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10-11-2011 AGREEMENT-BOCC OF EAGLE COUNTY, EAGLE COUNTY RTA AND ECO TRANSIT 10-11-2011V AGREEMENT TO AFFIRM, AMEND AND EXTEND INTERGOVERNMENTAL AGREEMENT CONCERNING SWIFT GULCH JOINT OPERATIONS FACILITY This Agreement ( "Agreement "), by and between the BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY acting through the EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY ( "ECRTA "), doing business as ECO TRANSIT ( "ECO "), and the TOWN OF AVON, a ColRRra 1Lcipal corporation ( "Town ") (jointly the "Parties ") is made effective on the LL ay of'U�O11, WITNESSETH: WHEREAS, Avon and ECRTA are parties to an Intergovernmental Agreement concerning a shared facility at 500 Swift Gulch Road, Avon, Colorado (the "Joint Operations Facility ") dated February 11, 2009; and WHEREAS, the Agreement by its original terms expired on December 31, 2009, but the parties have continued to operate in accordance with, and fulfilled their respective obligations under, the Agreement; and WHEREAS Avon and ECRTA wish to re- affirm, amend and extend such Intergovernmental Agreement ( "2009 IGA ") concerning the Joint Operations Facility. NOW THEREFORE, in consideration of the foregoing premises and following promises the parties agree as follows: A. TERM. Section 1 "Term" of the 2009 IGA is amended to extend the term of the 2009 IGA to end on December 31, 2012. B. INVOICING. Section 6.A. of the Agreement is amended to substitute Kelley Collier, kelley.colliergea lecounty.us, for the designated recipient stated in the original Agreement. C. NOTICES Section 10 of the Agreement is amended to substitute Kelley Collier, kel ley. collier ,ea lecounty.us, for the designated recipient stated in the original Agreement. Amending Avon -Eagle County IGA re ECO October 5, 2011 mvh Page 1 of 2 IN WITNESS WHEREOF, Each parry, by signature below of its authorized representative, herby acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms and conditions. EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY ATTEST: Clerk to the Board of County Commissioners TOWN OF AVON By: Date: Rich Carroll, ayor Amending Avon -Eagle County IGA re ECO October 5, 2011 mvh Page 2 of 2 COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: Jon Stavney Chairman Att Memo To: The Honorable Mayor and Town Council Through: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney From: Jennifer Strehler, P.E., Director of Transportation F- 2 BUS • ' \FOR P WOMAN Date: October 11, 2011 Re: Amendment to 2009 IGA to continue collaboration on the 1 -70 Regional Transportation Facility Project Summary In July 2011, the State of Colorado Department of Transportation (CDOT) requested that the Town of Avon and Eagle County produce a valid agreement demonstrating that we continue to work together on the 1 -70 Regional Transportation Facility Project with respect to grant applications and the intent to co -share constructed transit facilities. The attached IGA amendment simply extends the term end date and updates contact information for Eagle County staff but leaves the other agreement terms unchanged. The IGA Amendment requires a 2 /3rds majority vote for approval. Previous Related Actions The IGA for "ECO /Avon Joint Regional Operations Facility Design IGA" was approved by the Avon Town Council and the Eagle County Regional Transportation Authority in February 2009. (Copy attached) Background The original 2009 IGA was prepared in order to affirm the Town and the County's mutual intent to collaborate and plan for a future facility at 500 Swift Gulch Road which would be owned by the Town with spaced leased to ECO Transit. Because both the Town and ECO provide transit services, there are economies of scale and cost savings available by co- sharing space. As a result of this IGA and the Town was able to demonstrate the regional benefits of this project to I- 70 corridor, which in turn led to award of nationally competitive grant funds. The Town and the County continue to seek funding for the remaining phase of the project: construction of the Bus Storage and Maintenance Building. Extending the term date of this IGA is a quick and easy way to re -affirm the continued intent and efforts made toward collaboration. Discussion In July 2011, the Town of Avon submitted two grant applications for federal funding to CDOT (to programs called "FY2012 Livability" and FY2012 State of Good Repair "). CDOT was designated by the federal government to collate all rural requests into 1 application and submit 1 large, Page 1 of 2 prioritized request. CDOT refused to include either of Avon's applications into the consolidated request. One reason they cited was that the attached IGA between Avon and Eagle County was no longer valid because it had expired. The Town is preparing an application to another grant program (FY2012 TIGER) which is due October 28, 2011. To offer a viable application, the Town and the County need to show a valid IGA for continued collaboration and cooperation. This IGA amendment has no financial implications. A $234,000 contribution from Eagle County to the Town for earlier phases of the Swift Gulch project (planning and preliminary design) has already been received. The Town and the County may wish to continue dialog aimed at preparing a more detailed IGA which would address future considerations such as: • Exactly which built facilities will be shared • Capability of Eagle County to contribute in -kind services during construction (e.g., inspection) • Potential for additional cash contribution by Eagle County toward final design and construction • Long -term lease rates • Extent of fleet maintenance work done on site The Directors of Transportation for both the Town (Jenny Strehler) and the ECO Transit (Kelly Collier) have proposed a simple extension of the term end date in an effort to expedite this IGA amendment. The parties recognize that many of the provisions of the original IGA address past obligations which have already been fulfilled. However, there was no pressing reason to re -write the original IGA at this time. Both the County Attorney and the Town Attorney have reviewed and approved this amendment. The ECO board is scheduled to take action on this amendment on October 20, 2011. Note that the Town and the County also have two other, related IGAs which require renewal in the near future. One is for bus fleet maintenance by Avon Fleet and the other is for parking and fueling during 2012. These IGAs are standard legal templates used by the Town for a number of other agencies. They will be scheduled for review and approval by the Town Council at a later date (likely November). Staff recommends approval of this IGA amendment to facilitate submittal of the pending TIGER -III grant application. A determination by FTA if an award can be made from this program to finish the project is expected by December 2011. At that point, the schedule and cost for construction of the Bus Storage and Maintenance Building will be more accurately known. Meanwhile, the existing and relatively simple IGAs for outdoor parking, fuel access, and fleet maintenance will be proposed for use in 2012 and probably 2013 (during construction). Financial Implications None. Motion Move to approve the amendment to the "ECO /Avon Joint Regional Operations Facility Design IGA" with Eagle County Regional Transportation Authority. Town Manager Comments Attachments: 2011 Amendment Original 2009 IGA Page 2 of 2 INTERGOVERNMENTAL AGREEMENT THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is entered into the 11* day of February, 2009, between Board of County Commissioners of Eagle County acting through the Eagle County Regional Transportation Authority doing business as ECO Transit ( "ECO ") and Town of Avon ("Avon ") hereafter also referred to as the "Parties' RECITALS WHEREAS, Avon and ECO have a multi-year history of cooperation and co- sharing of capital facilities for transit service; and, WHEREAS, Avon and ECO staff have been working collaboratively during 2007 and 2008 to master plan and conduct preliminary engineering for expansion of capital facilities at the site located at 500 Swift Gulch Road, Avon Colorado for the benefit of both Avon and ECO transit system users; and, WHEREAS, Avon and ECO have jointly submitted requests for grant funding from the State of Colorado, the Federal Transit Administration, and from the 2009 Economic Stimulus Program for possible award during the period 2009 -2013 for this capital project entitled "ECO /Avon Joint Regional Operations Facility"; and, VMREAS, Avon and ECO staff formed a joint selection committee in spring 2008 and competitively selected a professional services design consulting team (e.g., CDM, Inc. is the prime consultant) with appropriate expertise to conduct the preliminary design, design development, construction document preparation, and to assist with bidding and construction management which is anticipated to be necessary to implement this capital project, and thereafter Avon retained the services of aforementioned consultant through authorization of a professional services contract which remains valid today; and, WHEREAS, Avon and ECO desire to phase both the design and construction portions -of this capital project to accommodate financial constraints, constraints on administration staff time, and disruption to existing operations; and, WHEREAS, Avon incurred project - related consulting expenses totaling about $528,000.00 during 2008 for the first portion of professional services work (e.g., initial schematic design, geotechnical investigation, and preliminary environmental review — select deliverables of which are provided in Exhibit A for reference); and, WHEREAS, state and federal officials have verbally told County and Town staff in early 2009 that this project stands a high probability of receiving a significant portion of the total project costs as a grant from the 2009 Economic Stimulus Program but that the project must be ready to obligate such grant funds within 180 days of notice of award and that the project partners should now consider fornializing their partnership; and, WHEREAS, Avon intends to issue Amendment No. 1 to the aforementioned professional services contract to authorize the next portion of engineering work for the ECO /Avon Joint Regional Operations Facility to be performed during 2009 (e.g., design development, local permitting, procurement advertising, development of a construction sequencing plan to match grant funding awards, identify need for temporary facilities, prepare estimates of probable cost, prepare additional environmental details, assess LEED certification merits, and prepare select 2009 ECO /Avon Joint Regional Operations Facility Design IGA construction drawings or details) and expects to incur additional project related consulting expenses up to approximately $500,000; and, WHEREAS, Avon and ECO desire to continue to jointly plan this capital project to include sufficient land space and building facilities to accommodate Avon's full build out needs as well as ECO's long -term needs for an "up-valley" satellite operations facility and to split pro -rata the cost for both design and construction of the ECO /Avon Joint Regional Operations Facility in proportion to the benefits received; AGREEMENT NOW, THEREFORE, in consideration of the covenants, conditions and agreements set forth herein, the Parties agree as follows: 1. TERM. This Agreement shall be in full force and effect beginning February 11, 2009 and ending December 31, 2009 ("Initial Term"). To facilitate phasing of work and ability to react to grant award timing, the Parties may extend the term of this Agreement upon mutual written consent for one additional one -year period beginning January 1, 2010 and ending December 31, 2010 ( "Extended Term "), upon the same terms and conditions, or upon such changed terms and conditions as the Parties shall agree. Notification of intent to extend the Agreement should be delivered in writing by no later than September 1, 2009. Extension of the term of this Agreement is subject to approval of annual budget and appropriations by both Parties. 2. SCOPE OF SERVICES. In accordance with the terms and provisions of this Agreement: A. Avon shall provide administration of professional services contract associated with the planning, design and construction of the ECO /Avon Joint Regional Operations Facility to be located at 500 Swift Gulch Road, Avon Colorado. This scope is hereafter referred to as the "Service ". The planning, design and construction of the ECO /Avon Joint Regional Operations Facility is hereafter referred to as "the Project". B. Avon shall have complete control and supervision over all personnel required to administer and implement the Project, including but not limited to the benefits, compensation and discharge of direct Avon employees, and contract modifications to contracted services involved in this Project. C. This Agreement does not entitle ECO to any claim of land ownership, easement, lease, access or site licensure rights to any properties located within the Town of Avon municipal limits, including but not limited to parcels identified by Eagle County Assessor reference numbers R045388, R047296, R048395, R048396, and R042750 and physically located at 500 Swift Gulch Road. When appropriate (e.g., after state and federal transit grant awards, if any, are known), the Parties agree to negotiate in good faith a separate agreement regarding land usage as needed to support the Project. D. Both Parties agree that schedule acceleration or delays in the anticipated design and construction schedule may be necessary in order to better phase the project to meet the objectives of both parties and of grant funding availability. Page 2 of 6 2009 ECO /Avon Joint Regional Operations Facility Design IGA 3. OBLIGATIONS OF AVON. Avon is obligated to provide the following: A. Dutiful Administration: Avon personnel shall dutifully administer design and construction professional services contracts involved in any portion of this Project iior which ECO contributes funds, including executing sound project management practices and fiduciary oversight of same. Administrative obligations include: (i) Providing bookkeeping, accounting and accounting records and office management for the Project; (iul Payment to the professional services companies under contract directly with Avon for this Project. (iii) Preparing and retaining all necessary records and documents in accordance with federal and state guidelines; (iv) Preparing, maintaining and providing copies of all consultant deliverables, grant applications, and other relevant reports associated with the Project; B. Involve ECO: Avon shall involve ECO staff in the evaluation of draft and final deliverables, alternatives analysis, recommendations, -decisions, and associated consulting services work executed during design development, preparation of construction documents, and grant applications involved in any portion of this project for which ECO contributes fiuzds. Involvement shall include: (i) Invitation to meetings with consultants, Town Council, Planning and Zoning commission, and project staff to review project status, consultant recommendations, or key decisions about the Project. (ir) Access to the Project eRoom for up to three Eagle County employees (an electronic Me sharing ftp site). (iii) Responding in a timely fashion TOA shall respond to any written requests from ECO for information, or for copies of any records or other documents. C. Actively Advocate: Avon shall advocate for ECO's needs during grant proposal presentations, public inquiry, or other opportunities and in doing so shall make best efforts to promote public support for and grant funding availability necessary to implement the project as a joint -use facility. D. Indemnification: To the extent allowed by law, Avon shall hold harmless and indemnify ECO and Eagle County for any claims arising from Avon's administration of the design and construction services as set forth in this Article 3. 4. OBLIGATIONS OF ECO. ECO is obligated as follows: A. Participation: ECO shall actively participate in the Project by attendance at meetings and providing timely response to requests for input, review of consultant deliverables, or Page 3 of 6 2009 ECO /Avon Joint Regional Operations Facility Design IGA information. B. Compensation and Payment. Payment shall be made by ECO to Avon in accordance with Sections 5 and 6. C. Actively Advocate: ECO shall advocate for Avon's needs during grant proposal presentations, public inquiry, or other opportunities and in doing so shall make best efforts to promote public support for and grant fimding availability necessary to implement the project as a joint -use facility. 5. COMPENSATION. ECO shall compensate Avon each month, as invoiced by Avon. The total not -to- exceed compensation shall be two hundred eighty -four thousand dollars ($ 284,000.00). In anticipation that this Agreement may be extended for one additional year, any expected "carry -over budget" of professional services costs from one fiscal year to the next shall be submitted by Avon to ECO by November 15, 2009 and ECO shall seek approval of same, with any items or changes pursuant to negotiation between the Parties by December 1, 2009 or 45 days after receipt, whichever is earlier, following submittal of the budget. 6. INVOICING. A. Timing and Addresses: On or before the tenth day of each month, Avon shall submit an invoice to ECO for payment to: ECO Transit, P.O. Box 1070, Gypsum, CO 81637, Attn: Harry Taylor, Harry-Taylor aneaslecounty.us. Payment shall be made by ECO to Avon within thirty (30) days after receipt of invoice from Avon. ECO shall submit payment by means of a check made payable to Avon and sent first -class mail to: Town of Avon, Department of Finance, PO Box 975, Avon, CO 81620, Attn: Mr. Scott Wright, swriehQavon.ore. B. Content and Calculation: Monthly invoices from Avon shall include a copy of the consultant's previous invoice(s) and explanation of how ECO's portion of this cost was calculated. The first invoice to ECO will include a re- imbursement allowance for costs incurred in 2007 and 2008 by Avon for $144,000.00 or 28- percent of the professional services contract charges, whichever is less. Subsequent invoices to ECO will be prepared based on twenty -eight percent (28 %) of the professional services invoices for the project received in the prior month. C. ECO Contribution Credit. The Parties acknowledge that the final designs and constructions plans may result in a joint regional transit operation facility in which the ECO's share is more or less than 28 %. The Parties agree that in the event that ECO's share of the joint regional transit operation: facility is more or Iess than 28 %, as such share is mutually determined by the Parties, then an adjustment to ECO's compensation in this Agreements shall be applied to ECO's share of the actual construction costs for the ECO /Avon Joint Regional Operations Facility, which shall be ECO's sole remedy for any credit resulting from a reduced share in the facility and facility designs. D. Disputed Charges: In the event that ECO disputes a charge listed on an invoice, ECO agrees to notify Avon in writing of the disputed item and to promptly pay all other listed costs shown on that invoice. Page 4 of 6 2009 ECO /Avon Joint Regional Operations Facility Design IGA E. Late Payments: Payments not made within sixty (60) days of date of submitting an invoice shall bear interest in accordance with Chapter 3.32 of the Avon Municipal Code. 7. TERMINATION. The parties acknowledge that the purpose of this Agreement involves Avon contracting for professional services including but not limited to engineering, design, and permitting services which contract will create financial obligations upon Avon and huther acknowledge that Avon is relying upon the terms of this Agreement to receive reimbursement from ECO for ECO's share of such expenses. As such, neither party may terminate this Agreement during the Term as set forth in Paragraph 1 above, except in the event of a Material Default as set forth in paragraph 8. 8. MATERIAL DEFAULT. If any Party fails to materially perform in accordance with the terms, covenants and conditions of this Agreement or is otherwise in material default of any of the terms of this Agreement that Party shall be deemed to be in default under this Agreement. The other Party, after giving ten (10) days prior written notice to the offending 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, shall have the right to terminate this Agreement. 9. PUBLIC RECORDS. The parties acknowledge that each Party is subject to the Colorado Open Records Act (" CORA ") set forth in Article 72 of Title 24, Colorado Revised Statutes, and that the parties agree to coordinate and cooperate on which documents constitute public records under CORA. 10. NOTICES. Any statement, notice, demand or communication which one Party may desire or be required to give to the other Parties shall be in writing and shall be deemed sufficiently given or rendered if delivered personally, by e-mail, or sent by first -class United States mail, postage prepaid, addressed as follows: If to ECO ECO Transit 3289 Cooley Mesa Road PO Box 1070 Gypsum, CO 81637 Attn: Mr. Harry Taylor barrv.tayloalea¢lecountv.us E -mail If to Avon: Town of Avon Department of Finance PO Boy{ 975 AvonXO 81620 Attn: Mr. Scott Wright swright avon.org E -mail All Parties 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. Page 5 of 6 2009 ECU /Avon Joint Regional Operations Facility Design IGA 11. 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. ?Timeliness. Time is of the essence with respect to the performance of obligations herein set forth. D. Governing Law. This Agreement is governed by and must be construed under the laws of the State of Colorado. E. 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. F. Facsimile and E -mail Copies. This Agreement and all documents to be executed and delivered hereunder may be delivered in the form of a facsimile or electronically scanned and e- mailed copy (e.g., *.pdf file), subsequently confirmed by delivery of the originally executed paper document G. Entire Agreement. This Agreement constitutes the entire agreement between ECO and Avon concerning the subject matter of this Agreement. This Agreement may not be amended or modified orally, but only by a written agreement executed by both Parties. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the respective tes set forth low to become effective as of the date first written ab TO F V N -1110/09 N OFAiio/L BY Attest: P�. c _ Ronald C. Wolfe, Mayor Date Patty McK' EAGLE COUNTY REGIONAL TRANSPORTATION AUTHORITY By:��A� s het Print name Page 6 of 6 2009 ECO /Avon Joint Regional Operations Facility Design IGA Preliminary Site PIan Preliminary Architectural Renderings Draft Floor Maps Page Al of 8 2009 ECO/Avan. Joint Regional Operations Facility Design IGA Draft Site Plan Employee Parking (shared with TOA-PW) Administration Building (shared with ToA.pw) Bus Storage & Refueling Facility X -gyp (100% Transit) 01 Not Shown: Site improvements a temporary facilities during construction (shared with TOA-PW) W * Site Improvements includes: circulation areas, grading & retaining walls, importlexport of material, utilities, and storm control. Temporary transit facilities, to allow for on-going operations through construction, will be constructed in upper terraced areas and on town-owned' site just east of Home Depot in Avon. 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