Loading...
05-01-2007 VAIL ASSOCIATES INC RED HOUSE PARKING LOT AGREEMENTMEMORANDUM To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Danita Chirichillo - Special Events Coordinator Meryl Jacobs - Director of Recreation and Cultural Services. Date: May 1, 2007 Re: Red House Parking Lot Use Agreement Summary: Attached for signature is the agreement with Vail Associates, Inc. for the use of the Red House parking lot during the Whitewater Rodeo Events on May 15, May 22, May 29 and June 5, 2007. The contract has been reviewed several times by the Town Attorney and Finance Departments and has met with their approval. At this time, the lot will only be used for parking. Financial Implications: There are no financial implications unless the Town damages the parking lot as noted in Item #4. Return Premises to Original Condition. Town Manager Comments: EVENT AGREEMENT THIS EVENT AGREEMENT (the "Agreement"), effective as of May 1, 2007 (the "Effective Date"), is made by and between The Vail Corporation d/b/a VAIL ASSOCIATES, INC. ("VAI"), a Colorado corporation with a business address of P.O. Box 7, Vail, Colorado 81658 and Promoter, the business information of which appears in Exhibit A attached hereto and incorporated herein by this reference. VAI and Promoter, each a "party," shall be referred to collectively as the "parties" hereafter. RECITALS A. WHEREAS; VAI is the owner and operator of certain property in Eagle County, adjacent to the Town of Avon, more specifically described on Exhibit A, attached hereto and incorporated herein by reference (the "Premises"). B. WHEREAS, VAI and Promoter are parties to the (1) River Improvements Easement Agreement (Tract O) dated August 14, 2006; and (ii) River Improvements Easement Agreement (Red House) dated August 14, 2006 (the "Easement Agreements"), whereby VAI has granted to the Promoter certain easements onto VAI-owned property. C. WHEREAS, Promoter organizes, manages and operates special events, and desires to conduct certain free whitewater kayaking clinics and a whitewater "rodeo" competition on the Premises, as further described on Exhibit B (the "Events"), attached hereto and incorporated herein by reference. D. WHEREAS, Promoter, in consideration for the use of the Premises and the permission granted hereunder, desires to insure, indemnify and release VAI from any and all liability or loss that may arise or result from, or in any way be connected with, promoting, conducting and operating the Events, as specifically set forth in this Agreement. AGREEMENT IN CONSIDERATION of the Recitals and the mutual covenants and obligations hereinafter set forth, the parties hereby agree as follows: 1. Grant. VAI hereby grants a license to Promoter to enter upon the Premises to conduct the Events under the terms and conditions of this Agreement. Such license is personal to Promoter and its agents and is non-transferable. VAI may terminate this license at any time in its sole discretion. 2. Term and Scope of Use. a. The term of this Agreement (the "Term") shall begin on the Effective Date and shall continue until its natural expiration once the Events (including tear-down) are complete, unless sooner terminated under provisions contained herein. b. This Agreement may be terminated for cause upon twenty-four (24) hour written notice by either party in the event the other party breaches this Agreement. VAI shall have the right to terminate this Agreement at any time with or without cause. The termination of this Page 1 of 7 Agreement for any reason shall not prejudice the rights of a party against the other party, and shall not relieve a party of any of its obligations or guarantees hereunder. C. Additional duties and responsibilities of Promoter are more specifically described in Exhibit B. d. Promoter may use the Premises for the purpose of erecting certain temporary structures necessary or desirable (the "Facilities") for use in connection with the Events. The Facilities may be used for product demonstration and/or product sale. e. Promoter is specifically prohibited from selling and/or serving beer, wine, and/or spirituous liquors, unless Promoter has separately contracted with VAI food and beverage services, in which case, the Facilities may be used for selling and/or serving beer, wine, and/or spirituous liquors. In the event Promoter contracts with VAI food and beverage as set forth above, VAI, by and through a wholly-owned subsidiary, shall be responsible for providing, serving, dispensing, selling, or otherwise distributing any and all alcoholic beverages on the Premises, and shall further be responsible for controlling the Premises in accordance with all applicable liquor laws. Promoter shall be solely responsible for obtaining all necessary permits, licenses and/or approvals from the governing municipality in order to conduct Promoter's business from the Premises. In addition, Promoter shall, at its sole cost and expense, comply with all laws, rules, regulations, ordinances and orders applicable to the Premises regarding (i) Promoter's activities and operations at the Premises, and (ii) the physical condition of any temporary structure that VAI provides and maintains at the Premises. 3. Advertising and Promotion. a. VAI shall have the right, at its own expense, to engage in any advertising or promotional activities with respect to the Event, if any, upon prior notice to Promoter. b. Promoter shall have the right, at its own expense, to engage in any advertising or promotional activities with respect to the Events subject nonetheless to the prior approval of VAI, which shall not be unreasonably withheld. 4. Return of Premises to Original Condition. Upon completion of the Events, Promoter shall ensure that the Premises are returned to the same condition as they existed prior to the set- up of the Events. In the event Promoter fails to return the Premises to such original condition, and VAI is required to incur out-of-pocket costs in returning the Premises to such original condition, Promoter agrees to reimburse VAI for such out-of-pocket costs. Such costs shall be due and payable upon Promoter's receipt of an invoice from. VAI. 5. Trademarks. a. Promoter expressly recognizes and agrees that VAI's trademarks are the sole property of VAI or its subsidiaries and affiliates and that Promoter does not have any right, title or interest in such or any use thereof, including but not limited to the reproduction of any such trademarks in Promoter's printed word(s) or still or moving photographic image(s). Promoter agrees that all the trademarks have great value and good will and, in the event of a breach of this Paragraph 5, injury to VAI would be irreparable and, therefore, injunctive relief to protect VAI's Page 2 of 7 interests would be appropriate (without limitation as to other damages which might be allowed by law). b. Promoter agrees that Promoter shall not use any VAI trademarks without receiving the prior written permission of a VAI to do so. Any trademarks so used by Promoter shall be accompanied by adequate notification of VAI's ownership of such trademarks, including proper usage of the Tm and/or the ® symbols, as appropriate. 6. Insurance. a. Promoter warrants that at all times during the Term of this Agreement Promoter shall carry and maintain, in full force and effect and at its sole cost and e:k.:pense, the insurance coverage as described in the Easement Agreements. Notwithstanding the foregoing, for the purposes of this Agreement, the certificate of insurance evidencing such insurance coverage shall contain the statement: PARTICIPANTS, COMPETITORS AND SPECTATORS ARE COVERED UNDER THIS INSURANCE POLICY FOR THE NAMED EVENT(S). In the event any portion of the Events is subcontracted, Promoter agrees to require the subcontractor similarly to provide the insurance listed above. b. The insurance policies.referenced above shall provide insurance coverage on an occurrence rather than a claims-made basis. C. Promoter represents and warrants that the full policy limits of the coverage provided hereunder are intact. Promoter represents and warrants that as of the Effective Date of this Agreement no claims have been made against the coverage and no wasting of policy limits has occurred. 7. Indemnification. In consideration for the use of the Premises, the permissions granted hereunder and for using the ski area facilities, Promoter agrees to ASSUME ALL RISKS associated with the Event and agrees, to the extent permitted by law, to hold harmless, release, defend and indemnify Vail Resorts, Inc., The Vail Corporation, and their respective subsidiaries, and their respective agents, employees, representatives, assignees, directors, officers and shareholders (each hereinafter a "Released Party") from all liabilities, litigation and/or claims for injury or death to persons or damage to property arising from the Events and/or Promoter's engagement in the activities hereunder, including claims based on alleged or actual negligence or breach of any express or implied warranty. Promoter agrees to indemnify each Released Party for any injuries to the Promoter or to other person(s) or property that Promoter may cause as a result of or otherwise associated with the Events. Promoter acknowledges the activities comprising the Event are dangerous activities and may pose a risk of serious bodily harm, including death, to the competitors, participants, workers, volunteers, officials and spectators; Promoter expressly agrees to ASSUME ALL RISKS associated with these activities and the Events, whether known or unknown, anticipated or unanticipated. The provisions of this Section shall survive any termination or expiration of this Agreement with respect to any liability, injury or damage occurring prior to such termination. As part of this indemnification agreement, Promoter shall employ counsel acceptable to VAI and shall reimburse VAI for legal fees and other costs incurred in VAT's defense of any such claim(s) or litigation. Page 3 of 7 8. Liability Release(s). Promoter shall obtain a signed copy of the Liability Release(s) attached hereto and incorporated herein by this reference as Exhibit C from every participant in the Events including any competitor, director, officer, agent, servant, employee, sponsor or any other person entering the Premises in connection with the promotion, conduct, operation of or participation in the Events. Spectators of the Events shall not be required to sign a Liability Release. In the event Promoter fails to collect a Liability Release or collects a Liability Release that is not legible, not readable or not enforceable because the Liability Release was filled out improperly, Promoter will, to the extent permitted by law, indemnify VAI to the full extent of any claim made against VAI including VAI's attorneys' fees and court costs. To the extent Promoter is included in the Liability Release, such inclusion is made at Promoter's request and Promoter has independently decided that such inclusion is appropriate. VAI makes no assurances as to the enforceability of the Liability Release and Promoter hereby waives any claim against VAI in connection with the Liability Release. 9. Default. If any party to this Agreement fails to perform in accordance with the terms, covenants and conditions of this Agreement or is otherwise in default of any of the terms of this Agreement, after giving twenty-four (24) hours' notice to the other party of the alleged default, and upon said party in default having failed to cure said breach within said twenty-four (24) hours, the other party shall have the option to terminate this Agreement and pursue any remedy available at law or in equity. In the event Promoter is in default, Promoter agrees to reimburse VAI for reasonable attorneys' fees and related expenses incurred in remedying any such default by Promoter. 10. Compliance with Law; Safety Program Rules. Promoter hereby warrants that it shall utilize the highest professional standards in conducting or performing the Events; comply with all applicable laws, ordinances and rules and regulations affecting the Events and the Premises, be they of federal, state, local or other origin; and be responsible for (i) obtaining any permits or licenses required in connection with the Events; and (ii) its own safety program and compliance with all applicable Occupational Safety and Health Act regulations. Promoter hereby warrants that all rules and regulations in effect on the Premises or access thereto regarding passes, lists of employees, safety and conduct or otherwise shall be strictly observed by Promoter, its officers, directors, agents, servants, employees and subcontractors. Promoter further warrants that the drivers of each of the vehicles used in the performance of the Events herein, if any, are properly trained, licensed and are aware of the special requirements of operation of such vehicles over the terrain on the Premises. 11. Representations and Warranties. a. Organization and Existence. Each party hereby represents and warrants to the other party that it is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation and qualified to do business in each state wherein such party is required to perform its obligations hereunder. b. Corporate Power and Authority. Each has the power and authority to enter into this Agreement and to carry out its obligations hereunder. The officer executing this Agreement is duly and validly authorized to bind and obligate that party hereto. When duly executed and delivered by the parties hereto, this Agreement shall constitute a valid and legally binding obligation of a party and will be enforceable in accordance with its terms. Neither the execution Page 4 of 7 and delivery of this Agreement by, nor the consummation of the transactions contemplated hereby, or compliance by a party with any of the provisions hereof, shall materially violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with the giving of notice or the lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien, security interest, charge or encumbrance upon any of its assets under any of the terms, conditions or provisions of the Articles of Incorporation or By Laws of that party or any note, bond, mortgage, indenture, deed of trust, license, authorization, agreement, lease, registration or other instrument or obligation to which that party is a party, or by which that party may be bound or affected. C. Compliance with Laws. Each party will comply with all applicable federal, state and local laws in the conduct of its operations under this Agreement. 12. Equipment. Promoter retains the right to use Promoter's own equipment for the duration of Agreement, and Promoter shall bear the burden of all misuse or unreasonable wear and tear and risks of loss of damage to Promoter's equipment used in the performance of this Agreement or brought upon the Premises for any purpose whatsoever. 13. Delegation; Assignment. No party may delegate or assign its respective duties under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Subject to the provisions of this Section 14, the terms, covenants and conditions of this Agreement shall be binding on the successors and assigns of the parties. 14. Notice. Any formal notice, demand or communication which a party may desire or be required to give to another party shall be in writing and shall be deemed sufficiently given or rendered if delivered personally or sent by first class United States mail, postage prepaid. A party shall have the right to designate in writing, served as provided above, a different address to which any notice, demand or communication is to be mailed. 15. Relationship of the Parties. The parties shall perform their obligations as contemplated by this Agreement as independent contractors, and nothing in this Agreement is intended to create a relationship of employer-employee, principal-agent, master-servant or joint venturer between the parties. No act undertaken by a party within or outside the scope of this Agreement shall be construed as an act of the other party by the party so acting. 16. Force Majeure. No party shall be liable for any failure or delay in performance under this Agreement to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non- liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. Page 5 of 7 17. Miscellaneous. a. Severability. If any clause or provision of this Agreement shall be held to be invalid in whole or in part, then the remaining clauses and provisions, or portions thereof, shall nevertheless be and remain in full force and effect. b. Amendment. No amendment, alteration, modification of or addition to this Agreement shall be valid or binding unless expressed in writing and signed by the parties to be bound thereby. C. Captions. The captions of each section are added as a matter of convenience only and shall be considered of no effect in the construction of any provision of this Agreement. d. Attorneys' Fees. If any party hereto shall bring any suit or action against another for relief, declaratory or otherwise, arising out of this Agreement, the prevailing party shall have and recover against the other party, in addition to all court costs and disbursements, such sum as the Court may adjudge to be reasonable attorneys' fees. e. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado. Exclusive jurisdiction and venue for any legal proceedings related to this Agreement shall be in the courts of Eagle County, Colorado. f. Survival. Any and all warranties, provisions, rights and obligations of the parties herein described and agreed to be performed subsequent to the tennination of this Agreement shall survive the termination of this Agreement. g. Time. Time is of the essence with respect to the performance of each of the covenants and agreements herein set forth. h. Review. The parties and their respective counsel have reviewed this Agreement in its entirety and acknowledge that each has had a full opportunity to negotiate the Agreement's terms. Therefore, the parties expressly waive any and all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement's drafter, and agree and affirm that the Agreement and all provisions thereof shall in all cases be construed as a whole, according to the fair meaning of the language used. i. Waiver. Failure to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver of such terms, covenants and conditions, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver shall be valid unless in writing and signed by an authorized officer of both parties. J- Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the entire subject matter hereof, and there are no representations, inducements, promises or agreements, oral or otherwise, not embodied herein. Any and all prior discussions, letters of intent, memoranda of understanding, agreements, proposals, negotiations and representations relating thereto are merged herein. Page 6 of 7 k. Definitive Agreement. Each party agrees that unless and until a definitive agreement has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to the matters discussed herein by virtue of this or any prior written or oral expression with respect to such a transaction by any of their partners, managing directors, directors, officers, employees, stockholders, agents, or any other representatives, fiduciaries or advisors except for the matters specifically agreed to herein. 1. Counterparts; Facsimile; Transmission. This Agreement may be executed by facsimile and/or in any number of counterparts, any or all of which may contain the signatures of less than all the parties, and all of which shall be construed together as but a single instrument and shall be binding on the parties as though originally executed on one originally executed document. All facsimile counterparts shall be promptly followed with delivery of original executed counterparts. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the respective dates set forth below to become effective as of the Effective Date. VAIL ASSOCIATES, INC. PROMOTER a Colorado corporation By: Name: Title: Date: By: _ Name: Title: Date: Page 7 of 7 EXHIBIT A (Attached to and forming a part of the Agreement by and between VAI and Promoter) Description of Premises Tract O, Beaver Creek Subdivision, according to the exemption plat recorded on December 6, 1994 at Reception No. 552695 in Book 656, Page 662. Lots 1 and 2, Red House Subdivision, according to the exemption plat recorded on November 7, 2000 at Reception No. 743459. EXHIBIT B (Attached to and forming a part of the Agreement by and between VAI and Promoter) Event Name: 2007 Whitewater Rodeo Series Dates: May 15, May 22, May 29, and June 5, 2007 Description: The 2007 Whitewater Rodeo Series is comprised of four (4) consecutive Tuesday evening events, each to include a free whitewater clinic from 5:00 pm to 6:00 pm in the whitewater park, encompassing various levels of techniques ranging from beginner to advanced. From 6:00 pm to 7:00 pm, a whitewater rodeo competition will take place. Promoter: Town of Avon Entity Type: EfN/SSN#: Addressl: P.O. Box 975 Address2: t Name: t C Avon, CO 81620 l iu:4Zt G~li i`i on ac Email: d chi ri C4Lt IO 6i 4 P11 ; L`J Phone: ,.J (970) 0302 ,J Facsimile: (970) Promoter's Rights and Responsibilities: 1. Registration for competitors, including obtaining properly signed liability releases for all Events. 2. Staffing and operations for all Events. 3. Timing and calculations for all Events. 4. Course design, layout and marking for all Events. 5. Marketing and advertising of all Events. Alcohol Service: None EXHIBIT C (Attached to and forming a part of the Agreement by and between VAI and Promoter) LIABILITY RELEASE(S) (Attached) Waiver and Release of Liability - Competitor and/or Volunteer PLEASE READ CAREFULLY THIS IS A RELEASE OF LIABILITY AND WAIVER OF LEGAL RIGHTS I have elected to accept the invitation from the Town of Avon ("TOA") and the "Vail Corporation" (VC") to participate in the 2007 Westin Riverfront Resort & Spa Whitewater Rodeo Series ("Event") as a COMPETITOR AND/OR VOLUNTEER. I am aware of the fact that I may incur injuries or death through these outdoor activities,. such as those involved in this Event, and it is my intention to fully assume the risk of any such injuries, disabilities, expenses, including the possibility of an accident resulting in death. I also understand that my participation in this activity is dependent upon my knowing and voluntary execution of this release. I understand that participating in this Event has inherent risks, dangers, and hazards, for any person, that cannot be eliminated. I attest that I do not have any medical conditions or use any prescribed medications, which would cause any risk to myself or others by participating this Event. I also attest that I have my own medical insurance, or else I will cover my own medical costs out of my own pocket. I also recognize and understand that photographic/film production shall occur throughout the Event, and I hereby permit TOA, VC, its agents, assigns, and producers to freely use any such photographs and/or film, which may contain my image, in promotion of the Event, or any future events related, or unrelated, including television progranuning. I also acknowledge that I hereby grant permission to TOA, VC, the Event sponsors, promoters, agents, or producers to freely use any photographs and/or film, which may contain my image, for current or future promotional purposes without compensation, in any media now in use or created in the future. It is my intention to waive and relinquish any claims which I might have against TOA, VC, its promoters, affiliates, successors, or assigns, as well as waiving claims against all Event sponsors, their officers, directors, agents, servants or employees, in the event I should sustain an injury, whether minor or severe, disabling or fatal. Therefore, in consideration for the right to participate in the Event, through the execution of this Waiver and Release of Liability, I hereby waive any and all claims which I may have to bring in any form of civil suit, whether for compensatory or for punitive damages arising out of my participation in the Event and any incidence related thereto which may cause me injury, whether temporary, permanent, or fatal. I understand and acknowledge that should I incur an injury as a result of my participation in the Event, I am solely responsible for any costs of medical expenses and that no coverage or insurance shall be provided under any policy of insurance held by TOA, VC, the Event sponsors, promoters, or agents. By executing this Waiver and Release of Liability, I signify that I have read the contents of this document and I fully understand that the purpose of this document is to prohibit any civil suit against TOA, VC, its officers, agents, successors, assigns, directors, servants, sponsors, promoters and employees as a result of any injuries which I might sustain during the Event, whether they be minor, severe, temporary or permanent, or even fatal. I understand that TOA, VC, promoters and the Event sponsors shall rely upon this Waiver and Release of Liability and that I am not permitted to participate in the Event without it. I certify that I am 18 years of age or older, and that I have read and fully understand this Waiver (if under 18 years of age, this Agreement MUST also be executed by a parent, guardian, or custodian of the minor). Dated this day of -2007. (Signature) (Address) (Name Printed) As the parent/guardian of the above-named minor, I represent and warrant that I have authority to sign this waiver and release of liability on behalf of the minor. I further agree to release, hold harmless, and indemnify The Untraditional Marketing, Inc., its officers, agents, successors, assigns, directors, servants, sponsors, promoters and employees as a result of any injuries which the above-named minor might sustain during the Event. (Parent or Guardian Signature) (Address)