No preview available
HomeMy WebLinkAboutC17-402 Town of EagleAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND THE TOWN OF EAGLE FOR CONSTRUCTION OF A WHITEWATER PARK AT THE EAGLE COUNTY FAIRGROUNDS PROPERTY THIS AGREEMENT between Eagle County, Colorado and the Town of Eagle for Construction of a Whitewater Park at the Eagle County Fairgrounds Property (the "Agreement") is made this 12/06/2017 , between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners ("County") and the Town of Eagle, by and through its Board of Trustees ("Town"). Together, the Town and the County are referred to herein as the "Parties 15 WHEREAS, the Parties entered into an Intergovernmental Agreement dated June 23, 2015, amended on June 28, 2016 and December 20, 2016, in which the Parties agreed to cooperate in certain efforts to achieve a carefully -planned design for the future Eagle River Park, which will include construction of instream river features and associated improvements (the "Whitewater Park") and an associated recreation area (the "Upland Park") (the Whitewater Park and the Upland Park will be referred to collectively as the "Eagle River Park"); and WHEREAS, the design of the Eagle River Park will include land owned by Eagle County, identified as the "Premises — Eagle County Property" on the map attached hereto as Exhibit A and incorporated herein by this reference (the "Premises") and also will include land owned by third parties that is located within the municipal boundaries of the Town of Eagle; and WHEREAS, the County has contributed $25,000 to the design of instream features of the Eagle River Park and the Parties agree that the County has no further obligation for direct financial contribution toward construction or operation of the Eagle River Park; and WHEREAS, the Town has applied for and expects to receive permitting from the U.S. Army Corps of Engineers ("USACE") instream work for the Whitewater Park prior to construction activities; and WHEREAS, the Town has contracted for plans for design of the instream features with S20 Design and Engineering and intends to start construction of the Whitewater Park on November 15, 2017 in order to complete construction during winter months when instream flows are at low levels; and WHEREAS, the Town acknowledges that by Memorandum of Understanding Between the State of Colorado Department of Transportation and Eagle County, portions of the Premises will be open and available for commercial truck parking during weather incidents and/or for I-70 road closures between November 1 and March 31 of each year; and WHEREAS, the purpose of this Agreement is to allow the Town to use the Premises in the locations defined below for the purpose of constructing a Whitewater Park, subject to the acknowledgments, terms and conditions stated herein; and C17-402 WHEREAS, the Town acknowledges and agrees that Towns employees, consultants, contractors and subcontractors must comply with the terms, conditions and requirements of this Agreement concerning the use of the Premises to the same degree as the Town. NOW THEREFORE, in consideration of the terms and covenants stated herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows: ARTICLE I; USE OF PREMISES 1.1. Eagle County hereby grants to the Town a non-exclusive, revocable license to use the Premises as set forth herein. 1.2. Use of the Premises shall be limited during the term of this Agreement to construction of the Whitewater Park as depicted in Eagle River Park construction plan dated September, 2017, designed by S20 Design and Engineering ("Plans"), a complete copy of which is to be maintained in the office of the Eagle County Public Works Department, available for review upon request, and hereby incorporated by this reference. Construction activity shall be limited to the portion of the Premises identified as "Contractor's Construction Area" in the Conceptual Plan attached hereto as Exhibit B and incorporated herein by this reference. In addition, the Town may use the portion of the Premises identified as "Contractor's Staging Area" on Exhibit B for contractor storage, including materials and machinery needed for Construction; and portion of the Premises identified as "Open Parking Area" on Exhibit B for parking of employee or contractor vehicles during permitted days and hours of construction as set forth in Paragraph 1.4 of this Agreement, and for the uses set forth in Paragraphs 1.3 and 2.5.1 of this Agreement. To the extent practicable, access routes identified in Exhibit B shall be utilized and adhered to during all construction activities. 1.3 The Open Parking Area may be used to access the Contractor's Construction Area and Contractor's Staging Area. The Town acknowledges that other third parties will be using the Open Parking Area during the term of this Agreement and the Town's construction activities may not inhibit the use of the Open Parking Area by those authorized. No construction or Town employee parking is allowed in the Open Parking Area during I-70 closures. 1.4 Unless otherwise authorized in writing by the Eagle County Facilities Director, permitted days and hours of construction within the Contractor's Construction Area are 7:00 a.m. through 7:00 p.m. Monday through Friday, November 15, 2017 through April 30, 2018. Construction activities after April 30, 2018 require an Amendment to this Agreement in accordance with Paragraph 3.1 of this Agreement. ARTICLE II; TOWN RESPONSIBILITIES 2.1 The Town shall adequately supervise the work to be performed by its Contractors hired to complete the Whitewater Park. For purposes of this Agreement, the term "Contractor" shall be defined as all consultants and contractors hired by the Town to perform work on any portion of the Premises and shall also include the Contractor's subcontractors and the their respective employees, officers, agents and others acting under their authority. 2.2 Town shall make reasonable efforts to fence off the Contractor's Construction Area and Contractor's Staging Area to ensure safety of the public and to prohibit public access and/or public recreational use during construction activities authorized by this Agreement. 2.3 Town shall secure any and all necessary permits and shall comply with all applicable regulations affecting the work, including, without limitation, the requirements of USAGE. 2.4 All use of the Premises under this Agreement by the Town and its Contractor must comply with the terms and requirements of the USACE permit and the terms and conditions of this Agreement. 2.5 During the term of this Agreement, the Town, at its own cost and expense, shall maintain the Premises as follows: 2.5.1 The Town shall provide snow plowing services to ensure that the Open Parking Area is available for commercial truck parking during weather incidents and periods of I-70 road closures. 2.5.2 The Town shall ensure the Premises remains reasonably free of debris and shall ensure all construction materials and equipment are properly stored within the Construction Staging Area. 2.5 Upon termination of this Agreement, the Town will remove all construction materials and equipment and ensure the Premises, including the Contractor's Staging Area is restored to its original condition, reasonable wear and tear expected. In the event the Town fails to restore the Premises to the County's reasonable satisfaction, County shall have the right to restore the Premises at the Town's expense, the amount of which expense Town shall pay to County on demand. ARTICLE III: TERM 3.1 The rights granted in this Agreement shall be possessed and enjoyed by the Town through the 3d" day of April, 2018, unless sooner terminated as provided in Article III hereunder. The Parties may, by duly authorized written amendment to this Agreement, extend the Term of this Agreement, on terms mutually acceptable to each Party. ARTICLE IV: REVOCATION 4.1 County has the right to revoke the license granted herein for a material violation of the terms, conditions, promises, and covenants of this Agreement, provided the Town has not cured the violation within thirty (30) days of a written notice of violation from County. Notwithstanding the foregoing, County may revoke the license granted herein immediately on the grounds that health, safety or welfare requires such action. ARTICLE V: INSURANCE AND LIABILITY 5.1 The Town agrees to maintain in full force during the term of this Agreement general liability insurance, naming Eagle County, its associated or affiliated entities, elected officials, employees, agents and volunteers as additional insureds, which will cover the County and the Town against liability for injury to persons and/or property occurring in or about the Premises. The liability coverage under such policies of insurance shall not be less than $1,000,000 per occurrence and not less than $2,000,000 in the aggregate. In addition, the Town shall require its Contractor to procure policies of insurance consistent with these levels of coverage and which name the Town of Eagle, the County of Eagle and their associated or affiliated entities, successors and assigns, elected officials, employees, agents and volunteers as additional insureds. Certificates of insurance consistent with the foregoing requirements must be delivered to County upon 5 days of a request therefor. 5.2 The Town assumes all risk of loss associated with use of the Premises under this Agreement, including without limitation, property damage and all risk of personal injury, including but not limited to death, attributable to any cause other than the gross negligence or unlawful conduct of County. The Town shall hold County and its commissioners, boards, employees, agents, insurers, from any and all claims, suits, costs, losses and expense that may in any manner result or arise from the use of the Premises authorized herein. 5.3 The Town shall be responsible to County for acts and omissions of its agents, employees, suppliers, Contractors and subcontractors performing Work on or about the Premises. 5.4 The Town shall pay for all materials joined or affixed to and labor performed in connection with construction of the Whitewater Park, and shall not permit any mechanic's or materialman's lien or claim of any kind or any nature to be enforced against any property interest of the County for any work done or materials furnished thereon at the request or on behalf of the Town. The Town shall be responsible and protect the County from and against any and all claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. ARTICLE VI: PROHIBITED USES 6.1 The Town may use the Premises for the purposes set forth herein. Any other uses are prohibited, unless agreed to in writing by Eagle County. ARTICLE VII: NOTICE 7.1 All notices or other communications made pursuant hereto shall be in writing and shall be deemed properly delivered, given or served (i) when personally delivered, or (ii) two (2) calendar days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below their signatures, or (iv) when sent via facsimile so long as the sending party can provide a facsimile machine or other confirmation showing the date, time, and receiving facsimile number for the transmission. Either party may change its address for the purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. IF TO EAGLE COUNTY: Kevin Sharkey Eagle County Trails Manager Eagle County, Colorado 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3539 Facsimile: 970-328-8629 And a copy to: With a copy to: Eagle County Attorney 500 Broadway PO Box 850 Eagle, CO 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 IF TO TOWN: Tom Boni Town Manager Town of Eagle PO BOX 609 200 Broadway Eagle, CO 81631 ARTICLE VIII: MISCELLANEOUS 8.1 GOVERNMENTAL IMMUNITY. It is expressly understood and agreed that the Parties are relying upon, and have not waived, the monetary limitations and all other rights, immunities and protections provided by the Colorado Governmental Act, C.R.S. § 24-10-101, et seq. and other applicable law. 8.2 GOVERNING LAW. It is the intention of the Parties hereto that all questions with respect to the construction and interpretation of this Agreement and the rights and liabilities of the Parties hereunder shall be determined in accordance with the laws of the State of Colorado. Venue shall be in the District Court of Eagle County, Colorado. 8.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the Parties with respect to use of the Premises for the purposes set forth herein and supersedes all prior discussions, negotiations, understandings, or agreements relating to the same. 8.4 CAPTIONS. The captions in this Agreement have been inserted solely for convenience of reference and are not a part of this Access Easement and shall have no effect upon construction or interpretation. 8.5 ASSIGNMENT. This Agreement is not assignable or transferrable without written consent of the County, which may be withheld in the County's sole discretion. 8.6 MODIFICATIONS. The Parties agree that any modifications of this Agreement shall be effective only when made in writing signed by both parties and recorded with the Clerk and Recorder of Eagle County, Colorado. 8.7 SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law; provided, however, if any provision of this Agreement shall be invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement. 8.8 CONTRACT DOCUMENTS. In the event of any conflict or inconsistency between the terms and conditions set forth in any Exhibit to this Agreement and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. ATTEST: Tit-4R0F,�.q �0 • 4 ■ • By: Jenny Rako Town Clerk u. ATTEST: By: rtt� -Vim 4f --- Anne McKibbin, Mayor COUNTY OF EAGLE, STATE OF COLORADO, by and through its Board of County Commissioners am Regina O'Brien Jillian H. Ryan, Chair Clerk to the Board of County Commissioners s I_ ` UA� CL 41. �mm Q 3 ms O �a o r a �a-, r0 �a �+ 71 m ��IIR Vit; ••'r�_ w�.. 't U r Lu s". 4- 4 0 (D Q a a < • • • VA� W ms M gm6 A � aatl goo Q7 5 fin'@ `J <1 << • • • • • 8 E -. a a a • • • • • tocw a a a a • • • • W -- _ ,l a a 4 •000 L _ O aaQa Q •• m O U ��. n x 0 0 � a a a . • •• U a a V • ApikT \I V a • <11 <1 a (D 'Es VA� W ms M gm6 A � aatl goo Q7 5 fin'@ r Q d 8 E tocw W L L _ O Q O m O U a 0 0 0 o o U ApikT (D