HomeMy WebLinkAboutresolution.council.016-11 RESOLUTION #11)
(Series of 2011)
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF
ASPEN, COLORADO, AND CLASSIC BICLYCLE RACING LLC SETTING
FORTH THE TERMS AND CONDITIONS REGARDING HOSTING RACE
STAGE FINISH ON AUGUST 24, 2011 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council an agreement
between the City of Aspen, Colorado, and the, a copy of which agreement is
annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that agreement
between the City of Aspen, Colorado, and Classic Bicycle Racing LLC regarding
hosting race stage finish on August 24, 2011, a copy of which is annexed hereto
and incorporated herein, and does hereby authorize the City Manager of the City
of Aspen to execute said contract on behalf of the City of Aspen.
Dated: (�
Michael C. Ireland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, February 28, 2011.
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n S. Koch, City Clerk
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OUIZNOS PRO CHALLENGE
CITY PARTICIPATION AGREEMENT
(STAGE FINISH: CITY OF ASPEN)
This Quiznos Pro Challenge City Participation greement (hereinafter
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referred to as the "Agreement ") is entered into as of this of /j. ,
2011, by and between Classic Bicycle Racing, LLC, a Delaware imited liability
company (hereinafter "CBR "), and the City of Aspen, a municipal corporation organized
under the laws of the State of Colorado (hereinafter "City" or "Host "). (CBR and City are
sometimes hereinafter collectively referred to as the "Parties" and individually as a
"Party".)
RECITALS:
WHEREAS, CBR owns the Quiznos Pro Challenge TM , a multi -stage cycling
race across the State of Colorado (the "Tour ");
WHEREAS, in connection with its ownership of the Tour, CBR has rights to
certain marks, logos, and other distinctive indicia of the Tour
WHEREAS, CBR has contracted Medalist Sports ( "Medalist ") to assist with
presenting, organizing and coordinating the Tour and developing its route and to utilize
the Tour Marks (as hereinafter offered) in connection therewith;
WHEREAS, City wishes to acquire the rights and benefits of hosting the Host
Stage (as that term is defined herein) and to undertake all of the obligations related to
such hosting, all under the terms and conditions of this Agreement; and
WHEREAS, the Parties wish to grant such rights to each other under the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the promises and covenants contained
herein and for other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the Parties hereby agree as follows:
1. Designation of Host and Location of Host Stage City. CBR licenses to
City (the "Host ") the right to host a Stage Finish (the "Host Stage ") for the Tour to be
held in August 2011. The 2011 Tour is scheduled to be held from August 22nd through
28th, 2011 and the Host Stage is scheduled to be held on August 24`", 2011. Host
accepts such license and agrees to exercise such license to host the Host Stage and to
undertake and perform the Host Obligations, as defined hereinafter and as set forth more
specifically in Section 4 of this Agreement. The Host Stage shall be held at a location in
City which shall be subject to the prior review and approval of the City, CBR and
Medalist Sports (the "Host Stage Location ").
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2. Term. The term of this Agreement shall begin as of the date first set forth
above (the "Effective Date ") and, unless earlier terminated in accordance with the terms
set forth herein, shall continue through and including October l4' ", 2011 (the "Term ").
3. CITY. City shall be subject to the following requirements:
a. General. At all times during the Term of this Agreement, City will not
discriminate in any way on the basis of age, sex, race, national origin, handicap, religion
or any other characteristic protected by law, in the conduct of its activities.
b. Structure. City will be led by one or more chairperson(s) who will be
primarily responsible to coordinate the performance of City's obligations under this
Agreement. Such chairperson(s) shall endeavor to ensure that the City's representatives
relating to Tour include individuals with experience in the following areas and whose
responsibilities could be as follows for the Host Stage in City (Cities have option to have
one individual handle more than one responsibility):
Sponsorship /Sales Director;
Operations Director
Finance Director;
Media & Public Relations Director;
Marketing Director
Medical /EMT Coordinator;
Technical Director;
Volunteer Director;
VIP /Hospitality Director;
School /Community Outreach
Ceremony Coordinator
Ancillary Events
/School Community Director
Health and Wellness Expo Liaison
4. Host Obligations. In consideration of the license granted by CBR to host
the Host Stage as set forth in Section 1 and the Host Benefits as set forth in Section 5 of
this Agreement and in addition to those other obligations set forth in this Agreement,
Host agrees to undertake and perform the following obligations (collectively, the "Host
Obligations "):
a. Implementation in Accordance with Planning Manual. Host shall provide
assistance in accordance with the 2011 Planning Manual for the Tour ( "Planning
Manual ") which has been furnished by CBR or Medalist to Host. To the extent that there
is a discrepancy between such Planning Manual and this Agreement, the provisions of the
Agreement will govern.
b. Publicity and Promotion. Host shall use reasonable efforts to publicize
and promote the Tour and the Host Stage through all local media.
c. Host Obligation Specifications. Provide the following only as they might
occur within the city limits of Host at the sole expense of Host in accordance with the
specifications set forth on Exhibit "A ". To the extent that there is a discrepancy between
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Exhibit A and either the Planning Manual or this Agreement, the provisions of the
Planning Manual or the Agreement will govern.:
(1) Auxiliary Space and Equipment for Tour Requirements: Those
types of areas, premises and equipment for the time period designated on Exhibit A.
Host will endeavor to locate facilities that are designated as being "adjacent to" the start
line within two blocks of the finish line.;
(2) Police Services: Local (City only) police services, but only within
the municipal boundaries, to work in coordination with the Colorado State Patrol and
Colorado Department of Transportation, as well as Tour representatives and City
volunteers, to provide for safe road closure, fixed -post positions, traffic and crowd
control and general public safety;
(3) Public Works and Road Services: Support police efforts to
accommodate road closure and course safety within the municipal boundaries;
(4) Permits: Waiver or payment of all City permit fees for operation
of the Tour in Host's locale and presentation of the Host Stage, including but not limited
to special event permits, parking permits, road closure and use permits, alcohol permits,
and concession sales permits. All required permits and licenses (including sales and use
tax licenses) must be obtained by CBR. Host will reasonably assist in applying for such
permits and licenses;
(5) EMS/EMT Services: Emergency medical services and emergency
medical technicians that will be available to serve the general public within the Host's
municipal boundaries at and on the day of the Host Stage in City, in a number and •
location to be determined by Tour representatives and by the Host's emergency services
representatives;
(6) Portable and /or Public Restrooms: Portable (e.g., port-o-johns) or
public restroom facilities within the Host's municipal boundaries on the day of the Host
Stage in a number and location to be determined by Tour representatives and Host's
emergency service representatives;
(7) Waste Management/Trash Removal/Recvcling: Waste
management, trash removal services and recycling within the Host's municipal
boundaries following conclusion of the Host Stage in City; and
(8) Volunteers: Recruitment of volunteers to assist local police and
Tour personnel with various functions to be designated by Tour representatives. Host
will be responsible for the selection and training of its volunteers. All volunteers will be
expected to perform their assigned duties and services in a competent manner, to the best
and full limit of their abilities at all times and in accordance with applicable law and the
rules and regulations established by Host, Medalist and CBR. All volunteers will be
required to sign the standard Volunteer Waiver and Release of Liability, Assumption of
Risk and Indemnity Agreement form for the Tour.
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(9) Parking: All parking requirements as described in the Planning
Manual and Exhibit "A ". Host will endeavor to locate facilities that are designated as
being "adjacent to" the finish line within two blocks of the finish line.
(10) Hotel Accommodations: Host shall provide the hotel rooms it
proposed in its proposal to CBR.
d. Tour Course Layout and Host Stage Location. Host will assist Medalist
and CBR in obtaining a design and layout of that portion of' the city limits of Host
through which the Tour course will run and provide access to such course without
imposition of any site fees.
e. Ambush -Free Zone. Host agrees to work with CBR and Medalist to create
a zone which consists of the Host Stage Location and a radius around the Host Stage
Location (the "Ambush -Free Zone ") that shall be free from temporary merchandise
vending, temporary advertising, and temporary signs and inflatable items where such
would compete directly with the Tour, its exclusive sponsors, or the sport of bicycling.
Nothing herein shall obligate Host to take any actions as it relates to permanent retail
establishments in the Ambush -Free Zone. The Parties recognize that third parties may
have First Amendment expressive rights that neither Host nor CBR may fully control or
prevent. The parameters of the Ambush -Free Zone should be within a 1 -block radius of
the Start/Finish area.
f. Merchandise Counterfeiting and Trademark Enforcement. Host shall
cooperate with CBR in preventing unauthorized use of the Tour Marks, admissions for
the Host Stage and other intellectual property and the sale or distribution of unlicensed
merchandise bearing the Tour Marks or any other reference to the Tour. Such
commitment shall apply and be in force during the Term of this Agreement, particularly
with respect to the period beginning August 1 prior to the Tour and continuing through
thirty (30) days following the Tour. Host will cooperate with CBR by permitting CBR
the right to pursue (at CBR's expense) legal enforcement measures to prevent
unauthorized use of the intellectual property regarding the Tour, including but not limited
to action against any seller or distributor of unlicensed merchandise. The decision to
pursue civil legal action or settle claims against an unauthorized user of the intellectual
property of CBR or against a seller or distributor of unlicensed merchandise will be at the
sole discretion of CBR.
g. Media and Marketing Plan Cooperation. Host will cooperate with the
media and marketing plan of CBR and its contractors, Medalist and designated public
relations entity, including accommodating television broadcasters, sponsors, and other
persons and entities to whom and to which CBR has granted and will grant rights.
h. Tour Sponsor Recognition. Host agrees that Tour sponsors shall have the
right to have recognition and visibility at the Host Stage Location and that CBR shall
determine placement of signage, recognition and visibility.
i. Ancillary Events. Before staging any ancillary events in connection with
the rights licensed by CBR as set forth in this Agreement, Host shall obtain the prior
written approval of CBR and Medalist for the type, location and anticipated size of the
event as well as sponsors.
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j. Sale of Merchandise. Host agrees that no merchandise bearing CBR -
licensed designs other than that designated by CBR will be sold on -site by the Host at the
Host Stage Location during the Tour without the prior written consent of CBR.
k. Reference to Name of Tour. Host shall refer to the Tour by the exact
name supplied by CBR from time -to -time, including any title or presenting sponsor
identification (should title or presenting sponsorship rights be granted), and shall include,
in all agreements that Host may enter into with third parties, a requirement that all third
parties utilize the exact name for the Tour supplied by CBR from time -to -time.
Notwithstanding anything to the contrary herein, if CBR changes the name or logo of the
Tour after Host has created Tour related identification, Host shall not be required to
recreate the Tour related identification.
I. Guidelines and Amendments. All services and other activities required to
be performed or provided by Host described in this Agreement will be performed or
provided in compliance with all reasonable and customary guidelines, standards, policies
and directives (collectively, "Guidelines ") developed and issued by Medalist and CBR
from time to time. Host recognizes that, while the contents of the Planning Manual
issued by Medalist represents the current position of Medalist and CBR on such matters,
such material may evolve as a result of technological and other changes, some of which
may be beyond the control of the Parties to this Agreement. Medalist and CBR reserves
the right to propose amendments to this Agreement to address such changes. Should
amendments to the Agreement or Guidelines result in adverse effects on the financial or
other obligations of Host, it will so inform CBR in writing and CBR will then negotiate
with Host in order to address such adverse effects in a mutually satisfactory manner.
m. Progress Reports. Except to the extent any such dates occur after the
execution of this Agreement, Host will submit to Medalist and CBR written progress
reports describing the status of its plans relating to the Host Stage and the Host Stage
Location and any related events, as well as copies of committee meeting minutes. Such
periodic progress reports shall include, but not be limited to, information on: (1) the local
sponsorships sold by Host and the status of efforts to present local sponsorship
opportunities to various prospects; and (2) other revenues that Host has generated and
expects to generate to pay the costs of discharging its obligations under this Agreement.
n. Promotion of Goodwill. Host agrees to conduct the activities
contemplated by this Agreement and the Planning Manual in such a way as to promote
the goodwill associated with the Tour, the Host Stage and the Host Stage Location, CBR,
Quiznos, Medalist, the State of Colorado, and the sponsors of the Tour, and will not at
any time disparage the good name, reputation, or image of the Tour, the Host Stage and
the Host Stage Location, CBR, Quiznos, Medalist, the State of Colorado, or the sponsors
of the Tour. This section shall not be interpreted to preclude any action or proceeding by
Host to enforce or defend its rights under the Agreement and shall not preclude Host or
its representatives from communicating information, which Host reasonably determines
to be factually accurate, pertaining to the Tour, its organizers or sponsors.
o. Credentials. CBR and its contractors shall be responsible for producing
credentials of all types for the Tour, including the Host Stage and Host Stage Location
and further including credentials for members of the media and operational personnel,
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which credentials shall be produced at the sole expense of CBR. CBR shall be
responsible for all decisions regarding to whom media, VIP and operational credentials
should be issued and shall establish all rules and regulations regarding media access to
the Tour, the Host Stage and the Host Stage Location.
p. Other Services. Host will provide those other services and undertake
those other obligations set forth in Exhibit "A" attached hereto and incorporated herein
by this reference.
5. Host Benefits. In consideration of the agreement by Host to undertake and
perform the Host Obligations, CBR agrees to provide the following recognition and
benefits to and for the benefit of Host (collectively referred to as the "Host Benefits "):
a. Recognition. Include recognition for Host in the official Tour Guide,
Tour web site, and in a press conference announcing that Host has agreed to serve as the
host for the Host Stage of the Tour;
b. Hospitality. Provide 40 credentials for and grant access to VIP hospitality
area that CBR intends to create;
c. Local Sponsorship. Provide local sponsorship opportunities for Host to
utilize, as a means of fundraising, in accordance with the terms of Section 7 of this
Agreement; and
d. Ancillary Events. Establish activities ancillary to the Host Stage within
City for the promotion of the State of Colorado and Host, subject to the prior review and
approval of CBR.
6. Financial.
a. Tour Revenues. Host acknowledges and agrees that CBR shall be entitled
to retain all revenues that it contracts for or generates attributable to the Tour, the Host
Stage and the Host Stage Location, except as may be specifically set forth in Sections 6c
and 7 of this Agreement.
b. Expenses. Host agrees that it shall be responsible for the entire cost and
expense of undertaking and performing those Host Obligations listed in Section 4(c) of
this document and in otherwise discharging its obligations under this Agreement.
c. Local Revenues.
(1) Parking. Host may offer parking for spectators for the Host Stage.
Host may retain all revenues from such parking and shall be responsible for all parking
expenses.
(2) Food and Beverage Concessions. Subject to certain VIP
hospitality to be offered exclusively by CBR, Host may offer food and beverage
concessions at the Host Stage - Location for purchase. Host may retain all revenues
derived from food and beverage concessions and shall be responsible for all expenses
attendant to such concessions.
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(3) Ancillary Events. Host may create, organize and present events
ancillary to the Host Stage, that such ancillary events are not in violation of the
provisions of this agreement, and Host may retain all revenues generated thereby. Host
shall be responsible for all expenses of creating, organizing and presenting such ancillary
events.
(4) Revenues derived from approved, Local Sponsors and
contributions to the Host or LOC.
(5) Merchandise. Host may create and sell merchandise bearing an
original logo created by Host that may reference the Host Stage, but which may not
incorporate any aspect of the Tour Marks, which logo and merchandise shall be approved
by CBR prior to production. Such approval shall not be unreasonably denied, conditioned
or delayed.
7. Local Sponsorships. Host acknowledges and agrees that CBR holds and
retains superior rights to grant sponsorships for the Tour, including for a title and
presenting sponsor as well as for sponsorships which will grant recognition for the entire
Tour (collectively, the "Tour Sponsors "). Notwithstanding the foregoing, CBR grants to
Host a license to solicit and secure local sponsors to support the activities of Host in
connection with the Host Stage, in accordance with the following terms and conditions:
a. Designation. Each local sponsor may be given the designation "Local
Stage Sponsor ", to the exclusion of any other sponsorship designation. A Local Stage
Sponsor may neither be referred to nor describe its involvement with the Host Stage by
any other designation, including but not limited to a sponsor of the Tour or a local
sponsor of the Tour.
b. Sponsorship Levels. Host may create one or more sponsorship levels for
Local Stage Sponsors, including a local presenting sponsor.
c. Local Sponsorship Benefits. Host shall be able to provide Local Stage
Sponsors with those local sponsorship benefits to be provided by CBR as is more
particularly set out in the Planning Manual, or which may be subsequently approved by
CBR. Host shall also be able to provide approved, Local Stage Sponsors with local
sponsorship benefits that are not provided by CBR
d. Local Sponsorship Guidelines. Sale of Local Stage Sponsor rights shall be
subject to the following guidelines.
(1) Reserved Tour Sponsor Categories. Host acknowledges that CBR
has retained the exclusive right to sell sponsorship rights in specific sponsorship
categories to Tour Sponsors ( "the Tour Sponsor Categories "). A listing of the current
Tour Sponsor Categories is set forth on Exhibit "B". Exhibit `B" may be updated by
CBR to add or delete sponsor categories provided that the addition of any new categories
shall not prohibit or exclude any existing local sponsor, or any local sponsor that has been
presented to CBR for approval. Unless specifically authorized by CBR in advance, Host
acknowledges that it may not sell local sponsorship rights to become a Local Stage
Sponsor to any company whose primary business is the manufacture, marketing or
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distribution of products or services in any of the Tour Sponsor Categories, such right
being reserved to CBR for Tour Sponsors.
(2) CBR Approval. CBR shall have the right of prior review and prior
approval over the identity of all proposed Local Stage Sponsors as well as recognition
and benefits to be provided to such Local Stage Sponsors, but solely for the purpose of
avoiding conflicts between Tour Sponsors and Local Stage Sponsors. Host and CBR shall
work collaboratively and proactively using their best efforts to avoid such conflicts
(3) Use of Tour Marks. Host has no authority to grant a sublicense to
and Local Stage Sponsors shall have no right to use the Tour Marks at any time.
(4) Recognition of Tour Sponsors. Host shall reasonably co- operate to
facilitate the recognition of Tour Sponsors by CBR.
(5) No Other Recognition. Local Stage Sponsors shall not receive any
endorsements from individual athletes participating in the Tour without the involved
athlete's prior permission, nor will local sponsors be guaranteed broadcast exposure of
any type.
8. Required Clauses. Host agrees that, in every written agreement of more
than $5000.00 that the City enters into regarding the fulfillment of Host obligations for
the Tour, the Host Stage or the ancillary events, the following required clauses will be
incorporated:
a. Commercial Identification Prohibition. Unless otherwise agreed in
writing by CBR, and except for approved, Local Stage Sponsor agreements, third parties
contracting with or providing goods or services to Host in connection with the Host Stage
or the Tour and /or any ancillary events related thereto must agree that neither they nor
their affiliates, agents, representatives, employees, suppliers or subcontractors shall
commercially exploit in any manner the nature of their transaction with goods and/or
services provided to Host for the Host Stage or the Tour, including without limitation :
(1) by referring to the transaction or the goods or services, Host, the Host Stage or the
Tour and /or events related thereto in any sales literature, advertisements, letters, client
lists, press releases, brochures or other written, audio or visual materials; and (2) by using
or allowing the use of the Tour Marks or any other service mark, trademark, copyright or
trade name now or which may hereafter be owned or licensed to signify the Tour in
connection with any service or product: or (3) by otherwise disclosing their affiliation
with Host or the Host Stage or the Tour and/or events related thereto for a commercial
purpose.
b. Clearances and Licenses. Third parties contracting with or providing
goods or services to Host in connection with the Host Stage or the Tour or events which
Host hosts or associates with during the Host Stage and/or events related thereto must
agree that they are responsible for providing all clearances, licenses, permissions and
consents (including without limitation all music clearances, synchronization rights, union
and guild fees and the like) as may be necessary for the presentation of all such events, in
any and all media and in any and all forms, whether now known or hereafter developed.
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c. Indemnification. Every party contracting with or providing goods or
services to Host in connection with the Host Stage or the Tour and/or events related
thereto must agree to indemnify, defend and hold harmless CBR, QUIZNOS, Medalist,
designated public relations entity, the State of Colorado, Union Cycliste Internationale
( "UCI "), and Tour Sponsors, and their respective parent, subsidiary, and affiliated
companies and each of their respective shareholders, members, trustees, partners,
officers, directors, agents, volunteers, employees, and other representatives (collectively,
the "CBR Parties ") from and against any claims, demands, damages, liabilities, lawsuits,
losses or expenses, including without limitation, interest, penalties, reasonable attorney's
fees, and all amounts paid in the investigation, defense or settlement of any or all of the
foregoing ( "Claim" or "Claims ") resulting from, arising out of or in connection with the
contracting parties' obligations to Host or the provision of goods or services to Host
d. Compliance with Law. Every party contracting with or providing goods
or services to Host in connection with the Host Stage or the Tour and/or events related
thereto must agree to comply with all laws, ordinances, orders, rules and regulations
(state, federal, municipal or promulgated by other agencies or bodies having or claiming
jurisdiction) applicable to the performance of such party's obligations to Host.
e. Exculpation Clause. Third parties contracting with or providing goods or
services to Host in connection with the Host Stage or the Tour and/or events related
thereto must agree to look solely to the assets of Host for any recourse, and not those of
CBR, Medalist or Quiznos.
c. Insurance. Depending on the risk factors of the goods or services
provided, as determined by the City, third parties contracting with or providing goods or
services to Host in connection with the Host Stage or the Tour and/or events related
thereto must agree to maintain, - at - no cost to CBR or the CBR Parties, appropriate
insurance coverage for Claims arising out of the contracting party's operations,
personnel, products and services. All such insurance provided by each contracting party
shall be endorsed to name Host, CBR, Medalist, and Quiznos as additional insured.
9. Licenses to Use Marks.
a. Tour Marks.
(1) Acknowledgements Regarding Tour Marks. CBR retains the
rights to sell title and presenting sponsorships in and to the Tour and, in such event, to
incorporate the name and /or marks of such title and/or presenting sponsor into the Tour
Marks or to develop new marks and logos for the Tour, acknowledging such title and/or
presenting sponsor's relationship with and support for the Tour. Host acknowledges the
foregoing and that the term "Tour Marks" as used herein may also refer to the Tour
Marks as such may be expanded to include the name and /or marks of a title and/or
presenting sponsor of the Tour. Upon being advised by CBR and Medalist of a change to
the Tour Marks in the event of a sale of title or presenting sponsorships, Host agrees to
utilize the updated Tour Marks with the name and/or marks of a title and/or presenting
sponsor, all as designated by CBR for any future related materials. Reclaiming materials
made obsolete by such changes, and reprinting or redistributing materials with such new
sponsorship information shall be at CBR's sole expense.
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(2) License to Use Tour Marks. CBR hereby grants to Host a limited
non - exclusive license to use the name, logos, trademarks, service marks, designs, product
and service identification, artwork and other symbols and distinctive indicia associated
with the Tour and identified in Exhibit "C" (the "Tour Marks ") during the Term of this
Agreement, in accordance with the terms of this Agreement and the Tour Marks
Guidelines set forth in Section 9a(6) hereinbelow, solely at or in connecting with the site
of the Host Stage, including the Host Stage Location.. The foregoing license is subject to
the right of CBR to review and approve in advance all such uses of the Tour Marks. Host
shall have no right to assign, license or "pass- through" rights to use the Tour Marks to
any other person or entity. In exercising this license to use the Tour Marks and in each
and every reference to the Tour, Host shall utilize the Tour Marks and the exact name of
the Tour designated by CBR, which shall include the name of any title and/or presenting
sponsor.
(3) License Does Not Extend to Merchandise. Host shall not
manufacture or sell, or license the manufacture or sale of, any promotional or other
merchandise which bears the Tour Marks after July 1, 2012.
(4) Acknowledgements Regarding Goodwill. Host acknowledges the
great value of goodwill associated with the Tour Marks. Host acknowledges that the
goodwill attached to the Tour Marks belongs exclusively to CBR. Host agrees that any
and all goodwill and other rights that may be acquired by the use of the Tour Marks by
Host shall inure to the benefit of CBR.
(5) No Disparagement by Host. Host will not, at any time, disparage,
dilute or adversely affect the validity of the Tour Marks or take any action, or otherwise
suffer to be done any act or thing which may at any time, in any way materially adversely
affect any rights of' CBR in or to the Tour Marks, or any registrations thereof or which,
directly or indirectly, may materially reduce the value of the Tour Marks or detract from
their reputation. This section shall not be interpreted to preclude any action or
proceeding by Host to enforce or defend its rights under this Agreement and shall not
preclude Host or its representatives from communicating information, which Host
reasonably determines to be factually accurate, pertaining to the Tour, its organizers or
sponsors.
(6) Tour Marks Guidelines. Any use of the Tour Marks during the
Term shall be further subject to the following conditions and limitations (collectively, the
"Tour Marks Guidelines "):
(a) The Tour Marks shall be used in accordance with the
Quiznos Pro Challenge Graphics Standards Manual, published by CBR from time -to-
time;
(b) Host shall not use the Tour Marks in any manner that is
misleading or that reflects unfavorably upon the reputation of the Tour, CBR, QUIZNOS,
Medalist, the State of Colorado or any competitor in the Tour or in any manner that is
contrary to applicable laws and regulations, including, without limitation, those relating
to truth in advertising and fair trade practices;
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(c) Host shall not (i) permit any tradename or mark of a third
party to appear in conjunction with Host's materials that display any of the Tour Marks in
a manner that could be reasonably interpreted as a promotion or endorsement of a third
party's products or services; or (ii) participate with any third party in a promotion using
the Tour Marks or permit the Tour Marks to be used in a manner that could be reasonably
interpreted as a promotion or endorsement of a third party's products or services;
(d) Host shall not use the Tour Marks without the appropriate
trademark or copyright designation as required by CBR;
(e) Host acknowledges that its selection as a partner is not
based upon the results of any quality comparison between Host and any other
municipality within the State of Colorado and agrees that it shall not represent otherwise
to any third party .
(f) Host shall not, after the expiration or termination of this
Agreement, use any slogan or graphic device that was developed for use in conjunction
with the Tour Marks if such slogan or graphic device implies an ongoing association with
the Tour.
b. Host Marks.
(1) License to Use Host Marks. Host hereby grants to CBR a limited
non - exclusive license to use the name, logos, trademarks, service marks, designs, product
and service identification, artwork and other symbols and distinctive indicia of Host and
identified in Exhibit "D" attached hereto (the "Host Marks ") during the Term of this
Agreement in accordance with the terms of this Agreement and the Host Marks
guidelines in accordance with Section 9b(2) of this Agreement, specifically to provide
Host with the Host Benefits. The foregoing license is subject to the right of Host to
review and approve in advance all such uses of the Host Marks. CBR shall have no right
to assign, license or "pass- through" rights to use the Host Marks to any party, except as
necessary to fulfill its obligations set forth in this Agreement. The Parties acknowledge
and agree that, upon the expiration or termination of the Term of the Agreement, CBR
shall discontinue any use of the Host Marks and CBR may continue to use the Tour
Marks.
(2) Host Marks Guidelines. CBR shall utilize the Host Marks
pursuant to the license granted herein in accordance with those graphics standards
supplied by Host to CBR in writing from time -to -time.
10. Trademarks.
a. Tour Marks.
(I) The Tour Marks, specifically including but not limited to the
words "Quiznos Pro Challenge ", are and shall remain the property of CBR and CBR
shall take all steps reasonably necessary to protect such Tour Marks, which steps may
include registrations through the United States Patent and Trademark Office ( "PTO ") and
foreign registrations, as it deems desirable and through reasonable prosecution of
infringements.
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(2) The rights licensed by CBR to Host with respect to use of the Tour
Marks shall convey license rights only and shall convey no rights of ownership in or to
the Tour Marks.
(3) CBR represents and warrants that it has the right to use the Tour
Marks, specifically including but not limited to the words "Quiznos Pro Challenge ", and
to license the use of the Tour Marks to Host as set forth in Section 9a of this Agreement.
(4) CBR (as well as Quiznos) shall own all right, title and interest in
and to the Tour Marks. CBR shall have the right to take all steps reasonable necessary to
protect the Tour Marks through PTO registrations and such foreign registrations as it
deems desirable and through reasonable prosecution of infringements. CBR shall be the
record owner of all such registrations for the Tour Marks. Host shall cooperate as
reasonably necessary to assist CBR in obtaining such trademark protection and in
prosecuting any alleged infringements of the Tour Marks except that Host shall not be
obligated to expend any funds in connection therewith.
b. Host Marks.
(1) The Host Marks are and shall remain the property of Host and Host
shall take all steps reasonably necessary to protect such Host Marks through the PTO and
foreign registrations as it deems desirable and through reasonable prosecution of
infringements.
(2) Host represents and warrants that it has the right to use the Host
Marks and to license the use of the Host Marks to CBR for use in connection with the
Tour and to provide the Host Benefits.
(3) The rights granted to CBR by Host with respect to use of the Host
Marks shall convey license rights only and shall convey no rights of ownership in or to
the Host Marks.
11. Merchandising. The Parties acknowledge and agree that CBR shall be the
sole licensor of all Tour - related merchandise bearing the Tour Marks. Host shall have the
right to purchase Tour - Related Merchandise from the licensee for such Tour - Related
Merchandise at amount to be agreed upon by and among CBR, Host and such licensee an
amount that will yield a profit- sharing ratio of &5% to host and 25% to CBR, but shall
have no right or license to manufacture or distribute Tour - Related Merchandise or any
other merchandise bearing the Tour Marks.
12. Approvals.
a. Except for the use of the Tour Mark in the normal course of transacting
business Host agrees to submit to CBR for its prior written approval all proposed uses of
the Tour Marks that Host wishes to make pursuant to the limited license granted to Host
in this Agreement, including, if required by CBR, submission of representative samples
of advertising, promotional and other materials to be used in connection with Host's
products and services as well as any premiums that Host may wish to use containing the
Tour Marks. If Host's request is not responded to by CBR within five (5) business days
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after CBR has received the material from Host, Host shall provide written notification to
CBR of such fact and CBR agrees that any such proposed materials shall be deemed
approved if Host's request is not responded to within five (5) business days following
receipt of such written notice.
b. If requested, Host shall supply to CBR for administrative and archival
purposes at CBR's expense two (2) originals of all advertising, promotional or other
materials in connection with the products and services to be used by Host in connection
with the licenses granted under this Agreement.
c. All requests for approval, including representative samples of all
advertising, promotional and other materials shall be sent to CBR at the address for
notices under this Agreement to the attention of the individual designated to receive
notices for CBR.
13. Broadcast and Media Rights; Other Commercial Exploitation of Tour.
As between Host and CBR, CBR controls all rights to distribute, promote, market and
otherwise commercially exploit the Tour and the Host Stage by means of any and all
audio, visual and audiovisual media of all types, including but not limited to television,
radio, Internet and print, and wireless devices as well as with respect to sponsorship,
licensing, hospitality, merchandising, and other marketing rights with respect to the Tour
( "Commercial Exploitation Rights ") and that Host will not purport to grant or license any
such rights to a third party without the prior express written approval of CBR. This
provision shall not prohibit or preclude the City from promoting itself, and including in
such promotion the role that it played as a Host City.
14. Ownership and Protection of Intellectual Property.
a. Ownership of Intellectual Property.
(1) Subject to the terms of Section 10 of this Agreement, each Party
shall own all right, title and interest in and to all intellectual property created by or on
behalf of such Party in connection with this Agreement, including without limitation, all
logos, names, ideas, concepts, creative materials, promotional materials, advertising,
graphics, including all copyrights and proprietary rights therein, and any inventions and
discoveries first conceived or developed, whether or not protected by patent, trade secret
or copyright, subject to the ownership rights of the other Party to such other Party's
trademarks to the extent that such are incorporated into such intellectual property (such
property being collectively referred to as the "Intellectual Property"). (That Intellectual
Property which has been created by or on behalf of Host is referred to as the "Host
Intellectual Property" and that Intellectual Property which has been created on behalf of
CBR is referred to as the "CBR Intellectual Property")
(2) Notwithstanding the foregoing, the Parties acknowledge and agree
that the Tour Marks and the distinctive colors, concepts, indicia and look displayed by
CBR throughout the Tour and by CBR in its regular business operations and materials
shall constitute CBR Intellectual Property and therefore be owned by CBR. Host
expressly acknowledges that the Parties have agreed that all copyrightable aspects of the
CBR Intellectual Property are to be considered "works made for hire" within the meaning
of the Copyright Act of 1976, as amended (the "Act "), of which CBR is to be the
13
"author" within the meaning of such Act. All such copyrightable works, as well as all
copies of such works in whatever medium fixed or embodied, shall be owned exclusively
by CBR as its creation and Host expressly disclaims any interest in any of them. Host
expressly acknowledges that it is not a joint author and that the CBR Intellectual Property
and all other work created by CBR hereunder are not joint works under the Act.
(3) In the event (and to the extent) that any CBR Intellectual Property
or any part or element thereof is found as a matter of law not to be "work made for hire"
within the meaning of the Act, Host hereby conveys and assigns to CBR the sole and
exclusive right, title and interest in the ownership to all such CBR Intellectual Property,
and all copies of it, without further consideration, and agrees to assist CBR's efforts to
register, and from time to time to enforce, all patents, copyrights, and other rights and
protections relating to the CBR Intellectual Property in any and all countries. To that
end, Host agrees to execute and deliver all documents requested by CBR to evidence any
assignment as well as otherwise in connection therewith.
(4) Host understands that the term "moral rights" means any rights of
paternity and integrity, including any right to claim authorship of a copyrightable work,
to object to a modification of such copyrightable work and any similar right existing
under the judicial or statutory law of any country or under any treaty, regardless of
whether or not such right is referred to as a "moral right ", including, without limitation,
the rights of attribution and integrity in works of visual art pursuant to 17 U.S.C. § 106A.
Host irrevocably waives and agrees never to assert any moral rights Host may have in the
CBR Intellectual Property, even after any termination or expiration of this Agreement.
(5) The Parties agree to affix appropriate copyright and trademark
notices as reasonably designated by the other, together with their own notices as
appropriate, on the CBR Intellectual Property to identify CBR as the owner of the CBR
Intellectual Property and Host as the owner of the Host Marks.
b. Protection of Intellectual Property.
(1) Host acknowledges that it has no right, title or interest in the Tour
Marks and that nothing in this Agreement shall be construed as an assignment to Host of
any right, title or interest in the Tour Marks, except the license to use of the Tour Marks
as provided in this Agreement.
(2) Host agrees that CBR shall have the sole right to determine
whether any action should be taken to terminate unauthorized use of the Tour Marks or to
settle any proceeding brought by CBR to terminate such unauthorized use. All proceeds
from any enforcement action shall belong exclusively to CBR.
(3) CBR and Host agree to assist each other in the defense of any
proceeding or claim with respect to the use of any Tour Marks by Host in accordance
with the terms of this Agreement. CBR agrees to defend, at its expense, any such
proceeding or claim on behalf of Host. Host shall be permitted to retain, at its expense,
separate counsel in such defense.
15. Reservation of Rights. CBR reserves all Tights not expressly licensed to
Host under this Agreement. Any and all rights of CBR, including those in and to the
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Tour and the Tour Marks, not expressly granted to Host under this Agreement are
reserved to CBR and may be exercised, marketed, exploited or disposed of by CBR
concurrently with the Term of this Agreement in such form and manner as CBR wishes.
Host acknowledges and agrees that this Agreement does not convey or grant to it any
rights of ownership in or management of the Tour, CBR or the Tour Marks.
16. Representations and Warranties.
a. By CBR. CBR represents and warrants that:
(1) It has the full right, power, legal authority and financial capability
to enter into and fully perform this Agreement in accordance with its terms without
violating the rights of any other person, that there are no other agreements or
commitments, oral or written, that will interfere with its full performance hereunder and
that it will fully comply with all federal, state and local laws, rules and regulations
applicable to the day -to -day conduct of its business and to its obligations and
performances hereunder;
(2) CBR owns and has authority to grant to Host a license to use the
Tour Marks;
(3) The Tour Marks do not infringe the trademarks or other proprietary
rights of any other person or entity;
(4) Any materials created under the control, direction or supervision of
CBR shall be original, shall be owned by CBR and shall not infringe any third party
copyright or trademark; and
(5) It will comply with all applicable laws, regulations and ordinances
pertaining to the promotion and conduct of the Tour.
b. By Host. Host represents and warrants that:
(1) It has the full right, power and legal authority to enter into and
fully perform this Agreement in accordance with its terms without violating the rights of
any other person, that there are no other agreements or commitments, oral or written, that
will interfere with its full performance hereunder and that it will fully comply with all
federal, state and local laws, rules and regulations applicable to the day -to -day conduct of
its business and to its obligations and performances hereunder;
(2) Host owns or has the authority to grant to CBR a license to use the
Host Marks;
(3) The Host Marks do not infringe the trademarks or other proprietary
rights of any other person or entity;
(4) Any materials created under the control, direction or supervision of
Host shall be original, shall be owned by Host and shall not infringe any third party
copyright or trademark; and
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17. Indemnification.
a. By CBR. To the extent permitted by law, CBR shall indemnify, defend and
hold harmless Host, its affiliates, and their respective officers, directors, partners,
shareholders, members, agents, employees, and other representatives
(collectively, the "Host Indemnified Parties "), from and against any and all
claims, demands, damages, liabilities, lawsuits, losses or expenses, including
without limitation, interest, penalties, reasonable attorney's fees, and all amounts
paid in the investigation, defense or settlement of the foregoing (the "Claim" or
"Claims ") arising out of, based on or in any other manner related to:
(1) the breach of any representation, warranty, material covenant or
obligation of CBR under this Agreement;
(2) any negligent act, negligent omission or willful conduct by CBR; and
(3) any Claim that the Tour Marks or other CBR Intellectual Property
infringe upon any patent, copyright, trademark, trade secret or any other right of
a third party.
b. By Host. To the extent permitted by law, Host shall indemnify, defend
and hold harmless CBR, Quiznos, Medalist, the State of Colorado, USA Cycling,
UCI, and Tour Sponsors, and their respective parent, subsidiary and affiliated
companies, and each of their respective officers, directors, partners, trustees,
shareholders, members, agents, employees, volunteers and other representatives
(collectively, the "CBR Indemnified Parties "), from and against any and all
Claims arising out of, based on or in any other manner related to:
(I) the breach of any representation, warranty, material covenant or
obligation of Host under this Agreement;
(2) any negligent act, omission or willful conduct by Host;
(3) the products, services, and other deliverables provided by Host and its
employees, volunteers, agents, representatives and contractors in carrying out its
obligations under this Agreement; provided, however, that Host shall not be
responsible for indemnification resulting from road conditions of State of
Colorado maintained or Host maintained highways and roads;
(4) the exercise by Host of its rights and the Host Benefits under this
Agreement, including but not limited to any parking, food and beverage
concessions, ancillary events or local sponsorships organized by Host;
(5) advertiser's liability or other claim arising out of or in connection with
the use by Host of the Tour Marks, including but not limited to any claim based
upon an allegation of sponsorship or guaranty by CBR of City;
(6) a claim that the Host Marks infringe upon any patent, copyright,
trademark, trade secret or any other right of a third party; and
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(7) the failure or alleged failure by Host to comply with all Laws relating
to labor relations, fair employment practices, safety and similar rules and
regulations, including without limitation, all Equal Employment Opportunity
(EEO) provisions as required by law, regulation or executive order.
Notwithstanding the foregoing, this indemnification shall not extend to or
include any claims, damages, suit or attorneys fees arising out of any claim or
allegation that any of the routes, roads, trails o other parts of the Tour course
were negligently designed or selected.
c. Procedure Regarding Indemnification. Each Party shall give the other Party
prompt written notice of any Claim coming within the scope of any indemnity
expressly set forth in this Agreement. Upon written request of any indemnitee,
the indemnitor will assume defense of any such Claim, action or proceeding. The
indemnitee shall cooperate with the indemnitor in the investigation, defense
and/or settlement of any such Claim. The indemnification obligations in this
Section 17 of this Agreement shall survive the expiration and/or termination of
this Agreement.
18. Termination.
a. Default. Either Party may terminate this Agreement, at its option, upon
written notice to the other Party, upon the occurrence of one or more of the following
events (the "Termination Events "):
(1) Material breach of any material covenant, agreement,
representation, warranty, term or condition of this Agreement, if such breach has not been
waived in writing and if such breach is not cured or remedied by the breaching Party to
the other Party's reasonable satisfaction within thirty (30) days after delivery of written
notice specifying the nature of the breach, or if the Parties agree that the breach is not
capable of being cured or remedied within said thirty (30) days, then within the time
period mutually agreed to by the Parties in a jointly approved plan of corrective action
developed within thirty (30) days after the delivery of written notice to the breaching
Party specifying the nature of the breach;
(2) A Party becomes insolvent, fails to pay its debts or perform its
obligations in the ordinary course of its business as they become due, admits in writing its
insolvency or instability to pay its debts or perform its obligations as they become due, or
becomes the subject of any voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership or general assignment for the benefit of creditors,
provided that, if such condition is assumed involuntarily, it has not been dismissed with
prejudice within sixty (60) days after its commencement; or
(3) A Party is the subject of public controversy of such a magnitude
that such Party's association with the other Party pursuant to this Agreement creates a
negative association for such other Party, in the reasonable judgment of such other Party,
in which case the other Party may terminate this Agreement without cost or penalty.
(4) By CBR, in the event that, in its reasonable discretion, the Tour as
a whole, or the inclusion of the Host stage in the Tour, is no longer economically
feasible.
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(5) By Host, in the event that it determines, in its sole discretion, that it
does not desire to continue participation in the Tour
b. Effect of Termination. Should either Party terminate this Agreement as a
result of a Termination Event set forth in subsection a above, then upon termination of
this Agreement, Host's Host Benefits shall terminate and Host shall cease using the Tour
Marks. In addition, should such termination result from termination notice given by Host
to CBR from occurrence of a Termination Event of the type set forth in Sections 18a(1)
or (2) above, CBR shall repay to Host all amounts actually expended by Host in
performing its obligations hereunder; provided, however that in no event shall CBR be
liable for amounts in excess of $10,000. Should termination result from termination
notice given by CBR to Host from occurrence of a Termination Event of the type set
forth in Sections 18a(1) or (3) above, Host shall repay to CBR all amounts expended by
CBR in licensing to Host the right to host the Host Stage, to provide the Host Benefits,
and to relocate the site for the Host Stage; provided, however that in no event shall Host
be liable to CBR for amounts in excess of $10,000.
19. Independent Contractors. CBR and Host are independent contractors with
respect to each other and nothing herein shall be deemed or construed to create any
partnership, joint venture or agency relationship between them. Host is simply serving as
host to the Host Stage of the Tour under the license of rights granted herein and is
agreeing herein to provide certain services and to undertake certain obligations in order to
acquire certain marketing rights and benefits. Neither Party shall have any authority to
contract or bind the other Party in any manner and shall not represent itself as the agent
of the other.
20. Insurance.
a. CBR Provided Insurance. Throughout the Term of this Agreement
(including any extensions thereof), CBR (or Medalist) shall provide and maintain, at
CBR's expense, the following insurance policies which shall protect the CBR Parties on a
primary basis from any and all Claims arising out of or in connection with respect to the
staging of each Tour and the obligations of CBR pursuant to this Agreement:
(1) General Liability insurance of with limits not less than $1,000,000
each occurrence and $2,000,000 in the aggregate;
(2) Auto Liability insurance covering Claims arising out of the use,
operation or maintenance of any vehicle (whether owned, non - owned, leased, hired or
borrowed) by CBR, with limits not less than $1,000,000 each accident combined single
limit for bodily injury and property damage
(3) Workers' Compensation insurance covering CBR's employees
with limits as required by statutory law, including Employer's Liability coverage with
limits not less than $500,000 each accident;
(4) Umbrella and /or Excess Liability insurance with limits not less
than $4,000,000 each occurrence shall apply in excess of and on a following form basis
to the primary Commercial General Liability, Automobile Liability and Employer's
Liability policies; and
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(5) Any other insurance necessary and appropriate for the staging of
the Tour as determined by CBR and Medalist.
All such insurance to be maintained by CBR shall be (1) primary with respect to Claims
arising out of the CBR's staging of each Tour and the obligations of CBR pursuant to this
Agreement; and (2) shall be written by insurance companies with ratings of "A" or better
in the latest edition of the A.M. Best key rating guide. All such coverage may not be
cancelled unless CBR provides thirty (30) days prior written notice to host.
Policies (1), (2) and (4) above shall be endorsed to name Host as Additional Insureds
with respect to the negligent acts or omissions of CBR and Medalist.
At least 15 days prior to each Tour, CBR shall provide Host with a certificate of
insurance certifying that the appropriate insurance is in place and that the policies have
been properly endorsed to meet the insurance requirements as set forth above.
b. CBR Optional Insurance. CBR may, but shall not be obligated to, secure
Event Cancellation insurance providing reimbursement of insured losses if any Tour does
not take place, in whole or in part, due to any Act of God or other event beyond the
control of the CBR and those other circumstances set forth in Sections 21 and 22 of this
Agreement. Covered perils may include adverse weather conditions; natural disasters;
outbreak of disease; damage to or loss of venue; unavoidable transportation delays; non-
appearance of key participants due to death, injury or illness; situations which pose
significant danger to the public or Tour participants; and other causes beyond CBR's
control which are not specifically excluded under the policy. Notable exclusions will
include war, civil commotion, riot, martial law, seizure, or radioactive/ nuclear
contamination; poor event planning and management; fraud, misrepresentation or
concealment. All event cancellation proceeds shall constitute the property of CBR.
CBR's obligation to secure Event Cancellation insurance is limited to the extent such
coverage is available at a reasonable cost in the sole discretion of CBR.
c. Host Provided Insurance. Throughout the Term of this Agreement
(including any extensions thereof), Host shall provide and maintain, at its expense, the
following insurance policies (or in the event Host is self- insured, a program of
insurance), which shall protect Host, CBR, Medalist, and the CBR Parties on a primary
basis from any and all Claims arising out of or in connection with the Host's activities,
operations, representations and warranties, rights, obligations and duties of Host pursuant
to this Agreement:
(I) General Liability insurance with limits not less than $1,000,000
each occurrence and $2,000,000 in the aggregate. Such insurance shall include coverage
for contractual liability, products - completed operations, personal and advertising injury,
premises damage legal liability, liquor liability (if applicable), property damage and
bodily injury liability (including death);
(2) Auto Liability & Physical Damage insurance covering Claims
arising out of the use, operation or maintenance of any vehicle (whether owned, non -
owned, leased, hired or borrowed) by Host, with limits not less than $1,000,000 each
accident combined single limit for bodily injury and property damage;
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4
(3) Workers' Compensation insurance covering Host's employees
with limits as required by statutory law, including Employer's Liability coverage with
limits not less than $1,000,000 each accident, $1,000,000 disease -each employee and
$1,000,000 disease- policy limit;
(4) Umbrella and/or Excess Liability insurance with limits not less
than $3,000,000 each occurrence shall apply in excess of and on a following form basis
to the primary Commercial General Liability, Automobile Liability and Employer's
Liability policies Policy. Such umbrella and/or excess liability insurance shall not be
required if the primary policies of insurance afford limits of not less than $5,000,000 each
occurrence.
(5) Any other insurance necessary and appropriate for covering the
Host's activities, operations, representations and warranties, rights, obligations and duties
pursuant to this Agreement.
All such insurance to be maintained by Host shall be (1) primary to and non - contributory
with any insurance maintained by CBR and the CBR Parties; and (2) shall be written by
insurance companies with ratings of "A" or better in the latest edition of the A.M. Best
key rating guide Such coverage may not be cancelled unless Host provides thirty (30)
days prior written notice thereof to CBR. Host's participation in a public entity self
insurance pool holding a certificate of authority from the Colorado Insurance
Commissioner shall suffice in lieu of insurance meeting the rating requirement of this
paragraph.
Policies (1), (2) and (4) above shall be endorsed to name CBR and the CBR Indemnified
Parties (as defined in Section 17b of this Agreement) as Additional Insureds with respect
to the negligent acts or omissions of Host.
At least 15 days prior to each Tour, Host shall provide CBR with a certificate of
insurance certifying that the appropriate insurance is in place and that the policies have
been properly endorsed to meet the insurance requirements as set forth above.
All insurance coverage required by this section may not be cancelled unless Host
provides thirty (30) days prior written notice to CBR.
21. Force Majeure. In the event that the Tour does not take place or is
rescheduled, in whole or in part, due to any Act of God or other event not reasonably
foreseeable by the Parties or beyond the control of the Parties which is generally
considered an event of force majeure ( "Force Majeure "), including without limitation,
weather, fire, flood, act of public enemy or terrorism, strike or labor dispute,
govemmental action or directive or local, regional or national day of mourning, whether
such event of Force Majeure has occurred in a community through which the Tour course
shall run or not, then CBR may discontinue provision of the Host Benefits to and for the
benefit of Host and Host need not continue to perform those Host Obligations which
remain unperformed as of the date of cancellation or postponement. CBR shall determine
whether the Tour is to be cancelled in whole or in part or postponed due to a Force
Majeure event. Should the Tour be cancelled in whole or in part due to an event of Force
Majeure, CBR shall have no further obligation, financial or otherwise, to Host and Host
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shall have no further obligation to CBR in connection with the Tour. In the event that the
Tour is postponed in whole or in part due to an event of Force Majeure and CBR intends
to reschedule the Tour, CBR and Host shall discuss in good faith the terms under which
such rescheduling should occur. In the event of such cancellation or postponement due to
a Force Majeure event, the obligations of CBR and the rights of Host shall be as
specifically set forth in this Section 21 as the sole and exclusive remedy by virtue of such
cancellation or postponement.
22. Cancellation or Postponement of Tour for Reason Other than Force
Maieure. CBR represents and warrants that it will produce and operate the Tour and
Host Stage as generally represented to the public, the Host, and as described in this
Agreement and the Planning Manual. While deviations in the general scope of the Tour
and/or Host Stage may occur, cancellation or postponement of the Tour shall only occur
in accordance with the provisions of paragraph 18 and 21 of this Agreement.
23. Public Announcement. The Parties agree to make a joint public
announcement and press release upon in the near future following execution of this
Agreement. The Parties agree that the form and substance of such announcement and
press release shall be mutually agreed between the Parties.
24. Police Power Reserved. This Agreement embodies the intent of the parties
concerning rights and obligations of the Parties pertaining to production of the Tour and
Host Stage only. The rights granted herein to CBR shall not waive, limit or otherwise
restrict the right of the City to exercise its police power with respect to its land use
regulatory powers, control of its property, control of its rights -of -way, enforce its laws
and ordinances, or otherwise. CBR shall comply with all laws and ordinances of the City
and shall pay, collect and remit all municipal sales and use taxes as may be required by
law. This Agreement shall not be construed as an approval by the City of the Tour for
the purpose of any regulatory approvals that are otherwise required.
25. General.
a. Assignment. Host may not assign any rights or obligations under this
Agreement or this Agreement itself, in whole or in part, without the prior express written
consent of CBR. Notwithstanding the foregoing, Host may retain the services of
subcontractors to discharge certain obligations under this Agreement.
b. Notices. Except as expressly provided to the contrary herein, any notice,
consent, report, documents or other item to be given, delivered, furnished or received
hereunder shall be deemed given, delivered, furnished and received when given in
writing and personally delivered to and received by an officer or designated employee of
the applicable Party, to seventy -two (72) hours after the same is deposited in the United
States mail, postage prepaid, registered or certified first class mail, return receipt
requested addressed as set forth below, or to such other address as either of the parties
shall advise the other in writing or sent by confirmed facsimile transmission:
If to Host:
City of Aspen
130 S. Galena Street
21
Y
Aspen, Colorado 81611
Attn.: Steve Barwick, City Manager
If to CBR:
Classic Bicycle Racing LLC
1515 Arapahoe Street
Tower 1, 10 Floor
Denver, CO 80202
Attn; John M. Moore
c. Entire Agreement; Modifications. This Agreement constitutes the entire
agreement of the Parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements and understandings between the Parties with respect to the subject
matter hereof. This Agreement may not be modified, amended or supplemented or
otherwise changed, except by a written document executed by an authorized
representative of each of the Parties hereto.
d. No Waiver of Rights and Breaches. No failure or delay of any Party in the
exercise of any right given to such Party hereunder shall constitute a waiver thereof, nor
shall any single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. The waiver by a Party of any default of any other Party
hereunder shall not be deemed to be a waiver of any such subsequent default or other
default of any Party.
e. Captions. Section headings used in this Agreement are for convenience of
reference only and shall not affect the construction of any provision of this Agreement.
f Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and authorized assigns.
g. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State of Colorado and for all purposes governed by and construed in
accordance with the laws of the State of Colorado.
h. Construction of Agreement. Each Party acknowledges that it has participated
in the negotiation of this Agreement and that no provision of this Agreement shall be
construed against or interpreted to the disadvantage of any Party hereto by any court or
other governmental or judicial authority by reason of such Party having or deemed to
have structured, dictated or drafted such provision.
i. Relationship of Parties. This Agreement shall neither be deemed nor
construed to create a joint venture or partnership between CBR and Host, nor shall this
Agreement be deemed or construed as making either Party the agent or representative of
the other Party. Neither Party shall have the authority to bind the other Party in any
respect.
j. Survival. Those covenants, acknowledgments, representations, agreements
and obligations contained in Sections 9a(4), 9a(5), 9a(6)(f), 13 -17, 18b, 20 -22, and 24 -25
of this Agreement shall survive the expiration and /or termination of this Agreement.
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k. Compliance with Law, Rules and Regulations. The Parties agree to comply
with all federal, state and local laws, ordinances, orders, rules and regulations applicable
to the performance of their respective obligations under this Agreement, both now
existing and as such may hereinafter be adopted.
I. Time of Essence. The Parties agree that time is of the essence in performing
obligations under this Agreement.
m. Exhibits. The documents attached hereto as exhibits are incorporated by
reference herein and made a part of this Agreement as if fully set forth herein.
n. Severability. The determination that any provision of' this Agreement is
invalid or unenforceable shall not invalidate this Agreement, all of such provisions being
inserted conditionally upon their being considered legally valid, and this Agreement shall
be construed and performed in all respects as if such invalid or unenforceable
provision(s) were omitted.
o. Exclusive Jurisdiction. The Parties agree that venue of any judicial action in
connection with this Agreement shall lie exclusively in the state courts located in Pitkin
County, Colorado, or the federal courts located in Denver, Colorado. The Parties accept,
generally and unconditionally, the exclusive jurisdiction of such courts and any related
appellate court and irrevocably agree to be bound by any judgment rendered thereby in
connection with this Agreement. The Parties further agree that they irrevocably waive
any objection they may now have or hereafter have as to the jurisdiction or venue of any
such suit, action or proceeding brought in such court or that such court is an inconvenient
forum. The Parties acknowledge that they possesses the requisite minimum contacts with
the State of Colorado sufficient to establish jurisdiction over the Parties in State and
Federal Courts in Colorado.
p. Further Assurances. The Parties agree to execute and deliver, or cause to be
executed and delivered, such instruments and documents as either Party may reasonably
request or require to carry out more effectively the purpose and intent of this Agreement.
q. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which taken together shall constitute
one and the same agreement.
r. No Third Party Beneficiaries. It is expressly understood that there are no third
party beneficiaries to this Agreement.
23
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement on their respective behalf, all as of the day and
year first above written.
CBR:
Classi ,, c a Racing, LL C`` A.4
III
Name: _ s p
t`�`. � . P -
,
Title: ! w Y
HOST
/I./ /J
CITY Lv /,}r".,
By: Name: 574' vt der- r -... c/4_
Title: t` ;y /'?a , r
24
EXHIBITS
A Host City 2011 Request for Proposal
B Sponsorship
C Challenge Marks
D Host Marks
EXHIBIT A
HOST CITY REQUIREMENTS -
STAGE FINISH
As a partner of the Quiznos Pro Challenge, a Host City is REQUIRED to provide the following support
and assume all related costs as part of their bid submission.
CITY SERVICES - ALL STAGES
POLICE SERVICES - Local (City and /or County) police services and related costs are the responsibility of
the host venue. In coordination with Colorado State Patrol, Colorado Department of Transportation, as
well as the Tours motor and road marshals and in conjunction with the LOC volunteer program, local
police provide for a safe road closure, which may include fixed -post positions, traffic control, crowd control,
enforcing no-parking zones and maintaining general public safety.
PUBLIC WORKS AND ROAD SERVICES - Local Public Works and Road Services and costs are the
responsibility of the host venue. These services are necessary to support police efforts to ensure road
closure and safety of the course. These services include:
• detours and detour equipment barricades;
• cones;
• printing /posting of No Parking signs;
• trash removal /restoration and street repair
PERMIT SERVICES - All fees associated with city permits and permit requirements for the operation of
the event are to be procured by the host venue on behalf of the Tour. They include, but are not
limited to:
• Parking - both on and off street
• Alcohol (beer/wine) — including possibility of public consumption contained /sampling, as well
as served in the Tour's official hospitality area.
• Road dosures and use of roads for setup and racing (includes permits for construction of
staging, tents, wiring /electrical, portable generators, power equipment, and fork lift)
• Special and Ancillary Events - pre-event and race day
• Banners/Signs - hanging and display of pre - event, race day ads, and sponsor banners.
• Concession Sales - on -site concession stands and 10 individual peddlers serving the
spectators.
•
A
'PPlease list any special permitting/restrictions that the Tour should be aware of, including
Alcohol, Signage and Sound Amplification. This may affect the options for START /FINISH LINE
placement.
EMT /EMS SERVICES - It is the responsibility of the host venue to provide EMT /EMS services for the
general public the day of their Stage. Please note that the Tour provides medical services for the athletes,
team support and staff personnel. Placement of EMT /EMS services will be decided by the Tours
Technical Director.
RESIDENT /BUSINESS NOTIFICATIONS — Host venues are responsible for notifying local residents and
businesses of the impact of the Tour including road closures, traffic advisories etc. within their city limits
PORTABLE TOILETS— Host tikes will secure port-o -let services or public restrooms during the day of the
Stage. The number of units and placement of the units will be mutually agreed upon by the host venue and
the Production Director. Portable toilets to be guaranteed to arrive the night PRIOR to the start or finish
event for the graveyard crews.
Specific Portable Toilet needs per event stage will be provided in a separate production outline
WASTE MANAGEMENT — Host does will provide waste manacementltrash removal services and
recycling durina and at the conclusion of the event. Necessary supplies and services include: trash
containers, roll off containers, dumpsters, recycling containers and the crews to remove full containers of
liners, and replace them with fresh liners. Also needed are crews to restore the venue to its original
beauty, meaning removal of trash from streets, parking lots, parking garages, curbs, city property, county
property and federal property. Street sweeping is recommended the day before the event and the evening
after tear down.
Trash / Recycling needs per event stage will be provided in a separate production outline
HEALTH AND WELLNESS EXPO — The Host City is required to support the Challenge with the Health
and Wellness Expo by assisting with the following:
• Allocation of a suitable are for the Expo
• Handle all Expo permits and associated fees
• Electricity and waste management
• Parking for all vendors
Quiznos Pro Challenge reserves the right to determine final placement of the start/finish line.
A
t
START AND AWARDS CEREMONIES -
STARTS - The LOC has the opportunity to allocate (5) dignitaries for recognition during the pre - ceremony
and identify a Color Guard and National Anthem performer from the community as part of the official start
ceremonies.
FINISHES (AWARDS) - The LOC has the opportunity to allocate five (5) dignitaries for recognition during
the pre - ceremony and three (3) awards presenters for the official awards ceremony (1M, 2^d and 3b).
The LOC will provide eight (8) floral bouquets (fifteen (15) bouquets for the Overall Start and
Overall Finish) to be used in the awards ceremony.
In addition, the LOC/host city can provide a unique gift to the stage winner.* Additional details,
timelines and forms regarding the start and awards ceremonies will be provided during the
planning process.
A
1
HOTELS, PARKING, AUXILIARY SPACE AND MEALS
HOTEL ACCOMMODATIONS*
The Host City is FINANCIALLY RESPONSIBLE for all costs associated with the rooms outlined below, including
all•indusive morn rate:
NIGHT BEFORE THE STAGE FINISH:
• 170 Rooms (60/40 Ratio of Doubles /Single Rooms)
• Parking expenses
NIGHTOFTHESTAGE FINISH:
• 250 Rooms (60/40 ratio of Doubles/Single Rooms)
(this ism accommodate approximately 400 individuals)
The Host Oty must secure the following rooms at $90, all- inclusive room rate (including all local and state
taxes and fees):
NIGHT BEFORE STAGE FINISH FOR TRAVELING ENTOURAGE:
• 50 rooms (60/40 Ratio af Doubles/Single Rooms)
NIGHT OF STAGE FINISH FOR TRAVELING ENTOURAGE
• 250 rooms (60/40 Doubles/single rooms)*
*Per the Aspen Proposal, LOC can guarantee a $110, all- inclusive room rate and will work with QPC to find any
reductions possible
HOTEL REQUIREMENTS:
• No more than three hotel properties
• Tour will work with LOC to select properties for each functional area
• Hotels must be a minimum of a 3 -star hotel property
• Hotels must be within close proximity to the finish line
• Hotels must be located in close proximity to each other
• Hotels must be full- service properties with banquet facilities
* The QPC will make a concerted effort to explore all opportunities to reduce overall rooming needs, based on final
entourage headcount. If any reductions are found, QPC will work with the LOC and respective lodging partner to
reconfigure room blocks.
* *The Quiznos Pro Challenge must approve all properties prior to contracting and has the right of refusal for any
properties
A
1
SITE VISITILOC MEETING ROOMS:
The Host City is financially responsible for providing the Tour with 40 hotel room nights to be used anytime from
September 1, 2010 to September 1, 2011.
MEALS
• MEDIA LUNCH — The Host City is financially obligated to provide a lunch the day of the Finish, for
approximately 150 working media. The lunch should be located at the designated media workroom.
The catering agreement and menu should be defined and submitted to the Tour's media operations
team two weeks in advance af the Tour. The Host City must assign an individual to be present to
monitor food preparation and replenishment throughout the day
• TEAM DINNER — The Host City is financially obligated to provide dinner for athlete and team support
personnel only (approximately 280 people) the night of the Stage Finish, based upon menu
specifications provided by the Tour's Operations Director. The dinner will be located at the Team Hotel
(or in close proximity) and the space must be large enough to accommodate forty -one (41) rounds of
eight (8) people
• STAFF PER DIEM — A dinner per diem of $15 per person should be provided for staff of 410 people
• TEAM BREAKFAST — The Host City is financially obligated to provide a breakfast the moming after the
Stage Finish for athletes and team support personnel only (approximately 280 people). The Tour's
Operations Director will provide a specific menu for the team breakfast. The breakfast will be served at
the Team Hotel
AUXILIARY SPACES and EQUIPMENT
The Host Odes are responsible for providing the following auxiliary spaces within the 24 hours leading
up to the Stage Finish
MEDIA WORK ROOM (Rau Day) — Must be in dose proximity to the finish line area (no more than 500
meters from finish line). Requires approximately 2000 square feet Workrooms will need to remain
operational until 9:00 PM
Below are the elements that the Media Work Room must have:
• 150 chairs
• Fifty (50) G' skirted tables
• Fifteen (15) 110V outlets and power strips for each table
. • Two (2) high speed copiers which collate and staple. Copiers will be delivered and installed in the
media office and should print a minimum of 30.50 pages per minute. Copiers should came with a
service agreement that includes on -site mairnenance, if necessary
A
AUXILIARY SPACES and EQUIPMENT (cont).
MEDIAWORKROOM (cons)
• Threededicated phone lines — 2 telephones and one fax machine
• Two (2) Ti lines or capacity to accommodate 150 users, whichever is greater. The Tour will travel with
four (4) 32 -port, wireless routers and a booster. Available as much as 24 hours in advance
• Sufficient trash and recyclable cans
• Screen to project images from computer
PRESS CONFERENCEAREA
• Requires approximately 1,500 square feet; minimum
• 100 chairs arranged theatre style
• Three ( 3) S -foot skirted tables for dais on platform
• Two - tiered risers for media cameras facingdais
• Four (4) 110V outlets with power strips
'the lour will provide a mux -box, microphones and a sound system.
"The tour's media operations team wdl provde a schematic with details regarding the press conference and media work room.
Ti I1NES —A minimum of a TWO (2) additional T1 Lines established at the finish line near the TV
compound (to be mutually determined). A T1 line can handle a high speed Internet connection speed of
1.544 Mbps [total of 3 Mbps download speed).
MEDICAL OFFICE - Suite at the Team Hotel or a meeting room at Team Hotel with a nearby bathroom.
COMMISSAIRES MEETING ROOM — Small conference room for approximately 8-10 people; close proximity to
finish line.
OPERATIONS OFFICE— Suite at the team hotel or ahematively a small conference room for 8 to 10 people.
A
PARKING REQUIREMENTS
The Host City should provide suggested directions to each parking area and assist with providing
parking staff day of the Stage Finish.
• TEAM PARKING AND MECHANICS WORKAREA — Requires a sizable portion of the Headquarter Hotel
parking lot with HIRED ovemigM security. Each team travels with a motor coach, trailer and support
vehicle, and additional space is needed for mechanics to work on bikes. Must have access to water
and power
• TEAM PARKING (FINISH UNE) — Requires a sizable lot (approximately 160 parking spaces) in close
prcxmity to the Finish Line, to accommodate team vehicles Each team travels with a motor coach,
trailer and support vehicle
• VIP PARKING — Requires parking for approximately 150 vehicles adjacent to the finish line location
• FESTIVAL EVENT PARKING — Requires paddng within close pmximity of the finish area for
approximately 150 vehicles for festival vendors
• CREW PARKING — Parking must be secured for the construction crews vehicles at the Stage Finish
location with hired security
• MEDIA PARKING — Parking 150 local and visiting media within close proximity of the press work
room /press conference. Additional parking for television trucks to accommodate live shots at the
finish line
• STAFF EVENT PARKING — Requires parking for approximated 75 vehicles adjacent to the finish
line location
• CREW SECURITY— Security must be provided for the build crew graveyard shifts and should begin
the evening prior to the event to watch over equipment and crews
VOLUNTEER PROGRAM
A
y
The Host City will be responsible for securing and organizing local volunteers for the Tour. Volunteers will
assist the Tour and the LOC with coordinating activities on the day of the event Each Host City will have
differem volunteer requirements, but the total number of volunteers is typically 400 to SOO per Host City.
If LOC decides that volunteer check -in, for start or finish, is at a location other than the start or finish
line location, then LOC is responsible for its own infrastructure [tents, tables, chairs, generators). The
Tour will not providethese items to satellite locations.
RECYLING PROGRAM
The Quiznos Pro Challenge is committed to producing a green event. As such, Host Cities should
provide sufficient means of recycling for all areas of the event. Clearly marked recycling bins
should be placed at every trash receptacle to encourage attendees to recycle.
Host Cities should provide dumpsters for recyclables only and inform Challenge staff of the location
of these dumpsters to ensure proper disposal of recyclables. These dumpsters must be provided
within the entire footprint (ie hospitality, start/finish area, Expo, etc.)
B
•
•
EXHIBIT B
TOUR SPONSORS
Protected Categories (Exclusivity) These categories are subject to change over the course of
the planning process and could open up for local revenue opportunities. CBR will inform all
Host cities regarding any additions/deletions made based on National Sponsorship in a timely
manner.
• Quick Service Restaurant and Fast Casual
• Soft Drink
• Auto
• Bank
• Financial Advisors
• Healthcare (not including Hospitals)
• Energy Bar
• Energy Drink
• Alcoholic Beverages
• Lasik Surgery
• Consumer Electronics
• Airline
• Telecommunications
• Consumer Electronics
The following categories will NOT be allowed for inclusion in the
2011 Quiznos Pro Challenge:
• Firearms
• Pornography
• Tobacco
B
f
EXHIBIT C
F '
USA
linos
PRO
CHF�IEF.IGE
AMERICA'S PRO TOUR
C
EXHIBIT D
Host Marks
(To be Inserted)
JPW- saved'. 2 /18/11- quiznos - hca aspen rev 2- 17- 2011.docn
1
MEMORANDUM
TO: Mayor and City Council
FROM: Nancy Lesley, Director of Special Events and Marketing
THRU: Jeff Woods, Manager, Parks and Recreation
DATE OF MEMO: August 13, 2010
MEETING DATE: August 16, 2010
RE: Quizno's Pro Bike Challenge RFP
REQUEST OF COUNCIL: Staff is requesting the support of Council to proceed with
submitting a proposal for Aspen to be a stage start and/or finish on the Inaugural Quizno's Pro
Bike Challenge. This proposal is due prior to September 10, 2010.
BACKGROUND: As stated in the RFP; Championed by Governor Bill Ritter and Lance
Armstrong, legendary road -race cyclist and seven time Tour de France champion, an
international pro - cycling competition will be held in Colorado August 22 -28, 2011. The race is
expected to become one of the most significant international pro - cycling events worldwide. The
event will reinvigorate the legacy of the Colorado -based Coors International Bicycle Classic,
which stood as the pre- eminent international pro - cycling event in North America from 1979-
1988.
Staff has been meeting and tentatively formulating partnerships /a formal organizing committee to
create and submit a proposal nominating Aspen as a host venue. The Aspen Skiing Company,
Aspen Chamber Resort Association, Stay Aspen Snowmass, Aspen Cycling Club, several City
departments and the former head of the Aspen portion of the Coors Classic are all working
together to formulate the best proposal possible.
DISCUSSION: Staff would like to submit a proposal to the Pro Tour Committee (which is the
selection committee for the Quizno's Pro Bike Challenge) that outlines Why Aspen should be
chosen as a host venue. All of the partners listed above will be involved in creating this
proposal. The partners have initially broken out into committees based on expertise and tasks to
be accomplished to provide the best proposal possible in this short time frame. The committee is
aware that in order to be successful in such a short timeframe that we must work together, and to
that end, everyone is in complete agreement. This will be a team effort. The committee feels
that, if chosen, details regarding what the Tour is asking ca: negotiated and determined. Only
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a
•
1
then can a detailed budget be developed. This budget can be approved jointly by the committee
and Council prior to any final commitment to the bike race.
FINANCIALBUDGET IMPACTS: As of right now, staff does not have a dollar figure to
give to Council. As the committee moves forward with the proposal, a preliminary budget will
be developed. This preliminary budget will be brought to Council within the next two weeks,
prior to submission to the Tour Committee. At this point, Council will have the opportunity to
fully review the submission proposal including budget.
RECOMMENDED ACTION: Staff would like Council to approve moving forward with
submitting a proposal, prior to the due date of September 10, 2010.
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