11-01-2007 BEAVER CREEK METROPOLITAN DISTRICT INTERGOVERNMENTAL AGREEMENT FOR TRANSPORTATION SERVICESINTERGOVERNMENTAL AGREEMENT
FOR
TRANSPORTATION SERVICES
This Agreement for Transportation Services (the "Agreement"), dated to be effective
November 1, 2007, is entered into by and between Beaver Creek Metropolitan District, a
quasi-municipal corporation and political subdivision of the State of Colorado ("District")
and the Town of Avon, a municipal corporation of the State of Colorado ("TOA").
RECITALS
WHEREAS, TOA represents that it is qualified in the field of public transportation
and is willing and able to satisfy the requirements of this Agreement for the consideration
specified herein, and at the level of service and operating quality specified herein; and
WHEREAS, District desires to engage TOA to operate and maintain the
transportation system known as the "Free Parking Lot Service," as well as various special
event transit services (the "System") pursuant to the standards and specifications set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, conditions and agreements
set forth herein, TOA and District agree as follows:
1. Term of Agreement. This Agreement shall be in full force and effect for one year
("Term") beginning November 1, 2007 and ending October 31, provided, however, at the option of
either Party and with written consent of the other Party, this Agreement may annually be extended.
In the event any Party desires to extend this Agreement for any succeeding one full year period,
such Party shall, not later than July 15th of the then current Term, notify the other Party, in writing,
of the Party's desire to exercise its right to extend the Agreement for another year. Upon receipt of
such notice, the other Party shall have thirty (30) days to state its willingness to extend for such
additional one-year period upon the same terms and conditions, or upon such changed terms and
conditions as the Parties shall agree. Unless otherwise subsequently amended, this Agreement shall
terminate at the end of the Term then in effect.
2. Scope of Bus Services. In accordance with the terms and provisions of this
Agreement, TOA shall provide: (i) the Scheduled and Special Event Bus Service (see
Sections 2a and 2b), and Charter Bus Service (see Section 2c) as described below, and (ii)
operate and manage such bus service and the System as a whole in a safe manner, and as
1 U712007 1 IGA for 200708 Parking Lot system
reasonably directed from time to time by District. Taken together, this scope is hereafter
referred to as the "Service".
(a) Scheduled Bus Service. TOA shall provide "Scheduled Bus Service"
within the Beaver Creek Subdivision as described below. Service shall be free to all riders
and TOA shall not collect any fare from such riders. District reserves the right to modify the
service level requirements of the Scheduled Bus Service described in Subsection 2(a)(i) at
any time, and to modify the service level requirements of the Special Event Bus Service
described in Subsection 2(a)(ii) from time to time upon five days advance written notice to
TOA of any required modification subject nonetheless to availability of necessary vehicles,
personnel and equipment.
(i) Parking Lots and Bus Stops. As a minimum level of service,
Scheduled Bus Service shall be provided between and among the following parking lots and
bus stops: Beaver Creek Landing, Wolf Parking Lot, Bear Parking Lot, River Edge
Employee Housing, Elk Parking Lot, and the Covered Bridge Bus Stop. This service shall be
provided at all times the mountain facility is open for skiing. The approximate intervals of
Scheduled Bus Service shall be as follows: every seven (7) minutes from 5:30 a.m. to 11:30
a.m.; every ten (10) minutes from 11:30 a.m. to 2:30 p.m.; every five (5) minutes from 2:30
p.m. to 5:30 p.m.; every ten (10) minutes from 5:30 p.m. to 10:00 p.m.; every twenty (20)
minutes from 10:00 p.m. to 2:30 a.m., with the last bus stopping at the Covered Bridge Bus
Stop at 2:30 a.m. It is understood that the Wolf Parking Lot requires Bus Service only during
peak times determined by the volume of cars parking in the resort. It is understood and
agreed that the foregoing standards and specifications are minimum desired frequencies, and
that actual bus schedules may vary and that TOA and District shall have the right to augment
service levels as either determines appropriate during periods of peak demand on the System
(subject to availability of rolling stock and drivers); provided that regardless of the
circumstances, in the event that the amount of service hours per year exceed the aggregate
amount set forth in Section 2(b) of this Agreement (see "Service Hour Estimate"), TOA shall
be entitled to additional and full compensation for all services actually delivered.
During those times when the mountain facility is closed for skiing, the
minimum level of service at each stop shall be as follows: every twenty (20) minutes from
5:30 a.m. to 2:30 a.m., with the last bus stopping at the Covered Bridge Bus Stop at 2:30 a.m.
It is understood and agreed that these are minimum required frequencies and that actual bus
schedules may vary, and that TOA and District shall have the right to augment service
levels, as described in subsection 2(a)(iii) below.
(ii) Special Events. Special event hours will not be predetermined.
TOA is required to provide "Special Event Service" when requested by District upon a
minimum of 30 days advance notice to TOA. Additional costs, if any, associated with
Special Event Service shall be reflected in the monthly billings from TOA to District.
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(iii) Requests for Service. District shall submit to TOA by July 15 of
each year a written request for Service for the upcoming Term of the agreement which
includes specific operating details for the Service (including but not limited to: location of
route(s), direction, names of stops, headways, number of operating buses, number of buses
for augmentation and spare count, operating times and dates, and specific vehicles). TOA
will provide a Service Hour Estimate for the requested Service within 14 days of receipt of
the request by District . District will negotiate with TOA to adjust the service request as
needed over and above the minimum requirements stated in Subsection 2(a)(1) above.
District and TOA shall together strive in good faith to reach consensus on the details of
Service and the Service Hour Estimate as defined in Section 2(b) on or before August 15 of
each year for the upcoming Term. District will monitor System conditions and demands on a
daily basis and will have the authority to increase or decrease the level of service being
provided per Section 2(a). By way of explanation and not limitation, District shall have
authority to request from TOA that additional man hours, vehicles and/or equipment be
supplied, subject to availability of vehicles, personnel and equipment or that excess or
surplus vehicles or personnel be taken out of service.
On a monthly basis, District shall evaluate and report in writing to TOA
on TOA's performance under this Agreement, including the provision of Scheduled Bus
Service. District will work with TOA while preparing this evaluation in order to achieve the
maximum benefit from this exercise. Such reports shall be delivered to TOA and District
concurrently by the 15`h of each month. In evaluating TOA's performance, District shall,
among other things, utilize the guest surveys required for the Incentive Program described in
Section 6(b) below. TOA and District shall work cooperatively to develop the specific
questions and content of the survey to insure clarity and objectivity; the survey content will
be reviewed and approved by both parties by October 15`h of each calendar year for
administration during the upcoming Term. District shall administer or cause to administer
these guest surveys so as to ensure the reliability and integrity of the information collected.
Any information received by District, including raw survey results and professional statistical
analysis of these raw results, shall be shared with TOA's representative for mutual benefit.
(iv) Americans with Disabilities Act. All Scheduled and Special
Event Bus Service shall comply with the Americans with Disabilities Act. TOA shall
maintain and operate the vehicles so as to comply with all state and federal statutes and rules
and regulations. Any costs associated therewith shall be additional costs to be compensated
by District under Paragraph 7 of this Agreement.
(b) Service Hours. The number of service hours during the Term of this
Agreement is estimated to.be 21,501 service hours, hereafter termed the "Service Hour
Estimate," which is anticipated to be divided up on a monthly basis, as shown below
("Monthly Service Hour Estimates (MSHE)"):
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MONTHLY SERVICE HOUR ESTIMATES (MSHE)
85% of the
MSHE'
Monthly
Service Hour
Estimates
MSHE)
115% of the
MSHE*
November 2007
1,596
1,878
2,160
December 2007
1,979
2,328
2,677
January 2008
2,213
2,603
2,993
February 2008
2,028
2,386
2,744
March 2008
2,213
2,603
2,993
April 2008
999
1,175
1,351
May 2008
685
806
927
June 2008
1,346
1,584
1,822
July 2008
1,382
1,626
1,870
August 2008
1,382
1,626
1,870
September 2008
1,346
1,584
1,822
October 2008
1,107
1,302
1,497
Total Service
Hour Estimate 21.501
* Actual values below 85% of the MSHE or above 115% of MSHE is
"trigger point" for assessing additional surcharge.
The Parties understand that these estimates establish TOA's basis for hiring staff, housing
staff, training staff, budget for overtime hours, and the overall operating efficiency of TOA's
own transit routes and that a hardship is created for TOA if District makes additional service
requests after November 1 of each calendar year such that the total actual service hours
exceed the Total Service Hour Estimate, or if the actual hours each calendar month are either
less than 85% of the MSHE or greater than 115% of the MSHE values stated herein. In
recognition of this understanding, District agrees to pay for all Service, including that
accrued beyond the Service Hour Estimate, and to pay an additional $5 per service hour
surcharge for any and all service hours accrued beyond the Total Service Hour Estimate or
above the 115% MSHE. If the actual accrued number of service hours appears to be
approaching the MSHE, TOA agrees to notify District in writing prior to exceeding this
value while continuing the Service. In cases where the District has requested a decrease in
service such that the actual service hours are less than the 85% MSHE values listed herein,
the District agrees to pay $5 for each actual service hour below the 85% MSHE values listed
herein. The Parties further understand that TOA may not be able to deliver up to Service
Hour Estimate or the Monthly Service Hour Estimates due to circumstances beyond its
control (e.g., insufficient driver availability or weather).
(c) Charter Bus Service. TOA may provide such charter bus service as it
may decide at its own option using any vehicles and equipment as described in this
Agreement; provided, however, that District's vehicles and equipment may be utilized for
charter bus service only during the summer or at any time the mountain facility is closed for
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skiing and no other time; and provided further, that such charter bus service shall not in any
way adversely affect TOA's ability to provide Service described in this Agreement or the
cost thereof to District. TOA will compensate the District $5.00 per actual charter service
hour for use of their vehicles; this "charter use fee" payable to the District will be accounted
for and shown as a deduction from the normal monthly invoice sent to the District by TOA.
With the exception of this "charter use fee", all revenues derived by TOA and operating a
charter bus service shall be the sole property of TOA.
3. Obligations of District. District shall provide TOA with the following to be
used in the operation of the System:
(a) Vehicles and Equipment. For purposes of this Agreement, District
shall provide and pay for the cost of installation and maintenance of vehicle two-way radios,
public address systems, and wireless headset microphones used in connection with the
operation of the System ( "Equipment") and the vehicles listed on Exhibit "A" attached
hereto and incorporated herein by reference (the "Vehicles"). The Parties acknowledge that
the Vehicles and Equipment are subject to Section 5 hereof. Further, District expressly
reserves the right, with the written consent of TOA, which shall not be unreasonably
conditioned, delayed or withheld, to take possession of and utilize one or more of said
Vehicles and Equipment for the purpose of supplementing any Scheduled or Special Event
Bus Service described in this Agreement Such use of vehicles shall not in any way adversely
affect TOA's ability to provide services described in this Agreement.
(b) Advertising. District may arrange for advertising in the Vehicles and
District shall be entitled to all revenues derived therefrom. TOA understands and agrees that
it shall not advertise on the Vehicles without the prior written consent of District.
4. Obligations of TOA. TOA shall provide the following, in connection with the
operation of the System, during the Term of this Agreement:
(a) System Policy and Standards. TOA's provision of Scheduled and
Special Event Bus Service under this Agreement and its operation and maintenance of the
System shall at all times comply with the standards and performance objectives as set forth in
this Agreement. TOA shall notify District of any noncompliance of which TOA becomes
aware. In addition to the requirements and performance standards set forth elsewhere in this
Agreement, TOA shall at all times operate and maintain the System, including Scheduled and
Special Event Service in accordance with the following requirements:
o Drivers shall promptly recite one or more informational messages
upon leaving the Covered Bridge Bus Stop, as well as upon leaving
any parking lot or other bus stop. The content and number of
messages to be recited may vary depending upon the point of
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departure, and shall be as determined by District, in cooperation
with TOA.
• Drivers must be in uniform (approved by District or assigned
representative) at all times while visible to guests.
• Drivers may not smoke at any time while visible to guests.
• Drivers must greet/farewell each guest that passes within five feet.
• Notwithstanding the presence of "guest attendants" it is each
Driver's obligation and responsibility to help each guest load and
unload his or her skis and related equipment and to make sure that
the ski rack doors if so equipped are closed and that all guests are
clear before pulling the bus away from any stop.
• Each vehicle shall be equipped with a public address system
acceptable to District. Drivers must announce each stop using such
public address system upon departure and arrival.
• Drivers must announce the next stop upon departure.
• TOA will ensure that the interior and exterior of all vehicles are
clean.
• TOA will ensure that all destination signs are programmed with the
latest destinations, properly lit and in good working order.
• Drivers must inspect and adjust each destination sign to display the
correct information in accordance with the assigned route.
• If the driver encounters an unruly or rude passenger (e.g., appears to
be intoxicated, exceptionally loud or argumentative), the driver will,
in a professional and courteous manner, attempt to resolve the
situation. If the passenger refuses to comply with the driver's
directions, the driver will immediately notivy Beaver Creek Public
Safety and request their assistance.
(b) Licenses, Rules and Regulations.
(i) TOA shall acquire all required licenses and approvals to operate
all or any portion of the System from any state or federal agency, including without
limitation, a license from the State of Colorado Public Utilities Commission to operate as a
contractor; and
(ii) TOA shall comply with all laws, rules and regulations relating to
the operation and maintenance of the System, whether such rules and regulations are of
federal, state or local origination, including but not limited to District.
(c) Maintenance. TOA shall appropriately care for all real and personal
property and Equipment provided by District. TOA shall maintain all Vehicles used in the
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operation of the System in good order and repair and shall at all times ensure that the
operating capability of the Vehicles is in compliance with TOA's standards, District's
standards, the System Policy, the rules and regulations of the State of Colorado Public
Utilities Commission and all other applicable laws, rules and regulations. Subject to the
foregoing provisions of this subsection, the terms and conditions for vehicle maintenance for
District's transit fleet are set forth in a separate agreement
(d) Personnel.
(i) TOA shall furnish and be responsible for all personnel, including
but not limited to, supervisory personnel, drivers, dispatchers, road supervisors, mechanics,
maintenance workers and office personnel necessary to effectively operate the System. TOA
shall be responsible for the:
(A) Recruiting, hiring and supervision of all personnel;
(B) Licensing as required by law of all personnel who operate
any of the Vehicles; and
(C) Provision of all necessary employee training and
management for the operation of the System. TOA agrees that only properly trained,
competent and qualified drivers, holding currently valid Colorado licenses in such
classifications as required by the State of Colorado for such drivers and Colorado Department
of Transportation health cards, shall be employed as drivers by TOA and that such drivers
shall be familiar with and obey all laws, ordinances and regulations relating to the operation
of motor vehicles.
(ii) TOA shall have complete control and supervision over the
employment of all Personnel required to operate the System, including but not limited to,
their benefits, compensation and discharge.
(iii) TOA shall be responsible for all System employees; however,
District may advise TOA of any employee's inadequate performance which has had a
negative effect on the Services being provided and TOA shall take prompt action to remedy
the situation. TOA shall provide District, with copies of TOA's employment policies.
(iv) TOA shall ensure that all employees are properly attired in a
TOA-provided uniform when operating District vehicles or otherwise providing Service.
The uniforms that TOA shall provide shall be submitted to and approved in advance by
District, which approval shall not be unreasonably withheld, conditioned or delayed.
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(e) Bookkeeping and Office Management.
(1) TOA shall provide bookkeeping, accounting and accounting
records and office management for the System;
(ii) TOA shall prepare and retain all necessary System records and
documents in accordance with federal and state guidelines;
(iii) TOA shall prepare, maintain and provide all reports necessary for
the proper management of the System as agreed upon by both Parties;
(iv) TOA shall prepare, control and maintain all payroll records for
System employees; and
(v) TOA shall respond, within 72 hours, to all written requests from
District for information, or for copies of any records or other documents.
(f) Payment. TOA shall promptly pay all costs and expenses incurred in
connection with the System and not allow any liens to be attached and/or filed against any of
the Vehicles or Equipment.
(g) Reporting of Incidents. In the event of an incident involving any of the
Vehicles, TOA shall immediately notify District of such incident, file an accident report with
the appropriate governmental authority, notify the appropriate insurance carrier in accordance
with the policy of insurance and forward a copy of the accident report to District.
(h) Type of Buses Used. District shall have the right to specify whether
TOA shall utilize diesel or gasoline powered buses in providing Services hereunder. TOA
shall promptly respond and comply with any reasonable request by District to TOA that TOA
switch from one type of fuel powered bus to another type of fuel powered bus subject to the
availability of that type of bus. The Parties recognize that District's right to switch from
diesel powered buses to gasoline powered buses and vice versa is an important component of
this Agreement.
(i) Other.
(i) Except as provided by District in accordance with Section 3,
TOA shall provide and maintain all accessory equipment, warehouses, maintenance facilities
and office equipment necessary to provide the Services enumerated herein; and
(ii) TOA shall provide supervisory, management, and administrative
functions normally required in the operation of the System; and
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5. Indemnification.
(a) District agrees to the extent permitted by law and subject to the
immunities, defenses and protections afforded under the Colorado Governmental Immunity
Act, Section 24-10-101 et seq., C.R.S., to indemnify, defend and hold harmless TOA, its
respective agents, officers and employees of and from any and all loss, cost, damage, injury,
liability, claims, liens, demands, action and causes of action whatsoever, including
reasonable attorneys fees arising out of the indemnifying Parties intentional or negligent acts,
errors, omissions, or those of its agents, officers, servants and employees.
. (b) In consideration of District's indemnification, TOA agrees to the
extent permitted by law and subject to the immunities, defenses and protections afforded
under the Colorado Governmental Immunity Act, §24-10-101 et seq., C.R.S., to indemnify,
defend and hold harmless District, its respective agents, officers, and employees of and from
any or all loss, cost, damage, injury, liability, claims, liens, demands, action and causes of
action whatsoever, including reasonable attorneys fees arising out of the indemnifying
Parties' intentional or negligent acts, errors, omissions, or those of its agents, officers,
servants and employees.
(c) Except with respect to the obligations of (iii) hereof, the liability of
TOA hereunder shall be limited to the provision of services, and District shall have no claim
to special, incidental, consequential, indirect or tort damages for the breach hereof.
6. Condition Of Vehicles and Equipment.
(a) Vehicles. The Vehicles shall:
(i) Be inspected by TOA prior to commencement of this Agreement;
thereafter, TOA shall present District with a written list of repairs necessary for the Vehicles
to be in operable condition;
(ii) Be inspected by District at least forty (40) days prior to the
termination of the Agreement; thereafter, District shall present to TOA a written list of
repairs no later than thirty (30) days prior to the termination of this Agreement. In the event
that repairs are necessary, TOA shall have thirty (30) days from receipt of District's list of
repairs to effect such repairs and return the Vehicles to District; and
(iii) Be returned by TOA to District in the same condition as received,
ordinary wear and tear excepted.
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(iv) Be provided for operational use by District to TOA in sufficient
quantity to fulfill the terms of this Agreement, including adequate extras for route
augmentation, spares and other outages. District understands that TOA provides no
guarantee of availability of additional spare buses, vehicles, or equipment not owned by
District.
(b) Equipment. Equipment shall be delivered to TOA in its "as is"
condition; this may include ski racks, bike racks, or communications equipment. Upon
termination of this Agreement, TOA shall return all of the Equipment to District in the same
condition as it was received, ordinary wear and tear excepted. TOA shall be responsible for
the replacement, at no cost to District, of any item of Equipment that is not returned to
District, whether from loss, theft or failure to replace such Equipment.
7. Compensation, Invoicing, Payment and Reconciliation.
(a) Compensation. District shall compensate TOA each month, as
invoiced by TOA, in accordance with the annual budget prepared by TOA and approved by
District. In anticipation that this Agreement may be renewed annually, such budget shall be
submitted by TOA to District by August 15 of each year and District shall approve same,
with any items or changes pursuant to negotiation between the Parties by October 1, or 45
days after receipt (whichever occurs later), following submittal of the budget. Said budget
shall be deemed approved if no response is received by TOA within such specified time
period. Said budget will include the estimated cost of operating the entire System, including
all estimated variable costs that will be incurred to handle increased service demands
associated with various anticipated peaks and high volume service demands that District
and/or TOA anticipates during the year. District shall pay that portion of the entire System's
budgeted costs equal to its share of the total labor service hours devoted to the System as
determined and estimated by TOA (referred to as the Shared Cost). The budgeted Shared
Cost per service hour for this Term shall be that which is established through the annual
budget adoption by the Town of Avon. For 2007-2008, that amount is expected to be
approximately:
$55.00 per Service Hour - hereafter referred to as the "Service Hour Rate"
(i) Said Shared Cost shall include the fixed costs for operation of the
System during the budget year, which expense shall be paid in equal monthly installments.
(ii) From time to time, costs will arise that vary depending on the
extent of the operation of the System and that are not otherwise included as a fixed expense.
These variable costs will be determined on a monthly basis and billed to District on a
proportionate basis on variable hourly rates determined by the said budget multiplied by the
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monthly labor service hours. District shall pay monthly its proportionate share of such
additional variable costs when billed to it.
(iii) In cases where TOA has permitted the District to use TOA-owned
or TOA-leased vehicles, the District agrees to pay an additional $5 per service hour Lease
Surcharge for that vehicle use time.
(b) Incentive Program. In addition to the compensation provided in
subparagraph (a) above, and for the purpose of providing TOA with incentives to meet and
exceed the performance standard and System policies as established hereunder, (i) District
agrees to make incentive payments to TOA in accordance with the Incentive Program and
formula set forth on Exhibit B (consisting of two pages), as attached hereto and incorporated
herein by this reference; and (ii) TOA agrees to make deficiency payments to District as
more particularly described on Exhibit B, as to which District shall have a right of offset
against any compensation, incentive payments or other amounts due TOA under this
Agreement.
Such incentive payment shall be made monthly on the 15th day of the
calendar month with respect to performance for the month prior to the immediately preceding
month. The Incentive Program described above shall begin commencing with the start of this
Term and the first payment due by either of the Parties under such program shall be due on
January 15th of the Term.
(c) Invoicing.
(i) On or before the tenth day of each month during the Term of this
Agreement, TOA shall submit an invoice for payment to District on a monthly basis to the
address shown below:
Beaver Creek Metro District
c/o Robertson & Marchetti
28 Second St., #213
P.O. Box 600
Edwards, CO 81632
Attn: Kenneth J. Marchetti
Payment shall be made by District to TOA within thirty (30) days
after receipt. In the event that District disputes a charge listed on an invoice, District
agrees to notify TOA in writing of the disputed item and to promptly pay all other listed
costs shown on that invoice. District shall submit payment to TOA by means of a check
made payable to TOA and sent first-class mail to:
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Town of Avon
Department of Finance
PO Box 975
Avon, CO 81620
Attn: Mr. Scott Wright
swrightgavon.org E-mail
(ii) Such monthly invoice shall include the total number of hours of
operation of the System for the preceding month compared to budgeted hours. All backup
documentation required to substantiate the hours of operation, including but not limited to,
operator trip sheets and time cards for all Vehicle drivers, shall be available for District's
review upon request.
(d) Reconciliation. A reconciliation of the total System Shared Cost,
including an accounting and pro rata apportionment of actual fixed costs, shall be completed
by TOA on a calendar year basis. If the District has paid to TOA more than the actual
amounts due from the District, TOA will, at its option either refund such excess or credit
such excess against the next installment or installments payable by the District to TOA with
respect to any Invoice for Services. TOA shall adjust pro rata actual amounts due with
respect to any Invoice for any fractional year occurring during the Term of this Agreement or
during which the District shall be in existence and functioning based on the number of days
during such calendar year as compared to 365 days and TOA will accordingly adjust all sums
payable by or credit due to the District pursuant to this subsection.
(e) Obligations to Constitute Current Obligations of District and TOA.
Notwithstanding any other provision contained in this Agreement to the contrary, District
and TOA acknowledge and agree that all obligations of District and TOA under this
Agreement, including but not limited to the payment of the compensation set forth in this
Paragraph 7 are subject to annual budget and appropriation by District and TOA. District's
and TOA's obligations under this Agreement shall be from year to year only and shall not
constitute a multi-fiscal year debt or indirect debt or other obligation of District or TOA or an
obligation of District or TOA payable or to be fulfilled in any fiscal year beyond the fiscal
year for which funds are budgeted and appropriated for the payment or funding thereof, or
payable or funded from any funds of District or TOA other than funds budgeted and
appropriated for the payment of current expenditures. In the event nonappropriation by
District occurs, however, District shall be liable for all compensation payable to TOA and
allocable to any period during which District shall continue to receive or has received
services from TOA under this Agreement.
8. Audit and Inspection of Records. District or its authorized representative,
shall be afforded access to TOA's records, books, inventory and supporting documents and
similar data relating to the Services and operation of the System (the "Records"), and TOA
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shall preserve all such Records for a period of three (3) years after the termination of this
Agreement. In the event District shall determine there has been error on the part of TOA,
District may cause an audit to be made (the cost of such audit to be borne by the Parties pro
rata, on the same ratio as the fixed expenses were last prorated immediately prior to the said
Audit). If such audit shall determine that there has been an error in the accounting, and such
error results in a deficiency in the payment of the compensation due, then District shall
immediately pay TOA such deficient amount of compensation plus TOA's share of the audit
expense paid by TOA. If such audit shall determine that there has been an error in the
accounting, and such error results in an overpayment of compensation paid, then TOA shall
immediately reimburse District the amount of compensation determined to be overpaid plus
District's share of the audit expense paid by District.
9. Insurance. The Parties agree to each acquire and maintain appropriate
insurance coverage for their respective operations under this Agreement as more particularly
described in "Insurance Requirements", attached hereto as Exhibit "C" and by this reference
made a part hereof.
10. Termination. Except as otherwise provided herein, either Parry ("Terminating
Party") may terminate this Agreement with or without cause, by giving the other Party
("Non-Terminating Party") at least sixty (60) days prior written notice. In the event of such
termination, TOA shall be paid in accordance with this Agreement for all Services
performed up to and including the date of termination and un-reimbursed Fixed Costs. All of
the foregoing costs shall be determined on a pro rata basis allocated as the date of
termination. In the event of such termination, the Terminating Party shall pay the Non-
Terminating Party for any and all costs associated with closing-out this Service program,
including but not limited to additional reasonable and necessary costs that are directly
incurred by the Non-Terminating party as a result of early termination. Such payment may
include severance benefits paid to employees who are laid off as a result of early termination.
The District shall be provided with a copy of TOA's employment policy as it pertains to
award of employment termination-related benefits.
11. Default and Force Maieure.
(a) Default. If either Party (i) fails to perform in accordance with the
terms, covenants and conditions of this Agreement or is otherwise in default of any of the
terms of this Agreement; or (ii) files involuntary petition in bankruptcy or is declared
bankrupt or makes a general assignment for the benefit of its creditors, or is placed under a
general receivership, that Party shall be deemed to be in default under this Agreement. The
other Party, after giving ten (10) days prior written notice to the other Party of the alleged
default, and upon said defaulting Party's failure to cure such breach or to reasonably
commence to cure such breach within said ten (10) days, the non-defaulting Party shall have
the rights set forth under Section 12 hereof.
11/7/2007 13 IGA for 200708 Parking Lot system
(b) Force Maieure. In the event TOA is unable to perform any of the
services required hereunder because of acts of God, outbreak of war, earthquake, fuel
embargo, or similar events beyond the control of TOA, excluding normal weather conditions,
then TOA's obligation to perform the Services under this Agreement shall be suspended
during that period of time that such condition exists.
12. Remedies. In the event that either Party defaults under this Agreement, as set
forth in Section 10 above, the other Party shall have the following rights and remedies (but in
no case the obligation), in addition to all other remedies available to it at law or in equity:
(a) Termination. The non-defaulting Party shall have the right to terminate
this Agreement by giving notice in writing to the defaulting Party, subject to the right to cure,
pursuant to Section 11 hereof.
(b) Legal Action. The non-defaulting Party shall have the right to enforce
this Agreement in a court of competent jurisdiction or seek such other equitable relief as may
be appropriate, including but not limited to, temporary restraining orders and injunctions.
(c) Reimbursement. In connection with the enforcement of any or all of
the remedies set forth herein, the Party found to be in default agrees to reimburse the other
Party for all of its reasonable attorney fees and related expenses.
13. Assignment and Subcontracting. Neither District nor TOA shall assign,
delegate or transfer its duties under this Agreement without the prior written consent of the
other Party. TOA shall not enter into any transportation service subcontract hereunder
without prior written consent of District. Nothing herein contained however shall preclude
TOA from subcontracting for repair and maintenance services as needed on the vehicles.
14. Successors and Assigns. Subject to the provisions of Section 12, the terms of
this Agreement shall be binding on the successors and assigns of either Party.
15. Compliance with Law/Safety Program. TOA hereby warrants that:
(a) Standards. It will utilize the highest professional standards in
providing its Services;
(b) Compliance. It will comply with all applicable laws, ordinances, rules
and regulations, whether federal, state, local or otherwise affecting its Services; and
(c) Safety. It will be responsible for its own safety program and
compliance with all applicable Occupational Safety and Health Administration regulations.
11/7/2007 14 IGA for 200708 Parking Lot syste.
16. Notices. Any statement, notice, demand or communication which either Parry
may desire or be required to give to the other Party shall be in writing and shall be deemed
sufficiently given or rendered if delivered personally, by e-mail, or sent by first-class United
States mail, postage prepaid, addressed as follows:
If to District: Beaver Creek Metropolitan District
c/o Robertson & Marchetti
28 Second St., #213
P.O. Box 600
Edwards, CO 81632
Attn: Mr. Kenneth Marchetti
With a copy to: James P. Collins
Collins Cockrel & Cole
390 Union Blvd., Suite 400
Denver, CO 80228
If to TOA: Town of Avon
PO Box 1726
Avon, CO 81620
Attn-Mr. Scott Wright
swright(a avon.org E-mail
With a copy to: John W. Dunn
Law Offices of John W. Dunn, LLC
P.O.Box 7717
Avon, Co. 81620
(970) 748 6400 Telephone
(970) 748 8881 Fax
idunn(a)iwdunnlaw.com E-mail
Either Parry shall have the right to designate in writing, served as provided above, a
different address to which any notice, demand or communication is to be mailed.
17. Miscellaneous.
(a) Validity If any clause or provision of this Agreement shall be held to be
invalid in whole or in part, then the remaining clauses and provisions, or portions thereof,
shall nevertheless be and remain in full force and effect.
11/7/2007 15 IGA for 200708 Parking Lot system
(b) Changes. No amendment, alteration, modification of or addition to this
Agreement shall be valid or binding unless expressed in writing and signed by the Parties to
be bound thereby.
(c) Cautions. The captions of each section are added as a matter of
convenience only and shall be considered of no effect in the construction of any provision of
this Agreement.
(d) Warranties, Provisions and Rights. Any and all warranties,
provisions, rights and obligations of the Parties herein described and agreed to be performed
subsequent to the termination of this Agreement shall survive the termination of this
Agreement.
(e) Timeliness. Time is of the essence with respect to the performance of
each of the covenants and agreements herein set forth.
(f) Governing Law. This Agreement is governed by and must be
construed under the laws of the State of Colorado.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one agreement.
(h) Facsimile Copies. This Agreement and all documents to be executed
and delivered hereunder may be delivered in the form of a facsimile copy, subsequently
confirmed by delivery of the originally executed document.
(i) Entire Agreement. Except for the separate Fleet Maintenance
Agreement referred to in Section 4C above, this Agreement constitutes the entire agreement
between District and TOA concerning the subject matter of this Agreement. This Agreement
may not be amended or modified orally, but only by a written agreement executed by District
and TOA and designated as an amendment or modification of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the respective dates set forth below to become effective as of the date first written above.
Date:
BEAVER CREEK METROPOLITAN DISTRICT
11/7/2007 16 1GA for 200708 Parking Lot system
Y
Pre ident
ATTEST:
i
By: l~
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Secr dry
Date:
ATTEST:
By:
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CIJ Lb
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TOWN AV N, a municipal c oration
By
Mayor
11/7/2007 17 IGA for 2007_08 Parking Lot system
EXHIBIT "A"
(Attached to and forming part of the Agreement by and between the Beaver Creek
Metropolitan District ("District") and the Town of Avon ("TOA") dated to be effective
November 1, 2007)
Beaver Creek Parking Lot Bus Service
Beaver Creek Fleet List
hicle No.
Pending
Pending
759
760
646
647
648
649
851
852
839
840
842
844
846
848
762
793
544
555
564
VIN #
Pending
Pending
1 Z9B7DTS56W216159
1Z9B7DTS16W216160
1Z9B6DTS55VV216146
1Z9B6DTS55VV216147
1Z9l36DTS55VV216148
1Z9B6DTS55VV216149
1Z9B5BSS34VV216251
1Z9B5BSS54VV216252
15GCD2016T1087492
15GCD2012T1087493
15GCD2016T1087495
15GCD201 XT1087497
15GCD2013T1087499
15GCD2018T1087501
1 GBJ5V1 G27F419462
1 GBJ5V1 GX7F419693
1GBJ5V1El517502344
1 GBJ5V1 E75F502655
1 GBJ5V1 EX5F502164
Description
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Low-floor diesel bus
Diesel bus
Diesel bus
Diesel bus
Diesel bus
Diesel bus
Diesel bus
34-pax gasoline bus
34-pax gasoline bus
30-pax gasoline bus
30-pax gasoline bus
30-pax gasoline bus
Comments
2007 Optima 34'
2007 Optima 34'
2006 Optima 34'
2006 Optima 34'
2005 Optima 34'
2005 Optima 34'
2005 Optima 34'
2005 Optima 34'
2004 Optima 29'
2004 Optima 29'
1996 Gillig 40'
1996 Gillig 40'
1996 Gillig 40'
1996 Gillig 40'
1996 Gillig 40'
1996 Gillig 40'
2007 Chev C5500
2007 Chev C5500
2005 Chev C5500
2005 Chev C5500
2005 Chev C5500
Updated 9/7/2007
END OF EXHIBIT A
11/7/2007 18 IGA for 200708 Parking Lot system
EXHIBIT "B" Page 1 of 2
(Attached to and forming part of the Agreement by and between the Beaver Creek
Metropolitan District ("District") and the Town of Avon ("TOA") dated to be effective
November 1, 2007)
Incentive Program
1. Criteria to Establish Performance. The District shall evaluate TOA's performances with respect to
the following criteria based upon a survey of patrons conducted periodically at the District's expense
by the District or by a mutually acceptable third-party consultant (including RRC Associates) selected
by but unaffiliated with the District.
a) TOA's fixed-route response times known hereafter as Route Times
b) Professionalism and courtesy of TOA's drivers as rated in the survey.
c) Overall Service levels and performance as rated in the survey.
The score will be determined on a monthly basis using the following formula: Fixed Route Rating +
Professionalism Rating + Overall Service Rating = Score
Fixed Route Percentage means the percentage of time that on-time service is experienced at bus stops.
The weight is 33%. By way of example, (i) if on-time fixed-route service is rated 4.1 by patrons
taking the survey, then the Fixed Route Percentage =.82 x.33 = .271, and (ii) if on-time fixed-route
service is rated 4.5 by patrons taking the survey, then the Fixed Route Percentage = .9 x .33 = .297.
Professionalism and Courtesy Percentage means the percentage derived from the rating of drivers
with respect to courtesy and professionalism. The weight is 33%. By way of example, if drivers are
rated 3.5 by patrons taking the survey, the Professionalism Percentage = .7 x .33 = .231.
Overall Service Percentage means the rating of the current service on a scale from 1 to 5 with respect
to overall service and performance. The weight is 33%. By way of example, (i) if the current service
receives an average rating of 4.5, then the Overall Service Percentage for that month is .9 x .33 =
.297, and (ii) if the current service receives an average rating of 4.0, then the Overall Service
Percentage for that month is .8 x .33 = .264.
2. Payment Application. TOA shall combine all three values and apply the overall score to the table
below. TOA shall pay any incentive bonus received by TOA to those drivers, and other line level
employees who worked with guests during the period applicable to such bonus, in the form of
bonuses actually rewarding the employees responsible for achieving the System Policy and standards.
11/7/2007 19 IGA for 200708 Parking Lot system
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EXHIBIT "C" Page 1 of 2
(Attached to and forming part of the Agreement by and between the Beaver Creek
Metropolitan District ("District") and the Town of Avon ("TOA") dated to be effective
November 1, 2007)
Insurance Requirements
1. TOA's Insurance. TOA shall carry and pay the premiums for insurance of the types
and with limits of liability not less than stated below. Such insurance shall be maintained in
effect during the entire term of this Agreement.
(a) Comprehensive general liability insurance in a claims made format covering
maintenance of Vehicles by TOA and operations provided by TOA in performance of this
Agreement with limits of liability of not less than $1,000,000 per occurrence /$2,000,000
aggregate, and providing, to the extent possible under a claims made format, continuous
coverage for that period of time following the expiration or termination of this Agreement
which is necessary under applicable laws (whether statutes of limitation, governmental
immunity laws or otherwise) to ensure valid outstanding claims will be covered under such
policy. Such liability insurance shall also include coverage for personal injury, contractual
liability and premises operations. District shall be named as additional insured on any above-
referenced policies.
(b) Vehicle liability insurance covering all Vehicles listed on Exhibit "A" hereof
and used in connection with the Services performed under this Agreement with limits of
liability of not less than $1,000,000 per occurrence /$2,000,000 aggregate. Coverage will
also include medical payments, collision and comprehensive physical damage coverage with
a $5,000 deductible. Deductible losses up to $5,000 shall be the responsibility of District.
District shall be named as additional insured and loss payee on this policy.
In the event of damage or destruction of any Vehicle or Vehicles provided by
District under this Agreement, District agrees that liability of TOA for said damage or
destruction shall be limited to the actual cash value of the Vehicle(s) at the time of the loss or
the cost to repair, whichever is less.
(c) Workers Compensation insurance covering all TOA's employees engaged in
performing the Services pursuant to this Agreement in accordance with the provisions of the
Workers Compensation Act (as amended) of the State of Colorado.
11/7/2007 21 IGA for 2007_08 Parking Lot system
2. District Insurance. District shall carry and pay the premiums, during the
entire Term of this Agreement for vehicle liability insurance coverage on all Vehicles
not listed on Exhibit "A" herein and used in connection with the services with the
limits of liability of not less than $1,000,000 per occurrence ($2,000,000 aggregate
combined single limits for bodily injury and property damage). Coverage will also
include uninsured motorists, medical payments and collision and comprehensive
physical damage coverage with a $1,000 deductible. Deductible losses up to $1,000
shall be the responsibility of District. TOA shall be named as additional named
insured on this policy.
1. Certificates of Insurance. TOA and District shall each provide the other with
certificate(s) of insurance evidencing the policies listed above upon execution of this
Agreement.
END OF EXHIBIT C
11/7/2007 22 IGA for 2007_08 Parking Lot system
14
41,7,
1 41
10
t%
Memo
O VZ p
To: The Honorable Mayor and Town Council
Through: Lary Brooks, Town Manager
From: Jennifer Strehler, P. E., Director of Transportation
Date: November 7, 2007 4
Re: Intergovernmental Agreement for Transportation Services to be provided by
Avon Transit on behalf of the Beaver Creek Metro District (aka: "Parking Lot
Shuttle and Special Services")
Summary:
Attached is an intergovernmental agreement (IGA) between Beaver Creek Metro District
(BCMD) and the Town of Avon (TOA) for Transportation Services from November 1, 2007
ending October 31, 2008. This agreement covers the "Free Parking Lot Scheduled Bus Service
and Special Event Bus Service" which is provided as a contract service by the town on a time
and materials basis. This agreement acts as a replacement to the 2005 IGA that more closely
matches actual operational processes as well as better suits both party's fiscal budgeting
calendars.
This IGA has been reviewed and approved by the Town Attorney. It has also been reviewed
once by attorneys for BCMD and is undergoing a final review as of the date of this memo. It is
scheduled for hearing and approval by the BCMD Board on November 28th, 2008. Staff
requests that the Town Council move to approve execution of this IGA at a date on or
immediately after the date approved by the BCMD Board.
Previous Council Action:
TOA has entered into intergovernmental contracts with BCMD for Parking Lot Bus Service for a
number of years. Council has approved consecutive yearly agreements.
Note that although Council approved an IGA for the 2006-2007 ski season, that agreement was
never signed by BCMD. Transit service has continued to be provided by TOA under written
authorization from BCMD to extend the 2005 agreement.
Background:
TOA operates a transit division which integrates in-town transit services, contract service to
BCMD, paratransit, and charter service (summer only) using one cohesive and consistently-
trained staff (i.e., drivers, foremen, managers), operating out of the Swift Gulch Public Works
Page 1 of 2
Complex. BCMD provides the vehicles and TOA provides the drivers for this parking-lot shuttle
and special services operation. Driver service hours involved in the BCMD contract service
equate to approximately 51 % of the town's total transit operation (2007). Having an integrated
service with BCMD benefits TOA by increasing connectivity between mountain visitors and town
businesses, sharing of fixed costs, reducing the total quantity of rolling stock required by both
parties, and allowing TOA to offer a wider range of services (e.g., we use BCMD buses for
charters). The resulting service provides quick, fare-free access to Beaver Creek Ski Area for
skiers, guests/visitors and employees.
Discussion:
This agreement for "Free Parking Lot Service" as well as various special event services from
November 1, 2007 ending October 31, 2008 is similar to the 2005 IGA (currently in effect) for
this same service with a few minor changes. Contract terms have been modified to:
• better clarify obligations of both parties
• make corrections to key notification dates
• increase the service hour charge rate to reflect current period anticipated costs
• provide an incentive for BCMD to avoid substantial last minute service changes (which
are disruptive and costly for TOA to absorb)
• increase the incentive funds eligible for award to bus drivers for high-quality service
• allow TOA to have input on the rider survey design and obtain the survey results
• allow for ease of annual amendment/renewal
• clarify billing dispute resolution processes
This IGA has been reviewed and approved by the Town Attorney. It has also been reviewed
once by attorneys for BCMD and is undergoing a final review as of the date of this memo. It is
scheduled for hearing and approval by the BCMD Board on November 28th, 2008.
Financial Implications:
This agreement provides compensation to TOA for all services provided to BCMD.
Recommendation:
Approve the request by Beaver Creek Metro District for the Town of Avon to provide "Free
Parking Lot Scheduled Bus Service and Special Event Bus Service" commencing on November
1, 2007 and ending October 31, 2008, allowing for only minor technical changes subject to
Town Attorney approval; authorize signature by TOA of this agreement at a date on or
immediately after the date approved by the BCMD Board.
Town Manager Comments:
Page 2 of 2
BEAVER
CREEK
METROPOLITAN
DISTRICT
P.O. Box 2560
Edwards, Colorado
81632
November 30, 2007
Town of Avon
Attn: Jennifer Strehler
P O Box 1726
Avon, CO 81620
Re: Intergovernmental Transportation System Agreements - "Free Parking Lot Service"
and "Ski School Express"
Dear Ms. Strehler,
Enclosed are original copies of the two above referenced agreements which have been
approved and executed by Beaver Creek Metropolitan District and Beaver Creek Resort
Company. Please have the Town of Avon execute the agreements where indicated.
After execution of the agreements by the Town of Avon please provide copies of the
agreements to:
Beaver Creek Metropolitan District
PO Box 2560
Edwards, CO 81632
Thank you for your help with this. If you need anything further please feel free to contact
me, ph: (970) 926-6060, Ext. 3 or e-mail "Kathy@rmpccpa.com".
Sincerely,
Kathy Lewensten
Account Manager
Eric
Phone: (970) 926-9666 * Fax (970) 926-6040
BEAVER CREEK
METROPOLITAN
DISTRICT
P.O. Box 2560
Edwards, CO 81632
www.beavercreekmetro.com
November 1, 2007
Mr. Larry Brooks, Town Manager
The Town of Avon
400 Benchmark Road
Box 975
Avon, Colorado 81620
Re: Extension of the November 1, 2005 Intergovernmental
Agreement for Transportation Services
Dear Mr. Brooks:
This letter will confirm the understanding between the Beaver Creek Metropolitan
District and the Town of Avon that until December 31, 2007 the Town of Avon will
continue the bus transportation service commonly known as the Free Parking Lot
Service, pursuant to the terms of the above-referenced Intergovernmental Agreement.
We are actively working to negotiate a new agreement, and we expect to have that
process completed before the end of the year. Your willingness to continue service under
the above-referenced existing Agreement is greatly appreciated.
If you have any different understanding or any further questions, please contact me at
970-748-9174.
Sincerely,
Cly e Hanks, General Manager
Beaver Creek Metropolitan District
100039078. DoC r'}