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03-08-2018 Avon Playhouse Project AgreementA ,ovo n C O L O R A D Q 2o18 TOWN OF AVON SPECIAL EVENT AGREEMENT FOR THE AVON PLAYHOUSE PROJECT THIS AGREEMENT ("Agreement') is made and entered into on March 8th, 2o18, 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 Colorado Mountain News Media ("Producer"), a N Company, with its principal offices at zoo Lindbergh Drive, Gypsum, CO 81657. RECITALS Producer has requested permission to install and display playhouses on Avon property and has requested funding from Avon to support the construction, installation and display of the playhouses and has proposed certain marketing benefits to Avon and the Avon Town Council has determined that this display event and the associated marketing benefits will appropriate promote Avon, will offer attractive and interesting displays and will thereby promote the welfare of the Avon community. NOW, THEREFORE, 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: TERMS AND CONDITIONS 1. SPECIAL EVENT PERMIT AND PAYMENT Execution of this Agreement shall constitute issuance of a Special Event Permit. Avon waives the $too application fee pursuant to Avon Municipal Code Section 9.40. 1.1 This Permit grants Producer the right to use the Premises as defined in this Agreement for the purpose of producing the Avon Playhouse Project ("Event'), as described in Attachment A. 1.2 Avon has agreed to provide payment to Producer in the total amount of Eighteen Thousand dollars ($18,000.00) which shall be payable as follows: 1.2.1. First Payment: Thirteen thousand dollars ($13,000.00), within ten (1o) business days of signing this Agreement: 1.2.2. Last Payment, Five thousand dollars ($5,000.00), within fifteen (15) business days of the last day of the Event, subject to Section 6 Damage Deposit. 2. PREMISES Avon Playhouse Project Event Agreement — DRAFT Jan 31, 2o18 Page i of 9 The Premises for the Event are depicted on Attachment B and are defined as a portion of Harry A. Nottingham Park ("Park"), including all paths of access leading to and from the Park. 3. DATES AND HOURS OF USE The Producer may install and display the playhouses in the Park from June 11", 2018 to July 25th, 2o18. 4. PREMISES INSPECTION & USAGE 4.1 PRE -EVENT INSPECTION Producer and the Town Manager shall jointly perform and document a pre -event inspection of the Premises not later than Monday, June lith, 2018 at 1:oo p.m., before the Premises are released to Producer. 4.2 PREMISES USAGE The following guidelines shall be observed for usage of the Premises: 4.2.1 Use the Premises only in the manner permitted by this Agreement and do not allow or permit the use of the Premises for any other purpose or any other reasonably objectionable or unlawful act. 4.2.2 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 Premises, without the prior review and consent of Avon in each instance. 4.2.3 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 notice to Producer, at the expense of the Producer. 4.2.4 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. 4.3 POST -EVENT INSPECTION Producer and the Town Manager shall jointly perform and document a post -event inspection of the Premises not later than July 25th, 2o18 at 4:00 p.m. 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 act to repair and restore any damage caused by Producer and Producer shall be liable for such costs, including reasonable attorneys' fees Avon Playhouse Project Event Agreement — DRAFr Jan 31, 2018 Page 2 of 9 and costs to enforce this Agreement. 5. MARKETING 5.1 Producer RESPONSIBILITIES Producer shall implement the Marketing Plan, which is attached to this Agreement as Attachment C. 5.2 AVON RESPONSIBILITIES 5.2.1 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. 5.2.2 Avon shall disseminate Producer prepared press releases and Facebook postings, as soon as possible, once received from the Producer. 5.2.3 Avon will post the Event in its "all 2o18 events" website postings and press releases, through the last day of the Event. 6. DAMAGE DEPOSIT 6.1 Producer RESPONSIBILITIES Producer agrees that the Town has retained $5,000.00 from the approved grant of $18,000.00. This retainage may be used to secure payment of damages, repairs, clean-up of the Premises, as needed. 6.2 AVON RESPONSIBILITIES Avon shall notify the Producer of any repairs and/or clean-up of the Premises and amount to be deducted, if any, from the last cash payment to the Producer. 7. INSURANCE & INDEMNIFICATION 8.1 Producer RESPONSIBILITIES 7.1.1 Lrldemn i io _. 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. 7.1.2 Insurance. Producer shall maintain 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 Avon Playhouse Project Event Agreement —DRAFT Jan 31, 2018 Page 3 of 9 applicable to all operations of Producer on the Premises. 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 Avon as Certificate Holder and name Avon, and its elected officials, officers, employees and agents as additional insured party. Producer shall provide a copy of the insurance policy naming Avon as additional insured. Producer shall provide at least thirty (30) days prior written notice to Avon of any change in the insurance policy. Any failure of Producer to maintain the insurance policy or failure to provide the minimum required notice shall be a default of this Agreement by Producer. All insurance policies carried by Producer, its officers or its employees shall be primary insurance, and any insurance carried by Avon, its officers or its employees or carried by or provided by Avon shall be excess and not contributory insurance to that provided by Producer, except to the extent that a claim arises out of Town's negligence, willful misconduct, violation of law or violation of this Agreement. 7.1.3 Copy_of_Insurance Poky. Producer shall provide written evidence of all insurance coverage required in this paragraph 7.1 to the Town Manager no later than thirty (30) days prior to the first day of the Event. All required insurance policies shall be non - cancellable without thirty (30) days prior written notice to Avon. 7.1.4 No Waiverof Co ernmental Immunity. 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 $990,00o for multiple claims arising from a single incident) or any other rights, Immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-to-ioi et seq., to C.R.S., as from time to time amended, or otherwise available to Avon, its officers, agents, or employees. 7.1.5 No Waiver af_ l e-aseQfLia_bility. Producer shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Paragraph 9 of this Agreement by reason of its failure to procure or maintain insurance or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. 7.1.6 Subcontractors. All subcontractors of Producer shall be required to list Avon, its elected officials, officers and employees as additional insured and provide the appropriate certificate of insurance to Avon upon request. S. 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. 8.1 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 Avon Playhouse Project Event Agreement — DRAFr Jan 31, 2018 Page 4 of 9 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 shorter time if deemed necessary and appropriate by Avon if Event start date is less than 5 days from date of written notice, or such longer time as mutually agreed by the parties. Should Producer cure, this Agreement shall continue in full force and effect. 8.2 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, Producer shall return all monies received from Avon to Avon within five (5) business days. 9. RELEASE OF LIABILITY 9.1 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 or willful and wanton 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. 9.2 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 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. to. AVON TRADEMARKS io.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. 10.2 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. Avon Playhouse Project Event Agreement — DRAFT Jan 31, 2018 Page 5 of 9 10.3 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. 10.4 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. 11. NOTICES Any notice to either party under this Agreement shall be in writing to the following addresses: Producer Holli Snyder Colorado Mountain News Media Events Manager Post Office Box 1500 Gypsum, CO 81637 Via Email: hsnyder@cmnm.org AVON Town Manager, Town of Avon Post Office Box 975 Avon, CO 81620 Via Email: vegger@avon.org 12. 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. 13. Article X, Section 20/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 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. 14. 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 Avon Playhouse Project Event Agreement— DRAFTJan 31, 2018 Page 6 of 9 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. 15. 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. 16. 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. 17. 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. 18. 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. t9. 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 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 Avon Playhouse Project Event Agreement - DRAFr Jan 31, 2018 Page 7 of 9 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. 2o. 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. [Execution Page Follows] Avon Piayhouse Project Event Agreement— DRAFTJan 31, 2018 Page 8 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ff*l"Amo ZIXTL*]�� By and Through Its Town Manager BY; Virginia C. Egger, T nager Attest: V�� - "Iff—V Debbie Hoppe, Tow Cl rk oe �010. YAA�., DAIE:, t-// z */&/ t PRODUCER BY: DATE: Producer Avon Playhoust Proiect Event Agmernent- OftArrJan 31, 2018 PaP901`9 ATTACHMENT A CIVINM ColoradoMountainNewsMedia PROJECT DESCRIPTION The Playhouse Project — a unique, interactive, public art exhibit on display within the Town of Avon for 6 weeks during Summer 2018. Who: Colorado Mountain News Media's new Events Division will produce the event in conjunction with The Vail Daily, Vail Daily online and Art Magazine. What: The Playhouse Project will be a 6 week interactive public art exhibit that includes local construction companies, designers, architects and individual house sponsors. We hope to have 7 - 9 total houses on display in a central area of Avon for a six-week period of time. CMNM will utilize our media assets to promote this event including daily print ads, digital media, social media, video coverage and inclusion in oursummer'18 "Art" magazine. We will share stories with our regional newspapers, including The Glenwood Springs Post Independent, The Aspen Times, Summit Daily and Steamboat Today When: The Playhouse Project will take place over a six-week period, times TBD by Avon Town Council and Staff. Where: It is preferred that the exhibit be in one location, where all houses are visible together. The preferred location is the Town parcel west of the Christie Sports parking lot. Another viable option would be on Mikaela Way right-of-way. On final option, would be to pursue, with the School District, is land east of the Avon Elementary School parking lot. Why: The Playhouse Project basic purpose is to drive visitors to The Town of Avon to see this one of a kind exhibit while showing off the beautiful assets that Avon has been developing. It also sets the tone for the beginning of a creative arts district within the Town. How: The Playhouse Project will take cooperation from several different community organizations and businesses. The Town of Avon is asked to help underwrite the funding of the event for a total of $18,000 PLUS, in kind services to facilitate the event including - storage, some moving services, heavy equipment needs, security, promotion within the town databases, newsletters, and other ongoing media and other services as needed. In exchange, you will receive the benefits of an unprecedented advertising campaign promoting the event valued over $88,000. ATTACHMENT A A A BENEFIT FOR . 1--^' 1 Avon* ST. JUDE CHILDREN'S RESEARCH HOSPITAL XCMNM O • • • 1 1 • • • • • • t f o 0000000 a The Playhouse Project is a proposed public art exhibit to take place within the Town of Avon over a 6 -week period in the summer of 2018. This unique marketing event will incorporate 9-12 unique playhouses on display within the Town of Avon. We will partner with local construction companies and architects to design and build these one of a kind works of art. The event will be marketed across Colorado as a "must see" exhibit driving traffic and visitors to the Town of Avon throughout the exhibit. At the end of the exhibit we will host an "auction" event with all of the proceeds being donated back to the St Jude Children's Research Hospital. Colorado Mountain News Media will produce the Playhouse Project. The power of CMNM and our publications, digital assets, social media and content creation will give this event unprecedented media and marketing exposure across Colorado's high country, and St Jude brings a national level of exposure for the event creating an enormous marketing opportunity for the Town of Avon and any companies involved in the event. Add in promotions, video coverage, magazine coverage and weekly stories about the event and the Playhouse Project promises to help us all "do well by doing good." CMNM is requesting partnership funding from the Town of Avon to underwrite this event and to allow us to give seed money to the construction companies for building materials for this project. We will also be selling additional sponsorships to this event to offset our marketing expenses involved in promoting the Playhouse Project The Playhouse Project will accomplish several things throughout its run in the summer of 2018 including; ® Fostering an amenity for guests and locals ■ Creating a lasting impact for nonprofits and local artists ■ Achieves regional/national recognition and participation ■ Maximizes promotional and marketing reach across many avenues ■ Lays a foundation for a future Arts District ■ Builds the Avon brand ■ Delivers fresh content, and an enhanced experience i Will drive visitors to the Town of Avon to experience the exhibit ■ Will promote an atmosphere of vitality, fun and celebration ■ Curates a sense of community and pride for our residents and guests o�E A BENEFIT FOR ST. JUDE CHILDREN'S RESEARCH HOSPITAL • • • t a 0 0 0 0 a • 0 • The Town of Avon will receive unprecedented marketing exposure as the Community Host Sponsor of the "Playhouse Project:' Your brand will be in every marketing mention in conjunction with this event. Example - " The Town of Avon presents the XYZ Sponsor's Playhouse Project" a project of the Vail Daily. Marketing will include daily print ads, editorial coverage, digital media, social media, video coverage, public relations and signage throughout the entire 6 weeks of the exhibit. Value of marketing will exceed $75,00® Community Host Underwriting Sponsorship Cost: $18,000 + sc public works support for prodL (TBD). • • • I • • • • • • • • t • s 1 . 0 i • Produced by Holli Snyder and CMNM, we bring a reputation of quality, knowledge and resources that is unprecedented in the event landscape. . . . . . . . . . . . . . . . . . . . . . .. . . Avon i�- YC M LonAoo ColoradoMounhfnNmMedia • -''-00� TCMNM ColoradoMountainNewsMedia MARKETING Sample Marketing Plan ATTACHMENT C *8 Weeks of Newspaper Ads; *4 Full page ads/week Vail Daily - Value $27,200 *2 % page ads per week Vail Daily, Summit Daily, Glenwood Springs Post Independent, Steamboat Today (64 total) Value $$28,800 *2 Page Gallery Layout and full page ad - ART magazine - Value $4000 *2 Month Social Media content Campaign - Linked In, Facebook, Google, Instagram plus PPC Value $2500 *2 Month digital banner campaign (All CMNM assets) $12 per CPM estimated Value $720 *Video Story Production and story in Vail Daily, Summit Daily, Glenwood Springs Post Independent, Aspen Times and Steamboat Today - Value $6,250 *9 Native article features (1 per house) with accompanying branded banner ad on bottom of page Value $13,500 *Email database marketing campaign - CMNM assets & St. Jude assets estimated value $2500 *2 Months Public Relations Services - Value $3000 Total Estimated Marketing Value - $88,470 1 Investment $18,000 (Additional marketing to be determined, including Facebook Live, Daily Weekly feature and cover, television coverage and more!)