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4.8. SR 11-07-2016 Eclty1� ,.,�� Request for Action River To Item Number Mayor and City Council 4.8 Agenda Section Meeting Date Prepared by Consent November 7, 2016 Cal Portner, City Administrator Item Description Reviewed by Sales and Marketing Agreement Reviewed by Action Requested Approve,by motion, a Sales and Marketing Agreement with Decklan Group. Background/Discussion The Elk River Ice Arena solicits advertising as a revenue source to offset facility operations and maintenance. On September 6, 2016, the Council approved an advertising agreement between the city and RinkSide Advertising. RinkSide packages ice arena dasher boards from multiple arenas to regional and national clients. The Arena has a number of advertising opportunities with local companies. The Decklan Group will package Ice Arena and Athletic Complex advertising opportunities with regional businesses interested in longer-term contracts with multiple ad spaces. The city retains the right of refusal for ads and has a termination clause if the partnership is found to not be in our best interest. Financial Impact The goal is to increase revenue for both the Ice Arena and recreation department. There is no cost to the city. Attachments ■ Sales and Marketing Agreement POWERED 6T Template Updoted 4/14 INAWRE1 SALES AND MARKETING AGREEMENT- City of Elk River This Agreement("Agreement")is made effective as of October 1st, 2016, by City of Elk River, 13065 Orono Parkway, Elk River, MN 55330,and Decklan Group, LLC, 812 Main St. Suite 250, Elk River, Minnesota 55330. Furthermore, the party who is contracting to receive services, City of Elk River shall be referred to as "Client," and the party who will be providing the services, Decklan Group LLC, shall be referred to as "Consultant." Consultant has a background in sales and marketing development and management and is willing to provide services to Client based on this background. Client remains responsible for all ramifications resulting from Client approved projects. Client desires to exclusive sales and creative rights of identified properties assigned to Consultant, as described in Section 1 below, provided by Consultant. Therefore, the parties agree as follows: 1. DESCRIPTION OF SERVICES. Beginning on November 1st, 2016 Consultant will be granted exclusive sales and creative rights to all space on and within all Client owned athletic fields, facilities, and associated properties as outlined in Appendix A;with exception of Client owned ice arenas, which shall be non-exclusive. Consultant is solely responsible for the development of programs and mediums, installation of mediums, pricing structures, advertiser contracts, vendor contracts, third party seller agreements, and the management thereof. 2. APPROVAL OF ADVERTISING. Client shall approve or deny any marketing content proposed by Consultant within 5 business days of formal submittal of proof. Should any proposed content be denied, Client shall provide Consultant with reasoning for their decision and any potential remedies to obtain approval. 3. PERFORMANCE OF SERVICES. The manner in which the Services are to be performed and the specific hours to be worked by Consultant shall be determined by Consultant. Client will rely on Consultant to work as many hours as may be reasonably necessary to fulfill Consultant's obligations under this Agreement. 4. OUTCOME OF APPLICATION. Consultant makes no guarantee as to the success and or revenues generated by this contract. 5. PAYMENT. Consultant shall pay Client an amount equal to fifty-seven percent (57%) of ad and sponsorship space revenues. Consultant is responsible for the production, design, and material associated with installation of medium. Client shall not be entitled to any materials or design cost revenue. Payment shall be made monthly to Client based on previous month's applicable revenues collected. Consultant shall provide Client a detailed summary of revenues generated along with all payments. 6. SUPPORT SERVICES. Client will provide the following support services for the benefit of Consultant: provide all requested field and facility dimensions/blueprints/schematics, professional installation services for any agreed upon permanent modification to facilities, 1 current advertiser agreements, and any other public information deemed by Consultant to be of value. Consultant shall return all requested materials provided by Client immediately upon termination of this Agreement. 7. NEW PROJECT APPROVAL. Consultant and Client agree that, unless terminated earlier pursuant to Section 9 below, Consultant's Services will terminate on November 1st, 2021. Should Client desire to continue this Agreement beyond sixty (60) months, Client shall enter into a new agreement with Consultant prior to the commencement of a new project or continuation of services. 8. REPLACEMENT OF DAMAGED MATERIALS. Consultant will be responsible for the timely replacement of any advertising medium damaged by typical athletic activity, or natural events/disaster. Consultant authorizes Client to make any such repair upon electronic mail notification in an amount no greater than one-hundred dollars ($100.00), unless otherwise notified by Consultant within sixty(60) minutes of electronic notification. 9. EXISTING AGREEMENTS. Consultant understands and accepts that there may be existing advertising contracts in place for the Elk River Ice Arena. These contracts, including Clients internal programs and their pricing will be honored for the duration of the existing contract.Client shall provide copies of these contracts and any additional details to Consultant as soon as reasonably possible after execution of this agreement. Client shall not be entitled to remove any paid content for replacement with unpaid content. 10. ERRORS AND OMISSIONS. Consultant shall provide services under this Agreement in a competent and professional manner, consistent with the standards of the industry. Consultant shall not be liable for any additional expenses incurred, or contracts lost by Client, caused by Client's delay,omission,or error in providing documents,information,or approvals to Consultant. Client shall hold Consultant harmless from liability for any terminable advertisements which are approved by Client but are subsequently found to be damaging to the Client's brand or image. Consultant assumes no responsibility for the accuracy of information provided by Client. Consultant shall remove any material approved material pursuant to this Agreement in a reasonable amount of time upon notice from Client to do so, and Consultant shall be available to Client on a 24-hour-a-day basis to receive such notice. In the event of such notice, Client shall be solely responsible for any damages, or refunds due to previously approved advertiser under contact with Consultant. 11. DATA PRACTICES COMPLIANCE. Consultant will have access to data collected or maintained by the Client to the extent necessary to perform Consultant's obligations under this Agreement. Consultant agrees to maintain all data obtained from the Client in the same manner as the Client is required under the Minnesota Government Data Practices Act, Minn. Stat. Chap. 13 (the"Act"). 12. TERM/TERMINATION. This agreement shall terminate automatically on November 1st, 2021, unless earlier terminated by Client. Client shall have the right to immediately terminate this Agreement for any reason upon 30-day written notice to Consultant. At which time all existing advertising agreements, terms, and revenues shall be honored. 13. RELATIONSHIP OF PARTIES. It is understood by the parties that Consultant is an independent contractor with respect to Client and not an employee of Client. Client will not provide fringe 2 benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of Consultant. 14. EMPLOYEES. Consultant's employees, if any, who perform services for Client under this Agreement shall also be bound by the provisions of this Agreement. 15. ASSIGNABILITY. Consultant shall be allowed to assign and transfer this agreement to any wholly, or partially owned subsidiary of Decklan Group, LLC. for any reason it deems necessary. Client agrees that this agreement shall not be altered or voided in the event a reassignment should take place and agrees to sign any necessary documents to maintain the agreements continuity during the transfer. 16. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the Unites States mail, postage prepaid, addressed as follows: IF for Client: City of Elk River Cal Portner, City Administrator 13065 Orono Parkway Elk River, MN 55330 IF for Consultant: Decklan Group Annie Deckert, President 812 Main St Suite 250 Elk River, MN 55330 Such address may be changed from time to time by either party by providing written notice to the other in manner set forth above. 17. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties. 18. AMENDMENT. This Agreement may be modified or amended only if the amendment is made in writing and signed by both parties. 19. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provisions it would become a valid and enforceable agreement, then such provision shall be deemed written, constructed, and enforced as so limited. 20. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 3 21. APPLICABLE LAW. This Agreement shall be governed by the laws by the State of Minnesota. 22. ATTORNEY FEES. If either party brings legal action to enforce its rights under this agreement, the prevailing party will be entitled to recover its expenses (including reasonable attorneys' fees) incurred in connection with the action and any appeal. Party receiving services: City of Elk River By: Date: John Dietz Mayor By: Date: Tina Allard City Clerk Party providing services: Decklan Group, LLC By: Date: Annie B. Deckert President 4 Appendix A: The following is a list of areas that may be used as marketing material locations. Client must approve of any advertising content and location per Section 2 of this agreement. Additional locations may be added at any time during this agreement with written consent of both parties. Ice Arenas • Exterior fagade • Interior and exterior doors • Rugs and floor coverings • Interior wall space • Trophy cases • Restroom stalls • Barn "shooting area" • Score boards • Bleachers and steps • Dasher boards • In-ice options • Staircases • Goal judge boxes • Trash and recycling receptacles • Rafter space • Interior and exterior tables and chairs • Locker rooms • Digital Displays • Wi-fi consent screens Baseball/Softball Fields • All fencing • All dugouts • Concession stands • Pavilions/shelters • Bleachers and steps • Batting cages • Trash and recycling receptacles • Light poles • Foul poles • Scoreboards • Digital Displays • Temporary on-field gameday items (flags, sideline padding, temporary fencing, etc.) • Wi-fi consent screens 5 Football/Soccer/Lacrosse Fields • Light posts • Goal posts • Scoreboards • All fencing • Bleachers and steps • Temporary on-field gameday items (flags, sideline padding, temporary fencing, etc.) • Wi-fi consent screens 6