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HomeMy WebLinkAboutC19-153 Roaring Fork ConservancyAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND ROARING FORK CONSERVANCY THIS AGREEMENT (“Agreement”) is effective as of _______________________ by and between Roaring Fork Conservancy, a Colorado nonprofit corporation (hereinafter “Contractor” or “RFC”) 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 help support Contractor’s efforts to continue leading scientific studies, to provide ongoing monitoring and informing policy as part of the Watershed Action Program (the “Project”) with services occurring throughout the Roaring Fork Watershed with emphasis on Eagle County and the Fryingpan River in particular (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. DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 5/6/2019 2 Service Award Agreement 1/17 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 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 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 31st day of December, 2019. 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. 5. 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 $20,000. 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. 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 Giovanna Harkay (giovanna.harkay@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. 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. DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 3 Service Award Agreement 1/17 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 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. 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 Immunity 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, 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. 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 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. 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. 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. DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 4 Service Award Agreement 1/17 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 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. COUNTY: Eagle County, Colorado Attention: Ray Merry 500 Broadway Post Office Box 179 Eagle, CO 81631 Telephone: 970-328-8757 Facsimile: 970-328-8788 E-Mail: ray.merry@eaglecounty.us w/copy to With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us CONTRACTOR: Roaring Fork Conservancy 22800 Two Rivers Road Post Office Box 3349 Basalt, CO 81621 Telephone: (970)-927-1290 Facsimile: (970)-927-1264 E-Mail: rick@roaringfork.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. County shall pay Contractor only for Services satisfactorily performed to the date of termination. 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 DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 5 Service Award Agreement 1/17 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 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 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. 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. e. 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. 24.76.5-101 et. seq. DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 6 Service Award Agreement 1/17 l. 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 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.R.S. 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: https://www.uscis.gov/e-verify 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: DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 7 Service Award Agreement 1/17 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 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] DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 8 Service Award Agreement 1/17 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager CONTRACTOR: ROARING FORK CONSERVANCY By:________________________________ Print Name:__________________________ Title:_______________________________ DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 Richard Lofaro Executive Director 9 Service Award Agreement 1/17 EXHIBIT 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: RFC secures funding from many sources and uses these contributions to leverage other funds to move the action, education, and initiatives forward. RFC anticipates using Eagle County's $20,000 contribution to help pay a portion of the hard and soft costs associated with the following watershed actions and initiatives: • Watershed Action Program Support (~$9,000): RFC serves the full and part-time residents of the Roaring Fork Valley as well as the thousands of visitors each year. The organization also works with other nonprofits, federal, state and local governments, colleges and universities, industry, and other stakeholders on western water issues. Eagle County funds will be used to support RFC’s Watershed Action Program, which addresses current issues and future threats to the Roaring Fork Watershed through proactive scientific studies coupled with multi-jurisdictional watershed planning and implementation efforts. The Watershed Action program informs federal, state and local land management decisions, and drives on-the-ground projects to protect and restore the watershed. Many of the program’s actions come from the Roaring Fork Watershed Plan, which was recently updated, and includes initiatives to address a wide range of subject matter, including water quantity and quality, hydrology, riparian and river ecology, geomorphology, and economics. • Fryingpan Study (~$3,500) o Didymo Monitoring As part of the Comprehensive Lower Fryingpan River Assessment, RFC partnered with Colorado Mountain College (CMC), Leadville’s Natural Resource Management Program to create a solid two year baseline of Didymo quantification on the Lower Fryingpan River and select sites above Ruedi Reservoir (used as reference sites). RFC will conduct a third year of maintenance monitoring to ensure a watchful eye on this nuisance species. This involves surveying up to 10 sites three times per year. o Best Management Practices Working with the Bureau of Land Management to implement the Best Management Practices identified in the Comprehensive Lower Fryingpan River Assessment 2013-2015 including targeted aquatic studies, the Fryingpan Valley Economic Study, and exploring solutions to better manage releases from Ruedi Reservoir. The assessment was completed to ensure the environmental and economic sustainability of the lower Fryingpan River, including its designation as a “Gold Medal” fishery. RFC is currently working with Ruedi Water and Power Authority, the Colorado River District and CWCB to better understand flow needs and targets throughout the year to inform stream management. • Roaring Fork Watershed Plan Updates (~$2,000): Coupled with other grant funds, the RFC will use Eagle County funds to continue to update the 7 year old Plan to reflect current issues and priorities. “Urgent Actions” listed in the plan will be re-prioritized and displayed in a user-friendly format on RFC’s website. Other actions will be sorted by project group and interest so that interested stakeholders can readily access the information they seek. As a result of the Watershed Summit held in in May of 2018, stakeholders identified future projects and priorities for inclusion in the revision. • Water Quality Monitoring- Fryingpan, Roaring Fork, Upper Cattle Creek (~$2,000): Roaring Fork Conservancy continue Water Quality monitoring in portions of the Fryingpan, Roaring Fork, and Upper DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267 10 Service Award Agreement 1/17 Cattle Creek waterways located in Eagle County. Water quality data will be stored with RFC’s extensive baseline data collection, reported to Colorado River Watch, and in some places, be used in targeted studies and reports to refine beneficial project opportunities. • Lake Christine Fire: Long-Term Restoration Planning and Volunteer Projects (~$2,500): The Lake Christine fire left behind a charred landscape, threatening water quality in the Roaring Fork valley. RFC was approached by CPW and USFS as a regional entity to lead the local, long-term restoration effort. Since that time RFC has hosted several meetings with all jurisdictions involved to discuss individual and coordinated efforts, which will continue throughout the year, and is planning and coordinating a volunteer project on State Forest land this summer. • “Keep it Clean” Campaign (~$1,000): The Keep It Clean campaign will combine the efforts of water providers and watershed groups by creating a communication nexus for their constituents. The connection between healthy lakes, rivers, streams, groundwater and drinking water will be emphasized leading to a behavioral change of how the public views water in their daily activities. The campaign will inform citizens on a region-wide basis, with consistent branding and messaging, of where their drinking water comes from, how to protect drinking water supplies and the importance of maintaining pristine source water protection areas. b. CONTRACTOR SHALL COMPLY WITH THE FOLLOWING SCHEDULE OR MILESTONES IN PERFORMANCE OF THE SERVICES: The delivery of the aforementioned services shall extend throughout 2019. 2. FEES The services provided above will be provided for a total of $20,000. 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. 3. 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, 2019. DocuSign Envelope ID: DB37BBE3-13FC-43C4-9FF4-641B6AD7F267