM AND APPROVE LICENSE AGREEMENT FOR USE OF CITY OF HUNTINGTON BEACH LOGO Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: Approve a Memorandum of Understanding for operation and marketing of the Surf City Savings program and a License Agreement for use of the City of Huntington Beach logo as directed at the City Council meeting of July 20, 2009. Funding Source: Funds are available in the Economic Development Business Development budget (Account 10080101.69450). Recommended Action: Motion to: Approve and authorize the Mayor and City Clerk to execute the Memorandum of s Understanding between the City of Huntington Beach and Victoria Alberty-deGoede for Marketing and Website Operation. 2. Approve and authorize the Mayor and City Clerk to execute the License Agreement between the City of Huntington Beach, Domenic lorfino, and Victoria Alberty-deGoede for use of the City of Huntington Beach Logo for the Surf City Savings Program. Alternative Action(s): 1. Do not approve the Memorandum of Understanding and direct staff as appropriate. 2. Do not approve the License Agreement and direct staff as appropriate. JCL= O/�/C�liv/t� i 1A) /C7/� L F�- GJ/ � REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 10/1912009 DEPARTMENT ID NUMBER: 09-64 Analysis: The current economic climate has affected many of our retailers, restaurants and services. This not only impacts the merchants' ability to stay in business, but also the amount of sales tax the City receives, which supports vital services to our citizens. In response to these concerns, Council Member Joe Carchio introduced the concept of the Surf City Savings program at a Council meeting in the spring of 2009. The program was officially launched on May 19, 2009 in an effort to help consumers save money by encouraging them to shop locally to generate increased business for Huntington Beach merchants and to help generate sales tax. Surf City Savings was introduced as a six-month pilot effort for merchants at Five Points Shopping Center, Bella Terra, and Old World, offered on a voluntary basis and free of charge to businesses and shoppers. Participating businesses developed money -saving discounts or incentives to encourage shopping in their establishments. The discounts are then turned into coupons placed on the Surf City Savings website — www.surfcitysavings.com — along with the merchant's logo. Program merchants are given a Surf City Savings program decal to place in their store window, indicating that discounts can be found wherever the logo is seen. The pilot program is still in place and there are currently 34 businesses participating among the three pilot locations. The program website has been operated on a volunteer basis by Victoria Alberty-deGoede, who is the owner and webmaster of www.TheLocalHB.com. Ms. Alberty-deGoede previously purchased the domain name and volunteered her services to operate and maintain the site free of charge during the pilot program. Staff provided support for the program by responding to merchant inquiries, creating and providing program materials to participating merchants, and marketing the program via printed and electronic media. Since the program began, many businesses outside of the pilot area have requested the opportunity to participate. At the City Council meeting of July 20, 2009, Council Member Carchio sought and received approval for staff to take the necessary steps to expand the program citywide. Once the program is implemented, all businesses operating in Huntington Beach may participate free of charge. A Memorandum of Understanding (MOU) has been developed with Ms. Alberty-deGoede for the operation of the expanded program. In addition to continued ownership, operation and maintenance of the program website, Ms. Alberty-deGoede will market the program, verify eligibility of merchants and offers, distribute program materials to participating businesses, and conduct a quarterly program evaluation. The City will continue to provide program materials and advertise in various City publications, and will reimburse Ms. Alberty-deGoede $10.00 per month for the cost of hosting the site and $8.00 annually for domain name registration, for a total of not to exceed $130.00 annually. The MOU has a term of one year and may be extended for up to two (2) additional one (1) year terms. Surf City Savings will remain free of charge to merchants and consumers. The MOU provides Ms. Alberty-deGoede the opportunity to designate a space on the program website for participating merchants wishing to pay for additional advertising. The cost of the service -2- 10/12/2009 2:49 PM REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 10/19/2009 DEPARTMENT ID NUMBER: 09-64 will be determined by Ms. Alberty-deGoede. The City will not receive any revenues paid to her for this service. Although this service will be available, paying for additional advertising on the site is not a condition to participate in the free program. The Surf City Savings program logo was designed free of charge as part of the pilot program by Domenic lorfino, the owner of HB Digital. The logo includes a trademarked Huntington Beach design and also incorporates original artwork created by Mr. lorfino. To that end, a License Agreement has been developed for the use of the City of Huntington Beach logo and the Surf City Savings program logo to ensure its proper use. Strategic Plan Goal: Enhance Economic Development. Environmental Status: N/A cnment(s): -3- 10/12/2009 2:49 PM /A) ('4 06. 7-0 ) LICENSE AGREEMENT FOR THE USE OF THE CITY OF HUNTINGTON BEACH LOGO THIS AGREEMENT ("License") is made and entered into this ��day of of 6, 2009 by and between CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("City") and VICTORIA ALBERTY-DeGOEDE and DOMENIC IORFINO ("Licensee(s)"); Licensees are hereafter collectively referred to as the "Licensees"). RECITALS WHEREAS the City and VICTORIA ALBERTY-DeGOEDE began the operation of a Surf City Savings Program ("Program") where businesses can offer discounts or incentives on a website to encourage shopping in their establishment. Businesses are given a Surf City Savings decal to remind shoppers that wherever they see the program decal, discounts can be found; and Licensees have submitted a request to use certain intellectual property of the City namely the City Logo, a copy of which is attached hereto as Exhibit A as in part of their marketing literature/decal and website advertising ("Licensed Product"); and Domenic Iorfino developed a decal design as part of the Surf City Savings program that incorporates the City Logo. NOW THEREFORE subject to the following terms and conditions, the City and Licensees hereto agree as follows: 1. LICENSE. City grants to the Licensees, a limited, personal, non-exclusive, non -transferable license to make use of the City Logo. Licensees may not make any other use of the City Logo other than that described herein. Licensees acknowledge and agree that City has relied on the information Licensees provided in determining whether to enter into this License, and that if any false or misleading information, or if any relevant information was omitted then the License granted above is void from the beginning and of no effect, and that Licensees. use of the City Logo may constitute infringement of City's intellectual property or other rights. 2. RESTRICTIONS. 1. Licensees may not use the City Logo in connection with any of the following: a) Any product or service that competes with City, either directly or indirectly; b) Any product or service that competes with any exclusive license of City, either directly or indirectly; c) Any website, printed matter, audiovisual work or other medium that criticizes or disparages City, or otherwise has a tendency to injure the reputation of City; 1 39369 d) Any product, service, website,_ printed matter, audiovisual work or other medium that promotes, describes or endorses activity or behavior that is unlawful; e) Any product, service, website, printed matter, audiovisual work or other medium that promotes, describes or endorses activity or behavior that, if performed, would constitute a safety hazard; 0 Any product, service, website, printed matter, audiovisual work or other medium that promotes, describes or endorses activity, behavior, or beliefs that can reasonably be deemed offensive to any group of persons, including without limitation activity, behavior, or beliefs related to race, religion, ethnicity, sexual orientation, disability or age; or g) Any statement, speech, graphic, audiovisual or textual work that is obscene, defamatory, or slanderous. 2. By approving this License, City makes no representations that it has monitored or will monitor Licensees use of the City Logo to ensure compliance with the foregoing, and no failure by City to discover any such use will be deemed to be an "unreasonable" or "inequitable" delay, or to constitute laches. 3. Licensees will manufacture, advertise and distribute any product or service in connection with this License in accordance with all applicable federal, state, and local laws, regulations, and ordinances. 4. To ensure that the development, manufacture, appearance, quality, and distribution of any Licensed Product comports with the good will associated with City's reputation, copyrights, and trademarks, City shall have the right to inspect any Licensed Product and any and all packaging, advertising, literature, publicity, promotion, and displays for the Licensed Products. City will provide reasonable notice to Licensees of any such inspection. Licensees will allow City reasonable access to any premises necessary for City to carry out the inspections described herein. 5. Licensees acknowledge and agree that City shall retain all right, title, and interest in City Logo, as well as all additions, modifications, and derivations thereto (collectively, the "Intellectual Property"). Nothing in this Agreement shall confer upon Licensees any rights in the Intellectual Property not expressly granted herein. 6. Unless otherwise agreed upon, Licensees agree that Licensees use of the City Logo and all associated trademarks, logos, or other symbols or source identifiers (collectively, the "Marks") inures to the benefit of City and that Licensees shall not acquire any rights in the Marks. Licensees recognize the value of the good will associated with the Marks and that such good will belongs exclusively to City. 7. Licensees acknowledge City's ownership of the City Logo and any Intellectual Property and agree not to directly or indirectly challenge, question, or assist any other person in challenging or questioning either City's ownership of said Logo or the validity of any of the Marks or Intellectual Property. Licensees acknowledge that the Marks are famous and have acquired secondary meaning. City, however, makes no representation or warranty with respect 2 39369 to the validity of any trademark or copyright which may issue or be granted with respect to the Marks or the Intellectual Property. S. Licensees agree not to attempt to register in Licensees own name any of the Marks or Intellectual Property, or any trade names belonging to City or any term or symbol confusingly or deceptively similar therewith. Licensees further agree to report to City any known or suspected acts of infringement, counterfeiting, palming off, or mark dilution. 9. Licensees hereby grant to City a non-exclusive, irrevocable, royalty -free, worldwide, perpetual license to use, reproduce, modify, perform, display, distribute, and prepare derivatives of any Licensed Product or Service for City's use, so long as City does not directly profit from the sale or distribution of the Licensed Product or Service. 3. TERMINATION. This Agreement and the License granted hereunder is effective until terminated. This Agreement and the License granted hereunder will terminate immediately without notice from City if Licensees fail to comply with any of the provisions of this Agreement. Any use of the City Logo after such termination will exceed the scope of the License granted hereunder and may constitute infringement of City's intellectual property or other rights. Either party may terminate this Agreement with or without cause at any time by providing notice to the other. 4. DISCLAIMER OF WARRANTIES. THE CITY LOGO IS PROVIDED AS IS, WHERE IS, AND NEITHER CITY NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (THE "CITY LICENSEES") MAKE ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE CITY LOGO, INCLUDING ANY WARRANTIES OF TITLE. CITY UNDERTAKES NO RESPONSIBILITY FOR INDEMNIFYING LICENSEES OR ANYONE AFFILIATED WITH LICENSEES, INCLUDING ANY USERS OF ANY PRODUCTS OR SERVICES IN CONNECTION WITH WHICH LICENSEES USE THE CITY LOGO, AGAINST ANY LOSSES, INJURY CLAIMS, LIABILITIES, DEMANDS OR JUDGMENTS ARISING OUT OF LICENSEES USE OF THE CITY LOGO. 5. INDEMNIFICATION Licensees hereby agree to protect, defend, indemnify and hold harmless City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with Licensees' (or Licensees' subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or failure to comply with any of its obligations contained in this Agreement by Licensees, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. City shall be reimbursed by Licensees for all costs and attorney's fees incurred by City in enforcing this obligation. Licensees will conduct all defense at its sole cost and expense and the City shall 3 39369 approve selection of Licensees' counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by the Licensees. 6. GENERAL LIABILITY INSURANCE Notwithstanding any resolution or policy to the contrary, City waives the requirement for general liability insurance. 7. CITY's REMEDIES UPON BREACH. If Licensees breach this Agreement, including a breach related to exceeding the scope of the License granted herein, City will be entitled to pursue all remedies available to it at law and/or equity. Without limiting the foregoing, Licensees agree that any use different from that described in herein as applicable, will exceed the scope of the License granted herein and will therefore constitute a material breach of this Agreement. City may elect to pursue any damages available to it, including without limitation, statutory damages under the Copyright Act, enhanced damages under the Lanham Act, punitive damages, restitution, or any other measure of damages and other relief available to City at law or equity. In any action brought by City to enforce the terms of this Agreement or seek remedies for its breach, including Licensees exceeding the scope of the License granted herein, City will be entitled to receive all attorneys' fees and costs incurred in any such action. Licensees acknowledge that Licensees exceeding the scope of the License granted herein will irreparably harm City, and that monetary damages arising from such a breach would be difficult to calculate. City is, therefore, entitled to bring an action for temporary, preliminary, or permanent injunctive relief to prevent or stop any breach or threatened breach of this Agreement that involves exceeding the scope of the License granted hereunder, without need for posting of bond or other security. 8. GENERAL. This Agreement will be governed by and construed in accordance with the laws of the State of California. This Agreement and the License granted herein is personal to Licensees, and Licensees may not transfer this Agreement in whole or in part without the written consent of City, which consent may be withheld in City's sole discretion. Nothing in this agreement shall be construed as creating an employment, joint venture, partnership, franchise, or agency relationship between Licensees and City. If any provision of this License is held by a court of competent jurisdiction to be invalid or unenforceable to any extent under applicable law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. M 39369 Any notices or other communications to be sent to City must be sent by a reputable overnight courier (such as Federal Express), charges prepaid, to the following address: City of Huntington Beach ATTN: Director of Economic Development 2000 Main Street, P.O. Box 190 Huntington Beach, CA 92648 This License constitutes the entire agreement between the Licensees with respect to the subject matter hereof, and all prior proposals, agreements, representations, statements and undertakings are hereby expressly cancelled and superseded. This License may not be changed or amended except by a written instrument executed by a duly authorized officer of City. 10. ACKNOWLEDGMENT. WE ACKNOWLEDGE THAT LICENSEES HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENEE�S VICTORIA ALBERTY-DeG DE CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California INITIATED AND APPROVED: Director of'Eco'iiomic Devel-o-PrAknt REVIEA & APPROVED: Administrator APPROVED AS TO FORM: CitAttorney 39369 : v u SURF CITY SAVINGS PROGRAM POLICIES Program Description., Surf City Savings is program designed to encourage shopping and spending in Huntington Beach for goods and services at merchants willing to provide an incentive or discount to their customers. • All licensed businesses in the City of Huntington Beach are eligible to participate free of charge. • The City will provide advertising of the Surf City Savings program in various city publications. • The surfcitysavings.com website is not owned by the City; however, the City may contract with the domain name owner to act as the City's vendor/agent to operate the website and market the program to local businesses. • In order to participate, merchants must do all of the following: o Develop and honor an incentive or discount that is available to the general public (i.e., cannot be limited to one particular group or affiliation); o Place the Surf City Savings program decal in a prominent location on a door or window so as to be seen by potential shoppers; o Provide information on the incentive or discount to the City or its authorized program operation vendor to be placed on the surfcitysavings.com website; o Maintain a simple log or database of the number of program coupons honored, and provide them to the City's vendor on a quarterly basis. • Discounts advertised as part of the program must reference Huntington Beach locations only. • If a merchant elects to discontinue participation in the program, they will be asked to remove the program logo from their window or other display location. • Merchants who fail to honor an incentive will be removed from the program and any subsequent advertising. • All participating merchants may place a business logo and a coupon on the site free of charge. The vendor may offer merchants enhanced advertising opportunities to program participants, for which all revenues will become property of such vendor. • Program evaluation will be conducted on a quarterly basis by the City's vendor. The vendor will contact 10 businesses per quarter for this purpose. Participation in the evaluation process is encouraged. INITIATING DEPARTMENT: Economic Development SUBJECT: Approve Surf City Savings Program MOU and Agreement for Use of the City of HB Logo COUNCIL MEETING DATE: October 19, 2009 RCA ATTACHMENTS STATUS Ordinance (w/exhibits &legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attorney) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Not Applicable ❑ Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Attached ❑ Not Applicable Staff Report (If applicable) Attached ❑ Not Applicable Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable EXPLANATION FOR MISSING ATTACHMENTS ��en"t�l fte ' Atty EXPLANATION•' RETURN • X � f RCA Author: Simone Slifman x 5186 CITY OF HUNTINGTON BEACH INTER -DEPARTMENTAL COMMUNICATION ECONOMIC DEVELOPMENT DEPARTMENT DATE: OCTOBER 15, 2009 SUBMITTED TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL D SUBMITTED BY: FRED A. WILSON, CITY ADMINISTR PREPARED BY: STANLEY SMALEWITZ, DIRECTOR F ECONOMIC'; ` DEVELOPMENT SUBJECT: LATE COMMUNICATION: ITEM 14: APPROVE AND AUTHORIZE THE MAYOR AND CITY CLERK TO EXECUTE THE MEMORANDUM OF UNDERSTANDING WITH VICTORIA ALBERTY De-GOEDE FOR MARKETING AND WEBSITE OPERATION OF THE SURF CITY SAVINGS PROGRAM; AND, APPROVE AND AUTHORIZE THE MAYOR AND CITY -CLERK TO EXECUTE A THREE (3) PARTY LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH, DOMENIC IORFINO AND VICTORIA ALBERTY De-GOEDE FOR USE OF THE CITY OF HUNTINGTON BEACH LOGO. Attached is a PowerPoint presentation for Item 14 for the October 19, 2009 City Council Agenda. ,r J f HUNTINGTON 8 Sponscmdt y the CRY of ftnt�itgt* >, wuwww.surfcitysavings.com Shopping locally helps to produce sages tax © A percentage of sales tax stays in HB and helps to pay for critical services, such as... ✓ Public Safety ✓ Street and Road Improvements ✓ Beach and Park Maintenance ✓ Library Services ✓ Senior Services ✓ ...and more... F © Go online to find) Surf Catty Sarongs merchants... the program is growing and more are added every day! © Look for the Surf Gutty Savings pogo an merchant windows - wherever you see the logo, discounts are sure to be found Hnviite your favorite merchants to join Surf City Savings! It's entirely free, and will help to increase their customer traffic 6 WWOMMWOOO Any licensed HB business can join. It's easy and FREE! • Develop and honor an incentive for shoppers o Display the Surf City Savings logo in your business or shop window • Provide your logo for free advertising on www.surfcitysavings.com o Enjoy free program promotion in various City publications, on the readerboard and on HBTV 3 l(iTi TUE�AY1 3 City of Huntington Beach 2000 Main Street ® Huntington Beach, CA 92648 OFFICE OF THE CITY CLERIC JOAN L. FLYNN CITY CLERK October 21, 2009 Victoria Alberty-deGoede 5901 Warner Avenue, Suite 365 Huntington Beach, CA 92647 Dear Ms. Alberty-deGoede: Enclosed for your records is a copy of the Memorandum of Understanding between the City of Huntington Beach and Victoria Alberty-deGoede for Marketing and Website Operation; and, the License Agreement between the City of Huntington Beach, Domenic lorfino, and Victoria Alberty-deGoede for use of the City of Huntington Beach Logo for the Surf City Savings Program. Sincerely, J rnL.'14FIynn, CMC City Clerk JF:pe Enclosure: Agreements G:followup:agrmtitr Sister Cities: Anjo, Japan • Waitakere, New Zealand ( Telephone: 714-536-5227 )