[OPEN-ILS-GENERAL] ***SPAM*** RE: Details of fiscal sponsorship agreement for Evergreen & Conservancy

[Kathy Lussier]

I'm in favor of this plan.

Just out of curiosity - who would be representing the Evergreen project in
the Conservancy? Is it the entire governance committee or specific
individuals?

Kathy Lussier

-------------------------------------------------------------
Kathy Lussier
Project Coordinator
Massachusetts Library Network Cooperative
(508) 756-0172
(508) 755-3721 (fax)
klussier at masslnc.org
IM: kmlussier (AOL & Yahoo)
Twitter: http://www.twitter.com/kmlussier
 
 
 

> -----Original Message-----
> From: open-ils-general-bounces at list.georgialibraries.org 
> [mailto:open-ils-general-bounces at list.georgialibraries.org] 
> On Behalf Of Lori Bowen Ayre
> Sent: Wednesday, November 10, 2010 11:52 AM
> To: Evergreen Discussion Group
> Cc: evergreen-governance-l at list.georgialibraries.org
> Subject: Re: [OPEN-ILS-GENERAL] Details of fiscal sponsorship 
> agreement for Evergreen & Conservancy
> 
> I am in favor of moving forward with the Software Freedom 
> Conservancy membership to protect our Evergreen assets under 
> their umbrella 501(c)3.  I suggest we appoint an interim 
> contact person (or two).
> 
> Over all of our discussions in the Governance Committee, I 
> have seen nothing but benefit from this approach.  If there 
> are any drawbacks to using the SFC,  this needs to be brought 
> to our attention now. 
> 
> I would love to hear from others to ensure we have community 
> buy-in. Just a "hear hear" or a ++ would be nice so we know 
> people are aware of the plan.
> 
> If there are no objections (and even if no one responds 
> affirmatively)  I think we should feel free to move forward 
> with membership in the SFC at the next opportunity. 
> 
> Lori Ayre
> 
> 
> On Wed, Nov 10, 2010 at 8:24 AM, Dan Scott <dan at coffeecode.net> wrote:
> 
> 
> 	The Conservancy has added one new member organization since we
> 	received the draft agreement, and it's not us!
> 	(http://sfconservancy.org/news/2010/nov/10/pypy-joins/).
> 	
> 	Based on the lack of comments, I'm wondering if anyone 
> has looked at
> 	the Software Freedom Conservancy draft agreement that I 
> posted to the
> 	open-ils-general list on October 21? At the time, I had 
> suggested that
> 	we try to collect a list of questions together by 
> October 28th, a date
> 	that has come and gone.
> 	
> 	On the governance list, we've been doing some 
> soul-searching about
> 	whether to establish a small, focused foundation or a very broad
> 	foundation. In principle, I'm not opposed to a foundation that
> 	includes a users' group, various committees, membership 
> fees, etc, but
> 	I worry that getting it right will take a long time - 
> and when dealing
> 	with a scope that broad, I would much rather get things 
> right and take
> 	a long time, than get things done fast but fatally flawed at the
> 	outset.
> 	
> 	However, we don't have to exist in the mean time 
> without the benefit
> 	of being part of a 501(c)(3); based on the draft agreement, the
> 	relationship with the Conservancy can be as lightweight 
> as a temporary
> 	home that we can leave in 60 days if another 501(c)(3) 
> can receive the
> 	assets. I've checked with Bradley Kuhn to ensure that 
> would be okay,
> 	and he said "I really don't get why people don't just 
> use as that:
> 	Keep debating the other issues while having a 
> Conservancy membership,
> 	and even move in forming the new org in parallel."
> 	
> 	So, based on that, would it be possible to move forward on the
> 	governance front in two tracks?
> 	
> 	1) Short-term (e.g. next month?): establish an 
> agreement with the
> 	Conservancy that enables us to take advantage of the 
> benefits of being
> 	part of a 501(c)(3) and provides a neutral place for holding the
> 	Evergreen collateral (trademarks, logos, domain 
> names...). We would
> 	work directly with the Conservancy to establish the 
> ground rules for
> 	our agreement (as Bradley offered when he sent us the 
> sponsorship
> 	agreement - and which we have not as of yet used).  
> Some projects
> 	simply nominate one person to act as the point of 
> contact with the
> 	Conservancy; it could be as simple as that. If we get 
> set up before
> 	the end of year, then Americans would be able to make tax-free
> 	donations to Evergreen as a Christmas present!
> 	
> 	2) Longer-term (e.g. in time for the next Evergreen Conference):
> 	establish the complete set of rules of governance, 
> including standing
> 	committees, membership rules & fees, meeting rules, 
> compensation,
> 	possibly setting up a standalone 501(c)(3)?
> 	
> 	Dan
> 	
> 
> 	On 21 October 2010 17:00, Dan Scott <dan at coffeecode.net> wrote:
> 	> Please find below the explanation of and attached PDF 
> & Tex documents
> 	> concerning the Evergreen / Software Freedom 
> Conservancy agreement that
> 	> we will need to sign in order to move forward with 
> establishing the
> 	> Evergreen Software Foundation as a member project of 
> the Software
> 	> Freedom Conservancy.
> 	>
> 	> In recognition of Bradley's time, I recommend that we 
> discuss the
> 	> agreement on the list, and compile a list of 
> questions that come up
> 	> during the course of the discussion. Perhaps we can 
> try to pull together
> 	> any major questions by the end of next week (Friday, 
> October 28th)?
> 	>
> 	
> 	> ----- Forwarded message from "Bradley M. Kuhn" 
> <bkuhn at sfconservancy.org> -----
> 	>
> 	> Date: Thu, 21 Oct 2010 08:32:17 -0700
> 	> From: "Bradley M. Kuhn" <bkuhn at sfconservancy.org>
> 	> To: Dan Scott <dan at coffeecode.net>
> 	> Subject: Details of fiscal sponsorship agreement for 
> Evergreen & Conservancy
> 	> User-Agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1 (gnu/linux)
> 	>
> 	> I'm glad that you are considering joining the 
> Conservancy and I am
> 	> pleased to extend an invitation to Evergreen.  
> Attached is a draft of
> 	> the fiscal sponsorship agreement that representatives 
> of Evergreen will
> 	> need to sign in order to join the Conservancy.  (Both 
> LaTeX source and
> 	> PDF are included.) Please read this agreement and 
> share and discuss it
> 	> with all of the key people involved in Evergreen.
> 	>
> 	> As mentioned in my previous email, generally, we 
> leave it for the
> 	> Evergreen community to decide how you'd like to 
> discuss the document, as
> 	> signing such an agreement is a big step for the 
> project and you should
> 	> consider the agreement in whatever forum is most 
> appropriate for your
> 	> community.  I'm happy to answer questions from the 
> community as you
> 	> consider the document, and you should feel 
> comfortable cc'ing me on any
> 	> threads you think I should comment on.  (However, 
> before doing so,
> 	> please make sure I can post back to any lists 
> included in the Cc without
> 	> being formally subscribed.)  Meanwhile, you are also 
> welcome to batch
> 	> questions into one group as well and email them to me 
> directly, and just
> 	> repost my responses.  Basically, whatever works well 
> for you works fine
> 	> for me.
> 	>
> 	> I strongly suggest that you share the agreement draft 
> as wide as
> 	> possible throughout the community, and make sure 
> anyone who has ever
> 	> been a serious contributor to the project in the past 
> or currently is
> 	> made aware of your plans to join Conservancy.  We 
> very much rely on you
> 	> to make sure that your entire community is in 
> agreement with joining
> 	> Conservancy, so please make efforts to be sure 
> everyone has had their
> 	> say.
> 	>
> 	>
> 	> Regarding the agreement, some of the more complex 
> provisions of the
> 	> agreement reflect the special considerations 
> necessary to support the
> 	> Conservancy's tax exempt status.  However, on the 
> whole, I believe that
> 	> this agreement fairly and clearly sets out an 
> advantageous relationship
> 	> for the Conservancy's member projects.  As some of 
> the paragraphs
> 	> specifically indicate, the agreement can be tailored 
> to reflect
> 	> Evergreen's particular needs.  To help you in your 
> review, below is a
> 	> section-by-section walk through, giving an explanation of the
> 	> significance of each provision.  If there are any 
> sections that seem
> 	> confusing or that you feel should be changed to 
> reflect Evergreen's
> 	> needs, please let me know and we can discuss them.
> 	>
> 	>
> 	> Introductory Paragraph
> 	>
> 	> This paragraph identifies the parties to the 
> contract.  It's more
> 	> thoroughly explained in paragraph 6, but the point of 
> this paragraph is
> 	> to name the people who sign the agreement.
> 	>
> 	> Recitals (the "WHEREAS" section)
> 	>
> 	> These paragraphs set forth the basic understandings 
> of the parties.
> 	> Similar to the "preamble" found in the GPL and other 
> Free Software
> 	> licenses, these are *not* operative provisions of the 
> document.
> 	> Instead, they give the context of the agreement.
> 	>
> 	> In this specific case, the key points of 
> understanding are that the
> 	> purpose of Evergreen is to forward Free, Libre and 
> Open Source Software
> 	> (FLOSS) and that both the Conservancy and Evergreen 
> want Evergreen to
> 	> join the Conservancy.  The Conservancy's mission (and 
> charitable
> 	> purpose) is to advance only FLOSS development, 
> documentation, and usage,
> 	> so it is important that this context be stated clearly.
> 	>
> 	> Paragraph 1 - Term of Agreement
> 	>
> 	> This paragraph says that Evergreen is part of the 
> Conservancy as of the
> 	> signing date of the agreement.  It cross references 
> the terminations
> 	> provisions in paragraph 7 (which is explained in 
> greater detail below).
> 	> Note, though, that Evergreen can choose to leave the 
> Conservancy at any
> 	> time.
> 	>
> 	> Paragraph 2 - Project Management and Activities
> 	>
> 	> a) Both parties agree that Evergreen will be FLOSS.  
> As noted above,
> 	>   this is the fundamental goal and charitable purpose of the
> 	>   Conservancy.  The Conservancy will not and cannot 
> sponsor proprietary
> 	>   projects.
> 	>
> 	> b) This clearly sets out the limits of the 
> Conservancy's management over
> 	>   Evergreen.  Due to requirements connected to 
> Conservancy's tax exempt
> 	>   status, the ultimate legal control of the projects 
> must be with the
> 	>   Conservancy.  From the IRS's perspective, the 
> projects are part of
> 	>   the Conservancy, and the purpose of its tax 
> exemption is to forward
> 	>   the FLOSS mission of those projects.
> 	>
> 	>   However, the Conservancy does not want to interfere with the
> 	>   successful software development, documentation and 
> advocacy work
> 	>   already underway in member projects; such activity 
> should continue
> 	>   after the agreement without interruption or 
> interference.  This
> 	>   paragraph delegates some of Conservancy's legal 
> authority back to the
> 	>   developers, so that Evergreen can run itself in 
> day-to-day matters.
> 	>
> 	>   The only limitations that we must place are to 
> prevent Evergreen from
> 	>   producing non-free software (as per Conservancy's 
> charitable purpose)
> 	>   and from spending money or conducting activities that would
> 	>   jeopardize the Conservancy's tax exempt status.  
> All the ordinary
> 	>   activities of FLOSS projects come well within these 
> limitations.
> 	>   Some specific activities that are restricted 
> include lobbying
> 	>   activities and spending money in ways other than 
> consistent with the
> 	>   charitable purposes of the Conservancy (i.e., 
> forwarding FOSS).
> 	>
> 	>   Note that developers of Evergreen in their capacity 
> as individuals
> 	>   (when not representing Evergreen still may engage 
> in for-profit
> 	>   service businesses related to their FLOSS work.  The work of
> 	>   Evergreen itself must fit the guidelines, but 
> individuals are free to
> 	>   act in their own capacity in other endeavors, as 
> long as they clearly
> 	>   state that they are not acting on behalf of the 
> project when they do
> 	>   so.
> 	>
> 	>   If you are ever concerned that a particular 
> activity -- be it one
> 	>   carried out for Evergreen or one that an individual 
> developer engaged
> 	>   in independently -- might be a problem, you can 
> always ask the
> 	>   Conservancy for clarification.
> 	>
> 	> c) As discussed above in (b), this section describes 
> the corporate
> 	>   relationship of the project and the Conservancy.  
> For clarity, it
> 	>   refers to section (b), which delegates the actual 
> management of
> 	>   Evergreen to the relevant developers.  Conservancy, 
> when acting as a
> 	>   fiscal sponsor, must have the legal authority to 
> manage Evergreen
> 	>   even though section (b) delegates the day-to-day 
> operations to the
> 	>   developers.
> 	>
> 	> d) This section clarifies that Evergreen can't 
> represent the Conservancy
> 	>   without getting written authorization first.  If 
> you'd like to
> 	>   represent the Conservancy at a conference or other 
> such event, you
> 	>   can always talk to us about it.
> 	>
> 	> Paragraph 3 - No Fees
> 	>
> 	> It's just as it sounds.  The Conservancy provides 
> services to projects
> 	> to benefit the FLOSS community and does demand member 
> projects to bear
> 	> the overhead costs.  Projects are encouraged to make 
> donations to the
> 	> Conservancy as a percentage of their funds to assist 
> the Conservancy
> 	> with its operating expenses.  Please note, though, 
> that Conservancy is
> 	> only able to provide its services to member projects 
> because there is a
> 	> reasonably healthy general fund available.  Donations 
> from our member
> 	> projects are not the only source of general fund 
> revenue, but it is a
> 	> substantial component in Conservancy' sustainability plan.
> 	>
> 	> Therefore, if you choose to do so, this section 
> provides suggested
> 	> wording in brackets for donating a percentage of the 
> Project's income to
> 	> be used towards keeping the Conservancy up and 
> running (10% is a very
> 	> common rate that many umbrella organizations require 
> for their fiscal
> 	> sponsorship services).
> 	>
> 	> Paragraph 4 - Project Fund/Variance Power
> 	>
> 	> This sets out the financial structure in connection with the
> 	> relationship described above in paragraph 2. 
> Conservancy will separately
> 	> account for Evergreen's revenue (and Evergreen will 
> have its own bank
> 	> account at the Conservancy once its balance reaches 
> $3,500).  For tax
> 	> purposes, Conservancy will report all of the income 
> to Evergreen in its
> 	> IRS and state filings.  Evergreen therefore will not 
> need to file any
> 	> separate tax documents with the IRS.  Conservancy 
> will keep the
> 	> financial books for Evergreen, sending periodic 
> reports to the project's
> 	> developers.
> 	>
> 	> The developers will direct the Conservancy to spend 
> the money on behalf
> 	> of Evergreen within the limitations imposed by the 
> tax laws and
> 	> Conservancy's 501(c)(3) mission.  Conservancy will 
> receive any checks on
> 	> behalf of Evergreen, and it will also write checks on 
> behalf of
> 	> Evergreen.
> 	>
> 	> Paragraph 5 - Project Fund Management/Performance of 
> Charitable Purposes
> 	>
> 	> This paragraph clarifies that all assets will be 
> devoted to the
> 	> project's purposes, as those purposes are a subset of 
> the Conservancy's
> 	> purposes.  Assets cannot be used in connection with 
> activities that
> 	> would jeopardize the Conservancy's tax exempt status. 
>  As discussed
> 	> above, in practice, most typical expenses of FLOSS 
> projects will come
> 	> well within these limitations.  Activities that are 
> restricted include
> 	> lobbying activities and spending money in ways other 
> than consistent
> 	> with the charitable purposes of Conservancy (i.e., 
> forwarding FLOSS).
> 	>
> 	> Paragraph 6 - Representation of the Project in the Conservancy
> 	>
> 	> As the note in this section indicates, we understand 
> that each project
> 	> will have its own management structure that it has 
> developed to reflect
> 	> its size and community.  This paragraph requires that certain
> 	> representatives be named as the individuals that can 
> officially
> 	> communicate decisions on behalf of Evergreen.  This 
> can be a single
> 	> maintainer, a committee of developers or a few specified
> 	> representatives.
> 	>
> 	> To the extent that it makes sense for Evergreen to 
> have a committee of
> 	> representatives, we should indicate how decisions can 
> be made by that
> 	> committee.  For example, should all decisions be 
> communicated to the
> 	> Conservancy by all members of the committee or would 
> a simple majority
> 	> suffice?  Can any one representative communicate 
> official decisions on
> 	> behalf of all?  Evergreen should also consider adding 
> a mechanism here
> 	> for adding and removing representatives over time.  
> We're happy to
> 	> discuss methods that have worked for other projects 
> with you to help you
> 	> select the solution that is right for you.
> 	>
> 	> We generally find this is the most difficult 
> provisions for projects to
> 	> work out, as it does require that your project 
> consider the form and
> 	> type of leadership structure it wants to have, and 
> that structure will
> 	> be legally formalized in this document for perpetuity.
> 	>
> 	> Paragraph 7 - Outstanding Liabilities
> 	>
> 	> In this section, Evergreen confirms that it has told 
> the Conservancy
> 	> about any liabilities that might be outstanding prior 
> to joining the
> 	> Conservancy.  This gives the Conservancy some 
> assurance that its due
> 	> diligence process has been complete and that the 
> Conservancy's Board
> 	> received all of the information it needed to properly 
> evaluate the
> 	> project.  Liabilities include, for example, financial 
> obligations, such
> 	> as any debts or outstanding bills, or any legal 
> claims that could be
> 	> outstanding against Evergreen.
> 	>
> 	> If you believe some liabilities exist, or that 
> something may be a
> 	> liability and aren't sure, please err on the side of 
> letting Conservancy
> 	> know about it.
> 	>
> 	> Paragraph 8 - Termination
> 	>
> 	> Projects can leave Conservancy at will.  This section 
> sets out the
> 	> mechanisms for termination to make sure that when a 
> project leaves the
> 	> Conservancy it does so without jeopardizing the tax 
> exempt status of the
> 	> Conservancy (and, consequently, the status of all of 
> the other projects
> 	> in the Conservancy).
> 	>
> 	> There is a 60 day notice requirement so that a new 
> tax exempt non-profit
> 	> can be found for Evergreen to join.  If there isn't 
> another fiscal
> 	> sponsor or other tax exempt non-profit to take over 
> Evergreen, Evergreen
> 	> can incorporate as a separate entity and apply for 
> tax exemption
> 	> recognition.  If there is no separate entity -- for 
> example if a project
> 	> loses momentum and has been abandoned by its developers -- the
> 	> Conservancy must be left with the assets for use by 
> the Conservancy for
> 	> other FLOSS-related charitable work.
> 	>
> 	> These restrictions would also apply to any separate 
> tax exempt entity,
> 	> so if Evergreen were to incorporate and achieve tax 
> exemption outside of
> 	> Conservancy, it would have to deal with the same 
> considerations upon any
> 	> wind-up or distribution of assets.  Members of the 
> Conservancy's board
> 	> are familiar with non-profit wind-down situations, 
> and can assist in the
> 	> unlikely event that this unfortunate outcome occurs.
> 	>
> 	> Paragraph 9 - Miscellaneous
> 	>
> 	> These provisions are standard agreement boilerplate - 
> they clarify the
> 	> enforceability of separate provisions, specify that 
> the contract be
> 	> governed by New York Law and state that any 
> amendments to this agreement
> 	> need to be agreed to in writing by all of the parties.
> 	>
> 	> Paragraph 10 - Counterparts/Facsimile
> 	>
> 	> Although it's good to have original signatures in the 
> corporate records,
> 	> this allows you to simply scan a copy for the 
> contract to take effect.
> 	>
> 	>
> 	> We hope this explanation document has made it clear 
> why the agreement is
> 	> structured in this way.  If any provisions seem 
> problematic to you, let
> 	> us know and we'll work with you to try to build an 
> agreement that works
> 	> for both of us.  We look forward to Evergreen joining 
> the Conservancy!
> 	>
> 	>
> 	> --
> 	> Bradley M. Kuhn, Executive Director, Software Freedom 
> Conservancy
> 	>
> 	
> 
> 
>