> There has been some recent discussion about those rules of > governance on the Evergreen-Governance mailing list; I'm hoping that > that discussion will be brought back over to the Evergreen-General > mailing list soon, as both of these matters are of great significance > to the future of the Evergreen community.
I have set the archives of the Evergreen-Governance-L mailing list to be publicly accessible here: http://list.georgialibraries.org/pipermail/evergreen-governance-l/ To be clear, (and I'm saying this to the community as a whole, not necessarily to you, Dan) the goal has never been to be a "closed" or "exclusive" group, but to keep communication at a manageable level. I realize that the effect has been that it seems opaque - just know that our goals have been around fair representation of all stakeholders while keeping the group at a manageable size. Chris Sharp PINES Program Manager Georgia Public Library Service 1800 Century Place, Suite 150 Atlanta, Georgia 30345 (404) 235-7147 [email protected] http://pines.georgialibraries.org/ ----- Original Message ----- > From: "Dan Scott" <[email protected]> > To: [email protected] > Sent: Thursday, October 21, 2010 5:00:00 PM > Subject: [OPEN-ILS-GENERAL] Details of fiscal sponsorship agreement for > Evergreen & Conservancy > 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)? > > A major corollary to the agreement with the Software Freedom > Conservancy > is the proposed rules of governance for the Evergreen Software > Foundation. There has been some recent discussion about those rules of > governance on the Evergreen-Governance mailing list; I'm hoping that > that discussion will be brought back over to the Evergreen-General > mailing list soon, as both of these matters are of great significance > to > the future of the Evergreen community. > > Dan > > ----- Forwarded message from "Bradley M. Kuhn" > <[email protected]> ----- > > Date: Thu, 21 Oct 2010 08:32:17 -0700 > From: "Bradley M. Kuhn" <[email protected]> > To: Dan Scott <[email protected]> > 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
