10-01-2004 BEAVER CREEK METROPOLITAN DISTRICT RESTATED AND AMENDED INTERGOVERNMENTAL AGREEMENT FOR TRANSPORTATION SERVICESRESTATED AND AMENDED
INTERGOVERNMENTAL AGREEMENT
FOR
TRANSPORTATION SERVICES
This Restated and Amended Agreement for Transportation Services ( the
"Agreement"), dated to be effective October 1, 2004, is 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, prior to January 1, 1999, the Beaver Creek Resort Company of Colorado
("BCRC") provided various transportation services to an area within unincorporated Eagle
County, Colorado commonly known as the Beaver Creek Subdivision ("Beaver Creek"); and
WHEREAS, in furtherance of its transportation service function, BCRC, on October
1, 1995, entered into an Agreement with the Town of Avon, Colorado (the "Avon
Agreement") whereby TOA agreed to operate a bus system known as the "Parking Lot
Transit Systems";
WHEREAS, by agreement dated January 1, 1999 between BCRC and District, BCRC
transferred and assigned to District, BCRC's transportation service function, responsibilities,
and contracts including but not limited to the Avon Agreement (reserving however unto
BCRC, all advertising revenues under the Avon Agreement); and
WHEREAS, the Avon Agreement expired on September 30, 2001; and
WHEREAS, effective October 1, 2001 and for the purpose of replacing the Avon
Agreement, the District and TOA entered into an Intergovernmental Agreement for
Transportation Services (the " Transportation Services Agreement") whereby TOA agreed to
operate and maintain a transportation system known as the "Free Parking Lot Service" as
well as various charter and special event services (collectively the "System"); and
WHEREAS, due to the passage of time and changed circumstances, the parties desire
to amend and restate the Transportation Services Agreement; and
IGA08-31-04 TJF v3 revisions.docBvCrlcMetroWgreements\iga09-02.04TJFv3revisions.doc
2
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 desired by District and as
represented by TOA; and
WHEREAS, District desires to engage TOA to operate and maintain 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.
(a) This Agreement shall commence on the effective date hereof and shall
expire on September 30, 2005 (the "Initial Term"), unless sooner terminated or extended as
provided herein.
(b) Unless this Agreement is terminated pursuant to Section 9 or Section
I I (a) hereof, the Initial Term of this Agreement shall be automatically extended for five (5)
separate and successive periods of one (1) year each (the "Extension Period"), commencing
the day immediately following the expiration of the Initial Term and ending on September
30, of each one (1) year period. During each Extension Period, 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 any Extension
Period shall hereinafter be referred to as the Term of the Agreement.
2. SCOPE OF BUS SERVICES. During the Term of this Agreement TOA shall
operate and maintain the System in a safe and proper manner and shall provide certain
services, including but not limited to the following (the "Services"):
(a) Scheduled Bus Service. TOA shall provide bus service within the
Beaver Creek Subdivision as described below. All services described in this subsection (a)
shall be free of charge to all riders and TOA shall not collect any fare from such riders.
District reserves the right to change the service level requirements of the bus service
described in this subsection (a) at any time and from time to time upon giving TOA written
notice of any required change, subject nonetheless to availability of necessary vehicles,
personnel and equipment.
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\Agreements\iiga09-02-04TJFv3 revisions. doc
2
(i) Parking Lots and Bus Stops. Scheduled bus services 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, Confluence Parking Lot and the Covered Bridge Bus Stop. This service shall be
provided at all times the mountain facility is open for skiing. The minimum 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. It is understood that the Wolf Parking Lot and
Confluence Parking Lot require bus service only during peak times determined by the volume
of cars parking in the resort. It is understood and agreed that these are minimum required
frequencies and that actual bus schedules may vary and TOA shall have the right to augment
service levels as TOA determines appropriate during periods of peak demand on the System
but under no circumstances shall the amount of service hours per year exceed the amount set
forth in this Agreement.
During those times when the mountain facility is closed for
skiing, (i.e., the summer season), 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. It is understood and agreed
that these are minimum required frequencies and actual bus schedules may vary and TOA
shall have the right to augment service levels as TOA determines appropriate during periods
of peak demand on the System but under no circumstances shall the amount of service hours
per year exceed the amount set forth in this Agreement.
(ii) Special Events. Special event hours are not predetermined.
TOA is required to provide "special event" service when requested by District or its assigned
representative upon reasonable notice. Additional costs, if any, shall be reflected in the
monthly billings from TOA to District.
(iii) Americans With Disabilities Act. All scheduled 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) 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 that such service does not adversely affect TOA's ability to provide
those services described in Section 2(a) above or the cost thereof to District. All revenues
derived by TOA in operating a charter bus service shall be the sole property of TOA.
IGA08-31-04 TJF 0 revisions. docBvCrlcMetro\AgreementsGga09.02-04TIFv3 revisions.doc
2
(c) Maximum Service Hours. In the performance of Services hereunder
TOA commits to use its best efforts to provide the maximum number of service hours during
each one year period of this Agreement as agreed to in advance by the parties no later than
August 31 of each year. The parties, however, understand that TOA may not achieve the
maximum agreed upon due to circumstances beyond its control including staffing problems.
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, the District
shall provide vehicle two-way radios used in connection with the operation of the System
(hereinafter collectively referred to as the "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.
(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.
(c) System Policy and Standards. District shall establish a System Policy,
including the adoption of plans and objectives and performance measures for the System and
shall determine standard levels of service in the operation of the System. TOA shall comply
with such System Policy, and shall notify District of any noncompliance of which TOA
becomes aware. By way of explanation and not limitation the System Policy established by
District shall include the following requirements:
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 on any buses so equipped are closed and that all
guests are clear before pulling the bus away from any stop.
_ Drivers must announce each stop upon departure and arrival. On
those buses that are so equipped, drivers shall make this
announcement using a public address system.
Drivers must announce the next stop upon departure.
TOA will insure that the interior and exterior of all vehicles is clean
and in good condition.
IGA08-31-04 TJF v3 revisions. docBvCrkMetro\ABreementsUga09-02-04TJFv3revisiofis,doc
2
TOA will insure 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.
The parties recognize that each driver's part in providing dependable information to
the guests of this System is critical to the quality of service the District desires to provide.
4. OBLIGATIONS OF TOA. Notwithstanding any provision of this
Agreement to the contrary, TOA shall provide the following, among other things, in
connection with the operation of the System, during the Term of this Agreement:
(a) 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.
(b) Maintenance. TOA shall appropriately care for all real and personal
property and equipment provided by District. TOA shall maintain all Vehicles used in the
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. Such maintenance
shall include, but shall not be limited to, the following:
(i) Regular and systematic preventative maintenance programs,
servicing, cleaning, inspection and repair of the Vehicles;
(ii) Prompt repair or replacement of any part or parts of any Vehicles
which become worn or otherwise defective, damaged, or broken with prior written
permission from District for any necessary modifications or enhancements to the Vehicles;
and
(iii) Furnishing of all labor, materials and tools necessary to service
and maintain the Vehicles in accordance with the aforementioned standards, rules and
regulations.
IGA08-31-04 TJF 0 revisions. docBvCrkMetro\Agreements~gaD9-02-04TJFv3revisions.doe
2
(c) Personnel.
(1) 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 (the
"Personnel"). 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's 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 polices and
employee handbook.
(iv) TOA shall provide appropriate uniforms for Personnel, including
uniforms for System bus drivers. TOA shall ensure that all employees are properly attired in
TOA uniform when operating District vehicles or otherwise providing the Service.
(d) Bookkeeping and Office Management.
(i) TOA shall provide bookkeeping, accounting and accounting
records and office management for the System;
IGAOS-31-04 T1F 0 revisions. docBvCrkMetro~Agreements\iga09-02-04TJFv3 revisions. doc
2
(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 action.
(e) 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.
(f) 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.
(g) 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 that TOA switch
from one type of fuel powered or size of bus to another type of fuel powered or size of bus
subject to availability. The parties recognize that the District's right to switch from diesel
powered buses to gasoline powered buses and vice versa is an important component of this
Agreement.
(h) 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 all other functions normally required in the
operation of the System; and
(iii) 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
IGA08-31-04 TJF v3 revisions. docBvCrkMetro\Agreements\igo09-02-04TJFv3 revisions. doc
2
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.
In consideration for 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.
(iv.) 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.
5. 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.
(b) Equipment. The Equipment shall be delivered to TOA in its "as is"
condition. 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.
IGA08-31-04 TJF v3 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
2
6. COMPENSATION, INVOICING, PAYMENT AND RECONCILIATION.
(a) Compensation. District shall compensate TOA each month, as
invoiced by TOA and accepted by District, in accordance with an annual expense budget
prepared by TOA and approved by District. Such budget shall be submitted by TOA to
District by August 31 of each year and District shall approve same, with any items as
changed pursuant to negotiation between the parties, by September 30 next following
submittal of the budget. Said budget shall be deemed approved if no objection is received by
TOA by September 30. Said budget will include the estimated expense of operating the
entire System. 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.
(1) Said budget 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
monthly labor service hours. District shall pay monthly its proportionate share of such
additional variable costs when billed to it.
(iii) From time to time, costs will arise that are not included in the
above-described fixed or variable costs, 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
District. 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. District shall pay such costs when billed to it.
(b) Invoicing.
(i) On 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 Robinson & Marchetti
28 Second St., #213
P.O. Box 600
Edwards, CO 81632
Attn: Kenneth J. Marchetti
1GA08-31-04 TJF v3 revisions. docB,CrkMetro\Agreements\iga09-02-04TJFv3 revisions.doc
2
Payment shall be made by District to TOA within thirty (30) days after receipt and
acceptance of a proper invoice. District shall submit payment to TOA by means of a check
made payable to TOA and sent first-class mail to:
Town of Avon
PO Box 1726
Avon, CO 81620
Attn: Mr. Bob Reed
(ii) TOA shall account for the operation of each of the System
Services in a separate line item on a weekly basis and shall retain such weekly accounting
records for one year. 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.
(c) Reconciliation. In the event actual variable expenses for any month
differ from the amount estimated by TOA on the first day of the month, District shall be
credited or. charged for the overpayment or underpayment, as the case may be, in the
following month's invoice. Furthermore, a reconciliation of the entire compensation scheme,
including an accounting and pro rata apportionment of actual fixed costs, shall be completed
by the parties annually, such reconciliation commencing on the date of TOA's annual internal
audit.
(d) 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 6 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 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 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 the District shall continue to receive or has received
services from TOA under this Agreement.
IGA08-31-04 TJF 0 revisions.docBvCrlcMetro\Agreements\iga09-02-04TJFv3 revisions. doc
13 2
7. AUDIT AND INSPECTION OF RECORDS. District or its authorized
representative, shall be afforded access to TOA's records, books, inventory and supportive
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 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.
8. 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 "B" an by this reference
made a part hereof.
9. TERMINATION. Except as provided herein, either party may tenninate 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 tennination
and un-reimbursed Fixed Costs. All of the foregoing costs shall be determined on a pro rata
basis allocated as 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, District 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.
10. DEFAULT AND FORCE MAJEURE.
(a) Default. If either parry:
(i) fails to perform in accordance with the tenns, covenants and
conditions of this Agreement or is otherwise in default of any of the terms of this
Agreement; or
IGA08-31-04 TJF 0 revisions.docBvCrlcMetro\Agreemen(s\igaO9-02-04TJFv3revisions.doc
11 2
(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 parry 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 11 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.
11. 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, 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 10 hereof.
(b) Legal Action. The non-defaulting parry 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.
12. 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.
IGA08-31-04 TIF v3 revisions, docBvCrkMetro\Agreements\iga09-02-04TJFv3 revisions. doc
12 2
13. 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.
14. 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.
15. NOTICES. Any statement, notice, demand or communication which either
party 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 or sent by first-class United
States mail, postage prepaid, addressed as follows:
If to District: Beaver Creek Metropolitan District
c/o Robinson & 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. Bob Reed
With a copy to: John W. Dunn
Dunn & Abplanalp, P.C.
108 South Frontage Road West, Suite 300
Vail, CO 81657
IGA08-31-04 T1F v3 revisions.docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
13 2
Either party 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.
16. EQUAL EMPLOYMENT; AFFIRMATIVE ACTION. TOA shall not
discriminate against any employee or applicant because of race, color, religion, sex, age or
national origin. TOA shall take affirmative action to ensure that applicants are employed,
and that employees are treated during their employment without regard to their race, color,
religion, sex, age or national origin. Such actions shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment
advertising; layoff or termination, rates of pay, or other forms of compensation; and selection
for training, including apprenticeship. TOA agrees to post in conspicuous places available to
employees and applicants for employment notices setting forth the provisions of this Section
16.
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) Legal Payments. If any party hereto shall bring any suit or action
against another for relief, declaratory or otherwise, arising out of this Agreement, the
prevailing party shall have to recover against the other party, in addition to all court costs and
disbursements, such sum as the court may adjudge to be reasonable attorneys' fees.
(e) 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.
(f) Timeliness. Time is of the essence with respect to the performance of
each of the covenants and agreements herein set forth.
IGA08-31-04 TJF 0 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
14 2
(g) Operating Procedures. The operation of the System under this
Agreement shall be governed by the Policies and Procedures in TOA's Personnel Manual to
the extent the same do not conflict with the terms, covenants and conditions of this
Agreement. In the event of a conflict between TOA's Personnel manual and this
Agreement, this Agreement shall control.
(h) Governing Law. This Agreement is governed by and must be
construed under the laws of the State of Colorado.
(i) 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.
0) 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.
(k) Entire Agreement. 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.
(1) Supersedes Prior Agreements. Upon execution, this Agreement shall
supersede and replace in its entirety the Transportation Services Agreement which shall be of
no further force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Restated and
Amended Intergovernmental Agreement for Transportation Services as of the respective
dates set forth below to become effective as of the date first written above.
Date: lMta Jo'(
BEAVER CREEK METROPOLITAN DISTRICT
By:
Title:
TOWN OF AVON, a municipal corporation
IGA08-31-04 T1F v3 revisions, docBvCrkMetro\Agreements\iga09-02-04TJFv3 revisions. doc
15 2
By. ()"I
Title: N!'kr;-
ACKNOWLEDGED AND CONSENTED TO BY BEAVER
CREEK RESORT COMPANY OF COLORADO
By:
Title:
IGA08-31-04 TJF v3 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3 revisions. doc
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
October 1, 2004)
Beaver Creek Parking Lot Bus Service
Fleet List
Unit# Year Make
Type Vin#
839
1996
GILLIG
BUS
840
1996
GILLIG
BUS
841
1996
GILLIG
BUS
842
1996
GILLIG
BUS
843
1996
GILLIG
BUS
844
1996
GILLIG
BUS
845
1996
GILLIG
BUS
846
1996
GILLIG
BUS
847
1996
GILLIG
BUS
848
1996
GILLIG
BUS
551
2005
OPTIMA
BUS
552
2005
OPTIMA
BUS
812
2001
KRYSTALCOACH MINIBUS
813
2001
KRYSTALCOACH MINIBUS
2005
TERRA TRANSIT
MINIBUS
2005
TERRA TRANSIT
MINIBUS
2005
TERRA TRANSIT
MINIBUS
15GCD2010TI 087492
15GCD2012TI 087493
15GCD2014TI 087494
15GCD2016T1087495
15GCD2018T1087495
15GCD201XT1087497
15GCD2011 T1087498
15GCD2013T1087499
15GCD2016T1087500
15GCD2018T1087501
1Z9B5BSS34W216251
1Z9B5BSS54W216252
1FDAF56S51EA36484
IFDAF56S71EA36485
PENDING
PENDING
PENDING
Plate#
EMD9848
EMD9847
EMD9846
EMD9845
EMD9844
EMD9849
EMD9850
EMD9851
EMD9852
EMD9853
TEMP
TEMP
596CNC
597CNC
TEMP
TEMP
TEMP
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
17 2
EXHIBIT "B"
(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
October 1, 2004)
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
perforining the Services pursuant to this Agreement in accordance with the provisions of the
Workers Compensation Act (as amended) of the State of Colorado.
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
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\Agreements\iga09-02-04TfFv3revisions.doc
18 2
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.
3. 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.
IGA08-31-04 TH v3 revisionsdocBvCrkMetroWgreements\iga09-02-04TJFv3revisions.doc
19 2
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Bob Reed, Director of Public Works and Transit
Date: October 6, 2004
Re: Restated and Amended Intergovernmental Agreement for
Transportation Services
Summary:
Attached you will find a Restated and Amended Agreement with Beaver Creek Metropolitan
District for Transportation services. Changes include service intervals and some language,
specifically related to the new parking lot configuration. John Dunn has read and approved
the language.
Recommendations:
We recommend approval of the Restated and Amended Intergovernmental Agreement for
Transportation Services with the Beaver Creek Metropolitan District.
Town Manager Comments:
~e
C:\Documents And Settings\Lbrooks\Local Settings\Temporary Internet Files\OLK3\Council Memo Amended Transportation Services
Intergov. Doc
Patty McKenny
To: Bob Reed
Cc: Jane Burden
Subject: Transit Agreement
I've put the original in the PW mailbox (in an envelope).
Will you get the signatures & then provide me either the orignal or a copy of an excuted version.
thanks.
1-lauy MC~E'.+1[
I c~ti,,~a of /"V"-)j - owr; CI~~ h
c;i_i j;nx Q/1-,
RESTATED AND AMENDED
INTERGOVERNMENTAL AGREEMENT
FOR
TRANSPORTATION SERVICES
This Restated and Amended Agreement for Transportation Services ( the
"Agreement"), dated to be effective October 1, 2004, is 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, prior to January 1, 1999, the Beaver Creek Resort Company of Colorado
("BCRC") provided various transportation services to an area within unincorporated Eagle
County, Colorado commonly known as the Beaver Creek Subdivision ("Beaver Creek"); and
WHEREAS, in furtherance of its transportation service function, BCRC, on October
1, 1995, entered into an Agreement with the Town of Avon, Colorado (the "Avon
Agreement") whereby TOA agreed to operate a bus system known as the "Parking Lot
Transit Systems";
WHEREAS, by agreement dated January 1, 1999 between BCRC and District, BCRC
transferred and assigned to District, BCRC's transportation service function, responsibilities,
and contracts including but not limited to the Avon Agreement (reserving however unto
BCRC, all advertising revenues under the Avon Agreement); and
WHEREAS, the Avon Agreement expired on September 30, 2001; and
WHEREAS, effective October 1, 2001 and for the purpose of replacing the Avon
Agreement, the District and TOA entered into an Intergovernmental Agreement for
Transportation Services (the " Transportation Services Agreement") whereby TOA agreed to
operate and maintain a transportation system known as the "Free Parking Lot Service" as
well as various charter and special event services (collectively the "System"); and
WHEREAS, due to the passage of time and changed circumstances, the parties desire
to amend and restate the Transportation Services Agreement; and
IGA08-31-04 TJFv3 revisions[ t]BvCrkMetrolAgreements\iga09-02-04TIFv3revisions,doc
2
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 desired by District and as
represented by TOA; and
WHEREAS, District desires to engage TOA to operate and maintain 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.
(a) This Agreement shall commence on the effective date hereof and shall
expire on September 30, 2005 (the "Initial Term"), unless sooner terminated or extended as
provided herein.
(b) Unless this Agreement is terminated pursuant to Section 9 or Section
1 I (a) hereof, the Initial Term of this Agreement shall be automatically extended for five (5)
separate and successive periods of one (1) year each (the "Extension Period"), commencing
the day immediately following the expiration of the Initial Term and ending on September
30, of each one (1) year period. During each Extension Period, 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 any Extension
Period shall hereinafter be referred to as the Term of the Agreement.
2. SCOPE OF BUS SERVICES. During the Term of this Agreement TOA shall
operate and maintain the System in a safe and proper manner and shall provide certain
services, including but not limited to the following (the "Services"):
(a) Scheduled Bus Service. TOA shall provide bus service within the
Beaver Creek Subdivision as described below. All services described in this subsection (a)
shall be free of charge to all riders and TOA shall not collect any fare from such riders.
District reserves the right to change the service level requirements of the bus service
described in this subsection (a) at any time and from time to time upon giving TOA written
notice of any required change, subject nonetheless to availability of necessary vehicles,
personnel and equipment.
IGA08-31-04 TJF v3 revisions. docBvCrkMetroWAgreements~ga09-02-04TJFv3revisions.doc
2
(i) Parking Lots and Bus Stops. Scheduled bus services 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, Confluence Parking Lot and the Covered Bridge Bus Stop. This service shall be
provided at all times the mountain facility is open for skiing. The minimum 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. It is understood that the Wolf Parking Lot and
Confluence Parking Lot require bus service only during peak times determined by the volume
of cars parking in the resort. It is understood and agreed that these are minimum required
frequencies and that actual bus schedules may vary and TOA shall have the right to augment
service levels as TOA determines appropriate during periods of peak demand on the System
but under no circumstances shall the amount of service hours per year exceed the amount set
forth in this Agreement.
During those times when the mountain facility is closed for
skiing, (i.e., the summer season), 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. It is understood and agreed
that these are minimum required frequencies and actual bus schedules may vary and TOA
shall have the right to augment service levels as TOA determines appropriate during periods
of peak demand on the System but under no circumstances shall the amount of service hours
per year exceed the amount set forth in this Agreement.
(ii) Special Events. Special event hours are not predetermined.
TOA is required to provide "special event" service when requested by District or its assigned
representative upon reasonable notice. Additional costs, if any, shall be reflected in the
monthly billings from TOA to District.
(iii) Americans With Disabilities Act. All scheduled 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) 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 that such service does not adversely affect TOA's ability to provide
those services described in Section 2(a) above or the cost thereof to District. All revenues
derived by TOA in operating a charter bus service shall be the sole property of TOA.
IGA08-31-04 TJF 0 revisions.docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
2
(c) Maximum Service Hours. In the performance of Services hereunder
TOA commits to use its best efforts to provide the maximum number of service hours during
each one year period of this Agreement as agreed to in advance by the parties no later than
August 31 of each year. The parties, however, understand that TOA may not achieve the
maximum agreed upon due to circumstances beyond its control including staffing problems.
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, the District
shall provide vehicle two-way radios used in connection with the operation of the System
(hereinafter collectively referred to as the "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.
(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.
(c) System Policy and Standards. District shall establish a System Policy,
including the adoption of plans and objectives and performance measures for the System and
shall determine standard levels of service in the operation of the System. TOA shall comply
with such System Policy, and shall notify District of any noncompliance of which TOA
becomes aware. By way of explanation and not limitation the System Policy established by
District shall include the following requirements:
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 on any buses so equipped are closed and that all
guests are clear before pulling the bus away from any stop.
_ Drivers must announce each stop upon, departure and arrival, On
those buses that are so equipped, drivers shall make this
announcement using a public address system.
Drivers must announce the next stop upon departure.
TOA will insure that the interior and exterior of all vehicles is clean
and in good condition.
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\Agreements\ig409-02-04TJFv3revisiorls.doe
4 2
TOA will insure 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.
The parties recognize that each driver's part in providing dependable information to
the guests of this System is critical to the quality of service the District desires to provide.
4. OBLIGATIONS OF TOA. Notwithstanding any provision of this
Agreement to the contrary, TOA shall provide the following, among other things, in
connection with the operation of the System, during the Term of this Agreement:
(a) 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.
(b) Maintenance. TOA shall appropriately care for all real and personal
property and equipment provided by District. TOA shall maintain all Vehicles used in the
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. Such maintenance
shall include, but shall not be limited to, the following:
(i) Regular and systematic preventative maintenance programs,
servicing, cleaning, inspection and repair of the Vehicles;
(ii) Prompt repair or replacement of any part or parts of any Vehicles
which become worn or otherwise defective, damaged, or broken with prior written
permission from District for any necessary modifications or enhancements to the Vehicles;
and
(iii) Furnishing of all labor, materials and tools necessary to service
and maintain the Vehicles in accordance with the aforementioned standards, rules and
regulations.
IGA08-31-04 TJF 0 revisions.docBvCrkMetro\AgreementsVga09.02-04TJFv3revisions.doc
2
(c) 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 (the
"Personnel"). 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's 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 polices and
employee handbook.
(iv) TOA shall provide appropriate uniforms for Personnel, including
uniforms for System bus drivers. TOA shall ensure that all employees are properly attired in
TOA uniform when operating District vehicles or otherwise providing the Service.
(d) Bookkeeping and Office Management.
(i) TOA shall provide bookkeeping, accounting and accounting
records and office management for the System;
IGA08-31-04 TIF 0 revisions.docBvCrkMetro\Agreements\iga09-02-04TfFv3revisions.doc
2
(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 action.
(e) 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.
(f) 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.
(g) 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 that TOA switch
from one type of fuel powered or size of bus to another type of fuel powered or size of bus
subject to availability. The parties recognize that the District's right to switch from diesel
powered buses to gasoline powered buses and vice versa is an important component of this
Agreement.
(h) 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 all other functions normally required in the
operation of the System; and
(iii) 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
IGA08-31-04 TJF 0 revisions.docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
2
respective agents, officers and employees of and from any and all loss, cost, damage, injury, 1
liability, claims, liens, demands, action and causes of action whatsoever, including reasonable (,fit/'!
attorneys fees arising out of the indemnifying parts` intentional or negligent acts, errors,
omissions, or those of its agents, officers, servants and employees.
In consideration for 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
partyg' intentional or negligent acts, errors, omissions, or those of its agents, officers,
servants and employees.
(iv.) 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.
5. 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.
(b) Equipment. The Equipment shall be delivered to TOA in its "as is"
condition. 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.
IGA08-31-04 TH 0 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
8 2
6. COMPENSATION, INVOICING, PAYMENT AND RECONCILIATION.
(a) Compensation. District shall compensate TOA each month, as
invoiced by TOA and accepted by District, in accordance with an annual expense budget
prepared by TOA and approved by District. Such budget shall be submitted by TOA to
District by August 31 of each year and District shall approve same, with any items as
changed pursuant to negotiation between the parties, by September 30 next following
submittal of the budget. Said budget shall be deemed approved if no objection is received by
TOA by September 30. Said budget will include the estimated expense of operating the
entire System. 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.
(i) Said budget 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
monthly labor service hours. District shall pay monthly its proportionate share of such
additional variable costs when billed to it.
(iii) From time to time, costs will arise that are not included in the
above-described fixed or variable costs, 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
District. 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. District shall pay such costs when billed to it.
(b) Invoicing.
(i) On 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 Robinson & Marchetti
28 Second St., #213
P.O. Box 600
Edwards, CO 81632
Attn: Kenneth J. Marchetti
IGAOS-31-04 TIF 0 revisions.docBvCrkMetro\AgreementsVga09-02-04TJFv3revisions.doc
2
Payment shall be made by District to TOA within thirty (30) days after receipt and
acceptance of a proper invoice. District shall submit payment to TOA by means of a check
made payable to TOA and sent first-class mail to:
Town of Avon
PO Box 1726
Avon, CO 81620
Attn: Mr. Bob Reed
(ii) TOA shall account for the operation of each of the System
Services in a separate line item on a weekly basis and shall retain such weekly accounting
records for one year. 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.
(c) Reconciliation. In the event actual variable expenses for any month
differ from the amount estimated by TOA on the first day of the month, District shall be
credited or charged for the overpayment or underpayment, as the case may be, in the
following month's invoice. Furthermore, a reconciliation of the entire compensation scheme,
including an accounting and pro rata apportionment of actual fixed costs, shall be completed
by the parties annually, such reconciliation commencing on the date of TOA's annual internal
audit.
(d) 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 6 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 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 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 the District shall continue to receive or has received
services from TOA under this Agreement.
IGA08-31-04 TJF 0 revisions, docBvCrkMetro\Agreements\iga09-02-04TJFv3 revisions.doc
I0 2
7. AUDIT AND INSPECTION OF RECORDS. District or its authorized
representative, shall be afforded access to TOA's records, books, inventory and supportive
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 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 inunediately reimburse District the amount of compensation determined to be
overpaid plus District's share of the audit expense paid by District.
8. 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 "B" an by this reference
made a part hereof.
9. 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 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, District 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.
10. DEFAULT AND FORCE MAJEURE.
(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
IGA08-31-04 TJF v3 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions. doc
11 2
(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 under Section 11 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.
11. 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, 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 10 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.
12. 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.
IGA08-31-04 TIF 0 revisions.docBvCrkMetro\Agreements\iga09-02-04TJFv3 revisions. doc
12 2
13. 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.
14. 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.
15. NOTICES. Any statement, notice, demand or communication which either
party 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 or sent by first-class United
States mail, postage prepaid, addressed as follows:
If to District: Beaver Creek Metropolitan District
c/o Robinson & 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. Bob Reed
With a copy to: John W. Dunn
Dunn & Abplanalp, P.C.
108 South Frontage Road West, Suite 300
Vail, CO 81657
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\Agreements%iga09-02-04TJFv3 revisions. doc
13 2
Either party 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.
16. EQUAL EMPLOYMENT; AFFIRMATIVE ACTION. TOA shall not
discriminate against any employee or applicant because of race, color, religion, sex, age or
national origin. TOA shall take affirmative action to ensure that applicants are employed,
and that employees are treated during their employment without regard to their race, color,
religion, sex, age or national origin. Such actions shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment
advertising; layoff or termination, rates of pay, or other forms of compensation; and selection
for training, including apprenticeship. TOA agrees to post in conspicuous places available to
employees and applicants for employment notices setting forth the provisions of this Section
16.
17. MISCELLANEOUS.
(a) Validi 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) Legal Payments. If any party hereto shall bring any suit or action
against another for relief, declaratory or otherwise, arising out of this Agreement, the
prevailing party shall have to recover against the other party, in addition to all court costs and
disbursements, such sum as the court may adjudge to be reasonable attorneys' fees.
(e) 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.
(f) Timeliness. Time is of the essence with respect to the performance of
each of the covenants and agreements herein set forth.
IGA08-31-04 TJF 0 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
14 2
(g) Operating Procedures. The operation of the System under this
Agreement shall be governed by the Policies and Procedures in TOA's Personnel Manual to
the extent the same do not conflict with the terms, covenants and conditions of this
Agreement. In the event of a conflict between TOA's Personnel manual and this
Agreement, this Agreement shall control.
(h) Governing Law. This Agreement is governed by and must be
construed under the laws of the State of Colorado.
(i) 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.
0) 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.
(k) Entire Agreement. 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.
(1) Supersedes Prior Agreements. Upon execution, this Agreement shall
supersede and replace in its entirety the Transportation Services Agreement which shall be of
no further force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Restated and
Amended Intergovernmental Agreement for Transportation Services as of the respective
dates set forth below to become effective as of the date first written above.
Date: ilia Io4
METROPOLITAN DISTRICT
By: V V-"r-
Ti e - ~ 5 7KWr
TOWN OF AVON, a municipal corporation
IGA08-31-04 TJF v3 revisions, docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
15 2
By.
Title:
ACKNOWLEDGED AN S TED TO BY BEAVER
CREEK RE$ORT COMPAAAF COLORADO
By:
Title:
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\AgreementsGga09-02-04TJFv3revisions.doe
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
October 1, 2004)
Beaver Creek Parking Lot Bus Service
Fleet List
Unit# Year Make
Type
Vin# Plate#
839
1996
GILLIG
BUS
840
1996
GILLIG
BUS
841
1996
GILLIG
BUS
842
1996
GILLIG
BUS
843
1996
GILLIG
BUS
844
1996
GILLIG
BUS
845
1996
GILLIG
BUS
846
1996
GILLIG
BUS
847
1996
GILLIG
BUS
848
1996
GILLIG
BUS
551
2005
OPTIMA
BUS
552
2005
OPTIMA
BUS
812
2001
KRYSTALCOACH MINIBUS
813
2001
KRYSTALCOACH MINIBUS
2005
TERRA TRANSIT
MINIBUS
2005
TERRA TRANSIT
MINIBUS
2005
TERRA TRANSIT
MINIBUS
15GCD201OT1087492
EMD9848
15GCD2012T1087493
EMD9847
15GCD2014TIO87494
EMD9846
15GCD2016TIO87495
EMD9845
15GCD2018T1087495
EMD9844
15GCD201XT1087497
EMD9849
15GCD201IT1087498
EMD9850
15GCD2013TIO87499
EMD9851
15GCD2016T1087500
EMD9852
15GCD2018TIO87501
EMD9853
1Z9B5BSS34W216251
TEMP
1Z9B5BSS54W216252
TEMP
1FDAF56S51EA36484
596CNC
1FDAF56S71EA36485
597CNC
PENDING
TEMP
PENDING
TEMP
PENDING
TEMP
IGA08-31-04 TJF v3 revisions.docBvCrkMetro\AgreementsGga09-02-04TJFv3 revisions. doe
17 2
EXHIBIT "B"
(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
October 1, 2004)
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.
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
IGA08-31-04 TJF v3 revisions. docBvCrkMetro\Agreements\iga09-02-04TJFv3 revisions.doc
18 2
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.
3
Certificates of Insurance TOA and District shall each provide the other with
certificate(s)
Agreement.
of insurance evidencing the policies listed above upon execution of this
IGA08-31-04 TJF 0 revisions.docBvCrkMetro\Agreements\iga09-02-04TJFv3revisions.doc
19 2