2016 Avon WinterWonderGrass Festival AgreementA
Avon
COLORADO
2o16 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
THIS AGREEMENT is made and entered into on December i, 20i5, by and between the Town of Avon
( "AVON "), a home rule municipality of the State of Colorado, with its principal offices at One Lake Street,
Avon, Colorado, 8i62o and WONDERGRASS, LLC, hereinafter referred to as the WINTERWONDERGRASS
( "WWG "), a Colorado Limited Liability Company with its principal offices at 411 Eagle Drive, Avon, Colorado,
81620.
In consideration of the mutual promises and agreements herein contained and for other good and valuable
consideration, and on behalf of themselves, their successors and assigns, the parties hereto agree as follows:
RECITALS
WHEREAS, the parties recognize the mutual benefits of WWG producing and AVON hosting the "4th Annual
WWG Festival" in February 2016 ( "FESTIVAL "). It is the parties' intention that this Agreement define the
duties, obligations and conditions with respect to the production of the FESTIVAL so that it is conducted in a
manner and direction to be established by both parties, and so that this Agreement is consistent with and
governed by the provisions of the Avon Municipal Code, as may be applicable; and,
WHEREAS, WWG acknowledges that AVON is currently designing side curtains for the Pavilion which are
expected to be completed by February iz, 2o16. AVON and WWG agree to work in the best interest of the
FESTIVAL to manage the protection and safety of the artists at the time WWG is granted exclusive use of the
Premise (as defined in Paragraph i below). It is expressly understood by WWG that AVON's installing side
curtains does not guarantee to WWG that artists and /or stage crew and /or equipment will be completely
protected from cold weather conditions.
WHEREAS, the parties desire to set forth the terms and conditions of a Special Event Permit to use a portion of
Nottingham Park as defined below in paragraph i as the Premises.
NOW, THEREFORE, for good and valuable consideration, including the mutual promises contained herein, the
sufficiency of which is acknowledged and accepted by the parties, the parties agree as follows:
TERMS AND CONDITIONS
1. PREMISE & EXCLUSIVE RIGHT OF USE - Execution of this Agreement shall constitute issuance of a Special
Event Permit. Avon waives the $ioo application fee pursuant to Avon Municipal Code Section 9.40. This
permit grants WWG the right, and imposes the duty, to use the Premise as defined in this paragraph for
the purpose of producing the FESTIVAL on February i9 -2i, 20i6, subject to compliance with the terms and
conditions of this Agreement. The "PREMISE" is defined as a portion of Harry A. Nottingham Park (as
depicted on Attachment A), including the Pavilion (stage deck, event terrace, viewing plaza, green room,
scissor lift room), all paths of access leading to and from the Pavilion, but not including the Avon
Recreation Center, Picnic Shelter, Lower Athletic Field, Basketball Courts, Sand Volleyball Courts, Tennis or
Pickleball Courts.
WWG is granted an exclusive right of use of the PREMISE from February i9, 2oi6, at 7:oo a.m., through
i2:00 midnight, February zi, 2oi6. WWG shall also have non - exclusive rights to access the PREMISE for set-
up from February i6 through February 18, 2oi6, from 9:oo a.m. to 8:oo p.m. and may continue set -up
activities within tented spaces for activities such as hanging lights, signage and modular offices from 8:oo
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p.m. to 1o:oo p.m. WWG shall also have non - exclusive rights to access the PREMISE on February 22 -23,
2o16, from 7:oo a.m. to 5:00 p.m. for the sole purpose of FESTIVAL break -down and site clean -up. WWG
may request, as a result of weather or catastrophic events, an extension or delay of the aforementioned
timelines, after which the Town may approve the request in writing. Approval of the request from WWG
for an extension or delay of the agreed upon timelines will not be unduly withheld by the Town.
z. PERFORMANCE HOURS - AVON and WWG agree that FESTIVAL stage acts may be performed only on
Friday, February 19, 2o16, from 9:oo a.m. to 10:00 p.m.; Saturday, February 20, 2016 from 9:00 a.m. to
10:0o p.m.; and Sunday, February 21, 2o16 from 9:oo a.m. to 8:oo p.m., unless the Town Council approves
an ending time of 9:oo p.m. for Sunday, February 21, 2o16, through a Sound Permit Application. WWG
shall complete and submit a Sound Permit Application pursuant to Avon Municipal Code 5.24 by not later
than January 27, 2o16. Avon agrees to waive the $25 Sound Permit Application Fee.
2.1 WWG shall allow each performer up to a three -song sound check lasting no more than 20
consecutive minutes. WWG agrees that each performer's sound check includes front of
house and individual artist checks and that 20 minutes is a satisfactory amount time. Sound
checks shall take place on Thursday, February 18`h between the hours of 2:00 p.m. and 7:00
p.m.; and on Friday, February 19th through Sunday, February 21st between the hours of
9:oo a.m. and 2:00 p.m. WWG may request, as a result of weather or catastrophic events, an
extension or delay of the aforementioned timelines, after which the Town may approve the
request in writing. Approval of the request from WWG for an extension or delay of the
agreed upon timelines will not be unduly withheld by the Town.
2.2 WWG acknowledges and agrees that strict adherence to the performance and sound check
times is a material term of this Agreement. WWG shall pay a penalty of one hundred dollars
($1oo.00) per minute for music, public address announcements, sound check, or any other
amplified sound that occurs before or after any time period in which amplified sound is
permitted.
3. MAXIMUM CROWD SIZE & WRISTBAND PROTOCOL
3.1 Maximum Crowd Size -WWG agrees the daily number of admission shall not exceed five thousand
(5,000) on any day of the FESTIVAL. This includes children age 13 and older. Children age twelve and
under shall not be counted as part of the 5,000 admissions.
WWG shall provide for those services described in Section 4 below for 5,000 admissions. Should WWG
be unable to provide those services in Section 4 for 5,00o admissions, WWG shall limit sales and
complimentary wristbands to the number of people able to be accommodated by the services
provided.
3.2 Wristband Program — WWG agrees that all admissions require a wristband. WWG shall provide to the
Town Manager by not later than January 11, 2o16, a Wristband Program detailing the following
elements:
3.2.1 The various types of admissions to include, but not limited to: single or multi -day
VIP, single or multi -day General Admission, staff, crew, performer, artist, volunteer,
complimentary and any other type of admission not aforementioned.
3.2.2 The script for each type of admission, number ordered and color of each wristband
type.
3.2.3 A distinct wristband for those admissions that are 21 years old and older shall also be
described by number ordered, color and script.
2o16 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
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3.2.4 Wristband Reporting & Accounting - WWG acknowledges and understands that all
rules outlined in Resolution 15 -o8 and attached hereto, shall apply to the 2o16 WWG
event, including the payment of Admission Ticket Fees. WWG shall provide
reporting and accounting of all wristbands which documents the following:
3.2.4.1 The pre- event, during event and post -event control and custody of the
wristbands to include responsible party, location and security measures.
3.2.4.2 Scanning system, procedures and data collections to be in place to ensure
that wristbands are distributed and accounted for strictly by type, to ensure
that wristbands are not intermixed among admission types and to
determine the Avon Ticket Admission Fee.
3.2.4.2.1 The Town Manager or designee may view the scanned data for each
day during non -peak times throughout the event.
3.2.4.3 The ticket admission fee shall not be payable by the following admissions if
admitted to the event without charge. The Town Manager may limit the
number of each type of admission admitted without charge.
3.2.4.31 A bona fide officer or employee of the Vendor of the special event;
3.2.4.3.2 Any federal, state, city, county or Town official employee attending
the event on official business;
3.2.4.3.3 Any person whose admission to such special event is required for the
performance of some duty or work for the operator of such special
event;
3.2.4.3.4 Any newspaper reporter, photographer, telegrapher, radio
announcer or person performing a similar vocation who is admitted
for the performance of special duties in connection with the special
event and whose special duties are the sole reason for his or her
presence; and /or
3.2.4.3.5 A child under thirteen (13) years of age, who is admitted without
charge.
3.2.4.3.6 Up to fifty (50) complimentary wristbands for WWG guests.
3.2.4.4 WWG shall provide to the Town Manager or designee a sold ticket report 30
days prior the Festival and once per week thereafter until Thursday,
February 19, 2o16 after which point the report is provided daily.
3.2.4.5 All final event accounting of all admissions including the unused and /or
broken wristbands shall be provided to the Town Manager by 1:oo p.m. on
February 23, 2o16 in order to evidence the admission fee to be paid by WWG.
4. WWG RESPONSIBILITIES
4.1 PARK SET -UP & TEAR DOWN PLAN - WWG shall provide a park set -up and tear down plan to the Town
2o16 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
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Manager or designee by 5:00 p.m., January 11, 2o16. The plan shall include a schedule for
installation /removal and a map of all proposed structures including but not limited to gates
(entrance /exit and emergency blow -out), fences, tents, portable facilities, stage and lighting /sound
systems, ADA areas, addition of a plywood road for heavy trucks, vendor spaces adequately sized
boneyard (i.e. storage and staging area), crowd management areas and smoking area.
4.1.1 Avon will deliver a prepared Premise with snow removal and a clean facility to include the
Pavilion (stage deck, event terrace, viewing plaza, green room, and scissor lift room), all paths
of access leading to and from the Pavilion, council chambers, log cabin, main athletic field and
recreational path adjacent to Premise. Avon is unable to guarantee ice will be removed from
the Pavilion viewing plaza, main athletic field and adjacent recreational paths. WWG shall be
responsible for cleaning and snow /ice removal in the Premise during the Event.
4.2 VENDOR LICENSING — WWG shall provide a list of vendors to the Town Manager or designee by 5:00
p.m. on January 25, 2016. The list shall include all vendors, sponsors, non - profits, etc. engaged in
business during WWG to include the business names/dba's, physical address, mailing address, phone
number, type of activity, how Avon Vendor License payment will be received, selling or not selling and
if the business is an existing Avon business
43 PARKING & TRANSPORTATION PLAN — WWG shall provide to the Town Manager or designee a plan
which details mass transportation needs and where parking for all attendees will be staged by
December 14, 2015. In addition, the plan shall provide for parking lot lighting and the volunteer /paid
staffing for all parking lots.
4.3.1 The transportation plan shall detail what transit services are required to be provided by AVON,
including hours of service and estimated frequency of trips. The transportation plan shall
specifically address:
4.3.1.1 Identify parking lot for overnight camping with management plan which includes
security, medical, water refuse management and lighting, if applicable.
43.1.2 Creation of a "bus pass" for use by festival goers to eliminate slow lines from need to
pay for ECO service as patrons board the bus, if possible.
4.3.1.3 Location of taxi line and communication procedure to taxi /limo services and pre -
event information plan for attendees.
4.3.1.4 Pre -event information and outreach to local businesses regarding "no event parking"
signage.
4.3.1.5 Addition of a "last call" bus at 2:3o a.m., information plan to inform attendees of
which bars have live music, a plan to deliver patrons to Avon, Eagle -Vail, Vail and
Edwards and a plan to communicate this information pre- event, on -site and in bar
locations.
4.3.2 Agreements with property owners for the use of parking lots shall be provided by not later than
January 11, 2o16, to the Town Manager by WWG.
4.3.3 Agreements with ECO Transit to accommodate festival goers going to /from the Vail
Transportation Center and those traveling east bound from Eagle, Gypsum, etc., during the
FESTIVAL shall be provided by not later than January 11, 2o16, to the Town Manager or designee
by WWG.
2016 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
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4.3.4 WWG shall provide directional signage plan by not later than January 11, 2o16 which shall detail
the direction provided to both vehicular and pedestrian traffic. This plan shall include types of
signage used, quantity, location and installation /removal dates.
4.3.5 AVON and WWG shall finalize the parking and transportation plans by January 29, 2o16.
4.4 PEDESTRIAN TRAFFIC PLAN - WWG shall provide to the Town Manager a plan which details pedestrian
ingress and egress from all parking lots utilized for the FESTIVAL by December 14, 2015. In addition,
the plan shall provide for lighting of public pathways, the volunteer /paid staffing needed for safe
ingress /egress to FESTIVAL /PREMISES, and the following equipment and personnel:
4.4.1 Certified flaggers, with appropriate safety gear at Avon Road during egress until
10:30 p.m.
4.4.2 An additional portable restroom along the recreational path around the north side
of the lake; and consider adding portable restrooms along Benchmark Road from
Transportation Center.
4.4.3 Additional signage at main point of entry and /or paths of ingress /egress stating "No
Loitering ", "No Open Containers ", "Event Entrance" on Main Street Mall and
signage to address use of "Buddy System ".
4.4.4 Light tower located between the Avon Rec. Center and Avon Library to provide
adequate lighting for safe ingress /egress.
4.5 SECURITY PLAN — WWG shall provide to the Town Manager a plan which details the security and law
enforcement needs for the FESTIVAL by January 11, 2o16. The plan shall announce which performers
have been booked and shall include, but not be limited to, security needs for alcohol sales, crowd
management, entry gate security checks, communication plan for law enforcement and emergency
response agencies, chain of command, and external support from AVON and Eagle County Sheriff's
office. Contracts for services with security agencies shall be presented or a date to have such
contracts shall be provided.
4.5.1 Based upon the plan, the Town Manager shall determine in her sole discretion the
number of law enforcement officers Avon shall provide for the event. WWG shall
provide all security, as approved by the Town Manager, for the FESTIVAL, including
requirements for communication radios for AVON staff and WWG personnel to be
identified by shirts or hats, if needed, to fully implement the security needs of the
FESTIVAL.
4.5.2 WWG shall provide adequate proof to the Town Manager that the main athletic fields
and otherfacilities in Nottingham Park are protected from damage through fencing,
crowd management measures, or other sufficient means.
4.5.3 Pre -event information shall be expanded to sufficiently communicate to attendees
that: (1) "no open containers are allowed within Avon" by adding to all media
outlets, creating signage to be placed at entrance /exit and Avon Transportation and
by working with restaurants /bars to ensure signage and enforcement; (2) there is no
vending without a Town license; and, (3) there is no parking on private property
without permission of the property owner, (4) use of "buddy system" (5) "no
loitering ", (6) "beer tasting etiquette" guide for attendees and educational tactics,
(7) all parking information, including overnight lots
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4.5.4 Security personnel will sweep the railroad tracks on the west end of the venue at the
end of the Festival each night.
4.6 MEDICAL AND EMERGENCY RESPONSE PLAN — WWG shall provide to the Town Manager a plan which
details the medical response and emergency response agencies and protocols for the FESTIVAL by
January 11, 2o16. The plan shall include a management protocol for people who are severely
intoxicated and not able to walk to public transportation or parking lots. Contracts for services with
emergency response agencies shall be presented or a date to have such contracts shall be provided.
4.7 SANITATION & RESOURCE RECOVERY - WWG shall provide to the Town Manager a plan
that details the sanitation facilities, resource recovery (reduction and recycling) and
cleaning program by January 11, 2o16. The plan shall cover the PREMISES, parking lots,
pedestrian pathways to and from parking lots and the Pavilion (stage deck, event terrace,
viewing plaza, green room, scissor lift room and basement). The number and location of
portable sanitation facilities, dumpsters, trash cans, recycling bins shall be provided as well
as the timeframes detailed. Avon shall require copies of all contracts for services by not
later than January 11, 2o16.
4.8 INTERNET ACCESS - Avon contracts with Comcast for all wireless services related to Town
business. WWG may use Comcast provided internet service for lawful purposes only. Any transmission
or re- transmission of material in violation of any federal or state laws or regulations is expressly
prohibited. This extends to and includes, but is not limited to, any copyrighted materials, content
communications deemed to be abusive, threatening or obscene, or any content or communications
prohibited by trade secrets.
4.8.1 Through Comcast AVON shall provide access to the internet through TOA- Public secured
with an EVENT password for the express use of WWG's box office /ticket sales, EVENT
merchandise sales, vendor booth sales and media only. TOA- Public bandwidth is 50
megabits down /10 megabits up. AVON shall increase the bandwidth through Comcast to loo
megabits down /10 up during festival hours. Under no circumstances shall WWG share the
passcode with the general public.
4.9 PAVILION USAGE & INSPECTION — WWG and Avon shall jointly perform and document a pre -event
inspection of the Premise not later than Tuesday, February 16th at 9:oo a.m. and post -event inspection
of the Premise not later than February 23rd at 5:oo p.m., before the Premise is released to WWG and
returned to Avon. WWG shall notify Avon Town Manager or designee of any problems or damage that
may have occurred during the Event during the post -event inspection.
4.10 The following guidelines shall be observed for usage of the Pavilion:
4.10.1 Use the Pavilion only in the manner permitted by this Agreement and shall not use
or permit the use of the Pavilion for any other purpose or any other reasonably
objectionable or unlawful act.
4.10.2 WWG shall not install, place, inscribe, paint or otherwise attach and shall not permit
any banner, sign, advertisement, notice, marquis, or awning on or within the
Pavilion, without the prior review and consent of Avon in each instance. WWG shall,
at its own expense, provide and maintain in first -class condition all permitted signs
and shall, upon the expiration of this Agreement, at its own expense, remove all
such permitted signs and repair any damage caused by such installation and /or
removal. Avon shall have the right to remove all non - permitted signs without notice
to WWG, at the expense of the WWG.
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4.10.3 By Order of the Eagle River Fire Protection District, WWG will ensure that NO
THEATRICAL SMOKE without approval is blown on the Pavilion and NO
PYROTECHNICS OF ANY SORT are to be detonated. Decorative open flame, fire pits,
patio style heaters and/or fire performers are only permissible if permitted through,
and approved by Eagle River Fire Protection District. Cooking of any sort by hot
plate, open flame, grill, etc. is not allowed in the Green Room (including restroom).
4.10.4 WWG acknowledges and agrees that Avon is permitting WWG to use the Pavilion in
its "as is" condition and the Avon shall be under no obligation to replace, upgrade
or otherwise modify the facility.
4.10.5 WWG shall not make alterations, additions or improvements on or to the Pavilion
without the prior written consent of Avon to include but not limited to tenting,
catering equipment and portable facilities. All such work shall be performed in a
good and workmanlike manner. All alterations, additions or improvements upon
the Pavilion shall be removed from the Pavilion by February 23, 2o16 at 5:00 p.m.
WWG shall be liable for any damage to the Pavilion or adjacent Town Property
caused by the installation or removal of any alteration, addition or improvement.
Town may take action to repair and restore any damage caused by WWG and WWG
shall be liable for such costs, including reasonable attorneys' fees and costs to
enforce this Agreement.
4.11 INSURANCE & INDEMNIFICATION
4.11.1 WWG agrees to indemnify the Town of Avon, its officers, agents and employees, and to hold
them harmless against any and all claims, actions, demands or liabilities, including attorney fees
and court costs, for injury, death, damage or loss to person(s) or property arising out of or
directly or indirectly resulting from WWG' actions or omissions in connection with the conduct
of the FESTIVAL.
4.11.2 WWG shall obtain general liability insurance coverage within the minimum limits set below
naming AVON as an additional insured and insuring AVON and its officers, agents and
employees against any and all liability and damages which may arise out of or directly or
indirectly result from the conduct of the FESTIVAL. The policy dates shall include the entire
range of dates for which Town property is used. The minimum limits and requirements of the
coverage shall include: $1,000,000 per occurrence primary coverage, and $5,000,000 annual
aggregate; 3o days' written notice of cancellation; host and general liquor liability insurance in
the same amounts listed above; $5,000,000 personal and advertising injury coverage; and
$50,000 fire damage.
4.11.3 WWG shall provide to AVON proof of Comprehensive Automobile Liability insurance for any
private motor vehicles owned by WWG or its officers, agents, or employees that are used as
part of the FESTIVAL. The insurance policy shall provide that it is primary insurance and that its
coverage will apply prior to utilization of AVON's general liability coverage.
4.11.4 WWG shall provide written evidence of all insurance coverage required in this paragraph 4.7 to
the Town Manager no later than January 29, 2o16, at 5:oo p.m. All required insurance policies
shall be non - cancellable without thirty (3o) days prior written notice to AVON.
4.11.5 The parties hereto understand and agree that AVON is relying on, and does not waive or intend
to waive by any provision of this Agreement, the monetary limitations (presently $350,000 per
2016 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
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individual claim and $99o,000 for multiple claims arising from a single incident) or any other
rights, immunities, and protections provided by the Colorado Governmental Immunity Act,
Section 24- 10 -1o1 et seq., to C.R.S., as from time to time amended, or otherwise available to
AVON, its officers, agents, or employees.
4.11.6 WWG shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to paragraph 7.1 of this Agreement by reason of its failure to procure or maintain
insurance or by reason of its failure to procure or maintain insurance in sufficient amounts,
duration, or types.
4.11.7 All subcontractors of WWG shall be required to list the Town of Avon, its elected
officials, officers and employees as additional insureds and provide the appropriate
certificate of insurance to Avon upon request.
4.12 MISCELLANEOUS
4.12.1 LIQUOR LICENSE: WWG shall be solely responsible for identifying a local nonprofit to acquire a
liquor license for the FESTIVAL. Application for the license and all insurance and
indemnification requirements pursuant to AVON Municipal Code 5.o8-17O shall be the
responsibility of WWG and its' nonprofit. WWG shall submit to the Town Clerk a Special Event
Liquor Application by not later than January 12, 2o16.
4.12.2 WWG shall ensure there is lighting on the perimeterfence, along the recreational path to
backstage, behind concessions, to the warming tents, portable restrooms, public pathways
to/from parking lots, parking lots and to the Box Office.
4.12.3 WWG shall provide signs at the entrance to Lake Street stating the rules for use of the street,
from Thursday, February 19, 2o16 at 6:oo a.m. to Sunday, February 22, 2o16, at 12:00 a.m.
Signage for FESTIVAL rules and attendee information shall be reviewed by AVON prior to
posting.
4.12.4 Stakes are not to be driven into the ground along any pathways, athletic fields, parking lots or
grassy areas with underground sprinkler systems without prior permission from the Town
Manager or designee.
4.12.5 WWG in its marketing and advertising shall notify attendees about alcohol restrictions, resource
recovery priorities, parking and transportation systems, no dogs allowed and all other matters
deemed necessary by the Town Manager or designee for the advanced informational needs of
FESTIVAL attendees.
4.12.6 To the extent licensed personnel, such as electricians, medical, emergency response or health
official, are required to conduct certain services or inspections, WWG shall abide by these local
and State requirements.
4.12.7 WWG agrees to make every effort to retain volunteers and paid staff from qualified persons
residing in the Town of Avon or Eagle County.
4.12.8 BOND — WWG shall deposit a bond or other security instrument in a form acceptable to the
Town Manager and payable to the Town of Avon in the amount of $2o,000. The bond is
intended to secure payment of actual admissions' fees, damages, repairs, clean-up, or any other
payment or penalty due AVON under the terms of this Agreement. The bond is due at the Town
of Avon Finance office no later than 5:00 p.m. on February 2, 2o16. The bond, less any
appropriate funds for payment, if any, shall be refunded to WWG by March 23, 2o16.
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4.12.9 All references to the Town Manager in this Agreement shall also include the Town Manager's
designee.
5. AVON RESPONSIBILITIES
5.1 AVON shall provide financial support in the amount of $40,000 to WWG. Payment shall be made by
not later than January 8, 2o16.
5.2 AVON shall provide in kind support to WWG in the amount not to exceed $25,000. In -kind support
includes, but is not limited to staff staging assistance, police, transit operations, traffic control, and
banner installation /removal and snow removal.
5.3 AVON shall cooperate with the marketing of the event by supporting the use of the Town of Avon
name and logo brands.
5.4 AVON shall to the greatest extent possible assist WWG with leveraging existing Town sponsorships
and relationships in helping WWG find hotel room at discounted rates and opportunities with the
Beaver Creek Resort.
5.5 If WWG produces banners for promotional purposes, AVON shall install /remove them in the following
locations: Avon Road Bridge Banner (2 banners), Avon Road Round -a -bouts (up to 12 banners) and
Post Blvd. (up to 12 banners) after December 15, 2015. WWG and Avon may mutually agree to the
number, location and installation and removal of additional banners. Avon agrees to waive the $loo
temporary sign application fee.
5.6 AVON shall provide portable fence materials (stadium barricade — approx. goo linear feet), not already
in use, located in Town Park for use by WWG.
5.7 AVON will ensure that by February 1, 2016, the electrical stubs and outlets on the Pavilion, on the north
side of Town Hall and on the south side of the restroom building are in good working order for the
concessionaires. AVON shall provide 3 phase power at the Pavilion.
5.8 AVON agrees to provide transportation services to /from designated parking lots within Town limits
during the FESTIVAL, including identification of event shuttle service at Special Event Parking venues
and providing an increased number of volunteers at Avon Transportation /Lake St. during egress to
four or five volunteers to direct people onto the correct buses. AVON agrees to provide in -town bus
loop service to match the Riverfront Gondola schedule February 19 -21, 2o16.
6. EVENT CANCELLATION —Either party may cancel the FESTIVAL in whole or in part, for any substantial
reason beyond either party's control. In the event of cancellation, neither party shall be liable to the other
for any lost profits, lost revenues or consequential damages.
6.1 The FESTIVAL may be canceled by the Town Manager if the terms of this Agreement are not
substantially fulfilled in a timely manner or in the event of an unforeseen catastrophic event, subject
to a right to cure. Should AVON deem any term or terms of this Agreement unfulfilled and wish to
base cancellation thereon, AVON shall give WWG written notice and WWG shall have five (5) business
days to cure the term or such longer time as mutually agreed by the parties. Should WWG cure, this
Agreement shall continue in full force and effect.
6.2 In the event of cancellation, AVON shall remit to WWG all bonds less any FESTIVAL related
expenditure incurred by AVON. If WWG cancels the FESTIVAL after AVON has dedicated resources
toward production and notice of such cancellation is not given prior to January 20, 2o16, WWG shall
pay AVON five thousand dollars ($5,000) as liquidated damages within 3o days of the previously
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scheduled production date.
7. RELEASE OF LIABILITY
7.1 AVON assumes no responsibility whatsoever for any non - municipal property placed in said PREMISES.
WWG hereby expressly releases discharges Avon from any and all liabilities for any loss, injury or
damages to any person or property of WWG, its employees, agents, concessionaires, performer,
attendee, spectator or other invitee that may be sustained by reason of the occupancy of the
PREMISES under this Agreement, except for the negligent acts of AVON or its officers, agents,
employees. To the fullest extent permitted by law, WWG shall indemnify, defend and hold harmless
Avon, its members, affiliates, officers, directors, partners, employees, and agents from and against all
claims, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising
out of the performance of this Agreement, provided that any such claim, damage, loss or expense is
caused by any negligent act or omission of WWG, anyone directly or indirectly employed by WWG or
anyone for whose acts WWG may be liable, except to the extent any portion is caused in part by a
party indemnified hereunder.
7.2 In the event the PREMISES or any part thereof is damaged by fire or other natural causes or if for any
other reason, including strikes, failure of utilities, which results in cancellation of the FESTIVAL, or
which in the judgment of the Town Manager and Mayor, renders the fulfillment of this Agreement by
AVON impossible, WWG hereby expressly releases and discharges AVON and its officers, agents and
employees from any and all demands, claims, liabilities, and causes of actions arising from any of the
causes aforesaid.
8. NOTICES -Any notice to either party under this Agreement shall be in writing to the following addresses:
WINTERWONDERGRASS
Mr. Scotty Stoughton
P.O. Box 485
Vail, Colorado, 81658
COPY TO: Mountain Legal, 175 Main St., Suite C -104, Edwards, CO 81632
AVON
Town Manager, Town of Avon
P. 0. Box 975
Avon, CO 8162o
COPY TO: Special Events Supervisor, Town of Avon, P.O. Box 975, Avon, CO 81620
9. No Third Party Beneficiaries - Nothing contained in this Agreement is intended to or shall create a
contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including
any agent, sub - consultant or sub - contractor of WWG. Absolutely no third party beneficiaries are intended
by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and
unintended beneficiary only.
io. Article X, Section 2o/TABOR -The parties understand and acknowledge that the Avon is subject to Article
X, § 20 of the Colorado Constitution ( "TABOR "). The parties do not intend to violate the terms and
requirements of TABOR by the execution of this Agreement. It is understood and agreed that this
Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of
TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment
obligations of the Avon are expressly dependent and conditioned upon the continuing availability of funds
beyond the term of the Avon's current fiscal period ending upon the next succeeding December 31.
Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available in accordance with the rules,
regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate
2016 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
Page 10 Of 12
such funds, this Agreement shall be terminated.
ii. Governing Law, Venue, and Enforcement - This Agreement shall be governed by and interpreted according
to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the
appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite
the resolution of disputes under this Agreement, the parties hereby waive any and all right either may have
to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The
Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party
shall not apply to the interpretation of this Agreement. If there is any conflict between the language of
this Agreement and any exhibit or attachment, the language of this Agreement shall govern.
12. Survival of Terms and Conditions - The parties understand and agree that all terms and conditions of the
Agreement that require continued performance, compliance, or effect beyond the termination date of the
Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform
or comply.
13. Assignment and Release - All or part of the rights, duties, obligations, responsibilities, or benefits set forth
in this Agreement shall not be assigned by WWG without the express written consent of Avon. Any
written assignment shall expressly refer to this Agreement, specify the particular rights, duties,
obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by Avon.
No assignment shall release the Applicant from performance of any duty, obligation, or responsibility
unless such release is clearly expressed in such written document of assignment.
14. Severability - Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause,
phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of
any other provision of this Agreement.
15. Incorporation of Exhibits - Unless otherwise stated in this Agreement, exhibits, applications, or documents
referenced in this Agreement shall be incorporated into this Agreement for all purposes. In the event of a
conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall
govern and control.
16. Employment of or Contracts with Illegal Aliens - WWG shall not knowingly employ or contract with an
illegal alien to perform work under this Agreement. WWG shall not contract with a subcontractor that fails
to certify that the subcontractor does not knowingly employ or contract with any illegal aliens. By
entering into this Agreement, WWG certifies as of the date of this Agreement it does not knowingly
employ or contract with an illegal alien who will perform work under the public contract for services and
that the WWG will participate in the e- verify program or department program in order to confirm the
employment eligibility of all employees who are newly hired for employment to perform work under the
public contract for services. The WWG is prohibited from using either the e- verify program or the
department program procedures to undertake pre - employment screening of job applicants while this
Agreement is being performed. If the WWG obtains actual knowledge that a subcontractor performing
work under this Agreement knowingly employs or contracts with an illegal alien, the WWG shall be
required to notify the subcontractor and the Town within three (3) days that the WWG has actual
knowledge that a subcontractor is employing or contracting with an illegal alien. The WWG shall terminate
the subcontract if the subcontractor does not stop employing or contracting with the illegal alien within
three (3) days of receiving the notice regarding WWG's actual knowledge. The WWG shall not terminate
the subcontract if, during such three days, the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal alien. The WWG is required to
comply with any reasonable request made by the Department of Labor and Employment made in the
course of an investigation undertaken to determine compliance with this provision and applicable state
law. If the WWG violates this provision, Avon may terminate this Agreement, and the WWG may be liable
for actual and /or consequential damages incurred by Avon, notwithstanding any limitation on such
2o16 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
Page 11 of 12
damages provided by such Agreement.
17. Non - Liability of Town for Indirect or Consequential Damages or Lost Profits -The parties agree that Avon
shall not be liable for indirect or consequential damages, including lost profits that result from Avon's
declaration that the WWG is in default of the Agreement, so long as Avon acts in good faith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above
written
TOWN OF AVON
By and Through Its Town Manager
BY: �(� DATE: / �/ ATTEST:
Virginia C. Egger, W Manager Debbie Hoppe, Town Irk
WONDERGRASS LLC
Scotty S o ton
12/1/15
Date:
2016 AVON WINTERWONDERGRASS FESTIVAL AGREEMENT
Page 12 Of 12
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