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HomeMy WebLinkAboutC21-140 Town of EagleFIRST AMENDMENT TO THE AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND THE TOWN OF EAGLE FOR USE, OPERATION AND MAINTENANCE OF THE EAGLE RIVER PARK AT THE EAGLE COUNTY FAIRGROUNDS PROPERTY THIS FIRST AMENDMENT to the Agreement for Use, Operation and Maintenance of the Eagle River Park at the Eagle County Fairgrounds Property dated ______________ (“First Amendment”) 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 Town Council (“Town”). Together, the Town and the County are referred to as the “Parties.” WHEREAS, the Parties initially 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 (collectively the “Construction Use Agreement”); and WHEREAS, the Parties subsequently entered into an agreement dated May 21, 2019 (Eagle County C19-173), for the use, operation and maintenance of the Eagle River Park at the Eagle County Fairgrounds during and after completion of construction (the “Use Agreement”); and WHEREAS, the Town’s construction activities at the Eagle River Park authorized by the Construction Use Agreement are complete; and WHEREAS, prior to the Town’s construction activities at the Eagle River Park, the County asserts that the Eagle County Diversion Structure for the Neilson Pumpback Irrigation Headgate (“Headgate”) received water when river flows were at or above 200 cubic feet per second (c.f.s.), as measured at the United States Geological Survey (USGS) Stream Site 0907000 Eagle River Below Gypsum, CO (“Gypsum Gage”) (“Proper and Historic Headgate Function”); and WHEREAS, the Town’s construction drawings titled “Eagle River Park” by S2O Design and Engineering (“S2O”), dated September 26, 2017 (the “Plans”) included a re-design of the Eagle County Diversion Structure for the Headgate, which included a dry-stack crossvane structure with an attached grade control structure (the “Crossvane Diversion Structure”); and WHEREAS, the Plans called for the Crossvane Diversion Structure to maintain water levels above the Headgate intake pipe for flows above 90 c.f.s., without impacting the 100-year flood plain; and WHEREAS, after construction in 2019, the County reported to the Town that the Headgate did not receive water anytime river flows dropped below 270 c.f.s., as measured at the Gypsum Gage and therefore did not allow for Proper and Historic Headgate Function; and DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 4/30/2021 C21-140 WHEREAS, Eagle County commissioned and paid $55,819.70 for construction work to restore the Crossvane Diversion Structure to the standard set forth in Plans in accordance with S2O’s Repair Plan – including certain additional modifications recommended the design engineer to ensure adequate protection of the Crossvane Diversion Structure and adequate mitigation of hydraulic drops in the interest of reasonable boater safety, described in Exhibit B-1 and Exhibit B-2, attached hereto and incorporated herein by this reference (the “Repair Plan”); WHEREAS, the Town intends to reimburse Eagle County the amount paid for the construction work to restore the Crossvane Diversion structure as described above; WHEREAS, the Crossvane Diversion Structure is located immediately upstream of the Eagle River Park and therefore also serves as the Eagle River entry to the whitewater park, which required the design in the Plans and Repair Plans to consider boater safety; and WHEREAS, in exchange for permission to construct and operate the Eagle River Park on the Premises, the Town commits to defend Eagle County from any claims or liability related to the public recreational use of the Eagle River Park, including the entire Crossvane Diversion Structure; and WHEREAS, the Town further commits to maintain the Crossvane Diversion Structure to maintain Proper and Historic Function of the Headgate, and commits that any maintenance or repair work and/or design will also take into consideration public safety; and WHEREAS, the Parties wish to amend the Use Agreement to set forth the Parties’ expectations regarding repair and ongoing maintenance of the Crossvane Diversion Structure; and WHEREAS, the County informed the Town that certain issues arising from construction and first-season use activities at the Premises impacted the County’s primary uses of its property and created additional costs for the County, and therefore, further planning and cooperation over time will be necessary before the County is prepared to subdivide and convey portion of the Premises to the Town. NOW THEREFORE, in consideration of the terms and covenants stated herein, the sufficiency of which is hereby acknowledged, the Parties agree the Use Agreement shall be amended as follows: 1. Exhibit A to the Use Agreement is hereby replaced with Exhibit A-2, which is attached hereto and incorporated herein by this reference. For the avoidance of any doubt, the term “Premises” in this Agreement shall be construed to include the entire Crossvane Diversion Structure, notwithstanding that some portion of the structure may encroach outside of the Eagle County parcel boundary lines. DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 2. Article I: Use of Premises, Section 1.1 is hereby amended by the addition of subsection (k) as follows: k. The Town shall ensure that its own use and the public’s use of the Premises shall not interfere with the County’s ability to receive water through the Headgate. 3. Article I: Use of Premises, Section 1.2, is hereby deleted and replaced in its entirety as follows: a. The Town shall maintain all responsibilities set forth in Section 1.1 (c), (d), (e), (f), (g), (h) (j) and (k) during the initial and any renewal term(s) of this Agreement. b. The Town acknowledges that the County contracted with S2O and Hobbs Excavating in 2019 to make repairs necessary to restore Crossvane Diversion Structure to its original design and functionality, with additional modifications as set forth in the Plans and Repair Plan, and agrees that such actions do not negate or modify the Town’s commitments under Article IV of the Use Agreement, or its amendments. c. The Town will be responsible, at its sole cost and expense, for all future maintenance of the Crossvane Diversion Structure to address water levels as described herein and/or public safety. The Eagle County Facilities Department must notify the Town’s Public Works Department when the Headgate is not receiving water at times when river flows at the Gypsum Gage read at or above 200 c.f.s. in order for the Town to ascertain if maintenance of the Crossvane Diversion Structure is needed. The Town agrees that all maintenance or repair work required under this Agreement to maintain Proper and Historic Function of the Headgate must be undertaken in a diligent and timely manner, and with reasonable and appropriate consideration of safety. Repair and maintenance work must be completed no later than March 31 of the year immediately following the date the Town is so notified. If the Town fails to so maintain the Crossvane Diversion Structure in accordance with the Plans and the Repair Plans or so that the Headgate receives water at or above 200 c.f.s, shown at the Gypsum Gage, the County may do so and charge the Town for all related costs and expense, which actions will not negate or modify the Town’s commitments under Article IV of the Use Agreement, or its amendments. d. The Town commits to maintaining proper and adequate flows to the Headgate as set forth herein. The Town will coordinate all maintenance work on the Crossvane Diversion Structure with Eagle County Facilities Department before commencing any such work. e. Except where expressly or necessarily modified by the terms of this First Amendment or a duly executed amendment to the Construction Use Agreement, a duly DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 executed amendment to the Construction Use Agreement shall be required prior to any future construction activities on the Premises, including the Parking Area. 4. Article IV: Insurance and Liability of the Use Agreement is hereby deleted and replaced in its entirety as follows: 4.1 The Town assumes all risks associated with its, and the public’s, 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 agrees to indemnify, defend, and hold harmless the County and its commissioners, boards, employees, agents, insurers (as “Indemnitees”) from all claims, losses, liability, costs, or expenses (including reasonable attorney’s fees)(hereinafter collectively referred to as “Claims”) arising out of bodily injury of any person (including death) or property damage, but only to the extent that such Claims in any manner result or arise from its construction, maintenance or use, or the public’s use of the Premises and the Parking Area as the Eagle River Park, as authorized herein. Subject to the ongoing requirements of Sections 4.1 and 4.2, any fiscal or monetary obligations of the Town arising under this Agreement shall always be subject to annual budgeting and appropriation by the governing body of the Town. 4.2 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 any and all claims arising out of the public’s use of the Eagle River Park or occurring at any time 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. Certificates of insurance consistent with the foregoing requirements must be delivered to County upon 5 days of a request therefor. 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, including the Crossvane Diversion Structure and the Parking Area. 4.4 Nothing in this Agreement shall be construed to require the Town to maintain or incur any responsibility for actual operation of the Headgate structure, which contains the gate valve for the irrigation pipe. Eagle County shall maintain all responsibility, to the extent allowed by law, for all aspects of maintenance, operation and use of the Headgate structure. 5. Capitalized terms in this First Amendment will have the same meaning as in the Use Agreement. To the extent that the terms and provisions of the First Amendment conflict with, modify, or supplement portions of the Use Agreement, the terms and provisions contained in this First Amendment shall govern and control the rights and obligations of the Parties. 6. Except as expressly altered, modified and changed in this First Amendment, all terms and provisions of the Use Agreement and exhibits thereto shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 7. This First Amendment shall be binding on the Parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties have executed this First Amendment on the day and year first above written. TOWN OF EAGLE ATTEST: By: _______________________ By:______________________________________ Jenny Rakow, Town Clerk Scott Turnipseed, Mayor ATTEST: COUNTY OF EAGLE, STATE OF COLORADO, by and through its Board of County Commissioners By: _______________________ By: __________________________________ Regina O’Brien Matt Scherr, Chair Clerk to the Board DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 318 McConnell Dr. Lyons, CO, 80540 - 303.819.3985 Proposed Approach S2O recommends that one of our representatives be on site during repair of the diversion structure and grade control as described below. This will enable S2O to provide technical guidance and quality control, in addition to providing an opportunity to ensure that County and Town maintenance personnel have a clear understanding of the design and preferred construction methods. To complete maintenance activities described above, S2O recommends the following process: 1. Salvage displaced boulders below the diversion structure provided they are not part of the roughened riffle design immediately above feature #1. Import additional boulders if necessary. 2. Reconstruct the damaged section of cross-vane to the elevations provided by the original design, utilizing the largest boulders manageable with available equipment (5-6ft minimum diameter recommended). 3. Repair scour pad per design. S2O suggests upsizing material to 24” riprap to reduce potential maintenance to the extent possible. 4. Re-install material upstream of the Cross-Vane which washed through the damaged section. Again, it is suggested that material be upsized to 24” riprap with smaller cobble and alluvial material to fill void space, reducing potential maintenance to the extent possible. 5. Re-construct damaged portions of the grade control immediately downstream of the diversion cross-vane using the largest boulders available and manageable with available equipment (5-6ft minimum diameter recommended) 6. Repair any damage to the maintenance ramp during demobilization of equipment. The attached sketch identifies the repair areas described above and preferred repair. Elevations to restore the diversion structure, grade control and armoring may be found in the permitted construction drawing set. Exhibit B.1DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 Riffle Reconstruction  S2O (Scott Shipley, Riley Adams) participated in an onsite meeting with Hobbs (Stewart Hobbs), Eagle  County (Kevin Sharkey) and NV5 (John Usery) on 3/13/2020 to determine the best approach to  reestablish the riffle between the diversion structure and ERP Feature 1. The foremost concern was that,  due to the amount of bed material removed, a large elevation drop has formed below the grade control  which likely will create a dangerous hydraulic condition at high flows. Priorities discussed during the  meeting included reestablishing design grade through the riffle to eliminate the hazardous condition  and attempt to provide more resiliency to future flood events while importing the least amount of  material possible to keep additional costs low.   It was determined that the best approach was to add an additional partial grade control downstream of  the diversion structure to step grade down gradually, and fill between the two grade controls with 24”  boulder armoring material obtained from Eagle County’s pit. Additionally, 24” boulder armoring material  would be packed in on the downstream side of the added grade control to prevent scour and rebuild the  rock riffle to tie into existing grade upstream of ERP Feature 1. This solution matches the existing design  grades and substrate material while providing more resiliency and reinforcing the diversion structure. A  sketch of the proposed repair is provided below for clarification.  318 McConnell Dr. Lyons, CO, 80540 - 303.819.3985 Exhibit B-2 The following is taken from the S2O memo dated March 18, 2020. It is a summary of the additional work and completed. DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 318 McConnell Dr. Lyons, CO, 80540 - 303.819.3985 Figure 4: Profile Sketch of Post‐Flood Conditions and Proposed Reconstruction at Thalweg  The material received from the Eagle County pit was somewhat smaller than 24”, however it is very  angular, and Hobbs was diligent about tracking the material in well with the excavator. The angular  nature will help to lock the material together better than rounded material and should keep it in place  during high water events.   Figure 5: Hobbs Packing Angular Material in Between Grade Controls  DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3 318 McConnell Dr. Lyons, CO, 80540 - 303.819.3985 Hobbs completed installation of the additional partial grade control and reconstruction of the riffle  between the diversion structure and ERP Feature 1 on 3/17/2020. S2O checked elevations (using same  benchmark as previously described) of the additional grade control to provide a more gradual loss of  elevation leading into the riffle. In some cases visibility was non‐existent in areas covered with water, so  S2O relied on information relayed by Hobbs on location and placement of toe boulders for the cross‐ vane repair, grade control installation and placement of 24” armoring material. Additionally, several  boulders previously placed in the riffle were adjusted based on feedback from members of the local  rafting community. The completed riffle reconstruction successfully restores design elevations,  eliminates a serious safety concern and provides greater resilience to high water events.   Figure 6: Completed Diversion Structure & Riffle Reconstruction  DocuSign Envelope ID: 7A2257E1-A06C-4FDC-A83D-DE28ABA3E5D3