The URL can be used to link to this page

Home My WebLink AboutC29960 - The Desert Sun Sponsor Promo Magazine CITY OF PALM DESERT/PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVAL AND EXECUTION OF AGREEMENT WITH THE DESERT SUN FQR SPONSORSHIP OF A PROMOTIONAL MAGAZINE SUBMITTED BY: Kristy Kneiding, Marketing Manager DATE: June 24, 2010 CONTENT: Desert Sun Agreement Recommendation By Minute Motion: 1. Approve agreement with The Desert Sun for sponsorship of a promotional magazine in the amount of$110,000 for fiscal year 2010/2011; and (Contract No. C29960) 2. Authorize the Mayor to sign the subject agreement. Funds are included in the proposed Financial Plan for 2010/2011, split between the respective Redevelopment Agency and the City Advertising and Professional Services accounts. Executive Summary The Desert Sun is proposing a re-launch of the magazine formerly known as 92260. This yet-to-be-named publication would be printed four times a year and distributed to Palm Desert residents and to select hotels. The agreement includes a request for City funding in the amount of $110,000 for four-issues during a one year period. City staff and representatives from The Desert Sun are finalizing the title of the magazine and securing appropriate trademarks. Staff believes Palm Desert is worthy of a publication that would showcase its lifestyle and highlight its residents, businesses, and attractions, and is recommending financial support of the magazine. The Marketing Committee endorsed the idea of an iconic magazine at its meeting of March 16, 2010. The City's sponsorship of the publication was presented as part of the budget discussions for next fiscal year. It was determined that funding could be split between the General Fund (marketing budget) and the Redevelopment Agency, as the publication will serve as an economic development tool and also will highlight the Agency's programs. The Desert Sun representatives have indicated that the City's contribution could potentially be reduced over time, subject to the venture's success. g:\rdalkristy kneiding\word data\staff reportsmemosldesert sun pd mag agreement rpt.doc Staff Report Approval and Execution of Agreement with The Desert Sun June 24, 2010 Page 2 of 2 Backqround A magazine dedicated to the City would help Palm Desert promote some of the community's most important business sectors including retail and restaurants. Hotel guests and part-time residents would be encouraged to take the publication home, furthering the reach of the marketing piece. The following hotels have agreed to in-room distribution of the magazine: Desert Springs JW Marriott Resort & Spa, Embassy Suites Palm Desert, Westin Desert Willow Villas, Courtyard and Residence Inn Palm Desert. The Desert Sun staff would be responsible for editorial content, photography, and layout of the 52-page publication. City staff would generate up to eight pages of content. The City generated content would be used to educate residents and visitors about the latest news, energy/environmental initiatives, economic and redevelopment projects, as well as activities and special events. No less than 40,000 copies of each issue will be printed. The Desert Sun would set rates, sell advertising, and keep proceeds while covering all sales and production expenses beyond the City's $27,500 per issue commitment. The magazine would be distributed in home-delivered copies of The Desert Sun, through mail delivery for non-subscribers, and in the Palm Desert hotel rooms listed above. Pending approval, the first issue will debut in September. Fiscal Analvsis Total cost of the one-year agreement is $110,000, split between the Redevelopment Agency and City budgets. Staff does not anticipate any additional expenses. The City's level of financial participation in future years will be evaluated within 30 days of the distribution of the third issue. Funds are included in the proposed Financial Plan for 2010/2011, in the respective professional services and advertising accounts. Submitted By: Department Head: --� v � - � , • �'�C C�dc � Kristy Kn iding, Marketing ager sti McCarthy, ACM development � � � , � �_ m t. -L�-.C� ��f��. A�I'fON �� PROVED DENTED � � Jan 't M ore, Director of Housin � � �tECEIVED OTHER � � . � MEETI G DAT'E " ��' � � � Eg. i O�Y1 i�`C �) Ct/J fi �r � G � :- ,�., Paul S. Gibson, Director of Fina n�j E s. � , �e tt � � � ABSENT: , CYI ' ._.��—�---�----��.. � � `� � Approv . ABSTAIN: �� `� � VE D BY: ' � �71c� � � >- Ori in on File with City erk's Office y� - p a --� w John . Wohlmuth, City Manager v � � � o� a, g:\rdalkristy kneidinglword datalstaff reportsmemos\desert sun pd mag agreement rpLdoc `� O > O Contract No. C29960 PUBLISHING AGREEMENT This Publishing Agreement ("AgreemenY') is entered into this day of June, 2010, by and between the City of Palm Desert ("City") and The Desert Sun. The City and The Desert Sun are sometimes colfectively referred to in this Agreement as the "Parties" and individually referred to as "Party." The Agreement is made in light of the following Recitals: RECITALS WHEREAS, The Desert Sun wishes to create, publish, and circulate a magazine that focuses on living, shopping, dining, entertaining, and visiting the City (the "Magazine"). WHEREAS, the City desires to assist the start-up of the Magazine and use it as a marketing and economic development tool for the community with the intent that it should become financially self-sustaining over time. NOW, THEREFORE, in consideration of the mutual promises set forth herein, and in light of the above Recitals, which are hereby made a part of this Agreement, the Parties hereby agree as follows: AGREEMENT 1. Term. The Term of this Agreement shall commence on July 1, 2010 and continue until June 30, 2011. The Desert Sun shall publish four (4) editions of the Magazine within the Term of this Agreement. City and the Desert Sun will mutually agree on a timeline for each edition of the Magazine. The Term of the Agreement may be renewed for a second year, upon mutual written agreement of The Desert Sun and the City. 2. Responsibilities of the Parties 2.1 Responsibilities of City. The City shall have full control over eight (8) pages per Magazine, which will include City and Redevelopment-specific news and information. Content may include advertisements for City and Redevelopment Agency programs and projects, including its partners. The City will collaborate with The Desert Sun on photographs for these eight (8) pages. Content will be provided in the format and by the deadline mutually agreed upon by the Parties. All advertising will comply with The Desert Sun's advertising terms and conditions, a copy of which is attached hereto as Exhibit A. 2.2 Responsibilities of The Desert Sun. The Desert Sun shall produce four(4) editions of the Magazine. The name of the Magazine will be determined prior to the first publication. The publication dates of each edition will be determined by The Desert Sun. The Desert 1 RMPUBUTREMBLAl'�315093.4 #84323 Contract No. C29960 Sun shall provide all research, writing, photography, typesetting, pre-press, printing, and advertising of the Magazine at its sole cost and expense ("Services"). The Desert Sun will be responsible for editorial content, photography, and design. Except for the eight (8) pages reserved for City staff, editorial control will remain with The Desert Sun staff. The Desert Sun will design and provide a color proof of the City's eight (8) pages for City prior approval. Each completed Magazine shall be an 8 3/4 x 10 7/8 inch magazine, four color bleed throughout, on glossy stock. The Desert Sun will perfect bind each Magazine. Each four (4) page cover will be on seven (7) point matte and interior pages shall be on seventy (70) pound matte. Each edition of the Magazine will have a minimum of fifty two (52) pages. The Desert Sun will print no less than forty thousand (40,000) copies of each edition of the Magazine provided that the number of copies and number of pages may be adjusted after the first edition subject to mutual agreement of the parties. The Desert Sun will insert the Magazine into The Desert Sun Desert Sun for Palm Desert resident subscribers and through the mail to non-subscribers in the 92260 and 92211 area codes (not including unincorporated Riverside County). Copies are to be provided to the Palm Desert Visitor Center, Palm Desert City Hall, The Living Desert, various stores and outlets to be mutually agreed upon, as well as designated hotels for in room distribution, including those listed in Exhibit B. The Desert Sun will promote the Magazine online with supporting banner advertisements on the mydesert.com homepage and a link to the pafm-desert.org homepage. The content, placement, and frequency of the banner advertisements shall be in The Desert Sun's sole discretion. 3. Representations and Warranties. 3.1 B�City. City represents and warrants that it owns or has all rights, title or permissions necessary to the Content (including photographs and images) it is contributing to the Magazine. 3.2 Bv The Desert Sun. The Desert Sun represents and warrants that it owns or has all rights, title or permissions necessary to the Content (including photographs and images) it is contributing to the Magazine. 4. Compensation. The City shall pay The Desert Sun $27,500 per edition of the Magazine. The Desert Sun will set rates, sell advertising and keep the proceeds covering all advertising sales and production expenses beyond the flat rate commitment from the City. Any costs related to additional adjustments requested by the City wilt be paid by the City pursuant to an agreement by the Parties. Each payment will be due pursuant to the payment schedule established by the Parties. 2 RMPUBVTREMBLAY\315093.4 #84323 Contract No. C29960 5. Within thirty (30) days of publication and distribution of the third edition of the Magazine, The Desert Sun will provide to City a report of gross revenue for the first three editions of the Magazine, to assist the City in evaluating, at its discretion, the level of financial participation, if any, that it will consider if it should elect to renew this Agreement and continue support of the Magazine for the next fiscal year. Own� Rights_ All content developed, written, created or otherwise produced by The Desert Sun in connection with this Agreement, including the Magazine ("The Desert Sun Material"), shall be and remain at all times the sole and exclusive property of The Desert Sun, and the City shall not acquire any right, title or interest in or to The Desert Sun Material or any right to use the same except as set forth in this Agreement. The Desert Sun shall have the exclusive rights to reproduce, edit, adapt, modify, perform, transmit and otherwise use the Magazine including any derivative works created therefrom, in any manner or medium throughout the world in perpetuity without compensation, including on its website, with URL to be determined by The Desert Sun. 6. Remedies and Termination 6.1 Remedies. The Parties agree to provide each other with written notice of nonperformance, unsatisfactory perFormance, or any other dispute arising from the terms of this Agreement within ten (10) days of the deficiency or dispute being identified. The Parties shall have thirty (30) days from receipt of said written notice to correct any performance deficiencies. The Parties may mutually agree to extend the thirty (30) day cure period. The Parties agree to cooperate in good faith to resolve any perFormance issue or dispute arising from this Agreement. Either Party in its sole and absolute discretion may waive a default that cannot be cured. 6.2 Termination. In the event any dispute cannot be resolved under these procedures, each Party retains such legal and equitable remedies as it may have under the law to enforce this Agreement. If either Party defaults under this Agreement and does not timely cure such default, the non-defaulting Party may terminate this Agreement upon providing written notice of termination of this Agreement to the defaulting Party, in which case this Agreement shall terminate. 6.3 Termination without cause. Either Party may terminate this Agreement upon at least ninety (90) days prior written notice to the other Party. If The Desert Sun terminates this Agreement, pursuant to this Section 6.3, the City shall be entitled to a pro rata refund of any prepaid amounts. 7. Insurance. 7.1 Time for Compliance. The Desert Sun shall not commence Services under this Agreement until it has provided evidence satisfactory to the City that 3 RMPUBUTREMBLAI'�315093.4 #84323 Contract No. C29960 it has secured all insurance required under this section. In addition, The Desert Sun shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. 7.2 Minimum Requirements. The Desert Sun shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by The Desert Sun, its agents, representatives, employees or subcontractors. The Desert Sun shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scoae of Insurance. Coverage shall be at least as broad as the latest version of the following: (A) Genera/ Liability: Insurance Services Office Commercial General Liability Coverage (occurrence form CG 0001); (B) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (Cj Workers' Compensation and Emp/oyers' Liability: Workers' Compensation Insurance as required by the State of California and Employer's Liability Insurance. (b) Minimum Limits of Insurance. The Desert Sun shall maintain limits of no less than: (A) Genera/ Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (B) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (C) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 7.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or The Desert Sun shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (a) General Liabilitv. The general liability policy shall be endorsed to state that: (A) the City and its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services performed by or on behalf of The Desert Sun, including materials, parts or equipment furnished in connection with such work; and (B) the insurance coverage shall be primary insurance with respect to the City and its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of The Desert Sun's scheduled underlying coverage. Any insurance or self-insurance maintained by the City and its directors, officials, officers, employees, agents and volunteers shall be excess of The Desert Sun's insurance and shall not be called upon to contribute with it. 4 RMPUBUTREMBLAY\315093.4 ' #84323 Contract No. C29960 (b) Automobile Liabilitv. The automobile liabitity policy shall be endorsed to state that: (A) the City and its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by The Desert Sun or for which The Desert Sun is responsible; and (B) the insurance coverage shall be primary insurance with respect to the City its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of The Desert Sun's scheduled underlying coverage. Any insurance or self-insurance maintained by the City and its directors, officials, officers, employees, agents and volunteers shall be excess of The Desert Sun's insurance and shall not be called upon to contribute with it. (c) Workers' Compensation and Emaloyer's Liabilitv Coveraqe. The insurer shafl agree to waive all rights of subrogation against the City and its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by The Desert Sun. (d) All Coveraqes. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City and its directors, officials, officers, employees, agents and volunteers. 7.4 Separation of Insureds� No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City and its directors, officials, officers, employees, agents and volunteers. 7.5 Acceptabilitv of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. 7.6 Verification of Coveraqe. The Desert Sun shall furnish City with original certificates of insurance and endorsements affecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the City before work commences. 8. Independent Contractor For purposes of this Agreement, the Parties are independent contractors and not partners nor is a joint venture being created. Each Party retains the right to perForm similar or different services for others or enter into similar agreements with third parties during the term of this Agreement. Any additional personnel performing the services under this Agreement on behalf of The Desert Sun shall also not be employees of the City and shall at all times be under The Desert Sun's 5 RMPUBUTREMBLAl'�315093. 4 #84323 Contract No. C29960 exclusive direction and control. The Desert Sun shall pay all wages, salaries, and other amounts due such personnel in connection with their perFormance of services under this Agreement and as required by law. The Desert Sun shall be responsible for all reports and obligations respecting such additional personnel, incfuding, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and worker's compensation insurance. 9. Indemnification. The Desert Sun agrees to indemnify, defend and hold harmless the City, its officials, officers, employees, agents and consuttants on account of any and all claims for damages because of (i) personal injury, sickness or death of any person, injury, damage or destruction to property in connection with its perFormance of its obligations pursuant to this Agreement, (ii) any breach by The Desert Sun of any representation, warranty or covenant of this Agreement, or (iii) any violation by The Desert Sun of any applicable locaf or state laws, ordinances, rules, regulations or lawful orders bearing on the performance of any obligations under this Agreement. This indemnification is intended to be as broad as possible and as broad as allowed by law. Only in the instance of damage caused solely and exclusively by the negligence and/or malfeasance of the City or its employees or agents will the indemnification not apply. This indemnification includes but is not limited to indemnifying for reasonable attorneys' fees, costs and other related expenses, including expert witness fees incurred by the City directty, through its carriers or for its agents and/employees. 10. Notices. Whenever it shall be necessary for either Party to serve notice on the other regarding this Agreement, such notice shall be served either in person, by certified mail, return receipt requested to the addresses below. City: City of Palm Desert Palm Desert Civic Center 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: City Manager The Desert Sun: The Desert Sun 750 N. Gene Autry Trail Palm Springs, CA 92262 Attn: President & Publisher Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 11. Leqal Costs. In the event of any legal action between the City and The Desert Sun arising out of the obligations of the Parties pursuant to this Agreement, the RMPUBVTREMBLAY\315093.4 6 #84323 Contract No. C29960 prevailing Party wil� be entitled to payment of its costs and expenses, including its reasonable attorneys' fees. 12• Bindinq Effect• Successors. Neither Party shall assign or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other Party, which may be given in such Party's sole and absolute discretion. Any attempt to do so shall be null and void, and any assignees or transferees shall acquire no right or interest by reason of such attempted assignment or transfer. This Agreement shall bind and inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns and all of the Parties thereto shall be jointly and severally liable hereunder. 13. Counternarts. This Agreement may be executed in counterparts each of which shall be deemed an original and all of which together shall constitute one and the same instrument which shall be binding upon the Parties notwithstanding that the Parties may not be signatories to the same counterpart or counterparts. The Parties may integrate their respective counterparts by attaching the signature pages of each separate counterpart to a single counterpart. 14. Further Assurances. Whenever requested to do so by the other Party, each Party shall execute, acknowledge, and deliver any further conveyances, assignments, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents, and any documents that are necessary, expedient, or proper to complete anything contemplated by this Agreement. In addition, each Party shall do any other acts and execute, acknowledge, and deliver any requested documents in order to carry out the intent and purpose of this Agreement. 15. Modifications. All modifications to this Agreement must be in writing and signed by the Parties. 16. Third-Partv Rights. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies. 17. Governina Law• Choice of Venue This Agreement shall be governed and construed in accordance with California law, including the Fair Political Practices Act of 1974. Venue shall be Riverside County. 18. Severabilitv. If any provision of this Agreement becomes or is declared by a court to be illegal, unenforceable or void, that clause will be omitted and the remainder of the Agreement will continue in full force and effect. Such holding shall in no way affect the validity or enforceability of this Agreement. 19. Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes any prior or contemporaneous representations, understandings or agreements, whether written or oral. � RMPUBUTREMBLAI'�315093.4 #84323 Contract No. C29960 2�. Waiver of Jury Trial. The Parties specificaily waive any right to trial by jury in any court with respect to any contractual, tortious or statutory claim, counterclaim or cross claim against the other arising out of or connected in any way to this Agreement because the Parties hereto, both of whom are represented by counsel, believe that the complex commercial and professional aspects of their dealing with one another make a jury determination neither desirable nor appropriate. [Signature provisions on following page] s RMPU BUTREMBLAl'�315093.4 #84323 Contract No. C29960 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first hereinabove written. City of Palm Desert Mayor City Clerk The Desert Sun President & Publisher 9 RMPUBVTREMBLAI'�315093.4 Contract No. C29960 EXHIBIT A The Desert Sun Advertising Terms �Conditions �. Riqht to Edit or Reiect. The Desert Sun may, in its sole discretion, edit, classify, or reject at any time any advertising copy submitted by Advertiser. 2. T o raphical Errors� Incorrect Insertions or Omissions. The Advertiser's contract cannot be invalidated, and the Desert Sun will not be liable, for (a) the incorrect publication (including, without limitation, typographical errors) or insertion or any omission of the Advertiser's advertising or(b) any resulting losses. 3. Indemnification. Advertiser agrees to indemnify, defend and hold harmless the Desert Sun from all claims (whether valid or invalid), suits, judgments, proceedings, losses, damages, costs and expenses, of any nature whatsoever (including reasonable attorneys' fees) for which the Desert Sun or any of its affiliates may become liable by reason of Desert Sun's publication of Advertiser's advertising. 4. Ownershiq of Advertisinq Copv. All advertising copy that represents the creative effort of the Desert Sun and/or the utilization of creativity, illustrations, labor, composition or material furnished by it, is and remains the property of the Desert Sun, including all rights of copyright therein. Advertiser understands and agrees that it cannot authorize photographic or other reproduction, in whole or in part, of any such advertising copy for use in any other medium without the Desert Sun's prior written consent. 5. Force Majeure. Each party's obligations under the advertising agreement are conditional on strikes, fires, acts of God or the public enemy, war, or any cause not subject to the control of such party. 6. Cancellations. The closing time for cancellations is 45 working days prior to the scheduled publication date for black and white material and 45 working days prior to the scheduled publication date for color material. Cancellations will not be accepted after the applicable closing time, Advertiser will be responsible for any production or creative services provided by the Desert Sun regardless of the cancellation of Advertiser's advertising. 7. Positioninq of Advertisements. Desert Sun shall have full latitude with respect to positioning all advertisements; provided however, that Desert Sun will use its reasonable efforts to accommodate the Advertiser's positioning requests. 8. Joint and Several Liabilitv. If Advertiser utilizes an Agency, Advertiser and Agency shall be jointly and severally liable for complying with all the terms of the Advertiser's contract including payment for all advertising. 9. Aqency Commissions. Agency commissions, if any, shall apply to all space charges and adjustments under the Advertiser's contract. 10. No Sequential Liability. The Advertiser's contract renders void any statements concerning liability that appear on correspondence from Advertiser or its Agency, and is irrevocable without the written consent of the Desert Sun's Credit Department. It is further agreed that the Desert Sun does not accept advertising orders or space reservations claiming sequential liability. A-1 RMPUBUTREMBLAI'�315093.4 Contract No. C29960 11. Incorrect Rates in Order Forms. When orders are forwarded by Advertiser or its Agency which contain incorrect rates or conditions, the advertising called for will be inserted and charged at the correct rate in force governing such advertising as provided for in the Desert Sun's rate schedule, and in accordance with the conditions contained in Advertiser's contract. 12. Photo Releases. Photographs of individuals to be used in advertising must be accompanied by a signed release from the individual permitting the use of the photograph(s). Release forms are available from your account executive. A-2 RMPUBUTREMBLAY\315093.4 Contract No. C29960 EXHIBIT B Hotels with In-Room Distribution The following hotels have agreed to in-room distribution of the Magazine. Hotel distribution may change after launch based on market and client needs. • Desert Springs Marriott 1,500 per issue • Embassy Suites Palm Desert 250 per issue • Westin Desert Willows Villas 250 per issue • Courtyard Palm Desert 600 per issue • Residence Inn Palm Desert 500 per issue B-1 RMPUBVTREMBLAY\3 I 5093.4