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HomeMy WebLinkAbout525554 COALITION FOR THE POUDRE RIVER WATERSHED - CONTRACT - AGREEMENT MISC - COALITION FOR THE POUDRE RIVER WATERSHEDPage 1 of 7 AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND THE COALITION FOR THE POUDRE RIVER WATERSHED REGARDING INDEPENDENT CONTRACTOR SERVICES GENERAL SERVICES This Agreement is entered into by and between the following Parties: the City of Fort Collins, a Colorado home rule municipality (“City”); and the Coalition for the Poudre River Watershed, a Colorado nonprofit corporation (“Coalition”). RECITALS A. The City is a home rule municipality that derives a significant portion of its water supply for potable and non-potable uses from the Cache la Poudre River (“Poudre River”) and its watershed. B. The Coalition is a nonprofit corporation dedicated to a healthy and resilient Poudre River watershed and to improving and maintaining the ecological health of the Poudre River watershed through community collaboration. C. The City desires to retain the Coalition for the purposes listed in this Agreement, all of which will benefit the City and its water supply by facilitating a healthy and resilient Poudre River watershed and by improving and maintaining the ecological health of the Poudre River watershed. D. In consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereto agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated as if fully restated in their entirety. 2. SERVICES. The Coalition shall provide to the City the services set forth in this Paragraph 2 (“Services”). The Parties acknowledge that, while these Services are not provided specifically for the City, the City wishes to provide support for the Coalition’s continued provision of these Services. a. DESCRIPTION OF THE SERVICES. The Services shall be those services that are consistent with the Coalition’s general mission as summarized in Paragraph B above, which includes, but not is necessarily limited to, the following: (1) engaging a diverse set of stakeholders representing both public and private interests in collaborative planning and implementation of restoration projects in the upper Poudre River watershed above the canyon mouth; (2) acquiring funding for planning and implementation of restoration activities on private and public lands in the upper Poudre River watershed; and DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B Page 2 of 7 (3) addressing threats of past and future wildfires to the Poudre River watershed through the development of a collaborative watershed plan that identifies: (a) the remaining priority areas and measures for reducing post-wildfire erosion hazards; (b) priority areas and opportunities for reducing the impacts of future wildfires on water supplies; and (c) other critical watershed issues that directly or indirectly affect water quality of the Poudre River and potential mitigation measures. The Coalition shall use the payments made by the City under this Agreement for Services comprising the Coalition’s general operations and routine operations (including, but not limited to, staff salaries and costs and overhead), and not for funding specific projects. b. ADDITIONAL TERMS AND CONDITIONS REGARDING THE SERVICES. i. Upon request, the Coalition shall provide the City with any and all information in the Coalition’s possession, including, but not limited to documents, regarding the Services. The City shall be entitled to require a written response from the Coalition for requests pursuant to this paragraph. ii. For all years when the City has a reserved seat on the board of directors, the Coalition shall also provide to the City a written Annual Report by March 1 of each year, summarizing the major events and accomplishments, membership, collaborators, and finances of the Coalition during the previous calendar year. 3. PAYMENTS. As consideration for the Services, the City agrees to pay the Coalition thirty-three thousand dollars ($33,000.00) per year (January 1 through December 31). Payment shall be due on or before January 31 for the current year; except for 2016, in which payment shall be due within thirty-five (35) days of the date that this Agreement has been signed by both Parties. 4. RESERVED SEAT ON THE COALITION’S BOARD OF DIRECTORS. a. RESERVED SEAT UNDER THIS AGREEMENT. For so long as this Agreement remains in effect, the City agrees to designate a person to act as the City’s representative on the Coalition’s board of directors and fulfill the duties of directors as described in the Coalition’s articles of incorporation and bylaws. In addition to the authority and powers of the directors under the articles of incorporation and bylaws, pursuant to this Agreement, the City’s representative will be authorized to represent the City’s interest on the Coalition’s board to aid in organizational decision making, policy implementation and development, and program implementation. Nothing in this Agreement shall be construed as precluding additional persons associated with the City from also being directors on the board if otherwise permitted under the articles of incorporation and bylaws. DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B Page 3 of 7 b. For so long as this Agreement remains in effect, the Coalition agrees that the City shall retain a reserved seat on the Coalition’s board of directors and shall not revise its articles of incorporation and bylaws to adversely affect the City’s rights to have and retain a reserved seat on the board of directors pursuant to this Agreement. c. RESERVED SEAT UNDER THE BYLAWS. The Coalition’s current bylaws were amended and approved on September 30, 2013 (“Current Bylaws”). Bylaw II.1.A of the Current Bylaws concerns “Reserved Seat Directors” and establishes certain rights in the City and others to reserved seats on the board of directors. The Coalition may consider potential future changes to said Bylaw II.1.A. The City and its representative on the board of directors agree to work in good faith with the Coalition in any proposed revision to said Bylaw II.1.A, including revisions that may impact the City’s rights under said bylaw to a reserved seat on the board of directors. The City further agrees to consider waiving its rights to a reserved seat on the Coalition’s board of directors under Paragraph 4.a of this Agreement if the City retains the right to a reserved seat under revised bylaws and if such a waiver would be for the benefit of the Coalition. Any such waiver shall be in the City’s sole discretion and shall only be effective if done in writing. 5. INDEPENDENT CONTRACTOR STATUS. The Coalition shall provide the Services as independent contractor, and not as an agent or employee of the City. The Parties understand that the Coalition may utilize subcontractors to complete some or all of the Services, under the Coalition’s direction and supervision. The Coalition’s subcontractors or employees shall not be deemed subagents of the City, and the City shall not be deemed a third-party beneficiary of any contract between the Coalition and a subcontractor. The Coalition shall be as responsible to the City for the acts and omissions of its subcontractors and employees as it is hereunder for the Coalition’s own acts and omissions. The Coalition shall be responsible for its own expenses, and shall supply all equipment, tools, materials, and supplies to accomplish the work to be performed. Neither federal nor Colorado income tax, nor any other payroll tax of any kind, shall be withheld or paid by the City on behalf of the Coalition. The Coalition understands that it is responsible for all income, Federal Insurance Contributions Act (FICA), and other payroll taxes in accordance with applicable law, and for the filing of all tax returns and associated forms and reports that may be required in connection with such tax obligations. 6. TERM, RENEWALS, AND TERMINATION. a. TERM. This Agreement shall operate on one-year terms (January 1 through December 31). The initial term shall be the effective date of this Agreement (January 1, 2016) through December 31, 2016. This Agreement may be renewed for addition one- year terms pursuant to Paragraph 6.b, such that the new term of this Agreement shall be as stated in that paragraph. This Agreement may also be terminated pursuant to the terms and conditions of Paragraph 6.c. b. RENEWALS AND EXPIRATION OF TERM. This Agreement shall automatically renew on January 1, 2017, and on subsequent New Year’s Days (January 1), unless a DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B Page 4 of 7 Party (“Non-Renewing Party”) provides written notice to the other Party that the Non- Renewing Party, in its sole discretion and for or without cause, does not intend to have this Agreement renew for an additional one-year term. Upon such written notice, the Agreement shall terminate at the end of the current term (December 31). c. TERMINATION. In addition to the right to not renew this Agreement pursuant to Paragraph 6.b, either Party, in its sole discretion and for or without cause, may terminate this Agreement at any time upon written notice to the other Party. Termination shall be effective as of the date that the written notice of termination is received by the non- terminating Party. Upon termination, (1) the Coalition shall not be responsible for providing the Services to the City beyond the date of termination and (2) the City shall only be responsible to compensate the Coalition for the period of time during which this Agreement was in effect; and (3) the Coalition shall return any payments for consideration received from the City for the remainder of the current one year term within twenty-eight (28) days of the effective date of termination. By way of example only, if the Agreement were terminated on May 15 (the 135 th day of the year) and the Coalition had already received payment for the entire one-year term, the Coalition would be obligated to reimburse the City for 230/365 ths of the payment within twenty-eight (28) days of the effective date of the termination. 7. REMEDIES. If either Party fails to comply with the provisions of this Agreement, the other Party, after providing written notification to the noncomplying Party, and upon the failure of the noncomplying Party to achieve compliance within twenty-eight (28) days, may seek all such remedies available under Colorado law. 8. FISCAL CONTINGENCY. Notwithstanding any other provision of this Agreement to the contrary, the obligations of the City in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, with the City having the sole discretion to determine whether the subject funds are sufficient and intended for use under this Agreement. 9. LIMITATION OF LIABILITY. Each Party hereby releases the other Party and its directors, officers, members, employees, and agents from any liability for injury or damage suffered by such Party in connection with the provision of the Services, unless such injury or damage results directly from the negligent or intentional act or failure to act of the other Party. 10. INSURANCE. Without limiting any of the Coalition’s obligations hereunder, the Coalition shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit A (in Exhibit A, the Coalition is referred to as the “Service Provider”). The Coalition, within fourteen days of the date that this Agreement has been signed by both Parties, shall deliver to the City’s Director of Purchasing and Risk Management, P.O. Box 580, Fort Collins, Colorado 80522, one (1) copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B Page 5 of 7 11. CONFIDENTIALITY. The Coalition agrees to the terms and conditions included in Exhibit B. 12. NOTICES. All notices under this Agreement shall be given in writing either personally or by Certified U.S. Mail, postage prepaid, return receipt requested, at the addresses set forth below or as changed from time to time upon written notice to the other Party. Notice given personally shall be deemed given when received; notice sent by U.S. Mail shall be deemed given three (3) days after deposit in the U.S. Mail. To the City: City Manager City Hall West 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 With copy to: Fort Collins City Attorney 300 LaPorte Avenue; P.O. Box 580 Fort Collins, Colorado 80522-0580 epotyondy@fcgov.com and: Fort Collins Utilities Attn: Water Resources Manager 700 Wood Street P.O. Box 580 Fort Collins, Colorado 80522-0580 To the Coalition: Coalition for the Poudre River Watershed c/o Executive Director Address of Record with the Colorado Secretary of State 13. NO THIRD-PARTY BENEFICIARIES. This Agreement is entered into between the Parties for the purposes set forth herein. It is the intent of the Parties that they are the only beneficiaries of this Agreement and the Parties are only benefitted to the extent provided under the express terms and conditions of this Agreement. 14. GOVERNING LAW AND ENFORCEABILITY. This Agreement shall be construed in accordance with the laws of the State of Colorado, insofar as any matter is not regulated by applicable laws of the United States. The Parties recognize that the constitutions, statutes, and rules and regulations of the State of Colorado and of the United States, as well as the parties respective bylaws, city charters and codes, and rules and regulations, impose certain legal constraints on each Party and that the Parties intend to carry out the terms and conditions of this Agreement subject to those constraints. Whenever possible, each provision of this Agreement shall be interpreted in such a manner so as to be effective and valid under applicable law. 15. WAIVER. A waiver of a breach of any of the provisions of this Agreement shall not constitute a waiver of any subsequent breach of the same or another provision of this Agreement. DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B Page 6 of 7 16. CONSTRUCTION. This Agreement shall be construed according to its fair meaning as it was prepared by the Parties. Headings in this Agreement are for convenience and reference only and shall in no way define, limit, or prescribe the scope or intent of any provision of this Agreement. 17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the Parties regarding the matters addressed herein. This Agreement binds and benefits the Parties and their respective successors. Covenants or representations not contained in this Agreement regarding the matters addressed herein shall not bind the Parties. 18. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience only and shall not govern or influence the interpretation of the Agreement 19. REPRESENTATIONS. Each Party represents to the other parties that it has the power and authority to enter into this Agreement and the individual signing below on behalf of that Party has the authority to execute this Agreement on its behalf and legally bind that Party. 20. ASSIGNMENT. No Party may assign any rights or delegate any duties under this Agreement without the written consent of the other Party. [Remainder of Page Left Blank Intentionally] DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B Page 7 of 7 CITY OF FORT COLLINS, COLORADO, a Colorado home rule city By: ______________________________________ Gerry Paul Director of Purchasing Date: APPROVED AS TO FORM: By: ___________________________ City Attorney’s Office ATTEST By: City Clerk COALITION FOR THE POUDRE RIVER WATERSHED, a Colorado Nonprofit Corporation By: ______________________________________ Printed: Title: Date: ATTEST: By: ______________________________________ DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B 4/11/2016 executive director Jennifer Kovecses 4/11/2016 Page 1 of 1 EXHIBIT A INSURANCE REQUIREMENTS 1. The Service Provider shall provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this Agreement, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: “The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins.” In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers’ Compensation and Employer’s Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider’s employees engaged in work performed under this Agreement: 1. Workers’ Compensation insurance with statutory limits as required by Colorado law. 2. Employer’s Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General and Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B No new insurance required Page 1 of 1 EXHIBIT B CONFIDENTIALITY In connection with the Services provided to the City of Fort Collins (“City”) pursuant to this Agreement, the Coalition hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data, and material (hereinafter individually and collectively, regardless of nature, referred to as “information”) that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of Services that the Coalition has agreed to perform, the Coalition hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of Services for the City may be confidential and/or proprietary. The Coalition agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City, or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City). The Coalition shall not disclose any such information to any person not having a legitimate need-to-know for purposes authorized by the City. Further, the Coalition shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Coalition understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Coalition shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Coalition ceases to perform Services for the City, or the City so requests for any reason, the Coalition shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Coalition understands and agrees that the City’s remedies at law for a breach of the Coalition’s obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. DocuSign Envelope ID: 6D5B420B-E2E2-49B6-9D62-10829AE3403B