HomeMy WebLinkAboutC17-216 Eagle River Watershed CouncilAGREEMENT BETWEEN EAGLE COUNTY, COLORADO
AND
EAGLE RIVER WATERSHED COUNCIL, INC.
PERTAINING TO
U.S. GEOLOGICAL SURVEY, UNITED STATES DEPARTMENT OF THE INTERIOR
INVESTIGATION OF STREAM CONDITIONS IN THE EAGLE RIVER WATERSHED
This Agreement ("Agreement") is made this 06/20/2017 , by and between Eagle
County, Colorado, a body corporate and politic (hereinafter "County") and Eagle River
Watershed Council, Inc. a Colorado non-profit corporation (hereinafter "Council"). County and
Council together shall be referred to herein as the "Parties".
RECITALS
WHEREAS, Council has been coordinating with the U.S. Geological Survey, United Stated
Department of the Interior ("USGS") for an investigation of stream conditions to assess the
extent of diel cycles in environmental properties in the Eagle River Watershed for the period
from 2017 to 2019 (hereinafter the "Project"); and
WHEREAS, Council anticipated entering into a funding agreement with the USGS whereby
the Council would fund a portion of the Project; and
WHEREAS, the Council has learned that the USGS is not able to enter into funding
agreements with non-profit entities but USGS can enter into funding agreements with local
governments; and
WHEREAS, Eagle County has an interest in stream health within Eagle County and
understanding the results and findings of the Project and has agreed to act as a fiscal agent for
Council; and
WHEREAS, as fiscal agent for Council, Eagle County has or will enter into a joint funding
agreement with USGS for the Project subject to the terms and conditions set forth herein; and
WHEREAS, USGS has agreed to enter into a joint funding agreement with County in
connection with the Project; and
WHEREAS, County and Council desire to enter into this Agreement to set forth their
relationship and their rights and obligations in connection with the Joint Funding Agreement for
the Project.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration as set forth herein and in the
C17-216
Recitals, the Parties agree as follows:
1. County has or will enter into a Joint Funding Agreement with USGS in connection with
the Project in the form attached as Exhibit A which is incorporated herein by reference.
Council agrees to be bound by and will perform all obligations attributed to the County in
the Joint Funding Agreement except as expressly set forth herein.
2. Council will, at the time of executing this Agreement, deposit $99,500 with County
(hereinafter the "Funds"). Upon receipt of the Funds, County will pay the Funds from
time to time to USGS to fund the Project in accordance with the schedule set forth in the
Joint Funding Agreement. The Parties agree that County has no obligation under this
Agreement to independently fund the Joint Funding Agreement or to otherwise fund the
Project.
3. The Parties acknowledge that Council will timely and satisfactorily perform any
obligations attributed to County in the Joint Funding Agreement.
4. Council acknowledges and agrees that County shall have no responsibility for the
performance, non-performance, or quality of performance by USGS for the Project and
under the Joint Funding Agreement, including but not limited to, the amount or timing of
funding by USGS, field and analytical work, writing reports, publication of maps or
records or reports or results, compliance with quality assurance plans, submission of
samples, reanalysis of questionable lab results, testing, storage of data, historic data
review, site selection, installation and uninstallation of in-situ monitor(s), continuous
recording, geochemical or other data analysis, synoptic sampling, rentals, obtaining or
installing equipment, or payment of other costs. County's sole obligation to Council shall
be payment of the Funds to USGS under the Joint Funding Agreement.
S. Council shall be responsible for coordinating the right to publish results directly with
USGS and shall include any statements of cooperation as required by USGS.
5. County will not agree to or implement any changes or amendments to the Project or the
Joint Funding Agreement with USGS or the obligations of the Parties hereunder without
first obtaining approval from Council. Upon mutual agreement of the Parties, the
change(s) or amendment(s) shall be incorporated by an amendment to this Agreement in
writing, executed by the Parties. Notwithstanding the foregoing, in the event Council fails
to perform in accordance with the terms of this Agreement or the Joint Funding
Agreement, County shall have the right to terminate this Agreement and the Joint
Funding Agreement. Termination by County of this Agreement shall be as set forth in
paragraph 12 hereof and termination of the Joint Funding Agreement shall be in
accordance with the terms thereof. Further, in the event of a breach of this Agreement by
Council, County shall have all remedies available to it at law or in equity, including
specific performance.
7. Council will not agree to or implement any changes or amendments to the Project that
might affect the Joint Funding Agreement or the obligations of the Parties hereunder
without first obtaining approval from County. Upon mutual agreement of the Parties, the
change(s) or amendment(s) shall be incorporated by an amendment to this Agreement in
writing, executed by the Parties.
8. By executing this Agreement County does not waive any immunity or limitation of
liability contained in the Colorado Governmental Immunity Act or other applicable law.
9. Council shall be responsible for obtaining any matching funds and in-kind contributions
and Eagle County shall have no responsibility therefor. In the event USGS fails to fund or
withdraws funding for the Project, or otherwise fails to perform as set forth in the Joint
Funding Agreement, Eagle County shall have no responsibility therefor.
10. Council shall indemnify and hold harmless, Eagle County and any of its officers, agents
and employees from and 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, the Project, and/or the Joint Funding
Agreement, or are based upon any performance or non-performance by Council or any of
its sub -consultants, and Council shall reimburse County for reasonable attorney fees and
costs, legal and other expenses incurred by County in investigating or defending any such
loss, claim, liability or action. Council hereby waives any and all rights or claims to any
type of express or implied indemnity or right of contribution from the County, its
officers, agents, and employees, for any liability resulting from, growing out of, or in any
way connected with or incident to the Project, this Agreement, and/or Joint Funding
Agreement.
11. 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 with confirmation of receipt. Either party may change
its address for purposes of this paragraph by giving five (S) days prior written notice of
such change to the other party.
COUNTY:
Eagle County, Colorado
Attention: Ray Merry
500 Broadway
Post Office Box 179
Eagle, CO 81631
Telephone: 970-328-8757
Facsimile: 974-328-8788
E -Mail: Ray.Merry@eaglecounty.us
With a copy to:
Eagle County Attorney
500 Broadway
Post Office Box 854
Eagle, Co 81631
Telephone: 974-328-8685
Facsimile: 974-328-8699
E -Mail: atty@eaglecounty.us
Council:
Holly Loff, Executive Director
Eagle River Watershed Council
Post Office Box 5740
Eagle, CO 81631
Telephone: 970-827-5406
E-Mail:loff@erwc.org
12. 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 Council. Upon termination or expiration of this
Agreement, any Funds not disbursed to USGS under the Joint Funding Agreement shall
be returned to Council or USGS, as applicable or mutually agreed to by the Parties.
13. 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,
unless litigation is brought by USGS in connection with the Joint Funding Agreement.
This Agreement shall be construed and interpreted under and shall be governed by the
laws of the State of Colorado. In the event of any litigation under the Joint Funding
4
Agreement, County shall have the right, but not the obligation, to join USGS in that
litigation.
14. 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.
15. Other Contract Requirements and Council Representations.
a. Council has familiarized itself with the nature and extent of the Project and Joint
Funding Agreement and requirements of this Agreement 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 Project.
b. Council shall be responsible for the completeness and accuracy of the Project and
its compliance with the Joint Funding Agreement and shall correct, at its sole expense, all
significant errors and omissions in its performance. The fact that the County has
accepted in the role of fiscal agent shall not relieve Council of any of its responsibilities.
Council shall perform the Project in a skillful, professional and competent manner and in
accordance with the standard of care, skill and diligence applicable to Council. Council
represents and warrants that it has the expertise and personnel necessary to properly
perform its obligations and shall comply with the highest standards of customer service to
the public. Council shall provide appropriate supervision to its employees to ensure the
Project is performed in accordance with this Agreement and the Joint Funding Agreement
or other USGS requirements. This paragraph shall survive termination of this Agreement.
C. This Agreement constitutes an agreement for performance by Council 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 Council
and Council shall have no authority to bind County.
d. Council represents and warrants that at all times in the performance of the
Agreement, Council shall comply with any and all applicable laws, codes, rules and
regulations including those relating to nondiscrimination and regulatory requirements or
state or federal mandates imposed under the law or through the Joint Funding Agreement.
Council agrees that it and its contractors shall not unlawfully discriminate against any
employee or applicant for employment because of race, religion, color, national origin,
ancestry, physical handicap, medical condition, marital status, age, or sex.
e. This Agreement and the Joint Funding Agreement contain 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. Neither party shall assign any portion of this Agreement without the prior written
consent of the other party. Any attempt to assign this Agreement without such consent
shall be void.
g. 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 except USGS.
h. 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.
i. The invalidity, illegality or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision hereof.
j. The signatories to this Agreement aver to their knowledge no employee of the
County has any personal or beneficial interest whatsoever in the Project described in this
Agreement. The Council has no beneficial interest, direct or indirect, that would conflict
in any manner or degree with the performance of the Project and Council shall not
employ any person having such known interests.
k. Council shall maintain appropriate insurance during the performance of its duties.
1. Each party shall maintain standard financial accounts, documents, and records
relating to the Funds and the Project. The accounts, documents, and records shall be
retained by each party for five (S) years following the date of disbursement of Funds
under this Agreement. USGS shall have the right, upon reasonable notice, to audit the
books and records of either party which pertain to the Project and to the use and
disposition of Funds.
11
M. County is not independently funding any obligations under this Agreement or the
Joint Funding Agreement. Notwithstanding the foregoing, County shall have no
obligations under this Agreement after, nor shall any payments be made in respect of any
period after December 31 of any year, without an appropriation therefor by County in
accordance with a budget adapted 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).
n. Any provisions of this Agreement which requires performance after the date of
completion or earlier termination of the Project or expiration or earlier termination of the
Joint Funding Agreement shall continue in full farce and effect.
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.R.S. 8-17.5-101, et. seq. If Council has any employees or subcontractors, Council shall
comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this
Agreement, Council certifies that it does not knowingly employ or contract with an
undocumented individual who will perform under this Agreement and that Council 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 under this Agreement.
a. Council shall not:
Knowingly employ or contract with an undocumented individual to
perform under this Agreement; or
ii. Enter into a subcontract that fails to certify to Council that the
subcontractor shall not knowingly employ or contract with an undocumented individual
to perform work under the public contract.
b. Council has confirmed the employment eligibility of all employees who are newly
hired for employment to perform under this Agreement through participation in the E -
Verify Program or Department Program, as administered by the United States
Department of Homeland Security.
7
C. Council 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 is being performed.
d. If Council obtains actual knowledge that a subcontractor performing work under
the public contract knowingly employs or contracts with an undocumented individual,
Council shall be required to:
i. Notify the subcontractor and County within three (3) days that Council 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 Council 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. Council 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. 5-17.5-102(5).
f. If Council 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, Council shall be liable for actual and consequential damages
to County as required by law.
g. County will notify the Colorado Secretary of State if Council violates this
provision of this Agreement and County terminates the Agreement for such breach.
[signatures on following page]
8
THIS AGREEMENT is effective as of the day and year first set forth above.
Attest: A 50,
Regina O'Brien, Clerk to the Board
COUNTY OF EAGLE, STATE OF COLORADO
By and Through Its BOARD OF COUNTY
COMMISSIONERS
�
a
By: . .
dillian
H. Ryan, Chair
Eagle Riv ; 47. w6B C.
4
Holly Loff, Executive Director
EXHIBIT A
JOINT FUNDING AGREEMENT
10
Form 9-4366 U.S. Department of the Interior Customer Ho: BQOC L}1047
(WrN 2015) U.S. Geological Survey Agreement Nn; ITCMC0170410000
Joint Funding Agreement Project No: REDI)GQ7
FOR WATER RESOURCES INVESTIGATIONS TIN #: 846000762
Fixed Cost Agreernent C]x Yes [7Na
THIS AGREEMENT is entered into as of the Vday of January, 2017 by the U.S. GEOLOGICAL SURVEY, UNITED STATES
DEPARTMENT OF THE INTERIOR, party of the first part, and the Eagle County, party of the second part.
1. The parties hereto agree that sul�e to the availability of appropriations and in accordance with their respective authorities there shall
be maintained in cooperation, An investigation of almam conditions to assess the extent of diel cycles in environmental
properties in the Eagle River Watershed, 2017-2019, herein called the program. The USGS legal authafty is 43 USC 38C; 43
USC 50; and 43 USC 50L
2. The folloWng amounts shall be rontrfbuted to cover all of the cost of the necessary field and analytical work directly related to this
program. 2(b) includes In -Kind Services In the amount of $0.00.
(a) $55,5110 by the party of the first part during the period
January1, 2017 to December3l, 2019
(b) $99,1500' by the party of the second part during the period
January1, 2017 to December 31, 2019
* $44,000 Unmatched
(c) Contributions are provided by the party of the first part through other USGS regional or national programs: in the amount of:
$0.00 Description of USGS regionaflnationai program: (NA)
(d) Additional or reduced amounts by each party during the above period or succeeding periods as may be determined by mutual
agreement and set forth in an exchange of letters between the parties.
(e) The performance period may be changed by mutual agreement and set torth in an exchange of letters between the parties.
3. The costs of this program may be paid by either party in conformity will) the laws and regulations respectively governing each party,
4. The field and analytics{ work pertaining to this program shall be under the direction of or subject to periodic review by an auftrized
representative of the patty of the first part.
5. The areas to be included in the program shall be determined by mutual agreement between the parties hereto or their authorized
representatives. The methods employed in the field and office shall be those adopted by the party of the first part to insure the required
standards of accuracy subject to modification by mutual agreement.
6. During the course of this program, all field and analytical work of oither patty pertaining to this program shall be open to the inspection)
of the other party, and if the work is not being r-arried on in a mutually satisfactory manner, elther party may terminate this agreement upon
60 days written notice to the other parry.
7. The original records resulting frorn this program will be deposited in tf)e office of origin of those records. Upon request, copies of the original
records will be provided to the office of the other party.
8. The wraps, records or reports resulting from this program shall be made available to the public as promptly as possible. The traps, records
or reports normally will be published by the party of the first part. However, the party of the second part reserves the right to publish the
results of this program and, if already published by the party of the first part shall, upon request, be furnished by the party of the first par#, at
cost, impressions suitable for purposes of reproduction similar to that for which the original copy was prepared. The maps, retards of
reports published by either party shall Contain a statement of the cooperative relations between the parties.
g. USGS wifl issue billings utilizing Department of the interior Bill for Coliection (Form DI -1 W). Billing documents are to be rendered quarterly.
Payments of bills are due within 50 days after the billing date. If not paid by the due date, interest will be charged at the current Treasury r1ite
for each 30 day period, or portion thereof, that the payment is delayed beyond the due date. (31 USC 3717; Comptroller General File 13-
212222, August 23, 1983.),
USGS Point of ccntact
Name: S=nne Paschke
Address: RD Box 25[74!3, MS 415
- Denver CO 80225
Telephone: 303-235-6904
_._.............. _._._._.................... ..._...._.. ..
!"mail: ....gchk.. �.
....... ................ ..
s
By °atp
Name: `
Director, USGS Colo. Water Science
TAIe: Center
-7
Customer PcAnt of Ccntact
Name.
Ra M�_...._...._......_._..._........
Address:
-
PO BOX 179, 500 Broadway
E_ E21e, q? 81631
Telephone:
.. )970)32"757
mail
Email-
—7 BY ---pate
Name: "_" ^ -=:liDiuilI.Ryan,C�Fair
Board of County Commissioners
TRie' iragla County Government
