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HomeMy WebLinkAboutC17-148 Eagle River Watershed CouncilAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND EAGLE RIVER WATERSHED COUNCIL THIS AGREEMENT ("Agreement") is effective as of _ 05/02/2017 __, by and between Eagle River Watershed Council, a Colorado nonprofit corporation (hereinafter "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, Contractor has agreed to provide services and opportunities to help protect the natural environment; and WHEREAS, these funds support Contractor's general operating expenses, restoration projects, coordination of the Eagle River Cleanup and Community Pride Highway Cleanup, Water Quality Monitoring & Assessment Program, and the Eagle River Watershed Council's community and school education programs (including Watershed Ed, Watershed Wednesdays, The River Guide Education Program and a Public Service Announcement (PSA) campaign) and other programs (the "Project") based out of the Eagle River Watershed Council office at 330 Broadway, Eagle, Colorado (the "Property"); and WHEREAS, the parties acknowledge and agree that the Services (defined below) promote the health, safety and welfare of the people of Eagle County and are intended to provide services that could otherwise be performed by County directly; and WHEREAS, Contractor has elected to perform the Services on its own and County has, therefore, elected to compensate Contractor to perform the Services for the public to fulfill an important public purpose; and WHEREAS, compensation paid by County to Contractor enables Contractor to perform the Services for the public and County shall have no responsibility for the performance of the Services; and WHEREAS, County desires to enter into this Agreement with Contractor for the performance of the Services to the public which will directly support and sustain a healthy, environmentally and economically vital and socially diverse community; 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. C17-148 a. Contractor agrees to furnish the Services and reports or other information required by County in accordance with the schedule established in Exhibit A. If no schedule is specified in Exhibit A, then Contractor agrees to furnish the Services to the public 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 Exhi i 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 Environmental Health Department's designee shall be Contractor's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 11 hereof, shall continue in full force and effect through the 31" day of December, 2017. County makes no representations concerning the possibility of future Agreements with Contractor and Contractor should not rely on this Agreement being extended or renewed in the future. 4. Modifications. Any amendments or modifications shall be in writing signed by both parties. S. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $80,000. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. If County is not satisfied with the completeness of a submitted invoice, County may request Contractor either revise the invoice or provide additional information. To ensure proper payment, all invoices must be in .pdf format delivered via email to Terri Vroman (terri.vroman@eaglecounty.us) with the email cc'd to ray. merry@eaglecounty.us. b. If, prior to payment of compensation or reimbursement for Services but after submission to County of a request therefore by Contractor, County reasonably determines that payment as requested would be improper because the Services were not performed as prescribed by the provisions of this Agreement, the County shall have no obligation to make such payment. 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 or purposes for which payment was made were misrepresented, 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. No additional services or work performed by Contractor shall be the basis for additional compensation. 2 Service Award Agreement 2017 d. 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. e. 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 3 t 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. 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 insurance appropriate for the type of Services it provides to the public. Such insurance may include, but not be limited to, workers compensation insurance as required by law; automobile coverage; commercial general liability or professional liability coverage. 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. 8. Indemnification. Governmental Irnrnunity and No Third Party Beneficiaries. a. 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, any negligence or willful malfeasance on the part of the Contractor in performing the Services; 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. b. 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 Irnrnunity 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. C. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties and not to any third party. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party any right to claim damages or to bring any suit, action or other proceeding in connection with the Agreement. The parties acknowledge that the Services could otherwise be performed by the County but County has instead determined to provide financial support through compensation as set forth in paragraph 5. Such compensation by County enables Contractor to perform the Services for the public and County shall have no responsibility therefor. Because Contractor is delivering the Services to the public and not Eagle County, the public shall have no rights under this Agreement and may not make any claim against County in connection with this Agreement. 3 Service Award Agreement 2017 9. Documents. Documents and materials prepared by Contractor during the term of this Agreement shall be provided to County upon request and County shall have the right at no additional cost, to copy, use, re -use, publish, display, the documents and materials and prepare derivative works. 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 snail, 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 transmitted via e-mail with confirmation of receipt. 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. Well] L40IbV Eagle County, Colorado Attention: Ray Merry 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8757 Facsimile: 970-328-8788 E -Mail: ray. merry@eaglecounty.us CONTRACTOR: Eagle River Watershed Council Attention: Holly Loff 330 Broadway Unit D PO Box 5740 Eagle, CO 81631 Phone: 970-827-5406 Fax: 970-827-5567 E -Mail: toff@erwc.org 11. Termination. Either party 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 other party. County shall pay Contractor only for Services satisfactorily performed to the date of termination. 12. Venue, Jurisdiction and Applicablc 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. 4 Service Award Agreement 2017 14. Other Contract Requirements and Contractor Representations. a. 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. Contractor shall perforin 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. Contactor 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. b. 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. C. 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. d. Contractor shall comply with any and all applicable laws, codes, rules and regulations and that is personnel are duly licensed, if required, to perform the Services in Colorado. C. 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. f. 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. g. 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. h. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. i. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services 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. j. 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. k. Contractor acknowledges that it is prohibited from using Eagle County funds to provide certain public benefits to undocumented individuals pursuant to C.R.S. 24.76.5-tOf et. seg. 1. Contractor shall comply at all times and in all respects with all applicable federal, state and local laws, resolutions and codes; and specifically, with the requirements of the Civil Rights Act of 1964 and Section 504 5 Service Award Agreement 2017 of the Rehabilitation Act concerning discrimination on the basis of race, color, gender, sex, sexual orientation, age, religion, national origin or disability. M. Contractor shall maintain, for a minimum of three (3) years, adequate financial and programmatic records for reporting to County on the performance of its responsibilities hereunder. Contractor shall be subject to financial audit by county auditors or their designees. Contractor authorizes County to perform audits or to make inspections during normal business hours, upon 48 hours' notice to Contractor for the purpose of evaluation its performance under this Agreement. Contractor shall cooperate fully with County. n. The recitals set forth above are incorporated herein by reference. 15. Prohibitions on Government Contracts. As used in this Section 15, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.RS. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual 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 undocumented individual 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 undocumented individual 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://www.dhs.gov/xprevprot/programsl�c 1185221678150.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 undocumented individual, 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 undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that 6 Service Award Agreement 2017 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 undocumented individual. 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. [REST OF PAGE INTENTIONALLY LEFT BLANK] 7 Service Award Agreement 2017 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. Attest: y By: ------------- Regina O'Brien, Clerk to the Board COUNTY OF EAGLE, STATE OF COLORADO, B y and Through Its BOARD OF COUNTY COMMISSIONERS By: Jew dillian H. Ryan, Chair CONTRACTOR: EAG as_: 0UNCIL va Print Name: Holly Loff Title: Executive Director 8 Service Award Agreement 2017 EXIMrr A SCOPE OF SERVICES, SCHEDULE, FEES, REPORTING REQUIREMENTS 1. SCOPE OF SERVICES a. CONTRACTOR SHALL PERFORM OR PROVIDE THE FOLLOWING SERVICES OR PROGRAMS TO THE PUBLIC: i. General Administration ($25,000). These funds support the Watershed Council's general operating expenses including rent, equipment, and staff salaries. Additionally, general administrative support allows us to participate actively as a stakeholder in projects and events that have potential impacts on our rivers. Eagle River Watershed Council is not always the lead on such projects, but offer critical, unbiased support and guidance to the effort. Such work does not have its own budget and is supported solely by the general (unrestricted) funds available. Examples of such projects include our involvement in the drafting of the Colorado River Basin Implementation Plan for the State Water Plan; our active participation in the Camp Hale Restoration Project; and our continued monitoring, advocacy and community outreach for both the Eagle Mine and the Vail Pass highway traction sand removal effort. Support for this category comes from foundations, the Town of Vail, Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority, the Town of Avon, corporations, individuals and ERWC Board members. ii. Restoration Projects ($25,000). Eagle River Watershed Council coordinates numerous restoration projects throughout the Eagle Valley each year which vary in size, scope and location. In 2Q17, Eagle River Watershed Council plans to use funds from Eagle County to support the following restoration projects. The funds from the County will be proportioned between the projects as needed, not necessarily in equal measure. • Eagle Mine Limited, a sister nonprofit organization, to Eagle River Watershed Council is no longer receiving funding from the EPA's Technical Assistance Grant program and is now functioning as an advisory committee to the Watershed Council. This will allow the Watershed Council to take a more strategic approach to the ongoing cleanup of the Eagle Mine Superfund site. Our established monitoring, advocacy and community outreach for the Eagle Mine will continue. • The Black Gore Creek Steering Committee is a group coordinated by the Watershed Council to monitor the annual removal of highway traction sand on Vail Pass before it reaches Black Gore Creek. Watershed Council staff have been participating on the Colorado Department of Transportation's Project Leadership Team to help guide the planning process for better maintenance and access to the last sediment basin on the pass (otherwise known as the Basin of Last Resort). Additionally, the Watershed Council has been working with Lotic Hydrological on sediment transport modeling on the pass that will lead to small sediment reduction projects in other areas of the pass. These will largely be small-scale, inexpensive projects that can be addressed using Watershed Council volunteers. • Monitoring and mechanical treatment of noxious weeds and needed maintenance of the plantings at the Edwards Eagle River Restoration Project site. This protects the county's significant investment in this otherwise completed restoration project. 9 Service Award Agreement 2017 • With support from Eagle County in 2015 and 2006, Eagle River Watershed Council mapped tamarisk and Russian olive populations along Eagle County's 55 miles of the Upper Colorado River and the lower half of the Eagle River from Edwards to the confluence with the Colorado River in Dotsero. It began removing these populations along the Colorado River with the BLM in 2016. The Russian olive problem is significant along the lower portion of the Eagle River however. A program will be planned and potentially launched in 2017 that encourages landowners that are using this invasive species as an ornamental tree to remove the trees- perhaps through a voluntary rebate program. Additional funding will be sought for this program from foundations and other entities once this program is further developed. • Eagle River Watershed Council will continue to coordinate the Urban Runoff Group's efforts to develop Water Quality Action Plans for Avon, Eagle and further points west. Urban Runoff Group works to identify and implement strategies for water quality protection throughout the valley by starting in the upper watershed and systematically moving downstream. The process is currently wrapping up for Eagle County's jurisdictions of Eagle -Vail and Edwards. • Eagle River Watershed Council began offering a temporary position for a Habitat Restoration Intern in the summer of 2015. It repeated this again in 2016 and added two Youth Conservation Internships. The three interns work together to implement projects of the Watershed Council, support our project partners and coordinate our volunteer restoration projects. Eagle River Watershed Council aims to continue offering these internships as it not only greatly expands its reach, but provides work experience in water sciences, restoration ecology and project and volunteer management to local youth and college students/recent graduates. iii. Community Pride Highway Cleanup ($2,500) & Eagle River Cleanup ($2,500) (total=$5,000). The coordination of these two annual cleanup events requires event marketing and planning, volunteer recruitment and management of a total of over 1,300 volunteers. Last spring, 12 tons of trash were collected along 140 miles of highways by the volunteers. River Cleanup teams cover about 70 miles of river each fall. The popular events build community throughout the entire Eagle Valley, giving participants a feeling of ownership in maintaining our environment. A further, and obvious, benefit is the beautification of the valley for the arrival of summer guests, and the removal of trash and other pollution from our rivers at the end of the summer tourist season- just in time for a busy winter ski season. Support of these events displays the County's strategic collaborations in meeting its initiatives surrounding environmental stewardship. The funds received from these events support the work of the Watershed Council throughout the year. Additional support comes from local businesses, individuals, corporations, clubs, foundations and Towns. iv. Water Quality Monitoring & Assessment Program ($10,000). This program coordinates water quality and biological data collection by numerous entities in the Eagle River watershed. The program provides a central and easily -accessible repository for the data and insures that data collection is not duplicative nor that there are gaps in the monitoring effort. Funding supports coordination of data collectors, data analysis, annual reporting to stakeholders and the community, a shared database, and the production of an annual report card that gives a graphical interpretation of the data. Additional support comes from Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority, Homestake Partners (Aurora and Colorado Springs), the Denver Water Board, Vail Resorts Management Company, Crave Real Estate, the Towns of Gypsum, Eagle, Avon, Minturn and Vail, and the Colorado River Water Conservation District. 10 Service Award Agreement 2017 v. Community & School Education Programs ($15,000). The education programs offered by Eagle River Watershed Council have grown significantly in the last few years, reflecting a community need to better understand the watershed and threats to river health. These programs include: • The Watershed Wednesday series is offered for free six times per year and exposes participants to new and interesting water related topics. In 2016, these topics included a tour of a SnoTel snow survey site; a slide presentation by Colorado photographer, John Fielder; a presentation from the US Forest Service and Colorado Parks & Wildlife on the State of the Fishery; and an opportunity to learn about (and collect!) macroinvertebrates in the Eagle River, and a slide presentation from the US Men's and Women's Raft Teams on rivers on the world. • A Public Service Announcement campaign with the Vail Daily and Weekly has quarter -page professionally -designed ads running weekly. Although these are not always educational in nature, at least one ad per month is utilized to educate the reader about a different aspect of the watershed. • WaterPalooza is an educational event currently being developed for the summer of 2017. The Watershed Council will offer this free water festival for local youth and their families with activities centered around various water topics. Activities may include: river morphology experience trailer, fish painting, fly casting, fly tying, river bug identification, water treatment and more! • The Eagle River Watershed Council also has a monthly enewsletter, distributed to over 800 people, and a monthly column in the Vail Daily. Additional education funding also comes from private foundations, Eagle River Water & Sanitation District (who underwrites the filming of Watershed Wednesdays by TV5) and individual donations. Eagle County's support of Eagle River Watershed Council will be recognized with our banner hung at specified events (Community Pride Highway Cleanup (April), RiverFest (August), and Eagle River Cleanup (September)), as well as logo and name recognition on collateral, advertising and on -air (radio and TV) promotions for these events. Additionally, Contractor will recognize Eagle County's support on specific project collateral as appropriate. b. CONTRACTOR SHALL COMPLY WITH THE FOLLOWING SCHEDULE OR MILESTONES IN PERFORMANCE OF THE SERVICES: The aforementioned services will be provided throughout the year. 2. CONTRACTOR SHALL BE REQUIRED TO SUBMIT THE FOLLOWING REPORTS TO COUNTY: The Contractor shall submit an annual report to Eagle County demonstrating that the services outlined in the scope of work were provided satisfactorily in accordance with the terms of this agreement. The Environmental Health Director shall authorize final payment only if the Contractor adequately demonstrates satisfactory performance. Said report and final invoice shall be submitted no later than December 15, 2017. 11 Service Award Agreement 2017