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HomeMy WebLinkAboutC24-093 Roaring Fork ConservancyAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND ROARING FORK CONSERVANCY THIS AGREEMENT (“Agreement”) is effective as of January 1, 2024 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, County desires to support 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”) that occur within Eagle County (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, 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: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 2 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 31st day of December, 2024. 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 $20,000.00. 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). DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 3 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 DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 4 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 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 DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 5 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: 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) DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 6 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 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. DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 7 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. 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. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 8 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 DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 9 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: Roaring Fork Conservancy (RFC) secures funding from many sources and uses these contributions to leverage other funds to move important 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: i. 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 Science and Policy Program informs federal, state and local land management decisions, and drives on-the-ground projects to protect and restore the watershed. Current and potential projects include restoration of several areas on the Crystal River, work on RFC’s conservation easements on the lower Roaring Fork River, and instream flow accountability measures. Many of the program’s actions come from the Roaring Fork Watershed Plan, which was updated in 2020, 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. ∙ 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 any analysis reporting will be provided to Eagle County Staff. o Anchor Ice Monitoring RFC will continue to carry out the anchor ice monitoring program. Goals are to document and better understand when and where anchor ice occurs on the Fryingpan River and inform best management practices, including reservoir releases. A report detailing highlights of the year’s monitoring will be provided to Eagle County. DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 10 ii. 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. iii. Roaring Fork Valley Drought Resiliency Project Support (~$4000): RFC, in partnership with Eagle County, Pitkin County Open Space and Trails, private ranch owners and consultant Lotic Hydrological, will work to identify means for mitigating the impacts of drought on productivity in mid- to high-elevation grass pastures and hay fields—the dominant agricultural land use in the Roaring Fork Valley. Specifically, each entity is interested in identifying specific field-scale treatments that can be used to minimize (or eliminate) reductions in crop yields and forage quality that are expected when drought constrains irrigation water supplies. Soil treatments were applied to four separate fields: two located in Eagle County and one each in Pitkin and Garfield County. All four sites currently receive irrigation and produce perennial crops of grass hay and alfalfa. At each location, two soil treatments (aeration and biochar) were applied across separate 1-acre swaths. Forage samples will be collected monthly June- September 2024 at each treatment area and local control sites. Samples will be submitted to the CSU Soil, Water, and Plant Testing Laboratory for dry weight and forage quality analysis. A simple economic feasibility and return-on-investment analysis of the treatment approaches will be carried out by comparing the total cost of each soil treatment (materials + labor) to the potential increase in yields (for the full irrigation case) or the reduced loss in yields (for the deficit irrigation case) relative to the control. Results from the comparative analysis will be considered against 2024 hay/alfalfa prices in order to characterize the profit or loss reduction benefits of the proposed treatments in economic terms that are easy to grasp by a wide audience. All results will be compiled in a technical report and summarized in a web page and/or through print materials for distribution to other agricultural producers and the general public. a. CONTRACTOR SHALL COMPLY WITH THE FOLLOWING SCHEDULE OR MILESTONES IN PERFORMANCE OF THE SERVICES: The aforementioned services will be provided throughout the year. DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1 11 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 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, 2024. DocuSign Envelope ID: 308CE305-426C-4ABE-ACC6-81A6AD8E00F1