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22.12.01 MA Birds of Prey 2022 Sponsorship AgreementEVENT SPONSORSHIP AGREEMENT THIS EVENT SPONSORSHIP AGREEMENT (this “Agreement”) is made and entered into as of October 5, 2022 (“Effective Date”) between Vail Valley Foundation, a Colorado nonprofit corporation (“VVF”), and Town of Avon (“Avon”), a Colorado home rule municipality (“Sponsor”). WHEREAS, VVF is the organizer, owner and operator of “Birds of Prey”, an International Ski Federation sanctioned World Cup professional downhill ski race conducted at Beaver Creek Ski Resort in Beaver Creek, Colorado (“Location”) and held on dates and at times as determined by VVF during the term of this Agreement (“Event”). WHEREAS, Sponsor desires to obtain, and VVF desires to grant, certain sponsorship rights to the Event, all as set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Term. This Agreement is entered into by Sponsor and VVF with respect to the period of the Event only (the “Term”), which is currently scheduled to begin on December 1, 2022, and conclude on December 4, 2022. In addition to any other termination rights hereunder, in the event Sponsor breaches any provision hereof and such breach continues uncured for ten (10) days after VVF provides written notice to Sponsor of such breach, VVF, at its option, may terminate this Agreement by written notice to Sponsor; however, Sponsor will still remain liable for any past due or subsequently earned amounts. 2. Obligations of VVF; Sponsorship Benefits. Subject to performance of Sponsor’s obligations hereunder, during the Term, VVF will provide for Sponsor’s benefit the following promotional and other sponsorship benefits, all of which are nonexclusive to Sponsor. Unless expressly stated otherwise, Sponsor is responsible for and shall pay all costs associated with the Benefits. No merchandising rights (including rights to distribute premiums), or license to use the names and logos of VVF, the Location or the Event are granted hereby, unless expressly stated in an attached Exhibit A. The only rights of Sponsor hereunder with respect to the Event, the Location, VVF and activities and attributes of the Event, the Location or VVF are the rights to receive the Benefits as specified herein and in accordance with all terms hereof; all other rights are hereby retained by VVF. “Benefits” will be: a. Town of Avon logo recognition in Vail Valley Foundation Birds of Prey Digital Program. b. Town of Avon logo shall be included within the main Birds of Prey sponsorship logo lock-up, alongside other exclusive partners, which is included in the following: Website footer, website partners page, email marketing footer, print advertisements (2 col or wider), Event Poster & select on-site event signage. c. Two (2) Finish Zone B banners, provided by Town of Avon. Banners must measure 1m x 4m and be delivered to VVF office at least 10 days prior to the Event. If banners do not measure 1m x 4m, VVF will not be obligated to hang them. d. Town of Avon shall receive a PA Announcement at least 1x per day at the Race Stadium. e. Town of Avon logo and/or 30 second commercial to air a minimum of 1x per day on Race Stadium Jumbotron, provided by Avon. f. One (1) 30 second commercial to air within a Birds of Prey telecast on NBC Sports or the 2022 Streaming Partner, provided by Avon. g. Transferable, by day, 3-day VIP tickets for the Avon Town Council, Town Attorney, Town Manager, Special Event Staff (3 persons), plus one guest for each, for a total of twenty-f (24) VIP passes per day. B-1 12 VIP bags for distribution at the discretion of the Town of Avon. 3. Obligations of Sponsor. a. Sponsorship Pledge; Payments. Sponsor shall pay to VVF in cash (without reduction, setoff, or counterclaim) $40,000.00 (“Sponsorship Pledge”). Payment in full is due on or before November 1, 2022. If any amount payable hereunder is not paid when due, such amount shall bear interest until paid at the lesser of 1.5% per month and the maximum rate then permitted by law. To the extent that any portion of a payment under this Section 3 would not (if made as a separate payment) be deemed a qualified sponsorship payment under Section 513(i) of the Code, such portion of such payment and the other portion of such payment shall be deemed and treated as separate payments. b. Value in Kind (“VIK”). The consideration other than cash (“VIK”) agreed to by VVF in exchange for VVF granted sponsor rights and benefits, detailed description of VIK and additional terms and conditions of VIK to be provided by Sponsor to VVF are set forth in Exhibit B of this Agreement. 4. VVF Approval Rights. The form, content and presentation of each Benefit shall be subject to the prior written approval of VVF, and to the rules of the Event, the Location and any other location or area at which any Benefit may be held or presented, and any legal requirements, including, without limitation, the requirement that Sponsor participants execute release and indemnity agreements provided by VVF. Sponsor shall not be permitted to include in any Benefit (or in related material) any advertising for (or other reference to) any product or service that competes with any product or service of any sponsor, licensee or marketing partner of VVF or its affiliates. For each Benefit that includes material to be broadcast, published, distributed, displayed or made public, Sponsor shall prepare and produce, at Sponsor’s expense, such material in final form and provide such material to VVF for its prior written approval, in each case with reasonable notice and adequate opportunity to review (and revise if necessary) prior to the first date on which such material is to be broadcast, published, distributed, displayed or otherwise made public. In the event of a breach of this Section 4 by Sponsor, VVF, at its option, may terminate this Agreement by written notice to Sponsor; however, Sponsor will remain liable for any past due or subsequently earned amounts. 5. Charitable Organization Restrictions. Sponsor acknowledges and agrees that VVF is a charitable organization and is subject to various restrictions imposed by federal and state laws. Without limiting the generality of the foregoing, any Benefits which include any advertising or promotional rights (including, without limitation, signage and program advertising) may only utilize Institutional Advertising, which means displays or other advertisements that do not contain comparative or qualitative language, price information or other indications of savings or value, or an inducement to purchase, sell or use Sponsor’s products or services, or to take any action with respect to Sponsor. 6. No Third-Party Marks/Logos. Sponsor acknowledges that VVF is conveying no rights to the use of, and Sponsor agrees not to use by virtue of this Agreement the names, logos or marks of any third parties (“Third Parties”), including, without limitation, International Ski Federation, the United States Ski Association d/b/a United States Ski and Snowboard Association, a Utah non-profit corporation, the Town of Vail, a Colorado home rule municipality, the State of Colorado, the Town of Avon, a Colorado home rule municipality, Beaver Creek Associates, Inc., a Colorado corporation, The Vail Corporation, a Colorado corporation (“VAI”) and all of their subsidiaries and affiliates, including Vail®, Beaver Creek® and Arrowhead® resorts. 7. Forest Service Restrictions. Sponsor acknowledges that VVF conducts the Event on property operated by VAI and/or certain of its affiliates (such as, without limitation, Beaver Creek Associates, Inc., Vail Summit Resorts, Inc. and Vail Resorts, Inc.) (collectively, “VC”) under Special Use Permits issued by the United States Forest Service (“Forest Service”) for use of such property. Sponsor further acknowledges that promotions occurring on such property are subject to the approval of the Forest Service, whenever such approval is required by the Special Use Permits. Specifically, Sponsor recognizes that the Forest Service regulates the placement, size, content and amount of advertising on land owned by the Forest Service. Promotion of Sponsor may be limited, B-1 curtailed or prohibited by the Forest Service at any time; VVF shall notify Sponsor promptly upon any such restriction by the Forest Service. Forest Service objection to any promotion of Sponsor shall relieve Sponsor of the obligation to carry on such promotional activity. In the event that the Forest Service materially limits the promotion of Sponsor contemplated herein, VVF and Sponsor shall negotiate in good faith to provide Sponsor with appropriate substitute promotional exposure of substantially equal value, provided, however, that to the parties shall negotiate a reasonable reduction of the Base Fees provided hereunder in the event Sponsor’s exercise of its rights under this Agreement are materially frustrated by limitations imposed by the Forest Service, which are unanticipated by the parties at the time of execution of this Agreement. 8. Third Party Interaction. Sponsor acknowledges and agrees that the Event is subject to the direction of and may be influenced by the Third Parties, which have the right and authority to make changes to the Event, including, without limitation, its timing and conduct, as deemed necessary or desirable by the Third Parties. Sponsor’s obligations hereunder shall continue despite any changes by the Third Parties. 9. Promotional Rights. VVF shall have a limited, paid-up, non-royalty bearing and transferable license to use Sponsor’s names and/or logos to permit VVF to provide the applicable Benefits hereunder. VVF, and its affiliates, successors, assigns and designees shall each also have the irrevocable right to photograph, take motion pictures and sound recordings of, televise, make miniatures of or otherwise make, reproduce and modify images of the Event, or any parts thereof, for any purpose, in any manner or through any media, now known or hereafter devised, in perpetuity (including, without limitation, the right to use Sponsor’s name and/or logos appearing therein, so long as such name and/or logos are not the principal focus of such use), without any consideration or notice to or consent by Sponsor or any third party. VVF acknowledges and agrees that Sponsor’s names and logos are Sponsor’s exclusive property. 10. Substitution for Unavailable Benefits; Force Majeure. Due to circumstances beyond the reasonable control of Sponsor or VVF, it may be impossible or impracticable to provide one or more Benefits (each an “Unavailable Benefit”). With respect to any Unavailable Benefit, Sponsor and VVF shall consult regarding a substitute therefor, and following such consultation, VVF may provide, in lieu of such Unavailable Benefit, a substitute promotional or other benefit having promotional value not materially less than that of the Unavailable Benefit. By doing so, VVF will satisfy all obligations to provide the Unavailable Benefit. In the event that either the Event, or any portion thereof, does not take place or is postponed, in whole or in part, due to any act of God or force majeure, including without limitation, weather, fire, floods, strike, labor dispute or similar cause beyond the control of the parties, then this Agreement shall terminate and VVF shall return the Sponsorship Pledge to Sponsor. 11. Indemnification. [Intentionally Deleted]. 12. Insurance. [Intentionally Deleted]. 13. Notices. All notices and other communications provided for hereunder shall be in writing and shall be effective only if and when delivered by hand, by prepaid certified United States mail (return receipt `following, either party may from time to time change its name or address for notice): If to Sponsor: If to VVF: Town of Avon Vail Valley Foundation PO BOX 975 PO Box 6550 Avon CO 80435 Avon, CO 81620 Attn Danita Dempsey Attn: Dave Dressman T: (970) 748-4065 T: (970) 777-2015 14. Miscellaneous. This Agreement constitutes the entire agreement between Sponsor and VVF and supersedes all prior agreements and understandings relating to the subject matter hereof. This Agreement may B-1 be amended or supplemented only by a writing signed by Sponsor and VVF. This Agreement will be binding upon the parties hereto and their successors and permitted assigns. If any portion of this Agreement is held to be invalid, the balance, notwithstanding, will continue in full force and effect. This Agreement may be executed in counterparts and by facsimile signature, each of which will be deemed to be an original and all of which will constitute one and the same document. 15. The parties hereby agree and acknowledge the Municipal Addendum is attached hereto as Exhibit C is incorporated herein. In the event the terms and conditions of the Municipal Addendum conflict in whole or in part with the terms and conditions of the Agreement, the terms and conditions of the Municipal Addendum shall control. ***Signatures appear on following page. *** [Signature Page to Event Sponsorship Agreement (TOWN OF AVON BOP2022)] IN WITNESS WHEREOF, the parties have executed this Agreement as of the respective dates set forth below to become effective on the day and year first written above. SPONSOR: Town of Avon, a Colorado home rule municipality VVF: VAIL VALLEY FOUNDATION, a Colorado nonprofit corporation By: Name: Title: Date: ___________________________________ By: Name: Sarah Franke Title: VP, Marketing & Operations Date: ____________________________________ Culture, Arts & Special Events Manager October 5, 2022 Danita Dempsey October 7, 2022 A-1 Exhibit A Mark Usage; Merchandising 1. During the Term, Sponsor will have the right to use the names and logos of VVF, the Event or the Location as set forth below (the “Marks”) and the designation “An Official Sponsor of the Vail Valley Foundation” and/or “An Official Sponsor of the ‘Event(s)’, a Project of the Vail Valley Foundation” (the “Sponsor Designation”) to indicate a sponsor relationship with VVF and/or the Event, as applicable; provided that (a) any such use will be a Benefit and shall be subject to the approval rights and restrictions set forth in Section 4 above, (b) any such use must be in the form specified in this Exhibit A or as otherwise directed by VVF, and (c) the Marks may only be used by Sponsor in connection with the use of the Sponsor Designation. 2. Sponsor hereby acknowledges and agrees that (a) all right, title and interest in the Marks and other intellectual property rights of VVF (collectively, the “VVF Properties”) belong exclusively to VVF, (b) Sponsor will not contest the validity of the VVF Properties or any registrations pertaining thereto, (c) Sponsor may use the VVF Properties only in the manner and for the uses expressly permitted hereunder, (d) Sponsor will not adopt or use any term, work, mark or designation which is in any respect confusingly similar to the VVF Properties, (e) a breach by Sponsor of any of its agreements hereunder with respect to the VVF Properties (or other unauthorized use of the VVF Properties) would injure VVF irreparably and monetary damages would be insufficient to compensate VVF; accordingly, VVF may obtain immediate injunctive relief against Sponsor restraining any violation of this Agreement without the posting of any bond (or if one is required, a $1,000 bond is agreed to be sufficient) or the necessity of proving actual monetary loss, in addition to any other remedies which might be available to VVF at law or in equity, (f) all uses of the VVF Properties by Sponsor, and all goodwill therefrom, shall inure to the benefit of VVF; and (g) upon the expiration or termination of this Agreement, all rights of Sponsor to use the Marks shall immediately cease. 3. The Marks permitted to be used by Sponsor pursuant to this Agreement will be determined and supplied by the VVF marketing department. 4. Merchandising rights (including rights to distribute premiums): None. B-1 EXHIBIT B VIK 1. In addition to and without limiting or offsetting any cash payments due to VVF under this Agreement, Sponsor shall provide to VVF, at no additional charge, the goods or services described below. Sponsor shall deliver the VIK, at Sponsor’s expense, at the time and places and to the persons as directed by VVF. For purposes of this Agreement, VIK shall be: a. Up to $2,988 in shuttle transportation services between Avon to the Beaver Creek Village. 2. If any of the VIK consists of services, such services shall be provided in a first-class and workmanlike manner in order to ensure, as applicable, maximum appearance and safety. B-1 Exhibit C MUNICIPAL ADDENDUM: MUNICIPAL PROVISIONS. A.1. Addendum A Controls: In the event the terms and conditions of this Addendum A conflict in whole or in part with the terms and conditions of the Agreement, the terms and conditions of this Addendum A shall control. A.2. No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to Avon, its officials, employees, contractors, or agents, or any other person acting on behalf of Avon and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. A.3. Affirmative Action: VVF will not discriminate against any employee or sub-contractor for employment because of race, color, religion, sex or national origin. VVF will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. A.4. Article X, Section 20/TABOR: The Parties understand and acknowledge that 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 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 Avon 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. A.5. No Waiver of Rights: A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. Avon’s approval or acceptance of, or payment for, services shall not be construed to operate B-1 as a waiver of any rights or benefits to be provided under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by Avon except in writing. A.6. Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns. A.7. Limitation of Damages: The Parties agree that VVF’s remedies for any claims asserted against Avon shall be limited to proven direct damages in an amount to exceed amounts due under the Agreement and that Town shall not be liable for indirect, incidental, special, consequential or punitive damages, including but not limited to lost profits. A.8. 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 VVF. 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. A.9. 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. A.10. 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. A.11. Assignment and Release: All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by VVF 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 VVF from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. A.12. 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.