11-01-2007 BEAVER CREEK RESORT DEVELOPMENT COMPANY AGREEMENT FOR TRANSPORTATION SERVICESAGREEMENT
FOR
TRANSPORTATION SERVICES
This Agreement for Transportation Services (the "Agreement"), dated to be effective
November 1, 2007, is entered into by and between the following three Parties: Beaver Creek
Resort Development Company, a non-profit company registered in Colorado ("BCRC"); the
Beaver Creek Metropolitan District, a quasi-municipal corporation and a 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, BCRC desires to engage TOA to operate and maintain the transportation
system known as the "Ski School Express" (the "System") pursuant to the standards and
specifications set forth herein; and.
WHEREAS, the District owns the fleet of vehicles and equipment which will be used
in conjunction with the transit service defined herein.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, conditions and agreements
set forth herein, the Parties 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, 2008. This Agreement
shall be renewed for one additional one-year period upon the same terms and conditions, or
upon such changed terms and conditions as all Parties shall agree, unless one Party notifies
the other Parties of their intent to terminate at the end of the Term then in effect. Notification
for intent to terminate shall be provided in writing by no later than July 15th of the then
current Term. Renewal of this Agreement is subject to annual appropriations by all Parties.
111/9/2007 Ski School Express Agreement
11/9/2007
2. Scope of Bus Services. In accordance with the terms and provisions of this
Agreement, TOA shall provide: (i) the Scheduled Bus Service (see Section 2a) and (ii)
operate and manage such bus service and the System as a whole in a safe manner, and as
reasonably directed from time to time by the BCRC. Taken together, this scope is hereafter
referred to as the "Service".
(a) Ski School Express. TOA shall provide a "Ski School Express" which
operates as described in Subsection 2(a)(i). Service shall be free to all riders and TOA shall
not collect any fare from such riders. BCRC reserves the right to modify the service level
requirements described in Subsection 2(a)(i) at any time upon five days advance written
notice to TOA and the District of any required modification subject nonetheless to
availability of necessary vehicles, personnel and equipment. In the event of a conflict in the
level of service requested from TOA by BCRC and the District, BCRC will make the final
decision.
(i) Stops. Buses operating on this Service shall make stops at two
locations: Avon Station (in Avon) and the Covered Bridge Bus Stop (in Beaver Creek). This
service shall be provided at all times the mountain facility is open for skiing. The service
shall be:
• 2 shuttles operating Monday through Friday from 8:00 am to l0:am and from 2:30pm
to 5:30pm with a approximate interval of 20-minutes
• 3 shuttles operating Saturday, Sunday, holidays, and during Special Events from 8:00
am to 10: am with a approximate interval of 7-minutes
• 4 shuttles operating Saturday, Sunday, holidays, and during Special Events from 2:30
pm-5:30 pm with a approximate interval of 5-minutes
Holiday and Special Event dates will be determined by BCRC and communicated to TOA on
or before September I"
It is understood and agreed that the foregoing standards and specifications are minimum
desired frequencies, and that actual bus schedules may vary and that the Parties shall have the
right to augment service levels as each determines appropriate (subject to availability of
rolling stock and drivers) during periods of peak demand on the System; provided that
regardless of the circumstances, in the event that the amount of service hours the amounts set
forth in Section 2(b) of this Agreement (see "Service Hour Estimate" and "Monthly Service
Hour Estimates"), TOA shall be entitled to additional and full compensation for all services
actually delivered, including surcharges as defined in this Agreement. During those times
when the mountain facility is closed for skiing, no transit service is provided under this
Agreement.
(ii) Qualified Riders. Qualified Riders shall be those who, upon boarding,
11/9/2007 2 Ski School Express Agreement
present to the driver a Voucher which is specifically designated to allow one passenger one-
way transportation on this Service route (i.e., either uploading from Avon up the mountain
or downloading the mountain to Avon). One Voucher per passenger must be presented to the
driver. The driver reserves the right to deny boarding to anyone without a designated
Voucher.
(iv) Americans with Disabilities Act. All 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.
(b) Service Hours. The number of service hours during the Term of this
Agreement is estimated to be 2,557 service hours per year, hereafter termed the "Service
Hour Estimate." which is anticipated to be divided up on a monthly basis, as shown below
("Monthly Service Hour Estimates") based on the number of buses in the Service and the
operating hours as specified in Subsection 2(a)(i) of this Agreement:
3
11/9/2007 Ski School Express Agreement
MONTHLY SERVICE HOUR ESTIMATES (MSHE)
Monthly
Service Hour
Estimates
(MSHE)
November 2007
254
December 2007
525
January 2008
525
February 2008
474
March 2008
525
April 2008
254
May 2008
-
June 2008
-
July 2008
-
August 2008
-
September 2008
-
October 2008
- I
Total Service Hour 2,557
TOA will make reasonable efforts to accommodate changes in service request which
significantly differ from the estimates listed herein. 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 may be created for TOA if either BCRC or the District makes additional service
requests after November 1 of each calendar year such that the actual service hours exceed
these estimates. 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).
3. Obligations of BCRC. BCRC shall provide TOA with the following to be
used in the operation of the System during the Term of this Agreement:
(a) Guest Attendants. BCRC shall provide one Guest Attendant at the
Covered Bridge stop and one Guest Attendant at Avon Station whenever this Service is in
effect. All costs for labor and materials for these Guest Attendants shall be born by BCRC.
The Guest Attendant shall help each guest load and unload his or her skis and related
equipment and that all guests are clear before pulling the bus away from any stop. The Guest
Attendant shall take steps to reduce dwell time while also assisting with implementation of
the Voucher System by 1) announcing to the public prior to boarding the purpose and
destination of the bus , 2) directing passengers to board through the front door (only) of the
bus, 3) and reminding Qualified Passengers to have their Voucher ready for collection by the
driver. The Guest Attendants shall not collect the Vouchers directly from passengers.
4 Ski School Express Agreement
11/9/2007
(b) Voucher System. BCRC shall develop, implement, manage a Voucher
System to assist with crowd-control and to limit the number of riders such that it reasonably
matches bus capacity at any given date and time, consistent with Subsection 2 herein. The
Parties agree that bus capacity and service interval is dependant on the exact fleet vehicle(s)
assigned to this System (see Exhibit A for the fleet list),but shall in all cases be restricted to a
safe and comfortable condition for drivers and riders on the System; TOA reserves the right
to limit the number of passengers allowed to board at a given time to a safe and comfortable
number, regardless of whether there are additional Qualified Passengers waiting to board.
The Voucher itself shall be a physical object, such as a pre-printed and laminated paper ticket
or an embossed coin, specifically labeled "Beaver Creek Ski School Transit Voucher- good
for one passenger in one-direction". BCRC shall bear all costs for production, distribution,
collection, and re-distribution of these Vouchers throughout the Term. BCRC agrees to
prioritize distribution of Vouchers to Beaver Creek Ski Area ski school customers staying in
lodging within Avon Town Limits; BCRC reserves the right to determine the appropriate
number of Vouchers to distribute.
(c) Public Education. BCRC shall provide on-going communications with
the lodging community and the public to explain the purpose, use, and long-term demand
management strategy involved with the Voucher System. BCRC shall actively participate
and fund a public outreach campaign to residents, businesses, property owners, and other
affected individuals in the Avon Town Limits designed to promote passage of the Ballot
Question described in Subsection 5(1).
(d) Long Term Planning. The Parties agree to cooperatively engage in
long term planning to develop a specific transportation plan which will be implemented prior
to the end of the Term of this Agreement. BCRC, the District, and the TOA shall send three
representatives to regular "Steering Committee Meetings" during which plans for Beaver
Creek Resort guest parking and traffic management, and impacts on the Town of Avon, will
be developed. This Steering Committee will conduct scenario-planning to determine and
build consensus on what actions will be taken by both Parties in the event of either passage
or of failure of the Ballot Question described in Subsection 5(i).
4. Obligations of the District. The District shall provide TOA with the
following to be used in the operation of the System during the Term of this Agreement:
(a) Vehicles and Equipment. For purposes of this Agreement, the 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 6 hereof. In the event of a conflict
511/9/2007 Ski School Express Agreement
regarding availability of vehicles and equipment between this Agreement and a separate
agreement between TOA and the District, this Agreement shall take lower priority.
5. 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 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
the District and BCRC 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 Service in accordance with the following
requirements:
• Drivers shall promptly recite one or more informational messages
upon leaving the two stops included in this Service. The content
and number of messages to be recited may vary depending upon the
point of departure, and shall be as determined by the District, in
cooperation with TOA.
• Drivers must be in uniform (approved by the 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.
• Drivers shall remain on the bus, limit boarding only through the
forward door, and collect Vouchers from each and every passenger
upon boarding.
• Drivers shall record the number of Vouchers collected at each stop
• TOA shall return Vouchers collected during operation to BCRC on
a weekly basis.
• Each vehicle shall be equipped with a public address system
acceptable to the 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
11/9/2007 6 Ski School Express Agreement
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 the District.
(c) Not Used.
(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;
any of the Vehicles; and
(B) Licensing as required by law of all personnel who operate
(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.
Ski School Express Agreement
11/9/2007
(iii) TOA shall be responsible for all System employees; however,
the 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 the 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 the
District, which approval shall not be unreasonably withheld, conditioned or delayed.
(e) Bookkeeping and Office Management.
(i) 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)
System employees; and
(v)
the 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 the 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 the
District.
(h) Type of Buses Used. the 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 the District to TOA that
TOA shall prepare, control and maintain all payroll records for
TOA shall respond, within 72 hours, to all written requests from
8 Ski School Express Agreement
11/9/2007
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.
(i) Ballot Question. TOA shall agree to put forth a public Ballot Question
to voters on the November 2008 ballot which, if approved, would create dedicated funding
for transit operations by TOA, including funding for service between Beaver Creek Ski Area
stops (such as the Covered Bridge Stop, Elk Lot, Bear Lot, and the Landing) and Avon
Station. TOA reserves the right to determine the exact nature of the funding source and the
specific wording of this Ballot Question. BCRC and the District both understand that the
TOA is prohibited from actively campaigning either for or against any such Ballot Question
and that public approval of this Ballot Question is not guaranteed by the TOA.
0) Other.
(1) Except as provided by the District in accordance with Section 4,
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
6. Indemnification.
(a) BCRC agrees to indemnify, defend and hold harmless both the
District and 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 Party's
intentional or negligent acts, errors, omissions, or those of its agents, officers, servants and
employees.
(b) The 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 Party's intentional or
negligent acts, errors, omissions, or those of its agents, officers, servants and employees.
(c) In consideration of District 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 the District and BCRC, its respective agents, officers, and
Ski School Express Agreement
11/9/2007
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 Party's intentional or negligent acts, errors, omissions, or those of its agents,
officers, servants and employees.
(d) The liability of TOA hereunder shall be limited to the provision of
services, and the District shall have no claim to special, incidental, consequential, indirect or
tort damages for the breach hereof.
(e) The liability of TOA hereunder shall be limited to the provision of
services, and the BCRC shall have no claim to special, incidental, consequential, indirect or
tort damages for the breach hereof.
7. 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 the District with a written list of repairs necessary for the
Vehicles to be in operable condition;
(ii) Be inspected by the District at least forty (40) days prior to the
termination of the Agreement; thereafter, the 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 the District's list
of repairs to effect such repairs and return the Vehicles to the District; and
(iii) Be returned by TOA to the District in the same condition as
received, ordinary wear and tear excepted.
(iv) Be provided for operational use by the District to TOA in sufficient
quantity to fulfill the terms of this Agreement, including adequate extras for route
augmentation, spares and other outages. The District and BCRC understand that TOA
provides no guarantee of availability of additional spare buses, vehicles, or equipment not
owned by the 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 the 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 the District, of any item of Equipment that is
not returned to the District, whether from loss, theft or failure to replace such Equipment.
11/9/2007 10 Ski School Express Agreement
8. Compensation, Invoicinp-, Payment and Reconciliation.
(a) Compensation. The District shall compensate TOA each month, as
invoiced by TOA, in accordance with the annual budget prepared by TOA and approved by
the Town Council. 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 BCRC, the District and/or TOA anticipates during the year, including any appropriate
reasonable contingency therefor. The 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"
The total budget for this Service is estimated to be approximately $179,060, excluding any
additional service which may be requested for holidays, special events, or beyond that
specified. However, both the District and BCRC understand that this is a time and materials
type of contract, and as such this Agreement is capped consistent with Subsections 2(a) and
3(b). It is BCRC's responsibility to manage passenger demand and to adjust the Scope of
Services requested from TOA as needed to satisfy BCRC's internal financial constraints and
the number of available vehicles for this service.
(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 the District on a
proportionate basis on variable hourly rates determined by the said budget multiplied by the
monthly labor service hours. The District shall pay monthly its proportionate share of such
additional variable costs when billed to it.
11/9/2007 11 Ski School Express Agreement
(iii) In cases where TOA has permitted the District to use TOA-owned
or TOA-leased vehicles, the District agrees to pay TOA an additional $5 per service hour
Lease Surcharge for that vehicle use time.
(iv) All costs paid to TOA by the District for this service shall be
reimbursed to the District by BCRC. In this way, the District is essentially a "pass-through"
entity for the purpose of using a previously established invoicing and payment system. In no
circumstances shall TOA be expected to seek compensation directly from the BCRC or to
resolve cost-related disputes between the District and BCRC regarding this service. In no
circumstances shall the nature of this compensation structure be cause for delay of payment
as defined in Section 8c.
(b) Incentive Program. TOA reserves the right to issue incentive pay as
part of TOA's normal driver incentive program, to drivers operating vehicles on this route
when appropriate.
(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 the District on a monthly basis to
the address shown below:
Beaver Creek Metro BCRC
c/o Robertson & Marchetti
28 Second St., #213
P.O. Box 600
Edwards, CO 81632
Attn: Kenneth J. Marchetti
With a copy to BCRC at:
Beaver Creek Resort Company
c/o Tony O'Rourke
P.O. Box 5390
Avon, CO 81620
tonyokvailresorts.com E-mail
Payment shall be made by the District to TOA within thirty (30) days
after receipt. In the event that the District disputes a charge listed on an invoice, BCRC
agrees to notify TOA in writing of the disputed item and to promptly pay all other listed
costs shown on that invoice. The District shall submit payment to TOA by means of a
check made payable to TOA and sent first-class mail to:
12 Ski School Express Agreement
11/9/2007
Town of Avon
Department of Finance
PO Box 975
Avon, CO 81620
Attn: Mr. Scott Wright
swright(a avon.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 the 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 the District and
TOA. Notwithstanding any other provision contained in this Agreement to the contrary, the
District and TOA acknowledge and agree that all obligations of the 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 the District and TOA. The
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 the District
or TOA or an obligation of the 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 the District or TOA other than funds
budgeted and appropriated for the payment of current expenditures. In the event
nonappropriation by the District occurs, however, the District shall be liable for all
compensation payable to TOA and allocable to any period during which the District shall
continue to receive or has received services from TOA under this Agreement.
(f) Financial Contribution by TOA. The TOA agrees to make a financial
contribution to the Service provided that all obligations of BCRC and the District as defined
13 Ski School Express Agreement
I 1 /9/2007
herein are fulfilled. This contribution will be shown as a credit on the monthly invoice sent
to the District. The District and BCRC further agree that the total financial commitment
requested from the TOA for this Service will, under no circumstances, exceed fifty-percent of
the cost of this Service or $89,530, whichever value is less.
9. Audit and Inspection of Records. The 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 shall preserve all such Records for a period of three (3) years after the
termination of this Agreement. In the event the District shall determine there has been error
on the part of TOA, the 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 the 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 the District the
amount of compensation determined to be overpaid plus the District's share of the audit
expense paid by the District.
10. 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.
11. Termination. Except as otherwise provided herein, either Party
("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.
12. Default and Force Maieure.
14 Ski School Express Agreement
11/9/2007
(a) Default. If any Parry (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
Parties, after giving ten (10) days prior written notice to the offending 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 Parties shall
have the rights set forth under Section 13 hereof.
(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.
13. Remedies. In the event that one Party defaults under this Agreement, as set
forth in Section 9 above, the other Parties 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 Parties 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. Unless otherwise modified by amendment, this
Agreement shall automatically terminate on April 30, 2009.
(b) Legal Action. The non-defaulting Parties 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
Parties for all of its reasonable attorney fees and related expenses.
14. Assignment and Subcontracting. Neither of the three Parties shall assign,
delegate or transfer its duties under this Agreement without the prior written consent of the
other Parties. TOA shall not enter into any transportation service subcontract hereunder
without prior written consent of the District. Nothing herein contained however shall
preclude TOA from subcontracting for repair and maintenance services as needed on the
vehicles.
15. Successors and Assigns. Subject to the provisions of Section 13, the terms of
this Agreement shall be binding on the successors and assigns of all three Parties.
11/9/2007 15 Ski School Express Agreement
16. 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.
16. Notices. Any statement, notice, demand or communication which one Party
may desire or be required to give to the other Parties 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 the District Beaver Creek Metropolitan BCRC
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 the BCRC Beaver Creek Resort Company
c/o Tony O'Rourke
P.O. Box 5390
Avon, CO 81620
tonyo(a)vailresorts.com E-mail
If to TOA: Town of Avon
Department of Finance
PO Box 975
Avon, CO 81620
Attn: Mr. Scott Wright
swrightkavon.org E-mail
11/9/2007 16 Ski School Express Agreement
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
jdunngjwdunnlaw.com E-mail
All Parties 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.
(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) Captions. 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.
17 Ski School Express Agreement
11/9/2007
(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. This Agreement constitutes the entire agreement
between BCRC, the District, and TOA concerning the subj ect matter of this Agreement. This
Agreement may not be amended or modified orally, but only by a written agreement
executed by BCRC, the 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 C EK METROPOLITAN DISTRICT
By:
Pr sident
ATTEST:
By:
Se etary y
Date: .''L yL'U Z
Date:
BEAVER CREEK RESOFXCD-MPANY
irector
ATTEST:
r
By:
Secreta
Date: 13 - 0 7
11/9/2007 18 Ski School Express Agreement
ATTE emu-
By:
TOWN N, a municipal co tion
a
Clerk"
END OF AGREEMENT
(EXHIBITS A and B FOLLOW)
11/9/2007 19 Ski School Express Agreement
EXHIBIT "A"
(Attached to and forming part of the Agreement by and between the Beaver Creek
Metropolitan District ("District"), the Beaver Creek Resort Company ("BCRC"), and the
Town of Avon ("TOA") dated to be effective November 1, 2007)
Beaver Creek Parking Lot Bus Service
District Fleet List
icle 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
1Z9B6DTS55VV216148
1Z9B6DTS55VV216149
1Z9B5BSS34VV216251
1Z9B5BSS54VV216252
15GCD2016T1087492
15GCD2012T1087493
15GCD2016T1087495
15GCD201 XT1087497
15GCD2013T1087499
15GCD2018T1087501
1 GBJ5V1 G27F419462
1 GBJ5V1 GX7F419693
1 GBJ5V1 El 5F502344
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 11/7/2007
END OF EXHIBIT A
11/9/2007 20 Ski School Express Agreement
EXHIBIT "B" Page 1 of 2
(Attached to and forming part of the Agreement by and between the Beaver Creek
Metropolitan District ("District"), the Beaver Creek Resort Company (`BCRC"), 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. The 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 The
District. The 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 the
District under this Agreement, the 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.
21 Ski School Express Agreement
11/9/2007
2. District Insurance. the 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 the District. TOA shall be named as additional named
insured on this policy.
3. Certificates of Insurance. TOA and the District shall each provide the other with
certificate(s) of insurance evidencing the policies listed above upon execution of this
Agreement.
END OF EXHIBIT B
22 Ski School Express Agreement
11/9/2007
-(0 R
Memo
To: The Honorable Mayor and Town Council
Through: Larry Brooks, Town Manager
From: Jennifer Strehler, P.E., Director of Transportation
Date: November 7, 2007
Re: Three-Party Agreement for Transportation Services to be provided by Avon
Transit on behalf of the Beaver Creek Resort Company (aka: "Ski School
Express")
Summary:
Attached is an agreement between Beaver Creek Resort Company (BCRC), Beaver Creek
Metro District (BCMD), and the Town of Avon (TOA) for Transportation Services from November
1, 2007 ending October 31, 2008 with a one-time renewal clause allowing the agreement to be
extended for the 2008-09 ski season and then terminate on October 31, 2009. This agreement
covers the "Ski School Express" which is provided as a contract transit service by the town on a
time and materials basis, offering connection between Avon Station and the Covered Bridge
during ski season only.
This is a new agreement for a new transit service which has been reviewed and approved by
the Town Attorney and by legal counsel for BCRC. 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 signature of this agreement at a date on or immediately after the
latest date approved by BCMD and BCRC.
Previous Council Action:
The potential for this added service contract to Avon Transit operation has been contemplated
and discussed with Town Council for several months. Although this is a new agreement, the
terms and conditions are analogous to those specified in the proposed 2007-2008
intergovernmental contract with BCMD for Parking Lot Bus Service (also pending Council
action).
Background:
BCRC has proposed this agreement because they wish to provide a transportation alternative
for mountain visitors who need non-stop service to the Covered Bridge stop, e.g., ski school
participants and their families. BCMD is providing the buses (green in color) and equipment
Page 1 of 2
(e.g., ski racks, radios) to be used on this route and is acting as a "pass-through" with respect to
billing and payment.
Discussion:
There are two main components to this agreement: operational and policy.
Transit operation - The service provides quick, fare-free access to Beaver Creek Ski Area
during peak hours for passengers who hold vouchers. It includes administration of a voucher-
ticket type system as a prerequisite for boarding. The contract assigns responsibility for crowd
control, voucher program management, and communication with the Avon lodging and business
community to BCRC. Provisions for use of BCMD-owned vehicles and equipment are included.
This transit service has been designed to be a fixed capacity route connecting Avon Station to
the Covered Bridge Stop. Service intervals will be approximately as follows: 20 minutes on
weekdays, 7-minutes on weekend mornings, and 5-minutes on weekend afternoons.
Policy Implications - The contract obligates TOA to develop and put forth a question on the
November 2008 ballot which, if approved, would create dedicated funding for transit operations
by TOA, including funding for service between Beaver Creek Ski Area stops (such as the
Covered Bridge Stop, Elk Lot, Bear Lot, and the Landing) and Avon Station. TOA reserves the
right to determine the exact nature of the funding source and the specific wording of this Ballot
Question. BCRC herein commits to financing and managing a public education campaign
regarding the ballot question. The contract also includes a commitment by all three parties to
collaborate on long-term planning for transportation and parking solutions during the term of the
agreement.
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:
BCRC is subsidizing the cost of the service. The Town has agreed to cover the costs of this
service at 50% of total cost or up to $89,530, whichever is lower. These costs have been
accounted for in the revised 2007 and 2008 budget proposal (also pending Council action).
This contract also requires the town to put forth a question on the November 2008 ballot. It is
unclear at this time whether or not other items might be included on the ballot, so no specific
cost has been associated with this obligation.
Recommendation:
Approve the request by Beaver Creek Resort Company for the Town of Avon to provide "Ski
School Express" transit 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 both
BCMD and BCRC.
Town Manager Comments:
r-
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