HomeMy WebLinkAboutC07-218 Colorado Department of Transportation_trail licenseBIKE/PEDESTRIAN TRAIL LICENSE
THIS LICENSE, made this day of , 200.1 by and between the State of
Colorado for the use and benefit of THE DEPART NT OF TRANSPORTATION, 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 Highway 131 right-of-way (hereinafter referred to as the
"State's Right of Way") in Wolcott, Colorado as shown the map hereto as attached as Exhibit A,
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 and maintain a bike/pedestrian trail
(hereinafter referred to as the "Trail") within the State's Right of Way, 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
plans attached hereto as Exhibit A (hereinafter referred to as 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 specifically described in the plans and specifications attached
as Exhibit "A", as provided by the Local Agency; and
WHEREAS, the Local Agency intends to enter into an agreement with the developer
(hereinafter the "Developer") of a Planned Unit Development (the "Vines @ Vail PUD") with respect
to payment for the cost of construction and maintenance of the trail in accordance with the Trail
Project, but the Local Agency understands that it will remain fully responsible for compliance with the
terms and conditions of this License ; 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, to be prepared in cooperation
with the Vines at Vail developer, will after review and approval by the State, be 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.
2
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
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.
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 Lessee shall obtain and maintain at all times during the duration of this Lease,
insurance in the following kinds and amounts. The Lessee shall require any Contractor
working for them on the Leased Premise to obtain like coverage.
A. The following insurance requirements must be in effect during the entire term of the
Lease. Lessee shall, at it sole cost and expense, obtain insurance on its inventory,
equipment and all other personal property located on the Leased Premises against loss
resulting from fire, theft or other casualty.
1) Workers' Compensation Insurance as required by state statute, and Employer's Liability
Insurance covering all employees acting within the course and scope of their
employment and work on the activities authorized by this Permit.
2) Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93
or equivalent, covering premises operations, fire damage, independent Consultants,
products and completed operations, blanket contractual liability, personal injury, and
advertising liability with minimum limits as follows:
E
a. $1,000,000 each occurrence;
b. $2,000,000 general aggregate;
c. $2,000,000 products and completed operations aggregate; and
d. $50,000 any one fire.
If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the
Lessee, or as applicable, their Contractor, shall immediately obtain additional insurance
to restore the full aggregate limit and furnish to CDOT a certificate or other document
satisfactory to CDOT showing compliance with this provision.
3) Automobile Liability Insurance covering any auto (including owned, hired and non -
owned autos) with a minimum limit as follows: $1,000,000 each accident combined
single limit.
4) If any operations are anticipated that might in any way result in the creation of a pollution
exposure, Lessee shall also provide Pollution Legal Liability Insurance with minimum
limits of liability of $1,000,000 Each Claim and $1,000,000 Annual Aggregate. CDOT
shall be named as an additional insured to the Pollution Legal Liability policy. The Policy
shall be written on a Claims Made form, with an extended reporting period of at least two
year following finalization of the Lease.
5) Umbrella or Excess Liability Insurance with minimum limits of $1,000,000. This policy
shall become primary in the event the primary Liability Policy limits are impaired or
exhausted.
a) The Policy shall be written on an Occurrence form and shall be following form of the
primary. The following form Excess Liability shall include CDOT as an additional
insured.
b) CDOT shall be named as additional insured on the Commercial General Liability and
Automobile Liability Insurance policies. Coverage required by the Lease will be primary
over any insurance or self-insurance program carried by the State of Colorado.
5
c) The Insurance shall include provisions preventing cancellation or non -renewal without
at least 30 days prior notice to CDOT by certified mail.
d) The insurance policies related to the Lease shall include clauses stating that each
carrier will waive all rights of recovery, under subrogation or otherwise, against CDOT,
its agencies, institutions, organizations, officers, agents, employees and volunteers.
e) All policies evidencing the insurance coverage's required hereunder shall be issued
by insurance companies satisfactory to CDOT.
f) The Lessee, or as applicable, their Contractor, shall provide certificates showing
insurance coverage required by this Lease to CDOT prior to occupation of Leased
Premise. No later than 15 days prior to the expiration date of any such coverage, the
Lessee or Contractor shall deliver to CDOT certificates of insurance evidencing
renewals thereof. At any time during the term of this Lease, CDOT may request in
writing, and the Lessee or Contractor shall thereupon within 10 days supply to CDOT,
evidence satisfactory to CDOT of compliance with the provisions of this section.
g) Notwithstanding subsection A of this section, if the Lessee is a "public entity" within
the meaning of the Colorado Governmental Immunity Act CRS 24-10-101, et sea., as
amended ("Act'), the Lessee shall at all times during the term of this Lease maintain only
such liability insurance, by commercial policy or self-insurance, as is necessary to meet
its liabilities under the Act. Upon request by CDOT, the Lessee shall show proof of such
insurance satisfactory to CDOT. Public entity Lessees are not required to name CDOT
as an Additional Insured. If the Lessee engages a Contractor to act independently from
the Lessee on the leased premise, that Contractor shall be required to provide an
endorsement naming CDOT as an Additional Insured on their Commercial General
Liability, Auto Liability and Umbrella
2
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.
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
7
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
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 CDOT 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.
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 CDOT'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 CDOT's Inspector does not
confer any liability for the work of the Trail Project on CDOT's Inspector or CDOT.
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.
0
Q. 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:
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
10
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
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
11
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
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
12
extent necessary to ensure public safety and to comply with the State's obligations under
the state highway system.
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 sea. 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.
AB. 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.
13
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. All areas disturbed will be restored to CDOT'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 CDOT 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 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 highway 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
14
AF
maintenance responsibilities during the effective time of this license. This Permission to
cross is not a State Highway Access Permit.
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.
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 Pamela Hutton, PE
Chief Engineer
15
ATTEST:
By �-- —z�TTC
Teak Simonton
LICENSEE
0 c'O
-"'Arn M. Menconi
Title: Title:
Clerk of the Board of Chairman, Eagle County Board of County
County Commissioners Commissioners
16
