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05-23-2009 Tiga Advertising and TOAI:L IM__► This Agreement, made and entered into this R ?t day of June, 2009, by and between the Town of Avon ( "Town ") and Tiga Advertising, Inc., a Colorado Corporation, ( "Concessionaire "). Consideration For and in consideration of the premises, and of the mutual covenants and Agreements herein contained, and other valuable consideration, the parties agree as follows: 2. Grant Of Right And Privilege The Town grants unto Concessionaire the exclusive right and privilege for the solicitation and sale of commercial advertising and commercial advertising space on all Avon buses. 3. Costs Such grant is hereinafter referred to as the "concession ". All costs incurred in connection with this concession, including but not limited to solicitation, design, preparation, installation, and maintenance of commercial advertising, shall be paid by Concessionaire, without contribution whatsoever by the Town. In the event of the completion of the term of this Agreement, or any renewal or extension of it, or its cancellation or termination for any reason whatsoever, within thirty (30) days of that event, all frames, advertising hardware, fixtures and improvements provided by Concessionaire during the term of this Agreement or any renewal or extension of it, will remain property of Concessioaire and subject to removal by Concessionaire. 4. Town Approval All advertising installed by Concessionaire shall be subject to approval of the Town and Town shall have the right to reject and prohibit the installation of or compel the removal of any advertising material deemed by the Town, in the Town's reasonable discretion, not suitable for display on Town property. 5. Term The term of this Agreement shall be a period of five (5) years commencing at 12:01 am on the 1 st day of June 1, 2009, and ending at 12:OOpm (midnight) on May 31, 2014. Bus Advertising Agreement Page 1 of 12 I 6. Payment In consideration for concession rights and privileges herein granted, the Concessionaire agrees to pay to the Town during the term seven percent (7.0 %) of the net proceeds received each year from sales of advertising. Such payments shall be made to Town of Avon, Finance Department, PO Box 975, Avon, Co 81620. a. Method of Calculating Payment Amount - The calculation of net proceeds is based on a regional marketing approach which involves advertising in Avon and Beaver Creek. The net payment to the Town of Avon will be calculated in accordance with the example set forth below with terms as defined in Section 7: 1. Values and calculated results for 2008 for Avon /Beaver Creek Service Area shown above. Net payment to Town of Avon in this example equals $4,425.00. b. Concessionaire shall have full control of the rates and prices to be charged for advertising and the terms, conditions and manner of payment by advertisers. It is understood and agreed that Concessionaire shall not be responsible to the Town for the failure or default of any person, firm or corporation to whom space shall have been sold as herein set forth but uncollected. Concessionaire shall take all legal and reasonable steps necessary to collect any monies due to Concessionaire as gross revenue. All costs of collection shall be borne by Concessionaire. All costs of collection including reasonable attorney's fees and court costs, shall be deducted from the gross revenue prior to payment to the Town. In no circumstance shall the costs of collection, including reasonable attorney's fees and court costs, exceed the amount of money sought to be collected. Bus Advertising Agreement Page 2 of 12 Total TIGA Avon Beaver Creek Gross Receipts Revenues $ 63,210 Third Party Commissions $ - Avon License Fees $ - Avon Taxes $ _ Production Costs $ Net Proceeds $ 41,087 $ 4,425 $ 17,699 $ 63,210 Percentage of Net Proceeds 65% 7% 28% Percentage of Gross Revenues 65% 7% 28% 1. Values and calculated results for 2008 for Avon /Beaver Creek Service Area shown above. Net payment to Town of Avon in this example equals $4,425.00. b. Concessionaire shall have full control of the rates and prices to be charged for advertising and the terms, conditions and manner of payment by advertisers. It is understood and agreed that Concessionaire shall not be responsible to the Town for the failure or default of any person, firm or corporation to whom space shall have been sold as herein set forth but uncollected. Concessionaire shall take all legal and reasonable steps necessary to collect any monies due to Concessionaire as gross revenue. All costs of collection shall be borne by Concessionaire. All costs of collection including reasonable attorney's fees and court costs, shall be deducted from the gross revenue prior to payment to the Town. In no circumstance shall the costs of collection, including reasonable attorney's fees and court costs, exceed the amount of money sought to be collected. Bus Advertising Agreement Page 2 of 12 C. The Town shall have the right, in the exercise of reasonable discretion, and without compensation to Concessionaire, and without any deduction from gross revenues due to the Town, to display public welfare, educational advertisement and such other advertisements as the Town shall deem proper for the purpose of avoiding unfilled Concessionaire spaces or locations. 7. Definitions a. Gross Receipts: Sum of the amounts received by the Concessionaire from advertisers for the display of their advertisements on both Avon Transit and Beaver Creek Transit buses. b. Third -Party Commissions: In some cases, a commission not exceeding 15.00% must be paid by Concessionaire to a national or regional representative advertising agency for specific ads. This expense will be deducted from gross receipts if actually incurred for ads placed in accordance with this Agreement. C. License Fees: The Concessionaire's expense to maintain a Town of Avon Business License which the town may choose to impose upon Concessionaire in respect to the business conducted under and in accordance with this Agreement. d. Taxes: Taxes which may be imposed upon Concessionaire by the Town of Avon such as sales tax, use tax, or similar taxes in respect to the business conducted under and in accordance with this Agreement. e. Production Costs: The Concessionaire's expenses paid to a third party to produce the physical advertisement which is placed on Avon Transit buses. Such costs shall be deducted at cost and shall not be marked -up by Concessionaire. 8. Verification Concessionaire shall furnish the Town, a verified statement of its "gross revenue" for the period for which payment is made, for the purpose of determining the amount due to the Town. 9. Payment Upon Completion Of Term Bus Advertising Agreement Page 3 of 12 Within thirty (30) days of the completion of the term of this Agreement, or the cancellation or termination of this Agreement for any reason whatsoever, the Concessionaire shall pay the full amount due for the term of this Agreement. 10. Books Of Accounting And Audit Concessionaire shall keep true and complete records and accounts of all revenue and business transacted, including bank deposits, and furnish a true and accurate statement for the term of the Agreement of all such gross revenue and business transacted during such term certified by an authorized representative of Concessionaire to be correct. 11. Bookkeeping Concessionaire agrees to establish and maintain a system of bookkeeping satisfactory to the Town and to give an authorized representative of the T own of Avon access during business hours to such books and records. 12. Preservation Of Records Concessionaire agrees that it will keep and preserve for at lease five (5) years after the expiration of this Agreement all sales slips, cash register tapes, sales books, bank books, duplicate deposit slips and other evidence of gross revenue and business transacted for such period. 13. Authority To Audit The authorized representative of the Town of Avon shall have the right, at the Town's cost, to audit all of the books of account, bank statements, documents, records, papers and files on Concessionaire under this Agreement. Concessionaire shall make all such matters available for such examination to the Town upon thirty (30) days written notice. 14. Inspection Of Data If the Town shall make or have such an audit made for any term of this Agreement and the gross revenue and business transacted shown by Concessionaire's statement for such year should be found to be understated by more that one percent (3 %), Concessionaire agrees that the Town may inspect any sales tax return or report, and accompanying schedules and data, concerning the concession, which Concessionaire Bus Advertising Agreement Page 4 of 12 may file with the State of Colorado, and Concessionaire waives any claim of confidentiality which it may have in connection therewith. Bus Advertising Agreement Page 5 of 12 15. No Notice Required For Payment All payments due or becoming due pursuant to the provision of the Agreement shall be due and payable without notice. In all instances where Concessionaire is required by this Agreement to make any payments to the Town, such payments shall be made at or at such place as the Town may designate by notice in writing to the Concessionaire. Any check given to the Town shall be received by it, subject to collection, and concessionaire agrees to pay any charge incurred by the Town for such collection. 16. Notices All notices required to be given hereunder shall be given by certified mail, return receipt requested, addressed to: a. Town of Avon, P.O. Box 975, Avon CO 81620 U r iga Hdverusing, rrrG., r-. v. avx �n8, vair, vv o rn�ts C. Either party hereto may designate in writing from time to time the addresses of substitute or supplementary persons within the State of Colorado to receive such notices. d. Notices may be served in person on the Town Attorney or any officer, employee or agent of Concessionaire. The effective date of service of any such notice shall be the date such notice bearing sufficient postage is deposited in a United States Post Office. 17. Maintenance Of Displays Concessionaire shall be responsible for cleanliness of all of its displays, including dusting . All displays must be maintained by Concessionaire in good condition and in complete repair. Concessionaire shall not be responsible for regular maintenance of buses as performed by the Town in the operation of the it's fleet. 18. Advertising Hardware Concessionaire shall provide advertising cards, springs, hooks and other material necessary for proper positioning of advertising. Bus Advertising Agreement Page 6 of 12 19. Compliance With All Laws And Regulations Concessionaire agrees to conduct its operations hereunder in accordance with all applicable laws, rules and regulations of the United States, State of Colorado and Town of Avon. 20. Taxes, Compensation Insurance, Licenses Concessionaire agrees to pay promptly all taxes, license fees and permit fees of whatever nature, applicable to its operations hereunder, and to take out and keep current all licenses, municipal, Town, State or Federal, required for the conduct of its business hereunder, and further agrees not to permit any of said taxes of license fees to become delinquent. Concessionaire further agrees to pay promptly when due, all bills, debts, and obligations incurred by it in connection with its operation hereunder, and not to permit the same to become delinquent or to suffer any lien, mortgage, judgement execution or adjudication in bankruptcy which will in any way impair the rights of the Town under the Agreement. 21. General Indemnity As further consideration hereunder, Concessionaire hereby agrees to release and to indemnify, and to save and hold harmless the Town, its employees, agents and representative from and against any and all loss of, or damage to, property or injuries to, or death of, any person or persons, officials, officers, employees, agents and representatives from any and all claims, damages, suits, costs, expense, liability, actions or proceedings of any kind or nature whatsoever, in any way resulting from, or arising out of, directly or indirectly, its operations in connection herewith, including acts and omissions to the owners, officers, employees, agents, representative, suppliers, invitees and contractors of Concessionaire. 22. Patents And Trademarks Concessionaire represents that it is now or prior to use shall be the owner of or fully authorized to use any and all words, designs, marks, names and slogans used by it in its operations hereunder or in any way connected with this Agreement. Concessionaire agrees to save and hold the Town, its officials, officers, and employees, agents and representatives, free and harmless of and from any loss, liability, cost, expense, suit or claim for damages in connection with any actual or alleged infringement of any patent, trademark, or copyright, or claim of Bus Advertising Agreement Page 7 of 12 unfair competition, or any other claim arising out of the operations of Concessionaire hereunder of in any way connected with this Agreement. Bus Advertising Agreement Page 8 of 12 23. Waivers No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept, and observed by the other party shall be construed as or operate as a waiver by either of any subsequent default of any of the terms, covenants or conditions herein contained to be performed, kept and observed by the other party. 24. Assignment Concessionaire covenants and agrees not to assign, sublet, pledge or transfer its rights in this Agreement, in whole or in part, not grant any license of concession hereunder, without obtaining the prior written approval of the Town. 25. No Personal Civil Liability No official, officer or employee of either party shall be held personally liable from the civil standpoint under this Agreement or because of its execution except as provided by law. 26. Not Partnerships Notwithstanding the provision herein contained for the payment of fees or charges by Concessionaire to the Town, it is expressly understood and agreed that the Town may not be construed or held to be a partner, associate or joint venturer of Concessionaire in the conduct of its business, but Concessionaire shall at all times have the status of an independent contractor, without the power, right or authority to impose contractual, tort or the liability upon the Town. 27. Authorized Representatives The Town's authorized representative shall be Jane Burden. Concessionaire's authorized representative shall be Greg Moffet. 28. Agreement Binding This agreement shall be binding on and extended to the successors and assigns of the respective parties hereto. 29. Paragraph Headings Bus Advertising Agreement Page 9 of 12 The paragraph heading contained herein are for convenience in reference only and are not intended to be a substantive part of or to define or limit the scope of any provision of this Agreement. 30. Provision Changes Provisions and clarifications of this Agreement may be added or deleted, through supplementary letter agreements which shall be agreed upon by both parties. 31. Agreement Subordinated To Agreements With United States This Agreement is subject and subordinate to the provisions, terms, reservations, restriction and conditions of any existing or future applicable Federal law, rule or regulation or agreement between Town and the United States which pertains hereto. 32. Agreement Made In Colorado I I its Agr eernent shah be deemed to have been made in, and construed in accordance with the laws of the State of Colorado. 33. Severability In the event any covenant, condition or provision contained in this Agreement is held by any court of competent jurisdiction to be invalid, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained. Provided, however, that if the invalidity of any such covenant, condition or provision causes material prejudice to either party hereto with respect to its respective rights and obligations contained in the remaining valid portions of this Agreement, then, at the option of such party, this Agreement may be declared to be terminated. 34. Enforcement It is agreed that if any action is brought in a court of law by either party to this Agreement as to the enforcement or interpretation or construction of this Agreement or any payment or document provided for herein, the prevailing party in such action shall be entitled to reasonable attorney's fees as well as costs incurred in the prosecution or defense of such action. 35. Termination for Convenience Bus Advertising Agreement Page 10 of 12 Either Party shall have the right to terminate this agreement without cause with thirty (30) days notice to the other Party. SIGNATURE PAGE FOLLOWS Bus Advertising Agreement Page 11 of 12 35. Termination for Convenience Either Party shall have the right to terminate this agreement without cause with thirty (30) days notice to the other Party. o Rory` OF AVON, ADO ) "-e� e, Mayor of Avon TIGA ADVERTISING, INC. PRESIDENT