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11-08-2011 Beaver Creek Metropolitan District (2) Vehicle and Equipment Maintenance Service AgreementVEHICLE AND EQUIPMENT SERVICE AGREEMENT This agreement is made and entered into this day of&S—L2011 by and between Beaver Creek Metropolitan District whose address is P.O. Box 2560, Edwards Colorado, 81632 (hereafter know as "BCMD") and the Town of Avon whose address is P.O. Box 975, 500 Swift Gulch Road, Avon, Colorado, 81620 (hereafter designated as "Contractor"). In consideration of the obligation of BCMD to pay the Contractor as herein provided and in consideration of the other terms and conditions hereof, the parties agree as follows: 1. Contractor Services: Contractor will, during the tenn of this Agreement, provide the following services (collectively the "Services"): (a) Routine maintenance and preventive maintenance ("Routine Maintenance") of the BCMD vehicles and equipment. Service will be performed on approximately 22 transit buses listed in Exhibit A. The number of vehicles serviced may be increased or decreased in BCMD's sole discretion. Routine Maintenance will be performed at a minimum frequency and scope of work consistent with the manufacturer's recommendations or when initiated at the request of BCMD. (b) Repair and replacement work as requested by BCMD ("Repair and Replacement"). No payment for any Repair and Replacement shall be due unless BCMD has approved of such charges. Services may be commenced with verbal approval by BCMD of a written or verbal estimate provided by Contractor. Repair and Replacement includes, without limitation, transmissions repairs, engine repairs, rear end repairs and any other work or repairs exceeding $2,000.00. BCMD acknowledges that subcontractors will perform certain repair work. Contractor shall be responsible for assuring that all such subcontracted work will be performed promptly and in accordance with the terms and conditions of this Agreement. 2. Facilities: Contractor represents that its facilities are in good repair and adequately equipped and that it has a sufficient staff to perform all work in a timely manner. 3. Compensation: In consideration of Contractor's services during the term of this Agreement, BCMD will pay Contractor a unit hourly shop rate for Routine Maintenance and Repair and Replacement. This unit rate shall be $102.00 per hour for light duty vehicles and equipment and $110 per hour for heavy duty vehicles and equipment. Materials and sublet work shall be charged at cost plus fifteen percent (15%). Invoice shall be issued by the 10`h of each month for services performed the previous month. Payment shall be remitted within thirty (30) days of receipt of invoice. Contractor's Fueling Facilities may be used by BCMD. The cost of Unleaded Gasoline and Diesel Fuel will be at the Contractor's cost plus ten percent. Contractor's vehicle washing facility may be used by BCMD. Contact TOA for current wash rates. 1/28/11 4. Terms and Termination: This Agreement will be effective as of October 1, 2011 and will terminate on September 30, 2012 unless either party fails to substantially perform the duties and obligations in accordance herewith. In such an event, the other party may terminate this Agreement upon seven (7) days written notice to that party, unless that party cures the breach within the seven (7) day remedy period. Either party may terminate this Agreement without cause upon thirty (30) days written notice. 5. Relationships and Taxes: The relationship between the parties is that of independent contracting parties, and nothing herein shall be deemed or construed by the parties hereto or by any third party as creating a relationship of principal and agent or partnership, or of a joint venture between the parties. Contractor shall be solely responsible for any tax, withholding or contribution levied by the Federal Social Security Act. Contractor is not entitled to unemployment compensation or other employment related benefits, which are otherwise made available by BCMD to its employees. Contractor shall provide BCMD an original of its Form W-9 (Request for Taxpayer Identification Number of Certification). 6. Warranty: Contractor shall perform all Services in a prompt, efficient and workmanlike manner. Contractor shall promptly correct any defective work at contractor's sole cost and expense. This warranty shall be in lieu of all other warranties, express or implied. Contractor's sole liability hereunder, whether in tort or in contract, is expressly limited to the warranty provided for herein. 7. Assignment: Contractor's duties hereunder requires particular expertise and skills, and may not be assigned to any third party without the expressed written consent of BCMD, and any attempt to do so shall render this Agreement null and void and no effect as respects the assignee (s) and shall constitute an event of default by Contractor. 8. Waiver: Failure to insist upon strict compliance with any teens, covenants, and/ or conditions hereof shall not be deemed a waiver of such ten -n, covenant, or condition, nor shall any waiver or relinquishment of any right or power hereunder at any time or more times be deemed a waiver or relinquishment of such right or power at any other time or times. 9. Benefit: The ten -ns, provisions, and covenants contained in this Agreement shall apply to, inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest, and legal representatives except as otherwise herein expressly provided. 10. Situs and Severability: The laws of the State of Colorado shall govern the interpretation, validity, performance and enforcement of this Agreement. If any provision of this Agreement shall be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. 11. Modification: This Agreement contains the entire agreement between the parties, and no agreement shall be effective to change, modify, or terminate in whole or in part unless such agreement is in writing and duly signed by the party against whom enforcement of such change, modification, or termination is sought. 2 1/28/11 12. Non -Liability of Town for Indirect or Consequential Damages or Lost Profits: Parties agree that the Contractor shall not be liable for any indirect or consequential damages which may arise from any breach of this Service Agreement by Contractor or which may arise by the Contractor's breach of warranty. 13. 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 Contractor, its officials, employees, contractors, or agents, or any other person acting on behalf of the Contractor 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. 14. 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 BCMD. 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. 15. Article X, Section 20/TABOR: The Parties understand and acknowledge that the Town and BCMD are 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 Parties are expressly dependent and conditioned upon the continuing availability of funds beyond the teen of the Parties' current fiscal period ending upon the next succeeding December 31. Financial obligations of the Parties 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 the Parties, , and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. EXl Bea By: EX TO By: 1/28/11 EXHIBIT A NOTE: Included as a part of Exhibit A is the vehicle listing applicable to this agreement as of September 20, 2011 VIN I Pax I Manufacturer I Equipment Type Owner Unit 1N93623476A140297 50 Optima Heavy Bus Beaver Creek 997 1 N93623456A140296 50 Optima Heavy Bus Beaver Creek 996 1Z9B5BSS54W216252 51 Optima Heavy Bus Beaver Creek 852 1Z9B5BSS34W216251 51 Optima Heavy Bus Beaver Creek 851 15GCD2018T1087501 60 Gillig Heavy Bus Beaver Creek 848 15GCD201XT1087497 60 Gillig Heavy Bus Beaver Creek 844 15GGD271291177582 70 Gillig Heavy Bus Beaver Creek 082 15GGD271491177583 70 Gillig Heavy Bus Beaver Creek 083 15GCD2010T1087492 60 Gillig Heavy Bus Beaver Creek 839 1 GBJ5V1 GX7F419693 35 Star Craft Heavy bod on chass Beaver Creek 793 1 GBJ5V1 G27F419462 35 Star Craft Heavy bod on chass Beaver Creek 762 1Z9B7DTS16W216160 50 Optima Heavy Bus Beaver Creek 760 1Z9B7DTS56W216159 50 Optima Heavy Bus Beaver Creek 759 1Z9B6DTS05W216149 50 Optima Heavy Bus Beaver Creek 649 1Z9B6DTS95W216148 50 Optima Heavy Bus Beaver Creek 648 1Z9B6DTS75W216147 50 Optima Heavy Bus Beaver Creek 647 1Z9B6DTS55W216146 50 Optima Heavy Bus Beaver Creek 646 1 GBJ5V1 EX5F502164 34 Terra Transit Heavy bod on chass Beaver Creek 564 1 GBJ5V1 E75F502655 34 Terra Transit Heavy bod on chass Beaver Creek 555 1 GBJ5V1 El 5F502344 34 Terra Transit Heavy bod on chass Beaver Creek 544 15GGD271X81079690 70 Gillig Heavy Bus Beaver Creek 960 15GGD271181079691 70 Gillig Heavy Bus Beaver Creek 961 4 1 /28/1 l