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4.4 SR 08-21-2023�, Elk s �- River Request for Action To Item Number Ma Tor and CinT Council 4.4 Agenda Section Meeting Date Prepared by GeneYal Business Au ust 21, 2023 oe Stremcha, Assistant Cit�r Admitustrator Item Description Reviewed by Youth Athletic Complex Naming Rights Agreement Cal Portner, Ci r Administrator Reviewed by Action Requested Approve, byT motion, an agreement with Plants and Things USA, Inc. for the naming rights to the Youth Athletic Complex (YAC) to become the Plants and Things Recreation Complex. Background/Discussion Staff Yeceived a letteY of intent fYom Steve and Jeff Hickman demonstrating their inteYest to Yename YAC and sponsor the athletic complex. Keyr points of the pYoposed agreement include the following: ■ $35,000 per yeaY — 10-yeaY contract ■ Naming rights to the complex ■ Prominent branding and designated show floor/concrete patio space ■ Various complex upgrades related to signage ■ Opportunities to engage with our communityT through special events ■ 50/50 cost share for high`vayT/road signage agreeable byT both parties Staff has determined the initial request to rename YAC follows the cityT's naming policyT criteria. The Parks and Recreation Commission reviewed the letter of intent at their meeting on July 12. The Commission suppoYted the Yenaming of the complex based on the terms outlined in the letteY of inteYest. The Commission supports having the money from this agreement specificallyT allocated towards improvements at this complex. Financial Impact The cost to change signage and install a concrete patio is still being explored. Mission/Policy/Goal OpportunityT to live, work and p1a�T Attachments ■ Plants and Things Letter of Intent ■ Youth Athletic Complex Naming Rights Agreement The Elk River Vision A 2a�elcolning co�nlnunity 2a�ith T evolutiona� y and spizzted T esou� cefulness, exceptional se�vice, and coln�nunity engagelnent that encou�ages and ins�iz•es pTo�pe�zty. rowEREo ar �I'1 ���� Update�l• January 2023 PLANTS ANDTHINGS . FURNITURE ANDTHINC'S July 10, 2023 Billy Hunter Furniture and Things Community Event Center 1000 School Street Elk River, MN 55330 Dear Mr. Hunter: This letter of intent is meant to demonstrate our commitment to beginning the process of formalizing a partnership between Plants and Things and the City of Elk River. It outlines our shared goals, intentions, and potential areas of collaboration and agreement in principle to the City's proposal presented to us on June 28, 2023. Key Points of Agreement: • $35,000 per year —10 -year eontraet of YAC (Youth Athletie Complex) and future expansion of YAC • Re-naming rights to the complex —"Plants and Things Athletic Complex" • Prominent branding and designated show floor/concrete patio space • Sponsor and Championship field rights, similar to the main rink at FT Community Event Center • Recognition in marketing and promotional materials - TBD • Various complex upgrades related to signage. • Opportunities to engage with our community through special events and activities. • Market and promote products to the community. • 50/50 cost share for highway/road signage agreeable by both parties We request the Parks Commission and City Council consider our partnership opportunity and direct staff to negotiate a formal agreement outlining additional details utilizing the framework established by the sponsorship agreement at the Furniture and Things Community Event Center. Sincerely, ���� ���� �._� Steve Hickman Furniture and Things .�.,Y ,�� -- Jeff Hickman Plants and Things 15612 JARVIS ST. NW, ELK RIVER, MN 55330 763-441-7011 � FURNITUREANDTHINGS.COM � PLANTSANDTHINGSUSA.COM ELK RIVER RECREATIONAL COMPLEX NAMING RIGHTS AGREEMENT THIS NAMING RIGHTS AGREEMENT ("Agreement") is made as of this 215t day of August 2023 (the "Effective Date"), by and between the CITY OF ELK RIVER, a Minnesota municipal corporation ("City"), and PLANTS AND THINGS , INC./FURNITURE AND THINGS, INC., a Minnesota Corporation ("Primary Sponsor"). The following recitals form the basis for this Agreement and are made a part hereof. RECITALS 1. The City of Elk River owns the Elk River recreational complex ("Facility") with a street address of 9950 165th Avenue, Elk River, MN 55330 and 9730 165th Avenue, Elk River, MN. 2. Primary Sponsor is a furniture retailer located at 15612 Jarvis ST NW Elk River, MN 55330 with the intent of attaining exclusive naming rights to the Facility. 3. The City and Primary Sponsor enter into this Agreement whereby in exchange for Primary Sponsor's agreement to make initial and annually recurring Contributions (as hereinafter defined) to the City for deposit to the Facility fund, the City agrees to grant to Primary Sponsor the naming rights for the Facility, as set forth and agreed to in this Agreement. 4. Other than the naming rights set forth and agreed to in this Agreement, the City is not giving Primary Sponsor anything of value for the Contributions. AGREEMENT NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS, THE MUTUAL PROMISES AND CONSIDERATIONS SET FORTH BELOW, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE CITY AND PRIMARY SPONSOR AGREE AS FOLLOWS: Article I Facility Name and Naming Rights Facility. The City grants to Primary Sponsor exclusive naming rights for the Facility. 2. Facility Name and Logo. The City and Primary Sponsor will work together to create a name and logo for the Facility that showcases Primary Sponsor's business. a. The name and logo will be agreed on by the parties and approved by the Elk River City Council. 3. Facility Signage and Related Naming Rights Assets. a. Primary Sponsor will be permitted Facility signage as listed and depicted in Exhibit A, which is attached hereto and incorporated herein. b. In addition to signage, Primary Sponsor is granted the related naming rights assets enumerated and depicted in Exhibit A. c. The City will fabricate and install the signage and related naming rights assets and will own, maintain, and replace (if required due to normal wear and tear) during the term of this Agreement. d. The City and Primary Sponsor will work together to develop a signage package and a budget for the signage and additional naming rights assets. The City and Primary Sponsor will share the signage expense equally. Primary Sponsor will also be responsible for any future costs for signage or other naming rights assets related to a request by Primary Sponsor to modify or change the name or logo of the Facility. Article II Exclusivity Exclusivity. Primary Sponsor will have category exclusivity for all advertising within the Facility. The City will not make agreements with any Primary Sponsor "Competitor." "Competitor" is defined as a retail business engaged exclusively or primarily in furniture and/or garden center sales. By way of example, this would include, but not be limited to, businesses such as Hom Furniture, Ashley Furniture, By the Yard inc., etc. Competitors do not include businesses such as Target, Walmart, Menards, etc., that may sell furniture and/or have a home and garden center but are not engaged exclusively or primarily in retail furniture and/or home and garden center sales or outdoor sheds and furnishings. 2. Secondary Sponsors. The City reserves the right to sell advertising and entitlement to secondary sponsors, excluding Competitors ("Secondary Sponsors"), as set forth herein for naming of other current or future physical spaces within the Facility, including the football/lacrosse/soccer rectangular fields, baseball/softball fields, training/warmup areas, playground, concessions building, and such other areas as may be delineated or added in the future. The City also reserves the right to sell entitlement to Secondary Sponsors for naming of other Facility assets including, but not limited to, fence signs, equipment wraps, etc. Article III Contribution Primary Sponsor hereby agrees to make an initial contribution ("Contribution") to City of Thirty- Five Thousand and 00/100 dollars ($35,000.00) payable in full on the Effective Date of this Agreement. Thereafter, on or before each annual anniversary of the Effective Date, each year during the term of this Agreement, Primary Sponsor shall make an annual contribution of Thirty- Five Thousand and 00/100 dollars ($35,000.00). Article IV Relationship of Parties; No Property Interest Relationship of the Parties. Under this Agreement, the parties shall at all times be acting and performing as independent contractors. Nothing contained in this Agreement shall be construed to create a j oint venture, principal, and agent, or any similar legal or equitable relationship between the parties. Neither party shall have or exercise any control or direction over the methods by which the other party provides services contemplated by this Agreement. Nothing in this Agreement shall be construed to give Primary Sponsor any control over or responsibility for operation of the Facility. 2. No Property Interest. Nothing in this Agreement shall be construed as granting to Primary Sponsor any property interest in any City-owned property. The City maintains all its rights as the fee owner of the Facility and all improvements thereon on behalf of itself and the public. Article V Term and Termination Fixed Term. The Term of this Agreement shall commence on the Effective Date and remain in effect for a period of ten (10) years, until the lOth anniversary of the Effective Date (the "Expiration Date"). 2. Early Termination. Early termination by Primary Sponsor. Primary Sponsor may terminate this Agreement for any reason, effective on the fifth (Sth) anniversary of the Effective Date by giving City no less than one (1) year's written notice of its intent to terminate. If Primary Sponsor terminates this Agreement on the fifth (Sth) anniversary of the Effective Date, Primary Sponsor shall pay City, at the time of its written notice of termination, a$50,000 early termination fee in lieu of the annual $35,000 contribution. b. Early Termination for Cause. Either party may terminate this Agreement for good cause shown. The terminating party shall give a written "Notice of Intent to Terminate" the Agreement. The Notice of Intent to Terminate the Agreement shall set forth the reason(s) for termination of the Agreement and shall allow for a"Cure Period" during which time the non-terminating party shall have the opportunity to cure the purported breach or default. If either party fails to cure and Good Cause continues to exist following the applicable cure period, the other party shall be entitled to terminate the Agreement or seek specific performance, and in any event, may sue for damages. In any action for damages under this Agreement, neither party shall be liable or responsible under any circumstances for consequential, incidental, indirect lost profit, or punitive damages of any kind. c. "Good cause" for City to terminate includes, but is not limited to, the following: i. Any material breach of the terms, conditions, and obligations of this Agreement by Primary Sponsor; ii. Failure by Primary Sponsor to deliver the contributions provided for in Article III hereof. The Opt-out fee provided for in Article V(2)(a) hereof, or any required payment as set forth herein; iii. Any crime by Primary Sponsor or any principal or owner of Primary Sponsor that causes Primary Sponsor to come into disrepute in the greater Elk River Area; iv. Occurrence of insolvency or bankruptcy of Primary Sponsor, or upon the general assignment by Primary Sponsor for the benefit of creditors, or upon the consent of Primary Sponsor to the appointment of a receiver, trustee, or liquidator of all or substantially all its property; or v. Occurrence of a Transfer Event which City has not consented to, as provided in Article VII of this Agreement. d. "Good cause" for Primary Sponsor to terminate includes, but is not limited to, the following: Any material breach of the terms, conditions, and obligations of this Agreement by City; 3. Removal of Signs, Logos, and Marks. Upon termination or expiration of this Agreement, City shall have the right to remove all signs, logos, and marks in all locations throughout the Facility at no cost to the primary sponsor. 4. First Right of Renewal. a. Primary Sponsor shall have the first right to renew this Agreement beyond the Expiration Date by delivering written notice of its desire to do so at least one year before the Expiration Date. b. If Primary Sponsor provides notice of its desire to renew the Agreement, the parties will enter into a good faith negotiation to renew the Agreement on terms acceptable to both parties. All the terms of the Agreement shall be subject to negotiation. c. If terms to a new Agreement are not agreed to six (6) months before the Expiration Date, the parties may, at their option, continue negotiations, but City shall have the right to negotiate with third parties for a new Naming Rights Agreement and doing so will not constitute bad faith. d. This First Right of Renewal does not obligate either party to agree to a renewed agreement, nor to agree to any particular terms of a new agreement. The intent of this Article V, Section 4, is simply to provide a minimum six-month (6-month) period during which Primary Sponsor shall have the exclusive right to negotiate with City to renew this Agreement. Article VI Indemnification; Insurance Indemnification. Without a waiver of City's statutory immunities pursuant to Minnesota Statutes Chapter 466 or other applicable law, each party agrees to defend, hold harmless and indemnify the other Party against any and all claims, liabilities, damages, judgments, costs, and expenses (including reasonable attorneys' fees and costs) asserted against, imposed upon, or incurred by the other Party that arises out of, or in connection with, the Party's default under or failure to perform any contractual or other obligations, commitment, or undertaking under this Agreement. Each Party further agrees that it shall be responsible for its own acts and results thereof to the extent authorized by law and shall not be responsible for the acts of the other Party and results thereof. The provision of this Article shall survive the termination of the Agreement with respect to any claim, action, or proceeding that relates to acts or omissions during the term of this Agreement. 2. Insurance. The City shall maintain such insurance as is customarily maintained by owners of comparable facilities. Article VII Assignment 1. City shall be free to assign any of its rights or obligations under this Agreement to any successor in interest to City-owned property. 2. In the event Primary Sponsor shall propose to undergo a change in control, sell, assign, merge, reorganize, consolidate, or otherwise dispose of its business (any of the foregoing being a "Transfer Event"), Primary Sponsor shall notify City of such fact within thirty (30) days prior to such proposed Transfer Event. The notice shall state whether the Transfer Event will or could affect the exercise of Primary Sponsor's rights hereunder or whether it could result at any point in the renaming of the Facility and, if so, the new name proposed by Primary Sponsor or its successor. a. If a new name and/or logo for the Facility is proposed in connection with a Transfer Event, the new name and logo must be agreed to by City and approved by the City Council in its sole discretion. 3. If, as a result of the Transfer Event, Primary Sponsor would not be the holder of rights under this Agreement, or Primary Sponsor is not the successor in the Transfer Event, then City's written consent to the Transfer Event shall be required. If City consents, the successor in the Transfer Event shall assume all of the obligations of Primary Sponsor under this Agreement and shall have all of the rights and obligations of Primary Sponsor under this Agreement. 4. In the event that a proposed Transfer Event will result in the renaming of the Facility to a company whose business conflicts with a naming rights or other agreement City has with respect to the Facility, or a company whose business practices could be detrimental to the public image or reputation of City or the Facility, in the sole discretion of City, then City shall have the right to terminate this Agreement by written notification within sixty (60) days after receiving notice of such proposed Transfer Event. In the event of such termination, Primary Sponsor shall be obligated to pay all funds contemplated by this Agreement to be due and payable through the Expiration Date. 5. No Transfer Event shall relieve Primary Sponsor and any successor entity from being jointly and severally liable for payment and performance of all obligations of Primary Sponsor under this Agreement if the City does not exercise its right of termination as provided in Sec. VII (4). Article VIII Notices All notices hereunder by either Party to the other shall be in writing. All notices, demands, or requests shall be deemed given when mailed, postage prepaid, registered, or certified mail, return receipt requested. If to the City: City of Elk River Attn: City Administrator 13065 Orono Parkway Elk River, NIN 55330 If to Primary Sponsor: Plants and Things/Furniture and Things 9792 Gateway Road Elk River, NIN 55330 Article IX General Provisions Amendments. Neither this Agreement nor any term or provision hereof may be changed, waived, discharged, or terminated, except by a written instrument signed by the Parties hereto. 2. Interpretation of Agreement. The captions preceding the articles and sections of this Agreement have been inserted for convenience of reference only and such captions shall in no way define or limit the scope of intent of any provision of this Agreement. Unless otherwise provided herein, whenever the consent of City is required to be obtained, City may give or withhold such consent in its sole and absolute discretion. Severability. If any provision of this Agreement or the application thereof to any person, entity, or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each other provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. 4. Attorneys' Fees. In the event of a dispute regarding any provision of this Agreement, the Party not prevailing in such dispute shall pay any and all costs and expenses incurred by the other Party in enforcing or establishing its rights hereunder (whether or not such action is prosecuted to judgment), including without limitation, court costs and attorneys' fees. 5. Time of Essence. Time is of the essence with respect to all provisions of this Agreement in which a definite time for performance is specified including, but not limited to, the expiration of the term. 6. Cumulative Remedies. All rights and remedies of either party hereto set forth in this Agreement shall be cumulative, except as may otherwise be provided herein. 7. Survival of Indemnities. Termination of this Agreement shall not affect the right of City or Primary Sponsor to enforce any and all indemnities and representations and warranties given or made to the other Party under this Agreement, nor shall it affect any provision of this Agreement that expressly states it shall survive termination hereof. 8. Entire Agreement; Exhibits. This Agreement, including exhibits, shall constitute the entire agreement of the Parties. Any and all prior agreements or understandings of the Parties shall, upon execution of this Agreement, be null and void. 9. Waiver. a. Any term or condition of this Agreement may be waived at any time by the Party entitled to the benefit thereof. The waiver of any term or condition shall not be construed as a waiver of any other term or condition of this Agreement. b. The failure of either Party to give notice or demand strict performance by the other of any of the terms, obligations, covenants, or conditions set forth herein shall not be construed as a waiver or relinquishment of the other Party's right to seek a remedy for or demand strict performance of said terms, obligations, covenants and conditions. The failure to terminate this Agreement for default shall not constitute a waiver of any remedies the non-defaulting Party would otherwise be entitled to demand. d. All waivers shall be done in writing to be valid. 10. Force Majeure. If the performance by any Party of any obligation set forth in this Agreement (other than the payment of money) is prevented by an act of God, force majeure or similar contingency or unexpected event beyond the control of any Party, such occurrence shall be considered a valid excuse for non-performance or delay in the performance of the obligations hereunder. 11. Compliance with Laws. In performing its obligations under this Agreement, each Party will comply with all local ordinances, state and federal statutes, orders, by-laws, regulations, and other laws of any applicable governmental entity or agency. 12. Costs and Expenses. Each Party must pay its own legal costs and expenses for the negotiation, preparation, and execution of this Agreement. 13. Governing Law and Jurisdiction. Any and all matters in dispute between the Parties arising from or relating to this Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Minnesota and the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement shall be the state or federal courts located in Sherburne County, State of Minnesota. 14. Section Headings. Section headings are for reference purposes only and are not intended to create substantive rights or obligations. IN WITNESS WHEREOF, the parties have executed this agreement to be effective on the Effective Date noted above. City of Elk River �� I�. John J. Dietz, Mayor Tina Allard, City Clerk Primary Sponsor �-, C:� � � �-�.-. � Owner, Furniture and Things / Plants and Things �, � Owner, Furniture and Things / Plants and Things Exhibit A Naming Rights Signage and Assets SIGNAGE: Exterior Si��e • Rebranding the monument sign on the northwest corner of the Facility at 165m Ave NW. o Maximum square footage of sign to be as allowed by the City Zoning Code. o Sign to be backlit. • Branding and directional signage located throughout Elk River. o Double Sided Signage on Jarvis St NW o Double Sided Signage on 165th Ave NW Internal Signage • Integration into all interior directional signage and ancillary messaging found in the Facility. • Opportunities to display marketing material on all Facility brochure racks and message boards. • Two 9-foot by 7-foot Facility logo printed banner on each ballfield. • 2"d floor of concession building Facility logo Internal Common Areas • Four 30 foot by 45 foot concrete pads at a location agreed on by the parties. o Plants and Things Welcome Plaza • Utilizing common areas for the primary sponsor's show room displays at various locations agreed on by the parties. .' +�.�� � �� � , . � .a��� � - � �r 7 �, �.�� � � r`' . a ±� I ._, �' .. ,� �"� � u t'R K- d � � .. � � � . � � —'_ � .�� � � � . ./'� ! /7Af � . �t . ` ..b ;. �� { 3� � ._� � � � F �, .:S�J"��` " u.� i dG N� �''`�r �..:�..'�..�� p '> , Monument Rebranding Plants and Things Welcome Plaza �-- �� ��_ � ��� � �� ._.� �; , �.'_'� �. �.-�-� u � x" � --�- s� �� �� � - � �„ - - �,:, --- ' _. �� � � 1':�` '.� � _-� �l•� ._ ' .t , �- '��_-_ � - � � � � � �, f�, l -��J �� ��� �'' �� �:. � � :.,_ L `�TY: �� - t . - u' •, L. 7 � . ` , Y: . t;�.