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4.6 SR 11-18-2024The Elk River Vision A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community engagement that encourages and inspires prosperity Request for Action To City Council Item Number 4.6 Meeting Date November 18, 2024 Prepared By Joe Stremcha, Business Services Director/Assistant City Administrator Item Description FT Center - LiveBarn Agreement 2024-27 Reviewed by Cal Portner Tina Allard Action Requested Approve, by motion, the LiveBarn agreement as presented. Background/Discussion LiveBarn provides Live and On Demand online broadcasts of amateur and youth sports from venue locations. The City of Elk River has utilized LiveBarn since 2018. This revised agreement provides a new revenue source for the FT Center and removes several prior exclusivity provisions to ensure all user group needs are met. Financial Impact The facility gets a small commission for each game stream that is purchased by account holders to watch their player's game live from a streaming device. Mission/Policy/Goal Meet changing needs - agile Attachments 1. LB Standard Venue Agreement - US Hockey 2025 (Standard) - Elk RIver Page 18 of 204 VENUE AGREEMENT 1 | P a g e DATE: BETWEEN: LIVEBARN INC. (“LiveBarn”) and ______________________ _________ (“Venue Owner”) WHEREAS LiveBarn Inc. and Venue Owner wish to enter into this Agreement pursuant to which LiveBarn will install at Venue Owner’s Ice Rink Sheet described in the attached Schedule “A” (each being an “Ice Rink Sheet”) a fully automated sports broadcasting system for the delivery of live and/or on demand video and audio streaming to internet connected devices such as smartphones, computers or tablets (the “Automated Online Broadcast Service”); WHEREAS the Automated Online Streaming Service offered by LiveBarn can stream Content (as defined below) via LiveBarn’s subscription-based platform (the “LiveBarn Platform”) or its wholly owned MNHockey.Tv platform (the “MNHockey.Tv Platform”). WHEREAS the LiveBarn platform is defined as being the subscription platform that will broadcast all of the Non- High School level activity, or other designated activity that is non-explicitly owned. WHEREAS the MNHockey.Tv platform is defined as being the subscription and pay per-view based platform (the “MNHockey.Tv Platform”) that will broadcast all of the High School or otherwise explicitly owned activity. NOW, THEREFORE, in consideration for the mutual promises set out below, and for other good and valuable consideration acknowledged by the parties, LiveBarn and Venue Owner agree as follows: 1 AUTOMATED ONLINE BROADCAST SERVICE 1.1 LiveBarn shall, at its own expense, install and maintain all hardware, software and internet bandwidth required for the operation and maintenance of the Automated Online Broadcast Service relating to each Ice Rink Sheet. The initial installation will occur within six months from the date of this Agreement (such six-month date being herein referred to as the "Latest Install Date"); it will be scheduled with the written (including via email) approval of Venue Owner, and concurrently with the installation, LiveBarn will specifically explain to Venue Owner representative onsite exactly where any hardware or other components will be installed. Installation will then only proceed with the consent of Venue Owner, which consent will be deemed upon LiveBarn undertaking its installation. The initial installation for each Ice Rink Sheet shall include one (1) computer, one (1) router, one (1) modem, between one (1) and three (3) power converters, and up to two (2) cameras to be placed on the side walls or on the beams or columns extending from the walls. The internet connection and computer shall be located adjacent to the respective Ice Rink Sheet in a secure location with electrical power outlets. The exact selection of camera locations will be made after consideration for optimal broadcast quality and avoidance of any obstruction. Any modification to the installation will only be undertaken with the permission and process with Venue Owner as outlined above. Venue Owner shall assume the cost of electricity for the components installed in connection with this Agreement. 1.2 In addition LiveBarn shall, at its expense and upon Venue Owner’s request, install one TV which will display a combination of LiveBarn highlights and a live feed, as well as additional LiveBarn information. 1.3 Title to all hardware, software, and wiring shall remain in the name of LiveBarn. 1.4 Subject to sections 1.8 and 1.9 below, all content streamed using the Automated Online Streaming Service, including the video and audio relating to all sports and recreational activities occurring on each Playing Surface (collectively, the “Content”) will be made available to subscribers of the LiveBarn Platform or the MNHockey.Tv Platform (as determined by LiveBarn). In addition, per copyright for specific events, the Content may be made available only to users on an alternative platform. In either case, LiveBarn will determine the pricing for the applicable platfrom. From time to time, LiveBarn may provide a free trial at its discretion.All content broadcast using the Automated Online Broadcast Service, including the video and audio relating to all sports and recreational activities occurring on each Ice Rink Sheet (collectively, the “Content”), will be made available to LiveBarn’s subscribers on a monthly subscription basis, subject to Sections 1.7 and 1.8 below. LiveBarn will determine the pricing for its offerings of the Automated Online Broadcast Service. LiveBarn may provide a free trial at its discretion. 1.5 Revenue generated from the Automated Online Broadcast Service will be the property of LiveBarn; however, LiveBarn will supply Venue Owner with a unique code (a “Promo Code”) to enable it to market and solicit new memberships for LiveBarn, for which LiveBarn will pay Venue Owner thirty percent (30%) of the Revenue generated from these memberships over the full lifetime of these memberships, during the Term of this Agreement. Such payment is referred to herein as the “Revenue Share Payment.” “Revenue” means gross revenue collected by LiveBarn during the Term for live and on-demand streaming, excluding credit-card processing fees and any customer refunds actually processed and paid out by LiveBarn. The Promo Code will enable Venue Owner to solicit LiveBarn memberships by providing potential members with the attraction of a ten percent (10%) discount. The Promo Code will track the memberships generated by Venue Owner on a quarterly basis. The Revenue Share Payments to Venue Owner will apply only to Revenue collected from LiveBarn memberships Page 19 of 204 VENUE AGREEMENT 2 | P a g e originated with the Promo Code allocated to Venue Owner. LiveBarn will pay Venue Owner its revenue share within thirty (30) days of the end of each calendar quarter together with a corresponding revenue statement. Venue Owner will provide a staff person to communicate with and receive LiveBarn’s various local marketing initiatives (including social media) as described below. 1.6 LiveBarn will guarantee that the minimum Revenue Share generated and paid by LiveBarn to Venue Owner, will be at minimum of one seven hundred and fifty dollars ($750) per Ice Rink Sheet annually, the “Guaranteed Revenue”. Commencing on October 1st, 2024, LiveBarn will pay Venue Owner the Guaranteed Revenue Advance upon invoice. During the subsequent 12 months, LiveBarn will track the Revenue generated by promo codes as mentioned in section 1.5, and if at any point in any 12 month period beginning on October 1st 2024, the promo code payment exceeds the Guaranteed Revenue, LiveBarn will be responsible for paying the difference between the actual Revenue share earned and the Guaranteed Revenue. Any additional revenue payment that is earned will be paid when the annual guarantee is paid. This will repeat annually throughout the Term of this agreement, beginning on October 1st of each calendar year. The Guaranteed Revenue referenced in this section will only be applicable if MNHockey.TV has the rights and is able to broadcast the majority of the High School hockey games at Venue Owner’s location. For the purpose of clarity, should the majority of High Schools games be broadcast on another streaming service other than MNHockey.TV or LiveBarn.com, Venue Owner will not be entitled to the Guaranteed Revenue referenced in this section but will still be entitled to all the revenue earned under subsection 1.5. 1.76 LiveBarn shall be the exclusive owner of all rights in and to the Content, and shall have the exclusive right to broadcast the Content for all purposes and in any manner it determines in its sole discretion, including by providing its broadcast signal to national broadcasters and digital media distributors. Without limiting the foregoing, the Venue Owner acknowledges that online distributions of the Content from each Ice Rink Sheet will be made available to all subscribers of the LiveBarn Platform or MNHockey.Tv Platform users, subject to sections 1.8 and 1.9 below. to all subscribers of the Automated Online Broadcast Service, subject to Sections 1.7 and 1.8 below. 1.87 LiveBarn will provide Venue Owner with an exclusive online administrative password to enable Venue Owner to “black out” any Junior Hockey Event from being broadcast on any selected Ice Rink Sheet (the “Blackout Restrictions”) upon written request from a third party that owns the rights to any such Junior Hockey Event. “Junior Hockey Event” means any event that is (i) at the junior hockey level, and (ii) in a league that permits 20-year-olds to participate. This will also be applicable for any USA Hockey Nationals event, or collegiate event for which exclusive streaming rights are owned by another entity. This will also be applicable for any Non-Hockey Related Event. Any “Non-Hockey Related Event” means an event that has nothing to do with the ice sports and skating. 1.98 If a third party requests that Venue Owner restrict viewer access to an event that is not an ice hockey game (such as a practice) at a Venue for privacy purposes, LiveBarn will provide Venue Owner with the ability to restrict viewer access to such event to a pre-selected potential audience. 1.109 During the Term (as defined below), LiveBarn will provide Venue Owner with three (3) complimentary LiveBarn accounts for each Ice Rink Sheet. 1.110 LiveBarn will hold Venue Owner harmless for any injuries to LiveBarn employees and agents in connection with their work. 2 TERM AND TERMINATION 2.1 The term of this Agreement commences on the date hereof and continues until the fivesix-year anniversary of the Latest Install Date (the “Term”), and it will automatically renew for successive terms of two (2) years (each two-year period, a “Renewal Period”), unless either party notifies the other in writing of its intent to discontinue this Agreement at least ninety (90) days before the expiration of the then current term. 2.2 Upon termination of this Agreement by expiration of the Term or under Section 2.3 below, LiveBarn shall, at its own cost and expense, remove all hardware, software and wiring from Venue Owner's location. 2.3 Venue Owner shall have the right to terminate this Agreement if LiveBarn materially breaches this Agreement and the material breach is not cured to within forty (40) days after Venue Owner provides written notice which outlines such breach to LiveBarn. 3 EXCLUSIVITY 3.1 In consideration for the investment of time and expense incurred by LiveBarn to fulfill its obligations under this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Venue Owner hereby declares and agrees that during the Term, including all Renewal Periods, and notwithstanding the termination of this Agreement by the Venue Owner, LiveBarn shall have the absolute exclusivity to stream, broadcast, or otherwise distribute Content from each of the Ice Rink Sheets using an unmanned operated camera. For clarity, a device is an “unmanned operated camera” if it either (i) does not require a human operator to capture footage, or (ii) uses software to automatically track the action or follow the play at an event and thereby capture, record, or broadcast footage in any automated fashion. For greater certainty, the said exclusivity shall apply for the entire Term, including any applicable Renewal Period, even if the Venue Owner elects Page 20 of 204 VENUE AGREEMENT 3 | P a g e to terminate this Agreement prior to the expiration of the Term. Notwithstanding anything else in this Section 3.1, the exclusivity addressed herein shall not apply to any Junior Hockey Event or any non-hockey related event 3.2 If the Venue Owner hosts a Junior Hockey Event, a USA Hockey Nationals event, collegiate event, or Non- Hockey Related Event on any Ice Rink Sheet, Venue Owner may offer any third party owning the rights to such Junior Hockey Event the ability to stream the Content over a third party’s streaming platform from the Automated Online Broadcast Service in exchange for a fee (the “Rental Agreement”). Venue Owner shall negotiate the Rental Agreement with the third party, subject to LiveBarn’s final approval, not to be unreasonably denied. 3.32 The Venue Owner hereby declares and acknowledges that the foregoing exclusivity, including the term thereof, is reasonable in the circumstances, and that LiveBarn is relying upon such exclusivity in connection with the provision of the Automated Online Broadcast Service and that LiveBarn would not have entered into this Agreement without such exclusivity. 3.43 Venue Owner acknowledges and agrees that, in the event of a breach or threatened breach by it of the provisions of Section 3.1 above, LiveBarn will have no adequate remedy in money or damages and, accordingly, shall be entitled to an injunction in a court of competent jurisdiction against such breach. However, no specification in this Agreement of any specific legal or equitable remedy shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach of any of the provisions of this Agreement. 4 SUPPLY OF AUTOMATED ONLINE BROADCAST SERVICE 4.1 LiveBarn will use reasonable skill and care to make the Automated Online Broadcast Service available throughout the Term. Notwithstanding the foregoing, LiveBarn shall have no responsibility, liability, or obligation whatsoever to Venue Owner, or any other third party, for any interruptions of the Automated Online Broadcast Service. 4.2 LiveBarn may, without any liability to Venue Owner, suspend the supply of all or part of the Automated Online Broadcast Service upon giving Venue Owner notice. This would occur if the LiveBarn equipment is repeatedly damaged or LiveBarn is unable to obtain a sufficient internet signal to the venue. 4.3 The Venue Owner agrees to notify LiveBarn by email to venuesupport@livebarn.com as soon as it becomes aware of any interruption or malfunction with the Automated Online Broadcast Service. Venue Owner will not be responsible for damage or malfunction of any equipment and LiveBarn will repair or replace at its cost any malfunctioning components which is required. Any required service visit by LiveBarn will be scheduled with the written approval (including email) of Venue Owner. LiveBarn will specifically explain the repair, replacement or service work to Venue Owner representative onsite and this work will only proceed with the consent of Venue Owner which consent will be deemed upon LiveBarn undertaking its work. 4.4 From time to time there will be on site adjustments requiring assistance from a technically proficient person at the Venue Owner’s venue(s) (each, a “Venue”). Venue Owner will be responsible to supply such person when necessary. 5 NOTICE TO PUBLIC 5.1 The Venue Owner agrees to post a notice at the entrance to its Venue and inside each Ice Rink Sheet, advising the public that the Venue is monitored by video cameras for security, safety and commercial purposes, and participants waive any claim relating to the capture or public transmission of his/her participation while at the venue. LiveBarn will supply and post these notices during its initial installation and reserves the right to modify the language contained therein from time to time, in its sole discretion, to satisfy its legal obligations. 5.2 In all agreements with parties for usage of the Venue, Venue Owner will include provisions both disclosing the existence of LiveBarn broadcasting at the Venue and requiring such parties to notify all their users of the Venue of the same. 6 MARKETING 6.1 Venue Owner agrees to promote LiveBarn through all available avenues discussed in this section, understanding that it is in Venue Owner’s best interest financially to market LiveBarn to its customers and patrons. LiveBarn will also provide, at its expense, a minimum of one (1) 2.5 x 6’ color printed standing banner, branded with the Promo Code described in Section 1.5, to be displayed within Venue Owner’s lobby in a prominent location. Venue Owner understands that failure to comply and make reasonable promotion and marketing efforts will result in lower revenue share payments to Venue Owner. 6.2 Venue Owner will provide a marketing contact person(s) who will be responsible for interacting with LiveBarn and becoming knowledgeable about the various LiveBarn marketing and promotion initiatives. Upon installation of LiveBarn, Venue Owner will make said contact available for a thirty (30) minute video web session, serving as an orientation into all of the best practices for introducing and promoting LiveBarn. This person will subsequently be responsible for implementing promotion and marketing initiatives to Venue’s customers and patrons. 6.3 Venue Owner will place a LiveBarn banner or link on its website with a backlink and embedded demo video where possible. Venue Owner will do the same with any organizations, associations, clubs and affiliates that it owns that use its facility. Page 21 of 204 VENUE AGREEMENT 4 | P a g e 6.4 Venue Owner will announce the LiveBarn installation as well as embed any demo video on all of its social media networks. Venue Owner will also like and follow LiveBarn on said social media networks as well as share content when tagged, acknowledging that this will only be used when the Venue is directly involved with any video shared. Venue Owner will do the same with any organizations, associations, clubs, affiliates that it owns that use its facility. 7 GENERAL 7.1 Any amendment to this Agreement must be in writing and signed by both parties. 7.2 Although LiveBarn will remain liable for its obligations hereunder, LiveBarn shall be permitted to use agents and subcontracts to perform its installation, maintenance and repair obligations hereunder. 7.3 The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. 7.4 If any part of this Agreement is held to be invalid or unenforceable, that part will be severed and the rest of the Agreement will remain in force. Headings herein are for reference only. 7.5 LiveBarn hereby represents that it maintains $2,000,000 of General Liability Insurance, $2,000,000 in Media Coverage Insurance and $2,000,000 in Cyber Insurance, and that upon execution of this Agreement Venue Owner will be named as additionally insuredcome a Certificate Holder, with its name and location included. 7.6 All notices required under this Agreement must be given in writing and by email to LiveBarn at venuesupport@livebarn.com, fmiller@livebarn.com, ray@livebarn.com, and to Venue Owner at its address listed herein. Either party may change its address from time to time by providing notice of such change to the other party. 7.7 This Agreement describes the entire understanding and agreement of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter. 7.8 This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which taken together will be deemed to be one instrument. 7.9 This Agreement is governed by and will be interpreted under the laws of the State of MinnesotaDelaware. Any disputes shall be heard in the courts located in the State of MinnesotaDelaware. Each party agrees not to assert, in any such dispute, that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, or that any such Action brought in one of the above-named courts should be dismissed on grounds of forum non conveniens, 7.10 Each party shall keep the terms contained herein confidential and neither it nor its directors, officers, employees, agents or representatives, where applicable, shall disclose the terms contained herein without the express written consent of the other party, unless such disclosure is required by applicable law. 7.11 Venue Owner will not be liable to LiveBarn by reason of inconvenience or annoyance for any damages or lost revenue due to power loss or shortage, mechanical breakdown, structural damage, roof collapse, fire, flood, renovations, improvements, alterations, or closure of the facility by it or any regulatory agency. 7.12 LiveBarn consents to Venue Owner promoting in its marketing materials that LiveBarn supplies it with the Automated Online Broadcast System. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and at the place first above mentioned. LIVEBARN INC. Per: Print Name: Ray Giroux, COO VENUE OWNER MayorPer: Print Name: Date: City Clerk:_______________________________ Print Name: ______________________________ Date: Page 22 of 204 VENUE AGREEMENT 5 | P a g e SCHEDULE A (REQUIRED) Venue Name and Address: Name of Each Rink: (i.e. Rink #1 or Main Rink) We require one point of contact to initiate communication with for each venue. This person will receive a request to complete an online form that gathers information about the venue and points of contact. Primary Contact - Venue General Manager or Decision Maker: Name: Work Number: Cell Phone: Email Address: Venues 9 Digit Tax Id # (EIN):____________________________ We require the Tax ID number in order to ship hardware from Canada to the USA (This helps speed up the shipping and installation process). Page 23 of 204