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HomeMy WebLinkAboutC19-173 Town of EagleAGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND THE TOWN OF EAGLE FOR USE, OPERATION AND MAINTENENACE OF THE EAGLE RIVER PARK AT THE EAGLE COUNTY FAIRGROUNDS PROPERTY THIS AGREEMENT for Use, Operation and Maintenance of the Eagle River Park at the Eagle County Fairgrounds Property dated _______________ (the “Agreement”), is 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 as the “Parties.” WHEREAS, the Parties previously entered into an Agreement dated June 23, 2015 (Eagle County C15-270), amended on June 28, 2016 (Eagle County C16-251) and December 20, 2016 (Eagle County C16-472), in which the Parties agreed to cooperate in certain efforts related to the design of the Eagle River Park, including the instream river features and associated improvements (the “Whitewater Park”) and an associated public 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 included 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 WHEREAS, the Parties entered into an Agreement dated December 6, 2017 (Eagle County C17-402), amended on March 27, 2018 (Eagle County C18-114), to allow the construction of the Eagle River Park on certain portions of the Premises, subject to the terms and conditions contained therein (the “Construction Use Agreement”); and WHEREAS, while the Town may desire to make future instream river modifications to the Whitewater Park features and may undertake additional landscaping work beyond such date, the majority of significant construction activities at the Eagle River Park are scheduled for completion by May 24, 2019; WHEREAS, when construction is entirely finished; the Eagle River Park is professionally surveyed “as built;” the Premises is subdivided in accordance with the requirements of Eagle County Land Use Regulations; and the Parties agree on mutually acceptable terms and conditions related to their respective uses of the Premises and surrounding areas, the County intends to convey the portion of the Premises that have been constructed as the Eagle River Park (precise boundaries to be determined in the future) to the Town so that the Town may own the underlying Eagle River Park land and annex the same into the Town’s jurisdiction; and WHEREAS, in the interim period prior to such conveyance, the Parties wish to set forth their Agreement for the Town’s use, operation and maintenance of the Eagle River Park; and WHEREAS, the Town intends to host or permit special events at the Eagle River Park, including but not limited to the Ribbon Cutting and the Eagle River Park Jam and BBQ DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 5/21/2019 scheduled for May 24, 2019 through May 26, 2019; future regional and local whitewater competition and community events with alcohol sales, amplified music and/or vendors; and other large special events permitted by the Town through its event permitting process (collectively referred to hereinafter as “Eagle River Park Events”), which may require significant use of the county-owned land identified as the “Parking Area” in Exhibit A (hereinafter the “Parking Area”); and WHEREAS, the Parties acknowledge and agree that Eagle County will require exclusive use of the Parking Area during the annual Eagle County Fair and Rodeo, may require significant and/or exclusive use of the Parking Area during other large events scheduled at the Eagle County Fairgrounds Facility (hereinafter referred to as “Fairgrounds Events”), and that the Parking Area must also be made available for semi-truck parking for weather incidents and/or for I-70 road closures between November 1 and March 31 each year pursuant to a Memorandum of Understanding between Eagle County and the Colorado Department of Transportation (Eagle County C19-102); and WHEREAS, the Town acknowledges the County’s ongoing support in the Eagle River Park project to date, including but not limited to, authorization for the Eagle River Park to be constructed on Eagle County property at no charge to the Town; contribution of $25,000 towards design of the Eagle River Park; contribution of in-kind services such as improvements to the Exhibit Hall parking lot and extension of the Riverside Path to the contestant camping area to mitigate reduced parking at the Premises available for the Fair and Rodeo; and dedicated staff to help coordinate design, construction, and legal documents. WHEREAS, the Town recognizes that the County intends to allow the Town to use the Premises and Parking Area for Eagle River Park Events on the terms and conditions contained herein, without any limitation on the County’s right to use its property for County purposes; and WHEREAS, the Parties intend by this Agreement to set forth the terms and conditions for use of and to ensure effective communication and coordination between the Parties about events planned and scheduled on or around the Premises and Parking Area; and WHEREAS, the Town desires to permit vendors, including alcohol sales, water park toy rentals, food trucks and other river park related vending at any time on the Premises, and for pre- approved Eagle River Park Events in the Parking Area. 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 authority to use the Premises during the term of this Agreement for the operation and maintenance of the Eagle River Park subject to the following: DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 a. The Town may make reasonable rules and regulations pertaining to the public use of the Eagle River Park and its amenities and features. b. The Town may contract with, regulate, and collect revenues from vendors, contractors and service providers operating or providing services on the Premises (“Operators”) as the Town deems appropriate. The Town may authorize Operators to provide services in the Parking Area during or in connection with preapproved Eagle River Park Events. The Town will require Operators to promise in writing to indemnify, hold harmless and defend Eagle County Government, its officers, deputies, employees, and agents harmless from and against any and all claims arising from the Operators’ use of the Premises and/or Parking Area or from the conduct of any activity, program, or thing that may be permitted or suffered by Operators in or about the Premises and/or Parking Area, and to maintain adequate general liability insurance for coverage of claims for damages arising from the Operators’ activities on the Premises and/or Parking Area, in amounts consistent with the Town contracting policies, which policies of insurance must name Eagle County as “Additional Insured.” Notwithstanding the foregoing, the Town may not contract with or interfere with any existing or future the contracts between Eagle County and Rafting/Fishing Outfitters who load and/or disembark river boats at the Eagle County Fairgrounds (see Eagle County Resolution R19-022) nor may the Town interfere with contracts with any other vendors or contractors Eagle County may desire to contract with at the Fairgrounds Property. c. The Town shall, at its own cost and expense, be responsible to adequately maintain the Premises in a reasonably clean and safe manner for use by the general public. In addition, the Town shall, at its own cost and expense: i. Provide snow plow services to ensure that the Parking Area is available for public and/or commercial truck parking when such parking is allowed; and ii. Be responsible for maintenance of the Riverside Path and safety rails. The County will be responsible for maintenance of the 6' tall metal Fairgrounds perimeter fence. The County will close the Riverside Path during the Fair and Rodeo for Rodeo operations. d. The Town shall be responsible for all primary law enforcement services at the Premises during the term of this Agreement in accordance with the Intergovernmental Agreement Concerning Authorization for Law Enforcement Services dated March 27, 2018, as may be amended from time to time (Eagle County C18-122)(hereinafter the “Law Enforcement IGA”). e. The Town recognizes the importance of the parking lot at the Eagle River Park for parking during the Eagle County Fair and Rodeo, and agrees to cooperate in DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 closing and enforcing the closure of the Parking Area for the exclusive use of the County during the Fair and Rodeo each year. The Parking Lot and Restrooms must be made available to the County every year for the Eagle County Fair and Rodeo beginning at 7:00 am on the Monday one week prior to the Fair and Rodeo for event setup, through the Wednesday following the Fair and Rodeo for cleanup. Eagle County shall clean the Parking Lot, Restrooms and affected Upland Park areas during and immediately after the Fair and Rodeo. f. The Town shall provide to the County notice of Eagle River Park Events not less than thirty (30) days prior to such events, and provide Eagle County staff with additional information regarding such events as may be reasonably requested. Any such notice provided under this provision should include the date(s) and hours of the event, the name and contact information for the organizer, and an estimate about the number of participants that will be involved with the event. The County’s approval for properly noticed Eagle River Park Events may not be unreasonably withheld; the County must communicate approval or disapproval of an Eagle River Park Event in writing within 7 (seven) days of notice provided under this Section 1.1(f). By way of example, it shall not be unreasonable for the County to withhold approval for a properly noticed Eagle River Park Event for health, safety and welfare concerns, or for a conflict with other events scheduled by the County at the Eagle County Fairgrounds Facility. g. The County shall use best efforts to provide to the Town with as much advanced notice as practicable of the dates of scheduled Fairgrounds Events. The County agrees not to schedule any Fairgrounds Events with the expectation of use of the Parking Area that would conflict with the dates and times of a properly noticed and preapproved Eagle River Park Event. Notwithstanding the foregoing, the annual Eagle County Fair and Rodeo, and all related activities and events, shall always take priority for all scheduling requests and decisions of the Parties. h. The Town and County shall coordinate signage along Fairgrounds Road directing the public’s use of the Eagle River Park and Fairgrounds. i. The Town shall secure or require its Operators to secure all appropriate food safety, liquor licensing and other permits as may be required under applicable laws and regulations. j. Except when expressly authorized in writing for a particular Eagle River Park Event by a representative of the Eagle County Facilities Department, the Town shall not take any action or make any use of the Parking Area that prevents it from being usable in a clear, clean and safe manner for public parking. DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 1.2. Except where expressly or necessarily modified by the terms of this Agreement or a duly executed amendment to the Construction Use Agreement, the Construction Use Agreement shall remain effective and applicable to all ongoing or future construction activities on the Premises and Parking Area. The Parties will terminate the Construction Use Agreement either after the allowable construction activities are complete, or after the Eagle River Park area is subdivided and conveyed to the Town of Eagle, whichever occurs first. ARTICLE II: TERM 2.1 The term of this Agreement shall be for a period of one year from the date of execution, unless sooner terminated. Unless one of the Parties gives notice a least ten (10) days prior to the end of the current term that such Party desires to terminate this Agreement for any reason, this Agreement shall be automatically extended for additional periods of twelve (12) months. The Parties may, by duly executed written amendment to this Agreement, extend the term of this Agreement on terms mutually acceptable to each Party. ARTICLE III: TERMINATION 3.1 The County may unilaterally terminate this Agreement for a material violation of the terms, conditions, promises, and covenants contained herein, 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 terminate this Agreement immediately on the grounds that health, safety or welfare requires such action. The Parties may mutually agree to terminate this Agreement for any reason at any time upon written agreement duly executed by the governing body of each Party. ARTICLE IV: INSURANCE AND LIABILITY 4.1 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 at any time, and the Parking Area during Eagle River Park Events. 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. Certificates of insurance consistent with the foregoing requirements must be delivered to County upon 5 days of a request therefor. 4.2 The Town assumes all risk of loss associated with its use of the Premises and Parking Area 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, harmless from any and all claims, suits, costs, losses and expense that may in any manner result or arise from its use of the Premises and the Parking Area as authorized herein. DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 4.3 The Town shall be responsible to County for acts and omissions of its agents, employees, suppliers, Operators, Contractors and subcontractors performing Work on or about the Premises and the Parking Area. ARTICLE V: PROHIBITED USES 5.1 The Town may use the Premises and the Parking Area for the purposes and under the terms and conditions set forth herein. Any other uses are prohibited, unless agreed to in writing by Eagle County. ARTICLE VI: NOTICE 6.1 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: Eagle County Manager Eagle County, Colorado 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8604 Facsimile: 970-328-8629 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: Brandy Reitter Town Manager Town of Eagle PO BOX 609 200 Broadway DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 Eagle, CO 81631 ARTICLE VII: MISCELLANEOUS 7.1 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. 7.2 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. 7.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the Parties with respect to use of the Premises and Parking Area for the purposes set forth herein and supersedes all prior discussions, negotiations, understandings, or agreements relating to the same. 7.4 CAPTIONS. The captions in this Agreement have been inserted solely for convenience of reference and are not a part of this Agreement and shall have no effect upon construction or interpretation. 7.5 ASSIGNMENT. This Agreement is not assignable or transferrable without written consent of the County, which may be withheld in the County’s sole discretion. 7.6 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. 7.7 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. 7.8 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. DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. TOWN OF EAGLE ATTEST: By: _______________________ By:______________________________________ Jenny Rakow, Town Clerk Anne McKibbon, Mayor ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its Board of County Commissioners By: _______________________ By:______________________________________ Regina O’Brien Jeanne McQueeney, Chair Clerk to the Board of County Commissioners DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 DocuSign Envelope ID: A0A3C40B-D797-4C58-90F0-E0EC88C67052 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME: CONTACT (A/C, No): FAX E-MAIL ADDRESS: PRODUCER (A/C, No, Ext): PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT ER OTH- STATUTE PER LIMITS(MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) POLICY EFF POLICY NUMBERTYPE OF INSURANCELTR INSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY P.O. Box 1070 CIRSA 1-303-757-5475 X CIRSA and volunteers are included as Additional Insured if required by written contract. Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents the Parking Area during Eagle River Park Events. As respects to Town use, operation, maintenance of the Eagle River Park at the Eagle County Fairgrounds Property and Certificate Holder is Additional Insured on Liability Policies if required by contract. 10,000,000 LIAB 01-2019 56250934 56250934 A $10m POL E&O Aggregate 3665 Cherry Creek North Drive Eagle, CO 81637 05/23/2019 X 0 A Town of Eagle X 01/01/20 5,000,000 LIC #N/A 10,000,000 Eagle, CO 81631 X 01/01/20 Denver, CO 80209 01/01/19 10,000,000 Moniquef 10,000,000 PO Box 609 LIAB 01-2019 Eagle County USA 01/01/19