05-27-2016 2016 Avon Live Concert Series Agreement' I
.von
C O L O R A D O
2o16 AVON LIVE CONCERT SERIES AGREEMENT
THIS AGREEMENT is made and entered into on May 27, 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, 8162o and
Peak Performances Inc., hereinafter referred to as ( "PEAK "), a Colorado Corporation with its principal offices at 440
D Street, Golden, CO 80401.
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 PEAK producing and AVON hosting the 2016 "Avon Live!
Concerts in the Park ", on August lo, i7, 24 and 31, 2o16 ( "EVENT or EVENTS "). It is the parties' intention that this
Agreement define the duties, obligations and conditions with respect to the production of the EVENTS so that it is
conducted in a manner and direction which meets the needs of the community as 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 set forth the terms and conditions of a Special Event Permit to use a portion of Harry
A. Nottingham Park and Pavilion as defined below in paragraph 1 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
t. PREMISES & RIGHTS OF USE - Execution of this Agreement shall constitute issuance of a Special Event Permit.
Avon waives the $loo application fee pursuant to Avon Municipal Code Section 9.40. This permit grants PEAK the
right, and imposes the duty, to use the PREMISES as defined in this Agreement for the purpose of producing the
EVENTS on August to, i7, 24 and August 3i, 2oi6, subject to compliance with the terms and conditions of this
Agreement.
i.i The site of the EVENTS on August io, i7, 24 and 31, 2oi6, (herein referred to as the "PREMISES ") 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, basement), all paths of access leading to and
from the Pavilion, and playground but not including the Avon Recreation Center, Picnic Shelter, Lower
Athletic Field, Basketball Courts, Sand Volleyball Courts, Tennis or Pickleball Courts.
i.2 PEAK is granted an exclusive right of use of the PREMISES on each of the EVENT days from ii:oo a.m.,
through 11:oo p.m. for set -up, EVENT production and clean -up. PEAK may request, as a result of weather or
catastrophic events, an extension or delay of the aforementioned timelines, after which AVON may approve
the request in writing. Approval of the request from PEAK for an extension or delay of the agreed upon
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EVENTS AGREEMENT
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timelines will not be unduly withheld by AVON.
z. PERFORMANCE HOURS - AVON and PEAK agree that EVENT stage acts may be performed in the PREMISES on
each of the EVENT days from 5:30 p.m. to 8:30 p.m., subject to PEAK receiving an Outdoor Use of Amplified
Sound Permit, from the Avon Town Council. PEAK shall complete and submit a Sound Permit Application
pursuant to Avon Municipal Code 5.24 by not later than July 11, 2o16. AVON agrees to waive the $25 Sound Permit
Application Fee.
2.1 PEAK shall allow each band up to a three -song sound check lasting no more than 20 consecutive minutes.
PEAK agrees that each band's sound check includes front of house and individual artist checks. Sound
checks shall take place on each of the EVENT days between the hours of 4:15 p.m. and 5:25 p.m. PEAK may
request, as a result of weather or catastrophic events, an extension or delay of the aforementioned
timelines, after which AVON may approve the request in writing. Approval of the request from PEAK for an
extension or delay of the agreed upon timelines will not be unduly withheld by AVON. PEAK agrees the
volume for any sound check will be moderated to achieve the sound check quality and shall be considerate
of the surrounding neighborhoods and businesses. The Town Manager or designee may, at any time, ask
for the volume of the sound check or band's performance to be lowered in volume.
2.2 PEAK acknowledges and agrees that strict adherence to the performance and sound check times is a
material term of this Agreement. PEAK 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. ESTIMATED CROWD SIZE, VIP EXPERIENCE TICKETS, ADMISSIONS FEE PAYMENT PROGRAM & SERVICES TO BE
PROVIDED
3.1 Estimated Crowd Size - AVON and PEAK agree the EVENTS may attract up to fifteen hundred (1,500) persons
per EVENT day, excluding children twelve (12) and younger. PEAK shall provide for those services described in
Section 4 below for the estimated attendance of 1,500 persons.
3.2 VIP Experience Tickets
3.2.1 PEAK has requested and AVON has agreed that PEAK may sell up to one - hundred fifty (150) VIP
Experience admissions for each EVENT day. This includes children age 13 and older. Children
age twelve and under shall not be counted as part of the VIP admissions. PEAK shall meet the
requirements of Resolution 15 -o8 and attached hereto as Attachment "B ", including the
printing words for the fee as set forth in Section 6.
3.2.2 Of the one - hundred fifty (150) VIP Experience admissions for each EVENT day, fifty (5o) are
complimentary and not subject to the Town of Avon Admissions Fee.
3.2.3 In addition, PEAK shall provide to AVON a total of sixteen (16) VIP Experience tickets to be
distributed to the Avon Town Council in pairs to each Councilor, Mayor, Mayor Pro Tern and
Town Attorney for each EVENT date. These VIP Experience tickets are not subject to the Town
of Avon Admissions Fee.
3.2.4 PEAK shall provide the Avon Town Manager and Director of Festivals and Special Events ALL
ACCESS credentials for the EVENTS.
3.2.5 VIP Experience Admissions and Admission Fee Due - PEAK shall provide to AVON forty -eight
(48) hours prior to each EVENT date, a list of all persons being sold or gifted a VIP Experience
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Admission. Within forty -eight (48) hours of the EVENT ending, PEAK shall provide a final list of
all VIP Experience Admissions sold or gifted for that EVENT. PEAK shall pay at that time $3 per
admission as required by Resolution 15 -o8.
3.3 Service to be provided for Crowd Size - PEAK shall provide for those services described in Section 4 below for
each EVENT day's admissions. Should PEAK be unable to provide those services in Section 4 for all
admissions, PEAK shall limit sales and complimentary admissions to the number of people able to be
accommodated by the services provided. Should PEAK, at any time, estimate that greater than the daily
admissions are likely, services described in Section 4, AVON shall be promptly noticed, and PEAK will be
responsible to meet any new demands prior to the start of the EVENTS.
4. PEAK RESPONSIBILITIES
4.1 EVENTS TALENT, MARKETING, SPONSORSHIPS & INFORMATION BOOTH — Attachment "C" sets forth the
Approved Budget ( "Budget ") for the EVENTS. PEAK shall provide the following services for the EVENTS
during the term of this Agreement for the successful production of the EVENTS:
4.1.1 Talent. PEAK shall secure headlining talent at an estimated cost of thirteen thousand nine
hundred dollars ($13,900) per EVENT. Monies may be reallocated between EVENT dates and
within line items, to secure bands, which have a proven record of attracting local residents and
guests who are in the region. All talent will be approved by the Town Manager prior to booking.
4.1.2 Marketing & Promotions.
4.1.2.1 In recognition of AVON's financial support for the EVENTS, PEAK shall name and market
the EVENTS as Avon Live! Concerts in the Park, Presented by the Town of Avon.
4.1.2.2 PEAK shall develop and implement a comprehensive EVENTS marketing plan including
print, radio, and social, broadcast and /or any other marketing platforms and promotions
that may be available to assure successful EVENTS and secure sponsorship for the
EVENTS.
4.1.2.3 PEAK, in its marketing and advertising, shall notify attendees about alcohol and
recreational marijuana restrictions, resource recovery priorities, parking and
transportation systems, no pets allowed and all other matters deemed necessary by the
Town Manager or designee for the advance informational needs of EVENT attendees.
The Town Manager or designee is available to review marketing materials upon request.
4.1.3 Sponsorships.
4.1.3.1 PEAK and AVON agree sponsorships should be solicited for the EVENTS. The parties
find that PEAK may pursue cash sponsorships. All gross cash revenue generated by
sponsorships sold by PEAK will be split with AVON: Seventy -five percent (75 %) of gross
cash sponsorship revenue will be allocated to PEAK and twenty -five percent (25 %) of
gross cash sponsorship revenue will be allocated to AVON, up to a total of gross
sponsorship revenue of twenty eight thousand dollars ($28,000), with PEAK receiving
twenty one thousand dollars ($21,000) and AVON receiving seven thousand dollars
($7,000). Once gross sponsorship exceeds twenty eight thousand dollars ($28,000),
one hundred percent (loo %) of all gross sponsorship funds shall be paid to AVON to
defray AVON's underwriting of the EVENTS. AVON shall retain all gross sponsorship
funds it raises.
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EVENTS AGREEMENT
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4.1.3.2 Furthermore, the parties find that PEAK may pursue product and in -kind media trades
to support the EVENTS. Should AVON be successful in gaining sponsorships, PEAK shall
develop or amend all marketing collateral to include sponsorship fulfillment
requirements, respecting the timing of sponsorship deals, with notice to PEAK of said
amendments, and AVON shall bear all costs for any change made after any collateral has
already been produced.
4.1.3.3 In selecting sponsors, PEAK acknowledges and shall abide by AVON's restrictions to
Marijuana Businesses as outlined on Attachment "D ".
4.1.4 Town of Avon Information Booth - PEAK shall provide to AVON a site to locate a 10 x 10 tent for
use by AVON for other festival or event promotion and general Town information. Staffing for
the booth shall be provided by AVON.
4.2. PREMISES SET -UP & TEAR DOWN PLAN - PEAK shall provide a PREMISES set -up and tear down plan to the
Town Manager by 5:00 p.m., July 6, 2o16. The plan shall include a schedule for installation /removal and a
map of all proposed structures including but not limited to stage, lighting and sound truss /systems, ADA
areas, addition of a plywood road for heavy trucks, entry points, tents, fencing, portable facilities, vendor
spaces, tables, seating, designated smoking area and other areas of EVENT elements.
Stakes are not to be driven into the ground along any pathways, parking lots or grassy areas with
underground sprinkler systems without prior permission from the Town Manager or designee.
4.3• LIQUOR LICENSE - PEAK shall be solely responsible for identifying a local nonprofit to acquire a liquor
license for the EVENTS. AVON shall provide to PEAK a list of local non - profits, which positively benefit the
lives of local residents and /or the larger community of AVON, see Attachment "E" AVON encourages PEAK
to consider one or more of the local non - profits as the liquor license applicant.
Application for the license and all insurance and indemnification requirements pursuant to Avon Municipal
Code 5.o8.170 shall be the responsibility of PEAK and its' nonprofit. The application will be due to the Avon
Town Clerk not later than June 30, 2016.
4.2 VENDOR LICENSING
4.2.1 PEAK shall provide a list of not less than six (6) food truck vendors to the Town Manager or
designee by 5:00 p.m. on July 6, 2016. The list shall include the business names /dba, physical
address, mailing address, phone number, email address, contact name, type of activity, how the
Avon Special Events Vendor License payment will be received, selling or not selling, and if the
business is an existing Avon business.
4.3.1• PEAK shall provide the following sales tax filing instructions to all selling vendors:
4.3.1.1• Go to www.avon.org and click on the "Online Payments" button located at the bottom
of the home page;
4.3.1.2. Vendors who have not been on MuniRevs before will need to register by clicking "New
User" to apply for an account; then follow the online steps provided. If a vendor needs
assistance they should contact support@munirevs.com or call 888 - 751 -1911.
4.3.1.3• Vendors that are currently registered, will access by clicking "Existing Users "; they will
login to their account and access "Manage Your Business" to register for a Special
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EVENTS AGREEMENT
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EVENTS Vendor License account. If a vendor needs assistance, they should contact
support@munirevs.com or call 888 -751 -1911.
4.4• STAFFING —PEAK shall be responsible for all staffing and volunteer needs of the EVENTS.
4.5• OPERATIONS & EQUIPMENT - PEAK shall be responsible for all EVENT operations, equipment, and all
equipment rentals for the EVENTS.
4.6. SECURITY PLAN — PEAK shall provide to the Town Manager a plan which details the security and law
enforcement needs for the EVENTS by July 6, 2o16. The plan shall include, but not be limited to, security
needs for alcohol sales, enforcement of marijuana restrictions, crowd management, lost children protocol,
lost and found protocol, communication plan for law enforcement and emergency response agencies,
communication plan for operations with AVON personnel and chain of command, and external support
from the Avon Police Department. A contract for services with a security agency shall be presented by not
later than July 27, 2o16.
4.6.1. PEAK shall provide adequate proof to the Town Manager that the PREMISES are protected from
damage through fencing, crowd management measures, signage, or other sufficient means.
4.6.2. Pre - EVENTS information shall sufficiently and frequently communicate to attendees through all
media outlets, signage to be placed at the EVENTS entrance /exit, Avon Transportation pedestrian
paths of ingress /egress, EVENTS general public parking; the following, 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; (4) no loitering; (5) it is
illegal to smoke marijuana out -of -doors in the Town of Avon, including PREMISES; and, (6) all
relevant parking and transportation information.
4.7. MEDICAL AND EMERGENCY RESPONSE PLAN — PEAK shall provide to the Town Manager a plan which
details the medical response and emergency response agencies and protocols for the EVENTS by July 6,
2o16, 5:oo p.m. The plan shall include a management protocol for people who are experiencing heat
exhaustion, dehydration, severely intoxicated or under the influence of illegal drugs and not able to walk to
public transportation or parking lots. AVON shall require copies of all contracts for services by not later than
July 27, 2016.
4.8. SANITATION & RESOURCE RECOVERY - PEAK shall provide to the Town Manager a plan which details the
sanitation facilities, resource recovery (composting and recycling) and cleaning program by July 6, 2o16. The
plan shall cover the PREMISES, parking lots and pedestrian pathways to and from parking lots and the
Pavilion (stage deck, EVENTS terrace, viewing plaza, green room and scissor lift room). The number and
location of portable sanitation facilities, dumpsters, and trash cans shall be provided, with times of
placement. Avon shall require copies of all contracts for services by not later than July 27, 2o16.
4.9• PARKING & TRANSPORTATION PLAN — PEAK shall coordinate with the Town Manager or designee
regarding, (1) advertising and marketing details of the EVENTS public parking and transit availability; (2)
parking for vendors and load -in; and, (3) all general public parking lots and pedestrian pathways shall have
"No Open Containers are Allowed in the Town of Avon" signage posted at the lot during all hours of the
EVENTS.
4.10. INTERNET ACCESS - Avon contracts with Comcast for all wireless services related to Town business. PEAK
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
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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.
Through Comcast, AVON shall provide access to the internet for the PREMISES only, through TOA- Public
secured with an EVENTS password for the express use of EVENTS merchandise sales, vendor booth sales and
media only. TOA- Public bandwidth is loo megabits down /20 megabits up. Under no circumstances shall
PEAK share the passcode with the general public.
4.11. PAVILION USAGE & PREMISES INSPECTION — PEAK and AVON shall jointly perform and document a pre -
EVENT inspection of the PREMISES not later than 11:oo a.m. on each EVENT day and a post -EVENT inspection
of the PREMISES not later than 9:15 p.m. on each EVENT day, before the PREMISES are released to PEAK and
returned to AVON. PEAK shall notify Avon Town Manager or designee of any problems or damage that may
have occurred during the EVENT during the post -EVENT inspection.
4.11.1. PEAK agrees to abide by the guidelines detailed in the Avon Performance Pavilion Technical
Specifications and attached as Attachment "F ".
4.11.2. The following guidelines shall be observed for usage of the Pavilion:
4.11.2.1. 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.
4.11.2.2. PEAK 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. PEAK 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 PEAK, at the expense of the PEAK.
4.11.2.3. By Order of the Eagle River Fire Protection District, PEAK 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).
4.11.2.4. PEAK acknowledges and agrees that AVON is permitting PEAK to use the Pavilion in its "as is"
condition and that AVON shall be under no obligation to replace, upgrade or otherwise
modify the facility.
4.11.2.5. PEAK 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 the end of each EVENT at 11:oo p.m. PEAK 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. AVON may take action to repair and restore any damage caused by PEAK and
PEAK shall be liable for such costs including reasonable attorneys' fees and costs to enforce
this Agreement.
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4.12. INSURANCE & INDEMNIFICATION
4.12.1. PEAK 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 PEAK'S actions or omissions in connection with the conduct of the
EVENTS.
4.12.2. AVON agrees to indemnify the PEAK, 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 AVON'S' actions or omissions in connection with the conduct of the
EVENTS
4.12.3• PEAK shall obtain general liability insurance coverage within the minimum limits set below
naming AVON as an additional insured and 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 EVENTS. 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 $2,000,0oo annual aggregate; and $4,000,000 umbrella, 30
days' notice of cancellation; $1,000,000 host and general liquor liability insurance; $1,000,000
personal and advertising injury coverage; and $50,000 fire damage.
4.12.4. PEAK shall provide to AVON proof of Comprehensive Automobile Liability insurance for any private
motor vehicles owned by PEAK or its officers, agents, or employees that are used as part of the
EVENTS. 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.
4.12.5. Written evidence of such general liability and alcohol liability policies and coverage shall be
provided to the Town Manager no later than July 6, 2o16, at 5:00 p.m. All insurance policies shall
be non - cancelable without thirty (3o) days prior notice to AVON.
4.12.6. 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 $150,000 per person
and $600,000 per occurrence) or any other rights, immunities, and protections provided by the
Colorado Governmental Immunity Act, Section 24- 10 -1o1 et seq., 10 C.R.S., as from time to time
amended, or otherwise available to AVON, its officers, agents, or employees.
4.12.7. PEAK 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.
5. AVON TRADEMARKS
5.1. Avon's Marks, including EVENT logos, are and shall remain the sole and exclusive property of AVON. PEAK
shall not hold itself out as having any ownership rights with respect to AVON's Marks or, except as may be
specifically granted hereunder, any other rights herein. Any and all goodwill associated with any such rights
shall inure directly and exclusively to the benefit of AVON.
5.2. Subject to the terms and conditions of this Agreement, AVON hereby grants to PEAK a non - exclusive, non-
transferable, revocable and limited license to reproduce AVON's Marks in connection with (1) the EVENTS;
and, (2) carrying out any other PEAK obligations under this Agreement. Except as expressly permitted
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EVENTS AGREEMENT
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hereunder, PEAK hereby covenants and agrees that it will make no use of Avon's Marks. PEAK shall have no
right to sublicense its rights under this license.
5.3• PEAKS use of AVON's Marks shall be strictly subject to the prior written approval of the Town Manager,
which approval may be granted or withheld in Town Manager's discretion. Notwithstanding any provisions
hereof to the contrary, prior to the printing or reproduction of any AVON Marks pursuant to this agreement,
PEAK shall provide AVON with samples of all such materials for AVON's review and approval or disapproval.
5.4• Any trademarks, logos or other intellectual property developed by AVON or by PEAK in connection with its
EVENTS services provided hereunder shall be the property of AVON.
6. AVON RESPONSIBILITIES - Attachment "C" sets forth the Approved Budget (Budget). Based upon the Budget,
AVON has targeted its funding to provide financial support to PEAK specifically for the following; (1) forty -eight
thousand dollars ($48,000) designated for talent for the EVENTS; and, (2) twelve thousand dollars ($12,000) for
the PEAK management fee; and, (3) six percent (6%) cost plus of the combined total of EVENTS talent and
management fee line items which is equal to six thousand dollars ($6,000). Funds may be moved from one line to
another, upon the written approval of the Town Manager or designee. The total AVON financial support shall not
exceed sixty &i4ethousand dollars ($66;eee) in payments as follows:
fade '( $4, o00
6.1. Payment of o ($59,400) shall be made upon finalization and approval or all EVENT bands, via an Electronic
F ransferto the business account of PEAK.
-7 % (y `o a)
6.2. Final payment of a.e'Y ($), payment upon completion of the EVENTS but not later than September 30,
q3° 2o16, and subject to the following conditions:
6.2.1. Final EVENTS revenue and expense accounting, including sufficient evidence that AVON may
determine that the PEAK has fully complied with all conditions of this Agreement and any
applicable Special Event Permits required by AVON and that any outstanding debts owed to
AVON; including contracts for service, sales tax collected or any other debt incurred through
the production of the EVENTS, have been paid in full. The above fees include PEAK
operating overhead, and general administrative expenses associated with the EVENTS.
6.2.2. All EVENTS costs above and beyond those set forth in the Budget must be approved in
writing and in advance by the Town Manager and will be passed through with satisfactory
back -up documentation by PEAK, at net cost, to AVON.
6.2.3. AVON shall not be responsible for any unapproved costs.
6.2.4. PEAK fees payable to: Peak Performances, 44o D Street, Golden, CO 80401 or via electronic
transfer.
6.3. AVON shall provide in kind support to PEAK in the amount not to exceed two thousand six hundred ($2,600)
for the EVENTS. In -kind support includes delivery and removal of EVENTS assets, staff staging assistance and
Avon Police Department services.
6.4. If PEAK produces banners for promotional purposes, AVON shall install /remove them in the following
locations: Avon Road Bridge Banner (2 banners), Possibilities Plaza (up to io), Avon Road Round -a -bouts (up
to 12 banners) and Post Blvd. (up to 12 banners) after July 6, 2o16, based on availability. PEAK 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.
6.5. AVON shall provide portable fence materials (stadium barricade — approx. goo linear feet), not already in
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use, located in Town Park for use by PEAK.
6.6. AVON will ensure that by July 27, 2o16, the electrical stubs and outlets on the PREMISES are in good working
order for the concessionaires.
7. EVENTS CANCELLATION —This EVENTS may not be cancelled in whole or in part by either party unless, due to any
Act of God or force majeure, including, without limitation, fire, weather, flood, natural disaster or similar cause
beyond the control of the parties, PEAK shall be entitled to work to date performed on behalf of AVON and
EVENTS, for its time investment in the EVENTS, as well as for any item which may be considered a direct line -item
of the Approved Budget, provided that such line -item has been approved in advance in writing by AVON.
The EVENTS 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 unforeseen catastrophic events, 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
PEAK written notice and PEAK shall have five (5) business days to cure the term or such longer time as mutually
agreed by the parties. Should PEAK cure, this Agreement shall continue in full force and effect.
8. RELEASE OF LIABILITY
8.1 AVON assumes no responsibility whatsoever for any non - municipal property placed in said PREMISES. AVON
is hereby expressly released and discharged from any and all liabilities for any loss, injury or damages to any
person or property of PEAK, its employees, agents, and concessionaires or of any performer or spectator
that may be sustained by reason of the occupancy of the PREMISES under this License Agreement, except
for the sole negligence of AVON or its officers, agents, employees.
8.2 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 EVENTS, or which in the
judgment of the Town Manager and Mayor, renders the fulfillment of this Agreement by AVON impossible,
PEAK 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, except for
monies already earned or expended in accordance with provision of section 7 (EVENTS CANCELLATION).
9. NOTICES -Any notice to either party under this Agreement shall be in writing to the following addresses:
PEAK PERFORMANCE
Mike O'Brien
44o D Street
Golden, CO 80401
Via email: mike@gigdigger.com
Via email: bizmgr@theforeverlive.com
AVON
Town Manager, Town of Avon
P. 0. Box 975
Avon, CO 81620
Via email: vegger@avon.org
COPY TO: Director of Festivals & Special Events, Town of Avon, P.O. Box 975, Avon, CO 81620
Via email: ddempsey@avon.org
to. 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
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Page 9 of 11
agent, sub - consultant or sub - contractor of PEAK. 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.
ii. ARTICLE X, SECTION zo /TABOR - The parties understand and acknowledge that the Avon is subject to Article X, §
zo 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.
12. 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.
13. 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.
14. ASSIGNMENT AND RELEASE - All or part of the rights, duties, obligations, responsibilities, or benefits set forth in
this Agreement shall not be assigned by PEAK 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.
15. 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.
16. INCORPORATION OF ATTACHMENTS - Unless otherwise stated in this Agreement, attachments, 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.
17. EMPLOYMENT OF OR CONTRACTS WITH ILLEGAL ALIENS - PEAK shall not knowingly employ or contract with an
illegal alien to perform work under this Agreement. PEAK 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, PEAK 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 PEAK will participate in
the e- verify program or department program in order to confirm the employment eligibility of all employees who
2o16 AVON LIVE CONCERT SERIES
EVENTS AGREEMENT
Page io of 11
are newly hired for employment to perform work under the public contract for services. The PEAK 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 PEAK obtains actual knowledge that
a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, the
PEAK shall be required to notify the subcontractor and the Town within three (3) days that the PEAK has actual
knowledge that a subcontractor is employing or contracting with an illegal alien. The PEAK 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 PEAK's actual knowledge. The PEAK 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 PEAK 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 PEAK violates this provision, Avon
may terminate this Agreement, and the PEAK may be liable for actual and /or consequential damages incurred by
Avon, notwithstanding any limitation on such damages provided by such Agreement.
18. DISPUTES - In the event that suit is brought (or arbitration instituted) or any attorney is retained or employed by
any party to this Agreement to enforce the terms of this Agreement, to collect any money due hereunder, or to
collect any money damages for breach thereof, the prevailing party shall be entitled to recover, in addition to
any other remedy, reimbursement for reasonable attorney's fees or the reasonable value of salaried attorney's
time incurred in connection therewith. Venue for any action of proceeding that arises out of any dispute under
this agreement shall be in Eagle County, Colorado.
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: a Date:
Virginia C. Egger, Town Ma a er
PEAK PERFORMANCES
C9 • S - /(,:�,
By: �U2�� Date: 06/05/16
Mike O'Brien, President
2o16 AVON LIVE CONCERT SERIES
EVENTS AGREEMENT
Page 11 of ii
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