HomeMy WebLinkAboutC05-331 CDOT
BIKE/PEDESTRIAN TRAIL LICENSE
THIS LICENSE, made this day of ~_ , 20C~,_ by and between the State of
Colorado for the use and benefit of THE DEPARTMENT OF TRJ\NSPORTATION, hereinafter
referred to as the "State", and County Commissioners, Eagle County, hereinafter referred to as the
"Local Agency",
WHEREAS, required approval, clearance and coordination has been accomplished from and
with the appropriate agencies; and
WHEREAS, the State owns certain property as shown on the map attached as Exhibit A,
hereinafter referred to as the "State's Right of Wpy" which is used for Interstate 70 (1-70) and
Highway 6 right of way; and
WHEREAS, the Local Agency has planned and anticipates a project for the construction
appurtenances to a non-motorized trail, as defined by Section 33-11-103(4), C.R.S., as amended;
and
WHEREAS, the Local Agency desires to construct a bike/pedestrian bridge within the State's
Right of Way (the "path") as part of the Avon topowdPhase II Trail Bridge
Project Improvements and as a connecting trail link alongsid.e and between the Highway 6 concrete
barrier and the Eagle River; and
WHEREAS, the Local Agency has requested permission to construct the path to allow for
non-motorized trail traffic to enter, occupy, and then exit the State's Right of Way as shown on the
attached plans ("the Trail Project"); and
WHEREAS, the State desires to allow the Local Agency to use the State's Right of Way for
construction and use of a trail, as described herein, subject to the terms and conditions of this
contract; and
WHEREAS, the Local Agency recognizes that the State must retain the superior right to use
the State's Right of Way for highway purposes, and the Local Agency desires to agree to relinquish
the use of such right of way without any cost or liability to the State, pursuant to the terms of this
contract; and
WHEREAS, the Trail Project is to be specifically described in the plans and specifications
("the Plans"), which Plans shall be provided by the Local Agency; and
WHEREAS, the Local Agency desires to pay for the cost of the Trail Project; and
WHEREAS, the State desires to review the design and construction of the proposed Trail
Project to ensure the integrity of the State's right of way in the project area; and
WHEREAS, the State and Local Agency consider it to be in their mutual interest to cooperate
in and to agree upon certain responsibilities with regard to performance of the Trail Project; and
WHEREAS, this contract is executed by the State pursuant to the provision of Sections
43-2-103 and 43-2-144, C.R.S., as amended; and
WHEREAS, the Local Agency has executed this contract under the appropriate authority.
NOW, THEREFORE, it is hereby agreed that:
A. The Local Agency shall be responsible for the preparation of the Plans and for the
accuracy and completeness of the Plans. The Plans are made a part of this contract by
this reference. Use of the trail will be limited to bicycles, pedestrians, wheelchairs, and
other non-motorized users. No motorized vehicle use will be permitted, with the
exception of motorized vehicles necessary for maintenance of the trail, motorized
wheelchairs, and emergency vehicles and emergency access.
B. The Local Agency shall be responsible for the construction of the Trail Project in
accordance with the Plans and intends to retain an independent contractor (the
"Contractor") to construct the Project. The Local Agency shall administer and provide
technical direction to the Contractor concerning such construction, as provided herein.
C. The State shall review the Plans for the Trail Project, the Local Agency's contract with
the Contractor, and review construction of the Trail Project as described herein, so that
2
construction of the Trail Project by the Local Agency will meet Federal and State
standards, the provisions of this contract and the Local Agency's construction contract.
D. The Local Agency shall be solely responsible for all costs of the Trail Project including,
but not limited to, costs of design and construction of the Trail Project.
E. The Local Agency shall be solely responsible for any and all damage to the State's
roadway, structures and/or associated facilities caused by the construction, operation,
or maintenance of the Trail Project within the State's Right of Way, except for damage
caused by the State or its agents. Any such damage shall be corrected in accordance
with the State's standards at the Local Agency's sole expense.
F. The Local Agency shall be solely responsible and liable for any and all claims,
damages, liability and court awards including costs, expenses and attorney fees, which
arise as a result of the acts of its employees or agents or their acts of omission, if any,
in constructing, operating, or maintenance of the Trail Project within the State's Right of
Way. Nothing in this contract shall be construed as a waiver by the State or the Local
Agency of the provisions and protections of the Colorado Governmental Immunity Act,
Section 24-10-101, et seq., C.R.S., as now enacted or hereafter amended.
G. The State will provide liaison with the Local Agency through the State Region
Transportation Director, Region 3, located at 222 South 6th Street, Grand Junction,
Colorado 81501. Said Region Transportation Director is responsible for coordinating
the State's activities under this contract.
H. The Local Agency will provide:
1. Preliminary engineering, design services and preparation of construction plans, and
special provisions.
2. Design worksheets used in design of the Trail Project.
I. The Local Agency will comply with the following:
1. The Local Agency will be responsible for the plans being accurate and complete.
3
2. Notwithstanding any review or consents given by the State for said plans or the
performance by the State of the construction review services, the State will not be liable
or responsible in any manner for the design details, or construction of the Trail Project.
J. The State will review The Local Agency's construction plans and special provisions and
indicate those changes necessary to assure compliance with State and FHWA
requirements. The Local Agency will afford the State 30 business days to review the
construction plans and special provisions as changed and said plans shall be
considered final when accepted by the parties hereto. In the event the State does not
object to the construction plans and special provisions within 30 business days after the
date of mailing by the Local Agency, the construction plans and special provisions shall
be deemed accepted by the State.
K. The Local Agency shall not start construction of the Trail Project on State Right of Way,
nor authorize the Contractor to start construction, until the State issues a written notice
to proceed to the Local Agency, which notice shall not be unreasonably withheld or
unduly delayed. In the event the Local Agency contracts for construction of the Trail
Project, the Local Agency shall provide final assembly of construction contract
documents, advertise the call for bids, receive and open bid proposals, award the
construction contract, administer the construction contract and prepare and issue any
contract amendments. All such documents and procedures, including award of the
construction contract, shall substantially comply with standard State construction
specifications and legal requirements and shall be subject to review by the State. The
construction contract between the Local Agency and the Contractor shall be subject to
prompt review and concurrence by the State, which concurrence shall be evidenced by
a letter from the Region Transportation Director. In the event the State does not object to
the construction contract within 10 business days after the date of mailing by the Local
Agency, the construction contract shall be deemed accepted by the State. Such
4
construction contract between the Local Agency and the Contractor shall contain
provisions to protect the interests of the State, including, but not limited to:
a. The Local Agency shall procure from the Contractor certificates of insurance and
shall deliver copies of the same directly to the State. The types and limits of insurance
shall be at a minimum as follows:
(1) Worker's Compensation Insurance in accordance with prevailing laws.
(2) Comprehensive general liability $600,000 combined single limit bodily injury and
property damage, each occurrence; $2,000,000 annual aggregate. If said aggregate
is reduced by claim payments or otherwise exhausted, the Contractor shall
immediately purchase additional aggregate limits for the remainder of the Contract
and furnish certificates of such insurance to the Local Agency and the State.
(3) Automobile liability $600,000 combined single limit bodily injury and property
damage, each accident.
Policies (2) and (3) enumerated above shall name the Local Agency and the State as
additional insured.
b. To the extent authorized by law, the Contractor shall indemnify, save and hold
harmless the State and the Local Agency, their employees and agents, against any and
all claims, damages, liability, and court awards including costs, expenses, and attorney
fees incurred as a result of any act or omission by the Contractor, or its employees,
agents, subcontractors, or assignees pursuant to the terms of this contract.
L. The State hereby grants a license to the Local Agency to use a section of the State's
Right of Way as described in Exhibit A, attached hereto and made a part hereof. The
sole purpose of the license is for the construction and maintenance of a recreational trail
to allow for non-motorized traffic (as defined in paragraph A of this License) to enter State
Right of Way, travel within State Right of Way as shown on the Plans, and then exit the
State's Right of Way.
5
M. The Local Agency recognizes that the State must retain the superior right to use the
State's Right of Way for highway purposes and that the Local Agency's use of the State
Right of Way, as described in Exhibit A, is at all times subordinate to and subject to any
and all current and future roadway operations, maintenance and State highway needs
and purposes, as determined by the State in its sole discretion. The Local Agency
agrees that this license is limited in scope, use, and time, as described herein. The
license granted herein is a personal right of the Local Agency, and vests no property
interest in the State Right of Way to the Local Agency. The Local Agency agrees that
this license is revocable by the State at no expense to the State pursuant to the following
provisions:
a) The State may revoke this license, and the Local Agency shall relinquish all use of
the State Right of Way without any cost or liability to the State whenever the State, in its
sole discretion, determines that the State Right of Way is required for any emergency
state highway purpose. The State has the right, if it determines that an emergency
situation exists, to terminate this license, to stop construction of the Trail Project, or to
close the Trail Project, at any time to protect public safety, to facilitate transportation
activities, or for other highway purposes.
b) In non-emergency situations, the State may revoke this license and, in that event,
the Local Agency shall relinquish the use of the State Right of Way without any cost or
liability to the State within 180 days after receipt of written notice from the State that such
right-of-way is needed for current or future roadway operations, maintenance, or other
State highway needs and purposes.
N. The Local Agency will be responsible for acquiring any additional rights of way required
for the completion of the Trail Project, including any necessary construction easements.
Any additional right of way must be acquired in accordance with current Federal Highway
6
Administration directives and State Law requirements. Specifically the Federal Uniform
Relocation Assistance and Real Property Acquisition Policies Act and all relevant
regulations promulgated thereto, Colorado revised Statues 24-56-101 through 121, Real
Property Acquisition policies and the COOT Right of Way Manual. Prior to the
commencement of construction, the Local Agency must certify in writing to the State that
all additional right of way has been secured accordingly or that no additional right of way
is required.
O. The Local Agency shall obtain any required proper clearance or approval from any utility
company or ditch company, which may become involved in this project, by separate
agreement between the Local Agency and such other entity, if necessary, as determined
by the Local Agency. Prior to the Trail Project being advertised for bids, the Local
Agency must certify in writing to the State that all such necessary clearances have been
obtained.
P. For the Trail Project:
1. a. The State will review and inspect the construction of the Trail Project within or
affecting State Right of Way to ensure that it meets Federal and State standards and the
Plans.
1. b. Except for emergencies, or in the event an immediate threat to public safety
exists, the State's Inspector will not have direct contact with the Contractor but will notify
the Local Agency's Project Representative, as identified in the construction contract
documents, of any State directions concerning proposed construction contract
modifications, and will coordinate such modifications and its construction review services
with the Local Agency. After consultation of the State's Inspector and the Local Agency's
Project Representative, the State's directions will be implemented. In the event that the
Local Agency project representative fails to concur in any State construction direction,
then the matter will be referred to the State's Region 3 Program Engineer for resolution.
7
1. c. The State's Inspector may, in writing, suspend the construction of those portions
of the Trail Project within or affecting State Right of Way, wholly or in part due to the
failure of the Local Agency or the Contractor to correct conditions unsafe for the workmen
or the general public; for failure to carry out provisions of this contract or the construction
contract including construction modifications or directions required by the State; for such
periods as the State's Inspector may deem necessary due to unsuitable weather; for
conditions considered unsuitable for the prosecution of the work or for any other condition
or reason deemed to be in the public interest. The State shall notify the Local Agency
and provide opportunity to correct such conditions prior to any suspension. The Local
Agency shall include this provision in its contract with the Contractor.
1. d. The inspections done by COOT's Inspector shall only be visual, and does not
constitute an acceptance of the workmanship or materials used in the work done by the
Local Agency's contractor on the Trail Project. Inspection by COOT's Inspector does not
confer any liability for the work of the Trail Project on COOT's Inspector or COOT.
2. a. The Local Agency shall provide construction engineering during the
construction of all elements of the Trail Project. Said construction engineering will
include field and office engineering, land survey controls, inspection and material testing
and control by qualified personnel.
2. b. The Local Agency shall be responsible for the administration of and payment to
its contractor of all costs incurred for project construction under the construction contract
with the Contractor.
O. Upon satisfactory completion of construction of the Trail Project, the Local Agency will
issue to the State a Certificate of Final Completion showing the date of final completion
and certifying that the Trail Project has been constructed according to the approved
plans and specifications. Determination of satisfactory completion of the Trail Project
shall be made by the State in accordance with the following procedures:
8
1. Upon due notice from the Local Agency's project representative of presumptive
completion of the Trail Project, the State's Inspector will participate in an inspection of
the Trail Project with the Local Agency and the Contractor.
2. If construction of those portions of the Trail Project, within or affecting State Right
of Way is found completed to the satisfaction of the State's Inspector, that inspection
shall constitute the final inspection and the State's Inspector will notify the Local Agency
in writing of the State's acceptance of the Trail Project as of the date of the final
inspection.
3. If the inspection discloses any work, in whole or in part as being unsatisfactory,
the State's Inspector will give the Local Agency directions for correction of same, and
the Local Agency shall direct its contractor to implement the State's directions subject to
the provisions of paragraph P.1.b. of this contract.
4. Upon correction of the work, another inspection will be made which shall
constitute the final inspection provided the work has been satisfactorily completed. In
such event, the State's Inspector will notify the Local Agency in writing of the State's
acceptance of the Trail Project as of the date of the final inspection.
5. Final acceptance by the State under this paragraph does not waive any State
legal rights contained herein.
R. The State shall not be precluded or estopped by acceptance of the Trail Project work
from showing at a later time that the Project work as constructed does not in fact
conform to the approved as-built Plans. The State shall not be precluded or estopped
by acceptance of the Trail Project work from recovering from the Local Agency such
damage as the State may sustain by reason of the Local Agency's failure to comply with
the terms of this contract. Neither acceptance by the State of the Trail Project work nor
any possession of the constructed Trail Project facilities by the State, shall operate as a
waiver of any portion of this contract or of any power herein reserved, or of any right to
9
damages. A waiver of any breach of this contract shall not be held to be a waiver of any
other or subsequent breach.
S. Within 120 days after Local Agency issuance and State acceptance of the Certificate of
Final Completion, the Local Agency shall prepare and deliver to the State the final sets of
plans and specifications (the "As-built" plans) for the Trail Project, based upon field notes
maintained by the Local Agency. A copy of said plans shall be made a part of this
contract by reference.
T. The Local Agency will maintain and operate the improvements constructed under this
contract, at its own cost and expense during their useful life. The Local Agency
covenants that it will annually request sufficient funding for maintenance of such
improvements but if denied the Trail will be removed at licensee's expense. The Local
Agency shall be responsible for mowing weeds and grasses in those areas, between the
Trail and the edge of the State's Right of Way where such mowing needs to be
performed by walking lawn mower, rather than a tractor-type lawn mower. The parties
shall meet to determine the location of these areas. Such maintenance and operations
shall be in accordance with all applicable statutes and ordinances, and regulations
promulgated thereunder, which define the Local Agency's obligation to maintain such
improvements. The State may make periodic inspections of the Trail Project to verify that
such improvements are being adequately maintained with respect to protection of the
State's Right of Way. In the event that the Trail Project is not maintained in an
appropriate manner, as determined by the State, the State reserves the right to notify the
Local Agency, and if such maintenance remains deficient for a period of thirty (30) days
after such written notice, to perform maintenance actions deemed necessary by the State
and to be reimbursed by the Local Agency for the costs of such maintenance actions.
Additionally, if at any time the Trail Project is determined to be obsolete, unnecessary, or
a threat to the safety of the traveling public, the parties hereto shall immediately negotiate
10
the most appropriate and mutually desirable course for removing or covering the trail.
The Local Agency shall be responsible for the cost of any such removal or coverage.
U. In the event the portion of State highway adjacent to or over the improvements
constructed under the Trail Project is widened, the Local Agency shall take all reasonable
actions to provide the funding necessary for any required relocation or reconstruction of
the trail. The State will provide the Local Agency the opportunity to review and comment
on State plans for widening.
V. The State hereby reserves the right to revoke the use of State Right of Way by the Local
Agency in the event the Trail Project is not used as intended or if the Trail Project is
found to be detrimental to the highway or its structures.
W. Notwithstanding any review and concurrence with the Trail Project design plans or
acceptance of the final constructed Trail Project, the State shall not have any liability for
the construction, maintenance, or use of the Trail Project or for any act or omission by the
Local Agency or the Contractor.
X. The parties hereto agree that this contract is contingent upon all funds designated for the
work herein being appropriated and made available from the Local Agency. Should the
Local Agency fail to provide necessary funds as agreed upon herein, this contract may be
terminated by either party. Any party terminating its interest and obligation herein shall
not be relieved of any financial obligations which existed prior to the effective date of
such termination. After the construction contract has been awarded and the construction
contract is fully executed, this contract may not be terminated by the Local Agency until
the construction of the Trail Project is completed and final bills are paid in full, unless the
Local Agency restores the project site to its prior condition or completes the Project to the
extent necessary to ensure public safety and to comply with the State's obligations under
the state highway system.
11
y. The term of this contract, except for provisions regarding maintenance, shall continue
through the completion and final acceptance of the Trail Project by the local Agency with
concurrence from the State. The covenants with regard to maintenance of the
improvements constructed under this contract shall remain in effect in perpetuity or until
such time as the local Agency is, by law or otherwise, relieved of such responsibility.
Z. As between the parties hereto, each of them shall be responsible for its own negligence, if
any, and that of its servants and employees, consistent with the provisions of the
Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seQ. Nothing in this
Agreement shall be construed as a waiver by the State or the local Agency of the
respective rights and protections of either under said Act.
AA. This contract shall inure to the benefit of and be binding upon the parties, their
successors and assigns.
AS. The term of this license shall be for a period of twenty five (25) years from the date first
written above. The license shall be deemed fully executed when it has been signed by
the State.
AC. The local Agency represents and warrants that it has taken all actions that are
necessary or that are required by its procedures, bylaws, or applicable law, to legally
authorize the undersigned signatory to execute this contract on behalf of the local
Agency and to bind the local Agency to its terms.
AD. The enforcement of the terms and conditions of this Agreement and all rights of actions
relating to such enforcement, shall be strictly reserved to the Local Agency and the State
and nothing contained in this agreement shall give or allow any claim or right of action
whatsoever by any other or third person. It is the express intent of the parties to this
contract that any person receiving services or benefits under this Agreement shall be
deemed an incidental beneficiary only.
12
AE. Permission to cross over the access control line (a-line) of the Colorado
Department of Transportation FOR THE PURPOSE OF the Trail Project within
the interstate right of way known as Avon to Oowd Phase /I Trail Bridge Project
the Local Agency's Project Number
The Local Agency, in accepting this license agrees to all terms and conditions stated herein.
The use of equipment on the Property and adjacent frontage road areas is subject to a
Department approved traffic control plan. A temporary fence or other access control barrier
must be erected during all times that work is not taking place. No equipment shall be left in
the interstate right of way overnight or unattended, except for the erosion control and
temporary barrier fencing. All areas disturbed will be restored to COOT's satisfaction
including stockpiling of existing topsoil to be replaced at the completion of the project, finish
grading to restore proper drainage, re-seeding, application of certified weed-free mulch,
application of an organic mulch tackifier, and the removal of all appurtenances required to
support the operation of the contractor. Ingress and egress to the parcel being re-graded is
limited to access from the local road only. No ingress or egress from or to the parcel will be
allowed from main lanes or shoulder areas of the road..
This agreement constitutes a bare license, conferring no enforceable right on Local Agency
and creating no property interest. It is a mere personal privilege, non-transferable and
revocable at will. This non-transferable permission shall be valid and remain in effect from
to , or until the conditions are met
in full as determined by a COOT representative. This permission may be terminated earlier
in writing by either party. This permission shall not be considered a commitment by State nor
in any way authorizes or guarantees any continuing use of the Property. State Agency
assumes liability for the maintenance, operation, and use of both the temporary access and
13
the re-grading area and agrees to defend, indemnify, and hold harmless the grantor and any
employees, agents contractors, or other representatives of the State against any and all
damages, claims, liability, loss, or expenses, including attorney's fees and litigation costs,
arising from or in any way related to the maintenance, operation, or use of the access or the
issuance or use of this license. Upon the expiration or cancellation of the license, the Local
Agency shall close the access to the interstate right of way and restore the highway property
to the satisfaction of the State. This permission to cross the A-line automatically expires
when, and if; the State Agency ceases as an organization or fails to perform the above
maintenance responsibilities during the effective time of this license. This Permission to
cross is not a State Highway Access Permit.
AF. The State and the Local Agency affirm and agree that periodic closures of the pathway may
be made necessary on a seasonal basis due to weather conditions or maintenance activities,
and that the trail is not intended to be provided with routine winter maintenance. Such
closures shall be initiated by the Region 3 Transportation Director in consultation with the
Local Agency. Further, the State and the Local Agency agree that where extraordinary
circumstances require the closure of the trail (acts of God and Nature, accidents and
emergencies, structural failure of the adjacent highway or the trail itself, or similar such
incidents), the parties hereto shall close the trail for an appropriate period of time until
restoration activities are complete or safety conditions assured, as negotiated between the
parties at that time.
14
IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year
first above written.
Department of Transportation
State of Colorado
ATTEST:
By By:
Chief Clerk for Right of Way Craig Siracusa, PE
Chief Engineer
LICENSEE
ATTEST:
-
By
Title ~5~ Title c_ \~, C,"A.- _, .{L ~ <'::r,- ;/"""~'1
15
_U~.
-'~
. l? :-!
z~
,0. 5 ,:
wm
' ~fIJ;
, l?r!
'A Z Ji-
WU.
~
iii ~-
rf
,.
..
r
.--."
i
II &! ~ ~
~
I I I ~
~
SHEET
20F'2
P:\EC002003\dwg\Xref\phase2palhbase.dwg, 10120120055:25:14 PM. XfIlES
.,~{;f/~ ;1 //
u
PROPOSED ECO- TRAIL BRIDGE EXHIBIT ~~M
~li
SCALE 1" . 3000'
0r
z .
w ,
\/Ilage at A_ ~
bl
~
..
..
!
lltIa_ Creek ~
i
VICINITY MAP i
~ ~ ! ~
~
, II *
j!!
~
NOTE: AU. fNFORWA1104 IN lHlS E>>tI8lT W/4S OSTAJNEO f'ftOt.4 SHEET
EAG1.E CaJHl'Y GtS WAPPttG O(f'AAl\t(N.T. 1lf.S OMl8lT IS HOT 1OF2
A lAND SURIa OR BOlJHOARY WAP AND IS PllO"Dal FOR
1Nf0000AlKiN PlJRPOSES ONlY.
P:\ECOO2DD3\dwglXteflphase2pathbase.dwg, 10120120055:22:05 PM, XFILES
