11-01-2005 BEAVER CREEK METROPOLITAN DISTRICT INTERGOVERNMENTAL AGREEMENT FOR TRANSPORTATION SERVICESINTERGOVERNMENTAL AGREEMENT
FOR
TRANSPORTATION SERVICES
This Agreement for Transportation Services (the. "Agreement"), dated to be effective
November 1, 2005, is entered into 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, effective October 1, 2001, 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 special event services (collectively, the
"System"); and
WHEREAS, for the purpose of improving the System, the Parties desire to replace
the existing Transportation Services Agreement with this Agreement, that among other
things, contains an Incentive Program that will reward TOA for operating the System more
effectively, and in a way that meets fluctuating levels of customer demand over time; and
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 is
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. This Agreement shall be in full force and effect for one
year ("Term") beginning November 1, 2005 and ending October 30, 2006; provided,
however, at the option of any Party and with the written consent of the other Party, this
Agreement may annually be extended for one additional year. In the event any Party desires
to extend this Agreement for any succeeding one-year period, such Party shall, not later than
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-July 15 of the then-current Term, notify the other Party in writing of the Party's desire to
exercise its right to extend the Agreement for another year. Upon receipt of such notice, the
other Party shall have thirty (30) days to state it's willingness to extend for such additional
one-year period upon the same terms and conditions, or upon such changed terms and
conditions as all Parties shall agree; otherwise, this Agreement shall terminate at the end of
the Term then in effect.
2. Scope of Bus Services. In accordance with the terms and provisions of this
Agreement, TOA shall provide: (i) the Scheduled and Special Event Bus Service described
below, and (ii) operate and manage such bus service and the System as a whole in a safe
manner, and as reasonably directed from time to time by the Transportation Coordinator
provided for below, for the purpose of improving the capacity of the System to effectively
anticipate, meet and respond to fluctuations that arise from time to time in passenger
numbers, demands and needed service levels (the "Services"):
(a) Scheduled Bus Service. TOA shall provide Scheduled Bus Service
within the Beaver Creek Subdivision as described below. All services described in this
subsection (a) shall be free to all riders and TOA shall not collect any fare from such riders.
District reserves the right to modify the service level requirements of the Scheduled Bus
Service described in subsection 2(a)(i) at any time, and from time to time either directly or
through the Transportation Coordinator described in subsection 2(a)(11) below upon giving
TOA five days advance written notice of any required modification subject nonetheless to
availability of necessary vehiclesand equipment; provided, however, that any Transportation
Coordinator directed modification of Scheduled Bus Service shall first be submitted to and
approved by the District's General Manager.
(1) Parking Lots and Bus Stops. As a minimum level of service,
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 follow: 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., with the last bus stopping at the
Covered Bridge Bus Stop at 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 the foregoing standards
and specifications are minimum required frequencies, and that actual bus schedules may vary
and that TOA and District (acting either directly or through the Transportation Coordinator
described below) shall have the right to augment service levels as either determines
appropriate during periods of peak demand on the System; provided, however, that in the
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event of a conflict between District and TOA, District's determination shall control; and
provided further, that under no circumstances shall the amount of service hours per year
exceed the aggregate amount set forth in the approved budget for the year without TOA
being entitled to additional compensation.
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., with the last bus stopping at the Covered
Bridge Bus Stop at 2:30 a.m. It is understood and agreed that these are minimum required
frequencies and that actual bus schedules may vary, and that TOA , and particularly the
District, shall have the right to augment service levels, as described in subsection 2(a)(iii)
below.
(ii) Special Events. Special event hours will not be predetermined.
TOA is required to provide "special event service" when requested by District, either directly
or through its Transportation Coordinator, upon reasonable notice. Additional costs, if any,
associated with special event service shall be reflected in the monthly billings from TOA to
District.
(iii) Transportation Coordinator. For the purpose of improving the
System, and in particular the capacity of Scheduled Bus Service to anticipate and respond to
fluctuations and changes in transportation system demands, as and when such changes occur,
District shall designate a Transportation Coordinator. The Transportation Coordinator may
be an employee of Vail Associates who is familiar with anticipated occupancy rates or other
conditions at the mountain facilities and resort areas that will have an impact on the demands
that will be placed upon the System from time to time. The District's Transportation
Coordinator shall be Chris Lubbers. The District reserves the right to change the designated
Transportation Coordinator from time to time by written notice to TOA.
The Transportation Coordinator will work with and assist TOA in
planning bus stops, routes, headways, specific dates and times of service, vehicle types and
sizes, facility and vehicle acquisitions, and the level of augmentation over and above the
minimum requirements stated in subsection 2(a)(1) above. The Transportation Coordinator
will also monitor System conditions and demands on a daily basis and will have the authority
-to increase or decrease the minimum level of service being provided, so that actual service
provided corresponds with existing or anticipated demands. By way of explanation and not
limitation, the Transportation Coordinator shall have authority to require that additional -
man hours, vehicles and/or equipment be supplied, subject to availability of vehicles and
equipment or that excess or surplus vehicles or personnel be taken out of service. The
Transportation Coordinator shall, to the extent required by the District, keep the District's
General Manager informed of all directions given to TOA that either increase or decrease the
minimum level of Scheduled Bus Service.
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On a monthly basis, the Transportation Coordinator shall evaluate and
report in writing on TOA's performance under this Agreement, and in particular, the
provision of Scheduled Bus Service. The coordinator will work with the TOA representative
while preparing this evaluation in order to achieve the maximum benefit from this exercise.
Such reports shall be delivered to TOA and the District concurrently. In evaluating TOA's
performance, the Transportation Coordinator shall, among other things, utilize the guest
surveys required for the Incentive Program described in Section 6(b) below. The
Transportation Coordinator shall administer or control the administration of these guest
surveys so as to ensure the reliability and integrity of the information collected. Any
information received by the Transportation Coordinator shall be shared with the TOA
representative for mutual benefit.
(iv) Americans with Disabilities Act. All Scheduled and Special
Event 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) Maximum Service Hours. In the performance of Services under this
Agreement, TOA commits to meet all minimum and augmented requirements of District for
Scheduled and Special Event Bus Service and commits that it shall employ best management
practices to; at all times under this Agreement, have and maintain the capability of providing
and will provide, if needed, the maximum number of service hours during the Term of this
Agreement, as agreed to in advance by the Parties no later than - August 15 of each year. The
parties, however, understand that TOA may not achieve the maximum agreed upon due to
circumstances beyond it's control.
(c) 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, however, that the District's vehicles and equipment may be utilized for
charter bus service only during the summer, or at any time the mountain facility is closed for
skiing and no other time; and provided further, that such charter bus service shall not in any
way adversely affect TOA's ability to provide Services described in this Agreement or the
cost thereof to District. All revenues derived by TOA and operating a charter bus service
shall be the sole property of TOA.
3. Obligations of District. District shall provide TOA with the following to be
used in the operation of the System:
(a) Vehicles and Equipment. Forpurposes of this Agreement, the District
shall provide vehicle two-way radios and public address systems, used in connection with the
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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. Further, District expressly reserves the right, with the written consent of
TOA, which shall not be unreasonably conditioned, delayed or withheld, to take possession
of and utilize one or more of said Vehicles and Equipment for the purpose of supplementing
any Scheduled or Special Event Bus Service described in this Agreement. Such
supplemental service may be provided by the District directly or through any entity
designated by the District not limited to any single entity.- In exercising its rights under this
Section 3(a), the District may act directly or through its Transportation Coordinator;
provided, however, if such action is taken by the Transportation Coordinator it shall be done
with the consent or approval of the District's General Manager. Such use of vehicles shall not
in any way adversely affect TOA's ability to provide services described in this agreement.
(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. TOA's provision of Scheduled and
Special Event Bus Service under this Agreement, and its operation and maintenance of the
System shall at all times comply with the standards and performance objectives provided by
District, and as set forth in this Agreement. TOA shall notify District and the Transportation
Coordinator of any noncompliance of which TOA becomes aware. In addition to the
requirements and performance standards set forth elsewhere in this Agreement, TOA shall at
all times operate and maintain the System and, in particular, Scheduled and Special Event
Service in accordance with the following requirements:
• Drivers shall promptly recite one or more informational messages
upon leaving the Covered Bridge Bus Stop, as well as upon leaving
any parking lot or other bus stop. The content and number of
messages to be recited may vary depending upon the point of
departure, and shall be as determined by the District or its
Transportation Coordinator, in cooperation with TOA.
• 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
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the ski rack doors if so equipped are closed and that all guests are
clear before pulling the bus away from any stop.
• Each vehicle shall be equipped with a public address system
acceptable to the District. Drivers must announce each stop using
such public address system upon departure and arrival.
• Drivers must announce the next stop upon departure.
• TOA will ensure that the interior and exterior of all vehicles are
clean.
• TOA will ensure that all destination signs are programmed with the
latest destinations, properly lit and in good working order.
• Drivers must inspect and adjust each destination sign to display the
correct information in accordance with the assigned route.
The Parties recognize that each driver's part in providing dependable
information and exemplary service to the guests of the System is critical to the quality of
service the District desires to provide. District shall have the right from time to time and
upon reasonable notice to TOA to amend or adopt additional performance standards and
operating policies, provided the same do not adversely affect TOA's ability to provide
service hereunder or substantially increase the costs thereof.
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) Promotion of Beaver Creek Landing. For the purpose of inducing
District to enter into this Agreement, TOA acknowledges the importance to District of
significantly increasing skier use of Beaver Creek Landing. For that reason, TOA expressly
commits to use its very best efforts to promote Beaver Creek Landing as a new and highly
desirable area for skiers to access mountain ski runs. By way of explanation and not
limitation, at all times, and in particular upon arriving at Beaver Creek Landing, drivers will
be trained and instructed to - promote and explain the benefits and advantages of either
starting or continuing the ski day from Beaver Creek Landing. The content and other
specifics regarding such promotional/explanatory messages shall be determined by the
District or its Transportation Coordinator, in cooperation with TOA
(b) Licenses, Rules and Regulations.
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(1) TOA shall acquire all required licenses and approvals to operate
all or any portion of the System from any state or federal agency, including without
limitation, a license from the State of Colorado Public Utilities Commission to operate as a
contractor; and
(ii) TOA shall comply with all laws, rules and regulations relating to
the operation and maintenance of the System, whether such rules and regulations are of
federal, state or local origination, including but not limited to the District.
(c) 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:
(1) 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.
(d) Personnel.
(i) TOA shall furnish and be responsible for all personnel, including
but not limited to, supervisory personnel, drivers, dispatchers, road supervisors, mechanics,
maintenance workers and office personnel necessary to effectively operate the System. - -
TOA shall be responsible for the:
(A) Recruiting, hiring and supervision of all Personnel;
(B) Licensing as required by law of all Personnel who operate
any of the Vehicles; and
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(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, either acting directly or through its Transportation Coordinator, may advise TOA of
any employee's inadequate performance which has had a negative effect on the Services
being provided and TOA shall take prompt action to remedy the situation. TOA shall
provide the Transportation Coordinator, and if requested, the District, with copies of TOA's
employment polices, employee handbook-
(iv) TOA shall ensure that all employees are properly attired in a
TOA-provided uniform when operating District vehicles or otherwise providing Service.
The uniforms that TOA shall provide shall be submitted to and approved in advance by the
District or its Transportation Coordinator, which approval shall not be unreasonably
withheld, conditioned or delayed.
(e) Bookkeeping and Office Management.
(1) TOA shall provide bookkeeping, accounting and accounting
records and office management for the System;
(ii) TOA shall prepare and retain all necessary System records and
documents in accordance with federal and state guidelines;
(iii) TOA shall prepare, maintain and provide all reports necessary for
the proper management of the System as agreed upon by both Parties;
(iv) 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 or its Transportation Coordinator for information, or for copies of any records or
other documents.
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(f) Payment. TOA shall promptly pay all costs and expenses incurred in
connection with the System and not allow any liens to be attached and/or filed against any of
the Vehicles or Equipment.
(g) Reporting of Incidents. In the event of an incident involving any of the
Vehicles, TOA shall immediately notify 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.
(h) Type of Buses Used. District, either acting directly or through its
Transportation Coordinator, 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 to TOA that TOA switch from one type
of fuel powered bus to another type of fuel powered bus subject to the availability of that
type of bus. 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.
(1) Other.
(1) 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
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
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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.
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. In anticipation that this Agreement will be
renewed annually, such budget shall be submitted by TOA to District by -August 15 of each
year and District shall approve same, with any items or changes pursuant to negotiation
between the Parties, by September 1 following submittal of the budget. Said budget shall be
deemed approved if no objection is received by TOA by September 1. Said budget will
include the estimated expense of operating the entire System, including all estimated variable
expenses that will be incurred to handle increased service demands associated with various
anticipated peaks and high volume service demands that the Transportation Coordinator
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and/or TOA anticipate during the year, including any appropriate reasonable contingency
therefore. 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) Incentive Program. In addition to the compensation provided in
subparagraph (a) above, and for the purpose of providing TOA with incentives to meet and
exceed the performance standard and System policies as established hereunder, (i) District
agrees to make incentive payments to TOA in accordance with the Incentive Program and
formula set forth on Exhibit B (consisting of two pages), as attached hereto and incorporated
herein by this reference; and (ii) TOA agrees to make deficiency payments to District as more
particularly described on Exhibit B, as to which District shall have a right of offset against
any compensation, incentive payments or other amounts due TOA under this Agreement.
Such incentive payment shall be made monthly on the 15th day of the
calendar month with respect to performance for the month prior to the immediately preceding
month. The Incentive Program described above shall begin on November 1, 2005 and the
first payment due by either of the Parties under such program shall be due on January 15,
2006.
(c) Invoicing.
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(1) On or before 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
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-
(it) 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.
(d) 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.
(e) 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
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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.
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 "C" and 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 Maieure.
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(a) Default. If either Party:
(1) fails to perform in accordance with the terms, covenants and
conditions of this Agreement or is otherwise in default of any of the terms of this Agreement;
or
(ii) files involuntary petition in bankruptcy or is declared bankrupt or
makes a general assignment for the benefit of its creditors, or is placed under a general
receivership, that Party shall be deemed to be in default under this Agreement 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 Majeure. In the event TOA is unable to perform any of the
services required hereunder because of acts of God, outbreak of war, earthquake, fuel
embargo, or similar events beyond the control of TOA, excluding normal weather 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
14 Beaver Creek Metro/Agreements/2005 Agreements/
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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.
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) Sa_ fety. 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
15 Beaver Creek Metro/Agreem m/2005 Agreements/
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~n
-John W. Dunn & Associates, LLC
Attorneys At Law
P.O.Box 7717
Avon, Co. 81620
(970) 748 6400 Telephone
(970) 748 8881 Fax
jdunn(a jwdunnlaw.com E-mail
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 and
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.
16 Beaver Creek Metro/Agreements/2005 Agreements/
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(f) Timeliness. Time is of the essence with respect to the performance of each of the
covenants and agreements herein set forth.
(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 Conies. 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 Agreement The Parties shall operate under the Restated and
Amended Agreement until November 1, 2005. Upon execution and as of November 1, 2005, this
Agreement shall supersede and replace in its entirety that certain Restated and Amended
Intergovernmental Agreement for Transportation Services dated to be effective October 1, 2004. As of
November 1, 2005, the Restated and Amended Intergovernmental Agreement for Transportation
Services shall be deemed terminated and of no further force and effect.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
respective dates set forth below to become effective as of the date first written above.
Date:
By:
ATTEST:
BEAVER CREEK METROPOLITAN DISTRICT
President
17 Beaver Creek Metro/Agreements/2005 Agreements/
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By:
Secretary
Date:
ATTEST:
BY: .1~ G
T wn Clerk
TOWN O
N, a municipa
Icorporation
By: a~~a C
Mayor
18
y
Beaver Creek Metro/Agreements/2005 Agreements/
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Ip
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
November 1, 2005)
Beaver Creek Parking Lot Bus Service
Fleet List
VEH. #
VIN #
DESCRIPTION
Replacement
Pending
Low Floor Diesel bus
Replacement
Pending
Low Floor Diesel bus
Replacement
Pending
Low Floor Diesel bus
Replacement
, Pending
Low Floor Diesel bus
839
15GCD2012T1087492
Diesel bus
840
15GCD2012T1087493
Diesel bus
841
15GCD2014T1087494
Diesel bus
842
15GCD2016T1087495
Diesel bus
843
15GCD2016T1087496
Diesel bus
844
15GCD201XT1087497
Diesel bus
845
15GCD201 1 T1 087498
Diesel bus
846
15GCD2013T1087499
Diesel bus
847
15GCD2013T1087500
Diesel bus
848
15GCD2013T1087501
Diesel bus
851
1Z9B5BSS34W216251
Low Floor Diesel bus
852
lZ913513SS54W216252
Low Floor Diesel bus
812
1 FDAF56S51 EA36484
30-pax asoline bus
813
1 FDAF56S71 EA36485
30-pax gasoline bus
544
1 GBJ5V1 El 5F502344
30-pax gasoline bus
555
1GBJ5VIE75F502655
30-pax gasoline bus
564
1GBJ5V1EX5F502164
30-pax gasoline bus
19 Beaver Creek Metro/Agreements/2005 Agreements/
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-~1
EXHIBIT "B" Page 1 of 2
(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
November 1, 2005)
Incentive Program
1. Criteria to Establish Performance. BCMD shall evaluate TOA's performances with respect to the
following criteria based upon a survey of patrons conducted periodically at BCMD's expense by
the Transportation Coordinator or by a mutually acceptable third-party consultant (including RRC
Associates) selected by but unaffiliated with BCMD.
a) TOA's fixed-route response times known hereafter as Route Times
b) Professionalism and courtesy of TOA's drivers, which must be rated good or excellent.
c) Overall Service levels and performance as rated in the survey.
The score will be determined on a monthly basis using the following formula: Fixed Route Percentage +
Professionalism Percentage + Overall Service Percentage = Score
Fixed Route Percentage means the percentage of time that the route times are met and on-time service is
experienced at bus stops. The weight is 33%. By way of example, (i) if on-time fixed-route service is
experienced 82% of the time, then the Fixed Route Percentage =.82 x .33 = .271, and (ii) if on-time fixed-
route service is experienced 97% of the time, then the Fixed Route Percentage = .9 x .33 = .297.
Professionalism and Courtesy Percentage means the percentage of time that the drivers are rated good or
excellent with respect to courtesy and professionalism. The weight is 33%. By way of example, if drivers
are rated good or excellent by 65% of the patrons, the Professionalism Percentage = .65 x .33 =.215.
Overall Service Percentage means the rating of the current service on a scale from 1 to 5 with respect to
overall service and performance. The weight is 33%. By way of example, (1) if the current service
receives an average rating of 90%, then the Overall Service Percentage for that month is .9 x .33 = .297,
and (ii) if the current service receives an average rating of 79%, then the Overall Service Percentage for
that month is .79 x .33 =.261.
2. Payment Application. TOA shall pay any incentive bonus received by TOA to those drivers, and
other line level employees who worked with guests during the period applicaple to such bonus, in
the form of bonuses actually rewarding the employees responsible for achieving the System Policy
and standards.
20 Beaver Creek Metro/Agreements/2005 Agreements/
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v v
EXHIBIT "B" Page 2 of 2
Monthly
Score January February March
0.9 3000 3000 3000
0.89 2786 2786 2786
0.88 2571 2571 2571
0.87 2357 2357 2357
0.86 2143 2143 2143
0.85 1929 1929 1929
0.84 1714 1714 1714
0.83 1500 1500 1500
0.82 1286 1286 1286
0.81 1071 1071 1071
0.8 857 857 657
0.79 643 643 643
0.78 429 429 429
0.77 214 214 214
0.76 0 0 0
0.75 (214) (214) (214)
0.74 (429) (429) (429)
0.73 (643) (643) (643)
0.72 (857) (857) (857)
0.71 (1071) (1071) (1071)
0.7 (1286) (1286) (1286)
0.69 (1500) (1500) (1500)
0.68 (1714) (1714) (1714)
0.67 (1929) (1929) (1929)
0.66 (2143) (2143) (2143)
0.65 (2357) (2357) (2357)
0.64 (2571) (2571) (2571)
0.63 (2786) (2786) (2786)
0.62 (3000) (3000) (3000)
April
2000
1857
1714
1571
1429
1286
1143
1000
857
714
571
429
286
143
0
(143)
(286)
(429)
(571)
(714)
(857)
(1000)
(1143)
(1286)
(1429)
(1571)
(1714)
(1857)
(2000)
Bonus/Deficiency
May June
1000 1000
929 929
857 857
786 786
714 714
643 643
571 571
500 500
429 429
357 357
286 286
214 214
143 143
71 71
0 0
(71) (71)
(143) (143)
(214) (214)
(286) (286)
(357) (357)
(429) (429)
(500) (500)
(571) (571)
(643) (643)
(714) (714)
(786) (786)
(857) (857)
(929) (929)
(1000) (1000)
~vment Amount
July August
1000 1000
929 929
857 857
786 786
714 714
643 643
571 571
500 500
429 429
357 357
286 286
214 214
143 143
71 71
0 0
(71) (71)
(143) (143)
(214) (214)
(286) (286)
(357) (357)
(429) (429)
(500) (500)
(571) (571)
(643) (643)
(714) (714)
(786) (786)
(857) (857)
(929) (929)
(1000) (1000)
September October November December Total
1000 1000 2000 3000 $22,00(
929 929 1857 2786
857 857 1714 2571
786 786 1571 2357
714 714 1429 2143
643 643 1286 1929
571 571 1143 1714
500 500 1000 1500
429 429 857 1286
357 357 714 1071
286 286 571 857
214 214 429 643
143 143 286 429
71 71 143 214
0 0 0 0
(71) (71) (143) (214)
(143) (143) (286) (429)
(214) (214) (429) (643)
(286) (286) (571) (857)
(357) (357) (714) (1071)
(429) (429) (857) (1286)
(500) (500) (1000) (1500)
(571) (571) (1143) (1714)
(643) (643) (1286) (1929)
(714) (714) (1429) (2143)
(786) (786) (1571) (2357)
(857) (857) (1714) (2571)
(929) (929) (1857) (2786)
(1000) (1000) (2000) (3000)
Beaver Creek Metro/Agreements/2005 Agreements/
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EXHIBIT "C" Page 1 of 2
(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
November 1, 2005)
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 52,000,000 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
22 Beaver Creek Metro/Agreements/2005 Agreements/
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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
23 Beaver Creek Metro/Agreements/2005 Agreements/
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V J
Seaver Creek Metro/Agreements/2005 Agreements/
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Memo
To:
Honorable Mayor and Town Council
Thru:
Larry Brooks, Town Manager
From:
Bob Reed, Director of Public Works and Transportation
Date:
11/17/05
Re:
Parking Lot Service Agreement
Summary: Attached you will find a final copy of the agreement with Beaver Creek
Metropolitan District for transportation services known as the "Free Parking Lot Service."
Previous Council Action: At last action, Council approved the version with our
recommended changes. The Beaver Creek Metro Board of Directors approved it with one
requested change.
Background: Council had previously authorized the Town Manager to negotiate the
agreement with Beaver Creek.
Discussion: The change they are requesting is on pg. 5 beginning line 7 through 9.
"Such supplemental service may be provided by the District directly or through any entity
designated by the District not limited to any single entity." The sentence originally read, "Such
supplemental service may be provided by the District directly or through any entity designated
by the District, including but not limited to Vail Associates Village Transportation." We asked
them to remove that sentence because it referred to a third party that was not a part of this
agreement. They wanted to keep the language, but agreed to remove any reference to Vail
Associates Village Transportation.
Prior to that, it states that the District needs written approval from Avon to implement any
supplemental service with their vehicles. Also, at the end of section a, it also states that any
such supplemental service shall not adversely affect TOA's ability to provide service.
Therefore, we do not feel that the change in language affects our ability to provide a quality
service to Beaver Creek.
Recommendation: Staff recommends approval of the agreement between the
Beaver Creek Metropolitan District and the Town of Avon for transportation service.
Alternatives: A return to the negotiating table at this time would delay the start of the
"Free Parking Lot Service", which is scheduled to begin Nov. 23, 2005. As part of our
training, we will begin running routes Nov.20, but the mountain is scheduled to open on the
23rd
Proposed Motion: "I move to approve the revised agreement between Beaver
Creek Metropolitan District and the Town of Avon to provide transportation service known as
the "Free Parking Lot Service".
Town Manager Comments:
7{le lend Manures 2J3 vale oFpp~al.
Iht 49W+. 0.4 KA6 MNIBUi~ an~ 0~0Jtd
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0 Page 2
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