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02-03 through 02-15-2015 Apres Avon PSA Bonfire EntertainmentTOWN OF AVON PROFESSIONAL SERVICES AGREEMENT Independent Contractor Development of 2015 Alpine World Ski Championships Apres Avon Site Design, Event Program and Production of Event THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement") is entered into by and between Bonfire Entertainment. LLC a Corporation of the State of Colorado, whose business address is Post Office Box 985, Vail, CO, 81658 (the "Contractor") and the TOWN OF AVON, COLORADO ( "Town "), a Home Rule municipality of the State of Colorado. The Town and the Contractor may be collectively referred to as the "Parties." RECITALS AND REPRESENTATIONS WHEREAS, the Town desires to have performed certain professional services as described in this Agreement; and WHEREAS, the Contractor represents that the Contractor has the skill, ability, and expertise to perform the services described in this Agreement and within the deadlines provided by the Agreement; and WHEREAS, the Town desires to engage the Contractor to provide the services described in this Agreement subject to the terms and conditions of the Agreement. NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement, the Parties mutually agree as follows; 1.0 SERVICES AND CONTRACTOR PERFORMANCE 1.1 Services. As directed by and under the supervision of the Town Manager or his/her designee for the Town of Avon, the Contractor shall provide the Town with the services described in Exhibit A (the "Services "). 1.2 Changes to Services. The Town may request a change or changes in the Services. Any changes that are mutually agreed upon between the Town and the Contractor shall be made in writing and upon execution by both Parties shall become an amendment to the Services described in this Agreement. To be effective, any written change must be signed by the Contractor and by the Town Council, the Town Manager, or by a person expressly authorized in writing to sign on behalf of the Town, 1,3 Independent Contractor. The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Agreement to have entered into any partnership, joint venture, employer /employee or other relationship with the Town other than as a contracting party and independent contractor. The Town shall not be obligated to secure, and shall not provide, any insurance coverage or employment benefits of any kind or type to or for the Contractor or the Contractor's employees, sub - consultants, contractors, agents, S COTTY STOUGKTON - 2015 APRES AVON AGREEMENT or representatives, including coverage or benefits related but not limited to: local, state, or federal income or other tax contributions; insurance contributions (e.g., FICA); workers' compensation; disability, injury, or health; professional liability insurance, errors and omissions insurance; or retirement account contributions- 1.4 Standard of Performance. In performing the Services, the Contractor shall use that degree of care, skill, and professionalism ordinarily exercised under similar circumstances by members of the same profession practicing in the State of Colorado. Contractor represents to the Town that the Contractor is, and its employees performing such Services are, properly licensed and/or registered within the State of Colorado for the performance of the Services (if licensure and /or registration is required by applicable law) and that the Contractor and employees possess the skills, knowledge, and abilities to competently, timely, and professionally perform the Services in accordance with this Agreement. 2.0 COMPENSATION 2.1 Commencement of and Compensation for Services. Following execution of this Agreement by the Town, the Contractor shall be authorized to commence performance of the Services as described in Exhibit A subject to the requirements and limitations on compensation as provided by this Section 2.0 and its subsections. A. Performance Fee Agreement. The Contractor shall perform the Services and shall invoice the Town for work performed based on the rates and/or compensation methodology described in Exhibit A. B. Reimbursable Expenses. There may be "reimbursable expenses" (i.e. costs) that are reasonable and necessary to the Services for purposes of this Agreement C. Non- reimbursable Costs, Charges. Fees, or Other Expenses. Any fee, cost, charge, fee, or expense incurred by the Contractor not otherwise specifically authorized by this Agreement shall be deemed a non - reimbursable cost and shall be borne by the Contractor and shall not be billed or invoiced to the Town and shall not be paid by the Town. D. Increases in Compensation or Reimbursable Expenses. Any increases or modification of compensation or reimbursable expenses shall be subject to the approval of the Town and shall be made only by written amendment of this Agreement executed by both Parties. 2.3 Payment Processing. The Contractor shall submit invoices and requests for payment in a form acceptable to the Town. Invoices shall not be submitted more often than once each month unless otherwise approved by this Agreement or in writing by the Town. Unless otherwise directed or accepted by the Town, all invoices shall contain sufficient information to account for all Contractor time (or other appropriate measure(s) of work effort) and all authorized reimbursable expenses for the Services during the stated period of the invoice. Following receipt of a Contractor's invoice, the Town shall promptly review the Contractor's invoice. SCOTTY STOUGHTON - 2015 APRES AVON AGREEMENT 2 2.4 Town Dispute of ,Invoice or Invoiced Item(s). The Town may dispute any Contractor time, reimbursable expense, and/or compensation requested by the Contractor described in any invoice and may request additional information from the Contractor substantiating any and all compensation sought by the Contractor before accepting the invoice. When additional information is requested by the Town, the Town shall advise the Contractor in writing, identifying the specific item(s) that are in dispute and giving specific reasons for any request for information. The Town shall pay the Contractor within forty -five (45) days of the receipt of an invoice for any undisputed charges or, if the Town disputes an item or invoice and additional information is requested, within thirty (30) days of acceptance of the item or invoice by the Town following receipt of the information requested and resolution of the dispute. To the extent possible, undisputed charges within the same invoice as disputed charges shall be timely paid in accordance with this Agreement. Payment by the Town shall be deemed made and completed upon hand delivery to the Contractor or designee of the Contractor or upon deposit of such payment or notice in the U.S. Mail, postage pre -paid, addressed to the Contractor. 3.0 CONTRACTOR'S GENERAL RESPONSIBILITIES 3.1 The Contractor shall become fully acquainted with the available information related to the Services. The Contractor is obligated to affirmatively request from the Town such information that the Contractor, based on the Contractor's professional experience, should reasonably expect is available and which would be relevant to the performance of the Services. 3.2 The Contractor shall perform the Services in accordance with this Agreement and shall promptly inform the Town concerning ambiguities and uncertainties related to the Contractor's performance that are not addressed by the Agreement. 3.3 The Contractor shall provide all of the Services in a timely and professional manner. 3.4 The Contractor shall promptly comply with any written Town request for the Town or any of its duly authorized representatives to reasonably access and review any books, documents, papers, and records of the Contractor that are pertinent to the Contractor's performance under this Agreement for the purpose of the Town performing an audit, examination, or other review of the Services. 3.5 The Contractor shall comply with all applicable federal, state and local laws, ordinances, regulations, and resolutions_. 3.6 The Contractor shall be responsible at the Contractor's expense for obtaining, and maintaining in a valid and effective status, all licenses and permits necessary to perform the Services unless specifically stated otherwise in this Agreement. 4.0 TERM AND TERMINATION SCOTTY STOUGHTON _ 2015 APRES AVON AGREEMENT 3 4.1 Term. This Agreement shall be effective on the 23rd day of April 2014, (the "Effective Date ") and shall terminate on the 20'h day of February, 2015, or on a prior date of completion of the Services or termination as may be permitted by this Agreement; provided, however, that the Parties may mutually agree in writing to the monthly extension of this Agreement for up to three (3) consecutive calendar months if such extension is approved by the Town Manager and such extension does not alter or amend any of the terms or provisions of this Agreement. 42 Continuing Services Required. The Contractor shall perform the Services in accordance with this Agreement commencing on the Effective Date until such Services are terminated or suspended in accordance with this Agreement. The Contractor shall not temporarily delay, postpone, or suspend the performance of the Services without the written consent of the Town Manager. 4.3 Town Unilateral Termination. This Agreement may be terminated by the Town for any or no reason upon written notice delivered to the Contractor at least ten (10) days prior to termination. In the event of the Town's exercise of the right of unilateral termination as provided by this paragraph: A. Unless otherwise provided in any notice of termination, the Contractor shall provide no further services in connection with this Agreement after receipt of a notice of termination; and B. All finished or unfinished documents, data, studies and reports prepared by the Contractor pursuant to this Agreement shall be delivered by the Contractor to the Town and shall become the property of the Town; and C. The Contractor shall submit to the Town a final accounting and final invoice of charges for all outstanding and unpaid Services and reimbursable expenses performed prior to the Contractor's receipt of notice of termination and for any services authorized to be performed by the notice of termination as provided by Section 4.3(A) above. Such final accounting and final invoice shall be delivered to the Town within thirty (30) days of the date of termination; thereafter, no other invoice, bill, or other form of statement of charges owing to the Contractor shall be submitted to or accepted by the Town. 4.4 Termination for Non - Performance. Should a party to this Agreement fail to materially perform in accordance with the terms and conditions of this Agreement, this Agreement may be terminated by the performing party if the performing party first provides written notice to the non - performing party which notice shall specify the non - performance, provide both a demand to cure the non - performance and reasonable time to cure the non - performance, and state a date upon which the Agreement shall be terminated if there is a failure to timely cure the non - performance. For purpose of this Section 4.4, "reasonable time" shall be not less than five (5) business days. In the event of a failure to timely cure a non - performance and upon the date of the resulting termination for non- performance, the Contractor prepare a final accounting and final invoice of charges for all performed but unpaid Services and authorized reimbursable expenses. Such final accounting and final invoice shall be delivered to the Town SCOTTY STOUGHTON - 2015 APRES AVON AGREEMENT 4 within fifteen (15) days of the date of termination; thereafter, no other invoice, bill, or other form of statement of charges owing to the Contractor shall be submitted to or accepted by the Town. Provided that notice of non- performance is provided in accordance with this Section 4.3, nothing in this Section 4.3 shall prevent, preclude, or limit any claim or action for default or breach of contract resulting from non - performance by a Party. 4.5 Unilateral Suspension of Services. The Town may suspend the Contractor's performance of the Services at the Town's discretion and for any reason by delivery of written notice of suspension to the Contractor which notice shall state a specific date of suspension. Upon receipt of such notice of suspension, the Contractor shall immediately cease performance of the Services on the date of suspension except: (1) as may be specifically authorized by the notice of suspension (e.g., to secure the work area from damage due to weather or to complete a specific report or study); or (2) for the submission of an invoice for Services performed prior to the date of suspension in accordance with this Agreement. 4.6 Reinstatement of Services Following Town's Unilateral Suspension. The Town may at its discretion direct the Contractor to continue performance of the Services following suspension. If such direction by the Town is made within (30) days of the date of suspension, the Contractor shall recommence performance of the Services in accordance with this Agreement. If such direction to recommence suspended Services is made more than thirty -one (31) days following the date of suspension, the Contractor may elect to: (1) provide written notice to the Town that such suspension is considered a unilateral termination of this Agreement pursuant to Section 4.3; or (2) recommence performance in accordance with this Agreement; or (3) if suspension exceeded sixty (60) consecutive days, request from the Town an equitable adjustment in compensation or a reasonable re -start fee and, if such request is rejected by the Town, to provide written notice to the Town that such suspension and rejection of additional compensation is considered a unilateral termination of this Agreement pursuant to Section 4.3. Nothing in this Agreement shall preclude the Parties from executing a written amendment or agreement to suspend the Services upon terms and conditions mutually acceptable to the Parties for any period of time. 4.7 Delivery of Notice of Termination. Any notice of termination permitted by this Section 4.0 and its subsections shall be addressed to the person signing this Agreement on behalf of either Town or Contractor at the address shown below or such other address as either party may notify the other of and shall be deemed given upon delivery if personally delivered, or forty -eight (48) hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested. 5.0 INSURANCE 5.1 Insurance Generally. The Contractor shall obtain and shall continuously maintain during the term of this Agreement insurance of the kind and in the minimum amounts specified as follows: The Contactor shall secure and maintain the following ( "Required Insurance "): SCOTTY STOUGHTON - 2 -,5 APRES AVON AGREEMENT 5 A. Worker's Compensation Insurance in the minimum amount required by applicable law for all employees and other persons as may be required by law. Such policy of insurance shall be endorsed to include the Town as a Certificate Holder. B. Comprehensive General Liability insurance with minimum combined single limits of One Million Dollars ($1,000,000.00) Dollars each occurrence and of One Million Dollars ($1,000,000.00) aggregate. The policy shall be applicable to all premises and all operations of the Contractor. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations- The policy shall contain a severability of interests provision. Coverage shall be provided on an "occurrence" basis as opposed to a "claims made" basis. Such insurance shall be endorsed to name the Town as Certificate Holder and name the Town, and its elected officials, officers, employees and agents as additional insured parties. C. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury of not less than of One Hundred Thousand Dollars ($100,000.00) each person and each accident and for property damage of not less than Fifty Thousand Dollars ($50,000.00) each accident with respect to each of the Contractor's owned, hired and non - owned vehicles assigned to or used in performance of the Services. The policy shall contain a severability of interests provision. Such insurance coverage must extend to all levels of subcontractors. Such coverage must include all automotive equipment used in the performance of the Agreement, both on the work site and off the work site, and such coverage shall include non - ownership and hired cars coverage. Such insurance shall be endorsed to name the Town as Certificate Holder and name the Town, and its elected officials, officers, employees and agents as additional insured parties. The Required Insurance shall be procured and maintained with insurers with an A- or better rating as determined by Best's Key Rating Guide. All Required Insurance shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor. 5.2 Additional Requirements for All Policies. In addition to specific requirements imposed on insurance by this Section 5.0 and its subsections, insurance shall conform to all of the following: A. For both Contractor Insurance and Required Insurance, all policies of insurance shall be primary insurance, and any insurance carried by the Town, its officers, or its employees shall be excess and not contributory insurance to that provided by the Contractor; provided, however, that the Town shall not be obligated to obtain or maintain any insurance whatsoever for any claim, damage, or purpose arising from or related to SCOTTY STOUGHTON - 2015 APRES AVON AGREEMENT this Agreement and the Services. The Contractor shall not be an insured party for any Town - obtained insurance policy or coverage. B. For both Contractor Insurance and Required Insurance, the Contractor shall be solely responsible for any deductible losses. C. For Required Insurance, no policy of insurance shall contain any exclusion for bodily injury or property damage arising from completed operations. D. For Required Insurance, every policy of insurance shall provide that the Town will receive notice no less than thirty (30) days prior to any cancellation, termination, or a material change in such policy. 5.3 Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain and continuously maintain policies of insurance in accordance with this Section 5.0 and its subsections shall not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the Contractor arising from performance or non - performance of this Agreement. Failure on the part of the Contractor to obtain and to continuously maintain policies providing the required coverage, conditions, restrictions, notices, and minimum limits shall constitute a material breach of this Agreement upon which the Town may immediately terminate this Agreement, or, at its discretion, the Town may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Contractor to the Town immediately upon demand by the Town, or at the Town's sole discretion, the Town may offset the cost of the premiums against any monies due to the Contractor from the Town pursuant to this Agreement. 5.4 Insurance Certificates. Prior to commencement of the Services, the Contractor shall submit to the Town certificates of insurance for all Required Insurance. Insurance limits, term of insurance, insured parties, and other information sufficient to demonstrate conformance with this Section 5.0 and its subsections shall be indicated on each certificate of insurance. Certificates of insurance shall reference the Project Name as identified on the first page of this Agreement. The Town may request and the Contractor shall provide within three (3) business days of such request a current certified copy of any policy of Required Insurance and any endorsement of such policy. The Town may, at its election, withhold payment for Services until the requested insurance policies are received and found to be in accordance with the Agreement. 6.0 OWNERSHIP OF DOCUMENTS Any work product, materials, and documents produced by the Contractor pursuant to this Agreement shall become property of the Town of Avon upon delivery and shall not be made subject to any copyright unless authorized by the Town. Other materials, methodology and proprietary work used or provided by the Contractor to the Town not specifically created and delivered pursuant to the Services outlined in this Agreement may be protected by a copyright held by the Contractor and the Contractor reserves all rights granted to it by any copyright. The SCOTTY STOUGHTON 2015 APRES AVON AGREEMENT 7 Town shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to the following exceptions: (1) for exclusive use internally by Town staff and/or employees; or (2) pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, C.R.S., to the extent that such statute applies; or (3) pursuant to law, regulation, or court order. The Contractor waives any right to prevent its name from being used in connection with the Services. 7.0 CONFLICT OF INTEREST The Contractor shall refrain from providing services to other persons, firms, or entities that would create a conflict of interest for the Contractor with regard to providing the Services pursuant to this Agreement. The Contractor shall not offer or provide anything of benefit to any Town official or employee that would place the official or employee in a position of violating the public trust as provided by C.R.S. § 24 -18 -109, as amended, or any Town — adopted Code of Conduct or ethical principles. 8.0 REMEDIES In addition to any other remedies provided for in this Agreement, and without limiting its remedies available at law, the Town may exercise the following remedial actions if the Contractor substantially fails to perform the duties and obligations of this Agreement. Substantial failure to perform the duties and obligations of this Agreement shall mean a significant, insufficient, incorrect, or improper performance, activities or inactions by the Contractor. The remedial actions include: A. Suspend the Contractor's performance pending necessary corrective action as specified by the Town without the Contractor's entitlement to an adjustment in any charge, fee, rate, price, cost, or schedule; and /or B. Withhold payment to the Contractor until the necessary services or corrections in performance are satisfactorily completed; and/or C. Deny payment for those services which have not been satisfactorily performed, and which, due to circumstances caused by the Contractor, can not be performed, or if performed would be of no value to the Town; and /or D. Terminate this Agreement in accordance with this Agreement. The foregoing remedies are cumulative and the Town, it its sole discretion, may exercise any or all of the remedies individually or simultaneously. 9.0 MISCELLANEOUS PROVISIONS 9.1 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. The Town's approval or acceptance of, or payment for, services shall not be construed to operate 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 the Town except in writing signed by the Town Council or by a person expressly authorized to sign such waiver by resolution of the Town Council of the Town of Avon, and SCOTTY STOUGHTON .. 2015 APRES AVON AGREEMENT any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. 9.2 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 the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town 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. 9.3 Affirmative Action: Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Contractor 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. 9.4 Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns; provided that this Section 9.4 shall not authorize assignment. 9.5 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 Contractor. 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. 9.6 Article X Section 20/TABOR: The Parties understand and acknowledge that the Town 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 Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town'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. 9.7 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 SCOTTY STOUG-ITON - 2015 APRES AVON AGREEMENT 9 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. 9.8 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. 9.9 Assignment and Release: All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Contractor without the express written consent of the Town Council for Town 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 resolution or motion of the Town Council for the Town of 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. 9.10 Paragraph Captions: The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 9.11 Integration and Amendment: This Agreement represents the entire and integrated agreement between the Town and the Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. Any amendments to this must be in writing and be signed by both the Town and the Contractor. 9.12 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. 9.13 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. 9.14 Employment of or Contracts with Illegal Aliens: Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Contractor 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, Contractor 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 contractor will participate SCOTTY STOUGHTON 2015 APRES AVON AGREEMENT 10 in the e- verify program or department program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. The Contractor 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 Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, the Contractor shall be required to notify the subcontractor and the Town within three (3) days that the Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien. The Contractor 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 Contractor's actual knowledge. The Contractor 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 Contractor 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 Contractor violates this provision, the Town may terminate this Agreement, and the Contractor may be liable for actual and/or consequential damages incurred by the Town, notwithstanding any limitation on such damages provided by such Agreement. 9.15 Compliance with Article XXVIII of the Colorado Constitution: If and only to the extent this Agreement constitutes a "sole source government contract" within the meaning of Article XXVIII of the Colorado Constitution ( "Article XXVIII"), then the provisions of Sections 15 through 17 of Article XXVIII ( "Amendment 54 ") are hereby incorporated into this Agreement and the parties hereto shall comply with the provisions of Amendment 54. In such a case, for purposes of this Agreement, the Contractor shall constitute a "contract holder" for purposes of Amendment 54, as shall any additional persons, officers, directors or trustees related to the Contractor who qualify as "contract holders" pursuant to the definition set forth in Article XXVIII. In addition, if and only to the extent this Agreement constitutes a "sole source government contract," the Contractor hereby certifies that it is not ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder, and the Contractor hereby agrees to notify the Town immediately if, at any point during the term of this Agreement, the Contractor shall become ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder. If any provision or provisions of Amendment 54 are held to be unconstitutional or otherwise invalid by a court of competent jurisdiction in a non - appealable action, have been repealed retroactively or otherwise do not apply to this Agreement, such provision or provisions shall no longer be incorporated into this Agreement and the Parties shall have no obligations under such provision or provisions. 9.18 Non - Liability of Town for Indirect or Consequential Damages or Lost Profits: Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits that result from the Town's declaration that the Contractor is in default of the Agreement, so long as the Town acts in good faith. SCOTTY STOUGHTON - 2015 APRES AVON AGREEMENT 9.17 Notices: Unless otherwise specifically required by a provision of this Agreement any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below or at such other address as has been previously furnished in writing, to the other Party. Such notice shall be deemed to have been given when deposited in the United States Mail properly addressed to the intended recipient. If to the Town: If to the Contractor: Town of Avon Bonfire Entertainment, LLC Attn: Virginia Egger Attention: Scotty Stoughton P.O. Box 975 PO Box 985 Avon, Colorado 80620 Vail, CO 81658 With Copy to: Eric J. Heil, Town Attorney P.O. Box 975 Avon, Colorado 80620 918 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. 10.0 AUTHORITY The individuals executing this Agreement represent that they are expressly authorized to enter into this Agreement on behalf of Town of Avon and the Contractor and bind their respective entities. THIS AGREEMENT is executed and made effective as provided above. ATTEST: W1 Town Clerk TOWN OF AVON, COLORADO By; T CONTRACTOR: Bonfire Entertainment, LLC By;. Nam Stou , re sident SCOTTY STOUGHTON - 2015 APRES AVON AGREEMENT EXHIBIT A Development and Production of Apres Avon For the 2015 Alpine World Ski Championships Site Design, Event Program and Production of Event Liquor License Responsibility OVERVIEW The goal of the project is to design, develop and produce a program called Apres Avon, which is an integral afternoon program of the 2015 Alpine World Ski Championships. As envisioned at this time, Apres Avon will be a "street fair ", beginning on February 3`d and continuing through February 15th, from 2:00 p.m. through 5:30 p.m. each day. The key activation elements include live music, food booths; craft distilled and brewed beverages and performance art. A draft concept of Apres Avon is described below. The Apres Avon program will be carefully developed with the Town Manager and /or designees and with private property owners as identified by the Town. Sponsorship solicitation and fulfillment will be done by the Town of Avon, with assistance as may be needed from time -to -time from the Contractor. In addition, Town staff will be available through the Apres Avon to assist with set -up, production event activities, and clean -up at no cost to the Contractor. SCOPE OF WORK Following are the general tasks proposed in this PSA toward the production of Apres Avon: Phase 1: • Design Development — Complete venue design, including but not limited to decorations, lighting, stage, food and beverage areas, performance artist areas, and venue service logistics and placement for transit, refuse, deliveries and security. • Program Development — Schedule of musicians and /or performance art by day; food and beverage program. • Budget Estimates — Revenues and Expenditure Estimates, including but not limited to fees charged to attendees, if any, reporting or sponsorship revenue, venue construction costs, personnel costs, equipment and supply charges, performer fees, and clean -up charges. Phase 2: Event Production — Includes all aspects of producing Apres Avon, including but not limited to schedules, construction of site, performer management, day -today operations, and liquor license management. Final event accounting shall be completed in this Phase 2 work. Liquor License: The Contractor shall identify a 501(c) 3 nonprofit organization to apply for a liquor license for the Apres Avon premises. The nonprofit shall be approved by Avon. The Contractor may negotiate services directly with the nonprofit, which are needed for the sale of alcohol during Apres Avon. The nonprofit will negotiate with Avon for repayment of a portion or all of the costs of providing the premise(s) for alcohol sales. SCHEDULE The effort is structured to meet the following tentative schedule: • Phase 1: Design Development: August 1, 2014 • Phase 2: Event Production: August 2, 2014 — February 20, 2015, as needed These timeframes are tentative and approximate will be better defined and adjusted as the project evolves and more exact dates are identified. The schedule will also be adjusted to meet specific needs of the Town relative to overall efforts and any inter - dependencies between timelines of different efforts. Exhibit A - Page 1 FEES • The total appropriation approved by the Avon Town Council for Apres Avon on June 1, 2014, is $200,000. Contractor shall be paid 20% of the total appropriation as follows: • Phase 1: Design Development: $15,000 within 30 days of Agreement execution (or as negotiated) • Phase 2: $25,000: Within 30 days of a program being approved by the Town Council on or about July 22, 2014, Contractor shall be paid $20,000. The balance of $5,000 shall be paid on or before March 1, 2015, and final accounting of all costs for Apres Avon shall be provided to the Town Manager and shall be subject to acceptance of costs by Avon. The Phase 2 payment shall include payment for Contractor staff and crew, not including sound engineers or additional specialty staff related to the specific daily Apres Avon events. • Should the total appropriate approved by the Avon Town Council or its designee exceed $200,000 the Contractor shall be paid an additional 20% of those incremental costs within 30 days of final accounting of all costs for Apres Avon and acceptance of costs by Avon. CONCEPT PLAN APRAS AVON 2015 ALPINE WORLD SKI CHAMPIONSHIPS STREET FAIR CONCEPT: Music, Tastings & Spontaneity 2:00 — 5:30 P.M. Identified Site: Loaded Joe's Parking Lot /Pedestrian Mall on Benchmark Road • ESTIMATED PARTICIPANTS EACH DAY 0 2,000-2, 500 PERSONS PER DAY; o DEMOGRAPHICS OF 2015 AWSC CROWD — AVERAGE AGE 45, MALE 0 VVF VOLUNTEERS WILL HAVE DRINK TICKETS FOR THIS VENUE (ESTIMATE S00 /DAY) a ANTICIPATE THE "LOCALS" WANTING TO BE HERE • TRANSPORTATION ALL BUSES LEAVING BEAVER CREEK WILL STOP AND LET STREET FAIR ATTENDEES OFF AT THE CHRISTY SPORTS BUS SHELTER IN EAST AVON IDENTIFY WHERE ATTENDEES GET ON BUS TO RETURN TO TRAER CREEK PARKING LOTS • SITE LOCATION OF VIDEO STADIUM — LIVE STREAMING — LIVE EVENT COVERAGE L DECORATIONS TO TURN AREAS INTO LIVELY "PLACE" OF VENDOR STANDS AND PERFORMANCE ART o NEEDS TO BE VISIBLE FROM AVON ROAD o INCLUDES LIGHTS • TABLES • STREET CLOSURES POSSIBLE— COORDINATE WITH BUS • CONSIDER ICE CASTLE • MUSIC & PERFORMANCE ART o LIVE MUSIC -60 -90 MINUTES PER DAY • PERFORMANCE ART EACH DAY • COORDINATE WITH VVF ON MUSIC AND PERFORMANCE ARTISTS AND OTHER ACTIVIATION • VENDORS r FOOD AND CRAFT BREWS /DISTILLERS —CARTS AND /OR TENT n FOOD TRUCKS MAY BEAN OPTION FOR SOME DAYS c: CHARGES FOR ADMISSION MY APPLY • LOGISTICS STAGE, PERFORMERS, TRASH /RECYCLING, SECURITY, ETC. 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