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HomeMy WebLinkAboutR05-131 Gypsum to Dotsero Phase 1 Trail - avon to dowd phase II trail bridge Commissioner moved adoption of the folJowing resolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. 2005- RESOLUTION APPROVING GYPSUM TO DOTSERO PHASE I TRAIL AND AVON TO DOWD PHASE II TRAIL BRIDGE AGREEMENTS AND AUTHORIZING ANY OF THE EAGLE COUNTY COMMISSIONERS TO EXECUTE ALL NECESSARY DOCUMENTS WHEREAS, in December, 2001, the Board of County Commissioners of Eagle County, Colorado ("Board") adopted the Eagle Valley Regional Trails Plan, that described the route of a planned core trail through the Eagle Valley to connect communities; and WHEREAS, the Eagle County Commissioners, Eagle County staff and appointed citizen trails committee have been working with other local governments, state and federal agencies to implement the plan incrementally; and WHEREAS, licenses, permits and agreements with underlying land owners and management agencies are necessary to initiate further planning and acceptance of grant funds for the Avon to Dowd Phase II Trail Bridge Project and begin construction of the Gypsum to Dotsero Phase I Trail; and WHEREAS, final documents are attached for signatures regarding both projects, including the Colorado Department of Transportation Bike/Pedestrian Trail License for the Avon to Dowd Phase II Trail Bridge Project as Exhibit A, and the Bureau of Land Management Right- of-Way Grant for the Gypsum to Dotsero Phase I Trail as Exhibit B; and WHEREAS, final documents are forthcoming for signatures regarding the State Board of Land Commissioners Right-of-Way for the Avon to Dowd Phase II Trail Bridge Project, and the Colorado Department of Transportation Bike/Pedestrian Trail License for the Gypsum to Dotsero Phase I Trail; and WHEREAS, staff has had an opportunity to review the attached documents and is satisfied with the legal sufficiency of the same; and will review the forthcoming documents to ensure legal sufficiency; and WHEREAS, the Board wishes to ensure that all relevant documents are timely signed by the County to facilitate property use, grant acceptance and project implementation. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO THAT, the Board has been presented with the relevant documents associated with the Avon to Dowd Phase II Trail Bridge Project and the Gypsum to Dotsero Phase I trail. THAT, the Board hereby approves the Bureau of Land Management Right-of-Way Grant for the Gypsum to Dotsero Phase I Trail as Exhibit "A", and the Colorado Department of Transportation BikeIPedestrian Trail License for the Avon to Dowd Phase II Trail Bridge Project as Exhibit "B", in a form identical or substantially similar to that attached hereto. THAT, the Board authorizes the Chairman to execute on its behalf any and all necessary documents, instruments, papers or other forms necessary for the consummation of the Avon to Dowd Phase II Trail Bridge Project and the Gypsum to Dotsero Phase I Trail. Such documents may include, but shall not be limited to, the documents identified herein, power of attorney authorization, easement agreements, license agreements, permits, right-of-way agreements, grant acceptance agreements, as well as any other necessary documents which are required or desirable to implement the two trail projects described. THEREFORE, the Board of County Commissioners finds, determines and declares that this Resolution is necessary for the public health, safety and welfare of the citizens of the County of Eagle, State of Colorado. MOVED, READ AND ADOPTED by the Board of County Commissioners ofthe County of Eagle, State of Colorado, at its regular meeting held this day 2005. COUNTY OF EAGLE, STATE OF COLORADO By and Th ugh its Board of County Comm . s ATT Commissioner seconded adoption ofthe foregoing resolution. The roll having been called, the vote was as follows: Commissioner Am M. Menconi Commissioner Peter Runyon Commissioner Tom C. Stone This Resolution passed by vote ofthe Board of County Commissioners of the County of Eagle, State of Colorado. 2 COC69054, page 1 of 3 Form 2800-14 Issuing Office (August 1985) G1enwood Springs Field Office UNITED STATES DEP ARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT RIGHT -OF- WAY GRANT SERIAL NUMBER COC69054 1. A right-of-way is hereby granted pursuant to Title V of the Federal land Policy and Management Act of October 21, 1976 (90 Stat. 2776; 43 U.S.c. 1761). 2. Nature of Interest: a. By this instrument, the holder: Eagle County ECO Trails Department P.O. Box 1070 Gypsum, Colorado 81637 receives a right to construct, operate, maintain, and terminate a public county trail on public lands described as follows: 6th Principal Meridian T. 4 S., R. 86 W. Section 36; Tract 50A T. 5 S., R. 86 W. Section 1 Tract 50A, Lot 8 And as shown on the attached map in Exhibit A. b. The right-of-way or permit area granted herein is 25 feet wide, 5,280 feet long, and contains 3.03 acres, more or less. c. This instrument shall terminate on December 31, 2034 , unless, prior thereto, it is EXHIBIT .~ ~ b ~ i COC69054, Page 2 of 3 relinquished, abandoned, terminated, or modified pursuant to the terms and conditions of this instrument or of any applicable Federal law or regulation. d. This instrument may be renewed. If renewed, the right-of-way or permit shall be subject to the regulations existing at the time of renewal and any other terms and conditions that the authorized officer deems necessary to protect the public interest e. Notwithstanding the expiration of this instrument or any renewal thereof, early relinquishment, abandonment, or termination, the provisions ofthis instrument, to the extent applicable, shall continue in effect and shall be binding on the holder, its successors, or assigns, until they have fully satisfied the obligations and/or liabilities accruing herein before or on account of the expiration, or prior termination, of the grant 3. Rental: The County of Eagle is exempt from rental payments under current rental policy. 4. Terms and Conditions: a. This grant is issued subject to the holder's compliance with all applicable regulations contained in Title 43 Code of Federal Regulations part 2800, and all other applicable federal, state, and local laws, regulations, and standards. b. Upon grant termination by the authorized officer, all improvements shall be removed from the public lands within 90 days, or otherwise disposed of as provided in paragraph (4)( d) or as directed by the authorized officer. c. Each grant issued for a term of20 years or more shall, at a minimum, be reviewed by the authorized officer at the end of the 20th year and at regular intervals thereafter not to exceed 10 years. Provided, however, that a right-of-way or permit granted herein may be reviewed at any time deemed necessary by the authorized officer. d. The plans, maps, and designs set forth in the Application, the map in Exhibit A, and Special Stipulations and Condition in Exhibit B, attached hereto, are incorporated into and made a part of this grant instrument as fully and effectively as if they were set forth herein in their entirety. e. Failure ofthe holder to comply with applicable law or any provision of this right-of- way grant or permit shall constitute grounds for suspension or termination thereof. f. The holder shall perform all operations in a good and workmanlike manner so as to ensure protection of the environment and the health and safety ofthe public. COC69054, Page 3 of 3 IN WITNESS WHEREOF, The undersigned agrees to the terms and conditions of this right-of-way grant or permit. Signature of Holder Signature of Authorized Officer Title Associate Field Manager (Date) (Effective date of Grant) Legend BLM c::=J Private 0 0125 025 ..,.. Map produced by Bureau of Land Man t \ ISU Grand Junction, Colorado agamont 9 ser\csauvags\trallyubhc 69054 9/8/2005 - mxd '(1- -- ...;~ - I; II --- ,----_../ ~, EXHIBIT B , SPECIAL STIPULATIONS, COC69054, Public Trail 1. The holder shall request a preconstruction conference with the authorized officer at least seven days prior to the commencement of construction under this grant. The contact person is Carlos Sauvage at the Glenwood Springs Field Office, phone (970) 947-2842. One purpose of this conference is to determine if any special conditions will be required to limit environmental damage or insure surface stability and trail drainage. 2. All activities shall be confined to the 25' wide right-of-way corridor. 3. The holder shall promptly remove and dispose in an authorized sanitary landfill, all waste generated by its activities. Waste includes, but is not limited to, human waste, trash, garbage, petroleum products, ashes and equipment. No burning oftrash, brush, or any other material shall be allowed. 4. It is the holders responsibility to coordinate with all other rights-of-way holders and adjacent landowners to make sure any conflicts are resolved both with road improvement and future maintenance. 5. The Glenwood Springs Field Manager will be notified at least 30 days prior to relinquishment or expiration of the ROW grant. The holder shall contact the authorized officer to arrange a joint inspection ofthe ROW. This inspection shall be held to determine if the ROW is in acceptable condition. If it is not, then the holder shall be responsible for returning the ROW to a condition acceptable to the authorized officer. This must be accomplished before relinquishment or expiration of the ROW. 6. The trail width shall be maintained at approximately six to ten feet within an up to 25' disturbed area. The trail surface may be graveled or surfaced (paved) as necessary to maintain adequate surface stability. The holder shall perform all operations in a good and workmanlike manner so as to ensure protection of the environment and the health and safety ofthe public. 7. This grant shall not be assignable without written permission ofthe authorized officer. This Grant may be renewed. If renewed, the Grant shall be subj ect to the regulation existing at the time of renewal and any other terms and conditions that the authorized officer deems necessary to protect the public interest. 8. Cultural Resources, Education/Discovery Stipulation: All persons in the area who are associated with this project must be informed that if anyone is found disturbing historic, archaeological, or scientific resources, including collecting artifacts, the person or persons will be subject to prosecution. Pursuant to 43 CFR 10.4(g), the BLM authorized officer must be notified, by telephone, with written confirmation, immediately upon the discovery of human remains, funerary items, sacred objects, or objects of cultural patrimony. Further, pursuant to 43 CFR lOA (c) and (d), activities must stop in the vicinity of the discovery and the discovery must be protected for 30 days or until notified to proceed by the authorized officer. If in connection with operations under this contract the project proponent, his contractors, subcontractors, or the employees of any of them, discovers, encounters or becomes aware of any objects or sites of cultural or paleontological value or scientific interest such as historic or prehistoric ruins, graves or grave markers, fossils, or artifacts, the proponent shall immediately suspend all operations in the vicinity ofthe cultural or paleontological resource and shall notify the BLM authorized officer ofthe findings (16 U.S.C. 470h-3, 36 CFR 800.112). Operations may resume at the discovery site upon receipt of written instructions and authorization by the authorized officer. Approval to proceed will be based upon evaluation of the resource. Evaluation shall be by a qualified professional selected by the authorized officer from a federal agency insofar as practicable. When not practicable, the holder shall bear the cost of the services of a non-federal professional. Within five working days the authorized officer will inform the holder as to: - whether the materials appear eligible for the National Register of Historic Places; - the mitigation measures the holder will likely have to undertake before the site can be used (assuming in situ preservation is not necessary); and, a time frame for the authorized officer to complete an expedited review under 36 CFR 800.11, or any agreements in lieu thereof, to confirm through the State Historic Preservation Officer that the findings of the authorized officer are correct and the mitigation is appropriate. The proponent may relocate activities to avoid the expense of mitigation and/or the delays associated with this process, as long as the new area has been appropriately cleared of resources and the exposed materials are recorded and stabilized. Otherwise, the proponent will be responsible for mitigation costs. The authorized officer will provide technical and procedural guidelines for the conduct of mitigation. Upon verification from the authorized officer that the required mitigation has been completed, the proponent will then be allowed to resume construction. Antiquities, historic, prehistoric ruins, paleontological or objects of scientific interest that are outside of the authorization boundaries but directly associated with the impacted resource will also be included in this evaluation and/or mitigation. Antiquities, historic, prehistoric ruins, paleontological or objects of scientific interest, identified or unidentified, that are outside of the authorization and not associated with the resource within the authorization will also be protected. Impacts that occur to such resources, that are related to the authorizations activities, will be mitigated at the proponent's cost. 9. The holder shall insure that all construction and maintenance equipment is washed prior to use to insure removal of weed seeds and their potential transfer to the ROW area. The holder shall monitor the ROW for the presence of weeds which are included on the County noxious weed list (the Garfield County or Colorado State A list). After consulting with the authorized officer, the holder shall control weed infestations which have resulted from the holder's construction, operation, maintenance or use of the ROW. If chemical control is necessary, use of pesticides shall comply with the applicable Federal and State laws. Pesticides shall be used only in accordance with their registered uses and within limitations imposed by the Secretary of the Interior. Prior to the use of pesticides, the holder shall obtain from the authorized officer written approval of a plan showing the type and quantity of material to be used, the weed (s) to be controlled, method of application, location of storage and disposal of containers, and any other information deemed necessary by the authorized officer. Emergency use of herbicides shall be approved in writing by the authorized officer prior to such use. 10. The holder shall comply with all applicable Federal laws and regulations existing or hereafter enacted or promulgated. In any event, the holder shall comply with the Toxic Substances Control Act of 1976, as amended (15 D.S.C. 2601 et sea.) with regard to any toxic substances that are used, generated by or stored on the ROW or on facilities authorized under this ROW grant (see 40 CFR, Part 702-799 and especially, provisions on polychlorinated biphenyls, 40 CFR 761.1-761.193). Additionally, any release oftoxic substances (leaks, spills, etc.) in excess of the reportable quantity established by 40 CFR, Part 117 shall be reported as required by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Section 102b. A copy of any report required or requested by any Federal agency or State government as a result of a reportable release or spill of any toxic substances shall be furnished to the authorized officer concurrent with the filing of the reports to the involved Federal agency or State government. The holder shall comply with applicable State standards for public health and safety, environmental protection and siting, construction, operation and maintenance, if these State standards are more stringent than Federal standards for similar projects. Part 117 shall be reported as required by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Section 102b. A copy of any report required or requested by any Federal agency or State government as a result of a reportable release of spill of any toxic substances shall be furnished to the authorized officer concurrent with the filing of the reports to the involved Federal agency or State government. 11. All areas of surface disturbance shall be recontoured to blend with the adjacent natural terrain and shall be hydroseeded with the following seed mixture and application rate: Species of Seed Variety Application Rate (PLS lbs/acre) Western wheatgrass Arriba 8.0 Sandberg bluegrass 2.0 Bluebunch wheatgrass P7 6.0 Total 16.0 Ibs PLS/acre Application rates are for pure, live seed (PLS). There shall be no primary or secondary noxious weed seed in the seed mixture. Seed shall be tested and the viability testing of seed shall be done in accordance with State law(s) and within nine months prior to purchase. Commercial seed shall be either certified or registered seed. The seed mixture containers shall be tagged in accordance with State law(s) and available for inspection by the authorized officer. The disturbed area will be considered satisfactorily reclaimed when: A. Soil erosion resulting from the operation has been stabilized. B. Vegetative canopy cover equal to or greater than that present prior to disturbance is established, and all species in the seed mix are present in more than trace amounts. C. No noxious weeds occupy the disturbed areas. Additional reclamation actions, including reseeding, may be required until these conditions are satisfied. 12. Signs, boulders or other vehicle barriers shall be placed as needed to deter motor vehicle use on or along the trail route. BIKE/PEDESTRIAN TRAIL LICENSE THIS LICENSE, made this day of , 200_ by and between the State of Colorado for the use and benefit of THE DEPARTMENT 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 property as shown on the map attached as Exhibit A, hereinafter referred to as the "State's Right of Way" 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 to Dowd Phase II Trail Bridge Project Improvements and as a connecting trail link alongside 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 EXHIBIT ~ :is D i!l 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 eventthe 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. S 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. 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: 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. 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 seNants 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 reseNed 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 seNices 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 Dowd Phase II 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 By Title Title 15 -~~~ () :-= z~ it ~, w:8. ~m CI~ Zp w s, ~ I!! >- --"'~~""'''''=''' ~"'''' % ~~ "'-""""""""" v~ llD .~, ~ ~ ~ ~ ~ SHEET 20F'2 P:\EC002003\dwg\Xref\phase2pathbase.dwg, 10/20120055:25:14 PM, XFILES - ./ / { / // ~il;f f /1 /! H . PROPOSED ECO- TRAIL BRIDGE EXHIBIT ~ SCALE 1" . 3000' i III Iii I Bea_ Creek ~ i VICINITY MAP 1 :! :! ! ~ ~ I I I ~ ~ HOTE: AU. lNFtmlATlOH IN lHIS EXHtBfT WAS OBTAIN[{) fltOt.4 SHEET (AQ.E COUNTY QS WAPfltNG OEPAATWEHT. THIS E>OifBlT IS NOT 1OF2 ~ LN<<l SlJRIEY OR 80UIClAAY WAP AND IS PROWlfO FOR 1Nf000~n(Jj PURPOSES ONlY. P:\ECOO2003\dwg\Xref\phase2pathbase.dwg, 10/20120055:22:05 PM, XFILES