01-26-2016 Avon Creative Writing Festival Agreement5�•( i
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2o16 AVON CREATIVE WRITING FESTIVAL AGREEMENT
THIS AGREEMENT is made and entered into on January 15, 2o16, 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, 81620 and DONAHUE
ENTERTAINMENT, LLC, hereinafter referred to as " DONAHUE ENT ", a Tennessee Limited Liability Company with its principal
offices at 202o Fieldstone Parkway, Suite 900-311, Franklin, TN 37o69.
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 DONAHUE ENT producing and AVON hosting the "Creative Writing
Festival" in September 2o16 ( "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, the parties desire to setforth the terms and conditions of a Special Event Permitto use a portion of Nottingham
Park as defined below in paragraph 1 as the PREMISE.
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
i. PREMISE & EXCLUSIVE RIGHT OF USE - Execution of this Agreement shall constitute issuance of a Special Event Permit.
Avon waives the $100 application fee pursuant to Avon Municipal Code Section 9.40. This permit grants DONAHUE ENT the
right, and imposes the duty, to use the PREMISE as defined in this Agreement for the purpose of producing the FESTIVAL on
September 2 -5, 2016, 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.
1.1 DONAHUE ENT is granted an exclusive right of use of the PREMISE from September 2, 2o16, at 7:00 a.m., through
12:00 p.m., September 5, 2o16. DONAHUE ENT shall also have non - exclusive rights to access the PREMISE for set -up
from August 31 through September 1, 2016, from 9:00 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 p.m. to 1o:oo p.m.
DONAHUE ENT shall also have non - exclusive rights to access the PREMISE on September 5, 2o16, from 12:00 P.M. to
7:00 p.m. and September 6 -7, 2o16, from 7:00 a.m. to 5:00 p.m. for the sole purpose of FESTIVAL break -down and site
clean -up. DONAHUE ENT 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
DONAHUE ENT for an extension or delay of the agreed upon timelines will not be unduly withheld by the Town.
2. PERFORMANCE HOURS - AVON and DONAHUE ENT agree that FESTIVAL stage acts may be performed only on Friday,
September 2, 2o16, from 5 :45 p.m. to 8:30 p.m.; Saturday, September 3, 2o16, from 5 :45 P.M. to 8:30 p.m.; Sunday,
September 4, 2016, from 5 :45 p.m. to 8:oo p.m.; and Monday, September 5, 2oi6, 9:oo a.m. to 12:oo p.m. DONAHUE ENT
shall complete and submit a Sound Permit Application pursuant to Avon Municipal Code 5.24 by not later than August 1,
2o16. Avon agrees to waive the $25 Sound Permit Application Fee.
2o16 AVON CREATIVE WRITING FESTIVAL AGREEMENT
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2.1 AVON and DONAHUE ENT agree that Festival talent not addressed In Section z above, maybe performed in tented
spaces and/or on the Pavilion only on Friday, September 2,2o16, through Sunday, September 4,2o16 from 1o:oo a.m.
to 4:00 p.m.; and Monday, September 5, 2o16, 9:oo a.m. to 12:00 P.M.
2.2 DONAHUE ENT shall allow each performer up to a three -song sound check lasting no more than 20 consecutive
minutes. DONAHUE ENT agrees that each performer's sound check includes front of house and individual artist
checks and that zo minutes is a satisfactory amount time. Sound checks shall take place on Friday, September 2, 2016
through Sunday, September 4, 2016 of 9:oo a.m. to 1o:oo a.m. and 4:00 p.m. to -6:00 p.m. DONAHUE ENT 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 DONAHUE ENT for an extension
or delay of the agreed upon timelines will not be unduly withheld by the Town. DONAHUE ENT agrees the volume for
any sound check will be moderated to achieve the sound check quality and shall be considerate of the surrounding
neighborhoods.
2.3 DONAHUE ENT acknowledges and agrees that strict adherence to the performance and sound check times is a
material tern of this Agreement. DONAHUE ENT 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. TARGET CROWD SIZE & WRISTBAND PROGRAM
3.1 Crowd Size -DONAHUE ENT agrees the targeted daily number of admissions, for planning purposes, is one thousand
(1,000) on any day of the FESTIVAL to include 400 from the conference and 600 for the concerts. This includes
children age 13 and older. Children age twelve and under shall not be counted as part of the admissions.
DONAHUE ENT shall provide for those services described in Section 4 below for 1,000 admissions. Should DONAHUE
ENT be unable to provide those services in Section 4 for 1,000 admissions, DONAHUE ENT shall limit sales and
complimentary admissions to the number of people able to be accommodated by the services provided. Should
DONAHUE ENT, at anytime, estimate that greater than 1,000 admissions are likely, services described in Section 4,
AVON shall be promptly noticed, and DONAHUE ENT will be responsible to meet any new demand priorto the start
of the FESTIVAL.
3.2 Wristband Program —DONAHUE ENT agrees that all admissions require a wristband. DONAHUE ENT shall provide to
the Town Manager by not later than June 1, 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.
3.23 A distinct wristband for those admissions that are 21 years old and older shall also be described by number
ordered, color and script.
3.2.4 Within ten (1o) business days of receipt, the Town Manager shall approve the elements or state any changes,
which need to be made.
3.2.5 Wristband Reporting & Accounting - DONAH UE ENT and AVON acknowledge that DONAHUE ENT will
own the Festival and the related trademarks and will collect and receive one hundred percent (l00%)
of the gross revenue from the FESTIVAL to include but not limited to sponsorships, concessions,
merchandise and ticket sales with the exception of the AVON Admission Fee as addressed in Section
3.2.5 of this Agreement. DONAHUE ENT acknowledges and understands that all rules outlined in
Resolution 15 -o8 and attached hereto, shall apply to the 2o16 FESTIVAL, including the payment of
Admission Ticket Fees. DONAHUE ENT shall provide reporting and accounting of all wristbands
which documents the following:
2o16 AVON CREATIVEWRITING FESTIVAL AGREEMENT
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3.2.5.1 The pre- event, during event and post -event control and custody of the wristbands to include
responsible party, location and security measures.
3.2.5.2 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.
3.2.5.2.1 The Town Manager or designee may view the scanned data for each day during non -peak
times throughout the FESTIVAL
3.2.5.3 The ticket admission fee shall not be payable by the following admissions if admitted to the event
without charge. The Town Manager and DONAHUE ENT will mutually agree to and may limit the
number of each type of admission admitted without charge.
3.2.5.3.1 A bona fide officer or employee of the Vendor of the special event,
3.2.5.3.2 Any federal, state, city, county or Town official employee attending the event on official
business;
32.5.3.3 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;
3.2.5.3.4 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
3.2.5.3.5 A child under thirteen (13) years of age, who is admitted without charge.
3-.2_5-5-'6_ Up to fifty (50) complimentary wristbands for DONAHUE ENT guests.
3.2.5.4 DONAHUE ENT shall provide to the Town Manager or designee a sold ticket report thirty (30) days
prior the Festival and once per week thereafter until Thursday, August 31, 2o16, after which point the
report shall be provided daily.
3.2.5.5 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 September 6, 2o16, in order to evidence the
admission fee to be paid by DONAHUE ENT.
4. DONAHUE ENT RESPONSIBILITIES
4.1 FESTIVAL MARKETING, SPONSORSHIP & TALENT AQUISITION —DONAHUE ENT shall provide the following services
to the FESTIVAL during the Term of this Agreement for the successful production of the FESTIVAL;
4.1.1 Components. DONAHUE ENT to secure anchor and ancillary authortalent, teaching talent, speakers, artists,
bands, music performers and any other vendors needed for the successful implementation of the festival.
Anchor and ancillary author and teaching talent shall be approved by Town Manager prior to booking. The
Town Manager will offer review and approval or denial of talent within forty -eight (48) hours of receiving
request and approval will not unreasonably be withheld.
4.1.2 Marketing, Promotions & Sponsorship. DONAH U E ENT to develop and implement a festival marketing plan
which may include print, radio, social, on -line, broadcast and /or any other marketing platforms and
promotions that may be available to assure a successful festival and secure sponsorship of the festival.
DONAHUE ENT In its marketing and advertising shall notify attendees about alcohol and recreational
2016 AVON CREATIVE WRITING FESTIVAL AGREEMENT
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4.5.2 Light tower located between the Avon Rec. Center and Avon Library to provide adequate lighting for safe
Ingress/egress, if warranted
4.6 SECURITY PLAN — DONAHUE ENT shall provide to the Town Manager a plan which details the security and law
enforcement needs for the FESTIVAL by June 1, 2016. The plan shall announce which artists 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.
4.6.1 Based upon the plan, the Town Manager shall determine in her sole discretion the number of law enforcement
officers Avon shall provide for the FESTIVAL. DONAHUE ENT shall provide all security, as approved by the
Town Manager, for the FESTIVAL, including requirements for communication radios for AVON staff and
DONAHUE ENT personnel to be identified by shirts or hats, if needed, to fully implement the security needs of
the FESTIVAL.
4.6.2 DONAHUE ENT shall provide adequate proof to the Town Manager that the main athletic fields and other
facilities in Nottingham Park are protected from damage through fencing, crowd management measures, or
other sufficient means.
4.6.3 Pre -event information shall sufficiently communicate to attendees that: (1) no open containers are allowed
within Avon (2) there is no vending without a Town license (3) there is no parking on private property without
permission of the property owner and, (4) all parking information.
4.7 MEDICAL AND EMERGENCY RESPONSE PLAN — DONAH UE ENT shall provide to the Town Manager a plan which
details the medical response and emergency response agencies and protocols for the FESTIVAL by June 1, 2016. The
plan shall include a management protocol for people who are severely intoxicated or under the influence of illegal
drugs 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.
4.8 SANITATION & RESOURCE RECOVERY - DONAHUE ENT shall provide to the Town Manager a plan that details the
sanitation facilities, resource recovery (reduction and recycling) and cleaning program by June 1, 2016. The plan shall
cover the PREMISE, 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 August 15, 2016.
4.9 INTERNET ACCESS - Avon contracts with Comcast for all wireless services related to Town business. DONAHUE ENT
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.
4.9.1 Through Comcast, AVON shall provide access to the internet through TOA- Public secured with a FESTIVAL
password for the express use of the FESTIVAL box office /ticket sales, FESTIVAL 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 DONAHUE ENT share the passcode with the general public.
4.10 PAVILION USAGE & PREMISE INSPECTION — DONAHUE ENT and Avon shall jointly perform and document a pre -event
inspection of the PREMISE not later than Tuesday, August 3oth at 5:00 p.m. and post -event inspection of the
PREMISE not laterthan September 6th at 5 :00 p.m., before the PREMISE is released to DONAHUE ENT and returned
to Avon. DONAHUE ENT shall notify Avon Town Manager or designee of any problems or damage that may have
occurred during the Event during the post -event Inspection.
2016 AVON CREATIVE WRITING FESTIVAL AGREEMENT
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4.11 The following guidelines shall be observed for usage of the Pavilion:
4.11.1 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.
4.11.2 DONAHUE ENT 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, withoutthe prior review and consent of
Avon in each instance. DONAHUE ENT 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 DONAHUE ENT, at the expense of the DONAHUE ENT.
4.11.3 By Order of the Eagle River Fire Protection District, DONAHUE ENT 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).
4.11.4 DONAHUE ENT acknowledges and agrees that Avon is permitting DONAHUE ENT 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.
4.11.5 DONAHUE ENT shal l 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 September 7,2o16, at 5:00 p.m. DONAHUE ENT 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
DONAHUE ENT and DONAHUE ENT shall be liable for such costs, including reasonable attomeys' fees and costs
to enforce this Agreement
4.12 INSURANCE & INDEMNIFICATION
4.12.1 DONAHUE ENT 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
DONAHUE ENT' actions or omissions in connection with the conduct of the FESTIVAL.
4.12.2 DONAHUE ENT 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 $3,000,000
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.
4.12.3 DONAHUE ENT shall provide to AVON proof of Comprehensive Automobile Liability insurance for any private
motor vehicles owned by DONAHUE ENT 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.
4.12.4 DONAHU E ENT shall provide written evidence of all insurance coverage required in this paragraph 4.7 to the
Town Manager no later than August 8, 2o16, at 5 :oo p.m. All required insurance policies shall be non -
cancellable without thirty (3o) days prior written notice to AVON.
4.12.5 The parties hereto understand and agree that AVON is relying on, and does not waive or intend to waive by any
2016 AVON CREATIVE WRITING FESTIVAL AGREEMENT
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provision of this Agreement, the monetary limitations (presently $350,000 per individual claim and $990,000
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 -101 et seq., to C.R.S., as from time to time amended, or
otherwise available to AVON, its officers, agents, or employees.
4.12.6 DONAHUE ENT 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.
4.12.7 All subcontractors of DONAHUE ENT 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.
4.13 MISCELLANEOUS
4.13.1 LIQUOR LICENSE: DONAHUE ENT 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 5.08.170 shall be the responsibility of DONAHUE ENT and its' nonprofit.
DONAHUE ENT shall submit to the Town Clerk a Special Event Liquor Application by not later than August 8,
2016.
4.13.2 DONAHUE ENT shall ensure there Is lighting on the perimeter fence, along the recreational path to event
terrace, behind concessions, to the classroom tents, portable restrooms, public pathways to /from parking
lots, parking lots and to the Box Office.
4.13.3 DONAHUE ENT shall provide signs at the entrance to FESTIVAL stating the rules for use, from Thursday,
August 31, 2016, at 9:00 a.m. to Monday, September 6, 2016, at 12:00 P.M. Signage for FESTIVAL rules and
attendee information shall be reviewed by AVON prior to posting.
4.13.4 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.
4.13.5 DONAHUE ENT in its marketing and advertising shall notify attendees about alcohol restrictions, resource
recovery priorities, parking and transportation systems, no dogs allowed, rules of use and all other matters
deemed necessary by the Town Manager or designee for the advanced informational needs of FESTIVAL
attendees.
4.13.6 To the extent licensed personnel, such as electricians, medical, emergency response or health official, are
required to conduct certain services or inspections, DONAHUE ENT shall abide by these local and State
requirements.
4.13.7 DONAHUE ENT agrees to make every effort to retain volunteers and paid staff from qualified persons residing
in the Town of Avon or Eagle County.
4.13.8 BOND — DONAHU E ENT 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 $7,500. 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 August
15, 2016. The bond, less any appropriate funds for payment, if any, shall be refunded to DONAHUE ENT by
October 6, 2016.
4.13.9 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 up to $75,000 to DONAHUE ENT. Payments shall be made as
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marijuana restrictions, resource recovery priorities, parking and transportation systems, no loitering, no
open containers, no dogs allowed and all other matters deemed necessary by the Town Manager or
designee for the advanced informational needs of festival attendees. The marketing, promotions and
sponsorship plan shall be provided to the Town Manager or designee not later than June i, 2oi6.
4.2 PREMISE SET -UP & TEAR DOWN PLAN - DONAHUE ENT shall provide a PREMISE set -up and tear down plan to the
Town Manager or designee by 5:oo p.m., June i, 2016. 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.
4.2.1 STAFFING — DONAHUE ENT shall be responsible for all staffing and volunteer needs of the FESTIVAL.
4.2.2 OPERATIONS & EQUIPMENT— DONAHUE ENT shall be responsible for all FESTIVAL operations, equipment,
and all equipment rentals forthe FESTIVAL.
4.3 VENDOR LICENSING — DONAHUE ENT shall provide a list of vendors to the Town Manager or designee by 5:00 p.m.
on August 8, 2oi6. The list shall Include all vendors, sponsors, non - profits, etc. engaged in business during the
FESTIVAL 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.
4.4 PARKING & TRANSPORTATION PLAN —DONAHUE ENT shall provide to the Town Manager or designee a plan which
details bus transportation needs and where parking for all attendees will be staged by June i, 2oi6. In addition, the
plan shall provide for parking lot lighting and the volunteer /paid staffing for all parking lots.
4.4.1 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:
4.4.1.1 Location of taxi line and communication procedure to taxi /limo services and pre -event information
plan for attendees.
4.4.1.2 Pre -event information and outreach to local businesses regarding "no event parking" signage.
4.4.2 Agreements with property owners for the use of parking lots shall be provided by not later than August i5,
2oi6, to the Town Manager by DONAHUE ENT.
4.4.3 Agreements with ECO Transit.to accommodate festival goers goingto /from the Vail Transportation Center and
those traveling east bound from Eagle, Gypsum, etc., duringthe FESTIVAL shall be provided by not later than
June 1, 2oi6, to the Town Manager or designee by DONAHUE ENT.
4.4.4 DONAHUE ENT shall provide directional signage plan by not laterthan June i, 2oi6, 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.
4.4.5 AVON and DONAHUE ENT shall finalize the parking and transportation plans by August 8,2o16.
4.5 PEDESTRIAN TRAFFIC PLAN - DONAHUE ENT shall provide to the Town Manager a plan which details pedestrian
ingress and egress from all parking lots utilized for the FESTIVAL by June 1, 2oi6. 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:
4.5.1 Certified flaggers, with appropriate safety gear at Avon Road during egress until 9:30 p.m., if warranted
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follows:
5.1.1 Payment of $25,000.00 shall be made upon execution of this Agreement
5.1.2 An additional $25,000.00 shall be made upon submission and mutual agreement of target anchor and ancillary
talent
5.1.3 Final payment of $25,000.00 shall be made upon confirmation to Avon that 75% of the mutually agreed upon
anchor and ancillary talent is secured via a signed Letter Of Intent
5.2 AVON shall provide in kind support to DONAHUE ENT in the amount not to exceed $5,000. In -kind support includes, but
is not limited to staff staging assistance, police, transit operations, traffic control, and banner installation /removal.
5.3 Avon will deliver a prepared PREMISE with clean facilities 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.
5.4 AVON shall cooperate with the marketing of the event by supporting the use of the Town of Avon name and logo
brands.
5.5 AVON shall to the greatest extent possible assist DONAHUE ENT with leveraging existing Town relationships in helping
DONAHUE ENT find hotel rooms at discounted rates and opportunities with the Beaver Creek Resort.
5.6 If DONAHUE ENT produces banners for promotional purposes, AVON shall install /remove them in the following
locations: Avon Road Bridge Banner (up to 2 banners), Avon Road Round -a -bouts (up to 12 banners) and Post Blvd. (up
to 12 banners) after August 22,2o16. DONAHUE ENT 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.
5.7 AVON will ensure that by August 15, 2o16, 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.
6. FESTIVAL 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 maybe 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 DONAHUE ENT
written notice and DONAHU E ENT shall have five (5) business days to cure the term or such longer time as mutually
agreed by the parties. Should DONAHUE ENT cure, this Agreement shall continue in full force and effect.
6.2 In the event of cancellation, AVON shall remit to DONAHUE ENT all bonds less any FESTIVAL related expenditure
incurred by AVON. If DONAHUE ENT cancels the FESTIVAL after AVON has dedicated resources toward production and
notice of such cancellation is not given prior to August 2, 2o16, DONAHUE ENT shall pay AVON five thousand dollars
($5,000) as liquidated damages within 3o days of the previously scheduled production date.
7. RELEASE OF LIABILITY
7.1 AVON assumes no responsibility whatsoever for any non - municipal property placed in said PREMISES. DONAHUE ENT
hereby expressly releases discharges Avon from any and all liabilities for any loss, injury or damages to any person or
property of DONAHUE ENT, its employees, agents, concessionaires, performer, attendee, spectator or other invitee
2016 AVON CREATIVE WRITI NG FESTIVAL AGREEMENT
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that maybe 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, DONAHUE ENT 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 DONAHUE ENT, anyone directly or indirectly employed by DONAHUE ENT or anyone for whose acts
DONAHUE ENT may be liable, exceptto 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, DONAHUE ENT 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:
DONAHUE ENTERTAINMENT, LLC
Mr. Don Donahue
202o Fieldstone Parkway
Suite goo -311
Franklin, TN 37o69
COPY TO: Mr. Mark Maxwell, 2077 Goose Creek Drive, Franklin, TN 37o64
AVON
Town Manager, Town of Avon
P. O. Box 975
Avon, CO 81620
COPY TO: Director of Festivals & Special Events, 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 DONAHUE ENT. 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.
1o. 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 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 underthis 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.
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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 DONAH UE ENT 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 - DONAHUE ENT shall not knowingly employ or contract with an illegal alien
to perform work under this Agreement. DONAHUE ENT 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, DONAHUE
ENT 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 DONAHUE ENT will participate In the a -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 DONAHUE ENT 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 DONAHUE ENT obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, the DONAHUE ENT shall be required to notify
the subcontractor and the Town within three (3) days thatthe DONAHUE ENT has actual knowledge that a subcontractor is
employing or contracting with an illegal alien. The DONAHUE ENT 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 DONAHUE
ENT's actual knowledge. The DONAHUE ENT 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 DONAHUE ENT 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 DONAHUE ENT violates this provision, Avon may terminate this Agreement, and the DONAHUE ENT maybe
liable for actual and /or consequential damages incurred by Avon, notwithstanding any limitation on such 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 DONAHUE ENT 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•_ —__l
Virginia C. Eg e , Vwn Manager
DONAH E §NTE NME , LLC
BY: v
DATE: /. / S - 20�1O
DATE: � X46
2o16 AVON CREATIVE WRITING FESTIVAL AGREEMENT
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