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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