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09-104 Resolution No. 09-104 RESOLUTION AUTHORIZING EXECUTION OF AN ADVERTISING TRADE AGREEMENT WITH PADDOCK PUBLICATIONS, INC. (DAILY HERALD) FOR PROMOTION AND ADVERTISING OF CITY EVENTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin,City Manager,and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute a promotional agreement on behalf of the City of Elgin with Paddock Publications, Inc. for promotion and advertising of city events, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: April 29, 2009 Adopted: April 29, 2009 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk ADVERTISING TRADE AGREEMENT • THIS AGREEMENT is hereby made and entered into this of day of 4,- , 2009, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Paddock Publications, Inc., a Delaware corporation (hereinafter referred to as "Daily Herald"). WHEREAS, City conducts various events at various locations throughout the corporate limits of City; and WHEREAS, Daily Herald owns various newspaper publications, including, but not limited to,the Daily Herald newspaper; and WHEREAS, City and Daily Herald have each decided that it is in their best interests to enter into a mutual promotion and advertising agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: I. During the term of this Agreement, City shall purchase not less than $35,000 of advertising in the Daily Herald. 2. Daily Herald shall provide dollar-for-dollar credit to City for additional free advertising of not less than$35,000 in value during the term of this Agreement. 3. Daily Herald reserves the right to reject any ad copy submitted or to modify or edit such ad copy for any reason including, but not limited to, libelous or other objectionable content. 4. City shall indemnify and hold Daily Herald harmless for the form and content of all advertisements published (including test, illustrations and photographs) and also assumes full responsibility for any and all claims, actions or damages arising therefrom. City shall indemnify and hold Daily Herald harmless from all claims, actions or damages arising from or caused by publication of any advertisement placed by City, including but not limited to claims for libel, defamation, invasion of privacy, copyright, trademark or trade name infringement or violation or other claim based on intellectual property laws, unfair business practices, or false advertising. City further agrees to reimburse Daily Herald for all settlement of claims or satisfaction of judgments, together with all expenses incurred in connection with the defense of such claims including attorney's fees and costs of litigation. Without limiting the generality of the foregoing, City represents and warrants that any copy submitted is truthful and in compliance with all applicable laws and regulations. Insertion orders containing or implying sequential liability or other such disclaimers are not accepted. 5. Daily Herald shall not be liable for any error in published advertising unless a proof of advertisement to be published is requested in writing by the City and returned to Daily Herald clearly marked for corrections prior to the applicable publishing deadline established by Daily Herald. If an error occurs in published advertising which was properly corrected by Daily Herald on the advertising proof, Daily Herald's liability for such an error shall be limited to the cost of the advertising space occupied by the error. Daily Herald shall not be liable for omission of an advertisement submitted for publication except that Daily Herald shall credit City with the value of the omitted advertising space already paid for. Any rescheduled run of the omitted advertisement shall be at City's cost. Credit or adjustment is allowable for the first insertion only. All claims for adjustments for errors or omitted advertising must be made within thirty (30) days from the scheduled date of publication. Daily Herald shall not be liable for any general, special or consequential damages suffered by City due to advertising errors, omissions or refusal to accept all or portions of an ad. No liability is assumed by the Daily Herald for incorrect printing material supplied by other publications and no refund will be given. 6. The advertising rates set forth in this Agreement, and incorporated by reference hereto, are given in consideration for City's promise to use and pay for the amount of advertising revenue set forth herein. Should City fail to use or exceed the amount of advertising revenue committed to, the rate will be adjusted in accordance with the Daily Herald's then-current Advertising Rate Card. Rebates available only above $2,500 contract level. Rebates will not exceed any current twelve (12) month contract period, or one (1) contract level. Rebates will be credited to City's billing. Daily Herald may change the rate listed herein in accordance within the Advertising Rate Card upon thirty (30) days notice to City. Upon receipt of notice from Daily Herald of a rate change, City may cancel this Agreement by so notifying Daily Herald in writing within thirty (30) days of receiving such notice, cancellation to be effective on the first day that the new rates go into effect. Failure to notify Daily Herald of cancellation within thirty (30) days or continuation of advertising by City after the new rates to into effect will constitute acceptance by City of the new rates under all the other remaining terms of this Agreement. 7. In the event of flood, fire, strike or other emergency beyond the control of the parties which prevents performance of this Agreement by either party, the Agreement shall be suspended during the period(s) either party is unable to perform and the Agreement shall be extended for an equivalent period of time. No liability shall arise between the parties by reason of such emergency suspension except for the obligation to extend the Agreement as set forth above. 8. City shall not assign any of its rights, duties or obligations under this Agreement without the express written permission of Daily Herald. City shall not sublet or resell any advertising space purchased under this Agreement. 9. Any notice by either party to the other party as required by the terms of this Agreement must be given in writing and shall be deemed given if sent by first class mail, postage prepaid, or if personally delivered to the party at the addresses set forth below: - 2 - TO THE CITY: TO THE DAILY HERALD: Cherie Murphy Brian Fletcher City of Elgin Daily Herald 150 Dexter Court P. O. Box 280Daily Herald Elgin, IL 60120-5555 Arlington Heights, IL 60006 10. The Daily Herald retains all rights, title and interest to all layouts which represent the relative efforts of the newspaper's staff and/or utilization of its own illustration, labor, composition, or material and may not be sole, transferred or reused without prior written permission of the Daily Herald. 11. All advertisements which, in Daily Herald's judgment, resemble news matter will have the word "Advertisement"printed at the top of the ad, and will have a border placed around the ad. 12. In addition to the payments provided for herein, City shall provide promotional advertisements and/or items as follows: (a) Promotional advertising in programs, invitations, and press releases. (b) Signage, banners or other public recognition of sponsorship at summer special events. (c) Public address announcements, radio and/or TV spots or other mentions at or in association with City's summer special events. (d) Hemmens and other event tickets not to exceed $1,000 total nor$250 total for any single show. (e) Recognition as major sponsor with twenty-five (25) free passes to VIP area at FoxFireFest. (f) Golf passes for two foursomes to The Highlands of Elgin Golf Course. 13. The terms of this Agreement shall be severable. In the event that any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 14. This Agreement shall not be construed so as to create a joint venture, employment, partnership or other agency relationship between the parties hereto. 15. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the enforcement of any rights and the resolution of any disputes arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois. - 3 - 16. This Agreement is the only agreement between the parties hereto regarding the subject matter hereof. There are no other agreements, either oral or implied between the parties hereto regarding the subject matter of this Agreement. The terms and provisions of this Agreement may not be modified, except by written agreement of the parties hereto. 17. Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the Daily Herald shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Daily Herald hereby certifies, represents and warrants to the City that all Daily Herald's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. Daily Herald shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the Daily Herald to determine Daily Herald's compliance with the provisions of this section. In the event the City proceeds with such an audit the Daily Herald shall make available to the City the Daily Herald's relevant records at no cost to the City. 18. Time is of the essence of this Agreement. 19. In the event of any breach or alleged breach by the City, City's total liability to Daily Herald shall not, under any circumstances, and notwithstanding anything to the contrary herein, exceed the sum of Thirty-Five Thousand Dollars ($35,000). 20. This Agreement shall terminate April 15, 2010. CITY OF ELGIN DAI .RALD By Cit fr-Vir717 Attest: Attest: City Clerk F:\Legal Dept\Agreement\Daily Herald-Advertising Trade Agr.doc - 4 - April 2, 2009 t TO: Mayor and Members of the City Council a FROM Olufemi Folarin, City Manager v'"'" Cherie Murphy, Marketing Officer SUBJECT: Paddock Publications (Daily Herald) Sponsorship Agreement PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider entering into a sponsorship agreement with Paddock Publications (Daily Herald) for 2009. RECOMMENDATION It is recommended that the City Council approve a sponsorship agreement with Paddock Publications (Daily Herald)as presented in the amount of$35,000. BACKGROUND In 2008, the City of Elgin spent over $69,000 with the Daily Herald on various print and web advertising, most of which was spent to promote The Centre, Special Events and The Hemmens Cultural Center. Included in the $69,000 total expenditure was approximately $12,000 spent on Special Events at a buy-one-get-one-free rate as an in-kind sponsorship from the Daily Herald for FoxFireFest. For the 2009 season, staff has developed an in-kind sponsorship program with Paddock Publication, owner of the Daily Herald, which will enable the City to advertise not only City of Elgin Special Events, but also Hemmens programs, Centre specials and other Parks and Recreation programs in the Daily Herald throughout the upcoming season at a buy-one-get-one- free cost. The primary elements of the Daily Herald Sponsorship Agreement (Attachment A) are as follows: Paddock Publications (Daily Herald) Sponsorship Agreement April 2, 2009 Page 2 The Daily Herald shall provide: • Dollar-for-dollar credit to the City for free advertising of not less than $35,000 in value during the terms of the agreement. The City shall provide: • Throughout the one year term of the contract, the City will purchase no less than $35,000 worth of advertising in the Daily Herald. • The City shall list the Daily Herald as a Season Sponsor in all advertising and promotional materials for Special Events, and provide the Daily Herald with complimentary tickets to Hemmens performances not to exceed $1,000 in value, 25 VIP passes to FoxFireFest, and two foursomes to The Highlands of Elgin Golf Course. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None FINANCIAL IMPACT • There are sufficient funds budgeted ($100,000) and available ($76,968) in the Hemmens Cultural Center Division, account number 296-5402-765.32-04, to cover $10,000 in advertising cost with the Daily Herald. • There are sufficient funds budgeted ($80,000) and available ($70,963) in the Parks and Recreation Fund, account number 296-5001-761.32-04 for The Centre, Wing Park Aquatic Family Center, Lords Park Family Aquatic Center, Community Recreation and the Sports Complex to cover$10,000 in advertising costs with the Daily Herald. • There are sufficient funds budgeted ($28,000) and available ($20,780) in the Golf Fund, account number 540-5801-775.32-04 to cover $3,000 in advertising costs with the Daily Herald. • There are sufficient funds budgeted ($250,000) and available ($238,403) in the Special Events Fund, account number 296-5011-762.47-00 to cover $8,000 in advertising costs with the Daily Herald. • There are sufficient funds budgeted ($40,000) and available ($29,940) in the Communications Advertising account number 010-0302-711-32-04 to cover $4,000 in advertising costs. LEGAL IMPACT None Paddock Publications (Daily Herald) Sponsorship Agreement April 2, 2009 Page 3 ALTERNATIVES 1. The City Council may choose to enter into a sponsorship agreement with Paddock Publications (Daily Herald) in the amount of$35,000. 2. The City Council may choose not to enter into a sponsorship agreement with Paddock Publications (Daily Herald). Respectfully submitted for Council consideration. CM Attachment OF Ezc, Memorandum to City of Elgin "feITLDIO'�, Date: May 1, 2009 To: Cherie Murphy, Marketing Officer From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 09-104, Adopted at the April 29, 2009, Council Meeting Enclosed you will find the agreement listed below. Please distribute to the appropriate parties and if needed, retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • Advertising Trade Agreement with Paddock Publications Inc. (Daily Herald) for Promotion and Advertising of City Events