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HomeMy WebLinkAboutC13-313 Eagle Valley Land Trust Agreement AGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY,COLORADO AND EAGLE VALLEY LAND TRUST THIS AGREEMENT("Agreement")is effective as of the_P day of October,2013 by and between Eagle Valley Land Trust,a Colorado non-profit corporation(hereinafter"Contractor")and Eagle County,Colorado,a body corporate and politic(hereinafter"County"). RECITALS WHEREAS,County has entered into a purchase and sale agreement with Piney Valley Ranches Trust,the owner of real property located in Eagle County, Colorado known as the Horn Ranch; and WHEREAS,County intends to purchase a fee interest in a portion of the Horn Ranch known as the"Conveyed Parcel"which will be encumbered by a conservation easement to be held by Contractor;and WHEREAS,County intends to purchase a conservation easement interest in a portion of the Horn Ranch known as the"Retained Parcel"which will be encumbered by a conservation easement to be held by Contractor;and WHEREAS,the purchase and conservation of the Horn Ranch shall hereinafter be referred to as the"Project"; and WHEREAS,Contractor is authorized to do business in the State of Colorado and has the time,skill,expertise,and experience necessary to provide the Services as defined below in paragraph 1 hereof;and WHEREAS,this Agreement shall govern the relationship between Contractor and County in connection with the services. AGREEMENT NOW,THEREFORE,in consideration of the foregoing and the following promises Contractor and County agree as follows: 1. Services or Work. Contractor agrees to diligently provide all services,labor,personnel and materials necessary to perform and complete the services or work described in Exhibit A("Services"or"Work")which is attached hereto and incorporated herein by reference.The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Contractor agrees to furnish the Services in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A,then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement,the terms and conditions set forth in this Agreement shall prevail. 2. County's Representative. The County's Open Space Department's designee shall be Contractor's contact with respect to this Agreement and performance of the Services. 3. Intentionally omitted. 4. Extension or Modification. This Agreement may be extended for up to three additional one year terms upon written agreement of the parties.Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services. Accordingly,no course of conduct or dealings between the parties,nor verbal change orders,express or implied acceptance of alterations or additions to the Services,and no claim that County has been unjustly enriched by any additional services,whether or not there is in fact any such unjust enrichment,shall be the basis of any increase in the compensation payable hereunder.In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement,Contractor's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Contractor for the performance of the Services the fixed sum of eighty thousand dollars$80,000.00. a. Payment will be made within thirty(30)days of closing on the purchase and preservation transaction for the Horn Ranch. b. If,at any time during the term or after termination or expiration of this Agreement,County reasonably determines that any payment made by County to Contractor was improper because the Services for which payment was made were not performed as set forth in this Agreement,then upon written notice of such determination and request for reimbursement from County,Contractor shall forthwith return such payment(s)to County. Upon termination or expiration of this Agreement,unexpended funds advanced by County, if any,shall forthwith be returned to County. c. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. d. Notwithstanding anything to the contrary contained in this Agreement,County shall have no obligations under this Agreement after,nor shall any payments be made to Contractor in respect of any period after December 31 of any year,without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25,title 30 of the Colorado Revised Statutes,the Local Government Budget Law(C.R.S. 29-1-101 et. seq.)and the TABOR Amendment(Colorado Constitution,Article X, Sec. 20). 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County's prior written consent,which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no personnel to whom County has an objection,in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor,as approved by County and to the extent of the Services to be performed by the subcontractor,to be bound to Contractor by the terms of this Agreement,and to assume toward Contractor all the obligations and responsibilities which Contractor,by this Agreement, assumes toward County. County shall have the right(but not the obligation)to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents,employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor's sole cost and expense,the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers' Compensation insurance as required by law. ii. Auto coverage. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury,products/completed operations,broad form property damage. b. Other Requirements. i. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement,the monetary limitations or rights,immunities and protections provided by the Colorado Governmental Immunity Act,as from time to time amended,or otherwise available to County,its affiliated entities,successors or assigns, its elected officials,employees,agents and volunteers. v. Contractor is not entitled to workers' compensation benefits except as provided by the Contractor,nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnify and hold harmless County,and any of its officers,agents and employees against any losses,claims,damages or liabilities for which County may become subject to insofar as any such losses, claims,damages or liabilities arise out of,directly or indirectly,this Agreement,or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder;and Contractor shall reimburse County for reasonable attorney fees and costs,legal and other expenses incurred by County in connection with investigating or defending any such loss, claim,damage,liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents(including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when(i)personally delivered,or(ii)when mailed in the United States mail,first class postage prepaid,or(iii)when delivered by FedEx or other comparable courier service,charges prepaid,to the parties at their respective addresses listed below,or(iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date,time and receiving facsimile number for the transmission,or(v)when transmitted via e-mail. Either party may change its address for purposes of this paragraph by giving five(5)days prior written notice of such change to the other party. COUNTY: Eagle County,Colorado Attention: Toby Sprunk,Open Space Director 500 Broadway Post Office Box 850 Eagle,CO 81631 Telephone: 970-328-8698 Facsimile: 970-328-7185 E-Mail: toby.sprunk @eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle,Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 Email:atty@eaglecounty.us CONTRACTOR: Eagle Valley Land Trust Attention: Kara Heide,Executive Director Post Office Box 3016 Edwards,CO 81632 Telephone: 970-748-7654 Facsimile: 970-949-1357 E-mail: Kara @evlt.org 11. Termination. County may terminate this Agreement,in whole or in part, at any time and for any reason, with or without cause,and without penalty therefor with seven(7)calendar days' prior written notice to the Contractor. Upon termination of this Agreement,Contractor shall immediately provide County with all documents as defined in paragraph 9 hereof,in such format as County shall direct and shall return all County owned materials and documents. 12. Venue,Jurisdiction and Applicable Law. Any and all claims,disputes or controversies related to this Agreement,or breach thereof, shall be litigated in the District Court for Eagle County,Colorado,which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts;Electronic Signatures. This Agreement may be executed in two or more counterparts,each of which shall be deemed an original,but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized,if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act,C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and Contractor Representations. a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and the Property,and with all local conditions, federal,state and local laws,ordinances,rules and regulations that in any manner affect cost,progress,or performance of the Services. b. Contractor will make,or cause to be made,examinations, investigations,and tests as he deems necessary for the performance of the Services. c. To the extent possible,Contractor has correlated the results of such observations,examinations, investigations,tests,reports, and data with the terms and conditions of this Agreement. d. To the extent possible,Contractor has given County written notice of all conflicts,errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct,at its sole expense,all significant errors and omissions in performance of the Services. The fact that the County has accepted or approved the Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a skillful,professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Agreement. f. Contractor agrees to work in an expeditious manner,within the sound exercise of its judgment and professional standards,in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee,master-servant,partnership,joint venture or any other relationship between County and Contractor except that of independent contractor.Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services,Contractor shall comply with any and all applicable laws,codes,rules and regulations. i. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest.Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties,and not to any third party. • 1. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. m. The invalidity,illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement.The Contractor has no beneficial interest,direct or indirect,that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. o. - The Contractor,if a natural person eighteen(18)years of age or older,hereby swears and affirms under penalty of perjury that he or she(i)is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii)to the extent applicable shall comply with C.R.S.24-76.5-103 prior to the effective date of this Agreement. 15. Prohibitions on Government Contracts. If Contractor has any employees or subcontractors,Contractor shall comply with C.R.S. 8-17.5-101,et. seq., regarding Illegal Aliens-Public Contracts for Services,and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Agreement and that Contractor will participate in the E-verify Program or other Department of Labor and Employment program("Department Program")in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Contractor shall not: i. Knowingly employ or contract with an illegal alien to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. b. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program,as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: http:i.'www.dhs.gov/xprevprotiprograms/gc_l 1 8522167 8150.shtm c. Contractor shall not use either the E-verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. d. If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien,Contractor shall be required to: i. Notify the subcontractor and County within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (1) of the paragraph (d) the subcontractor does not stop employing or contracting with the illegal alien; except that Contractor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Contractor violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Contractor shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and County terminates the Agreement for such breach. IN WITNESS WHEREOF,the parties have executed this Agreement the day and year first set forth above. EAGLE COUNTY,COLORADO (00,...'-' " By and through the Board of County Commissioners y: d, hfoLA____ ' Sara J.Fishe ,Chair Attest: �Q _!p� — By: dift, `, i Teak J. Simonton,Clerk to the Board CONTRACTOR: EAGLE VA. LEY LAND RU T By: (- f ao-- ` yC !) "Ara Heide xecutive Director i ( EXHIBIT A SCOPE OF SERVICES, SCHEDULE,FEES 1. Eagle Valley land Trust will timely coordinate,negotiate and draft conservation easements for the Retained Parcel and Conveyance Parcel for the Horn Ranch project. Contractor will employ an attorney specialized in the conservation easement transactions to prepare and review the documentation associated with the Horn Ranch transaction including but not limited to,present condition reports,title commitments,environmental assessments and mineral reports. All documents including conservation easements shall be in a form acceptable to County and to Great Outdoors Colorado. 2. As holder of the conservation easements for the Retained Parcel and Conveyance Parcel,Contractor shall be responsible for annual monitoring and enforcement pursuant to the terms of the final conservation easements. Contractor shall provide its annual report of findings to County within thirty(30)days of each annual monitoring visit. 3. Contractor acknowledges and agrees that all due diligence and final forms of conservation documents shall be in an approved and final form no later than November 18, 2013 and shall timely execute all documents necessary for the closing no later than December 11,2013 or such other date as may be agreed to in writing by the parties. 4. County shall pay a fixed sum of eighty thousand dollars($80,000)to Contractor for performance of the Services which may be used by Contractor to pay its legal and other administrative costs in connection with the Horn Ranch project and to fund its ongoing stewardship duties under the Retained Parcel Conservation Easement and Conveyed Parcel Conservation Easement. •