01-01-2014 Desti Metrics Contract of ServiceskDest12Metr1'CS_LLC
Resort Intelligence.
Contract for Services
This describes an Agreement between DestiMetrics, LLC (DMX) and Town of Avon (Client or Town). The
Client's execution date of this Agreement becomes the effective date and provides for the start of service on
January 1, 2014 resulting in the first monthly for data as of January 31, 2014 and will continue on for 12
months (12 report cycles), ending with a report based on data as of the end of December, 2014 and delivered
in the month thereafter, unless otherwise modified or terminated in accordance with the provisions of this
Agreement.
DMX Services and Responsibilities: DMX will:
1. Produce and deliver those products, services, reports and related work product (together Services) as are
further described in "Attachment A— Included Products and Services ".
2. Provide systems and procedures to be used in the collection, aggregation and subsequent reporting of the
related Services and assist Client in their recruitment, training, startup and ongoing support of participating
Client- Properties (data submitting properties) and their designated representatives. A separate Agreement is
provided to Client- Properties.
3. Distribute results to Clients, Client Representatives and Client- Property designated representatives
(collectively Subscribers) by way of a secure web portal to which authorized representatives of individual
Subscribers will be provided secure access via individual subscriber logons, the quantity and type of which
are described in Attachment A.
Client Responsibilities: Client will:
1. Pay DMX a total of $13,825 as established in Attachment A, payable as follows:
o Initial payment 25% ($3,456.25) is due upon execution of this Agreement or start of service,
whichever is sooner.
o The balance will be paid in equal quarterly payments of $ 3,456.25 by the first day of each
calendar year quarter (4/1/14, 7/1/14 and 10/1/14) through the conclusion of the Agreement.
Fees are exclusive of any /all applicable taxes, business licenses, or other fees, that are or may be
required.
o Any /all additional work requested by Client and not already included in this Agreement, will be
performed, subject to pre- existing commitments, and at standard rates, terms and conditions.
Note: written confirmation by way or two -way email, strongly advised at a minimum, to avoid
misunderstanding.
2. Assign a Designated Representative in the person of the Town Manager or other designee (Client
Representative) to serve as primary contact for contract administration and Client's performance of the
responsibilities described herein.
3. Maintain responsibility for the assignment of Individual Subscriptions to all Subscribers, all consistent with
and not to exceed the total number of Individual Subscriptions authorized.
4. Recruit Client- Properties and assist in their training and startup, then oversee ongoing Client- Property data
submission (in accordance with DMX procedures).
Job #543
Client (initial) Page 1 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info@destimetrics.com
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Ressort Intelligence.
5. Actively promote Client- Property participation and adherence to DMX's data submission protocols toward
the common objective of data set integrity and participation by other comparative destinations, all mindful
that DMX is a co- operative industry program, whose value increases with broader participation.
Confidentiality and Distribution:
1. All data provided by Client- Properties will be treated as Confidential Information, not to be published or
distributed unless /until aggregated with other similar data and undistinguishable as a result, where upon
DMX may use /distribute the resulting data as it chooses and at its sole discretion, including without
limitation, multi - property competitive views, destination comparative reports, and any other custom
segment reports, provided only that resulting data is limited to DMX Subscribers and not otherwise made
public.
2. All DMX Subscribers acknowledge and agree that all information, reports and related data posted within
the DMX web portal and provided by DMX is CONFIDENTIAL INFORMATION, to which access is restricted to
Subscribers in good standing by way of confidential and proprietary log in and who understand and agree
that reproduction, distribution or sharing of this CONFIDENTIAL INFORMATION is STRICTLY PROHIBITED and
enforceable by law excepting only when specific written agreement provides otherwise.
Terms and Conditions:
1. Billing Procedures:
A. Fees related to this Agreement are due and payable as described in the Client Responsibilities section
of this Agreement and become delinquent if not received within 30 days of invoice date. Delinquent
payments are subject to interest charges at 1.5% per month until received
B. Expenses will be those reasonable out -of- pocket costs incurred by DMX and /or its agents, during the
performance of this Agreement and are billed monthly as incurred. i) Travel costs include meal
reimbursement, lodging, air, rent car, and personal car use from DMX's corporate offices or that of
the designated contractor. ii) Other office costs, including phone, air freight, and Internet and /or
web conference fees are treated as part of DMX's standard costs of business and will not be treated
as expenses, excepting by prior written agreement. iii) Travel Time will be charged at DMX's standard
rates and treated as travel related expenses, unless otherwise agreed upon.
2. Modification: This Agreement may not be modified or extended excepting by mutual agreement.
3. Termination: This Agreement may be terminated by either Client or DMX upon thirty (30) days written
notice to the other party.
4. Independent Contractor: DMX and the Client shall be considered independent contractors. Neither DMX
nor the Client is an employee, agent, joint venturer or partner of the other entity. Nothing shall be interpreted as
creating an employment relationship between or among DMX and the Client. DMX shall have control of the
manner and means by which its services are provided to the Client subject to the terms and provisions of this
Agreement.
5. 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 the City and County of Denver, 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.
Job #543
�,E client (initial) Page 2 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info@destimetrics.com
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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.
i. Dispute Resolution: Any disputes arising out of this Agreement shall be subject to arbitration. As a pre-
condition to the filing of any such arbitration, all claims, disputes, and other matters in question between the
parties to this Agreement arising out of or relating to this Agreement concerning a breach thereof, shall first
be submitted to non - binding mediation prior to initiation of any arbitration unless the parties mutually agree
otherwise. The cost of said mediation shall be split equally between the parties. This Agreement to mediate
shall be specifically enforceable under the prevailing laws of the State of Colorado. The parties agree that
any disputes concerning the terms and conditions of this Agreement that cannot be resolved after
consultation and discussion between the parties or by mediation shall be submitted to binding arbitration
through either the American Arbitration Association or the Judicial Arbiter Group in accordance with commercial
arbitration rules and the Colorado Arbitration Act, with the tribunal being selected by the party filing the demand
for Arbitration.. Any such arbitration shall be conducted at Denver, Colorado. The parties shall select one
mutually agreeable arbitrator from the candidates available through the arbitration tribunal. The arbitrator
shall have the power to grant interim and injunctive relief, provided that any party may apply to any court of
competent jurisdiction to enjoin a breach of confidential information obligation(s). Judgment upon the award
rendered by the arbitrator may be entered into any court having jurisdiction. In connection with any dispute, the
prevailing party shall be awarded and shall recover from the other non - prevailing party all costs and expenses,
including reasonable attorney's fees, as may be incurred.
7. General Provisions: This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective personal representatives, successors and assigns. This Agreement and Attachments hereto
embodies the entire understanding and agreement between the parties concerning the subject matter hereof
and supersedes any and all prior negotiations, understandings or agreements concerning the subject matter
hereof.
8. 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. Affirmative Action: DMX will not discriminate against any employee or applicant for employment because of
race, color, religion, sex or national origin. DMX 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.
10. 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 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
Job #543
�JC_F__ Client (initial) Page 3 of 9 DMX (initial)
678 5 Franklin P. 303.722.7346 info @destimetrics.com
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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.
11. Employment of or Contracts with Illegal Aliens: DMX shall not knowingly employ or contract with an illegal
alien to perform work under this Agreement. DMX 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, DMX 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. DMX 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 DMX obtains actual knowledge that a
subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, DMX
shall be required to notify the subcontractor and the Town within three (3) days that DMX has actual knowledge
that a subcontractor is employing or contracting with an illegal alien. DMX 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 DMX's actual knowledge. DMX 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. DMX 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 DMX violates this provision, the Town may terminate
this Agreement, and DMX may be liable for actual and /or consequential damages incurred by the Town,
notwithstanding any limitation on such damages provided by such Agreement.
12. Ownership of Documents: The reports /services produced by DMX (per Attachment A) pursuant to this
Agreement shall become property of the Town of Avon upon delivery and shall not be made subject to any
copyright unless authorized by the Town. Other materials, methodology and proprietary work used or provided
by DMX to the Town not specifically created and delivered pursuant to the Services outlined in this Agreement
may be protected by a copyright held by DMX and DMX reserves all rights granted to it by any copyright. The
Town shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to the following
exceptions: (1) for exclusive use internally by Town staff and /or employees; or (2) pursuant to a request under
the Colorado Open Records Act, § 24 -72 -203, C.R.S., to the extent that such statute applies; or (3) pursuant to
law, regulation, or court order. DMX waives any right to prevent its name from being used in connection with
the Services. Town shall not provide, release or disclose Confidential Information as defined under
Confidentiality and Distribution above unless ordered to do so by a court with jurisdiction. Upon receiving any
request under the Open Records Act or the Open Meetings Law for access or disclosure of public records or
confidential information, Town shall furnish to DMX prompt written notice of such request no later than two
business days after the date of receiving the request along with a copy of the records or information request.
Prior to allowing access to or disclosure of any Confidential Information pursuant to a request under the Open
Records Act or the Open Meetings Law, Town shall: (a) consult with DMX regarding whether an exemption from
access or disclosure is available under the Open Records Act or the Open Meetings Law, as applicable but any
such consultation shall not be construed to create an attorney - client or other relationship among Town or any of
its attorneys, employees or agents and any DMX attorneys, employees or agents and (b) give DMX a reasonable
opportunity, but not less than two (2) business days after receipt by the DMX of the above - referenced notice
from Town of a request, to assert any claimed exception or exemption from access or disclosure under the Open
Records Act or the Open Meetings Law, as applicable, and cooperate with the Providing Parties in their assertion
of any such claimed exception or exemption.
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678 S Franklin P. 303.722.7346 info @destimetrics.com
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13. 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.
14. Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors,
heirs, legal representatives, and assigns.
15. Limitation of Damages: The Parties agree that DMX's remedies for any claims asserted against the Town shall
be limited to proven direct damages in an amount to exceed amounts due under the Agreement and that Town
shall not be liable for indirect, incidental, special or consequential damages, including but not limited to lost
profits
16. 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 DMX. 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.
17. 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.
18. Assignment and Release: All or part of the rights, duties, obligations, responsibilities, or benefits set forth in
this Agreement shall not be assigned by DMX without the express written consent of the Town Council for the
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.
19. 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.
Job #543
Client (initial) Page 5 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info @destimetrics.com
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EXECUTED as of 2013.
CLIENT:
TOWN OF AVON
By:
Attest:
Town Clerk
Approved as to Form:
Town Attorney
DMX:
DestiMetrics, LLC,
By: Rat 1 4 O.A�
Ralf Garrison, Director
Attachment: Billing Information
Attachment A: Products and Services - Included Attachment Billing Information
Job #543
Client (initial) Page 6 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info @destimetrics.com
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EXECUTED as of jam-lar� 2013.
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Attest:
Town Att ne
Attachment: Billing Information
Attachment A: Products and Services Included Attachment Billing Information
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ATTACHMENT: BILLING INFORMATION
Invoices are to be sent to the attention of
Billing Information: Send Invoice by: Y Email /PDF Postal Mail
Contact Email Address: _aC ) C Q , DfO Phone
Client Name:
Email Address:
Mailing Address:
City:
Country:
Zip /Postal Code:
0 Bo � qq
(PO Box or Street Address)
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State /Province: M
Job #543
Client (initial) Page 7 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info @destimetrics.com
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ATTACHMENT A - DESTIMETRICS PRODUCTS AND SERVICES
This serves as an Attachment to the related Contract for Services and further describes products and Services
(indicated with a Y in the box to its left) that are being provided with this Agreement. The prices, terms and conditions
described below are based on a total number of up to 11 Subscribers, including up to 2 for Client /Client
Representatives (for Town staff), and up to 9 for data submitting Client- Properties (Client Properties to be provided
additional logins for their authorized data submitters by separate agreement in their respective Property Profiles).
y1 —I 1. MOUNTAIN MARKET INTELLIGENCE PACK: Designed to deliver "what you ought to know" about the mountain
' travel marketplace, components include, broad economic data, Travel /Tourism news, a Library of destination travel
data, and expert interpretation by way of monthly Market Briefing and occasional webinars, available individually or
bundled in a package, as further described below. DMX offers a broad travel /tourism market program based on "what
you ought to know ", that starts with a foundation market data set, collected by DMX analysts and posted regularly on
the DMX web portal.
® 1.1 Econometrics: A family of national and local economic and travel indicators as well as comparative
sales /lodging tax and airport enplanement data, collected and updated monthly from publically available
sources and presented via a summary dashboard from DMX's secure web portal. Updated monthly as data
becomes available.
® 1.2 Mountain Travel Briefing A monthly narrative summary of DMX Travel News Talker, Econometrics and
DMX "industry- wide" metrics, provided in narrative summary format, with expert interpretation and
supporting economic indicator dashboard graphic.
1.3 Travel News Talker: A synopsis of current economic and mountain travel news, edited for the
destination mountain travel industry marketing and management from publicly available sources, updated
regularly and posted on DMX's secure web portal.
® 1.4 Library: DMX collects articles, reports and other market intelligence along with copies of various DMX
presentations, in the DMX Subscriber Library.
® 1.5 Quarterly Market Update Webinars: Provide quarterly strategic assessment and interpretation of
market conditions and trends. For Subscribers Only.
Price: $1,2,aQ
Note: Distribution Rights: The Mountain Market Intelligence Pack is only available to individual Subscribers
up to the number of subscribers listed above.
2. RESERVATION ACTIVITY OUTLOOK REPORT SET: Client- Property data is collected at a monthly level of
granularity and aggregated to create a destination -wide monthly report set of paid lodging reservation
activity and related revenue, the results of which are posted on DMX's secure web portal on a monthly basis.
Several report configurations are available.
FYI ® 2.1 Reservation Activity Outlook (RAO) Report. The number of available units, room nights and related
revenue are collected, from which Occupancy average daily rate (ADR), and revenue per available room night
(RevPAR) are calculated. Results are then aggregated in a report format that provides graphic summaries,
charts and supporting tables of business on the books for the forward looking 6 months and total business
for the trailing 6 months. Current year data is overlaid against previous year -to -date and previous seasons -
end data, when sufficient data exists. Three views of the resulting data are provided in chart form with
supporting tables, including 6 month forward - looking view, fixed winter view (Nov. – Apr.), and fixed summer
Job #543
Client (initial) Page 8 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info @destimetrics.com
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Resort Intelligence,
view (May — Oct.). Additionally, pacing of current year vs. previous year reservation activity is provided in
chart and detailed table view. From this information, destinations can track their performance against their
previous history and properties can see how the aggregate of others properties in their destination are
performing. Distribution rights include all Subscribers.. Annual Price: 6 750 per year.
Note: Additional Client- Property data submission licensing is available in increments for an additional fee.
® 2.2 Multi- Destination Comparative Report (MDC): A destination -wide view of paid occupancies is created
from data provided as part of the RAO (2.1) report, the result of which is displayed against all other individual
participating DMX destinations (which are kept anonymous) in bar chart format, in both current year
occupancy and year- over -year comparative change. A third report shows Average Daily Rate in similar
format and also includes the trailing months and forward — looking 6 months. Distribution rights include all
Subscribers. Annual Price: $2,350 subject to participation in the RAO (2.1) above, and under the same
terms and conditions.
® 2.3 Custom Multi- Destination Comparison — Comp Set: A similar iteration to the MDC described below up
allows the Client to select 4 other destinations (which are kept anonymous) to compare their own
destination level data to instead of the full DMX "universe" of destinations. Price: $ for 12 monthly
reports. Note: Participation in standard MDC (2.2) is required. Distribution Rights: The Multi- Destination
Comparative Report is only available to individual Subscribers.
F® 2.4 Multi- Destination Comparison - Enhanced: A similar iteration in the same format of the above described
MDC, but including identification of individual participating destinations. This report is customizable and
allows for the Client to select among up to 5 other participating destinations (list available upon request) or
related comparative destination types, the results of which provides a much broader and deeper comparison.
Annual Price: Based on a fixed fee of $500 for each destination that is disclosed (maximum of 5). Note1:
Participation in standard MDC (2.2) is required. Note2: Participating Client destination data use is included as
part of the terms of this Agreement.
® 2.5 Reservation Activity Outlook: Destination Executive Summary: One page synopsis of the monthly RAO
reporting detail provided in executive summary format with graphic illustration and narrative explanation.
This report is intended for broader distribution to community stakeholders, tourism dependant businesses
and (optionally at the discretion of the Client) the general public and includes related distribution rights.
Annual Price: $2,775
Distribution Rights: The Destination Executive Summary includes unlimited distribution rights (i.e. general
public and press) at the discretion of the Client.
TOTAL PACKAGE PRICE (1 Year Agreement): $13,825/year.
*Additional savings available for multi -year agreements
All DMX Subscribers (including specifically Clients, Client- Properties) acknowledge and agree that all
information, reports and related data posted within the DMX web portal and provided by DMX is
CONFIDENTIAL INFORMATION, to which access is restricted to Subscribers in good standing by way of
confidential and proprietary log in and who understand and agree that reproduction, distribution or sharing
of this CONFIDENTIAL INFORMATION is STRICTLY PROHIBITED and enforceable by law, excepting only when
specific written agreement provides otherwise.
Job #543
Client (initial) Page 9 of 9 DMX (initial)
678 S Franklin P. 303.722.7346 info@destimetrics.com
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