11-14-2013 Origin Design & Communications AGTOWN OF AVON
PROFESSIONAL SERVICES AGREEMENT
Independent Contractor
Fixed Price — Not to Exceed
Town Council Approval
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and
between Origin Design & Communications, a British Columbia corporation, whose
business address is #201 -1002 Lynham Road, Whistler, British Columbia, VON 1131
( "Contractor ") and the Town of Avon, Colorado ( "Town "), a Home Rule municipality of
the State of Colorado. The Town and the Contractor may be collectively referred to as
the "Parties."
RECITALS AND REPRESENTATIONS
WHEREAS, the Town desires to have performed certain professional services as
described in this Agreement; and
WHEREAS, the Contractor represents that the Contractor has the skill, ability, and
expertise to perform the services described in this Agreement and within the deadlines
provided by the Agreement; and
WHEREAS, the Town desires to engage the Contractor to provide the services
described in this Agreement subject to the terms and conditions of the Agreement.
NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement,
the Parties mutually agree as follows:
1.0 SERVICES AND CONTRACTOR PERFORMANCE
1.1 Services. As directed by and under the supervision of the Town Manager for
the Town of Avon, the Contractor shall provide the Town with the services
described in Exhibit A ( "Services ").
1.2 Changes to Services. The Town may request a change or changes in the
Services. Any changes that are mutually agreed upon between the Town and
the Contractor shall be made in writing and upon execution by both Parties
shall become an amendment to the Services described in this Agreement. To
be effective, any written change must be signed by the Contractor and by the
Town Council.
1.3 Independent Contractor. The Contractor shall perform the Services as an
independent contractor and shall not be deemed by virtue of this Agreement to
have entered into any partnership, joint venture, employer /employee or other
relationship with the Town other than as a contracting party and independent
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contractor. The Town shall not be obligated to secure, and shall not provide,
any insurance coverage or employment benefits of any kind or type to or for the
Contractor or the Contractor's employees, sub - consultants, contractors, agents,
or representatives, including coverage or benefits related but not limited to:
local, state, or federal income or other tax contributions; insurance contributions
(e.g., FICA); workers' compensation; disability, injury, or health; professional
liability insurance, errors and omissions insurance; or retirement account
contributions.
1.4 Standard of Performance. In performing the Services, the Contractor shall use
that degree of care, skill, and professionalism ordinarily exercised under similar
circumstances by members of the same profession practicing in the State of
Colorado. Contractor represents to the Town that the Contractor is, and its
employees performing such Services are, properly licensed and /or registered
within the State of Colorado for the performance of the Services (if licensure
and /or registration is required by applicable law) and that the Contractor and
employees possess the skills, knowledge, and abilities to competently, timely,
and professionally perform the Services in accordance with this Agreement.
1.5 Patent Indemnification. Contractor shall indemnify, defend and hold Town
harmless from any and all claims, demands, and causes of action (including
reasonable attorneys' fees and costs of suit) for actual or asserted infringement
or actual or asserted appropriation or use by Town of trade secrets, proprietary
information, know -how, copyright rights, or patented inventions included in any
design or specification furnished by Contractor or arising from the use or sale of
materials, equipment, methods, processes, designs and information, furnished
by Contractor in connection with the Services. Contractor shall include the
foregoing indemnification provision as a term of each agreement utilized by it in
the performance of its work which shall extend expressly from the vendor or
subcontractor to Town.
1.6 Safety. When and to the extent that Contractor or any of its employees, agents
or subcontractors are working under the terms of this Agreement, Contractor
will comply, and cause all of its employees, agents and subcontractors to
comply, with applicable safety rules and security requirements.
1.7 Qualified Personnel. Contractor will make available all qualified Contractors,
drafters, technical and clerical personnel necessary to fulfill its obligations
under this Agreement. Prior to commencement of work, Contractor will provide
Town with the names of all Contractor personnel to be billed at an hourly rate of
$130 whose services are to be employed in performance of the Services.
Removal or re- assignment of personnel by Contractor will only be done with
prior written approval of Town.
1.8 Removal of Personnel by Town. Town may, in its discretion, require Contractor
to dismiss from performance of the Services any personnel of Contractor or any
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subcontractor for any reason, effective upon written notice from Town of such
dismissal. Town will not be required to pay salary or any other costs
associated with dismissed personnel effective upon Contractor's receipt of
notice to dismiss from Town.
1.9 Representations and Warranties. Contractor represents and warrants that the
Services will be performed in a manner consistent with other reasonable
professionals providing similar services under similar
circumstances. Contractor will complete the Services in accordance with the
Agreement and applicable United States laws, regulations, ordinances, and
codes in existence at the time the Agreement is executed.
1.10 Maintenance of and Access to Records. Contractor will maintain detailed
records of all matters relating to the Services during the term of the Agreement
and for a period after its cancellation or termination of not less than five (5)
years. Town will have the right to copy and audit during regular business hours
all records of any kind which in any way relate to the Services, whether created
before, during or after the termination of this Agreement. Access to such
records will be provided to Town at no cost.
1.11 Disclosure of Adverse Information. Contractor will promptly disclose to Town
any and all information which Contractor may learn or which may have a
material adverse impact on the Services or the Work Product or Town's ability
to utilize the Work Product in the manner and for the purpose for which the
Work Product is intended.
2.0 COMPENSATION
2.1 Commencement of and Compensation for Services. Following execution of this
Agreement by the Town, the Contractor shall be authorized to commence
performance of the Services as described in Exhibit A subject to the
requirements and limitations on compensation as provided by this Section 2.0
and its subsections.
A. Time and Materials Contract — Not to Exceed Amount. The Contractor shall
perform the Services and shall invoice the Town for work performed based
on the rates and /or compensation methodology described in Exhibit B,
provided that total compensation shall not exceed FORTY -THREE
THOUSAND FIVE HUNDRED DOLLARS ($43,500.00) unless a written
change is signed by Town and Contractor which specifies a new Not to
Exceed Amount.
B. Reimbursable Expenses. The following shall be considered "reimbursable
expenses" for purposes of this Agreement and may be billed to the Town
without administrative mark -up but which must be accounted for by the
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Contractor and proof of payment shall be provided by the Contractor with
the Contractor's monthly invoices:
• Vehicle Mileage (billed at not more than the prevailing per mile charge
permitted by the Internal Revenue Service as a deductible business
expense)
• Printing and Photocopying Related to the Services
• Long Distance Telephone Charges Related to the Services
• Charges incidental to securing needed information (e.g., charges
imposed to obtain recorded documents)
• Postage and Delivery Services
• Lodging and Meals (only with prior written approval of the Town as to
dates and maximum amount)
C. Non - reimbursable Costs, Charges, Fees, or Other Expenses. Any fee, cost,
charge, fee, or expense incurred by the Contractor not otherwise specifically
authorized by this Agreement shall be deemed a non - reimbursable cost and
shall be borne by the Contractor and shall not be billed or invoiced to the
Town and shall not be paid by the Town.
D. Increases in Compensation or Reimbursable Expenses. Any increases or
modification of compensation or reimbursable expenses shall be subject to
the approval of the Town and shall be made only by written amendment of
this Agreement executed by both Parties.
2.2 Payment Processing. The Contractor shall submit invoices and requests for
payment in a form acceptable to the Town. Invoices shall not be submitted
more often than once each month unless otherwise approved by this
Agreement or in writing by the Town. Unless otherwise directed or accepted by
the Town, all invoices shall contain sufficient information to account for all
Contractor time (or other appropriate measure(s) of work effort) and all
authorized reimbursable expenses for the Services during the stated period of
the invoice. Following receipt of a Contractor's invoice, the Town shall promptly
review the Contractor's invoice.
2.3 Town Dispute of Invoice or Invoiced Item(s). The Town may dispute any
Contractor time, reimbursable expense, and /or compensation requested by the
Contractor described in any invoice and may request additional information
from the Contractor substantiating any and all compensation sought by the
Contractor before accepting the invoice. When additional information is
requested by the Town, the Town shall advise the Contractor in writing,
identifying the specific item(s) that are in dispute and giving specific reasons for
any request for information. The Town shall pay the Contractor within forty -five
(45) days of the receipt of an invoice for any undisputed charges or, if the Town
disputes an item or invoice and additional information is requested, within thirty
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(30) days of acceptance of the item or invoice by the Town following receipt of
the information requested and resolution of the dispute. To the extent possible,
undisputed charges within the same invoice as disputed charges shall be timely
paid in accordance with this Agreement. Payment by the Town shall be
deemed made and completed upon hand delivery to the Contractor or designee
of the Contractor or upon deposit of such payment or notice in the U.S. Mail,
postage pre -paid, addressed to the Contractor.
3.0 CONTRACTOR'S GENERAL RESPONSIBILITIES
3.1 The Contractor shall become fully acquainted with the available information
related to the Services. The Contractor is obligated to affirmatively request
from the Town such information that the Contractor, based on the Contractor's
professional experience, should reasonably expect is available and which
would be relevant to the performance of the Services.
3.2 The Contractor shall perform the Services in accordance with this Agreement
and shall promptly inform the Town concerning ambiguities and uncertainties
related to the Contractor's performance that are not addressed by the
Agreement.
3.3 The Contractor shall provide all of the Services in a timely and professional
manner.
3.4 The Contractor shall promptly comply with any written Town request for the
Town or any of its duly authorized representatives to reasonably access and
review any books, documents, papers, and records of the Contractor that are
pertinent to the Contractor's performance under this Agreement for the purpose
of the Town performing an audit, examination, or other review of the Services.
3.5 The Contractor shall comply with all applicable federal, state and local laws,
ordinances, regulations, and resolutions.
3.6 The Contractor shall be responsible at the Contractor's expense for obtaining,
and maintaining in a valid and effective status, all licenses and permits
necessary to perform the Services unless specifically stated otherwise in this
Agreement.
4.0 TERM AND TERMINATION
4.1 Term. This Agreement shall be effective on the 14 day of November at 12:01
a.m., ( "Effective Date ") and shall terminate one year from that date, or on a
prior date of completion of the Services or termination as may be permitted by
this Agreement; provided, however, that the Parties may mutually agree in
writing to the monthly extension of this Agreement for up to twelve (12)
consecutive calendar months if such extension is approved by the Town
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Council and the Contractor and such extension does not alter or amend any of
the terms or provisions of this Agreement.
4.2 Continuing Services Required. The Contractor shall perform the Services in
accordance with this Agreement commencing on the Effective Date until such
Services are terminated or suspended in accordance with this Agreement. The
Contractor shall not temporarily delay, postpone, or suspend the performance
of the Services without the written consent of the Town Council.
4.3 Town Unilateral Termination. This Agreement may be terminated by the Town
for any or no reason upon written notice delivered to the Contractor at least ten
(10) days prior to termination. In the event of the Town's exercise of the right of
unilateral termination as provided by this paragraph:
A. Unless otherwise provided in any notice of termination, the Contractor shall
provide no further services in connection with this Agreement after receipt of
a notice of termination; and
B. All finished or unfinished documents, data, studies and reports prepared by
the Contractor pursuant to this Agreement shall be delivered by the
Contractor to the Town and shall become the property of the Town; and
C. The Contractor shall submit to the Town a final accounting and final invoice
of charges for all outstanding and unpaid Services and reimbursable
expenses performed prior to the Contractor's receipt of notice of termination
and for any services authorized to be performed by the notice of termination
as provided by Section 4.3(A) above. Such final accounting and final
invoice shall be delivered to the Town within thirty (30) days of the date of
termination; thereafter, no other invoice, bill, or other form of statement of
charges owing to the Contractor shall be submitted to or accepted by the
Town.
4.4 Termination for Non - Performance. Should a party to this Agreement fail to
materially perform in accordance with the terms and conditions of this
Agreement, this Agreement may be terminated by the performing party if the
performing party first provides written notice to the non - performing party which
notice shall specify the non - performance, provide both a demand to cure the
non - performance and reasonable time to cure the non - performance, and state
a date upon which the Agreement shall be terminated if there is a failure to
timely cure the non - performance. For purpose of this Section 4.4, "reasonable
time" shall be not less than five (5) business days. In the event of a failure to
timely cure a non - performance and upon the date of the resulting termination
for non - performance, the Contractor prepare a final accounting and final invoice
of charges for all performed but unpaid Services and authorized reimbursable
expenses. Such final accounting and final invoice shall be delivered to the
Town within fifteen (15) days of the date of termination; thereafter, no other
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invoice, bill, or other form of statement of charges owing to the Contractor shall
be submitted to or accepted by the Town. Provided that notice of non-
performance is provided in accordance with this Section 4.4, nothing in this
Section 4.4 shall prevent, preclude, or limit any claim or action for default or
breach of contract resulting from non - performance by a Party.
4.5 Unilateral Suspension of Services. The Town may suspend the Contractor's
performance of the Services at the Town's discretion and for any reason by
delivery of written notice of suspension to the Contractor which notice shall
state a specific date of suspension. Upon receipt of such notice of suspension,
the Contractor shall immediately cease performance of the Services on the
date of suspension except: (1) as may be specifically authorized by the notice
of suspension (e.g., to secure the work area from damage due to weather or to
complete a specific report or study); or (2) for the submission of an invoice for
Services performed prior to the date of suspension in accordance with this
Agreement.
4.6 Reinstatement of Services Following Town's Unilateral Suspension. The Town
may at its discretion direct the Contractor to continue performance of the
Services following suspension. If such direction by the Town is made within
(30) days of the date of suspension, the Contractor shall recommence
performance of the Services in accordance with this Agreement. If such
direction to recommence suspended Services is made more than thirty -one
(31) days following the date of suspension, the Contractor may elect to:
(1) provide written notice to the Town that such suspension is considered a
unilateral termination of this Agreement pursuant to Section 4.3; or
(2) recommence performance in accordance with this Agreement; or (3) if
suspension exceeded sixty (60) consecutive days, request from the Town an
equitable adjustment in compensation or a reasonable re -start fee and, if such
request is rejected by the Town, to provide written notice to the Town that such
suspension and rejection of additional compensation is considered a unilateral
termination of this Agreement pursuant to Section 4.3. Nothing in this
Agreement shall preclude the Parties from executing a written amendment or
agreement to suspend the Services upon terms and conditions mutually
acceptable to the Parties for any period of time.
4.7 Delivery of Notice of Termination. Any notice of termination permitted by this
Section 4.0 and its subsections shall be addressed to the person signing this
Agreement on behalf of either Town or Contractor at the address shown below
or such other address as either party may notify the other of and shall be
deemed given upon delivery if personally delivered, or forty -eight (48) hours
after deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested.
5.0 INSURANCE
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5.1 Insurance Generally. The Contractor shall obtain and shall continuously
maintain during the term of this Agreement insurance of the kind and in the
minimum amounts specified in this Section 5.1. The Required Insurance shall
be procured and maintained with insurers with an A- or better rating as
determined by Best's Key Rating Guide. All Required Insurance shall be
continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Contractor.
The Contactor shall secure and maintain the following ( "Required Insurance "):
A. Worker's Compensation Insurance in the minimum amount required by
applicable law for all employees and other persons as may be required by
law. Such policy of insurance shall be endorsed to include the Town as a
Certificate Holder.
B. Comprehensive General Liability insurance with minimum combined single
limits of One Million Dollars ($1,000,000.00) Dollars each occurrence and of
One Million Dollars ($1,000,000.00) aggregate. The policy shall be
applicable to all premises and all operations of the Contractor. The policy
shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for
contractual and employee acts), blanket contractual, independent
contractors, products, and completed operations. The policy shall contain a
severability of interests provision. Coverage shall be provided on an
"occurrence" basis as opposed to a "claims made" basis. Such insurance
shall be endorsed to name the Town as Certificate Holder and name the
Town, and its elected officials, officers, employees and agents as additional
insured parties.
C. Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury of not less than of One Hundred Thousand
Dollars ($100,000.00) each person and each accident and for property
damage of not less than Fifty Thousand Dollars ($50,000.00) each accident
with respect to each of the Contractor's owned, hired and non -owned
vehicles assigned to or used in performance of the Services. The policy
shall contain a severability of interests provision. Such insurance coverage
must extend to all levels of subcontractors. Such coverage must include all
automotive equipment used in the performance of the Agreement, both on
the work site and off the work site, and such coverage shall include non -
ownership and hired cars coverage. Such insurance shall be endorsed to
name the Town as Certificate Holder and name the Town, and its elected
officials, officers, employees and agents as additional insured parties.
D. Professional Liability (errors and omissions) Insurance with a minimum limit
of coverage of One Million Dollars ($1,000,000.00) per claim and annual
aggregate. Such policy of insurance shall be obtained and maintained for
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one (1) year following completion of all Services under this Agreement.
Such policy of insurance shall be endorsed to include the Town as a
Certificate Holder.
5.2 Additional Requirements for All Policies. In addition to specific requirements
imposed on insurance by this Section 5.0 and its subsections, insurance shall
conform to all of the following:
A. For both Contractor Insurance and Required Insurance, all policies of
insurance shall be primary insurance, and any insurance carried by the
Town, its officers, or its employees shall be excess and not contributory
insurance to that provided by the Contractor; provided, however, that the
Town shall not be obligated to obtain or maintain any insurance whatsoever
for any claim, damage, or purpose arising from or related to this Agreement
and the Services. The Contractor shall not be an insured party for any
Town - obtained insurance policy or coverage.
B. For both Contractor Insurance and Required Insurance, the Contractor shall
be solely responsible for any deductible losses.
C. For Required Insurance, no policy of insurance shall contain any exclusion
for bodily injury or property damage arising from completed operations.
D. For Required Insurance, every policy of insurance shall provide that the
Town will receive notice no less than thirty (30) days prior to any
cancellation, termination, or a material change in such policy.
5.3 Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain and
continuously maintain policies of insurance in accordance with this Section 5.0
and its subsections shall not limit, prevent, preclude, excuse, or modify any
liability, claims, demands, or other obligations of the Contractor arising from
performance or non - performance of this Agreement. Failure on the part of the
Contractor to obtain and to continuously maintain policies providing the
required coverage, conditions, restrictions, notices, and minimum limits shall
constitute a material breach of this Agreement upon which the Town may
immediately terminate this Agreement, or, at its discretion, the Town may
procure or renew any such policy or any extended reporting period thereto and
may pay any and all premiums in connection therewith, and all monies so paid
by the Town shall be repaid by Contractor to the Town immediately upon
demand by the Town, or at the Town's sole discretion, the Town may offset the
cost of the premiums against any monies due to the Contractor from the Town
pursuant to this Agreement.
5.4 Insurance Certificates. Prior to commencement of the Services, the Contractor
shall submit to the Town certificates of insurance for all Required Insurance.
Insurance limits, term of insurance, insured parties, and other information
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sufficient to demonstrate conformance with this Section 5.0 and its subsections
shall be indicated on each certificate of insurance. Certificates of insurance
shall reference the Project Name as identified on the first page of this
Agreement. The Town may request and the Contractor shall provide within
three (3) business days of such request a current certified copy of any policy of
Required Insurance and any endorsement of such policy. The Town may, at its
election, withhold payment for Services until the requested insurance policies
are received and found to be in accordance with the Agreement.
6.0 OWNERSHIP OF DOCUMENTS
6.1 Work Product is Property of Town. Upon complete payment for services
rendered, the Work Product, as defined in Section 1, shall be deemed work
made for hire and made in the course of Services performed under this
Agreement and will be the exclusive property of Town. Town will have
unlimited right to make, have made, use, reconstruct, repair, modify, reproduce,
publish, distribute and sell the Work Product, in whole or in part, or combine the
Work Product with other matter, or not use the Work Product at all, as it sees
fit. Any reuse of the Work Product produced under this Agreement for any
purpose not directly related to this Agreement will be at the sole risk of Town.
Furthermore, Contractor agrees to Assignment of Intellectual Property
Agreement attached as Schedule B, dated November 14, 2013 and made a
part of this Agreement.
6.2 Obligations of Contractor's Personnel and Subcontractors. Contractor warrants
it has enforceable written agreements with all of its personnel and
subcontractors to be involved in performing the Services that:
A. assign to Contractor ownership of all patents, copyrights and other proprietary
rights created in the course of their employment or engagement; and
B. obligate such personnel or subcontractors, as the case may be, upon terms
and conditions no less restrictive than are contained in Section 6, not to use
or disclose any proprietary rights or information learned or acquired during
the course of such employment or engagement including, without limitation,
any Work Product, all Contractor property and any other information
pursuant to Section 6.
6.3 Assignment of Proprietary Rights. To the extent that any title to any Work
Product may not, by operation of law, vest in Town, or such Work Product may
not be considered to be work made for hire, Contractor hereby irrevocably
transfers and assigns to Town in perpetuity all worldwide right, title and interest
in and to the patent rights, copyrights, trade secrets and other proprietary rights
in and ownership of, the Work Product.
6.4 Town Furnished Information. Title to all materials and all documentation
furnished by Town to Contractor will remain in Town. Contractor will deliver to
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Town and any all Work Product and property, including copies thereof on
whatever media rendered, upon the first to occur of:
A. Town's written request; or
B. completion of the Services under this Agreement; or
C. termination of this Agreement.
6.5 The Contractor waives any right to prevent its name from being used in
connection with the Services.
7.0 CONFLICT OF INTEREST
The Contractor shall refrain from providing services to other persons, firms, or entities
that would create a conflict of interest for the Contractor with regard to providing the
Services pursuant to this Agreement. The Contractor shall not offer or provide anything
of benefit to any Town official or employee that would place the official or employee in a
position of violating the public trust as provided by C.R.S. §24 -18 -109, as amended, or
any Town — adopted Code of Conduct or ethical principles.
8.0 REMEDIES
In addition to any other remedies provided for in this Agreement, and without limiting its
remedies available at law, the Town may exercise the following remedial actions if the
Contractor substantially fails to perform the duties and obligations of this Agreement.
Substantial failure to perform the duties and obligations of this Agreement shall mean a
significant, insufficient, incorrect, or improper performance, activities or inactions by the
Contractor. The remedial actions include:
8.1 Suspend the Contractor's performance pending necessary corrective action as
specified by the Town without the Contractor's entitlement to an adjustment in
any charge, fee, rate, price, cost, or schedule; and /or
8.2 Withhold payment to the Contractor until the necessary services or corrections
in performance are satisfactorily completed; and /or
8.3 Deny payment for those services which have not been satisfactorily performed,
and which, due to circumstances caused by the Contractor, cannot be
performed, or if performed would be of no value to the Town; and /or
8.4 Terminate this Agreement in accordance with this Agreement.
The foregoing remedies are cumulative and the Town, it its sole discretion, may
exercise any or all of the remedies individually or simultaneously.
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9.0 MISCELLANEOUS PROVISIONS
9.1 No Waiver of Rights. A waiver by any Party to this Agreement of the breach of
any term or provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by either Party. The Town's approval or
acceptance of, or payment for, services shall not be construed to operate as a
waiver of any rights or benefits to be provided under this Agreement. No
covenant or term of this Agreement shall be deemed to be waived by the Town
except in writing signed by the Town Council or by a person expressly
authorized to sign such waiver by resolution of the Town Council of the Town of
Avon, and any written waiver of a right shall not be construed to be a waiver of
any other right or to be a continuing waiver unless specifically stated.
9.2 No Waiver of Governmental Immunity. Nothing in this Agreement shall be
construed to waive, limit, or otherwise modify any governmental immunity that
may be available by law to the Town, its officials, employees, contractors, or
agents, or any other person acting on behalf of the Town and, in particular,
governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised
Statutes.
9.3 Affirmative Action. Contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex or national origin.
Contractor will take affirmative action to ensure applicants are employed, and
employees are treated during employment without regard to their race, color,
religion, sex or national origin. Such action shall include, but not be limited to
the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
9.4 Binding Effect. The Parties agree that this Agreement, by its terms, shall be
binding upon the successors, heirs, legal representatives, and assigns;
provided that this Section 9.4 shall not authorize assignment.
9.5 No Third Party Beneficiaries. Nothing contained in this Agreement is intended
to or shall create a contractual relationship with, cause of action in favor of, or
claim for relief for, any third party, including any agent, sub - consultant or sub-
contractor of Contractor. Absolutely no third party beneficiaries are intended by
this Agreement. Any third -party receiving a benefit from this Agreement is an
incidental and unintended beneficiary only.
9.6 Article X, Section 20/TABOR. The Parties understand and acknowledge that
the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR ").
The Parties do not intend to violate the terms and requirements of TABOR by
the execution of this Agreement. It is understood and agreed that this
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Agreement does not create a multi - fiscal year direct or indirect debt or
obligation within the meaning of TABOR and, therefore, notwithstanding
anything in this Agreement to the contrary, all payment obligations of the Town
are expressly dependent and conditioned upon the continuing availability of
funds beyond the term of the Town's current fiscal period ending upon the next
succeeding December 31. Financial obligations of the Town payable after the
current fiscal year are contingent upon funds for that purpose being
appropriated, budgeted, and otherwise made available in accordance with the
rules, regulations, and resolutions of Town of Avon, and other applicable law.
Upon the failure to appropriate such funds, this Agreement shall be terminated.
9.7 Governing Law, Venue, and Enforcement. This Agreement shall be governed
by and interpreted according to the law of the State of Colorado. Venue for any
action arising under this Agreement shall be in the appropriate court for Mineral
County, Colorado. To reduce the cost of dispute resolution and to expedite the
resolution of disputes under this Agreement, the Parties hereby waive any and
all right either may have to request a jury trial in any civil action relating
primarily to the enforcement of this Agreement. The Parties agree that the rule
that ambiguities in a contract are to be construed against the drafting party shall
not apply to the interpretation of this Agreement. If there is any conflict
between the language of this Agreement and any exhibit or attachment, the
language of this Agreement shall govern.
9.8 Survival of Terms and Conditions. The Parties understand and agree that all
terms and conditions of the Agreement that require continued performance,
compliance, or effect beyond the termination date of the Agreement shall
survive such termination date and shall be enforceable in the event of a failure
to perform or comply.
9.9 Assignment and Release: All or part of the rights, duties, obligations,
responsibilities, or benefits set forth in this Agreement shall not be assigned by
Contractor without the express written consent of the Town Council for Town of
Avon. Any written assignment shall expressly refer to this Agreement, specify
the particular rights, duties, obligations, responsibilities, or benefits so
assigned, and shall not be effective unless approved by resolution or motion of
the Town Council for the Town of Avon. No assignment shall release the
Applicant from performance of any duty, obligation, or responsibility unless
such release is clearly expressed in such written document of assignment.
9.10 Paragraph Captions: The captions of the paragraphs are set forth only for the
convenience and reference of the Parties and are not intended in any way to
define, limit or describe the scope or intent of this Agreement.
9.11 Integration and Amendment: This Agreement represents the entire and
integrated agreement between the Town and the Contractor and supersedes all
prior negotiations, representations, or agreements, either written or oral. Any
Origin — Avon Marketing Services Agreement
Page 13 of 26
amendments to this must be in writing and be signed by both the Town and the
Contractor.
9.12 Severability: Invalidation of any of the provisions of this Agreement or any
paragraph sentence, clause, phrase, or word herein or the application thereof in
any given circumstance shall not affect the validity of any other provision of this
Agreement.
9.13 Incorporation of Exhibits: Unless otherwise stated in this Agreement, exhibits,
applications, or documents referenced in this Agreement shall be incorporated
into this Agreement for all purposes. In the event of a conflict between any
incorporated exhibit and this Agreement, the provisions of this Agreement shall
govern and control.
9.14 Employment of or Contracts with Illegal Aliens: Contractor shall not knowingly
employ or contract with an illegal alien to perform work under this Agreement.
Contractor shall not contract with a subcontractor that fails to certify that the
subcontractor does not knowingly employ or contract with any illegal aliens. By
entering into this Agreement, Contractor certifies as of the date of this
Agreement it does not knowingly employ or contract with an illegal alien who
will perform work under the public contract for services and that the Contractor
will participate in the e- verify program or department program in order to
confirm the employment eligibility of all employees who are newly hired for
employment to perform work under the public contract for services. The
Contractor is prohibited from using either the e- verify program or the
department program procedures to undertake pre - employment screening of job
applicants while this Agreement is being performed. If the Contractor obtains
actual knowledge that a subcontractor performing work under this Agreement
knowingly employs or contracts with an illegal alien, the Contractor shall be
required to notify the subcontractor and the Town within three (3) days that the
Contractor has actual knowledge that a subcontractor is employing or
contracting with an illegal alien. The Contractor shall terminate the subcontract
if the subcontractor does not stop employing or contracting with the illegal alien
within three (3) days of receiving the notice regarding Contractor's actual
knowledge. The Contractor shall not terminate the subcontract if, during such
three days, the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal alien.
The Contractor is required to comply with any reasonable request made by the
Department of Labor and Employment made in the course of an investigation
undertaken to determine compliance with this provision and applicable state
law. If the Contractor violates this provision, the Town may terminate this
Agreement, and the Contractor may be liable for actual and /or consequential
damages incurred by the Town, notwithstanding any limitation on such
damages provided by such Agreement.
Origin — Avon Marketing Services Agreement
Page 14 of 26
9.15 Non - Liability of Town for Indirect or Consequential Damages or Lost Profits:
Parties agree that the Town shall not be liable for indirect or consequential
damages, including lost profits that result from the Town's declaration that the
Contractor is in default of the Agreement, so long as the Town acts in good
faith.
9.16 Indemnity: To the fullest extent permitted by law, Contractor shall indemnify,
defend and hold harmless Town, its members, affiliates, officers, directors,
partners, employees, and agents from and against all claims, damages, losses
and expenses, including but not limited to reasonable attorney's fees, arising
out of the performance of the Services, provided that any such claim, damage,
loss or expense is caused by any negligent act or omission of Contractor,
anyone directly or indirectly employed by Contractor or anyone for whose acts
Contractor may be liable, except to the extent any portion is caused in part by a
party indemnified hereunder.
9.17 Notices: Unless otherwise specifically required by a provision of this
Agreement any notice required or permitted by this Agreement shall be in
writing and shall be deemed to have been sufficiently given for all purposes if
sent by certified mail or registered mail, postage and fees prepaid, addressed
to the Party to whom such notice is to be given at the address set forth below or
at such other address as has been previously furnished in writing, to the other
Party. Such notice shall be deemed to have been given when deposited in the
United States Mail properly addressed to the intended recipient.
If to the Town: If to the Contractor:
Town of Avon
Attention: Danielle Kristmanson
Attn: Town Manager
Origin Design &
P.O. Box 975
Communications LTD
1 Lake Street
#201 -1002 Lynham Road,
Avon, Colorado 81620
Whistler, B.C.
VON 1B1
With Copy to:
Attention: MJ Legault
Town of Avon
Origin Design &
Attn: Town Attorney
Communications LTD
P.O. Box 975
#201 -1002 Lynham Road,
1 Lake Street
Whistler, B.C.
Avon, Colorado 81620
VON 1B1
Origin — Avon Marketing Services Agreement
Page 15 of 26
10.0 AUTHORITY
The individuals executing this Agreement represent that they are expressly authorized
to enter into this Agreement on behalf of Town of Avon and the Contractor and bind
their respective entities.
THIS AGREEMENT is executed and made effective as provided above.
�OF AVp�
ATTEST:
A au. rq_1�4
"Ke ny, own Clerk
Origin — Avon Marketing Services Agreement
Page 16 of 26
TOWN OF AVON, COLORADO
By:
Virginia Egger, o Manager
CONTRACTOR:
By:
Name: anielle Kristmanson
Position: Principal
EXHIBIT A
ARTICLE A2 - PROVISION OF SERVICES
A2.1 Services to be Provided. The Agency agrees to provide to the Client, during the Term,
the
Services described in sections A2.2 through A2.10 inclusive, in accordance with the terms and
conditions set out in this Agreement. The Town of Avon Branding, Brad Envisioning Logistics,
December 2, 2013, prepared by the Agency, will serve as the program, including timeframes,
logistics and tasks for this Agreement, and is included with this Exhibit A.
A2.2 Strategic Consulting and Branding Services. The Agency shall provide the following
strategic consulting Services in the Territory with respect to the Products:
(a) planning, research and analysis to assist with the development of strategic communications,
branding strategy and marketing plans;
(b) planning, development and preparation of strategic brand development, advertising
campaigns; and
(c) general advice and recommendations on the Client's use of marketing, branding and
communications.
A2.3 Advertising Services. The Agency shall provide the following advertising Services in the
Territory with respect to the Products:
(a) the creation, production and placement of advertisements generally;
(b) the development, preparation and production of copy and layouts for print media including
newspaper, magazine, outdoor advertising, billboards and other forms of indoor and outdoor
print advertising;
(c) the development and preparation of copy, storyboards, audio, video and various forms of
recordings for broadcast media including television, radio and other forms of presentation and
video broadcast advertising;
(d) the purchase of talent, models, performers and other service providers, on behalf of the
Client, in connection with the creation and production of advertising;
(e) the development and preparation of point -of- purchase and other merchandising and sales
related
materials;
(f) the development of contest materials and the administration of contests and similar items
and promotions, as required;
(g) the purchase of materials, on behalf of the Client, to be used in connection with the above
advertising activities, including artwork, film, tape, engravings and various presentation
materials and elements; and
(h) general advice and recommendations on the Client's advertising.
A2.4 Media Services. The Agency shall provide the following media Services in the Territory
with respect to the Products:
(a) media planning, buying and reporting, including the evaluation and negotiation of media
buys;
(b) assistance with the preparation of media plans;
(c) assistance with budgeting, including pre -buy and post -buy recommendations, evaluation and
follow -up;
(d) co- ordination and provision of advertising materials to media in accordance with relevant
Exhibit A to Origin -Avon Marketing Services Agreement
Page 1
schedules and broadcast requirements;
(e) ongoing media evaluation and analysis;
(f) review media invoices received and payment of invoices as appropriate; and
(g) general advice and recommendations on the Client's use of media.
A2.5 Market Research Services. The Agency shall provide the following market research
Services in the Territory with respect to the Products:
(a) consumer research, using various techniques including copy testing, focus groups and
surveying;
(b) utilization of third party market research data, as required;
(c) database collection, management and analysis;
(d) review and reporting of relevant market information; and
(e) general advice and recommendations on the Client's use of market research.
A2.6 Direct Marketing Services. The Agency shall provide the following direct marketing
Services in the Territory with respect to the Products:
(a) development, preparation and implementation of direct mail campaigns;
(b) development, preparation and implementation of customer relationship management
(CRM) activities;
(c) development, preparation and implementation of electronic mail and web -based direct
marketing campaigns;
(d) development, preparation and implementation of telemarketing campaigns; and
(e) general advice and recommendations on the Client's use of direct marketing.
A2.7 Public Relations Services. The Agency shall provide the following public relations
Services:
(a) assistance with media relations, events, interviews, speeches and contests;
(b) assistance with branding and brand merchandising;
(c) assistance with crisis management;
(d) assistance with employee and stakeholder communications; and
(e) general advice and recommendations on the Client's use of public relations.
A2.8 Website Design and Development Services. The Agency shall provide the following
Web -site design Services:
(a) design and development of the Client's Website in accordance with specifications provided
by the Client;
(b) installation and testing to ensure functionality of the Client's Website; and
(c) general advice and recommendations on the Client's use of its Website.
A2.9 Other Services. The Agency shall provide such other and further marketing and
communications related Services as may be required by the Client from time to time, subject to
the authorization by the Client and agreement by the Agency to provide such Services. The
provision of all such other
Services shall be governed by the terms and conditions of this Agreement.
A2.10 Standards of Service. The Agency will ensure that all Services are provided in the
following manner:
(a) honestly, in good faith and with a view to the best interests of the Client;
Exhibit A to Origin -Avon Marketing Services Agreement
Page 2
(b) using commercially reasonable efforts;
(c) diligently, professionally and competently; and
(d) in accordance with all applicable laws, regulations and industry standards.
A2.11 Trade - marks, Domain Names and Copyright. The Agency shall ensure, using
commercially reasonable efforts, that all advertising, creative, promotional and other material
created, developed or prepared by the Agency which contains any trade -mark, domain name or
copyright owned by
the Client shall be properly utilized and identified in compliance with the Client's intellectual
property policies as they may be provided to the Agency in writing from time to time.
ARTICLE A3 — ORIGIN LOGISTICS DOCUMENT
Town of Avon Branding
Brand Envisioning Logistics// December 2, 2013
Brand Envisioning — Phase 9: Logistics
This document outlines:
• Project objectives
• Key points of contact
• Key milestones
• Proposed schedule
• Key decision makers
• The Origin team
• Next Steps
• Preliminary envisioning session plan
PIZO 1 _'C T 0 B EC 1.1 VES
• Uncover and articulate the Avon brand
• .Provide a brand platform that will be embraced and adopted by fiill- and part-time residents, the
local business community and visitors alike
• Articulate the brand story including its core brand attributes, characteristics, essence, promise, voice
and key messages
• Create a visual identity for Avon that supports this brand
R1-Y POINTS OF CON-FACT
We will require access to one key decision maker (the Branding Advisory Committee Chair), with one
lead point of contact (Matt Pielsticker) on the project. This process will avoid Origin receiving
conflicting feedback or misunderstanding the direction chosen, and will ensure we have access to the
final decision maker at key stages in the process.
As our lead point of contact, we ask that Matt be responsible for the following:
Exhibit A to Origin -Avon Marketing Services Agreement
Page 3
• Presenting information and any materials to the Advisory Committee that are not already presented
by Origin to the group.
• Gathering, synthesizing and gaining consensus where necessary on the feedback of the committee
and providing that feedback in a clear, written form to Origin.
• Coordinating internal meetings of the Advisory Committee, and presentations or other meetings
between Origin and the Advisory Committee or key decision maker.
• Providing written approval for estimates and timelines.
• Ensuring the Advisory Conuuittee adheres to timelines and scope, or for determining with Origin the
resultant changes in timeline or budgets to accommodate scope changes.
KEY STAKEHOLDERS AND DECISIONS MAKERS
A Core Advisory Committee has been established and the members include two council members as
well as business representatives. The committee includes 12 members. While the Committee Chair will
provide final approval on the brand outcomes, it is agreed that a single brand platform and identity will
be presented to Council for final approval.
ORIGIN CONSIDER.&TI.ONSRND RECOMMENDATIONS
At this time, we recommend also including the following representatives within the Advisory
Committee:
- A conununity resident representing the Spanish - speaking community
- A community resident representing home - owners
PROPOSED SCHEDULE
Step : Brand envisioning and conceptualization
Phase 1: LOGISTICS
Week of November 18th
Logistics Plan and Estimate presented by Origin
Week of November 25th
Logistics Plan and Estimate approved by client
PHASE 2 & 3: RESEARCH & COMPETITIVE ANALYSIS
Week of December 2nd
• Research/materials and list of key competitors provided to Origin by client
• First invoice sent. - 50% of $28,000
Week of December 9th
Document summarizing research and. competitors prepared by Origin for delivery in Envisioning
session
PIIASE 4: ENVISIONING
Exhibit A to Origin -Avon Marketing Services Agreement
Page 4
Week of January 27th
• Envisioning Session
- Evening Session: Wednesday, January 29th
- Day Session: Thursday, January 30th
Week of February 3rd
• Summary of Envisioning session and research presented by Origin
PHASE 5: BRAND ARTICUI.,ATION
Week of February 10th
• Brand Conceptualization and Brand Platform presented by Origin and client feedback
Week of .February 17th
• Final presentation and client sign off on Brand Platform
Final invoice sent - 50% of $28,000
Step 2: IDEN'I'I`I ' AND TAGL,INE DI VELOP TENT
February- March: Creative Development for Logo and Tagline
Full timeline for this stage will be provided after Step 1 is complete, but logo and tagline will be
prioritized for March delivery
Creative templates and graphic standards timeline and scope to be determined after Step 1 is complete.
THE 0111GI ` "I EAM
The following are the Origin team members that will be working with you on this mandate and the
brand development portion:
MJ Legault — Principal and Strategic Planner
• Responsible for strategic direction for the brand
• Will facilitate the sessions
Danielle Kristmanson — Principal and Creative Director
• Responsible for strategic direction for the brand
• Will facilitate the sessions
Heather Forbes— Account Supervisor
• Day -to -day contact
• Responsible for managing the project and keeping all communications centralized
• Will provide client orientation session and training on Basecamp
• Will provide the various communications at each phase and coordinate the approvals
Exhibit A to Origin -Avon Marketing Services Agreement
Page 5
NEXT STEPS -- RESEARCH, CO�IP)F TITORS AND SESSION PLANNING
Deadline: Week of November 25th
• Client to approve logistics road map including estimate and timeline.
• Origin to provide draft language to use to invite the community to the envisioning session.
• Client to determine key participants to invite to the brand envisioning session. Please provide Origin
with list of names along with their titles.
Deadline: Week of December 2nd
• Client to provide any relevant research, surveys and previous marketing materials developed for
Avon.
• Client to provide a list of competitors (top 4 -5). Origin will use these to compile and complete the
competitive analysis.
Community Envisioning Session Planning.
Brand Envisioning — Phase 2: Community Envisioning Session
CONINIUNITY ENVISIONING SESSION PARTICIPANTS
Ideally these should be people who are able to contribute to the session and have enough understanding
of the Avon brand, audience or competitors to provide input into the brand's platform. They should
include key store staff and managers. Could possibly include top customer(s), key athletes or store
ambassadors as well as key vendors) /reps.
ENVISIONING (LATE AND LOCATION
• Proposed Date: January 29th
• Proposed Time: 6 to 9 pm
• Proposed Location: Avon Town Hall
PRE IA ENVISIONING AGENDA
INTRODUCTION AND OBJECTIVES (10 minutes)
Goal: Define branding and what it means to Avon
• Establish key goals for the session and review the agenda
SWOT REVIEW AND CONSENSUS (20 minutes)
• Goal: Get the group warmed up and have everyone agreeing and working on something concrete
before moving to the more intangible /emotive exercises.
• Exercise: Review the existing SWOT analysis and agree on what was captured within it.
BRAND ENVISIONING EXERCISES (40 minutes)
• Goal: Understand stories about the area, what makes Avon unique and help us understand
Exhibit A to Origin -Avon Marketing Services Agreement
Page 6
community members' personal vision for the area.
• Exercise One - Take turns sharing your story:
- What brought you to the area?
- If you were born here, what keeps you here?
- What stories do you have of Avon?
• Exercise Two - Take turns answering these two questions.
- If you can imagine what you want Avon to be for your children, how is it different? Describe it.
- If there was one thing you could wish for the place, what would it be?
CONCLUSION AND WHAT TO EXPECT NEXT
Goal: Make it clear to the participants what happens next and when they can expect to see the brand
platform and identity
Brand Envisioning — Phase 2: Advisory Committee Envisioning
.ADVISORY COMMITTEE ENVISIONING SESSION PARTICIPANTS
• This session will be held with the core group that forms the advisory committee. We suggest no more
than 12 participants.
N ��9 [�7�1f�`l[lt�.l� lir�ltillLlZt�i N [i7
• Proposed Date: January 30th
Proposed Time: 10 to 4 (working lunch)
Proposed Location: Avon Town Hall
PRELIMINARY ENVISIONING AGENDA
• Intros / Overview of the day
• Vision
REVIEW SWOT ANALYSIS FROM PREVIOUS NIGHT AND FINALIZE (10:30 - 11:15)
• Goal: Understand where Avon is today and the extent of the gap between the current situation and
the vision.
• Exercise: As a group, review SWOT from community session and debate, distill, gain consensus.
• Strengths
• Weaknesses
• Opportunities
• Threats
COMPETITIVE REVIEW AND ANALYSIS (10:30 - 11:45)
• Goal: Understand how other communities with a similar challenge have approached branding.
• Exercise: Discuss the following examples, review points of commonality or difference.
Exhibit A to Origin -Avon Marketing Services Agreement
Page 7
• Note: These regions differ in size, history and character but have similar regional activity for
comparison purposes.
LUNCH (12:00 - 1.2:30)
DEFINE / R.EFINE TARGET AUDIENCE (12:30 - 1:15)
• Goal: Define the target audience for the Avon brand
Exercise 1: As a group, work on answering 4 questions:
• Who lives/works here now? Why?
• What do they love about Avon? What do they dislike?
• Who do we want to come live /work here?
• What do we imagine they will contribute to our place?
Exercise 2: Define Avon's best customers. When they think of Avon, they think ....
BRAND EXERCISE (1:15 - 2:30)
• Exercise 1: Break into groups to answer 5 questions.
• Present and review /agree as a group.
• Exercise 2: What is the anti -Avon? The place most unlike Avon that you can think of?
STORYTELLING EXERCISES (1:15 - 3:30)
• Goal: Understand stories about the area and what makes it unique.
• Exercise 1: Take turns sharing your story:
• What brought you to the area? If you were bona here, what keeps you here?
• When people ask where you live, how do you describe it?
• Goal: Help us understand personal vision for the area
• Exercise: Take turns answering these 2 questions:
• If you can imagine what you want Avon to be for your children, how is it different? .Describe it.
• If there was one thing you could wish for the brand, what would it be?
WRAP UP / NEXT STEPS (3:30 - 4 :00)
Exhibit A to Origin -Avon Marketing Services Agreement
Page 8
EXHIBIT B
ARTICLE B3 - COMPENSATION AND BILLING
B3.1 Compensation - Fixed. In consideration of the Agency providing any of the above
services to the Client, the Client shall pay the Agency fees equal to the amount estimated by the
Agency in respect to such Services and approved by the Client as described in the Brand
Conceptualization estimate, Project Number AVON0001, dated 11/19/2013 in the amount of
$28,000; Logo Identity estimate, Project Number AVON0002, dated 11/19/2013 in the amount
of $12,500; and the Tag Line Development estimate, Project Number AVON0003, dated
11/19/2013 in the amount of $3,000. The fixed compensation shall be inclusive of all expenses.
B3.2 Media and Third -Party Costs. The Client shall reimburse the Agency for all charges
relating to the cost of media, Third Party production costs and other Third Party supplier costs
on the basis of the actual cost to the Agency of such costs plus 15 %.
B3.3 Expenses. The Client shall reimburse the Agency for all out -of- pocket expenses actually
incurred by the Agency and relating to the provision of the Services, including without limitation
shipping, duty, customs brokerage, courier, excise and sales tax, facsimile, photocopying,
travel, lodging, copy clearance and legal costs.
B3.4 Invoices - Fees and Expenses. The Agency shall provide invoices to the Client, for all
fees and expenses in respect to the provision of Services hereunder, on a predefined schedule,
unless otherwise agreed in writing. The invoices provided by the Agency shall describe the
Services provided in reasonable detail. Fees and expenses shall be described separately.
B3.5 Invoices - Media, Production and Third -Party Costs. The Agency shall provide
invoices to the
Client, separate from those described in section 3.5 of this Agreement, for estimated media
costs, Third Party production costs and other Third Party suppliers' costs. Invoices for media
costs, Third Party production costs and other Third Party suppliers' costs shall contain an
estimate of the amount of such costs together with an estimated date upon which the Agency
will be required to pay such costs. For greater certainty, invoices for media costs, Third Party
production costs and other Third Party suppliers' costs shall be provided by the Agency to the
Client in advance of orders for such goods and services being placed by the Agency and in
advance of the payment of such costs by the Agency.
B3.6 Payment - Fees and Expenses. The Client shall pay all invoices, with the exception of
invoices for media, Third Party production and Third Party supplier costs, within thirty (30) days
of receipt of such invoices. If the Client fails to make any payment when due, the Agency may
suspend the delivery of Services until such past due payment is made.
B3.7 Payment - Media, Production and Third -Party Costs. The Client shall pay all invoices
for media, production and Third Party supplier costs upon receipt of such invoices from the
Agency, based upon the estimated amounts of such costs contained in such invoices and
whether or not such costs have been incurred or paid by the Agency. If the Client fails to make
any payment for media, production and Third Party supplier costs when due, the Agency may
delay the ordering of such media, production and Third Party supplies, and the delivery of any
Services based upon the ordering of such media, production and Third Party supplies, until such
Exhibit B to Origin -Avon Marketing Services Agreement
Page 1
past due payment is made. For greater certainty, it is intended that the Client will make all funds
required for media, production and Third Party supplier costs available to the Agency prior to
orders for such media, production and Third Party supplies being placed by the Agency.
133.8 Interest. Any amounts not paid when due hereunder shall accrue interest at the rate of
one percent (1 %) per month simple until paid in full.
133.9 Taxes. All charges and fees provided for in this Agreement are exclusive of and do not
include any taxes, duties, or similar charges imposed by any government or government
agency. The Client shall pay directly, or reimburse the Agency for, all federal, state, provincial,
or local sales, H.S.T., G.S.T., value- added, use, personal property, import, export, excise or
other taxes, fees, or duties arising out of this Agreement or the Services to be provided
hereunder.
133.10 Records to be maintained by Agency. The Agency shall maintain accurate records in
respect to the provision of all Services as follows:
(a) time reports indicating the time actually expended by Agency personnel on Services
performed hereunder;
(b) the cost of all media, Third Party production, materials, supplies and services procured from
Third Parties suppliers and other Third Party providers, including any applicable taxes;
(c) receipts and vouchers for miscellaneous costs and out -of- pocket expenses actually incurred
in connection with the provision of the Services;
(d) copies of all contracts with Third Party suppliers and other Third Party providers; and
(e) approvals for plans, Services, revisions, changes and any other extraordinary or unusual
items that have been invoiced by the Agency to the Client.
B3.11 Inspection of Records. The Client, or its authorized representative, shall be permitted
upon three (3) Business Days' written notice and during normal business hours, to inspect the
records maintained by the Agency pursuant to section 3.11 of this Agreement. Upon request by
the Client, the Agency shall provide evidence of payment of all media, supplier and Third Party
provider invoices and any other payments incurred by the Agency for or on behalf of the Client.
The Client acknowledges that information provided by the Agency pursuant to this section,
including the fees charged by the Agency, the manner by which such fees are calculated or
determined, information regarding the methods utilized by the Agency to provide the Services,
or techniques utilized by the Agency to monitor the efficiency, effectiveness or cost -
effectiveness of the manner in which the Services are provided, constitute valuable and
proprietary assets of the Agency and shall be deemed for the purposes of this Agreement to be
Agency Confidential Information.
Exhibit B to Origin -Avon Marketing Services Agreement
Page 2