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HomeMy WebLinkAboutC22-414 Mountain Recreation FoundationAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND MOUTAIN RECREATION FOUNDATION THIS AGREEMENT (“Agreement”) is effective as of ________________ by and between Mountain Recreation Foundation, a Colorado nonprofit corporation formed under IRC Section 501(C)(3) sub- section 509(a)(3) (hereinafter “Contractor” or “Mountain Recreation”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, Eagle County desires to engage a contractor to perform fiscal sponsor services for the solicitation of tax-deductible donations to help pay for the construction of the Eagle Valley Trail (the “Project”) which is located in Eagle County (the “Property”); and WHEREAS, Contractor is a nonprofit corporation that is authorized by the Internal Revenue Service to receive tax deductible contributions under the classification Section 501(c)(3) of the Internal Revenue Code as a 509(a)(3), and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: 1. Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services or work described in Exhibit A (“Services” or “Work”) which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Contractor agrees to start the Services no later than January 2, 2023 and in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 12/21/2022 2 Eagle County General Services Final 8/15/2022 c. The County may, in writing, request that Mountain Recreation Foundation provide the County with certain additional services ("Additional Services") not covered by the Services as outlined in Exhibit A. These Additional Services may include, but not be limited to any services not included under the specified scope of Services; provided that any Additional Services must be approved in writing, in advance, by the County. Additional Services will be billed by Mountain Recreation Foundation at $60/hour. 2. County’s Representative. The Eagle County ECO Trail Department’s designee, Kevin Sharkey, 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, 2025. 4. Extension or Modification. This Agreement may be extended for up to three additional one-year terms upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance with County’s internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Contractor’s rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall not compensate Contractor directly for the performance of the Services set forth in Exhibit A. Instead, Contractor will apply a 2% administrative fee for all donations received and processed for the Project, and will retain such sums as compensation for its Services under this Agreement. In addition, Contractor will also deduct from donations received any operational expenses, such as bank fees, Quick Books software fees or other fees incurred by Contractor in providing the Services under the Agreement. The balance of the funds following the deductions allowed under this Paragraph 5 will be disbursed to the County by the 15th day of each month, on account of the prior month. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Along with monthly disbursements, Contractor will provide monthly reports as set forth on Exhibit A, which shall include an accounting of all donations received, calculation of the 2% administrative fee described above, and an accounting of any operational expenses incurred by Contractor during the preceding month. b. Payment will be made for any Additional Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include detail DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 3 Eagle County General Services Final 8/15/2022 regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. c. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any sums paid to or retained by Contractor were improper because the Services for which payment was made or retained were not performed as set forth in this Agreement, then upon written notice of such determination and request for payment from County, Contractor shall forthwith pay or return such sum to County. 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 compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County’s prior written consent, which may be withheld in County’s sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by County and to the extent of the Services to be performed by the subcontractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents, employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 4 Eagle County General Services Final 8/15/2022 iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. Contractor is not entitled to workers’ compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 5 Eagle County General Services Final 8/15/2022 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: Kevin Sharkey 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3523 E-Mail: With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us CONTRACTOR: Mountain Recreation Foundation Lizzy Owens P.O. Box 1981 Edwards, CO 81632 LOwens@MountainRec.org 11. Termination. County/Contractor may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with seven (7) calendar days’ prior written notice to the Contractor. Upon termination of this Agreement, Contractor shall immediately provide County with all documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay Contractor 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, DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 6 Eagle County General Services Final 8/15/2022 which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and Contractor Representations. a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and the Property, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. c. To the extent possible, Contractor has correlated the results of such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that the County has accepted or approved the Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Agreement. f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 7 Eagle County General Services Final 8/15/2022 shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and Contractor except that of independent contractor. Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules and regulations. i. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. l. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. m. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. 15. Data Security. a. Definitions: i. “County Data” means all data created by or in any way originating with County and End Users, and all information that is the output of any computer processing, or other electronic manipulation, of any information that was created by or in any way originating with County and End Users, in the course of using and configuring the Services provided under this Agreement, and includes all records relating to County’s use of Contractor Services and Protected Information. ii. “End User” means the individuals (including, but not limited to employees, authorized agents, students and volunteers of County; Third Party consultants, auditors and other independent contractors performing services for County; any governmental, accrediting or regulatory bodies lawfully requesting or requiring access to any Services; customers of County provided services; DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 8 Eagle County General Services Final 8/15/2022 and any external users collaborating with County) authorized by County to access and use the Services provided by Contractor under this Agreement. iii. “Protected Information” includes, but is not limited to, personally-identifiable information, student records, protected health information, criminal justice information or individual financial information and other data defined under C.R.S. §§ 24-72-101 et seq., and personal information that is subject to local, state or federal statute, regulatory oversight or industry standard restricting the use and disclosure of such information. The loss of such Protected Information would constitute a direct damage to the County. iv. “Security Incident” means the potentially unauthorized access by non-authorized persons to personal data or non-public data the Contractor believes could reasonably result in the use, disclosure or theft of County Data within the possession or control of the vendor. A Security Incident may or may not turn into a data breach. b. During the course of Contractor's performance of the Work, the Contractor may be required to maintain, store, process or control County Data. The Contractor represents and warrants that: i. Contractor will take all reasonable precautions to maintain all County Data in a secure environment to prevent unauthorized access, use, or disclosure, including industry-accepted firewalls, up-to-date anti-virus software, and controlled access to the physical location of the hardware containing County Data; ii. Contractor’s collection, access, use, storage, disposal and disclosure of County Data shall comply with all applicable data protection laws, as well as all other applicable regulations and directives; iii. Contractor will notify County of any Security Incident as soon as practicable, but no later than 24 hours after Contractor becomes aware of it; iv. Contractor will provide information sufficient to satisfy County’s legal and regulatory notice obligations. Upon notice of a Security Incident, County shall have the authority to direct Contractor to provide notice to any potentially impacted individual or entity, at Contractor’s expense, and Contractor shall be liable for any resulting damages to County. v. Where Contractor has been contracted to maintain, store or process personal information on behalf of the County, it shall be deemed a “Third-Party Service Provider as defined in C.R.S. § 24-73-103(1)(i), and Contractor shall maintain security procedures and practices consistent with C.R.S §§ 24-73-101 et seq.; and vi. Contractor will promptly return or destroy any County Data upon request from the County Representative. c. Contractor’s indemnification obligations identified elsewhere in this Contract shall apply to any breach of the provisions of this Paragraph. DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 9 Eagle County General Services Final 8/15/2022 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 Mountain Recreation Foundation, a Colorado nonprofit corporation By: _____________________________________ Print Name: ______________________________ Title: ___________________________________ DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 Mike McCormack President, Mountain Rec Foundation 10 Eagle County General Services Final 8/15/2022 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 Exhibit A Mountain Recreation Foundation Scope and Schedule of Services for Eagle County for fundraising efforts for completing construction of the Eagle Valley Trail (the “Project”). Mountain Recreation Foundation as the Fiscal Sponsor (“Mountain Recreation”), will provide the following services to Eagle County, as the Sponsored Organization: 1. Mountain Recreation will perform fiscal sponsor services for the solicitation of tax-deductible donations to help pay for the construction of the Eagle Valley Trail, located throughout Eagle County. Mountain Recreation shall assume administrative, programmatic, financial, and legal responsibility for purposes of the requirements of funding organizations as necessary for the Services set forth herein. 2. On behalf of the County, Mountain Recreation will establish and operate for the use of the Project a designated account ("Account") segregated on Mountain Recreation’s books. All amounts deposited into a Project's Account will be used in support of the Project, less operational expenses, if any, and administrative charges, and subject to the conditions set forth below. 3. Mountain Recreation will disburse funds from the Account to the Sponsored Organization in the following manner: a. Monthly with a detailed report of donations received and expenses incurred in performance of the Services under this Agreement. b. Disbursements will be restricted to the support and implementation of the Project only. 4. Mountain Recreation will maintain all financial records relating to the Project according to generally accepted accounting principles, retain records as long as required by law, and make records available to auditors as required by law. 5. Mountain Recreation will reflect the activities of the Project, to the extent required, on its state and federal government tax returns and financial reports. All disbursements from the Account shall be treated as payments made to or on behalf of the County to accomplish the purposes of the Project. 6. Mountain Recreation Foundation is a non-profit entity established to support Mountain Recreation Metropolitan District (“District”). The District is not a party to this Agreement and is not liable for any of the terms set forth by this Agreement, in any circumstance. Eagle County, as the Sponsored Organization, through its ECO Trails Department, agrees to the following: DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 1. The Project shall be operated in a manner consistent with the County’s tax-exempt status and as described in this Agreement. The County will not carry on activities or use funds in any way that jeopardizes Mountain Recreation’s tax-exempt status. 2. The County will provide Mountain Recreation with reports describing programs and services of the Project in accordance with the following schedule: a. Monthly Construction Schedule Updates b. Monthly Fundraising Schedule Updates 3. The County will maintain all financial records relating to the Project according to generally accepted accounting principles, retain records as long as required by law, and make records available to auditors as required by law. 4. The County will reflect the activities of the Project, to the extent required, on its state and federal government tax returns and financial reports. All disbursements from the Account shall be treated as payments made to or on behalf of the County to accomplish the purposes of the Project. The County will provide Mountain Recreation with proper documentation to accomplish this, including furnishing Mountain Recreation with the County’s Federal Employer Identification Number. DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4 11 Eagle County General Services Final 8/15/2022 EXHIBIT B INSURANCE CERTIFICATE DocuSign Envelope ID: 797064ED-441D-47F7-AA6F-1A439ACD57A4