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Home My WebLink AboutC07-200 KIWA AssociatesTRAIL CONSTRUCTION AND MAINTENANCE AGREEMENT This agreement (the "Agreement"), entered into this -tom day of June, 2007 between Eagle County, Colorado ("County") and KIWA Associates, a Colorado Limited Liability Company ("KIWA"), WITNESSETH: WHEREAS, KIWA is the owner and developer of certain real property located in Eagle County, Colorado for which approval has been given for residential and commercial Planned Unit Development known as Vines at Vail (the "PUD"); and WHEREAS, the PUD contemplates construction of an eight foot wide pedestrian and non -motorized bicycle trail (the "Trail") along Highway 131 from the PUD entrance to the north side of the Union Pacific Railroad corridor in accordance with a trail design satisfactory to the County and in conformity with the Eagle Valley Regional Trails Plan for the use and benefit of residents and customers of Vines at Vail and the general public; and WHEREAS, a portion of the land on which the Trail is to be located is within the Colorado Department of Transportation ("CDOT") right of way ("ROW"); and WHEREAS, the County and CDOT have entered into a Bike/Pedestrian Trail License (the "License"), a copy of which is attached hereto as Exhibit A and made a part hereof by this reference, pursuant to which the County has obtained the right to construct the Trail within the ROW in accordance with the plans attached to such License and referred to therein (and herein) as the "Trail Project"; and WHEREAS, the License makes the County responsible for compliance with the License, but acknowledges that the County intends to enter into an agreement with KIWA with respect to payment for construction and maintenance of the Trail in accordance with the Trail Project; and WHEREAS, KIWA is familiar with the terms of the License and agrees to respect and adhere to the terms of the License in construction and maintenance of the Trail. NOW, THEREFORE, in consideration of foregoing premises and following promises, County and KIWA agree as follows: 1. KIWA will cause the Trail to be designed, constructed, operated and maintained, at its sole cost and expense, in accordance with the License and the Trail Project and with the provisions of Eagle County Land Use Regulations Sec. 4-630(A), specifically including financial responsibility for any and all damage to the State of Colorado's roadway, structures and/or associated facilities caused by the construction, operation and maintenance of the Trail Project within the ROW, except for damage caused by the State, and any such damage shall be corrected in accordance with the State of Colorado standards and at KIWA's sole expense. 2. KIWA shall indemnify County against any and all claims, damages, liability and court awards, including costs, expenses and attorney fees, that arise as a result of the acts of its employees or agents or their acts of omission, if any, in constructing, operating and maintaining the Trail Project with the ROW, provided that nothing in this agreement shall be construed as a waiver by the County of the provisions and protections of the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as now enacted or hereafter amended. 3. KIWA will take all actions reasonably necessary to facilitate County's compliance with its obligations under the License, including provision of preliminary engineering, design services and preparation of construction plans, and design worksheets used in the design of the Trail Project. 4. KIWA's responsibilities under this Agreement may be assigned only with the written approval of County to the terms of the assignment and the identity and qualifications of the assignee. 5. KIWA, its successors and assigns, shall improve the Trail in the manner acceptable to the county, but in no event to a standard greater than existing Eagle County Land Use Regulations in effect on this date. KIWA, its successors and assigns, shall not be required to pave or otherwise improve the Trail for pedestrian and bicycle recreation path purposes. County may grade, pave, and otherwise improve the Trail for pedestrian and bicycle recreation path purposes, including the installation of drainage culverts and other drainage structures, including rest stops, bus stops, located within the ROW, and as set forth in the map attached as Exhibit "B", and in accordance with its agreement with CDOT. KIWA, its successors and assigns, shall repair to the original standard required under this Agreement, sweep, and otherwise maintain the Trail in its original condition, and shall not be responsible for adequate periodic snow removal thereon. In the event the County elects to pave all or part of the Trail, the County will be responsible for repair of damage to any improvements associated with the Trail resulting from such paving and for restoration of the trail as made necessary by work related to access to associated improvements or utilities resulting from such paving. 6. County may install signs within the Trail, as allowed by CDOT, and as set forth on the map attached hereto as Exhibit "B" identifying the Trail, its location, use, rules, and otherwise relating to protection of the Trail as deemed appropriate in County's sole discretion. 7. KIWA shall construct, repair, and replace the Trail in a manner consistent with the original construction standards as specified in Section 1 hereof at its own expense. In the event that the improvements to the Trail are damaged or destroyed by persons with rights in or upon the property upon which it is located, KIWA shall not be responsible for restoration, repair, and replacement of the improvements to their immediately prior condition, except as set forth in Paragraph 1 hereof. 8. County may connect any pedestrian or bicycle recreation path to the Trail or to any other such paths located on adjoining properties. KIWA shall have no further liability other than as set forth herein. 2 9. Failure of a party to invoke its rights hereunder on one or more occasion shall not be construed as a waiver of the right to enforce this Agreement as the future breaches or infractions. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining provisions thereof, and this Agreement shall be construed and enforced as if such invalid provision(s) had not been contained herein. 10. This Agreement shall not affect any resolution, zoning, PUD, subdivision improvement agreement, or other entitlement affecting the PUD, or adjacent lands owned by or acquired by KIWA. 11. This Agreement cannot be modified, altered, or amended, or any term or provision hereof waived, except by written agreement executed by all parties hereto, and recorded with the Eagle County Clerk & Recorder. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. ATTEST: ,.,COUNTY OF EAGLE, STATE OF COLORADO of Q d T u its Board of County Commissioners � GZ Teak Sinfionton A Menconi, Chairman Clerk to the Board Eagle County Board of County Commissioners Ks ciat LC By: Name: Patrick Chirichillo (print) Title: Managing Partner STATE OF COLORADO ss. COUNTY OF The foregoing instrument was acknowledged before me this �/ day of 2007 by Witness my hand and official seal. t/ ) �J---- NotarvPublic My commission expires: t(` k^y Commission Expires0N112009 4