05-12-2018 YouthPower 365 Party in the ParkAvon
COLORADO
2018 TOWN OF AVON SPECIAL EVENT AGREEMENT
FOR THE
YOUTHPOWER 365 PARTY IN THE PARK
THIS AGREEMENT ("Agreement") is made and entered into on January 1, 2018, by and between the
Town of Avon ("AVON"), a home rule municipality of the State of Colorado, with its principal offices
at One Lake Street, Avon, Colorado, 81620 and ("PRODUCER"), a Youth Power 365 with its principal
offices at PO BOX 6550, Avon, Colorado 81620.
In consideration of the mutual promises and agreements herein contained and for other good and
valuable consideration, and on behalf of themselves, their successors and assigns, the parties hereto
agree as follows:
RECITALS
WHEREAS, the PRODUCER filed a 2018 Special Event Application ("2018 PRODUCER APPLICATION"), for
producing the Party in the Park ("EVENT"), and the Avon Ad Hoc Special Events Committee reviewed
the 2018 PRODUCER APPLICATION, and recommended dates and/or funding for the EVENT to the Avon
Town Council, which were approved by the Avon Town Council by Resolution 17-26, on November 15,
2017; and
WHEREAS, the parties recognize the mutual benefits of PRODUCER producing and AVON hosting the
EVENT; and,
WHEREAS, it is the parties' intention that this Agreement define the duties, obligations and conditions
with respect to the production of the EVENT so that it is conducted in a manner and direction to be
established by both parties, and so that this Agreement is consistent with the 2018 PRODUCER
APPLICATION filed with the Town and governed by the provisions of the Avon Municipal Code, as may
be applicable; and,
NOW, THEREFORE, for good and valuable consideration, including the mutual promises contained
herein, the sufficiency of which is acknowledged and accepted by the parties, the parties agree as
follows:
TERMS AND CONDITIONS
1. SPECIAL EVENT PERMIT
Execution of this Agreement shall constitute issuance of a Special Event Permit. AVON waives the
$100 application fee pursuant to Avon Municipal Code Section 9.40.
1.1. This Permit grants PRODUCER the right, and imposes the duty, to use the PREMISES as
defined in this Agreement for the purpose of producing the EVENT, subject to compliance
with the terms and conditions of this Agreement.
1.2. A Producer Toolkit has been prepared, which includes numerous resource documents for
AVON producers to assist them when planning and producing an EVENT. The Producer Toolkit
can be found at www.avon.org/specialevents.
1.3. All references to the Town Manager in this Agreement may also include the Town Manager's
designee(s). AVON'S chain of command shall be provided by the Town Manager to the
PRODUCER within ten (1o) business days of execution of this Agreement
1.4. PRODUCER shall provide to the Town Manager the PRODUCER'S chain of command within
ten (1o) business days of execution of this Agreement.
2. ATTENDANCE ESTIMATE & SERVICES TO MEET ATTENDANCE
2.1 ATTENDANCE ESTIMATE
The PRODUCER'S 2018 PRODUCER APPLICATION estimated total attendance at the EVENT per
day to equal 432, based upon the following types of attendees:
Number participants as paid or free ticket buyers, registered competitors, etc.: 400
Number of spectators, if applicable: Non -applicable
Number of artists, exhibitors, vendors, etc.: 12
Number of event staff — paid or volunteer, including contractors: 20
Total Attendance Per Day: 432
2.2 SERVICES TO MEET ATTENDANCE
PRODUCER shall provide those services and meet the PRODUCER responsibilities described in
this Agreement for each day's total attendance as estimated in Section 2.1. Should PRODUCER,
at any time, estimate that greater than the total daily attendance is likely, the Town Manager
shall be promptly noticed, and PRODUCER will be responsible to meet any new service
demands prior to the start of the EVENT.
3. PREMISES
The PREMISES for the EVENT are depicted on Attachment A and are defined as a portion of Harry
A. Nottingham Park, including the Pavilion (stage deck, event terrace, viewing plaza, green room,
basement), all paths of access leading to and from the Pavilion, the Park Log Cabin and Playground,
and the Avon Town Hall first floor Council Chambers and restrooms, Lower Athletic Field, but not
including the Avon Recreation Center, Picnic Shelter, Nottingham Lake/Beach, Basketball Courts,
Sand Volleyball Courts, Tennis or Pickleball Courts. PREMISES will also include any public or private
parking lots made available to the PRODUCER (See Section 1o).
4. DATES AND HOURS OF USE
4.1 NON-EXCLUSIVE USE
PRODUCER is granted the non-exclusive use of the PREMISES on for the sole purposes of: 1)
EVENT set-up on May 11, 2o18, from 8:oo a.m. to 8:oo p.m.; and 2) EVENT break -down and site
clean-up on May 13, 2o18, from 8:oo a.m. to 12:00 P.M.
4.2 EXCLUSIVE USE
PRODUCER is granted an exclusive use of the PREMISES on May 12, 2018, from 8:oo a.m.
to 12:oo a.m. for the EVENT.
4.3 CHANGE OF DATES AND HOURS OF USE
PRODUCER may request, as a result of weather or catastrophic events, a change to the
PREMISES, and/or an extension or delay of the aforementioned timelines, after which AVON
may approve the request in writing. Approval of the request from PRODUCER for an extension
or delay of the agreed upon timelines will not be unduly withheld by AVON.
5. PREMISES SET-UP & TEAR DOWN PLAN
5.1 PRODUCER RESPONSIBILITIES
PRODUCER shall provide a PREMISES set-up and tear down plan to the Town Manager by 5:00
p.m., not later than thirty (3o) business days prior to the first day of the EVENT.
The plan shall include:
5.1.1 A schedule (dates and times) for installation/removal of all proposed structures;
5.1.2 A detailed map of all proposed structures including but not limited to gates
(entrance/exit and emergency blow-out), fences, tents, portable facilities, stage and
lighting/sound systems, ADA areas, addition of a plywood road for heavy trucks,
vendor spaces, adequately sized boneyard (i.e. storage and staging area), crowd
management areas and designated smoking area.
5.2 AVON RESPONSIBILITIES
AVON shall review the set-up and tear down plan within five (5) business days of receipt and
notice the PRODUCER of any concerns that may need to be addressed.
6. PREMISES INSPECTION & USAGE
6.1 PRE -EVENT INSPECTION
PRODUCER and the Town Manager shall jointly perform and document a pre -EVENT inspection
of the PREMISES not later than May 12, 2018 at 8:oo a.m., before the PREMISES are released
to PRODUCER.
6.1.1 PRODUCER, by attending the pre -EVENT inspection, verifies that the Avon
Performance Pavilion Technical Specifications, provided in the Producer Toolkit, have
been reviewed, are understood, and will be followed as presented.
6.1.2 PRODUCER acknowledges and agrees that AVON is permitting PRODUCER to use the
PREMISES, including the Avon Pavilion, in its "as is" condition and the AVON shall be
under no obligation to replace, upgrade or otherwise modify the facilities.
6.2 PREMISES USAGE
The following guidelines shall be observed for usage of the PREMISES, including the Pavilion:
6.2.1 Use the Pavilion only in the manner permitted by this Agreement and do not allow or
permit the use of the Pavilion for any other purpose or any other reasonably
objectionable or unlawful act.
6.2.2 PRODUCER shall not install, place, inscribe, paint or otherwise attach and shall not
permit any banner, sign, advertisement, notice, marquis, or awning on or within the
Pavilion, without the prior review and consent of Avon in each instance.
6.2.3 PRODUCER shall, at its own expense, provide and maintain in first-class condition all
permitted signs and shall, upon the expiration of this Agreement, at its own expense,
remove all such permitted signs and repair any damage caused by such installation
and/or removal. AVON shall have the right to remove all non -permitted signs without
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notice to PRODUCER, at the expense of the PRODUCER.
6.2.4 PRODUCER will respect and utilize PREMISES improvement locates and stakes shall
not be driven into the ground along any pathways, athletic fields, parking lots or grassy
areas with underground sprinkler systems without prior permission from the Town
Manager.
6.2.5 PRODUCER shall not make alterations, additions or improvements on or to the Pavilion
without the prior written consent of Avon, to include, but not limited to tenting,
catering equipment and portable facilities. All such work shall be performed in a good
and workmanlike manner.
6.2.6 PRODUCER shall ensure there is lighting on the perimeter fence, along the recreational
path to backstage, behind concessions, to vendor/sponsor/VIP tents, portable
restrooms, public pathways to/from parking lots, parking lots and to the Box Office.
6.2.7 By order of the Eagle River Fire Protection District, PRODUCER will ensure that NO
THEATRICAL SMOKE, without approval, is blown on the Pavilion and NO
PYROTECHNICS OF ANY SORT are to be detonated. Decorative open flame, fire pits,
patio style heaters and/or fire performers are only permissible if permitted through
and approved by Eagle River Fire Protection District. Cooking of any sort by hot plate,
open flame, grill, etc. is not allowed in the Green Room (including restroom).
6.2.8 To the extent licensed personnel, such as electricians, medical, emergency response
or health official, are required to conduct certain services or inspections, PRODUCER
shall abide by these local and State requirements.
6.2.9 PRODUCER agrees to make every effort to retain volunteers and paid staff from
qualified persons residing in the Town of Avon or Eagle County.
6.2.10 Internet - AVON contracts with Comcast for all wireless services related to Town
business. PRODUCER may use Comcast provided internet service for lawful purposes
only. Any transmission or re -transmission of material in violation of any federal or state
laws or regulations is expressly prohibited.
Through Comcast, AVON shall provide access to the internet for the PREMISES only,
through TOA -Public secured with an EVENT password for the express use of
PRODUCER's box office/ticket sales, EVENT merchandise sales, vendor booth sales and
media only. TOA -Public bandwidth is loo megabits down/20 megabits up. Under no
circumstances shall PRODUCER share the passcode with the general public.
PRODUCER shall advise AVON by not later than fifteen (15) business days prior to the
EVENT of the desired EVENT Wi-Fi password.
6.3 POST -EVENT INSPECTION
PRODUCER and the Town Manager shall jointly perform and document a post -EVENT
inspection of the PREMISES not later than May 13, 2018 at 12:00 p.m. before the PREMISES are
returned to AVON.
PRODUCER shall notify the Town Manager of any problems or damage that may have occurred
during the EVENT during the post -EVENT inspection. PRODUCER shall be liable for any damage
to the PREMISES and any adjacent Town Property caused by the installation or removal of any
alteration, addition or improvement. AVON may take action to repair and restore any damage
caused by PRODUCER and PRODUCER shall be liable for such costs, including reasonable
attorneys' fees and costs to enforce this Agreement.
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7. SANITATION & RESOURCE RECOVERY
7.1 PRODUCER RESPONSIBILITIES
PRODUCER shall provide for the sanitation facilities, resource recovery (composing and
recycling) cleanliness and cleaning needs of the EVENT.
7.1.1 Contracts for services with the PRODUCER'S sanitation and recovery agencies shall
be provided to the Town Manager sixty (60) days prior to the first date of the EVENT.
7.1.2 Contract services shall cover refuse management, recycling, composting, portable
restrooms, grounds and Pavilion cleaning and all parking lots included in the defined
PREMISES.
7.2 AVON RESPONSIBILITIES
AVON shall review the contracts for service within fifteen (15) business days of receipt and
notice the PRODUCER of any concerns that may need to be addressed.
8. PARKING
AVON, based upon event experience in the town, to date, has determined that parking space
requirements for events shall be as follows:
Attendance Parking Space Estimate
1,500 or fewer persons
188
1,501- 2,00o persons
250
2,001-3,000
375
ooi or greater
TBD
8.1 Public parking lots, owned by AVON, the Avon Elementary School parking lot, and Town
streets are the primary parking areas for the EVENT, accounting for 270 spaces, within
walking distance to the PREMISES. When required to meet parking demand beyond these
parking spaces, the Town Manager will make a best effort to secure private lots to meet
parking demand or provide shuttle service to the Traer Creek Plaza underground parking
lot. AVON shall notice the PRODUCER of all available parking lots and street parking
estimates not less than sixty (60) days prior to the first date of the EVENT.
8.2 Once parking lots are secured, the PRODUCER will be responsible for staffing, lighting,
signage, and sanitation, and any insurance requirements.
8.3 Should a private parking lot owner or manager require payment for use of a lot, the
PRODUCER shall negotiate with parking lot owner the fee and pay the amount required not
less than sixty (60) days before the first day of the EVENT. The Town Manager may serve as
a facilitator during the fee negotiation or negotiate the fee, when requested, on behalf of the
PRODUCER. Certificates of insurance for any and all private parking lot owners shall be
provided to the Town Manager not later than ten (10) business days prior to the first day of
the EVENT.
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The Avon Town Council's adopted Climate Action Plan emphasizes the importance of walking,
biking, carpooling and using bus transit. AVON and the PRODUCER agree to encourage attendees,
staff, volunteers, etc. to take public transportation, bike, walk and carpool.
AVON will be responsible for providing bike racks on-site for the EVENT. Extended in -town bus
service may be provided when the Beaver Creek and/or Traer Creek Plaza lots are included in the
EVENT parking.
to AMPLIFIED SOUND PERMIT
io.i PRODUCER RESPONSIBILITIES PRODUCER will submit an Application for Outdoor Use of
Amplified Sound System (Application), pursuant to Avon Municipal Code 5.24, by not later than
5:00 p.m. sixty (6o) days prior to the first day of the EVENT. The Application will include, if
applicable:
10.1.2 SOUND CHECKS — Dates and times of sound checks will be listed. Duration is limited
to a three -song sound check lasting no more than twenty (20) consecutive minutes for
each artist.
10.1.3 PERFORMANCE TIMES —Dates and times of all performances and/or announcements
will be listed.
10.1.4 CHANGE OF TIMES . PRODUCER may request, as a result of weather or catastrophic
events, an extension or delay of the aforementioned timelines, after which AVON may
approve the request in writing. Approval of the request from PRODUCER for an
extension or delay of the agreed upon timelines will not be unduly withheld by AVON.
10.1.5 SOUND VOLUME PRODUCER agrees the volume for any sound check and during
performance times will be moderated to achieve the sound quality needed for the
EVENT and shall be considerate of the surrounding neighborhoods. The Town
Manager may request the volume be reduced at any time during the EVENT.
io.i.6 SOUND PENALTY
PRODUCER acknowledges and agrees that strict adherence to the sound check and
performance times approved in the Sound Permit and are a material term of this
Agreement. PRODUCER shall pay a penalty of one hundred dollars (Wo.00) per
minute for music, public address announcements, sound check, or any other
amplified sound that occurs before or after any time period in which amplified sound
is permitted.
PRODUCER acknowledges and agrees to pay the sound penalty assessed, by not later
than 5:00 p.m., thirty (3o) days after the last day of the EVENT. Payment will be
received prior to release of the EVENTS final payment as set forth in Section 18.1.3, if
applicable.
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11 VENDOR LICENSING & PAYMENT OF SALES TAXES
11.1 PRODUCER RESPONSIBILITIES
11.1.2 PRODUCER shall provide a list of vendors to the Town Manager by not later fifteen (15)
business days prior to the first day of the EVENT.
The list shall include: All vendors, sponsors and non -profits, engaged in selling food,
beverage, merchandise, wares, admissions, etc. during the EVENT and will include: The
business names/dba, physical address, mailing address, phone number, email address,
contact, and type of activity.
11.1.3 PRODUCER shall register for a Sales Tax License with the Town of Avon; there is not a
fee assessed for this license. The Sales Tax License, and instructions, can be found at
www.avQn org, "On -Line Payments" button, located at the bottom of the screen.
A PRODUCER, who has not been on MuniRevs before, will need to register by clicking
"New User" to apply for an account; then follow the online steps provided. If a
PRODUCER needs assistance, contact support@munirevs.com or call 888-751-1911.
A PRODUCER, who is currently registered, will access by clicking "Existing Users"; they
will login to their account and access "Manage Your Business" to register for a Sales
Tax License. If a PRODUCER needs assistance, the PRODUCER should contact
support@munirevs.com or call 888-751-1911.
11.1.4 The PRODUCER shall collect and remit sales tax for any vendor engaged in selling at
the EVENT.
11.1.5 PRODUCER acknowledges and shall abide by AVON's Prohibition of Marijuana
Businesses at Town Owned Venues for Town of Avon Permitted or Sponsored Festivals
and Special Events, which can be found in the Producer Toolkit.
11.2 AVON RESPONSIBILITIES
AVON contracts with MUNIRevs for management of the Town's sales tax licensing and
collection needs. AVON shall ensure all information is up-to-date on the Town's website
portal and MUNIRevs shall assist PRODUCER's new to the process, as needed.
12 MARKETING
12.1 PRODUCER RESPONSIBILITIES
12.1.1 PRODUCER shall implement the Marketing Plan, which was provided in the 2018
PRODUCER APPLICATION, and is attached to this Agreement as Attachment B.
12.1.2 In addition, the PRODUCER shall advertise through all media outlets, and with signage
to be placed at PREMISES entrancelexit, Avon Transportation Center, pedestrians
paths of ingress/egress, and parking lots the following: 1) no open containers are
allowed within Avon; 2) there is no vending without a Town license; 3) there is no
parking on private property without permission of the property owner; 4) no loitering;
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5) it is illegal to smoke marijuana out-of-doors in the Town of Avon, including the
PREMISES; and, 6) all parking and mobility information.
12.1.3 PRODUCER agrees to provide AVON, by not later than sixty (60) days after the EVENT,
not fewer than five (5) professional quality reproducible photographs and not less
than ninety (go) seconds of edited video from the 2018 EVENT for use by AVON in any
and all AVON marketing and or promotions, which may include, but is not limited to
print, web, social channels, etc.
12.2 AVON RESPONSIBILITIES
12.2.2 AVON will post on its website, content, provided from the PRODUCER, within five (5)
business days after receipt of "posting ready" materials from the PRODUCER. Content
may include a high resolution EVENT logo and up to five (5) professional quality
reproducible photographs and edited video, not to exceed ninety (go) seconds.
12.2.3 AVON shall disseminate PRODUCER prepared press releases and Facebook postings,
as soon as possible, once received from the PRODUCER.
12.2.4 AVON will post the EVENT in its "all 2018 events" website postings and press releases.
12.2.5 In addition to the "Exempt Admissions" authorized by Resolution 15-08, AVON will
make available up to three hundred boo) additional "Exempt" single -day admissions
(Complimentary Media) to the PRODUCER specifically for marketing purposes.
13. AVON CASH AND IN-KIND SPONSORSHIP & USE OF FUNDS
13.1 PAYMENT OF CASH FUNDS SCHEDULE
Cash funding of $2,430.00 was appropriated by the Avon Town Council to support the EVENT.
Funds will be released as follows:
13.1.1 Ninety percent (go%) within ten (1o) business days of execution of this Agreement by
both parties.
13.1.2 Ten percent (10%) after post -EVENT inspection and payment for damage to AVON
assets orthe PREMISES, if any, inspection, completion of after -EVENT staff and Ad Hoc
Special Event Committee review meetings, and receipt and approval of Post -Event
Survey.
13.2 USE OF CASH FUNDS
PRODUCER may use cash funds to defray the production costs of the EVENT, including
implementation of the PRODUCER'S Marketing Plan, which was provided in the 2018
PRODUCER'S APPLICATION.
13.3 IN-KIND SUPPORT
AVON shall provide in-kind support to PRODUCER as shown in Attachment C, in an amount
not to exceed $500.00. The Town Manager shall track the in-kind expenses and notify the
PRODUCER at any time the award level is being approached.
14 AVON BENEFITS ASA SPONSOR
A
14.1 PRODUCER shall provide a complete list of sponsor benefits at a level commensurate to other
EVENT sponsors and list of fulfillment benefits, which AVON shall receive within thirty (30)
days of execution of this Agreement. Should AVON be entitled to complimentary advertising,
photography or other media exposure in any of the EVENT program or other informational
materials, PRODUCER shall provide AVON all production specifications and deadlines a
minimum of sixty (6o) days in advance of the publication.
14.2 COMPLIMENTARY ADMISSIONS
PRODUCER shall provide complimentary admission for the following attendees:
14.2.1 AVON staff providing services, in-kind and/or paid, as approved by the Avon Town
Manager.
14.2.2 Transferable VIP Full Pass for the Avon Town Council and Town Attorney, plus one
guest for each of the aforementioned, for a total of sixteen (16) VIP passes.
14.2.3 Transferable general admission passes for the Ad Hoc Special Events Committee, plus
one guest for a total of twenty (2o) passes.
14.2.4 VIP All Access Pass Admission and credential (if applicable) for the Avon Town
Manager, Special Events Manager, Special Events Production Assistant and Town
Engineer.
15 SUCCESS METRICS —EVENT INTERCEPT SURVEY/POST-EVENT SURVEY
15.1 PRODUCER RESPONSIBILITIES
PRODUCER shall conduct on-site intercept survey or a post -event survey. The survey
instrument questions and final report shall be provided to AVON within thirty (3o) days of the
last day of the EVENT.
15.2AVON RESPONSIBILITIES
If AVON includes the EVENT in either an on-site intercept survey or a post -event survey via
email, PRODUCER shall grant access to AVON'S consultant firm. AVON shall retain and have
ownership of the data collected by AVON; and, the survey instrument questions and final
report shall be provided to the producer within sixty (6o) days of AVON receiving the final
report.
16 POST EVENT REVIEWS
The Town Manager and PRODUCER, and respective key staff, shall meet on May 15, 2o18, at 9:00
a.m., in the Avon Town Hall to review the EVENT. The meeting date may be changed with
agreement by the parties.
The PRODUCER shall meet with the Ad Hoc Special Events Committee at its regular meeting
following the completion of the post -event survey, or as soon as practicable.
17 DAMAGE DEPOSIT
17.1 PRODUCER RESPONSIBILITIES
PRODUCER has asked to forgo providing a damage deposit. In doing so, the PRODUCER
recognizes all liability of damages occurred via negligence or willful misconduct during
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usage of the PREMISES are entirely the PRODUCER's responsibility and PRODUCER shall
cover all costs of repairs and replacements.
18. INSURANCE & INDEMNIFICATION
i8.i PRODUCER RESPONSIBILITIES
PRODUCER agrees to indemnify the Town of Avon, its officers, agents and employees, and to
hold them harmless against any and all claims, actions, demands or liabilities, including
attorney fees and court costs, for injury, death, damage or loss to person(s) or property arising
out of or directly or indirectly resulting from PRODUCER's actions or omissions in connection
with the conduct of the EVENT.
PRODUCER shall obtain general liability insurance coverage within the minimum limits set
below naming AVON as an additional insured and insuring AVON and its officers, agents and
employees against any and all liability and damages which may arise out of or directly or
indirectly result from the conduct of the EVENT. The policy dates shall include the entire range
of dates for which Town property is used.
The minimum limits and requirements of the coverage for less than i,000 in attendance shall
include: $i,000,000 per occurrence primary coverage, and $2,000,0oo annual aggregate; 30
days' written notice of cancellation; host and general liquor liability insurance in the same
amounts listed above if applicable; $1,000,000 personal and advertising injury coverage; and
$50,000 fire damage. For attendance greater than i,000, the requirements are as follows"
ATTENDANCE
Limits Per
Occurrence /
Requirements
Aggregate
Host
Liquor
Liability
Personal &
Advertising
Injury
Fire
Automobile
1,001— 2,000
$1M
$3M
$1M
$1M
$50,000
$1M
2,001- 3,000
$1M
$4M
$1M
$1M
$50,000
$1M
3,001- 5,000
$1M
1 $5M I
$1M
I $1M 1
$50,000
$1M
i. PRODUCER shall provide to AVON proof of Comprehensive Automobile Liability
insurance for any private motor vehicles owned by PRODUCER or its officers,
agents, or employees that are used as part of the EVENT. The insurance policy shall
provide that it is primary insurance and that its coverage will apply prior to
utilization of AVON's general liability coverage.
ii. PRODUCER shall provide written evidence of all insurance coverage required in
this paragraph 23.1.2 to the Town Manager no later than thirty (3o) days prior to
the first day of the EVENT. All required insurance policies shall be non -cancellable
without thirty (3o) days prior written notice to AVON.
iii. The parties hereto understand and agree that AVON is relying on, and does not
waive or intend to waive by any provision of this Agreement, the monetary
limitations (presently $350,000 per individual claim and $99o,000 for multiple
claims arising from a single incident) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-
1oi et seq., 10 C.R.S., as from time to time amended, or otherwise available to
AVON, its officers, agents, or employees.
iv. PRODUCER shall not be relieved of any liability, claims, demands, or other
obligations assumed pursuant to paragraph 25.1 of this Agreement by reason of its
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failure to procure or maintain insurance or by reason of its failure to procure or
maintain insurance in sufficient amounts, duration, or types.
v. All subcontractors of PRODUCER shall be required to list the Town of Avon, its
elected officials, officers and employees as additional insured and provide the
appropriate certificate of insurance to Avon upon request.
19. EVENT CANCELLATION
Either party may cancel the EVENT in whole or in part, for any substantial reason beyond either
party's control. In the event of cancellation, neither party shall be liable to the other for any lost
profits, lost revenues or consequential damages.
19.1 The EVENT may be canceled by the Town Manager if the terms of this Agreement are not
substantially fulfilled in a timely manner or in the event of an unforeseen catastrophic event,
subject to a right to cure. Should AVON deem any term or terms of this Agreement unfulfilled
and wish to base cancellation thereon, AVON shall give PRODUCER written notice and
PRODUCER shall have five (5) business days to cure the term or such longer time as mutually
agreed by the parties. Should PRODUCER cure, this Agreement shall continue in full force and
effect.
19.2 In the event of cancellation, AVON shall remit to PRODUCER all deposits less any EVENT
related expenditure incurred by AVON. If PRODUCER cancels the EVENT after AVON has
dedicated resources toward production and notice of such cancellation is not given ninety (9o)
days prior to the first day of the EVENT, PRODUCER shall pay AVON five thousand dollars
($5,000) as liquidated damages within thirty (3o) days of the previously scheduled production
date. Notwithstanding any other provision to the contrary, if PRODUCER cancels the EVENT,
PRODUCER shall return to AVON all funds provided by AVON for the EVENT within fifteen (15)
days of cancellation and any funds not returned to and received by AVON shall bear interest at
the rate set forth in Avon Municipal Code Chapter 3.32 — Interest on Past Due Accounts.
20. RELEASE OF LIABILITY
2o.1 AVON assumes no responsibility whatsoever for any non -municipal property placed in said
PREMISES. PRODUCER hereby expressly releases discharges Avon from any and all liabilities
for any loss, injury or damages to any person or property of PRODUCER, its employees, agents,
concessionaires, performer, attendee, spectator or other invitee that may be sustained by
reason of the occupancy of the PREMISES under this Agreement, except for the negligent acts
of AVON or its officers, agents, employees. To the fullest extent permitted by law, PRODUCER
shall indemnify, defend and hold harmless Avon, its members, affiliates, officers, directors,
partners, employees, and agents from and against all claims, damages, losses and expenses,
including but not limited to reasonable attorney's fees, arising out of the performance of this
Agreement, provided that any such claim, damage, loss or expense is caused by any negligent
act or omission of PRODUCER, anyone directly or indirectly employed by PRODUCER or anyone
for whose acts PRODUCER may be liable, except to the extent any portion is caused in part by
a party indemnified hereunder.
20.2 In the event the PREMISES or any part thereof is damaged by fire or other natural
causes or if for any other reason, including strikes, failure of utilities, which results in
cancellation of the EVENT, or which in the judgment of the Town Manager, renders the
fulfillment of this Agreement by AVON impossible, PRODUCER hereby expressly releases and
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discharges AVON and its officers, agents and employees from any and all demands, claims,
liabilities, and causes of actions arising from any of the causes aforesaid.
21 AVON TRADEMARKS
21.1 Avon's Marks, including EVENT logos, are and shall remain the sole and exclusive property of
AVON. PRODUCER shall not hold itself out as having any ownership rights with respect to
AVON's Marks or, except as may be specifically granted hereunder, any other rights herein.
Any and all goodwill associated with any such rights shall inure directly and exclusively to the
benefit of AVON.
21.2 Subject to the terms and conditions of this Agreement, AVON hereby grants to PRODUCER a
non-exclusive, non -transferable, revocable and limited license to reproduce AVON's Marks in
connection with (1) the EVENTS; and, (2) carrying out any other PRODUCER obligations under
this Agreement. Except as expressly permitted hereunder, PRODUCER hereby covenants and
agrees that it will make no use of Avon's Marks. PRODUCER shall have no right to sublicense
its rights under this license.
21.3 PRODUCER'S use of AVON's Marks shall be strictly subject to the prior written approval of the
Town Manager, which approval may be granted or withheld in Town Manager's discretion.
Notwithstanding any provisions hereof to the contrary, prior to the printing or reproduction
of any AVON Marks pursuant to this agreement, PRODUCER shall provide AVON with samples
of all such materials for AVON's review and approval or disapproval.
21.4 Any trademarks, logos or other intellectual property developed by AVON or by PRODUCER in
connection with its EVENTS services provided hereunder shall be the property of AVON.
22 NOTICES
Any notice to either party under this Agreement shall be in writing to the following addresses:
PRODUCER
Director of Operations, Lauren DesCombes
Post Office Box 6550
Avon, Colorado 81620
Via Email: ldescombes@vvf.org
AVON
Town Manager, Town of Avon
Post Office Box 975
Avon, CO 81620
Via Email: vegger@avon.org
23 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 PRODUCER. 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.
24 Article X, Section 2o/TABOR -The parties understand and acknowledge that the Avon is subject to
Article X, § 20 of the Colorado Constitution ("TABOR"). The parties do not intend to violate the
terms and requirements of TABOR by the execution of this Agreement. it is understood and
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agreed that this Agreement does not create a multi -fiscal year direct or indirect debt or obligation
within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the
contrary, all payment obligations of the Avon are expressly dependent and conditioned upon the
continuing availability of funds beyond the term of the Avon's current fiscal period ending upon
the next succeeding December 31. Financial obligations of the Town payable after the current
fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and
otherwise made available in accordance with the rules, regulations, and resolutions of Town of
Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall
be terminated.
25 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.
26 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.
27 Assignment and Release - All or part of the rights, duties, obligations, responsibilities, or benefits
set forth in this Agreement shall not be assigned by PRODUCER without the express written
consent of Avon. Any written assignment shall expressly refer to this Agreement, specify the
particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be
effective unless approved by Avon. No assignment shall release the Applicant from performance
of any duty, obligation, or responsibility unless such release is clearly expressed in such written
document of assignment.
28 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.
29 Incorporation of Exhibits -Unless otherwise stated in this Agreement, all 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.
3o Employment of or Contracts with Illegal Aliens - PRODUCER shall not knowingly employ or
contract with an illegal alien to perform work under this Agreement. PRODUCER 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, PRODUCER 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 PRODUCER will participate in the
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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 PRODUCER 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 PRODUCER obtains actual knowledge that a subcontractor
performing work under this Agreement knowingly employs or contracts with an illegal alien, the
PRODUCER shall be required to notify the subcontractor and the Town within three (3) days that
the PRODUCER has actual knowledge that a subcontractor is employing or contracting with an
illegal alien. The PRODUCER 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 PRODUCER's actual knowledge. The PRODUCER 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 PRODUCER 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 PRODUCER violates this provision, Avon may terminate
this Agreement, and the PRODUCER may be liable for actual and/or consequential damages
incurred by Avon, notwithstanding any limitation on such damages provided by such Agreement.
31 Non -Liability of Town for Indirect or Consequential Damages or Lost Profits - The parties agree
that Avon shall not be liable for indirect or consequential damages, including lost profits that result
from Avon's declaration that the PRODUCER is in default of the Agreement, so long as Avon acts
in good faith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
TOWN OF AVON
By and Through Its Town Manager
BY:
Virginia C. Egger, To ger
PRODU R "
BY:t`1( i
P O UCER
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DATE: -/�� 1//S
DATE: