(“Agreement”) Is Made and Entered Into Effective As of March 25, 2019 (“Effective Date”), by and Between the City of Pueblo (“Licensor”), and Back Brain, L.L.C

LICENSE AGREEMENT

THIS REVOCABLE LICENSE AGREEMENT (“Agreement”) is made and entered into effective as of March 25, 2019 (“Effective Date”), by and between the City of Pueblo (“Licensor”), and Back Brain, L.L.C. (“Licensee”). Licensee and Licensor are referred to collectively below as the “Parties.”

WHEREAS, Licensor is the owner of that real property commonly known as the Elmwood Golf Course in the City of Pueblo, (“Licensor’s Property”); and

WHEREAS, Licensee desires to install a scoreboard sign adjacent to the 18th hole of Elmwood Golf Course at no cost to Licensor, to have the sign located on the Licensor’s property and to sell advertising that may be installed on the sign; and

WHEREAS, Licensor has agreed to grant Licensee a revocable license to install and maintain a scoreboard sign (“Scoreboard”) on Licensor’s Property according to the site plan, attached hereto as Exhibit A (“Site Plan”);

NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Grant of Revocable License. Subject to the terms of this Agreement, Licensor hereby grants to Licensee a revocable license for the Term of this Agreement to use that portion of Licensor’s Property shown on the Site Plan for the sole purpose of installing and maintaining a Scoreboard.

2. Term. This License shall be for a term of ten (10) years. This License shall automatically renew for an additional one (1) year term upon each anniversary of the Effective Date, unless a Party provides notice of its intent not to renew at least thirty (30) days prior to the end of the then current term.

3. Maintenance of Scoreboard. Licensee agrees to install and maintain the Scoreboard, at its sole cost and expense, in good and safe condition. Licensee agrees to maintain the Scoreboard in quality condition, consistent with other golf course amenities at the Elmwood Golf Course, and to repair and replace the Scoreboard, as needed, throughout the term of this License. It is the express understanding and agreement of the Parties that neither Licensor nor its successors or assigns shall have any obligation whatsoever to maintain or attempt to maintain, repair or replace the Scoreboard. Licensee hereby releases Licensor and its successors and assigns from all liabilities and obligations whatsoever arising from or relating in any way to the installation, maintenance or use of the Scoreboard. The Elmwood Golf Course Manager and the Pueblo Parks and Recreation Department agree to regularly monitor the condition of the scoreboard and inform the Licensee promptly of any damage or deterioration of the scoreboard and/or advertising signage that might need to be repaired, at which point Licensee will repair the damage or deterioration in a timely manner.

1 4. Design of Scoreboard. The Scoreboard shall be 15’H x 33’L. It shall rest on two (2) column supports and be designed to meet industry standards. Licensee agrees to provide Elmwood Golf Course and the Pueblo Parks and Recreation Department with advertising space, at no cost, including printing and replacement for wear or damage during the term of this License Agreement. Advertising space reserved for Licensor shall be no less than 33 square feet.

5. License Fee. The Licensee agrees to pay Licensor $0.00 per year for the term of the Agreement. The expected completion date for installation of the Scoreboard is May 1, 2019.

6. Sponsorship. Licensee agrees that “Elmwood Golf Course” shall be displayed prominently on the Scoreboard in a size and design approved by the Licensor, in its sole discretion. Licensor agrees that Licensee may sell additional sponsorship advertisements as provided within the Scoreboard design, for the benefit of Licensee. Licensor agrees that it has no right to any of the proceeds from such additional sponsorship sales. Licensee shall assume all responsibility for the selling of advertising, and Licensor shall not be liable or responsible for the sale of any advertising. However, Licensor may, in its sole and absolute discretion, prohibit or require Licensee to remove any advertising inconsistent with Licensor’s policies. Licensee must at all time abide by the Licensor’s sponsorship policy, and Licensee must obtain Licensor’s written approval prior to entering into any sponsorship for the Scoreboard. Liability for the content of sponsorships (text, representation and illustrations) is assumed by Licensee and sponsoring agencies.

7. Restrictions. Licensee is expressly prohibited from changing the proposed style and design of the Scoreboard in any manner that would increase the amount of Licensor’s Property set forth in the Site Plan. Licensee shall permit no liens to be filed against Licensor’s Property by any supplier, laborer, contractor or merchant with respect to services, labor or materials contracted for or obtained by Licensee with respect to the Scoreboard. Licensee shall indemnify and hold Licensor and its successors and assigns harmless from and against all costs or expenses of any kind, including but not limited to attorneys’ fees, incurred by Licensor or its successors or assigns related to any such lien or any notice of intent to file such a lien. For purposes of this paragraph, the filing or recording of a notice of intention to file such a lien shall be deemed to be the filing or recording of a lien. The provisions of this paragraph shall survive the termination of this Agreement.

8. Insurance. Licensor shall not provide insurance for Licensee or the Scoreboard and Licensor shall not be liable for damages or injuries caused by or arising from actions or nonactions of the Licensee, the Scoreboard, its installation or placement on the Licensor’s Property, or related to the Licensee or Scoreboard in any other way. Upon execution of this Agreement, Licensor shall provide the following Certificates of Insurance. Coverage and limits enumerated in this insurance provision represent only the minimum insurance required by the Licensor, and Licensee should rely on its expertise and that of its own risk management experts to obtain any additional insurance coverage needed for the Licensor and Licensee in its performance under this Agreement. Failure of Licensee to comply with this section shall constitute a material breach of this Agreement.

a. Certificate of Insurance showing evidence of liability coverage for: (1) bodily injury, death, and property damage to any person and (2) Licensee's

2 obligation to indemnify the City of Pueblo and the Elmwood Golf Course, and their officers, directors, employees, agents, and independent contractors under the terms of this Agreement. The insurance policy and certificate of insurance evidencing the policy shall have a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence, with a Three Million ($3,000,000.00) annual aggregate, and shall be endorsed to add as additional insureds the City of Pueblo and the Elmwood Golf Course, and their officers, directors, employees, agents, and independent contractors and its officers, employees, agents, and independent contractors. Such policy shall state that the insurance is primary in coverage to any other insurance which may be available to City. Concurrent with the above mentioned Certificate of Insurance evidencing liability coverage.

b. Certificate of Insurance showing evidence of statutory workers’ compensation insurance with an endorsement waiving subrogation against the City of Pueblo in sufficient amounts to meet statutory requirements.

9. Termination. This Agreement is for the sole benefit of Licensor and shall not create any easement or other interest in real property in favor of Licensee. This Agreement and the license granted herein shall not run with the land. Licensor may terminate this agreement and the revocable license at any time upon thirty (30) days’ prior written notice to Licensee. Licensee may terminate this agreement should Licensor breach this License Agreement, where the breach remains uncured after forty-five (45) days from written notice to Licensor of such breach. Licensee shall not alienate or assign all or any portion of this Agreement or the license granted herein without the express written consent o f Licensor, which consent may be granted or withheld in Licensor’s sole and absolute discretion. Any attempted alienation or assignment without Licensor’s consent as provided herein shall be null and void and without legal effect.

10. Effect of Termination. Upon the termination of this Agreement, Licensee shall remove the Scoreboard from Licensor’s Property within thirty (30) days after the receipt of written notice of such termination. Licensee shall bear all costs and liabilities of removal of the Scoreboard. Should Licensee fail to remove the Scoreboard from Licensor’s Property as provided in this paragraph, Licensor may, but shall not be required to, remove and dispose of the Scoreboard without process of law or other demand and without liability to Licensor. In the event that Licensor removes and disposes of the Scoreboard as provided herein, Licensee shall be liable to Licensor for the cost of such removal and disposal and shall pay such amount upon demand. Should Licensee fail to remove the Scoreboard in accordance with this paragraph and should Licensor desire to keep the Scoreboard in place, complete ownership of the Scoreboard shall pass to Licensor at no cost to either party. The provisions of this paragraph shall survive the termination of this Agreement.

11. Title to Licensor’s Property. Licensee expressly acknowledges and agrees that Licensor has good and sufficient title to the Licensor’s Property, including but not limited to that portion that is shown on the Site Plan for the installation of the Scoreboard. Licensee gains access to and acknowledges that Licensor’s Property is taken “As Is” and “With All Faults.” Licensee further acknowledges and agrees that the license granted herein is permissive in nature, and Licensee waives any and all claims of whatsoever kind or character, including but

3 not limited to claims of adverse possession, to any interest in Licensor’s Property arising from or relating in any way to the license granted herein. This Agreement is expressly granted with the understanding that the licensed use shall not constitute adverse possession of any portion of Licensor’s Property. This Agreement shall not in any way limit Licensor’s ability to license or otherwise dispose of land not subject to the terms of this Agreement. The provisions of this paragraph shall survive the termination of this Agreement.

12. Indemnification by Licensee. Licensee agrees to defend, hold harmless, and indemnify the Licensor and its enterprises, officers, employees, and agents, from any and all claims and liability, including reasonable attorney’s fees and costs, for injuries, or damages to any person, arising from Licensee’s license, advertising, including copyright and trademark violations, or in any way related to this License Agreement, or any default or breach of any term of this Agreement by Licensee. The Licensor reserves the right to refuse any sponsorship, or remove any advertisement, including but not limited to banners, fliers, and social media postings that are not consistent with the Licensor’s sponsorship policies, or determined, in the sole and absolute discretion of the Licensor, not to be in the Licensor’s best interest. Licensee hereby acknowledges and agrees that damage may occur to the Scoreboard either naturally or unnaturally, and that neither Licensor nor its successors or assigns shall have any liability therefore. Licensee further agrees that it shall properly supervise and monitor the installation, use and maintenance of the Scoreboard. Licensee shall not do anything that may cause liability or harm to any person or property by reason of the installation, use or maintenance of the Scoreboard. The provisions of this paragraph shall survive the termination of this Agreement.

13. Severability. It is the express intent of the Parties that all the provisions of this Agreement be given full force and effect as written. Should any judicial determination be made that any provision(s) of this Agreement is unenforceable for any reason, all remaining provisions of this Agreement shall remain in full force and effect as written.

14. Governing Law, Construction of Agreement, and Venue. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of Colorado. The Parties acknowledge that this Agreement was produced by arms-length negotiation between sophisticated parties with equal bargaining power. The Parties agree that the rule of construction that any ambiguities are to be construed against the drafting party shall not be employed in any interpretation of this Agreement. The provisions of this paragraph shall survive the termination of this Agreement. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado.

15. Liability of the Licensor. Nothing in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24-10-101 et seq., C.R.S. Nothing herein shall constitute, nor deemed to constitute, the creation of a debt or multi- year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or any other constitutional, statutory or charter debt limitation.

16. Binding Effect. This Agreement binds and inures to the benefit of the Parties

4 and their respective heirs, successors, assigns, representatives, agents, employees, and any person or entity claiming by or through them. The provisions of this paragraph shall survive the termination of this Agreement. 17. Entire Agreement; Attorneys’ Fees. This Agreement constitutes the complete and entire agreement between the Parties and supersedes all prior written or oral negotiations, representations or agreements between the Parties as to the subject matter of this Agreement. The terms of this Agreement may not be modified except by a writing signed by all of the Parties. In any dispute, conflict, legal action or other proceeding arising out of, or brought to construe or enforce any of the provisions of, this Agreement, the prevailing party shall be entitled to recover its costs and attorneys’ fees from the non-prevailing party. The provisions of this paragraph shall survive the termination of this Agreement.

18. Counterparts; Signatures. The parties hereto agree that: (a) this Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute one and the same instrument, and that executed counterpart originals shall be satisfactory for purposes of enforcing this Agreement; and (b) original signatures transmitted via facsimile or electronic mail (i.e., .pdf signatures) shall be acceptable for purposes of executing and enforcing this Agreement. If counterpart originals are executed and/or original signatures are transmitted by facsimile or by electronic mail, the parties hereto shall endeavor in good faith to deliver to each other executed counterpart originals within fifteen (15) days after the Effective Date.

IN WITNESS WHEREOF, this Agreement is entered into by the Parties as of the Effective Date.

LICENSOR: LICENSEE: CITY OF PUEBLO, COLORADO Back Brain, L.L.C. A MUNICIPAL CORPORATION

By: By: Nicholas A. Gradisar, Mayor Title:

ATTEST:

By: Acting City Clerk

5 EXHIBIT A

SITE PLAN

6 EXHIBIT B

CERTIFICATES OF INSURANCE