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10-12-2004 BACHELOR GULCH METROPOLITAN DISTRICT SERVICE AGREEMENTSERVICE AGREEMENT This agreement is made and entered into this Q+- day ofwQ&-, 2004 by and between Bachelor Gulch Metropolitan District whose address is P.O. Box 600, Edwards Colorado, 81632 (hereafter know as "BGMD") and the Town of Avon whose address is P.O. Box 1726, 500 Swift Gulch Road, Avon, Colorado, 81620 (hereafter designated as "Contractor'). RECITALS In consideration of the obligation of BGMD to pay the Contractor as herein provided and in consideration of the other terms and conditions hereof, the parties agree as follows: Contractor Services: Contractor will, during the term of this Agreement, provide: (a) Routine maintenance and preventive maintenance ("Routine Maintenance") of the BGMD vehicles and equipment. Service will be performed on approximately 9 vehicles and equipment set forth in Exhibit C and adjusted from time-to-time, although the number of vehicles and equipment serviced may be increased or decreased in BGMD's sole discretion; provided, the combined number of vehicles and equipment shall not exceed 20 without the approval of Contractor. Routine Maintenance will be performed at least every 3,000 miles or 250 hours of use. Routine Maintenance shall consist of those services outlined in Exhibit A attached hereto. (b) Repair and replacement work as requested by BGMD ("Repair and Replacement"). No payment for any Repair and Replacement shall be due unless BGMD has approved of such charges. Services may be commenced with verbal approval by BGMD of a written estimate submitted by Contractor. Repair and Replacement includes, without limitation, transmissions repairs, engine repairs, rear end repairs and any other work or repairs exceeding 25 times the hourly rate. BGMD acknowledges that subcontractors will perform certain repair work. Contractor shall be responsible for assuring that all such subcontracted work will be performed promptly and in accordance with the terms and conditions of this Agreement. 2. Facilities: Contractor represents that its facilities are in good repair and adequately equipped and that it has a sufficient staff to perform all work in a timely manner. All Routine Maintenance shall be completed within 24 hours of any vehicle being brought to Contractor's facility, unless other arrangements are approved by BGMD. 3. Compensation: In consideration of Contractor's services during the term of this Agreement, BGMD will pay Contractor an annually adjusted shop rate for Routine Maintenance and Repair and Replacement. The actual cost will be calculated in the manner demonstrated in Exhibit B, Fleet Maintenance Breakdown of Labor Billings by Hourly Rate. The annual rate will be finalized by the Avon Town Council in conjunction with the adoption of its annual budget and in no case will exceed Contractor's actual costs. The 2004 shop rate is $80/hour. The 2004 total actual cost is projected to be $102.61 per hour. Materials and sublet work shall be charged at cost plus ten percent. Invoice shall be issued by the 10`h of each month for services performed the previous month. Payment shall be remitted within twenty (20) days of receipt of invoice. Contractor's Fueling Facilities may be used by BGMD. The cost of Unleaded Gasoline and Diesel Fuel will be at the Contractor's cost plus ten percent. Contractor's Vehicle Wash facility May be used by BGMD. The cost per wash will be 11.25%a of the shop rate for small vehicles, 18.75% of the shop rate for medium vehicles, and 43.75% of the shop rate for large vehicles. 4. Terms and Termination: The Initial term of this Agreement will be effective as of December 1, 2004 and will end on December 31, 2024. This Agreement will continue until cancelled as provided herein or until either party fails to substantially perform the duties and obligations in accordance herewith and fails to remedy any such default within the time provided. In the event of default of the terms of this Agreement, the other party may terminate this Agreement upon sixty (60) days written notice of default to that party, unless that party cures the breach within the sixty (60) day remedy period. The initial term of this Agreement shall be for twenty (20) years, subject to annual appropriations by BGMD, unless sooner terminated as provided herein. At the end of the twenty (20) year term, this Agreement shall be automatically renewed for consecutive five (5) year terms subject to annual appropriation by BGMD. Either party may serve upon the other, written notice of cancellation of this Agreement at least two (2) years prior to the date of termination. In the event of a new successor district, this Agreement shall continue to be binding upon the parties until such time as the successor district and Contractor agree to become bound by, and assume, the obligations of this Agreement in writing. 5. Relationships and Taxes: The relationship between the parties is that of independent contracting parties, and nothing herein shall be deemed or construed by the parties hereto or by any third party as creating a relationship of principal and agent or partnership, or of a joint venture between the parties. Contractor shall be solely responsible for any tax, withholding or contribution levied by the Federal Social Security Act. Contractor is not entitled to unemployment compensation or other employment related benefits, which are otherwise made available by BGMD to its employees. Contractor shall provide BGMD an original of its Form W-9 (Request for Taxpayer Identification Number of Certification). 6. Warranty: Contractor shall perform all Services in a prompt, efficient and workmanlike manner. Contractor shall promptly correct any defective work. This warranty shall be in lieu of all other warranties, express or implied. Contractor's sole liability hereunder, whether in tort or in contract, is expressly limited to the warranty provided for herein. 7. Assignment: Contractor's duties hereunder requires particular expertise and skills, and may not be assigned to any third party without the expressed written consent of BGMD, and any attempt to do so, at the sole option of BGMD, shall render this Agreement null and void and no effect as respects the assignee (s) and shall constitute an event of default by Contractor. 8. Waiver: Failure to insist upon strict compliance with any terms, covenants, and/ or conditions hereof shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or relinquishment of any right or power hereunder at any time or more times be deemed a waiver or relinquishment of such right or power at any other time or times. 9. Benefit: The terms, provisions, and covenants contained in this Agreement shall apply to, inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors in interest, and legal representatives except as otherwise herein expressly provided. 10. Situs and Severability: The laws of the State of Colorado shall govern the interpretation, validity, performance and enforcement of this Agreement. If any provision of this Agreement shall be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. 11. Notices: Any notice, demand or communication which either party may desire or be required to give to the other, shall be in writing and shall be deemed sufficiently given or rendered if delivered personally or sent by first class mail, certified, return receipt requested, postage prepaid, as follows: If to BGMD: Bachelor Gulch Metropolitan District Go Robertson & Marchetti 28 Second Street, Suite 213 Edwards, Colorado 81632 Telecopier: (970) 926-6040 Telephone: (970) 926-6060 With copy to: Paul Jardis P.O. Box 3320 Avon, Colorado 81620 Telecopier: (970) 748-1551 With copy to: Jim Collins Collins Cockrel & Cole, P.C. 390 Union Blvd, Suite 400 Denver, Colorado 80228 Telecopier: (303) 986-1755 If to Contractor: Town of Avon c/o Larry Brooks P.O. Box 975 Avon, Colorado 81620 Telecopier: (970) 12. Indemnification: To the extent permitted by law and subject to all of the immunities, defenses and protections afforded to that party by the Colorado Governmental Immunity Act, which Act's protections are not waived in any way by this provision, each party shall indemnify and hold harmless, the other party, its officers, directors, employees and agents from and against any claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss, costs, damage or injury, including death, of any person or damage to property of any kind including attorneys fees, arising out of the negligent or intentional acts, errors or omissions of the officers, employees, subcontractors, materialmen, agents or any person directly or indirectly employed by the indemnifying party and rising out of the performance of services under this Agreement. 13. Insurance: Each party shall, at its own expense, keep in full force and effect during the Term of this Agreement, insurance as follows: a) Comprehensive and liability coverage in the initial amount of $150,000/$600,000, and thereafter in such amounts as are required pursuant to §24-10-114 C.R.S., commonly known as the Colorado Governmental Immunity Act, protecting the other party, its officers, directors and employees, against any loss, liability or expense whatsoever from personal injury, death, property damage or otherwise arising from, or in any way connected with provision of services, management, administration and operation of Services and facilities, which are the subject of this Agreement. Such coverage shall insure the common inclusions of premise operations, products/completed operations, contractual liability, independent contractors, broad form property damage and personal injury. b) And any workman's' compensation insurance, pension, disability and unemployment insurance for the employees, and other personnel supplied by that party directly or indirectly pursuant to the terms and provisions of this Agreement, as required by any law of the State of Colorado or the federal government and will, upon request, exhibit evidence thereof to the other party. 14. Force Majeure: No Party shall be liable for any failure to perform as required by this Agreement to the extent such failure to perform is caused by any reason beyond the control of that Party or by reason of any of the following occurrences: strikes, labor disturbances or labor disputes of any character, unavailability of labor or materials, accidents, riots, civil disorders or commotions, war, acts of aggression, floods, earthquakes, extraordinary weather conditions, fire, Acts of God, explosion or similar occurrences (each, a "Force Majeure Event"); provided, such Party shall exercise its best efforts to provide the best possible alternative performance and to prevent a Force Majeure Event from obstructing full performance. Any Force Majeure Event shall extend the time of performance as otherwise required by this Agreement for so long as such Force Majeure Event shall exist, but no Force Majeure Event shall terminate this Agreement nor shall affect this Agreement except as provided in this Section. In no event shall lack of funds necessary for performance constitute a Force Majeure Event. 15. Instruments of Further Assurance: The Parties hereto each covenant that they will do, execute, acknowledge, and deliver or cause to be done, executed, acknowledged, and delivered, such acts, instruments, and transfers as may reasonably be required for the performance of their obligations hereunder. 16. Modification: This Agreement contains the entire agreement between the parties, and no agreement shall be effective to change, modify, or terminate in whole or in part unless such agreement is in writing and duly signed by the party against whom enforcement of such change, modification, or termination is sought. EXECUTED this 5_ day of 2004 Bachelor Gulch ropolitan District By: EXECUTED this IZ~= day of ➢ , 2004. q®-ti9 OF 1 ; TO F VON r• By: i BGMD Service Agreement EXHIBIT A WORK FREQUENCY 2004 RATE "A" PM 3,000 miles or $80.00 hr. Preventive Maintenance 250 hours Plus parts & Inspection sublet "Annual" every 12months $80.00 hr. Preventive Maintenance Plus parts & Inspection sublet BGMD Service Agreement EXHIBIT B Fleet Maintenance Breakdown of Labor Billings by Hourly Rate 2004 Fiscal Year Total Billed Labor Hours 9,591 Actual Costs Per Associated Labor With Labor Hour Personnel Costs - Fixed (1) $118,719 $12.38 Personnel Costs - Variable (1) 420,797 43.87 Other Fixed Costs (2) 61,643 6.43 Capital Costs (3) 166,112 17.32 Total 767,271 80.00 Calculated Net Subsidy (4) 216,876 22.61 Actual Hourly Cost $102.61 (1) Personnel costs include all full-and part-time wages, overtime, and benefits. Fixed costs include the fleet maintenance supervisor and accounting assistant. Variable costs represent the fleet maintenance mechanics who bill out their time at an $80 hourly rate. (2) Other Fixed Costs represent expenses not associated with job costing such as utilities and telephone, insurance, training, etc... (3) Capital Costs represent principal and interest on the Certificates of Participation that were used to finance the construction of the fleet maintenance facility, and a capital lease payment for a shop truck. The COPS were issued in 1998 with a 20-year maturity. Seventy-five percent (75%) of the total amount issued is allocated to the fleet maintenance facility, the remaining 25% is allocated to the General Fund and was used for financing general site improvements, utilities, etc... (4) Calculated Net Subsidy represents the amount that actual costs for the fleet maintenance program exceeds billing. Bachelor Gulch Metro District Exhibit "C" Equipment Listing for TOA Service Agreement As of April 2004 Unit # Year Make Model Type Vin. # 778 1993 CASE 580 BACHHOE JJG0175164 7750 1996 CATERPILLER 950 LOADER 5SK02297 759 1997 INTERNATIONAL 5000 4X4 DUMP/PLOW 2HTTNAHT6VC019562 793 1998 INTERNATIONAL 5000 4X4 DUMP/PLOW 1 HTTEAHNOWJ000123 797 1999 INTERNATIONAL 5000 4X4 DUMP/PLOW 1 HTTEAHN9XJ002017 941 1999 FORD CREW CAB 4X4 F450 1FDXW47FXXEA84948 943 1999 FORD 550 DUMP/PLOW 1 FDAF57F8XEA98584 205 2002 FORD F250 1FTSF31F72EA82116 2002 Holder Tractor C9800 DUMP/PLOW 52410104 2002 CATERPILLER 305 Mini Excavator DSA00217 2002 Tempco Sweeper 1 FVAB38V23DK44212 317 2003 Chevrolet Silverado Pick UP/Snowplow 1 GCHK24183E280124 2003 CATERPILLER 277 CNCO1752 2004 INTERNATIONAL 5600 4X4 DUMP/PLOW 1 HTXEAHR44JO17752 2000 Kawasaki Mule JKlAFDAlXYB502378 2002 Kawasaki Mule JKIAFDA152B507396 Vehicle Size Large Large Large Large Large Small Small Small Small Large Large Small Large Large Small Small