4.5. SR 03-02-2020City of
Elk*
River
Request for Action
To
Item Number
Mayor and City Council
4.5
Agenda Section
Meeting Date
Prepared by
Consent
March 2, 2020
Michael Hecker, Parks and Recreation Director
Item Description
Reviewed by
Front Burner Naming Rights Professional Services
Cal Portner, City Administrator
Agreement
Reviewed by
Action Requested
Approve, by motion, the Front Burner Professional Services Agreement.
Background/Discussion
On February 12, 2020, the City Council interviewed two consulting agencies for naming rights of the
multipurpose facility and Lion John Weicht Park facilities. The two agencies, Superlative and Front Burner
Sports, were discussed again on February 18 and the Council directed staff to negotiate and move forward
with a professional services agreement with Front Burner Sports.
During discussions with Front Burner, it was discussed that a Naming Rights Committee be formed to assist
in developing a list of potential partners, solicitation materials and provide feedback/progress updates. It is
recommended the Committee be a combination of staff and two Council Members. This will be discussed
during the regular business agenda.
The City Attorney reviewed he Professional Services Agreement and Scope as outlined in Exhibit.
Financial Impact
The compensation for the consulting services agreement are as follows: Phase One: $6,000 per month
not to exceed $24,000. Phase Two: $3,000 per month plus a 10% Commission not to exceed $135,000.
This is not a budgeted service. Staff recommends the building fund to pay for these consulting services.
Attachments
■ Naming Rights Professional Services Agreement
■ Naming Rights Professional Services Scope Exhibit A
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional,` 01 e
service, and community engagement that encourages and inspires pi ospei ly INAWRE1
City of
Elk -�-
River
Standard Agreement for Professional Services
THIS AGREEMENT ("Agreement") is made this 2nd day of March, 2020, between the City of Elk River,
Minnesota ("City'), whose business address is 13065 Orono Parkway, Elk River, MN 55330 and Front
Burner Sports and Entertainment ("Consultant") whose business address 513 Greenview Drive,
Chanhassen, MN 55317, registered as a Limited Liability Company in the State of Minnesota.
Preliminary Statement
The City has adopted a policy regarding the selection and hiring of consultants to provide a variety of
professional services for City projects. That policy requires that persons, firms, or corporations providing
such services enter into written agreements with the City. The purpose of this Agreement is to set forth the
terms and conditions for the professional services Consultant will provide in connection with Naming
Rights, herein referred to as the "Work."
The City and Consultant agree as follows:
1. Work. The Consultant agrees to provide the professional services described in Exhibit "A" attached
hereto (the "Work").
2. Time for Performance of Services. The Consultant shall perform the services described in Exhibit
A according to the following schedule:
Phase I: Four months duration beginning March 3, 2020.
Phase II: Beginning after Phase I is completed through December 31, 2021.
4.
Compensation for Services. City agrees to pay the Consultant the following for each phase:
Phase One: $6,000 per month not to exceed $24,000. No itemized expenses.
Phase Two: $3,000 per month plus a 10% Commission on the lifetime value of sold sponsorship
programs with the total compensation for Phase Two (monthly fee plus commission) not to exceed
$135,000. No itemized expenses.
Any changes in the scope of the Work which may result in additional compensation due to the
Consultant shall require prior written approval by an authorized representative of the City or by the
City Council. The City will not pay additional compensation for services that do not have prior
written authorization.
5. The City agrees to provide the Consultant with the information required to complete the Work.
Method of Payment. The Consultant shall submit itemized bills for professional services
performed under this Agreement on a monthly basis. Bills submitted shall be paid in the same
manner as other claims made to the City.
Standard Agreement for Professional Services
Project Manager and Staffing. The Consultant has designated the individuals identified in Exhibit
A as the Project Manager to serve on the Project. The Project Manager shall be assisted by other
staff members as necessary to facilitate the completion of the Project in accordance with the terms
established herein. Consultant may not remove or replace the Project Manager without the approval
of the City.
Standard of Care. Standard of Care. Consultant shall exercise the same degree of care, skill and
diligence in the performance of the Work as is ordinarily exercised by members of the profession
under similar circumstances in Minnesota. Consultant shall be liable to the fullest extent permitted
under applicable law, without limitation, for any injuries, loss, or damages proximately caused by
Consultant's breach of this standard of care. Consultant shall put forth reasonable efforts to
complete its duties in a timely manner. Consultant shall not be responsible for delays caused by
factors beyond its control or that could not be reasonably foreseen at the time of execution of this
Agreement. Consultant shall be responsible for costs or damages arising from unreasonable delays in
the completion of the Work.
Audit Disclosure. The Consultant shall allow the City or its duly authorized agents reasonable
access to such of the Consultant's books and records as are pertinent to the work performed under
this Agreement. Any reports, information, data, etc. given to, or prepared or assembled by, the
Consultant under this Agreement which the City requests to be kept confidential shall not be made
available to any individual or organization without the City's prior written approval. All finished or
unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports
prepared by the Consultant shall become the property of the City upon termination of this
Agreement, but Consultant may retain copies of such documents as records of the services
provided.
10. Term. The term of the Agreement shall be from March 3, 2020 through December 31, 2021 the
date of signature by the parties notwithstanding. This Agreement may be extended upon the written
mutual consent of the parties for such additional period as they deem appropriate, and upon the
terms and conditions as herein stated.
11. Termination. This Agreement may be terminated by the Consultant effective upon sixty (60) days'
written notice delivered to the City at the address written above. The City may terminate this
Agreement effective immediately, upon written notice to the consultant. Upon termination under
this provision, the Consultant shall be paid for services rendered and reimbursable expenses until
the effective date of termination.
If, however, the City terminates this Agreement because the Consultant has failed to perform in
accordance with this Agreement, no further payment shall be made to the Consultant, and the City
may retain another consultant to undertake or complete the Work.
12. Independent Consultant. At all times and for all purposes herein, the Consultant is an
independent contractor and not an employee of the City. No statement herein shall be construed so
as to find the Consultant an employee of the City.
13. Non -Discrimination. During the performance of this Agreement, the Consultant shall not
discriminate against any employee or applicant for employment because of race, color, creed,
religion, national origin, sex, marital status, status with regard to public assistance, disability, or age.
The Consultant shall post in places available to employees and applicants for employment, notices
setting forth the provision of this non-discrimination clause and stating that all qualified applicants
Standard Agreement for Professional Services
will receive consideration for employment. The Consultant shall incorporate the foregoing
requirements of this paragraph in all of its subcontracts for program work, and will require all of its
subcontractors for such work to incorporate such requirements in all subcontracts for program
work.
14. Assignment. Neither party shall assign this Agreement, nor any interest arising herein, without the
prior written consent of the other party.
15. Services Not Provided For. No claim for services furnished by the Consultant not specifically
provided for in Exhibit A shall be honored by the City.
16. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any
reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect
the remaining provisions of this Agreement.
17. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement
supersedes all oral agreements and negotiations between the parties relating to the subject matter
hereof as well as any previous agreements presently in effect between the parties relating to the
subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this
Agreement shall be valid only when expressed in writing and duly signed by the parties, unless
otherwise provided herein.
18. Compliance with Laws and Regulations. In providing services hereunder, the Consultant shall
abide by all statutes, ordinances, rules and regulations pertaining to the provision of services to be
provided. The Consultant and City, together with their respective agents and employees, agree to
abide by the provisions of the Minnesota Data Practices Act, Minnesota Statutes, Chapter 13, as
amended, and the Minnesota Rules promulgated pursuant to Chapter 13. Any violation of statutes,
ordinances, rules and regulations pertaining to the services to be provided shall constitute a material
breach of this Agreement and entitle the City to immediately terminate this Agreement.
19. Waiver. Any waiver by either party of a breach of any provision of this Agreement shall not affect,
in any respect, the validity of the remainder of this Agreement.
20. Indemnification. Consultant agrees to defend, indemnify and hold harmless the City and its
officials, employees and agents from any liability, claims, damages, costs, losses judgments, or
expenses, including reasonable attorney's fees, resulting directly or indirectly from a negligent act or
omission (including without limitation professional errors or omissions) of the Consultant, its
agents, employees, or subcontractors in the performance of the services provided by this Agreement
and against all losses by reason of the failure of said Consultant fully to perform, in any respect, all
obligations under this Agreement.
21. Insurance.
a. General Liability. Prior to starting the Work, Consultant shall procure, maintain and pay for
such insurance as will protect against claims for bodily injury or death, or for damage to
property, including loss of use, which may arise out of operations by Consultant or by any
subcontractor or by anyone employed by any of them or by anyone for whose acts any of
them may be liable. Such insurance shall include, but not be limited to, minimum coverages
and limits of liability specified in this Paragraph, or required by law. The policy(ies) shall
name the City as an additional insured for the services provided under this Agreement and
Standard Agreement for Professional Services
shall provide that the Consultant's coverage shall be primary and noncontributory in the
event of a loss.
b. Consultant shall procure and maintain the following minimum insurance coverages and
Emits of liability on this Project:
Workers Compensation Statutory Limits
Employer's Liability $500,000 each accident
$500,000 disease policy limit
$500,000 disease each employee
Comprehensive General
Liability $1,500,000 property damage and
bodily injury per occurrence
$2,000,000 general aggregate
$2,000,000 Products — Complete
Operations Aggregate
$100,000 fire legal liability each
occurrence
$5,000 medical expense
Comprehensive Automobile
Liability $1,000,000 combined single limit each
accident (shall include coverage for all
owned, hired and non -owned vehicles.
Umbrella or Excess Liability $1,000,000
c. The Comprehensive General/Commercial General Liability policy(ies) shall be equivalent in
coverage to ISO form CG 0001, and shall include the following:
1. Premises and Operations coverage with no explosions, collapse, or underground
damage exclusion (XCU).
2. Products and Completed Operations coverage. Consultant agrees to maintain this
coverage for a minimum of two (2) years following completion of its work. Said
coverage shall apply to bodily injury and property damage arising out of the
products -completed operations hazard.
3. Personal injury with Employment Exclusion (if any) deleted.
4. Broad Form CG 0001 0196 Contractual Liability coverage, or its equivalent.
5. Broad Form Property Damage coverage, including completed operations, or its
equivalent.
6. Additional Insured Endorsement(s), naming the "City of Elk River" as an Additional
Insured, on ISO form CG 20 10 07 04 or such other endorsement form as is
approved by the City.
Standard Agreement for Professional Services
7. If the Work to be performed is on an attached community, there shall be no
exclusion for attached or condominium projects.
8. "Stop gap" coverage for work in those states where Workers' Compensation
Insurance is provided through a state fund if Employer's liability coverage is not
available.
9. Severability of Insureds provision.
d. Professional Liability Insurance. The Consultant agrees to provide to the City a certificate
evidencing that they have in effect, with an insurance company in good standing and
authorized to do business in Minnesota, a professional liability insurance policy. Said policy
shall insure payment of damage for legal liability arising out of the performance of
professional services for the City. Said policy shall provide an aggregate limit of $2,000,000.
Said policy shall not name the City as an insured.
e. Consultant shall maintain in effect all insurance coverages required under this Agreement at
Consultant's sole expense and with insurance companies licensed to do business in the state
in Minnesota and having a current A.M. Best rating of no less than A-, unless specifically
accepted by City in writing. In addition to the requirements stated above, the following
applies to the insurance policies required under this Paragraph:
1. All policies, except the Professional Liability Insurance policy, shall be written on an
"occurrence" form ("claims made" and "modified occurrence" forms are not
acceptable);
2. All policies, except the Professional Liability Insurance policy, shall be applied on a
"per project" basis;
3. All policies, except the Professional Liability Insurance and Worker's Compensation
Policies, shall contain a waiver of subrogation naming "the City of Elk River";
4. All policies, except the Professional Liability Insurance and Worker's Compensation
Policies, shall name "the City of Elk River" as an additional insured;
5. All policies, except the Professional Liability Insurance and Worker's Compensation
Policies, shall insure the defense and indemnity obligations assumed by Consultant
under this Agreement; and
6. All policies shall contain a provision that coverages afforded thereunder shall not be
canceled or non -renewed, nor shall coverage limits be reduced by endorsement,
without thirty (30) days prior written notice to the City.
A copy of the Consultant's Certificate of Insurance which evidences the compliance with this
Paragraph 20, must be filed with City prior to the start of Consultant's Work. Upon request, a copy of
the Consultant's insurance declaration page, Rider and/or Endorsement, as applicable shall be provided.
Such documents evidencing Insurance shall be in a form acceptable to City and shall provide satisfactory
evidence that Consultant has complied with all insurance requirements. Renewal certificates shall be
provided to City prior to the expiration date of any of the required policies. City will not be obligated,
however, to review such Certificate of Insurance, declaration page, Rider, Endorsement or certificates or
other evidence of insurance, or to advise Consultant of any deficiencies in such documents and receipt
thereof shall not relieve Consultant from, nor be deemed a waiver of, City's right to enforce the terms of
Consultant's obligations hereunder. City reserves the right to examine any policy provided for under this
paragraph.
f. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to provide the
specified insurance, then Consultant will defend, indemnify and hold harmless the City, the
City's officials, agents and employees from any loss, claim, liability and expense (including
reasonable attorney's fees and expenses of litigation) to the extent necessary to afford the
same protection as would have been provided by the specified insurance. Except to the
Standard Agreement for Professional Services
extent prohibited by law, this indemnity applies regardless of any strict liability or negligence
attributable to the City (including sole negligence) and regardless of the extent to which the
underlying occurrence (i.e., the event giving rise to a claim which would have been covered
by the specified insurance) is attributable to the negligent or otherwise wrongful act or
omission (including breach of contract) of Consultant, its subcontractors, agents, employees,
or delegates. Consultant agrees that this indemnity shall be construed and applied in favor of
indemnification. Consultant also agrees that if applicable law limits or precludes any aspect
of this indemnity, then the indemnity will be considered limited only to the extent necessary
to comply with that applicable law. The stated indemnity continues until all applicable
statutes of limitation have run.
If a claim arises within the scope of the stated indemnity, the City may require Consultant to:
1. Furnish and pay for a surety bond, satisfactory to the City, guaranteeing performance
of the indemnity obligation; or
2. Furnish a written acceptance of tender of defense and indemnity from Consultant's
insurance company.
Consultant will take the action required by the City within fifteen (15) days of receiving
notice from the City.
22. Records Access. The Consultant shall provide the City access to any books, documents, papers,
and records which are directly pertinent to the specific contract, for the purpose of making audit,
examination, excerpts, and transcriptions, for three years after final payments and all other pending
matters related to this contract are closed.
23. Ownership of Documents. All plans, diagrams, analyses, reports and information generated in
connection with the performance of the Agreement ("Information") shall become the property of
the City. The City may use the Information for its purposes and the Contractor also may use the
Information for its purposes. Reuse of the Information for the purposes of the project
contemplated by this Agreement ("Pro)ect") does not relieve any liability on the part of the
Contractor, but any reuse of the Information by the City or the Contractor beyond the scope of the
Project is without liability to the other, and the party reusing the Information agrees to defend and
indemnify the other from any claims or liability resulting therefrom.
24. Subcontractor. The Consultant shall not enter into subcontracts for services provided under this
Agreement except as noted in Exhibit A, without the express written consent of the City. The
Consultant shall pay any subcontractor involved in the performance of this Agreement within ten
(10) days of the Consultant's receipt of payment by the City for undisputed services provided by the
subcontractor. If the Consultant fails within that time to pay the subcontractor any undisputed
amount for which the Consultant has received payment by the City, the Consultant shall pay interest
to the subcontractor on the unpaid amount at the rate of 1.5 percent per month or any part of a
month. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is
$10. For an unpaid balance of less than $100, the Consultant shall pay the actual interest penalty due
to the subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from
the Consultant shall be awarded its costs and disbursements, including attorney's fees, incurred in
bringing the action. In addition, no subcontractor can file alien against the City.
Standard Agreement for Professional Services
25. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from or related to this
Agreement or the relationships which result from this Agreement shall be subject to mediation as a
condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the
parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation
Procedures of the American Arbitration Association then currently in effect. A request for
mediation shall be filed in writing with the American Arbitration Association and the other party.
No arbitration or legal or equitable action may be instituted for a period of ninety (90) days from the
filing of the request for mediation unless a longer period of time is provided by agreement of the
parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the
City of Elk River unless another location is mutually agreed upon by the parties. The parties shall
memorialize any agreement resulting from the mediation in a Mediated Settlement Agreement,
which Agreement shall be enforceable as a settlement in any court having jurisdiction thereof.
26. Conflicts. No salaried officer or employee of the City and no member of the City Council of the
City shall have a financial interest, direct or indirect, in this Agreement. The violation of this
provision renders the Agreement void. Any federal regulations and applicable state statutes shall not
be violated.
27. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be
considered an original.
28. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes
all prior communications, understandings and agreements relating to the subject matter hereof,
whether oral or written.
29. Governing Law. This Agreement shall be controlled by laws of the State of Minnesota.
Executed as of the day and year first written above.
City of Elk River
Mayor
City Clerk
Firm Name
Standard Agreement for Professional Services
City of
Elk -�-
River
Standard Agreement for Professional Services
Naming Rights Consulting Services
Scope of Services - Exhibit A
Phase
Front Burner shall provide professional services to assist the City in valuing, soliciting and evaluating
proposals for, and negotiating third -party naming rights agreements and additional sponsorship agreements
for the Elk River Multipurpose facility and Lion John Weicht Park. The primary assets to be evaluated
include:
■ Multipurpose Facility Name
■ Ice Arena One
■ Ice Arena Two
■ Field House
■ Field House Dryland Area
■ Senior Center
■ Senior Center Flex Meeting Space
■ Cafe
■ Party/Meeting Rooms First Floor
■ Party/Meeting Rooms Second Floor
■ Lion John Weicht Park Concessions and Shelter Building
1. Discovery and Valuation
a. Front Burner will tour the multipurpose facility and Lion John Weicht Park both currently under
construction and review building architectural plans to gain a deeper understanding of the available
assets that may be utilized in a Naming Rights agreement to uncover underutilized assets that can be
created to make a program more attractive to a potential advertiser.
b. Conduct a kickoff meeting with the City to discuss project background, roles and responsibilities,
exchange pertinent information and define Elk River project goals.
c. Conduct interviews with key stakeholders of the new facilities, including but not limited to City staff,
Elk River City Council Members, Parks and Recreation Commissioners, third party vendors, Active
Elk River Committee members and user groups. The purposes of these meetings are to understand
goals and objectives of each group and gather accurate data on potential site traffic. This
information will begin to build the value proposition that will be presented to potential naming
rights partners and uncover opportunities to partner with outside groups to make the naming rights
offering more attractive to potential partners.
City of Elk River — Naming Rights Professional Service Scope Exhibit A
d. Research and review existing naming rights agreements, including similar government and private -
sector naming rights initiatives and reviewing City agreements for sponsorships, banners and
advertising.
e. Conduct a market prospect audit to build out a target list of potential naming rights partners. This
Est shall be reviewed by the City to determine if any partner categories should not be pursued.
f. Deliver the following deliverables at the end of discovery and valuation for Phase I:
1. Comprehensive facility rate card, outlining all identified assets available for use in a naming
rights agreement and proposed rates for each asset
2. Project summary document, outlining goals for the project as stated in interviews
conducted by Contractor and will make recommendations as to the best path for success
3. Benchmarking or "Like facility" research document, summarizing other facilities in the
market specific to current naming rights and valuations on available advertising assets
4. Updated naming rights prospect list, including names and contact of the companies to be
contacted about naming rights partnerships
5. Suggested naming rights valuation package outline, including an initial assessment of the
naming rights program value as well as a suggested list of assets to include in the future
naming rights marketing package. This would also include an analysis of other entitlement
opportunities or partnerships that may be viable.
2. Development of Solicitation Materials
a. Work with the City to develop an "elevator pitch" and FAQ document that can be used as the basis
for discussions with potential naming rights partners and other potential facility partners.
b. Research prospective companies in Elk River and the region that should be contacted in naming
sponsorship packages.
c. Create comprehensive sales materials that outline available opportunities to potential partners. This
document will include not only information about the property but will also provide potential
partners with compelling reasons why this opportunity is valuable.
d. Develop the advertising package by determining whether to sell each sponsor placement individually
or bundle the assets into packages.
e. Implement the required letters of intent and associated agreements necessary to secure sponsors,
naming rights organizations and advertisers.
City of Elk River — Naming Rights Professional Services Scope Exhibit A - 2
Phase 11
1. Active Presentation of Opportunity
a. Commence a targeted and aggressive outbound sales outreach based on the contact list refined
in Phase One.
b. Work with the City on any final negotiations with potential naming rights partners, incorporating
best practices in terms of asset production, term of agreement, contract structure, cost controls
and optimization of realized revenue. The City will provide template contract as a starting point.
c. During this phase, provide the City with reports every two weeks detailing Contractor's activity
on this project, including but not limited to a description of the companies that have been
contacted about this opportunity, where they are in the sales cycle, projected investment levels,
possible roadblocks and future steps. Additionally, Contractor shall meet with the City Naming
Rights Committee every four to six weeks either by phone or in person to provide progress
updates.
d. Continue to review community input to assess sponsorship related trends, requests made to city
officials from interviews with businesses and organizations in order to gather leads for priority
prospects.
2. Contracting, Activation and Sale of Additional Partnerships
a. After successfully securing a naming rights partner or other partners for the City, Contractor will
work with City staff to execute contracts and oversee the installation and activation of assets.
b. At the conclusion of this phase, provide a final report summarizing all delivered assets, contact
information for any vendors used for production and/or installation and instructions for
activation of the agreement for future years.
c. The above shall be construed as an anticipated approach. Contractor is responsible to perform
all professional services necessary to secure the best possible naming rights and sponsorships for
the City.
d. Time is of the essence on this project as the multipurpose has a grand opening anticipated for
late fall 2020. Contractor and the City shall work together to expedite the process of securing a
naming rights agreement in the best interest of the City.
Additional Requirements
The City of Elk River shall provide relevant requested information on all of the above stated phases and tasks in
addition to:
a. Providing insight into planning relative to the use of the multipurpose facility, Active Elk River,
knowledge of the community and in particular, user groups and stakeholders.
b. Review and discuss with the Naming Rights Committee the city's current Naming Policy approved
by City Council November 19, 2012. Make changes, as deemed necessary, to better fit in with the
solicitation materials.
City of Elk River — Naming Rights Professional Services Scope Exhibit A - 3
c. The Contractor shall make every reasonable effort to maintain a sufficient staff, facilities, and
equipment to deliver the services. The Contractor shall within ten (10) days notify the City in
writing whenever it is, or reasonably believes it is going to be, unable to provide the required
quality or quantity of services. The foregoing conditions will be subject to the provisions of the
Force Majeure Clause of this Agreement.
d. The Contractor agrees to furnish the city with additional programmatic and financial information it
reasonably requires for effective monitoring of services. Such information shall be furnished
within a reasonable period, set by the city, upon request.
City of Elk River — Naming Rights Professional Services Scope Exhibit A - 4