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03-13-2006 STATE OF COLORADO DEPT OF TRANSPORTATION BIKE PEDESTRIAN TRAIL LICENSE - BIKE TRAIL RIGHT OF WAY LICENSE FOR ACCESS FOR CONSTRUCTION OF THE BIKE PATHSTLATIE OF COLORADO DEPARTMENT OF TRANSPORTATION Region 3 Right-Of-Way 222 South Sixth Street, Room 317 Grand Junction, Colorado 81 SO1-2769 (970) 248-7232 FAX# (970) 248-7233 March 13, 2006 Town of Avon Attn: Norman Wood 400 Benchmark Road Avon, CO 81620 Dear Norman, Please find enclosed the completed license for Swift Gulch Bike Path Extension. I am sorry about the delay. I sent it next day air to speed it up. If there is anything else that I can help you with, just let me know. My phone number is 970-248-7232. Sincerely, Ellen Stull Administrative Assistant III BIKE/PEDESTRIAN TRAIL LICENSE THIS LICENSE, made this day of 2006 by and between the State of Colorado for the use and benefit of THE DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "State", and Town of Avon, Eagle County, Colorado, 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 maps attached as Exhibits A and B, hereinafter referred to as the "State's Right of Way" which is used fo, Interstate 70 (1-70) and Avon Road right of way ("Property"); and WHEREAS, the Local Agency has planned and anticipates a project for the construction appurtenant 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 path (hereinafter referred to as "the trail") within the State's Right of Way as part of the Swift Gulch Bike Path Extension project (hereinafter referred to as "the Trail Project") as a connecting trail link between the existing Nottingham Road Bike Path and the proposed extension of Swift Gulch Bike Path on Lot 2, Swift Gulch Addition and Tract Y, Block 1, Benchmark at Beaver Creek, which are Town properties, between Interstate 70 to the south, Avon Road to the west, and Swift Gulch Road to the north; and WHEREAS, the Local Agency has requested permission to construct the trail 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 License; 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 YJ the use of such right of way without any cost or liability to the State, pursuant to the terms of this License; 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 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 License 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 License 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 License 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 and the existing utilities, 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 Trail 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 construction of the Trail Project as described herein, so that V construction of the Trail Project by the Local Agency will meet Federal and State standards, the provisions of this License 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 or omissions of its employees or agents, if any, in constructing, operating, or maintenance of the Trail Project within the State's Right of Way. Nothing in this License 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 6'h Street, Grand Junction, Colorado 81501. Said Region Transportation Director is responsible for coordinating the State's activities under this License. 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. 1. The Local Agency will comply with the following: 1. The Local Agency will be responsible for the plans being accurate and complete. 3 6 2. Notwithstanding any review or consents given by the State for said plans or the performance by the State of construction review services, the State will not be liable or responsible in any manner for the design details, or construction of the Trail Project. 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: 1. 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: (a) Worker's Compensation Insurance in accordance with prevailing laws. (b) 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. (c) Automobile liability $600,000 combined single limit bodily injury and property damage, each accident. Policies (b) and (c) enumerated above shall name the Local Agency and the State as additional insured. 2. 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 License. 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 Exhibits A and B, 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 Exhibits A and B, 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: 1. 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. 2. 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 \0 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 Statutes 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 rights of way have been secured accordingly or that no additional right of way is required. 0. 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. (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 (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 License 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. (d) The inspections done by CDOT's Inspector shall only be visual, and shall 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 shall 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. (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 ~V 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 License. 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 License. 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 License 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 License by reference. T. The Local Agency will maintain and operate the improvements constructed under this License, 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 1~ 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 License 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 License 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 License 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. Y The term of this License, 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 License 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 se q. Nothing in this License 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 License shall inure to the benefit of and be binding upon the parties, their successors and assigns. AB. This 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 License 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 License 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 License 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 License that any person receiving services or benefits under this License shall be deemed an incidental beneficiary only. AE. This License is permission to cross over the access control line (a-line) of the Colorado Department of Transportation FOR THE PURPOSE OF constructing, maintaining and using the Trail Project within the interstate right of way (known as 12 Swift Gulch Bike Path Extension or the Local Agency's Project Number CIP 34010) 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 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 Avon Road or Interstate 70. This License 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 in accordance with the terms hereof. This non- transferable permission shall be valid and remain in effect from the date of execution until terminated in writing by either party in accordance with the terms hereof. This permission shall not be considered a commitment by State nor in any way authorizes or guarantees any continuing use of the Property. Local Agency assumes liability for the maintenance, operation, and use of both the temporary 13 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, subject to the Colorado Governmental Immunity Act Upon termination of this License, the Local Agency shall close the access to the interstate right of way and restore the Property to the satisfaction of the State. This permission to cross the A- line automatically expires when, and if, the Local Agency ceases as an organization or fails to perform the above maintenance responsibilities during the effective time of this License. This License is not a State Highway Access Permit. AF. The State and the Local Agency affirm and agree that periodic closures of the trail may be made necessary on a seasonal basis due to weather conditions or maintenance activities, and that the trail is not necessarily 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 safe conditions assured, as negotiated between the parties at that time. IN WITNESS WHEREOF, the parties hereto have executed this License the day and year first above written. 14 Department of Transportation State of Colorado ATTEST: fiief Clerk for Right of Way Craig iracusa, PE Chief Ingineer LICENSEE ATTEST: By Title Title Im~~ti'=C~d k ! 15 I CID IN O 0 A a o ~ o , ~ N `111.11! i`}• C►~p OJ Q:~~~mV Za poi (I_ ~ of O . ~r tD~ h ,4 ~O ~h 2 ON 3 A z bhN^=~h A II II N II ~JOA~V ~ 1 0 ~m LAJ N Qi V O r 2 o m t ~ 2 W W o a0 :3 FA w z O J X o °a w Q ° T J O V Z a ~ LAJ z Q Y U z m 5 O _ 0 U -j Lj W Q ° ° a W w 0 CL N n W Y W tp~ $ a~bSEa$a C?~Q ySaC !I W. a s IM <6.11a6° 3 t~S6. is a all: x~Z 0 Q OR A II CIL v~ / ON~a ~LLJO of cp ^ 0 uj 0 N ~ ~ II r~ j CIC ,a L U OOa1 I te N ~ V: O uj ni .a ^v,Ncoo~, C, a O„ A ~m N 2 e~ ~W O. 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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 License 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 and the existing utilities, 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 Trail 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 construction of the Trail Project as described herein, so that 2 Y construction of the Trail Project by the Local Agency will meet Federal and State standards, the provisions of this License 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 or omissions of its employees or agents, if any, in constructing, operating, or maintenance of the Trail Project within the State's Right of Way. Nothing in this License 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 6'h Street, Grand Junction, Colorado 81501. Said Region Transportation Director is responsible for coordinating the State's activities under this License. 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. 1. 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 construction review services, the State will not be liable or responsible in any manner for the design details, or construction of the Trail Project. 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: 1. 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: (a) Worker's Compensation Insurance in accordance with prevailing laws. (b) 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. (c) Automobile liability $600,000 combined single limit bodily injury and property damage, each accident. Policies (b) and (c) enumerated above shall name the Local Agency and the State as additional insured. 2. 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 License. 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 Exhibits A and B, 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. q 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 Exhibits A and B, 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: 1. 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. 2. 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 \0 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 Statutes 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 rights of way have been secured accordingly or that no additional right of way is required. 0. 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. (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 (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 License 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. (d) The inspections done by CDOT's Inspector shall only be visual, and shall 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 shall 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. (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 Ov 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 License. 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 License. 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 License 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 License by reference. T. The Local Agency will maintain and operate the improvements constructed under this License, 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 9 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 \k 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 License 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 License 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 License 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. Y The term of this License, 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 License 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 License 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 License shall inure to the benefit of and be binding upon the parties, their successors and assigns. AB. This 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 License 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 License 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 License 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 License that any person receiving services or benefits under this License shall be deemed an incidental beneficiary only. AE. This License is permission to cross over the access control line (a-line) of the Colorado Department of Transportation FOR THE PURPOSE OF constructing, maintaining and using the Trail Project within the interstate right of way (known as 12 Swift Gulch Bike Path Extension or the Local Agency's Project Number CIP 34010). 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 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 Avon Road or Interstate 70. This License 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 in accordance with the terms hereof. This non- transferable permission shall be valid and remain in effect from the date of execution until terminated in writing by either party in accordance with the terms hereof. This permission shall not be considered a commitment by State nor in any way authorizes or guarantees any continuing use of the Property. Local Agency assumes liability for the maintenance, operation, and use of both the temporary 13 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, subject to the Colorado Governmental Immunity Act Upon termination of this License, the Local Agency shall close the access to the interstate right of way and restore the Property to the satisfaction of the State. This permission to cross the A- line automatically expires when, and if, the Local Agency ceases as an organization or fails to perform the above maintenance responsibilities during the effective time of this License. This License is not a State Highway Access Permit. AF. The State and the Local Agency affirm and agree that periodic closures of the trail may be made necessary on a seasonal basis due to weather conditions or maintenance activities, and that the trail is not necessarily 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 safe conditions assured, as negotiated between the parties at that time. IN WITNESS WHEREOF, the parties hereto have executed this License the day and year first above written. 14 Department of Transportation State of Colorado ATTEST: -6y Y: hief Clerk for Right of Way Craig iracusa, PE Chief lingineer LICENSEE 'Z , ATTEST: B G Y / 21-d Title Dy a . Title 15 ' m o_ Ih U _o 0 o 0 Q J " z o w I 0 0 U cr- Z a H w I~ Q Y U z I moo " O U Q U ON~~ah o 0 0 op O~ of ~ z as h f w 4 o w Po CL N F, tq 01 IQ II II ~N N 0o cn l 01 Qc -i ? v (,j of W N m + / II c3\~ A v, N 47 / f to r- 4z~ co ~ ~ ~fba~aQa °('.r.% to z Il 11 ~ r ? II ° to*~~;a OM N~ NV o e N►~h" "W~2 0 6f:$ - o0oh n o~• l II O N II ^fg / ~ hill l - ohrnh"~~ m bhN'N to V II -j II N N II 12 "cep v m = 51 ~ N of U 8 / c sz dUd DgOWv WH Oi K t soot/ID I ^^~P SU-UL-i l-lO0J- U71O5\ ^+PtUFIUSts~a. m4:f Y~ } FF- Po O O N Nh°j!r Nh c ~ II II 3 ' h cV 2 ~d I h o oh ~N hN , N II o ~ II ~ ~ 4 h i OhOOi' ~ohN~~h ~ r0^~U I ~m .4+ ~O^ N \n to. 0I.Tk 3 OWN ~•S~'r~6'~ N~ o ^ ~Z ONE 0 3 ^ , ~vNN'~Njha II II 3 ~~111 I~b~mV h f~ 3 N ~b Z h hhN~3h "Ni ry p ~14 C) O ~O IIJONh= U ~C'4 m v M.Lf,6>s ikS /Z •Zl *0 N L' , 4 OWN ~ p~ ~ u N N V N O m 0 NC" '0 ~puP~p ,3 i rn v I~h ~ m -No IN qcl II ~ I ° V `W O W LuI 11i Z w Zo ° N 0 o JT~ z it o J a o O 0 O Q Z a } z Y U = 0 0 LLJ Z Lij Q O 0 W W a_ N o O~f ~~Ea ~ goiu z '~ba as ?c • a~ Cc_ W J v V ih 2C T C 1~1 £ /A A.Lz//Ci' BIKE/PEDESTRIAN TRAIL LICENSE 411 THIS LICENSE, made this day o~2006 by and between the State of Colorado for the use and benefit of THE DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "State", and Town of Avon, Eagle County, Colorado, 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 maps attached as Exhibits A and B, hereinafter referred to as the "State's Right of Way" which is used fo Interstate 70 (1-70) and Avon Road right of way ("Property"); and WHEREAS, the Local Agency has planned and anticipates a project for the construction appurtenant 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 path (hereinafter referred to as "the trail") within the State's Right of Way as part of the Swift Gulch Bike Path Extension project (hereinafter referred to as "the Trail Project") as a connecting trail link between the existing Nottingham Road Bike Path and the proposed extension of Swift Gulch Bike Path on Lot 2, Swift Gulch Addition and Tract Y, Block 1, Benchmark at Beaver Creek, which are Town properties, between Interstate 70 to the south, Avon Road to the west, and Swift Gulch Road to the north; and WHEREAS, the Local Agency has requested permission to construct the trail 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 License; 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 License; 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 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 License 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 License 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 License 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 and the existing utilities, 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 Trail 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 construction of the Trail Project as described herein, so that 2 V construction of the Trail Project by the Local Agency will meet Federal and State standards, the provisions of this License 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 or omissions of its employees or agents, if any, in constructing, operating, or maintenance of the Trail Project within the State's Right of Way. Nothing in this License 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 License. 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. 1. The Local Agency will comply with the following: 1. The Local Agency will be responsible for the plans being accurate and complete. 3 n 2. Notwithstanding any review or consents given by the State for said plans or the performance by the State of 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: 1. 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: (a) Worker's Compensation Insurance in accordance with prevailing laws. (b) 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. (c) Automobile liability $600,000 combined single limit bodily injury and property damage, each accident. Policies (b) and (c) enumerated above shall name the Local Agency and the State as additional insured. 2. 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 License. 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 Exhibits A and B, 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 Exhibits A and B, 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: 1. 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. 2. 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 \0 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 Statutes 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 rights of way have been secured accordingly or that no additional right of way is required. 0. 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. (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 (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 License 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. (d) The inspections done by CDOT's Inspector shall only be visual, and shall 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 shall 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. (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 0v 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 License. 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 License. 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 \,I) damages. A waiver of any breach of this License 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 License by reference. T. The Local Agency will maintain and operate the improvements constructed under this License, 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 License 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 License 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 License 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. Y The term of this License, 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 License 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 License 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 License shall inure to the benefit of and be binding upon the parties, their successors and assigns. AB. This 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 License 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 License 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 License 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 License that any person receiving services or benefits under this License shall be deemed an incidental beneficiary only. AE. This License is permission to cross over the access control line (a-line) of the Colorado Department of Transportation FOR THE PURPOSE OF constructing, maintaining and using the Trail Project within the interstate right of way (known as 12 Swift Gulch Bike Path Extension or the Local Agency's Project Number CIP 34010). 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 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 Avon Road or Interstate 70. This License 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 in accordance with the terms hereof. This non- transferable permission shall be valid and remain in effect from the date of execution until terminated in writing by either party in accordance with the terms hereof. This permission shall not be considered a commitment by State nor in any way authorizes or guarantees any continuing use of the Property. Local Agency assumes liability for the maintenance, operation, and use of both the temporary 13 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, subject to the Colorado Governmental Immunity Act Upon termination of this License, the Local Agency shall close the access to the interstate right of way and restore the Property to the satisfaction of the State. This permission to cross the A- line automatically expires when, and if, the Local Agency ceases as an organization or fails to perform the above maintenance responsibilities during the effective time of this License. This License is not a State Highway Access Permit. AF. The State and the Local Agency affirm and agree that periodic closures of the trail may be made necessary on a seasonal basis due to weather conditions or maintenance activities, and that the trail is not necessarily 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 safe conditions assured, as negotiated between the parties at that time. IN WITNESS WHEREOF, the parties hereto have executed this License the day and year first above written. 14 Department of Transportation State of Colorado ATTEST: ! ~y 3BY hief Clerk for Right of Way Craig iracusa, PE Chief Ingineer LICENSEE ATTEST: B Y Title Title IcSL~S?,' 15 U LJ_ ~h ON O 0 1 ~N I~ ~ O I (Q I W ~W I O p~ N tN O O b• rio '%Oas Lo I II II V O ~~l1~~mV Z V ~o; OI 0, N I \ lV Nj ~ h Qo , % II 00 hhN"ro~•"o~h \ II II N II \I ~ ~oN III m Lki N Qi U O T Z / ONE^p~0 oi~o^=n p h : N ~Ncot N U " N '7 h ~ N h d. ~O U ~m - - 2 A B i ' o m 2 W J N O U~ O a z O X O Q W Q O Q r0 U Z a Q Y z w z _ O 0 0 0 Q W w LA- CL N \ O ` W 0 V IT .W O A o, N o~ vir 3 ~lh NhOR ,14 CQ (Z) N i 1 ~N Zf4rS i 2 A / / cpo N ~ ,kl ' N ~N h• N ~ J 11 O ~ II h " U t~ ~ N i .1. U II IIIIrNII ~~'ONNU ~ S~ Oh~iry'~~ I ~ A 2 ~ 111 III V m U i 1 °ot,~m•"M"ry'~h V A : / 1! A II ^ UM a3 3 `0 h ~ ' ' ~s • p N p a Dlzlvh I UC~i A ~ A J c p ^ It ti ICI ~ V ~ toiNt~2~ A d. II ~ II II h 3 N Ro =h hhN~3h U 4 4 I~pN,~pjZ U m ~ a a Y M.L£,6f:l~S 9~1,~5 A at m NN LZ'Zl / o N . o Au Ilp~ll h v A N p p II a ~ ~j I p m ~ m t 9 = W z o O a iJ (n o z a O J X w a o F o 0 Z a Q z Y U Z U Q w W 0 30 0 ~ Q w 0 ~ y n LLI m Fyysi o~ g.°. ~t p O ~a~ €as r~ 6 Q ~`S~a5~o i~ d € hl to CHANGE ORDER Order No.: 001 Date: June 13. 2006 Agreement Date: -April 12, 2006 NAME OF PROJECT: CIP 34010 Swift Gulch Bike Path Extension OWNER: Town of Avon, Colorado CONTRACTOR: Site Resource Management, Inc The following changes are hereby made to the CONTRACT DOCUMENTS: Add to Bid Item 5.1, Adjust SS Manhole Barrel, Ring, and Cover, 1 EA at $700.00/EA, total addition $700.00; Add Bid Item 1.4, Restake for Gas/Qwest Relocate, 1 LS at $445.00/LS, total addition $445.00; Add Bid Item 5.1 1, Relocate Gas/Qwest, 440 LF at $15.00/LF, total addition $6,600.00; Add Bid Item 4.8, Add Boulder Wall at Drainage Headwall, 1 LS at $500.00/LS, total addition $500.00 .Justification: Utility Relocation was removed from the project prior to bidding to allow for more accurate bids with the understanding that it would be added once contract was awarded. Restaking is a direct result of the utility relocation and as such, was not included in the original plans. Lowering the Sanitary Sewer manhole and the additional boulder wall was due to field conditions differing from the constriction drawings. Change to CONTRACT PRICE: $ 8,245.00 Original CONTRACT PRICE: $ 244,488.35 The CONTRACT PRICE due to this CHANGE ORDER will be increased by $ 8,245.00 The new CONTRACT PRICE including this CHANGE ORDER will be $ 252,733.35. Change to CONTRACT TIME: N/A APPROVALS REQUIRED: Approved by Engineer: Accepted by Contractor Accepted and Approved CO-1 TOWN OF AVON, COLORADO RESOLUTION NO. 06 - 02 Series of 2006 A RESOLUTION AUTHORIZING A BIKE/PEDESTRIAN TRAIL LICENSE WITH THE COLORADO DEPARTMENT OF TRANSPORTATION RELATED TO THE SWIFT GULCH ROAD BIKE PATH EXTENSION IN THE TOWN OF AVON, EAGLE COUNTY, COLORADO WHEREAS, Avon Town Council has heretofore authorized the construction of Bike/Pedestrian Path Facilities that will encroach into the Interstate 70 Right-of-way. WHEREAS, the Colorado Department of Transportation requires the attached Bike/Pedestrian License, NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: Attached Bike/Pedestrian License (Exhibit A) with the Colorado Department of Transportation to provide approval to construct, maintain, and occupy bicycle/pedestrian facilities within the Interstate 70 right-of-way in the Town of Avon is hereby approved and authorized pursuant to Sections 43-2-103 and 43-2- 144, C.R.S., as amended. PASSED AND ADOPTED AT A REGULAR MEETING OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, ON THE 10-1,11 DAY OF JANUARY, 2006. TOW' OUNCIL TO N F AVON, COLORADO Ronald C. Wolfe, Mayor ATTEST: Pat , M Kenny To" erk BIKE/PEDESTRIAN TRAIL LICENSE THIS LICENSE, made this day of January, 2006 by and between the State of Colorado for the use and benefit of THE DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "State", and Town of Avon, Eagle County, Colorado, 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 maps attached as Exhibits A and B, hereinafter referred to as the "State's Right of Way" which is used fo Interstate 70 (I-70) and Avon Road right of way ("Property"); and WHEREAS, the Local Agency has planned and anticipates a project for the construction appurtenant 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 path (hereinafter referred to as "the trail") within the State's Right of Way as part of the Swift Gulch Bike Path Extension project (hereinafter referred to as "the Trail Project") as a connecting trail link between the existing Nottingham Road Bike Path and the proposed extension of Swift Gulch Bike Path on Lot 2, Swift Gulch Addition and Tract Y, Block 1, Benchmark at Beaver Creek, which are Town properties, between Interstate 70 to the south, Avon Road to the west, and Swift Gulch Road to the north; and WHEREAS, the Local Agency has requested permission to construct the trail 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 License; 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 0 the use of such right of way without any cost or liability to the State, pursuant to the terms of this License; 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 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 License 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 License 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 License 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 and the existing utilities, 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 Trail 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 construction of the Trail Project as described herein, so that V construction of the Trail Project by the Local Agency will meet Federal and State standards, the provisions of this License 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 or omissions of its employees or agents, if any, in constructing, operating, or maintenance of the Trail Project within the State's Right of Way. Nothing in this License 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 6`h Street, Grand Junction, Colorado 81501.. Said Region Transportation Director is responsible for coordinating the State's activities under this License. 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. 1. 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 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: 1. 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: (a) Worker's Compensation Insurance in accordance with prevailing laws. (b) 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. (c) Automobile liability $600,000 combined single limit bodily injury and property damage, each accident. Policies (b) and (c) enumerated above shall name the Local Agency and the State as additional insured. 2. 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 License. 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 Exhibits A and B, 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. q 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 Exhibits A and B, 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: 1. 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. 2. 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 \0 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 Statutes 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 rights of way have been secured accordingly or that no additional right of way is required. 0. 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. (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 (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 License 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. (d) The inspections done by CDOT's Inspector shall only be visual, and shall 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 shall 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. (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 ~v 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 PA.b. of this License. 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 License. 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 License 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 License by reference. T. The Local Agency will maintain and operate the improvements constructed under this License, 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 License 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 License 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 License 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. \3 Y The term of this License, 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 License 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 License 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 License shall inure to the benefit of and be binding upon the parties, their successors and assigns. AB. This 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 License 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 License 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 License 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 License that any person receiving services or benefits under this License shall be deemed an incidental beneficiary only. AE. This License is permission to cross over the access control line (a-line) of the Colorado Department of Transportation FOR THE PURPOSE OF constructing, maintaining and using the Trail Project within the interstate right of way (known as 12 \V Swift Gulch Bike Path Extension or the Local Agency's Project Number CIP 34010). 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 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 Avon Road or Interstate 70. This License 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 in accordance with the terms hereof. This non- transferable permission shall be valid and remain in effect from the date of execution until terminated in writing by either party in accordance with the terms hereof. This permission shall not be considered a commitment by State nor in any way authorizes or guarantees any continuing use of the Property. Local Agency assumes liability for the maintenance, operation, and use of both the temporary 13 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, subject to the Colorado Governmental Immunity Act Upon termination of this License, the Local Agency shall close the access to the interstate right of way and restore the Property to the satisfaction of the State. This permission to cross the A- line automatically expires when, and if, the Local Agency ceases as an organization or fails to perform the above maintenance responsibilities during the effective time of this License. This License is not a State Highway Access Permit. AF. The State and the Local Agency affirm and agree that periodic closures of the trail may be made necessary on a seasonal basis due to weather conditions or maintenance activities, and that the trail is not necessarily 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 safe conditions assured, as negotiated between the parties at that time. IN WITNESS WHEREOF, the parties hereto have executed this License the day and year first above written. 14 Department of Transportation State of Colorado ATTEST: By Chief Clerk for Right of Way ATTEST: By: Craig Siracusa, PE Chief Engineer LICENSEE 15 I ,~o Nh j Z h N ~i~ ~tD h I / h m ~~~~a+\ II II p m i. ~o2 / \ h Nnh. ,41 co ~NcoN \ F NC~i S~^ pN^ Op ni tV tp ni II = NII if if ~Oh, lu0 Oho, u~ ' m II c ~hN~h ~y hh N ^ 3 41 ^N oCZi If O h co II U II II~• II Dm i ~J~N~C~i ~h % 3 y m ~ h , v~ 9~99S \ ^h / ~ a ~W N / 3 ohi 00~~^~h poi g/tio . 3 N j II ^ p p M.L£ 6~. Its o NNo If co I~ II Co % C, -j ~ vZV I ~h m h U ~'"j ^ aN^h=~'N II II II * h II I ~ m v ~ m 'om c ~ 2 W z o 0 0 V) o x a o O o a Z a ~ Q _Y z V 2 m o U ® o o c~ W w N o (L F, t~~aS sta:£-it °•g` ate O '~!a lfafs 0 th E~sa8~s2 ~E Yz • ck ~a z 2 •C