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11-16-2000 ECRTA LetterecoM......, irans�r eagle county regional transportation authority November 16, 2000 Mr. Harry Taylor Avon/Beaver Creek Transit P. 0. Box 1726 Avon, CO 81620 Dear Mr. Taylor: This letter should formally serve as notice that the Eagle County Regional Transportation Authority wishes to exercise its 2001 option year as called .for in the Bus Service Intergovernmental Agreement between ECO and the Town of Avon. In order to help ECO Staff monitor the performance of the routes, Staff is requesting a breakdown monthly of the fees in the following categories: employee wages and benefits operating costs repair and maintenance Swift Gulch charges washing charges management fee This decision was made formally when your budget and service hours were approved by the Eagle County Regional Transportation Authority. Sincerely, Kevin Foley Chairman TRANSPORTATION SERVICES AGREEMENT THIS AGREEMENT is entered into on this day of , 1997, between the Town of Avon (TOA), a Colorado municipal corporation, and Eagle County, a body politic, acting by and through its Eagle County Regional Transportation Authority (ECRTA). RECITALS The Town of Avon operates transportation services known as Avon/Beaver Creek Transit. 2. The parties wish to cooperate in the provision of regional transportation services as set forth in the regional services plan attached as "Exhibit A" and incorporated herein ("transportation services"). 3. The parties wish to enter into an agreement to set forth the terms and conditions of such services. AGREEMENT The parties agree as follows: 1. TERM OF AGREEMENT (A) This Agreement shall commence on January 1, 1998, and shall expire on December 31, 1998 (the "Initial Term"), unless sooner terminated or extended as provided herein. (B) ECRTA shall have the option to extend the Initial Term of this Agreement for five (5) separate and successive option periods of one (1) year (the "Option Period"), commencing the day immediately following the expiration of the Initial Term and ending on December 30, of each year extended. In the event ECRTA elects to extend, ECRTA shall give written notice of the election to TOA at least 60 days prior to the expiration of the Initial Term. During such extension of the term of this Agreement, all of the terms, covenants and conditions of this Agreement shall be and remain in full force and effect. (C) For the purposes of this Agreement, the Initial Term and the Option Period shall hereinafter be referred to as the "Term" of the Agreement. 2. SCOPE OF SERVICES During the Term of this Agreement, TOA shall operate and maintain the System in a safe and proper manner under the name "Avon/Beaver Creek Transit" and shall provide certain services, including but not limited to the routes and hours of service for 1998 as affixed to and are incorporated in this Agreement as "Exhibit A'. The same are prepared for budgetary and planning purposes and are not to be construed as necessarily limiting TOA. Should TOA wish to change routes and hours of service, excluding minor alterations in daily schedules, TOA will consult with ECRTA. 3. FUNDING, COMPENSATION, INVOICING, PAYMENT AND RECONCILIATION (A) Funding for the services described in "Exhibit A" will be by ECRTA. (B) Compensation. ECRTA shall compensate TOA by payment of an annual Management Fee ($50,000.00) together with a Fixed Rate for services rendered each month as invoiced by TOA and accepted by ECRTA in accordance with the Service Hour Schedule identified as "Exhibit A:" and approved by ECRTA. Compensation is based in accordance with an annual expense budget prepared by TOA and approved by ECRTA. Such budget shall be submitted by TOA to ECRTA by October 1 of each year and ECRTA shall approve same, with any items as changed pursuant to negotiations between parties, by November 1 next following submittal of the budget. Said budget shall be deemed approved if no objection is received by TOA by December 1. Said budget will include the estimated expense of operating the entire System. ECRTA shall pay that portion of the entire System's budgeted costs equal to its share of the total labor service hours devoted to the Regional System as determined and estimated by TOA. (i) Said budget will include the monthly portion ($4,166.67) of the Management Fee. (ii) Said budget shall include the fixed costs for operation of the System during the budget year, which expenses shall be paid in equal monthly installments. (iii) Said budget shall include variable costs which are identified as those costs that arise and thatvary 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 at the time said budget is submitted to ECRTA and shall remain fixed for the purposes of invoicing for the budget year. These variable costs will be billed to ECRTA based on the variable hourly rate determined by the said budget multiplied by the monthly labor service hours as identified in "Exhibit A". 2 (iv) From time to time costs will arise that are not included in the above described Fixed Rate, including but not limited to such non-recurring costs as outside repair of vehicles or equipment, motor replacement, refurbishing of vehicles, and painting of vehicles. TOA shall not incur such costs unless it receives prior approval from ECRTA. However, no such prior approval shall be necessary with regard to any costs arising from an emergency which requires that the costs be incurred in order to operate the vehicle or equipment. ECRTA shall pay such reasonable costs when billed for it. (C) Invoicing and Payment (i) On or about the fifth day of each month during the Term of this Agreement, TOA shall submit to ECRTA an invoice for payment to TOA for the upcoming months budgeted service hours, plus the prorated Management Fee. A reconciliation of the preceding months actual versus budgeted service hours will be made at this time. Any additional service hours performed above the budget will be billed at the Variable Cost Rate and included in the current monthly invoice. Should the actual service hours performed be less than the budgeted service hours, then a credit will be issued against the current invoice in the amount of the Variable Cost Rate times the difference of actual service hours to budgeted service hours. TOA shall submit the monthly invoice to the address shown below: Regional Transportation Authority Eagle County Government P. O. Box 850 Eagle, CO 81631 Attn: Jim Shrum, Director Payment shall be made by ECRTA to TOA within fifteen (15) days after receipt and acceptance of a proper invoice. ECRTA shall submit payment to TOA by means of a check made payable to TOA and sent first class mail to: Town of Avon P. O. Box 975 Avon, CO 81620 Attn: Harry N. Taylor (ii) TOA shall account for the operation of the services outlined in this Agreement in a separate monthly report as "Exhibit C" and submit this report with the monthly invoice. TOA shall retain all accounting records relating to the services provided and shall retain such accounting records for one year. 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 ECRTA's review upon request. (iii) In the event that a shortfall occurs, or begins to occur, TOA reserves the right to modify, terminate, or otherwise alter the scope of services in any way necessary to avoid such deficit. TOA will consult with ECRTA regarding such changes prior to their occurrence. In the event TOA determines that additional funds will be necessary to operate the transportation service in "Exhibit A", ECRTA will be notified, and appropriate action will be determined by both parties. 4. OPERATION OF TRANSPORTATION SERVICES The day to day operation of the transportation services shall be the sole responsibility of TOA. TOA shall provide all employees necessary for the efficient operation of the system and, in addition, shall provide for the reasonable maintenance of all equipment utilized in the provision of transportation services as provided for in this Agreement. All persons employed by TOA in the operation of the transportation services shall remain employees of TOA. Standards of performance, discipline of employees and all other matters incidental to the performance of such services and the control of personnel so employed shall remain with TOA. All persons employed by TOA in the performance of transportation services shall be paid directly by TOA, and no other party shall assume any liability for the direct payment of salaries, benefits, wages, or other compensation to such personnel. TOA shall be solely liable for the compensation or indemnification of any such employee for injury or sickness arising out of his or her employment. Employees of the TOA are not employees of Eagle County, for any purpose. 5. LEASE OF VEHICLES (A) Leases. ECRTA represents that the so designated Vehicles described in "Exhibit D" are owned by ECRTA. ECRTA agrees to lease to TOA those vehicles described in "Exhibit D" attached to and made a part of this Agreement for a period coterminous with this Agreement and, in consideration therefore ($1.00) the sufficiency of such consideration being hereby acknowledged, TOA shall pay ECRTA rent of one dollar ($1.00) for the term of this lease. TOA acknowledges and agrees that the vehicles shall continue to be owned by ECRTA during the term of this lease, and that, at the termination of this Agreement, TOA shall return the vehicles to ECRTA in accordance with the conditions of (C) in this section. (B) TOA shall promptly pay for all work or service performed on the vehicles described in "Exhibit D", and shall not permit any lien to be filed against such vehicles as a result of any action, inaction or agreement of TOA or its agents, officers or employees. If any such lien or claim of such a lien is filed, TOA shall cause it to be released within thirty days of filing. TOA's failure to do so within such thirty -day period shall result in automatic termination of this Agreement and immediate surrender of the vehicles to ECRTA. El (C) The vehicles shall be returned by TOA at the end of the term or earlier termination of this Agreement in the same condition as received, ordinary wear and tear excepted. (D) TOA has received vehicles from ECRTA included in "Exhibit D" of this Agreement. Said vehicles being delivered to TOA shall be deemed as included in the Agreement and shall remain the property of ECRTA upon termination of this Agreement. 6. COLLECTION OF REVENUES (A) TOA shall be responsible for the collection of farebox revenues, bus pass and discount ticket sales for the services outlined in "Exhibit A'. Said revenues shall be collected daily by the employees of TOA and its agents collecting revenue from bus pass sales. (B) ECRTA shall make available to TOA a local bank account (in the Town of Avon) to make local daily deposits of revenue collected. TOA shall be responsible for the collection, deposit and accounting of all revenues collected under this Agreement. (C) TOA shall make available monthly an accounting of the revenues collected by means of the Monthly Report as described in "Exhibit C". 7. BUDGET AND EXPENDITURE OF FUNDS (A) TOA shall submit to ECRTA as a part of this Agreement the projected expenditures as "Exhibit B" for the term of this Agreement. (B) The monthly report shall be substantially in the form attached to this Agreement as "Exhibit C" and represent the operating data for the month. (C) TOA shall keep or cause to be kept true, accurate, and complete accounting records of all business and financial transactions conducted pursuant to this Agreement, and shall make such records available to ECRTA upon a reasonable request therefore. Such records shall be kept for three years following their making. 8. INDEMNIFICATION ECRTA agrees to indemnify, defend, and hold harmless to the extent allowed by law, TOA, 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 attorney fees arising out of the indemnifying parties intentional or negligent acts, errors, omissions, or those of its agents, officers, servants and employees. Likewise, TOA agrees to indemnify, demand and hold harmless to the extent allowed by law, Eagle County, its respective agents, officers, and employees of and from any or loss, cost damage, injury, liability, claims, liens, demands, action and causes of action whatsoever, including reasonable attorneys fees arising out of indemnifying parties intentional or negligent acts, errors, omissions, or those of its agents, officers, servants and employees. 9. INSURANCE Each party shall respectively provide its own public liability, property damage, and errors and omissions insurance coverage as such party may deem adequate and necessary to protect against any potential liability arising from this Agreement. Further, each respective party shall name, subject to the approval of their insurance carriers, each respective party as a co-insured under such insurance policies to the extent of any potential liability arising under this Agreement and shall provide evidence thereof. 10. TERMINATION Except as provided herein, either party may terminate this Agreement with or without cause, by giving the other party at least sixty (60) days prior written notice. In the event of such termination, TOA shall be paid its costs, including but not limited to, payment 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 of the date of termination. Upon termination of this Agreement, TOA shall take immediate action to discontinue the Services and operations in an orderly manner. If this Agreement is terminated by either party, ECRTA shall continue to make payments to TOA, subsequent to such termination until the obligations are satisfied or released, equal to all obligations of TOA incurred pursuant to this Agreement and due to others, which continue after the date of such termination. Such obligations may include, but are not limited to, lease payments on then existing garage office space and on future insurance costs related to the operations of the System. 11. DEFAULT AND FORCE MAJEURE (A) Default. If either party (i) fails to perform in accordance with the terms, covenants and conditions of rt 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 and 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 in Section 12 hereof. (B) Force Majeure. 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 variations, then TOA's obligation to perform the Services under this Agreement shall be suspended during that period of time that such conditions exist. 12. REMEDIES In the event that either party defaults under this Agreement, as set forth in Section 11 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, and none of the following, whether or not exercised by the non -defaulting party, shall preclude the exercise of any other right or remedy whether herein set forth or existing 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 injunction. (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. MISCELLANEOUS PROVISIONS (A) Headings for convenience. Headings which appear in this Agreement are for convenience only. They do not operate to define, limit or describe the scope or terms of this Agreement. 7 (B) Governing Law. This Agreement shall be construed in accordance with the laws of the State of Colorado. (C) Severability. The invalidity of a provision, paragraph, sentence, clause, phrase or word shall not affect or destroy the remainder of this Agreement. (D) Waiver. The waiver of a breach of any of the provisions of this Agreement by any party shall not constitute waiver, or waiver of any subsequent breach by a party or another provisions of this Agreement. (E) Amendments. This Agreement may be modified, amended or changed in whole or in part only by agreement in writing executed by all parties to this Agreement. (F) Assignments. This Agreement may not be assigned by either party without the prior written consent of both of the respective parties hereto. (G) This Agreement does not and shall not be deemed to confer upon nor grant to any third party any rights to claim damages or to bring any lawsuit, action, or other proceedings against any of the parties because any breach hereof or because of any terms, covenants, agreements, or conditions contained in this Agreement. (H) ECRTA's financial obligations under this Agreement are contingent upon sufficient revenues being appropriated within its budget. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY By: TOWN OF AVON nlr\c\ecrta2. TPANS.� CT I ON REPORT Mar -14-01 Wed 1:54 PM -------------------------------------------------------------------------------- Type Sending ------------------------------------------------ -------------------------------- Date Start Receiver TX/RX Time Pages Note ------------------------------------------ --------------------------------- Mar-14 1:50 PM 13037576950810 3m26s 10 OK ----------------------------------------------------------------------