HomeMy WebLinkAboutC22-143 Roaring Fork Conservancy AGREEMENT BETWEEN EAGLE COUNTY, COLORADO
AND
ROARING FORK CONSERVANCY
THIS AGREEMENT (“Agreement”) is effective as of January 1, 2022 by and between Roaring
Fork Conservancy, 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, this Agreement supports Contractor ’s Science and Policy Program; studies related
to didymo and anchor ice; water quality monitoring for the Fryingpan River, Roaring Fork River,
and Upper Cattle Creek; and a Roaring Fork Valley demand management exploration/pilot study
(the “Project”) based out of the Roaring Fork Conservancy office located at 22800 Two Rivers
Road, Basalt, Colorado; 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, 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.
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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 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 County’s Open Space Department’s designee shall be the
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 st day of December, 2022. 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
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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
Maureen Mulcahy (maureen.mulcahy@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.
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
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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 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. 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
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
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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.
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: Maureen Mulcahy
500 Broadway
Post Office Box 850
Eagle, CO 81631
Telephone: 970-471-8830
E-Mail: maureen.mulcahy@eaglecounty.us
With Copy to:
Eagle County Attorney
500 Broadway
Post Office Box 850
Eagle, CO 81631
Telephone: 970-328-8685
E-Mail: atty@eaglecounty.us
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CONTRACTOR:
Roaring Fork Conservancy
Attention: Rick Lofaro
22800 Two Rivers Road
PO Box 3349
Basalt, CO 81621
Phone: 970-927-1290
E-Mail: rick@roaringfork.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 therefore 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 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, interpreted under, and 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 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
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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.
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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 .
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:
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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:
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.
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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.
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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: Richard Lofaro
Title: Executive Director
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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:
● Science and Policy 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 Science and Policy 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. Current potential projects
include several areas on the Crystal River, work on RFC’s conservation easements on the
lower Roaring Fork River, post-fire restoration, and areas of the upper Fryingpan. 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, post-fire
recovery, and economics. A report detailing tasks completed or in progress as well as any
additional accomplishments will be provided in December 2022.
∙ Fryingpan Study (~$5,000)
o Didymo Monitoring RFC will continue to document didymo presence and
abundance on the Fryingpan, both above and below Ruedi Reservoir. This
involves surveying up to 10 sites three times per year. In addition, RFC uses the
analysis of data and trends to inform annual reservoir management. Data collected
and an analysis report will be provided to Eagle County Staff.
o Anchor Ice Monitoring RFC will continue to carry out the anchor ice monitoring
program, that mirrors the didymo monitoring program, for a second year. Goals
are to document and better understand when and where anchor ice occurs on the
Fryingpan River and inform best management practices. A report detailing
highlights of the year ’s monitoring will be provided to Eagle County.
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∙ Water Quality Monitoring- Fryingpan, Roaring Fork, Upper Cattle Creek
(~$2,000) : Roaring Fork Conservancy will continue Water Quality monitoring in portions
of the Fryingpan, Roaring Fork, and Upper 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. An update of sites sampled, and relevant
data/results will be provided to Eagle County.
● Roaring Fork Vally Demand Management Exploration/Pilot Study (~$4000) RFC,
working with a diverse group of partners, will explore the influence of social networks,
policy frameworks, and drought frequency on water conservation program feasibility and
effectiveness. Eagle County funds will be leveraged with other grants to begin work to
refine local conservation targets to reduce risks of local curtailment; explore social,
economic, and administrative constraints on conservation efforts; and conduct a pilot
project to understand feasibility of conservation amongst different user groups. This is a
multi-year project with early phases planned to begin in the summer of 2022.
a. CONTRACTOR SHALL COMPLY WITH THE FOLLOWING SCHEDULE OR
MILESTONES IN PERFORMANCE OF THE SERVICES:
The aforementioned services will be provided throughout the year.
2. PAYMENT
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. The Contractor shall invoice the County quarterly.
All invoices shall include detail regarding tasks performed and the associated staff hours
spent, with the agreed hourly rate of $65 for the Water Quality Monitoring and Didymo
Study tasks, and $75 per hour for the remaining tasks, and total billed amount for 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 the County demonstrating that the
services outlined in the scope of work were provided satisfactorily in accordance with the
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terms of this agreement. The County 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, 2022.
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