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HomeMy WebLinkAboutC24-088 Eagle River Watershed Council 2 AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND EAGLE RIVER WATERSHED COUNCIL THIS AGREEMENT (“Agreement”) is effective as of January 1, 2024 by and between Eagle River Watershed Council, Inc., a Colorado nonprofit corporation (hereinafter “Contractor,” “the Watershed Council,” or “ERWC”), and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, Contractor provides services and opportunities to help protect the natural environment, including restoration projects, coordination of the Eagle River Cleanup and Community Pride Highway Cleanup, a Water Quality Monitoring and Assessment Program, and the Eagle River Watershed Council’s community education programs and other programs (the “Project”) throughout Eagle County (the “Property”); and WHEREAS, County desires to support the Project to fulfill an important public purpose as the Project promotes the health, safety, and welfare of the people of Eagle County and is intended to provide services that could otherwise be performed by County directly; and WHEREAS, County has, therefore, elected to compensate Contractor to perform the Services as defined below in paragraph 1 hereof in conjunction with the Project; 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. 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 Natural Resources 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 2024. County makes DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 3 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 $90,000. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. If County is not satisfied with the completeness of a submitted invoice, County may request Contractor either revise the invoice or provide additional information. To ensure proper payment, all invoices must be in .pdf format delivered via email to 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 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, any negligence or willful malfeasance on the part of the Contractor in performing the DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 4 Services; and Contractor shall reimburse County for reasonable attorney fees and costs, legal, and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. b. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental 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 the Contractor to perform the Services for the public and County shall have no responsibility therefore. Because the 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 the 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 CONTRACTOR: Eagle River Watershed Council Attention: James Dilzell 461 Railroad Avenue, Gypsum, CO 81637 PO Box 1477 DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 5 Gypsum, CO 81637 Phone: 970-827-5406 E-Mail: dilzell@erwc.org 11. Termination. Either party may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with seven (7) calendar days’ prior written notice to the other party. County shall pay Contractor only for Services satisfactorily performed to the date of termination. 12. Venue, Jurisdiction, and 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 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 all 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. DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 6 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. 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. k. The recitals set forth above are incorporated herein by reference. 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: By:________________________________ Print Name: James Dilzell Title: Executive Director DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 7 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: i. General Administration ($25,000). These funds support the Eagle River Watershed Council’s general operating expenses, which include rent, equipment and staff salaries. Additionally, general administrative support allows the Eagle River Watershed Council to participate actively as a stakeholder in projects and events that may impact our rivers. Regardless of whether Eagle River Watershed Council is the lead on such projects, the organization offers critical, unbiased, expert participation and guidance to efforts, serving as the voice for the river, riparian ecosystems and water quality. Such work is supported solely by general (unrestricted) funds, as it is not line-itemed in the annual budget. Examples of projects in which the Eagle River Watershed Council actively participates include, but are not limited to: source water protection planning for municipalities throughout the county, seeking Wild & Scenic Rivers designation for Deep Creek, participating in the Upper Colorado River Wild & Scenic Stakeholder Group, serving as the Eagle County municipalities’ representative on the Colorado Basin Roundtable, finalization and implementation of the Community Water Plan, participating in the Colorado River Basin Outstanding Waters Coalition to designation two stream reaches in Eagle County as Outstanding Waters, serving on the Eagle County Wildfire Collaborative, and development of the Eagle River Fund. The Eagle River Watershed Council also responds to land-use proposals through participation in the land use process and the 1041 permitting process. A number of foundations also provide the financial support necessary for participation in these activities including the Land & Rivers Fund, Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority, the Town of Avon, as well as several corporations, individuals, and the Eagle River Watershed Council board members. ii. Restoration Projects ($25,000). Eagle River Watershed Council coordinates numerous restoration projects throughout the Eagle River Valley and the Upper Colorado watershed each year, which vary in size, scope and location. The Eagle River Watershed Council plans to utilize funding from Eagle County to support the following restoration projects. The funds from the County will be disbursed among the following projects as they are needed, and not necessarily in equal measure: ● Upper Colorado/Eagle River Invasive Vegetation Mitigation Project - This project aims to contain the spread of highly-invasive, non-native vegetation species, specifically targeting tamarisk and Russian olive, but to also include other noxious weeds as well. Removal of these aggressive species benefits wildlife and the public alike by improving water quality, restoring native riparian habitat, reducing wildfire fuel and access-limiting overgrowth and restoring degraded and saline-rich soils. In 2023, we completed the third year of a three- year agreement with the BLM to fund on-the-ground tamarisk mitigation and removal along the Colorado River. We received a one-year extension of the remaining funds to focus efforts in 2024 on tamarisk and Russian olive removal on private property. We have partnered with the Eagle County Conservation District to add a 1 for 1 native tree swap as part of their Noxious Weed Cost Share program for landowners that remove tamarisk and/or Russian olive. In 2024 we will be working with the BLM, Eagle County Natural Resources department and other partners to outline a path forward to continue to treat the tamarisk on public lands within the county. ● US Forest Service projects - The Eagle River Watershed Council will continue to work in collaboration with the US Forest Service through two primary efforts. The first will reduce DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 8 erosion and sediment in the Wearyman Creek watershed on Shrine Pass and the second effort will replace an undersized and aging culvert with an Aquatic Organism Passage (AOP) structure in the Homestake Valley. In the Wearyman Creek Watershed, the primary objective of the work to occur in 2024 is initiate a stakeholder process to determine a preferred alternative route of Wearyman Road to fix sedimentation and aquatic habitat issues and feasibility report. The AO structure in the Homestake Valley will improve water quality issues, reduce the likelihood of road failure and allow the unimpeded movement of wildlife on streams in the Homestake Valley. ● Brush Creek Valley Ranch and Open Space - The Eagle River Watershed Council will continue to support the work of the Eagle County Open Space (ECOS) Program with the ongoing Low- Tech Process Based Restoration project on Brush Creek, including natural infrastructure, revegetation and monitoring efforts. Eagle River Watershed Council will recruit and coordinate volunteers for two revegetation projects and an LTPBR installation project, lead monthly monitoring efforts from April through November, and assist in applying for additional funding, if necessary. ● Riverwalk Riparian Restoration project – This project aims to restore riparian function to the overused riparian area adjacent to the Riverwalk at Edwards by creating sustainable river access, creating bank stabilization and reestablishing native revegetation. In 2024, the Eagle River Watershed Council will launch, depending on adequate funding, phase two of this three- phase project with a competitive bidding process to hire a contractor for the design and permitting of erosion control measures on steep slopes and revegetation in the project area. Volunteers and partners at the Riverwalk will be utilized to implement elements of the erosion control project, revegetation and community outreach. The Eagle River Watershed Council has been awarded partial funds for this, dependent on National Environmental Policy Act (NEPA) compliance in addition to matching funds from the Riverwalk Property Owners Association. We are actively pursuing grant funding to fully implement this project. ● Small-scale volunteer projects - Four single-day projects will be completed in the county, each utilizing volunteers for on-the-ground work. These projects typically involve social trail closures and noxious weed removals and are distinct from other projects listed. ● The Black Gore Creek Steering Committee is a group coordinated by the Eagle River Watershed Council to monitor the annual removal of highway traction sand on Vail Pass and limit its impacts on Black Gore Creek. Additionally, the Eagle River Watershed Council is engaged in the Stream and Wetland Ecological Enhancement Program (SWEEP) Issue Task Force for the I-70 West Vail Pass Auxiliary Lanes project. In 2024, the Eagle River Watershed Council will hold a meeting with the steering committee and will coordinate the monitoring effort. ● Lower Eagle Restoration - The Eagle River Watershed Council is partnering with the Bureau of Land Management to improve riparian and aquatic habitat resiliency of the lower Eagle River on the Bureau of Land Management (BLM) property west of Gypsum, roughly from the Gypsum Campground to the River Dance RV Park. This is a multi-phase and multi-year project, with the Eagle River Watershed Council doing concept planning in 2024 and applying for additional funds if necessary. Pending funding from the BLM, in 2024 we will be planting native riparian plants, with the help of volunteers, along the river on BLM land that burned by the 2022 Duck Pond fire to reduce erosion, provide shading and limit the spread of invasive plants. ● Meadow and Riparian Restoration in the greater Castle Peak area of Eagle County – The DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 9 Eagle River Watershed Council is partnering with the Bureau of Land Management (BLM) improve hydrologic function of priority wet meadow and riparian areas in the greater Castle Peak area to buffer against the effects of climate change, enhance habitat for greater sage-grouse and other wildlife and livestock forage and engage and education the local community on the importance of healthy and resilient watersheds. In 2024, we will be focusing on work in the Bohr Flats area, installing Zeedyk structures, hand-built rock and wood structures, with a Rocky Mountain Youth Corp and volunteers. iii. Community Pride Highway Cleanup ($2,500) & Eagle River Cleanup ($2,500) (total=$5,000). The coordination of the two largest annual cleanup events in Eagle County requires event marketing and planning, volunteer recruitment and management of more than 1,300 volunteers. During both cleanups in 2023, more than 22 tons of trash were collected. River Cleanup teams remove trash and debris from about 70 miles of river each fall. Both the Highway Cleanup and the River Cleanup events build community throughout the Eagle River Valley, offering participants a feeling of ownership in the effort to maintain our environment. Eagle County’s continued support of these events displays the strategic collaborations needed to meet the community’s environmental stewardship initiatives. The funds received from sponsorship of these events support the work of the Eagle River Watershed Council throughout the year. Additional support comes from local businesses, individuals, corporations, clubs, foundations and municipalities. Eagle River Watershed Council will continue to evaluate additional strategies such as “adopt a highway” programs to maximize our community’s ability to divert trash from our waterways on a more regular basis. iv. Water Quality Monitoring & Assessment Program ($10,000). This program coordinates water quality and biological data collection by numerous entities in the Eagle River watershed. It provides a central and easily-accessible repository for the data and ensures that data collection is not duplicative and that there are no gaps in the monitoring effort. Funding supports coordination of data collectors, data analysis, annual reporting to stakeholders and the community, the maintenance of a shared database and the production of a biannual report card that offers a graphical interpretation of the data. Staff and consultants will continue to seek strategic program expansion, including the collection of macroinvertebrates on Brush and Gypsum Creek and temperature monitoring and modeling. Additional support comes from the Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority, Homestake Partners (Aurora and Colorado Springs), Vail Resorts Management Company, Crave Real Estate, the towns of Gypsum, Eagle, Avon, Minturn and Vail and the Colorado River Water Conservation District. v. Community Education Programs ($12,000). The education programs offered by the Eagle River Watershed Council have grown significantly in recent years, to help the community more intimately understand the local watershed and threats to river health. These programs include: ● Eagle Mine Committee - The Eagle River Watershed Council utilizes this technical committee to take a strategic approach to the ongoing cleanup of the Eagle Mine Superfund site. The committee, which is overseen by the Eagle River Watershed Council staff/board, reviews technical reports from the Environmental Protection Agency (EPA) and Colorado Department of Public Health and Environment (CDPHE), and submits comments as necessary. Additionally, the Eagle River Watershed Council distills the information within the reports into layman’s terms and shares the information with the public. Furthermore, the Eagle River Watershed Council organizes occasional public meetings regarding the Eagle Mine. ● Brush Creek Monitoring - The Eagle River Watershed Council coordinates a RiverWatch DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD 10 team that monitors water quality above and below new developments located along Brush Creek. In 2024, the Eagle River Watershed Council will continue collecting the data and will work with local schools and youth programs to assist with these efforts. ● Watershed Immersions Series– This program, which is aimed at connecting the community to our watershed, will be offered at least four times in 2024, in a variety of formats. These events will engage participants in education regarding a variety of water-related topics, allow for exposure to new experiences on or near the river and support stewardship of local water resources. ● Water Law Workshop - The Eagle River Watershed Council will offer continuing education credits for lawyers, real estate professionals and other interested individuals through a Water Law in a Nutshell Workshop in 2024. ● 5th Grader Education - The Eagle River Water Festival is an educational event held annually in the fall. All fifth- grade students in contiguous Eagle County are bussed to the event, where they learn about all things water through engaging activities. Lesson topics include: river safety, fly casting, fly tying, river bug identification, water filtration and treatment, the science of buoyancy and algae and more. ● Eagle River Watershed Council will continue to publish a monthly e-newsletter, distributed to more than 2,300 people, and a monthly column in the Vail Daily. Additional education funding also comes from private foundations, businesses and individual donations. vi. Clean & Flowing Rivers Program ● Urban Runoff ($10,000). In 2024, the Eagle River Watershed Council will coordinate the Urban Runoff Group, which works to identify and implement strategies for water quality protection throughout the valley, in conjunction with a larger watershed health cohort that is focused on water quality, quantity and implementation of the Eagle River Community Water Plan. The Watershed will use the bulk of the funding to provide and expand the program’s community education aspects (including raising awareness of stormwater pollutants and how human behavior affects the rivers) through outreach events and creative messaging. We will use the successful Restore the Gore Campaign as a model. ● Regional Outdoor Water Efficiency ($3,000). The Eagle River Watershed Council will continue to develop and implement the Beyond Lawn program in partnership with Eagle County Conservation District. This holistic water efficiency program includes community outreach events, rain barrel and DIY landscaping workshops, HOA policy review and updates, deployment of turf and irrigation rebates, and more. Eagle County’s support of Eagle River Watershed Council will be recognized with the placement of the Eagle County logo on collateral and advertising for the Community Pride Highway Cleanup on May 4, 2024 and the Eagle River Cleanup, scheduled for September 7, 2024. Additionally, Eagle River Watershed Council will recognize Eagle County’s support on project collateral at volunteer events and on social media. DocuSign Envelope ID: B10FB225-67E6-4883-BB9B-839D81C5FECD