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Home My WebLink About2023-06-26 - Agendas - FinalFayetteville Advertising and Promotion Commission June 26, 2023 Location: Fayetteville Town Center, 15 W. Mountain Street Commissioners: Staff: Todd Martin, Chair, Tourism & Hospitality Representative Katherine Kinney, Tourism & Hospitality Representative Chrissy Sanderson, Tourism & Hospitality Representative Elvis Moya, Tourism & Hospitality Representative Andrew Prysby, Commissioner at-large Sarah Bunch, City Council Representative Sonia Harvey, City Council Representative Molly Rawn, CEO I. Call to order at 2:00 p.m. II. Old Business Agenda A. Review and approval of May minutes. III. New Business A. CEO Report. An executive overview of the previous month 1. RFP issued for Tourism Master Plan 2. Tourism Incentive funding request form live on website B. Financial Report. Jennifer Walker, Vice President of Finance C. Marketing Report. Sarah King, VP of Marketing and Communications D. Vote. Purchase of Fayetteville is my Favoriteville trademark and associated assets. Contract and Memo attached. E. Vote. Contract with Arrivalist for tourism insight platform. Execute agreement for services including Arrivalist Trip and Arrivalist Lodging for a period of one year for $45,000. Contract and memo attached. F. Additions to the agenda may be added upon request from a majority of the commissioners. IV. Adjourn Memo To: Molly Rawn, CEO, Experience Fayetteville Fayetteville Advertising & Promotion Commissioners From: Jennifer Walker, VP Finance, Experience Fayetteville Date: June 10, 2023 Re: Financial Statements – May 2022 This packet contains Experience Fayetteville Financial Statements for the month ended May 31, 2023. The following reports are included in the packet:  Summary P&L Financials for month ended May 31, 2023  Balance Sheet for month ended May 31, 2023 Target Budget March – 42% Revenue target 42% of budget or higher by the end of May 2023. Expenditures target 42% or lower at May 2023. Total Revenue YTD: $2,272,043 or 40%; We are 2% below target. Tax Receipts - $2,025,006 (under budget by 1% ytd) Town Center - $ 194,904 (under budget by 4% ytd) Other - $52,133 Total Operating Expenditure YTD: $1,915,293 or 35%; this is 7% under budget. EF Main - $1,554,169 Town Center - $361,123 HMR tax – YTD May Collections (April activity) are below seasonally adjusted budget expectations by 1.4%. Operating Net Income is $356,750 year to date. Modified Accrual Fayetteville A and P Commission Statement of Budget, Revenue and Expense Year-to-Date @ May 31, 2023 Actual Budget Over/(Under) Budget % of Budget Revenue Hotel, Motel, Restaurant Taxes Revenue 2,025,006 4,960,000 (2,934,994) 40.8% Rental Revenue 181,636 485,500 (303,864) 37.4% Event Revenue 27,214 51,472 (24,258) 52.9% Visitor Center Store Revenue 14,619 53,700 (39,081) 27.2% Parking Revenue 5,770 26,000 (20,230) 22.2% Advertising Revenue 1,350 3,500 (2,150) 38.6% Grant/Other Revenue ‐ 83,000 (83,000) 0.0% Interest and Investment Revenue 16,449 7,550 8,899 217.9% Total Revenue 2,272,043 5,670,722 (3,398,679) 40.1% Expenses Operating Expenses Rental Expenses 27,891 208,000 (180,109) 13.4% Event Expenses 36,868 135,250 (98,382) 27.3% Visitor Center & Museum Store 7,335 41,200 (33,865) 17.8% Personnel 719,858 1,933,886 (1,214,028) 37.2% Sales & Marketing 442,276 1,363,565 (921,289) 32.4% Office and Administrative 314,761 785,821 (471,060) 40.1% Bond Payments 290,750 700,000 (409,250) 41.5% Contribution to Capital Reserves ‐ 100,000 (100,000) 0.0% Other grants 75,554 203,000 (127,446) 37.2% Total Operating Expenses 1,915,293 5,470,722 (3,555,430) 35.0% Net Operating Income/(Loss) 356,750 200,000 156,750 178.4% Other Income Unrealized Gain/(Loss) on Investments 2,599 0.0% Other Expenses FFE & Improvements 179,323 638,000 (458,677) 28.1% Depreciation Expense 79,254 0.0% Cost of Goods Sold (530) 0.0% Net Income/(Loss) (without CX Grants)101,302 (438,000) 536,703 ‐23.1% CONSOLIDATED Year‐to‐Date Modified Accrual Fayetteville A and P Commission Statement of Budget, Revenue and Expense Year-to-Date @ May 31, 2023 Actual Budget Over/(Under) Budget % of Budget Revenue Hotel, Motel, Restaurant Taxes Revenue 2,025,006 4,960,000 (2,934,994) 40.8% Rental and Event Revenue 19,770 43,972 (24,202) 45.0% Visitor Center Store Revenue 14,619 53,700 (39,081) 27.2% Advertising Revenue 1,350 3,500 (2,150) 38.6% Grant & Other Revenue ‐ 83,000 (83,000) 0.0% Interest and Investment Revenue 16,394 7,500 8,894 218.6% Total Revenue 2,077,139 5,151,672 (3,074,533) 40.3% Expenses Operating Expenses Event Expenses 27,724 105,250 (77,526) 26.3% Visitor Center & Museum Store 7,335 41,200 (33,865) 17.8% Personnel 523,474 1,420,296 (896,823) 36.9% Sales & Marketing 438,969 1,273,044 (834,075) 34.5% Office and Administrative 190,365 457,862 (267,497) 41.6% Bond Payments 290,750 700,000 (409,250) 41.5% Contribution to Capital Reserve ‐ 100,000 (100,000) 0.0% Other Grants 75,554 203,000 (127,446) 37.2% Total Operating Expenses 1,554,169 4,300,652 (2,746,483) 36.1% Net Income/(Loss) Before Other Revenue and Expenses 522,970 851,020 (328,050) 61.5% Other Income Unrealized Gain/(Loss) on Investments 2,599 ‐ 2,599 0.0% Other Expenses FFE & Improvements 3,000 262,000 (259,000) 1.1% Depreciation Expense 42,683 Cost of Goods Sold (530) Net Income/(Loss) 480,416 589,020 (111,203) 81.6% Experience Fayetteville Year‐to‐Date Modified Accrual Fayetteville A and P Commission Statement of Budget, Revenue and Expense Year-to-Date @ May 31, 2023 Actual Budget Over/(Under) Budget % of Budget Revenue Rental Revenue 181,636 485,500 (303,864) 37.4% Event Revenue 7,444 7,500 (56) 99.3% Parking Revenue 5,770 26,000 (20,230) 22.2% Interest and Investment Revenue 55 50 5 109.1% Total Revenue 194,904 519,050 (324,146) 37.6% Expenses Operating Expenses Rental Expenses 27,891 208,000 (180,109) 13.4% Event Expenses 9,145 30,000 (20,855) 30.5% Personnel 196,384 513,590 (317,206) 38.2% Sales & Marketing 3,307 90,521 (87,214) 3.7% Office and Administrative 124,396 327,959 (203,563) 37.9% Total Operating Expenses 361,123 1,170,070 (808,947) 30.9% Net Income/(Loss) Before Other Revenue and Expenses (166,220) (651,020) 484,800 25.5% Other Expenses FFE & Improvements 176,323 376,000 (199,677) 53.1% Depreciation Expense 36,571 Net Income/(Loss) (379,114) (1,027,020) 647,906 36.9% Town Center Year‐to‐Date ASSETS Current Assets Cash 3,657,099 Investments 1,230,811 Accounts Receivable 541,278 Prepaid Expenses 35,650 Deposits 28,369 Inventory Asset 28,440 Total Current Assets 5,521,646 Other Assets Capital Assets Furniture & Fixtures 121,169 Equipment 723,463 EF/CVB Building 940,410 EF/CVB Land 198,621 Building Additions 1,142,641 Walker-Stone House 1,167,218 Vehicles 122,860 Construction in Progress 104,548 Accumulated Depreciation (1,605,623) Total Other Assets 2,915,306 TOTAL ASSETS 8,436,952 LIABILITIES AND EQUITY Current Liabilities Accounts Payable 213,636 Unearned Revenue 220,335 Total Liabilities 433,971 Equity Unreserved Fund Balance 5,431,416 Operating Reserve 1,000,000 Capital Reserve 1,100,000 Temporarily Restricted Funds 382,431 Net Revenue Gain/(Loss) on Investments 2,599 Net Revenue without Cyclocross 97,924 Net Revenue for Cyclocross (11,389) 89,133 Total Equity 8,002,981 TOTAL LIABILITIES AND EQUITY 8,436,952 Fayetteville A&P Commission Balance Sheet As of May 31, 2023 JUNE 2023 MARKETING REPORT I AM NORTHWEST ARKANSAS PODCAST Sarah King and Chloe Bell joined Randy Wilburn for an hour-long podcast about EF’s role in supporting the tourism economy. Segments also aired on KUAF. SHRPA ADVENTURES New platform will feature mini-itineraries created by locals and travelers. PHOTOGRAPHING ALL THINGS NEW IN FAYETTEVILLE Two days in May featuring outdoor attractions, specialty shopping and delicious food. THE RAMBLE PHOTOGRAPHING ALL THINGS NEW IN FAYETTEVILLE CENTRAL BBQTHE GREENWAY BOULDERS & BREWSCENTRAL BBQ THE RAMBLE PHOTOGRAPHING ALL THINGS NEW IN FAYETTEVILLE POTTERY FESTIVALPOTTERY FESTIVALBOULDERS & BREW PRESLEY PAIGE PRESLEY PAIGEART FAIR ALE TRAIL 10TH ANNIVERSARY Program grows in size and popularity. ARKANSAS MONEY AND POLITICS “The Business of Biking: Arkansas emerging onto global stage” featured Brannon Pack discussing Fayetteville’s path to prominence in cycling tourism. AUTHENTIC FAYETTEVILLE CAMPAIGN Kicked off mid-May with Outdoor, Cable, Digital Display, and Social Media. Creative messages will be updated throughout the year. FAYETTEVILLE EVENTS CAMPAIGN Media includes Digital Display, Social Media and Outdoor showcasing the unique events only found in Fayetteville.FAP - Pride | Awareness Social 01 We are excited to celebrate equality and love in Fayetteville. Join Arkansas’ largest LGBTQ+ Pride celebration June 23-24. 2023 NWA Pride Weekend EXPERIENCEFAYETTEVILLE.COM Taking Pride in Our Local Colors We are excited to celebrate equality and love in Fayetteville. Join Arkansas’ largest NEWSLETTER MARKETING New email newsletter approach from EF marketing team results in significant growth in website traffic with more than 70% from outside Arkansas: 21 Average monthly web users from email marketing Jan 2022-Feb 2023 307 Average monthly web users from email marketing March 2023-May 2023 TOURISM INSIGHTS 2023 Q2 research from US Travel Association indicates strong outlook for summer travel. • 60% agree that taking time off to travel is more important than ever — significantly higher than 35% in Q1. • 26% plan to increase spending on leisure travel in the next three months, up from 19% in Q1. • 26% of leisure travelers have travel planned in the next six months. U.S. Travel’s quarterly consumer survey with Ipsos—launched in early 2023—digs into the traveler experience and identifies barriers and points of friction that keep travelers at home or traveling within the United States less frequently. These insights help anticipate and identify consumer behaviors and risks—highlighting the greatest opportunities to grow travel. KEY FINDINGS The outlook for summer travel in the United States is strong. • Over a quarter of Americans plan to increase the amount they are spending on leisure travel in the next three months (26%) up from 19% in Q1. • Just over half of all Americans (53%) and 81% of leisure travelers have travel planned in the next six months. • Six in 10 Americans (60%) agree that taking time off to travel is more important than ever— significantly higher than what Americans reported in Q1 (35%). Yet, this summer will be a stress test for the U.S. air travel system. • Two in five Americans (42%) say they have traveled by air for leisure in the past 12 months and 35% of those reported having a flight delayed or cancelled. • Less than one-third of recent air travelers (32%) are very satisfied with the air travel experience. • On a positive note, travelers enrolled in expeditated clearance programs such as TSA PreCheck are more satisfied (84%) with the overall air travel experience than those not enrolled (79%). • Similar to Q1 2023, crowding and congestion (43%) along with flight delays or cancellations (40%) are the primary reasons for air travelers’ less than satisfactory experience. • Over half of Americans (52%) say they would travel more for leisure in the next six months if the travel experience was not as much of a hassle, significantly more than Q1 (29%). The federal government has a prime opportunity this year to address system inefficiencies through the FAA reauthorization bill. When asked what Congress should prioritize in the FAA reauthorization bill, a majority of recent air travelers (55%) want Congress to prioritize improvements to the air travel experience by addressing hassles such as reducing flight delays and cancellations (19%), offering more direct flights by addressing the pilot shortage (21%) or reducing congestion in airports (15%). • Conversely, just 36% of recent air travelers want Congress to prioritize providing cash refunds or indefinite credits when flight delays or cancellations occur. • And, if Congress made any of these legislative changes, 33% would travel MORE. Q2 CONSUMER INSIGHTS: SEAMLESS AND SECURE TRAVEL Updated April 25, 2023 1100 New York Avenue, NW Suite 450 Washington, D.C. 20005 | ustravel.org To: Fayetteville Advertising and Promotion Commissioners From: Molly Rawn, CEO, Fayetteville Advertising and Promotion Commission Date: June 26, 2023 Re: Purchasing rights to Favoriteville Background: Attached is a contract with World Domination LLC transferring their interest in “Fayetteville is My Favoriteville” to Experience Fayetteville. This includes Favoriteville branded goods and merchandise, associated trademarks, artwork, web domains and social media channels. Experience Fayetteville will have the right to develop and sell Favoriteville merchandise as well as use the officially licensed phrase in marketing, communication, and advertising efforts. Recommendation: The CEO recommends the commission authorize the contract with World Domination, LLC for $50,000. Fayetteville A&P Commission ASSET PURCHASE AGREEMENT This ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of June 26, 2023, by and among Fayetteville Advertising and Promotion Commission, d/b/a Experience Fayetteville (“Buyer”), and World Domination, LLC, an Arkansas limited liability company (“Seller”). Buyer and Seller are sometimes individually referred to as a “Party,” and, collectively as the “Parties.” Capitalized terms used in this Agreement have the meanings assigned to such terms in the Recitals and elsewhere throughout this Agreement. RECITALS WHEREAS, Seller has agreed to sell, and Buyer has agreed to purchase, the Purchased Assets, including, but not limited to, (i) the goods as reflected in Schedule A attached hereto (the “Goods”), (ii) the trademarks on Schedule B attached hereto (the “Trademarks”), (iii) the artwork reflected in Schedule C attached hereto (the “Copyrighted Designs”), (iv) the domain names and social accounts reflected in Schedule D attached hereto (the “Internet Accounts”), and the agreements reflected in Schedule E attached hereto (the “Agreements”)(collectively, the “Assets”); and NOW, THEREFORE, pursuant to this Purchase Agreement, for good and valuable consideration, including payment by Buyer to Seller the sum of $50,000 the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as follows: 1. Assignment and Transfer. Seller hereby irrevocably sells, assigns, transfers, conveys and delivers to Buyer, its successors and assigns, all of Seller’s right, title and interest in and to the Assets, including the following assignments: (a) Seller hereby assigns, transfers and delivers to Buyer, all of Seller’s right, title and interest in and to the Trademarks, including all state and common law rights and rights in foreign jurisdictions, together with the goodwill of the Business symbolized by the Trademarks, including all rights of action (including rights to damages and profits, due or accrued), arising prior to, on or after the date of this Agreement, and the right to sue for and recover the same, free and clear of all liens, claims, security interests and other encumbrances. (b) Seller hereby (i) assigns, transfers and delivers to Buyer, all of Seller’s right, title and interest in and to the Copyrighted Designs, including state and common law rights and rights in foreign jurisdictions, including all rights of action (including rights to damages and profits, due or accrued), arising prior to, on or after the date of this Agreement, and the right to sue for and recover the same, free and clear of all liens, claims, security interests and other encumbrances, and (ii) waives all moral rights held or to be held in any Copyrighted Designs subsisting in the Business by virtue of any applicable law. 2 (c) Seller hereby assigns to Buyer all right, title and interest in and to the Internet Accounts and the content associated therewith. As of the Effective Date, Buyer shall assume maintenance of the Internet Accounts listed in Exhibit D. Seller has paid all fees associated with maintaining the Internet Accounts as of the Effective Date, and shall not seek reimbursement of any such fees from Buyer. Buyer shall assume responsibility for all fees associated with maintaining the Internet Accounts as of the Effective Date. Seller shall provide Buyer all information (including login and password) to access and take full ownership and control of the Internet Accounts and shall do all things necessary or desirable to facilitate the transition for Buyer. 2. Payment. In full consideration of Seller’s transfer to Buyer of all Seller’s rights, title and interest in and to the Assets, Buyer shall pay Seller the sum of $50,000 (fifty thousand dollars) (the “Payment”). 3. Cooperation and Recordation; Protection of Assets. (a) Seller hereby agrees to cooperate with Buyer as reasonably necessary to give full effect to and perfect the rights of Buyer in the Assets as identified in Paragraph 1, and Seller agrees to execute and deliver all documents and to take all such other actions as Buyer or its respective successors and assigns may reasonably request to effect the terms of this Agreement and to execute and deliver any and all affidavits, testimonies, declarations, oaths, samples, exhibits, specimens and other documentation as may be reasonably required to effect the terms of this Agreement, including, without limitation, cooperating fully with Buyer to perfect the transfer of the Assets hereunder and, if appropriate, to assure that the transfer of the Assets is properly recorded at any appropriate administrative agency or registry, including, but not limited to, the United States Patent and Trademark Office and the United States Copyright Office. Buyer shall be responsible for recording all documents assigning the Assets with all appropriate administrative agencies including the United States Patent and Trademark Office and the United States Copyright Office. (b) Upon execution of this Purchase Agreement, Buyer, in its discretion and at its expense, shall have the right to file, prosecute, and maintain all applications, and registrations relating to the Assets. Seller shall provide, at the reasonable request of Buyer, all necessary assistance with providing evidence of prior use of the Trademarks for such filing, maintenance, and prosecution. Seller agrees that it shall not directly or indirectly apply for, or assist any other person or entity in applying for or obtaining any registration of the Trademarks, or any trademark, service mark, trade name, or other indicia confusingly similar to the Trademarks. In addition, Seller shall not oppose, or assist any other person or entity, in opposing any registration or renewal of the Trademarks or similar mark later registered by the Buyer for any goods or services. 3 4. Delivery of Tangible Items. Seller shall arrange for prompt delivery to Buyer of all Goods reflected in Exhibit A and all prosecution files, documents and other tangible embodiments of the Assets, if any, which are in possession or control of Seller. 5. Representations and Warranties (a) Seller represents and warrants the following: (1) Seller has the full right and power to make this Agreement. (2) Schedule A identifies a complete and accurate list of Seller Goods to be transferred to Buyer. (3) Schedule B identifies a complete and accurate list of Seller’s Trademarks to be transferred to Buyer. (4) To the knowledge of Seller, all Trademarks transferred by Seller hereunder are subsisting, valid, and enforceable. (5) To the knowledge of Seller, Seller exclusively owns and possesses, all right, title and interest in and to all Seller Trademarks identified in Schedule B and Copyrighted Designs identified in Schedule C. (6) To the knowledge of Seller, no Seller Assets are subject to any liens, claims, security interests, or other encumbrances. (7) Schedule C contains a complete and accurate list of all Seller’s Copyrighted Designs transferred to Buyer. (8) To the knowledge of Seller, all Copyrighted Designs are Seller’s sole, exclusive and original work or that Seller has obtained all rights by agreement to the Copyrighted Designs. (9) To the knowledge of Seller, no Seller Assets are subject to any action or order, stipulation, or contract (i) restricting in any manner the use, distribution, practice, exploitation, provision, transfer or assignment thereof by Seller or (ii) otherwise affecting the validity, registrability, or enforceability of any Seller Assets. (10) To the knowledge of Seller, none of the Seller Assets have or does infringe, misappropriate or otherwise violate the intellectual property of any third party, and Seller has not received any notices, requests for indemnification or threats from any third party, in each case in writing (including by email), related to the foregoing. (11) To the knowledge of Seller, no third party is infringing, misappropriating or otherwise violating Seller Assets. 6. General Provisions. (a) Paragraph Headings. Paragraph headings are for convenience only and shall not be considered a part of the terms and conditions of this Agreement. 4 (b) Modification. No modification, waiver or amendment of any term or condition of this Agreement shall be effective unless and until it shall be reduced to writing and signed by both parties. (c) Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall be unimpaired. (d) Choice of Law and Forum. This Agreement shall be construed and interpreted according to the internal laws of the State of Arkansas without giving effect to its principles of conflict of law. The parties agree that any action for the enforcement or breach hereof or otherwise arising hereunder shall be brought and tried solely in the state or federal courts for the County of Washington, State of Arkansas, to which jurisdiction and venue the parties hereby consent and submit and declare to be the sole and exclusive jurisdiction and venue for such purposes. Neither party shall raise in connection therewith, and the parties hereby waive, any defense or objection based upon venue, inconvenience of forum, lack of personal jurisdiction or the like in any such action or suit. (e) Complete Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes in all respects all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. (f) Assignment. This Agreement may not be assigned in whole or in part, by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. This Agreement shall be binding upon the trustees, receiver, heirs, executors, administrators, successors and assigns of the parties. (g) Counterparts and Copies. This Agreement may be executed in counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same. (h) Execution; Electronic Signatures. Each Party agrees that this Agreement may be executed by electronic signature. “Electronic signature” means any electronic symbol or process executed and adopted by a Party with the intent to sign the Agreement, within the meaning of the Uniform Electronic Transactions Act (“UETA”) and the United States Electronic Signatures in Global and National Commerce Act (“ESIGN”). Electronic execution of this Agreement by a Party is intended to authenticate this writing and have the same force and effect as a manual signature. Neither Party may challenge the authenticity or validity of this Agreement on the basis that it was signed electronically. (i) Corporate Authority. Each party represents that it has taken all necessary corporate action to authorize the execution and consummation of this Agreement and will furnish the other party with satisfactory evidence of this upon request. Each party agrees to negotiate in good faith the execution of such other documents or agreements as may be necessary or desirable for the implementation of this Agreement and the effective execution of the transactions contemplated hereby. 5 [Signatures begin on the following page.] [Signature Page to Intellectual Property Assignment Agreement] IN WITNESS WHEREOF, the parties hereto have executed this Intellectual Property Assignment Agreement as of the date first written above. SELLER: WORLD DOMINATION, LLC By: Name: Title: BUYER: EXPERIENCE FAYETTEVILLE By: Name: Molly Rawn Title: SCHEDULE A GOODS 50 Pride Design Shirts 50 Pride Design Totes 100+ Various Designs Stickers 100+ Cardinal Design Cardboard Ornaments SCHEDULE B TRADEMARKS All of Seller’s rights in the following marks: FAYETTEVILLE IS MY FAVORITE VILLE; FAVORITE VILLE; and FAVORITEVILLE SCHEDULE C COPYRIGHTED DESIGNS Original Mural (S&B) Design Original Mural Variant Design Cardinal Design Pride Design CVB Design Favoriteville Design by Tiger Sasha SCHEDULE D INTERNET ACCOUNTS www.favoriteville.com https://www.facebook.com/myfavoriteville https://www.instagram.com/myfavoriteville/ https://twitter.com/myfavoriteville To: Fayetteville Advertising and Promotion Commissioners From: Molly Rawn, CEO, Fayetteville Advertising and Promotion Commission Date: June 26, 2023 Re: Contract with Arrivalist Background: Arrivalist is a data and research tool specifically for Destination Marketing Organizations, tourism attractions and other travel-related organizations. The ability to know where our visitors are coming from and what activities they are participating in while they are here allows us to better position our sales and marketing efforts. Arrivalist includes: o Visitor trip information including in-depth insight into our origin markets o In-market activities and places visited by tourists during the time in Fayetteville o In-depth information about visitors to specific events and activities o Lodging data including hotel and short-term rental data and patterns (we’ve never had access to short-term rental data) o The ability to understand the connection between our website visitors and tourism visitation This software will replace Buxton, which we are not renewing. Recommendation: The CEO recommends the commission accept the one year contact with Arrivalist for $45,000 annually. Fayetteville A&P Commission Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 1 CONFIDENTIAL May 31, 2023 Letter of Agreement between Arrivalist and Experience Fayetteville This letter of agreement (“Agreement”) is entered into between the Fayetteville Advertising & Promotion Commission, d.b.a. Experience Fayetteville, a governmental agency established by Ordinance 2310 of the City of Fayetteville pursuant to Arkansas law (Ark. Code Ann. § 26-75-605) with a principal place of business located at 21 S. Block Avenue, Suite 100, Fayetteville, AR 72701 (“Client”), and Arrivalist Co., a Delaware corporation, with a principal place of business located at P.O. BOX 230199, New York, NY 10023 (“Arrivalist”). Arrivalist and Client may be referred to in this Agreement individually as a “Party” or collectively as “Parties.” 1. Term The term of this Agreement shall begin July 1, 2023 and end on June 30, 2024 (“Term”). Any provision of this Agreement, which contemplates performance or observance subsequent to termination or expiration of the Agreement will survive termination or expiration of this Agreement and continue in full force and ef fect. 2. Services and Arrivalist Obligations During the Term, Arrivalist will use its proprietary technology (“Arrivalist Technology”) to provide to Client the following service: a) anonymously monitor the visits to the greater Fayetteville area (“Location”) of Internet users (“Arrivalist Services”). Arrivalist services will provide clients with access to an online reporting interface (“Platform”) Arrivalist Technology. The Arrivalist Technology, and any and all intellectual property related thereto, shall remain the exclusive property of Arrivalist, and Arrivalist reserves all right, title and interest in the Arrivalist Technology and related intellectual property. To the extent Client needs to use the Arrivalist Technology to give effect to this Agreement, it shall do so only with the approval of Arrivalist and solely in connection with the Services provided by Arrivalist and as described in this Agreement. If any license of the Arrivalist Technology becomes necessary to give effect to this Agreement such license shall be limited to the purpose of this Agreement, and sh all be non-exclusive, non-transferable, non-sublicensable, non- assignable, and revocable. Client expressly agrees not to disclose, disassemble, decompile, decrypt, extract, reverse engineer or modify the Arrivalist Technology or otherwise attempt to deriv e its source code or any algorithm, process, methods, techniques, or procedure contained within the Arrivalist Technology. • Technology Used for the Services. Arrivalist may use different advertising technology providers in addition to its own technology and media outlets including, without limitation Client’s website, Client’s advertising vendors and other outlets to monitor arrivals in Destination. The Services may not be used in connection with Clients’ purchases of advertising inventory (display, video or mobile) on open exchanges (also referred to as public exchanges) for ads targeting consumers located in or traveling from the member states of the European Union. • Timing of Reporting. Reporting of visits monitored by the Arrivalist Technology for attribution and visitation services begin approximately 45-60 days following the commencement of agreement (the “Launch Date”). Timing may vary depending on complexity of location set up. • Review and Changes to Client’s Privacy Policy Addressing Advertising Practices in the U.S. Arrivalist shall have the right, but not the obligation, to review and make recommendations to the privacy policy governing Client’s site(s) to accommodate the data collection and use practices involved in using Arrivalist Technology for advertising practices in the United States. • Arrivalist Services and Rates. The specifics of the services and rates are set forth in Appendix A, attached hereto and made an integral and binding part hereof. 3. Obligations of Client Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 2 CONFIDENTIAL Client shall: Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 3 CONFIDENTIAL • Provide Arrivalist with Necessary Information. Client will make Arrivalist aware of desired Arrival Zones, Points of Interest, measurement definitions and other relevant information. • Make Arrivalist-Recommended Edits to Privacy Policy. Client will make any reasonable Arrivalist-recommended changes to the Client’s privacy policy (as set forth in Section 2 above), including placement of Arrivalist “opt -out” language in its privacy policy and newsletter emails. Client represents and warrants that (i) its privacy policy discloses all collection and use of Internet users’ information so that such disclosed practices include Client’s use of Arrivalist Technology, and (ii) it will abide by its privacy policy, and honor Internet users’ marketing preferences. • Payment. Unless otherwise provided in Appendices, pay all setup fees upon execution of this Agreement within thirty (30) days of the invoice date. In the event Appendices provide for third party media purchases by Arrivalist on behalf of Client, such third-party media shall be pre-paid by Client. Billing information to be filled out on page five of this agreement. • Ownership and Use of Cookies. Client acknowledges that Arrivalist uses cookies in order to provide the Services. Any and all cookies (or other information or technology achieving a similar or competitive function, whether currently in existence or not) used by Arrivalist in performing the Services shall remain the property of Arrivalist. 4. General Provisions A. Publicity. Each Party grants to the other Party a limited license to include the name and trademarks of the other Party on its website and in its marketing materials for the sole and limited purpose of publicizing the Services and Arrivalist Technology. Neither Party shall make any defamatory or derogatory statements concerning the other Party or the Services provided herein. B. Confidentiality. In connection with the implementation of this Agreement, each party may have access to or receive disclosure of Confidential Information of the other party. “Confidential Information” means information relating specifically to the other party’s business, technology, marketing objectives and plans, or pricing and any other information, in any form, furnished or made available directly or indirectly by one party to the other that is marked confidential, restricted, or with a similar designation. Each party shall keep any such Confidential In formation of the other party in confidence and not disclose it to any third party without the prior written consent of the other party. Each party shall use the Confidential Information of the other party solely for purposes provided in this Agreement. All information furnished by one party to the other party shall be and remain the property of the furnishing party. Each party shall cause its employees and subcontractors to comply with the terms in this provision. The confidentiality obligations herein shall not apply to information that: (i) is already known to a party prior to disclosure by the other party; (ii) is or becomes available to the public through no breach of this subsection by the other party; (iii) is rightfully received by the other party from a third party without a duty of confidentiality; (iv) is independently developed by a party; or (v) is required to be disclosed by law, regulation, or court order, provided that the disclosing party shall use reasonable efforts to notify the other party prior to disclosure. Either party may disclose this Agreement or Confidential Information of the other party without obtaining the other party’s written consent if, in the opinion of such party’s attorneys, such disclosure is required by subpoena, court order, or otherwise required by law. If a party receives or is subject to a subpoena, court order, or other legal process requiring disclosure of this Agreement or Confidential Information of the other party, such party shall notify the other party promptly thereof, in order to give the other party, the opportunity to seek a protective order or other legally acceptable protection to, as applicable, limit the disclosure of this Agreement and or the other party’s Confidential Information. C. Aggregate Data. Arrivalist collects aggregate data that is not personally-identifiable including, without limitation, end user usage and behavioral data related to the Services ("Aggregate Data"). Client shall own all right, title and interest in and to any data deliverables, provided that Arrivalist shall retain ownership of all right, title and interest in and to: (i) any materials created prior to, or independent of, this Agreement; (ii) any underlying data that are not specifically collected for Client; or (iii) any analytical approaches used by Arrivalist to prepare the data deliverables (each, “Arrivalist Portion”). The Arrivalist Portion shall remain the exclusive property of Arrivalist, and Client shall have the non-exclusive, non-assignable and non-transferable license to use the Arrivalist Portion for Client’s internal business purposes. Arrivalist warrants that it shall not sell Client’s info or data under any circumstances. Any use of the data by Arrivalist shall be limited to internal use and for the sole purpose of improving Arrivalist’s methodology. D. Relationship Between Parties. Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract unless expressly agreed otherwise in writing. Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 4 CONFIDENTIAL E. Allocation of Resources. Client understands that 25% of Arrivalist’s investment goes into setting up the Arrivalist platform or reporting interface, training, providing logins, importing data, setting up and maintaining historical data. The remaining 75% of Arrivalist’s investment is derived from forward looking data and account management. F. Assignment. Neither Party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of the other party (and any such attempt shall be void), except that either party may (without consent) assign and transfer this Agreement and its rights and obligations hereunder to any successor to substantially all of its business to which this Agreement relates. G. Choice of Law. This Agreement shall be governed by the laws of the State of New York without regard to the conflict of the laws provisions thereof. H. Dispute Resolution. The Parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation shall be submitted to final and binding arbitration by one arbitrator. Unless the Parties agree otherwise, any arbitration will take place in the State of New York, New York County, and will be administered by, and pursuant to the rules of, the American Arbitration Association. The prevailing Party shall be entitled to all its costs and reasonable attorney fees incurred. I. Validity. If any portion of this Agreement is illegal or unenforceable, such portion(s) shall be limited or eliminated to the minimum extent necessary such that the balance of this Agreement shall remain in full force and effect and enforceable. J. Entire Agreement. This Agreement contains the entire understanding of the parties regarding the subject matter of this Agreement and can only be modified or waived by a subsequent written agreement signed by both parties. K. Force Majeure. Neither party shall be liable to the other party for any failure or delay in performance caused by acts of God, fires, floods, strikes, whether legal or illegal, water damage, riots, epidemics or any other causes beyond such party’s reasonable control, and such failure or delay will not constitute a breach of this Agreement. L. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Execution of a facsimile or email copy shall have the same force and effect as execution of an original, and a facsimile or email signature shall be deemed an original and valid signature. M. Indemnification. Client will defend, indemnify and hold harmless Arrivalist from and against a ny claims, actions, demands, losses, judgments, fines or expenses (including, without limitation, reasonable attorneys' fees) arising out of any actual or alleged claim due to a breach or alleged breach by Client of any of its obligations under this Agreement. N. Notices. All notices under this Agreement shall be in writing, and shall be deemed given when mailed, faxed or sent via electronic mail to the address, fax number or email address appearing in this Agreement. O. No Warranty. EACH PARTY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT AND/OR IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. P. Limitation of Liability. NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR (B) ANY AMOUNTS, IN THE AGGREGATE, IN EXCESS OF ONE MONTH OF SERVICE PROVIDED PURSUANT TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CLIENT ACKNOWLEDGES THAT THE FEES PAID REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT ARRIVALIST WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. NEITHER ARRIVALIST NOR ANY OF ITS THIRD-PARTY PROVIDERS GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE ARRIVALIST SERVICES OR ANY COMPONENT THEREOF OR ANY COMMUNICATIONS, INCLUDING ORAL OR WRITTEN COMMUNICATIONS (INCLUDING ELECTRONIC COMMUNICATIONS) OR OUTPUT WITH RESPECT THERETO. NEITHER ARRIVALIST NOR ANY OF ITS THIRD- PARTY PROVIDERS SHALL BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS, Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 5 CONFIDENTIAL INTERRUPTIONS OR DELAYS IN THE ARRIVALIST SERVICES. THE ARRIVALIST SERVICES AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS. Q. Notices. All notices and other communications which are required to be given by the Agreement or which are otherwise made pursuant to the Agreement will be in writing and delivered either by hand, c ertified or registered U.S. mail, overnight courier, confirmed email or confirmed facsimile, addressed in the case of Agency to the address provided above, and in the case of Arrivalist to Cree Lawson, Arrivalist, P.O. BOX 230199, New York, NY, 10023 or via facsimile to 917 677 8222 or email at cree@arrivalist.com. IN WITNESS WHEREOF, Arrivalist and Client have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. ARRIVALIST CO. By: Name: Title: Date: Experience Fayetteville By: Name: Title: Date: Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 5 CONFIDENTIAL Billing Information First Name: Billing Address Line 1: Last Name: Billing Address line 2: Phone Number: City: State: Zip Code: Fax Number: Email Address: Arrivalist Co P.O. BOX 230199 New York, NY 10023 info@arrivalist.com +1 646 964 5221 6 CONFIDENTIAL APPENDIX A – ARRIVALIST SERVICES Term: July 1, 2023 – June 30, 2024 Arrivalist Trip Arrivalist Lodging Price: $45,000 Deliverables • Up to 50 POIs (there can be no overlap of POIs) • 24-month historical look back • Assigned Account Manager/Analyst – Launch Call and quarterly scheduled calls during the year, plus availability in- between calls if needed. • Arrivalist will cap costs at 5% increase maximum for any renewals. • Bonus: Website content measurement (rate card value of $10,000) Arrivalist will invoice on or around July 1, 2023 and Client will remit payment within thirty (30) days of receipt of invoice.