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HomeMy WebLinkAboutC07-044 JM Dodd DitchHOLLAND&HART. WAI, April 6, 2007 Bryan R. Treu Eagle County Attorney 500 Broadway P.O. Box 850 Eagle, CO 81631 Re: JM Dodd Ditch, Independent Contractor Agreement Dear Mr. Treu: Lori J.M. Satterfield Of Counsel Phone (303)295-8282 Fax(303)672-6510 ljsatterfield@hollandhart.com The independent contractor agreement has been revised to incorporate the comments from the various ditch owners. The final signature copy is enclosed. The Eagle County School District has already signed. Please sign the agreement before a notary and return the original signature page to me. Please also update your contact information on pages 10 and 11, if applicable. For your convenience, enclosed is a self-addressed, postage -prepaid envelope. Please return the signature page by April 19, since the irrigation season is imminent. Thank you for your consideration. VHolil& ld LLP /lj Encl. C Holland & Hart LLP Phone [3031295-8000 Fax [303] 295-8261 www.hollandhart.com 555 17th Street Suite 3200 Denver, CO 80202 Mailing Address P.O. Box 8749 Denver, CO 80201-8749 Aspen Billings Boise Boulder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Salt Lake City Santa Fe Washington, D.C. �� INDEPENDENT CONTRACTOR AGREEMENT This Independent Contractor Agreement ("Agreement") is entered into by and between the Eagle County School District RE -50J, a Colorado body corporate and politic ("District"), and C&B Development ("C&B Development"), R.A. Nelson ("Nelson"), Frederick D. Green ("Green"), Judith D. Pyle ("Pyle"), Gerald Gallegos ("Gallegos"), Eagle County ("County"), referred to collectively as "J.M. Dodd Ditch Owners" or "Owners," and Stan Halvorson (the "Independent Contractor" or "Contractor") and is effective on the date it is signed by the last signatory. The J.M. Dodd Ditch Owners and the Independent Contractor are referred to in this Agreement together as the "Parties," "we," "our" or "us," or individually as a "Party." RECITALS A. J.M. Dodd Ditch Owners are parties to the J.M. Dodd Ditch Operating Agreement, dated October 20, 2006 ("Operating Agreement"). A copy of the Operating Agreement is attached hereto and incorporated herein. C&B Development is the successor to the water rights claimed by Palmerosa Ranch, LLC in the Operating Agreement. Eagle County is the successor to a portion of the water rights claimed by Grimshaw-Eaton LLC in the Operating Agreement. Bruce Eaton, who was a party to the Operating Agreement, has applied to transfer the balance of the Grimshaw-Eaton LLC water rights from the J.M. Dodd Ditch in Case No. 04CW45, Water Division No. 5. Pursuant to the Operating Agreement, the J.M. Dodd Ditch Owners are responsible for operating, maintaining, and repairing the J.M. Dodd Ditch (the "Ditch"). B. The Parties want to use this Agreement to specify the work the J.M. Dodd Ditch Owners may offer the Independent Contractor and how the Independent Contractor will be compensated for any work he accepts from the Owners. C. The Independent Contractor will comply with this Agreement's conflict of interest provision to ensure the Independent Contractor devotes the Independent Contractor's best efforts to the Owners' interests and business and that there is no conflict of interest between the Owners and any other business for which the Independent Contractor works or operates on the Independent Contractor's own. D. The Independent Contractor understands the Owners' offer to contract with the Independent Contractor and willingness to continue to refer work to the Independent Contractor were conditioned on the Independent Contractor's good faith agreement to comply with the spirit and terms of this Agreement. AGREEMENT Therefore, in consideration of the above Recitals (which are hereby incorporated by this reference), the Parties' rights and obligations set out below, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: 1. TERM. The term of this Agreement will be from May 1 through October 31 of each year and shall automatically renew each year so long as the Designated Representative(s) of the Owners (see paragraph 6 below) and the Independent Contractor notify each other in writing on or before February 1 of each year that they desire to renew the Agreement for that year. After May 1 of each year, either a majority of the Owners (acting through the Designated Representative) or the Contractor may terminate this Agreement at anytime and for any reason or for no reason by giving the other Party at least thirty days' prior notice. In addition, a majority of the Owners (acting through the Designated Representative) may terminate this Agreement immediately without prior notice if any of the following occurs: a. The Independent Contractor breaches any provision of this Agreement; or b. The Independent Contractor commits an act of fraud, dishonesty, or any other act of negligent, reckless or willful misconduct in providing services to the J.M. Dodd Ditch Owners. 2. INDEPENDENT CONTRACTOR'S DUTIES. The Independent Contractor will provide Owners with the following services and products: consistent with generally accepted industry standards and consistent with the quality of the Independent Contractor's prior work related to the Ditch, the Independent Contractor will be the "ditch rider" referenced in the Operating Agreement and will be responsible for operating, maintaining, and repairing the Ditch in accordance with the Operating Agreement and this Agreement. a. The Independent Contractor will be responsible for maintenance and operation of Sections 1, 2, and 3 of the Ditch, as such sections are described in Paragraph I (page 2) of the Operating Agreement, including (without limitation) maintenance and operation of the headgate and diversion facilities, maintenance, operation, and repair of Ditch improvements, and the setting of the headgate and reading and recording of the diversions at the measuring flume. b. Maintenance and repair of the Ditch, totaling less than $7,000.00 in the aggregate per year and deemed by the Independent Contractor as necessary for the proper and safe operation of the Ditch, may be undertaken by the Independent Contractor without prior approval of the J.M. Dodd Ditch Owners. Such maintenance and repair does not allow the Independent Contractor to relocate any portion of the Ditch or, to the extent applicable, any Ditch laterals, without prior consent of the affected Owner(s). -2- C. Any Owner and/or the Independent Contractor may propose improvements to the Ditch, or maintenance and repairs to the Ditch in excess of $7,000.00 in the aggregate per year. The proposal shall be made to the Owners or their Designated Representatives (see Paragraph 6 below) in writing and shall include a reasonably accurate estimate of costs. The Designated Representatives will be responsible for obtaining consent from the Owners. Improvements, or maintenance or repairs in excess of $7,000.00, shall be performed only after the written consent of a majority of the Owners that will be responsible for any portion of said costs has been obtained. Costs associated with any such work shall be divided among the Owners in accordance with the provisions of Paragraph 2.2 of the Operating Agreement. In the event that a majority vote is not obtained, any such work may be performed by the Independent Contractor at the sole expense of the Owner desiring to undertake such work, provided that the written consent of the other affected Owners has been obtained, which consent will not be unreasonably withheld. d. Non-essential maintenance, repair or improvement of the Ditch shall not be performed if it will adversely affect the delivery of water to any Owner. e. In the event of an emergency, the Independent Contractor shall perform the minimum work necessary to safely operate the Ditch without prior consent of the Owners, and shall notify the Designated Representatives of the actions taken. The costs of any emergency work shall be divided among the Owners in accordance with the provisions of Paragraph 2.2 of the Operating Agreement. f. The Independent Contractor will deliver water to the Owners' laterals off the main Ditch in proportion to their ownership interest in the J.M. Dodd Ditch, as described in the Operating Agreement. Any Owner who does not wish to receive water will advise the Independent Contractor accordingly. The Independent Contractor will operate the Ditch in a manner consistent with any diversion and delivery schedule agreed upon by all of the Owners. The Contractor will maintain written records of the diversions at the headgate weir, and will provide such records to the Designated Representatives each month at the same time that Contractor submits his invoice for Compensation. The Designated Representatives shall maintain such records and make them available for review by any Owner upon request. g. The Independent Contractor will be in regulaf contact with the Designated Representatives and will provide them with the combination to the lock on the headgate. The Independent BIB Contractor will also provide advance notice to the Owners of the date water will be turned into the Ditch in the spring and turned off in the fall, and will provide advance notice to the affected Owners by telephone of any changes in the amount of water delivered to their laterals, so that the Owners can make any desired adjustments to their individual irrigation systems. h. The Independent Contractor will provide his telephone number to the Designated Representatives. By the 10th day of each month, the Independent Contractor will submit an invoice to the Designated Representatives for Compensation (see paragraph 3). The invoice will include (i) an itemization of the Independent Contractor's reimbursable expenses (e.g., materials for maintenance and repair of the Ditch), and (ii) a reasonable description of the work performed and time incurred. The invoice will identify the Section of the Ditch that benefited from the expenses or work, so that the Designated Representatives can allocate the charges among the Owners in a manner consistent with paragraphs 2.2 and 2.3 of the Operating Agreement. For purposes of this Agreement, any time or expenses incurred in maintaining, operating or repairing the headgate or the splitter box shall be allocated to Section 1 of the Ditch. So long as the Independent Contractor's invoice is in the appropriate form and contains the required information, it shall be paid within thirty days of receipt. If Independent Contractor will be out of the area or otherwise unavailable for any period exceeding 24 hours during the term of this Agreement, then Independent Contractor will hire at his own expense an independent subcontractor who will perform Independent Contractor's duties during Independent Contractors' absence; provided, however, that the Independent Contractor shall notify the Designated Representatives in advance of Independent Contractor's absence and Designated Representatives must approve the independent subcontractor. Independent Contractor will provide the independent subcontractor's telephone number to Designated Representatives. 3. COMPENSATION. For all services the Independent Contractor performs under this Agreement, the Owners will pay the Independent Contractor compensation as specified in this paragraph (the "Compensation"). The Independent Contractor will be responsible for invoicing the Designated Representatives for Compensation each month in accordance with this Agreement. Independent Contractor's Compensation shall be $50.00 per hour or $350 per week, whichever is greater. For purposes of this paragraph, the work week will be a seven-day week beginning on Monday (12:01 a.m.) and ending on Sunday (midnight). The Independent Contractor will be paid monthly by check made payable to Independent Contractor or any trade or business name under which the Independent Contractor does business. Independent Contractor will supply his own transportation and tools. 4. AGREEMENT TO PERFORM SERVICES AS AN INDEPENDENT CONTRACTOR. As recognized in C.R.S. §§ 8-40-202(2)(b)(II) & 8- 70-115(l)(c), the Parties agree that the J.M. Dodd Ditch Owners will not: a. Require the Independent Contractor to work exclusively for the J.M. Dodd Ditch Owners; b. Establish a quality standard for the Independent Contractor, oversee the actual work or instruct the Independent Contractor as to how the work is to be performed, except the Parties agree as stated in Paragraph 2 that the Independent Contractor's services and products will be consistent with generally accepted industry standards; Pay the Independent Contractor a salary or hourly rate, but rather will pay only the compensation stated in Paragraph 3; d. Provide more than minimal training for the Independent Contractor; e. Provide tools or benefits to the Independent Contractor; except that materials and equipment may be supplied as reasonably necessary for maintenance of and improvements to the Ditch; f. Dictate the time of performance, except that a completion schedule and a range of mutually agreeable work hours may be established through a written agreement between the Designated Representatives and the Independent Contractor for particular work the Independent Contractor accepts from the J.M. Dodd Ditch Owners; g. Combine operations of the Ditch in any way with the Independent Contractor's business, but instead both Parties will maintain their own operations as separate and distinct. 5. NO UNAUTHORIZED USE OF NAMES. Consistent with the provisions of this paragraph, the Independent Contractor agrees not to use the J.M. Dodd Ditch Owners name in any advertisement, promotion, business card, etc. without the Owners' prior written consent. The Independent Contractor further agrees not to advertise, promote or represent to any customer, potential customer, supplier or any other third party that the Independent Contractor is the Owners' employee or agent. Instead, the Independent Contractor may represent only that the Parties have an independent contractor relationship under which the Independent Contractor may from time to time be offered by -5- and may accept from the Owners an opportunity to provide the Independent Contractor's services and products. OWNERS. 6. DESIGNATED REPRESENTATIVES AND BILLING OF a. By consent of the majority of the Owners, the Owners will appoint one or more Designated Representatives who will be the Independent Contractor's principal contact regarding improvements to the Ditch pursuant to Paragraph 2.c., any emergency under Paragraph 2.e., submittal of invoices for Compensation under Paragraphs 21 and 3, and other Ditch matters as they may arise from time to time. The initial Designated Representatives shall be R.A. Nelson and Fred Green. b. The Designated Representatives shall be responsible for submitting to the Owners statements for payment of their respective share of the costs incurred under this Agreement and the Operating Agreement. The statements shall include a copy of the Independent Contractor's invoices and (if applicable) a statement of the Designated Representatives' reasonable costs incurred for administration of this Agreement (e.g., for postage, copies). If the statements are mailed to the Owners, payment is due within 30 days of the date of the postmark of the statement; if the statements are emailed or faxed to the Owners, payment is due within 30 days of the date of the email or fax. Owners shall make checks payable to the J.M. Dodd Ditch Association, and deliver the checks to the Designated Representative's address on the statement. The Designated Representatives are hereby authorized to open a bank account in Eagle County in the name of the J.M. Dodd Ditch Association for the purpose of depositing the payments from the Owners, paying the Independent Contractor's invoices, and paying the Designated Representatives' reasonable costs. In the event of the termination of the Independent Contractor's services under this Agreement, the Owners hereby agree that the Designated Representatives shall have the authority to engage a successor Independent Contractor upon terms and conditions consistent with this Agreement. 7. EFFICIENT DITCH OPERATIONS. At this time, the Ditch is an unincorporated Association, although the Owners hereby agree to cooperate in the formation of a Ditch Company to operate and administer the Ditch. The Owners desire to administer and operate the Ditch as efficiently as is reasonably possible. Accordingly, the Owners hereby agree that except as otherwise required under Paragraph 2.c. above, any Ditch operations or administrative matters that require the consent of the Owners may be undertaken upon the consent of a majority of the affected Owners, each Owner having one vote (for example, matters involving the headgate or splitter box will require the consent of four of the seven Owners). 8. INSURANCE. a. General Liability Insurance. The Owners will obtain and keep in full force and effect broad form general comprehensive liability insurance specifically covering but not limited to the use and operation of the Ditch. Contractor shall obtain and keep in full force and effect his own broad form general comprehensive liability policy. Each Party shall deliver to the other Party a certified copy of such insurance policy and any renewals thereof. Each Party shall provide thirty (30) days written notice to the other Party of the effective date of any cancellation of said policy. b. Other Insurance. Except as provided in paragraph 8.a. above, the Owners shall not include the Independent Contractor as an insured under any insurance policy, including, without limitation, any automobile, life, collision, comprehensive, health, medical, workers' compensation or unemployment compensation insurance policy. The Independent Contractor shall obtain and provide his own automobile liability and damage insurance, and any health and medical insurance which he deems necessary for Contractor and employees of Contractor. C. Independent Contractor to Obtain, Maintain and Manage Workers' Compensation and Unemployment Compensation Insurance for its Employs_ If, currently or at any time, the Independent Contractor has employees, the provisions of this paragraph will apply. The Independent Contractor must have in place on the effective date of this Agreement and must maintain during the term of this Agreement workers' compensation insurance and unemployment compensation insurance covering each of the Independent Contractor's employees who provides any services or products to the Owners or related to this Agreement (the Independent Contractor's "Employees"). The Independent Contractor will be solely responsible for managing, and, consistent with the indemnification provision in Paragraph 13 will be solely liable for any damages or award and will defend and indemnify the Owners with regard to, any occupational injury claim or unemployment claim, appeal or related proceeding brought by or on behalf of any Employee of the Independent Contractor. The Independent Contractor must provide proof reasonably satisfactory to the Owners and its insurers that the Independent Contractor has workers' compensation insurance and unemployment compensation insurance policies in place providing the required coverage for the Independent Contractor's Employees. Nothing in -7- this paragraph 8.b. shall preclude the Independent Contractor from contracting with other independent contractors or independent subcontractors to provide services or materials used in connection with operation and maintenance of the Ditch. 9. NO WITHHOLDINGS OR BENEFITS. As provided in C.R.S. §§ 8-40-202(2)(b)(IV) & 8-70-115(2), the Independent Contractor agrees that, as an independent contractor, the Independent Contractor is not entitled to any employee benefits from the Owners, including, but not limited to, any employer withholdings or liability for: taxes, FICA, Medicare or Medicaid; medical or disability insurance; vacation or leave; pension; unemployment insurance; or worker's compensation insurance (collectively, "Employee Benefits"). The Independent Contractor is obligated to pay federal and state income tax on any moneys paid to the Independent Contractor pursuant to this Agreement. EMPLOYEES. 10. INDEPENDENT CONTRACTOR'S DUTIES REGARDING a. In addition to the obligations regarding workers' compensation and unemployment compensation insurance stated in Paragraph 8.b., the Independent Contractor will comply with all laws, regulations, municipal codes and ordinances and other workplace requirements and standards applicable to the Independent Contractor's Employees, including, without limitation, federal and state laws governing wages and overtime, equal employment, safety and health, employees' citizenship, withholdings, pensions, reports and record keeping. b. Contractor hereby warrants that he is a citizen of the United States. Contractor further warrants that if he hires any employees, he will verify the employment eligibility of such employees and ensure that verification documentation is completed in compliance with any applicable state or federal laws. Contractor shall ensure that any independent contractor or subcontractor hired by Contractor has verified the employment eligibility of all its employees, in compliance with any applicable state or federal laws. 11. INDEPENDENT CONTRACTOR'S QUALIFICATIONS. On the effective date of this Agreement, and during the term of this Agreement, the Independent Contractor will be fully qualified and will have all approvals and registrations needed to perform its obligations under this Agreement. The Independent Contractor will have and maintain all licenses, permits, certificates and registrations needed to perform the Independent Contractor's duties under this Agreement. 12. ASSIGNMENT OF RIGHTS OR OBLIGATIONS. Any of the Owners may assign its rights or obligations under this Agreement at anytime after the effective date without advance notice to the Independent Contractor; the Independent R:18 Contractor may assign the Independent Contractor's rights or obligations under this Agreement only with the prior written agreement of the Designated Representatives. 13. INDEMNIFICATION. a. Indemnification by Owners. The Owners shall indemnify, hold harmless, reimburse and defend the Independent Contractor against any claim of or liability to any third person (including attorney fees, court or arbitration costs and any judgment or award), arising out of or resulting from the operation or maintenance of the Ditch provided that any such claims are not caused in whole or in part by any negligent acts, errors or omissions of the Independent Contractor. b. Indemnification by Independent Contractor. The Independent Contractor shall indemnify, hold harmless, reimburse and defend the Owners against any claim of or liability to any third person (including attorney fees, court or arbitration costs and any judgment or award), arising out of or resulting from the Contractor's work as performed under this Agreement, provided that any such claim, and all damages resulting therefrom are caused in whole or in part by the negligent acts, errors or omissions of the Contractor. In addition, the Independent Contractor shall indemnify, hold harmless, reimburse and defend the Owners against any claim of or liability for (including attorney fees, court or arbitration costs and any judgment, award or fine) any Employee Benefits (as defined herein) to any person claiming to have been an employee of Contractor. 14. ENTIRE AGREEMENT; AMENDMENT; ENFORCEABILITY• INTERPRETATION. This Agreement expresses the Parties' entire understanding about its subject matter and is the only agreement, promise or understanding on which the Parties are relying in performing the duties this Agreement describes. The only way this Agreement may be amended, changed or waived will be through a written document all J.M. Dodd Ditch Owners sign. This Agreement is enforceable by and against each Party and anyone else who has or who obtains rights under this Agreement from any Party. All provisions in this Agreement that state obligations and rights that will continue or arise after the termination of the Agreement will survive the termination and will remain fully enforceable by the Party entitled to demand performance from the other Party. This Agreement will be interpreted and enforced under Colorado law. No part of this Agreement should be construed against either Party on the basis of authorship. Any unenforceable provision of this Agreement will be modified to the extent necessary to make it enforceable or, if that is not possible, will be severed from this Agreement, and the remainder of this Agreement will be enforced to the fullest extent possible. 15. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 16. NOTICES, PROCESS. Except for any notice from the Independent Contractor to the Designated Representatives, and the telephone notice to Owners under paragraph 2.g., any notice required or permitted by this Agreement to any Owner shall be in writing and shall be deemed sufficiently given and received when actually delivered and received by fax or email to the following, or three business days after mailed, postage and fees prepaid, addressed to the Owner to whom such service is to be given at the following addresses, or such other addresses as have been previously furnished in writing to the other Owners. Any successor to any Owner may notify the other Owners of their interest and notice address by providing notice to the other Owners as provided herein. PARTY: Eagle County School District RE -50J Attn: Superintendent P.O. Box 740 Eagle, Colorado 81631 Telephone: 970-328-6321 Fax: 970-328-1024 Email: j_brendeza@eagleschools.net With copy to: Eagle County School District RE -50J Attn: Director of Facilities P.O. Box 740 Eagle, Colorado 81631 Telephone: 970-328-1324 Fax: 970-328-1336 Email: discog@eagleschools.net C&B Development Attn. Jim Comerford P.O. Box 2342 Edwards, CO 81632 Telephone: 970-926-8709 Fax: Email: -10- Frederick D. Green P.O. Box 1308 Edwards, Colorado 81632 Telephone: 970-926-4100 Fax: Email: fdgreen@hotmail.com Judith D. Pyle 4155 Akulikuli Terrace Honolulu, Hawaii 96816 Telephone (attn Glynn Rossa): 608-831-9401 Email: GRossa@idpandassoc.com R.A. Nelson P.O. Box Drawer 5400 Avon, Colorado 81620 Telephone: 970-949-5152 Fax: 970-949-4379 Email: ranelsonnranelson.com Gerald Gallegos c/o The Gallegos Corporation P.O. Box 821 Vail, Colorado 81658 Telephone: 970-927-3737 Fax: Email: Eagle County C/o T Llu%"k P.O. Box 850 Eagle, CO 81631 Telephone: (&; 7 &.> Fax: 07c) 3-'r-- Email: ytu -� , FC>41 4 Ci yip% 66 u f 1 Stan Halvorson PO Box 1122 Vail, Colorado Telephone: 970-949-1331 Fax: Email: - 11 - v le y IN WITNESS OF OUR AGREEMENTS, the J.M. Dodd Ditch Owners and the Independent Contractor have executed this Agreement on the date(s) indicated below. [Remainder of page intentionally left blank.] -12- STATE OF COLORADO) COUNTY OF EAGLE) EAGLE COUNTY SCHOOL DISTRICT RE -50J (-i The foregoing Independent Contractor Agree ent was signed and acknowledged before me this JS:�'-day of Q , 2007, by for Eagle County School District RE -50J. Witness my hand and official seal. My commission expires: WCOWASSION EXPIRE& NWtCH2Z2= STATE OF ) COUNTY OF ) _...0:4 A/_a C&B Development wo Title: The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by for C&B Development. Witness my hand and official seal. My commission expires: -13- Notary Public R.A. NELSON STATE OF COLORADO) COUNTY OF EAGLE) The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by R.A. Nelson. Witness my hand and official seal. My commission expires: Notary Public FREDERICK D. GREEN STATE OF ) COUNTY OF ) The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by Frederick D. Green. Witness my hand and official seal. My commission expires: -14- Notary Public JUDITH D. PYLE STATE OF ) COUNTY OF ) The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by Judith D. Pyle. Witness my hand and official seal. My commission expires: Notary Public GERALD GALLEGOS STATE OF ) COUNTY OF ) The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by Gerald Gallegos. Witness my hand and official seal. My commission expires: -15- Notary Public STATE OF COLORADO) IC COUNTY OF EAGLE) EAGLE COUNTY L-0 Title: The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by for Eagle County, Witness my hand and official seal. My commission expires: STATE OF COLORADO) F COUNTY OF EAGLE) Notary Public STAN HALVORSON The foregoing Independent Contractor Agreement was signed and acknowledged before me this day of , 2007, by Stan Halvorson. Witness my hand and official seal. My commission expires: 3618435_1 LDDC Well Notary Public