04-13-2018 Probolsky Research, LLC - 2018 Town of Avon Community SurveyPROFESSIONAL
SERVICES
AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into by and between Probolsky
Research, a Limited Liability Corporation, whose business address is 3990 Westerly Place Suite 185,
Newport Beach, California, 92660 ("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 SCOPE OF SERVICES AND CONTRACTOR PERFORMANCE
1.1 Scope of Services and Work Product. As directed by and under the supervision of the Town
Manager for the Town of Avon, the Contractor shall provide the Town with the Scope of Services
("Services") described in Exhibit A — 2018 Town of Avon Community Survey Scope of Services and
Timeline for Completion. The Work Product shall consist of deliverables and/or product to be created,
provided or otherwise tendered to the Town as described in the 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
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'
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 1 of 12
compensation; disability, injury, or health; professional liability insurance, errors and omissions insurance;
or retirement account contributions.
Adam Probolsky, President Probolsky Research will serve as the project manager and key contact for the
Services. Specific staff assigned to assist with completion of the Services are listed in Exhibit B — Probolsky
Research Staffing.
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 and their then current hourly
rates, if applicable, 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 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.
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 2 of 12
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: Proposal for Services subject to the requirements and limitations on compensation as provided
by this Section.
2.2 2.0 COMPENSATION and its Sub -Sections.
A. Fixed Contract Amount. The Contractor shall perform the Services and shall invoice the Town
for work performed based on three (3) performance benchmarks: 1) Survey Design, 2) Completion of
Field Work, and 3) Delivery of Final Report. Total compensation (including all reimbursable expenses)
shall be Twenty -Three Thousand, Two Hundred and Fifty Dollars ($23,250.00) to be paid in three (3)
equal installments according to performance benchmarks as described above.
B. 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.
C. 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 describing the completion of each performance benchmark
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
performance benchmark, 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 (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.
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 3 of 12
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 11th day of April, 2018, at 12:01 a.m., ("Effective
Date") and shall terminate at 11:59 p.m, on December 31, 2018, 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 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
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 4 of 12
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 Sub -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 Sub -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 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 Sub -Section 4.4, nothing in this Sub -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 Sub -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 Sub -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 TERM
AND TERMINATION 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
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 5 of 12
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
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 Sub -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.
5.2 Additional Requirements for All Policies. In addition to specific requirements imposed on
insurance by this Section 5.0 INSURANCE 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
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 6 of 12
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 INSURANCE 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 sufficient to demonstrate conformance with this Section 5.0 INSURANCE
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 Sub -Section 1.1, 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.
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
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 7 of 12
B. obligate such personnel or subcontractors, as the case may be, upon terms and conditions no
less restrictive than are contained in this Section 6.0 OWNERSHIP OF DOCUMENTS, 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 this Section 6.0 OWNERSHIP OF DOCUMENTS.
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 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.
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 8 of 12
The foregoing remedies are cumulative and the Town, it its sole discretion, may exercise any or all of the
remedies individually or simultaneously.
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
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.
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 9 of 12
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 Eagle 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 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 Illegal Aliens. This Agreement is subject to the provisions of the Illegal Aliens -Public Contracts
for Services Act found at C.R.S. Section 8-17.5-101 et seq. By execution of this Agreement, Contractor
certifies that it does not knowingly employ or contract with an illegal alien who will perform work under
this Agreement and that Contractor will participate in either the E -Verify Program or Department Program
to confirm the eligibility of all employees who are newly hired for employment to perform work under this
Agreement. As used in this Section 9.14, "Department" means the Colorado Department of Labor and
Employment.
A. Specifically, Contractor shall not:
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 10 of 12
i. Knowingly employ or contract with an illegal alien to perform work under this Agreement;
or
ii. Enter into a contract with a subcontractor that fails to certify to Contractor that the
subcontractor shall not knowingly employ or contract with an illegal alien to perform work
under this Agreement.
B. Contractor has confirmed the employment eligibility of all employees who are newly hired for
employment to perform work under this Agreement through participation in either the E -Verify
Program or Department Program.
C. Contractor shall use either the E -Verify Program or Department Program to undertake pre-
employment screening of job applicants while this Agreement is in effect.
D. If Contractor obtains actual knowledge that any of its subcontractors performing work under this
Agreement knowingly employs or contracts with an illegal alien, Contractor shall:
i. Notify the subcontractor and Town, within three (3) days of discovery of such fact, that
Contractor has actual knowledge that the subcontractor is employing or contracting with
an illegal alien; and
ii. Terminate the contract with the subcontractor if, within three (3) days of receiving the
notice required by subpart D.(i) above, the subcontractor does not stop employing or
contracting with the illegal alien; except that Contractor need not terminate the contract
with the subcontractor if, during such three (3) days, the subcontractor provides
information establishing that the subcontractor has not knowingly employed or
contracted with an illegal alien.
E. Contractor shall comply with any reasonable request by the Department made during an
investigation that the Department is undertaking pursuant to the authority established in C.R.S.
Section 8-17.5-102(5).
F. If Contractor violates any of the provisions of this Section 9.14, Town shall have the right to
terminate the Agreement for breach of contract and, in such case, Contractor shall be liable to
Town for all actual and consequential damages incurred by Town as a result of such breach and
the termination of this Agreement.
G. Town will notify the Office of the Secretary of State if Contractor violates this provision of this
Agreement and the Town terminates this Agreement for such breach.
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
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 11 of 12
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. Written
notice may also be provided by electronic mail which shall be deemed delivered when receipt is
acknowledged by reply of the recipient.
If to the Town:
If to the Contractor:
Virginia Egger, Town Manager
Adam Probolsky, President
Town of Avon
Probolsky Research
P.O. Box 975
3990 Westerly Place Suite 185
1 Lake Street
Newport Beach, CA 92660
Avon, Colorado 81620
adamN( Probolskyresearch.com
veggeravon.grg
With Copy to: Preston Neill
Town of Avon
P.O. Box 975
1 Lake Street
Avon, Colorado 81620
pneill anavon.org
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.
TOWN OF AVON, COLORADO
By:
Name: Preston Neill
Position: Deputy Town Manager
ATTEST:
Debbie Hoppe, Town Clerk
CONTRACTOR:
By: (f
Name: Adam Probolsky
Position: President
Probolsky Research — Town of Avon Community Survey Agreement
April 11, 2018
Page 12 of 12
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
Scope of Work
We have a simplified process that delivers actionable results.
I I I I I I I
ISMAL INFORMATION RIMM" (A srTf?mvAw 11.NGVAGE:TRAINS LAWN) SURVFY FIELDWO kM. Kr OF.Vr )PMVP ftgr PO'W V
CONSULTATION MATFAUM 1YBVFJ.Ormwr SAMN S PROCUREMENT, AND AND DEUVERY ONSULUVON,
AND PROGRIMIMINC, MOMl MNO CtrST MMWR$NORTI
PAST R PAKC11 IQCTW"No ANDUNUMITCD
ANDTRAYNtM AVAILABILrrY
Survey Development
We understand that the Town is looking to conduct research on its permanent and part-time residents, and
business owners, concerning several key aspects of life in Avon. We understand the importance of this
research effort in maintaining and improving upon the way the Town interacts, plans, and budgets for the
best interests of the people of Avon. Specifically, we will:
• Identify key issues of importance for residents and businesses and provide
prioritization of those issues
• Determine broadly resident and business perceptions of the Town of Avon
• Measure residents and business overall satisfaction with specific Town departments
• Assess community support among emerging concerns such as land use policies, economic
development, and others that are discovered in the pre -research process
• Profile respondents demographically/geographically throughout the town such as by age,
gender, education level, residency status, home/business ownership status, and by geographic
area within the Town
• Provide comparative analysis of our research results with results of prior surveys
• Establish a roadmap for how best to design communication and outreach
Multi -Mode Methodology
We recommend using a multi -mode methodology, conducting the research via telephone and online. We
also strongly recommend conducting separate surveys for residents and businesses. The experience of
residents differs greatly from the two groups, so the questions asked of each group should therefore be
different. There are also differences in how we would contact the two groups.
In our experience, we have never offered prizes to opinion research participants and we do not expect
the need for such incentives. However, if the Town feels strongly that we offer them, we have a large
reserve ($7,200) of Starbucks gift cards used for our market research (corporate) clients and would
gladly offer them at no additional cost to the Town. With four Starbucks in Avon, it seems they would be
well appreciated.
The Town had an impressive response rate to the 2015 survey. In most places the size of Avon, the
response rate would be less than half. Clearly the residents and business in the Town are engaged and
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
care about the direction of the community. Our aim will be to build on this past success through our
multi -mode engagementplan.
Community Engagement Recommendations Prior to Survey
While not traditionally a part of the research process, we embrace the idea of holding a community input
meeting, or charrette of sorts, to hear residents and business management ideas for what to include in
the research. While not a formal focus group, this would be akin to one, and offer great insight as we
prepare the survey instrument. Of course, we would not charge for this session that could be
marketed on the Town's website, social media channels and by earned media.
Step 1: Email/Online Survey
We recognize that some respondents are more likely to respond to an email and complete a survey
online. We have also seen some limited evidence that those responding online (without the intervention
of a live interviewer) may offer different responses to questions. For those reasons, we will conduct a
portion of this survey online.
Spanish will be included in the online portion of the surveys. Online participants can choose their
preferred language at the onset of their online survey experience.
We use data integrity measures to ensure that respondents are only able to participate in the survey
once. Our online polling platform is easy to use and allows respondents to complete the survey from any
device: computer, tablet or mobile phone.
Step 2: Telephone Survey
We will contact respondents on their landlines and mobile phones. Studies conducted for the U.S.
Centers for Disease Control and Prevention indicate that more than half (50.5%) of U.S. households
have cut their landline service entirely. For this reason, we will call landlines and mobile phones. We
place no limit on the number of mobile phone completes, meaning that we match the percentage of
respondents who prefer to respond on mobile phones.
We believe that conducting research in the language most comfortable to respondents is critical in
obtaining accurate results. We include Spanish and we place no limit on Spanish respondents.
We initiate all interviewing calls, with live -U.S. based interviewers, in English and switch to Spanish only
upon request or when a clear language communication issue presents itself.
Step 3: Text/Online Survey
After distributing surveys via email and calling, we will encourage online survey responses from residents
and businesses who have not yet responded, via text (SMS) messaging. We will launch a text message
with a brief message to complete the survey, with a link provided for mobile phone users to access the
online survey with ease.
PROBOLSKY
RESEARCH Newport Beach
L
San Francisco Washington DC
2
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
Additional Methodology: Public Listening Tool TM
When time or budget do not allow for focus groups
Tell us why you think homelessness
to be arranged, we use our Public Listening TooIT""
is a problem in Orange County.
It involves calling residents, asking them a question
-
or questions about a subject matter, and then
asking them to tell us why they chose their answer.
Because I saw a tot of people camping along
the riverbank and under ftcenter inSardaAm.
The results are fantastically informative. They offer
some aspects of the rich results that come from
Homeavow
traditional focus groups, specifically the chance to
La HabraZ71-:771
vernacular and tone.
We create a video for each Public Listening TooITM that includes the questions asked, a live transcription
of the responses and some demographic information about the person answering the question. You can
watch a Public Listening TooITM in action at this link: https://vimeo.com/253757126
We are offering one Public Listening Tool session at no cost to the Town.
Sample Development & Survey Process
Sample Stratification
Probolsky Research applies a stratified random sampling methodology to our sample design, ensuring
that the demographic proportions of survey respondents match the demographic make-up of likely
residents in Avon. The advantages to stratified random sampling include:
1. Stratified random sampling delivers significantly greater accuracy in our results by ensuring that
our respondents mirror the target population.
2. It allows us to assess how opinions differ among sub -groups (such as by Town area) — providing
guidance for a targeted messaging strategy that ensures the most effective message is delivered
to the most receptive audiences.
The statistically valid sample will be compiled from property records obtained from the Eagle County
Assessor's office, voter registration data secured from the office of the Eagle County Clerk & Recorder,
and Town business license records. We will then enhance this database by purchasing consumer and
business databases so we know we are calling and texting the most accurate phone numbers (both
landlines and mobile phones) and emailing current email addresses.
Unique to Probolsky Research: We match the demographics of Avon residents. This means we do not use
mathematical calculations to weight results — we capture the real responses of the right number of men
and women, age groups, ethnicity, location within the Town, etc. This is critical to accuracy. Weighting of
results in a resident survey is unnecessary and results in less accurate data.
Survey Process
Probolsky Research will meet with Town staff and other key committee members to develop the themes
and essential questions the survey needs to answer. We are happy to attend on-site meetings as
PROBOLSKV 3
RESEARCH NewportBeach San Francisco Washington DC
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
requested before, during and after our research and strategy advisory services. We do not charge for
on-site meeting attendance.
Using the information gleaned from meetings, conference calls, background information provided by the
Town, and our own open -source research, Probolsky Research will select question types (open ended,
multiple choice, debate block, etc.) for each information snapshot required. Then, we will construct each
question, with care given to using simple language. We also pay particular attention to answer choices,
ensuring that we do not have too many possibilities, nor too few (running the risk of overlooking key
data). We will order the questions to limit biasing results.
Staff Review & Survey Approval
Probolsky Research will provide draft survey questions. The Town will have the opportunity to review
a n d comment. Following a meeting or conference call, in which we discuss proposed modifications,
Probolsky Research will incorporate agreed-upon changes. We recognize that this may require several
rounds of revisions. Once we produce a final draft, we will submit it for final approval before the survey is
fielded. We understand the Avon Town Council will approve the survey on May 22, 2018, and we will be
required to be at that meeting. The date is subject to change.
Conduct Survey and Interpret Results
We will establish quotas to match the resident universe model and program them along with the survey
into our software utilized by professional live interviewers for the telephone portion of the survey.
After programming, the survey is tested for logic and presentation.
We email/text invitations to residents to complete the survey online and begin calling as well.
Live interviewing can take place from 9AM — 8PM Monday — Thursday, and 10AM — 4PM on Saturday
and Sunday. Online respondents have the option to respond to the survey at their convenience, 24/7.
Once the poll is complete, the results are first analyzed by IBM SPSS Watson Analytics software and
output for our data team to analyze further. We believe strongly in technology, but never lose sight of the
human factor in the work we do. Cross tabulations are developed, graphics are generated, and other
elements of the report are prepared.
We put the responses to open-ended questions into categories, and then present the open-ended
responses with demographic overlay. This will allow you to understand the experience of Avon residents
and businesses (by age, gender, location within the Town, etc.) when reading their comments.
Survey Reporting & Analysis
Probolsky Research will perform an analysis of the results and then develop and deliver a
comprehensive report on results in electronic format (our preferred method). Our reporting uses common
language and can be used immediately by decision makers. The report will include:
1. Graphic presentation including infographics for communicating key findings
2. Report on results including methodological description, contact disposition report, topline
results, key findings executive summary, cross -tabulations, and open-ended question
presentation with demographic overlay.
3. Unlimited in-person presentations and availability for strategy meetings and conference calls as
directed by staff.
Newport Beach San Francisco Washington DC
M11
4
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
After delivering draft reporting (in both Word and PDF format) on July 17 and presenting at the work
session to the Town Council on July 24, we will work with staff to make changes and once approved, we
will present the final report to the Council and deliver the final report (in Word and PDF format) by August
1. We welcome the chance to present to the Council and other key groups as requested by staff, and we
do not charge extra for additional presentations. We understand that dates are subject to change.
We include unlimited post -research consulting and meeting time to allow us to participate in strategy
sessions and collaborate with Town staff on an ongoing basis.
Other Consulting — Outreach and Storytelling
We are not just about numbers; we are storytellers. We will work closely with staff and other consultants
as directed to assist with communications and outreach planning development in whatever capacity you
want our help. We offer optional storytelling services at no additional charge to the Town that includes:
• Developing talking points and conduct message training
• Creating written and graphic content for slide deck presentations
• Writing compelling social media and blog posts, and content for direct mail, media releases,
newsletters and outreach campaign
• Producing video and audio spots suitable for cable TV, Internet pre -roll, radio and social media
Sub -Consultants
We utilize the services of several U.S.-based field house vendors who complete survey calls with live
professional interviewers. This allows us to maintain constant availability to complete research projects.
P[iOBOLSKY 5
RESEARCH NewportBeach San Francisco Washington DC
EXHIBIT A -
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
Town Responsibilities
Our goal is always to minimize the need for Town staff involvement, but always keep staff informed and
obtain approval before moving ahead with any step of the project.
Here are some specific points where staff will need to engage with our efforts:
• Kick-off meeting and providing background information such as on budget and service -levels
• Review survey drafts and provide input/provide final approval
• Review research reporting and provide input/provide final approval
• Review content, graphics and video and provide input/provide final approval
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
Cost Proposal
Based on the information provided by the Town and our own open -source research, we have outlined
the following research options.
We do not charge for travel, specialized reporting, presentations, or other expenses. Services include:
• Surveying residents and businesses on landlines, mobile phones and online
• Stratified random sampling accurately representative of Avon residents and businesses
• English and Spanish interviewing and translation
• No limit on -person, phone or video conferencing meetings, consultations and presentations
• Comprehensive reporting including presentation and infographics - focused on usable data
• Extensive local government and community satisfaction experience
Multi -Mode Survey: Residents and Businesses
Number of
Questions/Time
Universe
Number of Respondents
Margin of
Error
Cost*
TBD
Among Avon
residents
No limit
+/-5%
$15,750
TBD
Among Avon
businesses
No limit
+/-6.3%
$7,500
Languages: English and Spanish
Level of confidence: 95%
"Total not -to -exceed budget.
Public Listening Too ITM (Optional)
Respondents Cost
Approx. 100 ONE AT NO CHARGE (each additional $3,500)
Staff Hourly Billable Rates*
"We do not bill by the hour.
Please let us know if we can offer alternative cost options to accommodate the need of the Town.
Hourly Billable Rate
Desiree Probolsk
$140
Adam Probolsky
$125
Laura Flores
$45
Victoria Griffin
$45
Shalom Veffer
$95
"We do not bill by the hour.
Please let us know if we can offer alternative cost options to accommodate the need of the Town.
EXHIBIT A —
2018 Town of Avon Community Survey
Scope of Services and Timeline for Completion
2018 TOWN OF AVON COMMUNITY SURVEY TIMELINE
All times are MDT
April 11—
Survey Design, includes meetings with
May 16, 2018
Town Committee members, key staff and the community
May 22, 2018
Meet with Town Council to Finalize Survey Instrument
5:00 p.m.
May 25, 2018
Survey Fielding Begins
June 29, 2018
Survey Return Deadline
July 17, 2018
Draft Results Due
July 24, 2oi8
Presentation of Draft Results to Town Council
5:00 p.m.
August 1, 2018
Final Report Delivered and On -Going Consultation
EXHIBIT B
PROBOLSKY RESEARCH STAFFING
Introduction
Established for twenty-five years and organized as a Limited Liability Corporation, Probolsky Research
specializes in opinion research on elections and public policy with business, government, non-profit and
political practice areas. We are a woman -owned, Latina -owned, Certified Small Business Enterprise.
This organizational chart shows the specific staff we've selected to work on this project for the Town.
Our research services include telephone surveys, field studies, on-site surveys, mail surveys, executive
level one-on-one interviews, employee surveys, online surveys, text surveys, social media surveys, focus
groups, video sentiment analysis, video illustrations of research results, and ridership surveys.
There is nothing cookie -cutter about the research we do on behalf of local government. There are
however common themes we see regularly, and Avon is not alone in dealing with the emerging issues
such as housing and development issues. We have done extensive research on both and offer a unique
approach to fully capture community sentiments.
Providing staff and policy makers with the public's perception of Town departments including
community development, police services, and public works can be a powerful tool for improving
customer satisfaction and maintaining high standards. There can be a real emotional connection to
issues such as population size, homelessness and housing affordability, and equity and inclusion — our
research approach captures this emotion and quantifies it.
PROBOISKY
RPSEARCH Newport Beach San Francisco Washington DC