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HomeMy WebLinkAbout6.h. Live Barn Agreement – Rosemount Arena EXECUTIVE SUMMARY City Council Regular Meeting: September 4, 2018 AGENDA ITEM: Live Barn Agreement – Rosemount Arena AGENDA SECTION: Consent PREPARED BY: Dan Schultz, Parks and Recreation Director AGENDA NO. 6.h. ATTACHMENTS: Proposed Live Barn Agreement APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve the attached agreement between the City of Rosemount and Live Barn. ISSUE For the past several months, staff from the Parks and Recreation Department have been working with a company called Live Barn to bring a service to the Rosemount Arena where people can remotely watch what is happening on the ice by becoming a member of Live Barn. The viewers can get a subscription to watch games and other events at the RCC Arena, providing a good way for grandparents or parents who travel to still be able to watch games without being at the rink. There is no cost to the City associated with this partnership. This service is also offered at rinks such as Doug Woog Arena in South St. Paul, Richfield City Rink, MN Made Ice Center, Schwan Super Rink, Buffalo City rink, Delano City rink, Chaska City Rink, and Elk River City Rink, among others. The City does have the ability to restrict what is shown on the service. An example of what will not be shown, would be high school hockey practices. The City attorney has had a chance to review the proposed agreement and the comments provided by the attorney have been incorporated into the agreement. RECOMMENDATION Staff is recommending the City Council approve the agreement with Live Barn to provide a video service that broadcast live events at the Rosemount Arena. VENUE AGREEMENT 1 | Page 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”); 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 in regards 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 approval (including email) 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, install a minimum of one (1) 40 to 50 inch video screen immediately above or adjacent to the main entry door which screen will continuously display LiveBarn highlights and information. The video screen will also display Venue Owner’s own unique code described in Subsection 1.5. LiveBarn will also provide, at its expense, up to one (1) mini-computer that will allow Venue Owner to display the Live or On-Demand broadcast on any existing TVs in their restaurant area, should Venue Owner have one. 1.3 Title to all hardware, software, and wiring shall remain in the name of LiveBarn. 1.4 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. From time to time 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 to enable it to market and solicit new memberships for LiveBarn, for which LiveBarn will pay Venue Owner thirty percent (30%) of the revenues generated from these memberships over the full lifetime of these memberships - until such membership is discontinued. The above code will enable Venue Owner to solicit LiveBarn memberships by providing potential members with the attraction of a 10% discount. This code will track the memberships generated by Venue Owner on a quarterly basis. The above payments to Venue Owner will only apply to LiveBarn memberships originated with the unique code allocated to Venue Owner. LiveBarn will pay Venue Owner its revenue share within 30 days of the end of each calendar quarter together with a corresponding revenue statement, and this revenue share distribution will commence upon Venue Owner achieving an average total of 20 code subscribers per month(from amongst all its codes - 60 total) per Ice Rink sheet, in a calendar quarter. 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 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 Automated Online Broadcast Service, subject to sections 1.7 and 1.8 below. 1.7 LiveBarn will provide Venue Owner with an exclusive online administrative password to enable Venue Owner in its discretion to “blackout” any particular dates or time periods from being broadcast on any selected Ice Rink Sheet (the “Blackout Restrictions”). VENUE AGREEMENT 2 | Page 1.8 LiveBarn will also provide Venue Owner with the ability in its discretion to restrict viewer access to any broadcasts from its Venue to a pre-selected potential audience for privacy purposes. 1.9 During the Term (as defined below), LiveBarn will provide Venue Owner with three (3) complimentary LiveBarn accounts for each Ice Rink Sheet. 1.10 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 approved by the Rosemount City Council until the six year anniversary of the Latest Install Date (the “Term”), and it will automatically renew for successive terms of two (2) years, 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 Notwithstanding the foregoing, but subject to Subsection 3.1 below, either party shall have the right to terminate this Agreement for any reason upon giving (90) days written notice to the other party. 2.3 Upon termination of this Agreement by expiration of the term or for any other cause, LiveBarn shall, at its own cost and expense, remove all hardware, software and wiring from Venue Owner's location. 2.4 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 for a period of six (6) years from the commencement date of the Term, and notwithstanding the termination of this Agreement by the Venue Owner, for any reason, LiveBarn shall have the absolute exclusivity to broadcast Content from each of the Ice Rink Sheets using an automated (without individuals operating cameras) online broadcasting system. For greater certainty, the said exclusivity shall apply for the six (6) year period even if the Venue Owner elects to terminate this Agreement pursuant to Subsection 2.2 above prior to the expiration of the Term. 3.2 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. However, the foregoing exclusivity shall not apply should LiveBarn cease operations or to the extent Venue Owner terminates this agreement in accordance with section 2.4. 3.3 Venue Owner acknowledges and agrees that, in the event of a breach or threatened breach by it of the provisions of Subsection 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 use all reasonable efforts 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. 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 VENUE AGREEMENT 3 | Page 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 agrees to use all reasonable efforts to 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 this. 6 MARKETING 6.1 Venue Owner agrees to promote LiveBarn through all available avenues discussed in this section, understanding that it is in Venue’s best interest financially to market LiveBarn to their 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 Venue Owner’s unique code described in Subsection 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 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 their 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 their facility. 6.4 Venue Owner will announce the LiveBarn installation as well as embed any demo video on all of their 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 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 their 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 will be emailed a Certificate of Additional Insured with its name and location confirming its status as Additionally Insured. No activities under this agreement may commence until the Venue Owner confirms, in writing, the sufficiency of LiveBarn’s certificate of insurance. 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, martin @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 Minnesota. Any disputes shall be heard in the courts of Dakota County, Minnesota.. 7.10 Each party shall keep the terms contained herein confidential and neither of 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. LiveBarn acknowledges that Venue Owner is subject to Minn. Stat. Chapter 13 and cannot guarantee confidentiality of the terms of this Agreement. 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, VENUE AGREEMENT 4 | Page 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 LiveBarn installed product. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and at the place first above mentioned. LIVEBARN INC. Per: VENUE OWNER Per: Print Name: VENUE OWNER Per: Print Name: Venue Name and Address: Name of Each Rink: (i.e. Rink #1 or Main Rink) Primary Contact - Venue General Manager or Decision Maker: Name: Work Number: Cell Phone: Email Address: Secondary Contact or On-Site Manager: Name: Work Number: Cell Phone: Email Address: PLEASE FILL OUT SCHEDULE A VENUE AGREEMENT 5 | Page Venue Marketing Contact: Name: Work Number: Cell Phone: Email Address: Venue Technical Contact: Name: Work Number: Cell Phone: Email Address: