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02.13.13 OSBT Agenda Item 5 CITY OF BOULDER OPEN SPACE BOARD OF TRUSTEESAGENDA ITEM MEETING DATE: February 13, 2013 AGENDA TITLE: Consideration of a motion to recommend that City Council authorize a revised version of the Intergovernmental Agreement with Boulder County previously authorized on Oct. 2, 2012 to construct and maintain the IBM Connector Trail. PRESENTER/S Open Space and Mountain Parks MichaelPatton, Director JamesReeder, Land and Visitor Services Division Manager EXECUTIVE SUMMARY With a recommendation of the Open Space Board of Trustees, the Boulder City Council recently authorized the city manager to sign an Intergovernmental Agreement (IGA) for the construction of the IBM Connector Trail. The authorized IGA stated that the county would design and construct the connection at its sole cost using a combination of Federal Enhancement Funds and funding from the county’s Countywide Transportation Sales Tax. However, the latest cost estimates for the trail’s construction show a substantial and unanticipated increase in projected cost of construction. As a result, Boulder County has asked Open Space and Mountain Parks (OSMP) to commit an estimated $200,000 to construct two bridges on city OSMP property and to cover costs of city wetland requirements in-house. By taking on a portion of the project needs, these actions will allow construction to proceed this year instead of waiting for additional county trail funds to become available, likely in 2017or later. This agreement would mean thatOSMP assumes responsibility for the construction of two bridgesand wetland mitigation for impacted wetlands on city land and on the easement area. One of these bridges is included in the current project design (over Boulder and Left Hand Ditch) and the other (over Little Dry Creek)is a request by OSMP staff to replace a planned box culvert crossing with a bridge structure. This action will address only a portion of the revised estimate for construction. The county, however, is looking at re-directing some funds AGENDAT ITEM 5 PAGE 1 as well as implementing some cost-savings measures on the current trail design in order to remain on schedule to build the connector this year as originally planned. OSMP has previously paid for the design of the bridge over the Boulder and Left Hand Ditch at a cost of $6,500. Construction is estimated to cost $70,000. The bridge over Dry Creek has not been designed. The cost to design and build that bridge is estimated to be $100,000. The required wetland mitigation is estimated at $30,000. The question before the Board is whether or not to recommend spending approximately $200,000 of Open Space funds in order to assure construction of the IBM Connector Trail in 2013 rather than have the project delayed until 2017or later. This construction schedule is contingent on the Burlington Northern/Santa Fe (BNSF) Railroad replacing its bridge during the first half of 2013. The revised IGA is attached (Attachment A). Other than changes to dates in the IGA, the revision is contained in Section 2.2. STAFF RECOMMENDATION Staff proposes that the Open Space Board of Trustees recommend the City Council authorize a revised version of the IGA with Boulder County previously authorized on Oct. 2, 2012, to include an OSMP commitment of approximately $200,000 for the construction of two bridges and wetland mitigation for the IBM Connector Trail. COMMUNITY SUSTAINABILITY ASSESSMENTS AND IMPACTS Economic - Overall economic impacts on the business community are unknown. It is anticipatedthat this trail will attract more users (pedestrians, bike riders and equestrians from outside the city) once there is a safe crossing of State Highway 119 and the BNSFRailroad. A portion of these users will shop in Boulder during their trip to the area. Environmental – Every trail has an environmental impact. However, staff has worked to minimizeenvironmental effectsof this trail. Social – This trail will connect northern Boulder neighborhoods to the Boulder trail system as a portion of the Longmont-to-Boulder (LOBO) trail.It is also a gap in the Trail Around Boulder which has recently received some discussion. OTHER IMPACTS Fiscal –This project is receivingthe majority of its funding from Boulder County and federal transportation funds. OSMP shall pay for the design and construction of two bridges and for wetland mitigation. This commitment would be for approximately $200,000. Staff time – Under the proposal, the county is responsible for trail construction and highway and railroad crossing structure design development and construction and for project management.OSMP staff time would involve bridge design and construction oversight and wetland mitigation oversight. AGENDAT ITEM 5 PAGE 2 PUBLIC COMMENT AND PROCESS This item is being heard as part of this public meeting advertised in the Daily Camera on Sunday, Feb. 10, 2013. OSMP hosted two public open houses as part of the Community and Environmental Assessment Process (CEAP) – Nov. 8, 2007 and May 5, 2008. Boulder County hosted a public open house on Dec. 17, 2008. The IGA was approved by OSBT on Sept. 12 and City Council on Oct. 2, 2012. ANALYSIS Background The latest cost estimate of $1.95million represents a major increase in anticipated construction cost for this project. Cost increases are largely due to railroad design requirements resulting in the need toreplacethe existing railroad structure. Additional changes include the addition of a sump pump system to remove water from the highway underpass, additional wetlands mitigation design requirements from the city wetlands permitting processandincreased costs from Colorado Department of Transportation’s (CDOT) requirements for drain pipe locations. The county remains committed to building this trail. County staff continues to work with the trail design consultant to reduce cost ofthe trail. Even so, they will not have funds needed for the entire project in 2013 and will need to delay the project as much as five years to identify sufficient funding. As a means of reducing costs,OSMP and county staffs have worked together to identify portions of the project that could be removed from federal funding and assumed by OSMP. The portions of the project for which OSMP will take over responsibility include the two pedestrian/equestrian bridges over Little Dry Creek and the Boulder and Left Hand Ditch and city-required wetland mitigation.The county agrees that by taking these three elements out of the project, they will be able to proceed with construction in 2013 and cover all remaining project costs with the existing funds. Staff will use Capital Improvement Project funds in the 2013 budget to support this project. While these costs were not anticipated, unexpended capital funds from 2012 will be carried over to 2013 and will provide sufficient funding. Submitted by: __________________________ Michael Patton, Director _______________________ James Reeder, Land and Visitor Services Division Manager ATTACHMENTS: A. Intergovernmental Agreement and Grant of Construction Easement (Revised) AGENDAT ITEM 5 PAGE 3 This page is intentionally left blank. AGENDAT ITEM 5 PAGE 4 ATTACHMENT A INTERGOVERNMENTAL AGREEMENT AND GRANT OF CONSTRUCTION EASEMENT Construction and Maintenance of IBM Connector Trail THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement) is made and entered into this _____day of _______, 2013, by and between the County of Boulder (the “County”), a body corporate and politic, and the City of Boulder (the “City”), a Colorado home rule municipality (collectively “the Parties”). RECITALS A.C.R.S. §29-1-201 et.seq., as amended, authorizes the Parties to cooperate and contract with one another with respect to functions lawfully authorized to each of the Parties, and the People of the State of Colorado have encouraged such cooperation and contracting through the adoption of Colorado Constitution XIV §18(2). B.The functions described in this Agreement are lawfully authorized to each of the Parties that perform such functions hereunder, as provided in §30-11-101et seq. and §31-15-101 et seq., C.R.S. C.The City approved the IBM Trail Connector through its Community and Environmental Assessment Process (CEAP) in August 2008for the purpose of improving connectivity and safety for bicycle and pedestrian travel between the residential neighborhoods and commercial centers in the Gunbarrel community and the City of Boulder parks and trails system. D.The County has included the construction of the new multi-use trail connection between the existing Cottontail Trail on the east side of Highway 119 (Diagonal Highway) to the existing Boulder Reservoir trail system on the west side of 63rd Street (the “Trail Connection”) in its list of Regional Trails Priorities, has identified a combination of countywide regional trails funds and federal transportation funds for design and construction of the Trail Connection, and is prepared to advertise the project for construction in 2013. E.This Trail Connection is included in the Boulder Valley Comprehensive Plan. F.The Trail Connection will be built upon City Land; land belonging to a private property owner from whom the City owns a trail easement for a multi-use path (the “Easement Area”); CDOT right-of- way (“CDOT Land”) and BNSF right-of-way (“BNSF Land”). City Land, the Easement Area, CDOT Land and BNSF Land are depicted in Exhibit A,attached hereto and incorporated herein by this reference. G.It is the Parties’ intent that once the entire Trail Connection is constructed, the City will own or have licenses or permits required for use by the public of all sections of the Trail Connection on City Land, the Easement Area, and CDOT Land; and the County will have licenses or permits required for public use of BNSF Land. H.Construction of the Trail Connection may impact wetlands on City Land, the Easement Area, CDOT Land, and BNSF Land. The wetlands are within the jurisdiction of the City of Boulder and/or the US Army Corp of Engineers. The site chosen for mitigationof wetland impacts on City owned and AGENDAT ITEM 5 PAGE 5 ATTACHMENT A jurisdictional wetlands is adjacent to Little Dry Creek on City Land that is managed by the City Department of Open Space and Mountain Parks (OSMP).An off-site mitigation bank has been selected as the preferred form of mitigation of permanent impacts to Corps jurisdictional wetlands with CDOT and BNSF ROW. In consideration of the mutual covenants and commitments made herein, the Parties agree as follows: AGREEMENT 1.0GENERAL TheRecitals set forth above are incorporated herein by reference and made a part of this Agreement. 2.0CONSTRUCTION AND GRANT OF TEMPORARY CONSTRUCTION EASEMENT 2.1 TheTrail Connection shall be designed and constructed by the County, at its sole cost, pursuant to the contract documents for the IBM Connector Trail, Federal Aid Project No. STE C070-036, Project Code No. 17352, Colorado Department of Transportation.The City must review and approve the design and construction plans before any work commences. 2.2 The City shall beresponsible for design and construction of bridges that are needed to cross the Boulder and Left Hand Ditch and to cross Little Dry Creek. The City shallalso be responsible for wetland mitigation workrequired forimpacted wetlands on City owned and City managed properties. 2.3 The City does hereby grant to the County a temporary nonexclusivelicense in the Easement Area and in certain portions of the City Land as depicted in Exhibit A as Temporary Access Licenseand Temporary Construction License(the “Temporary License”) for its use during the construction of the Trail Connection, as described in the Contract Documents. The Temporary Licenseshall commence no sooner than March 1, 2013and shall terminate on December 31, 2014 or upon completion ofthe trail construction, whichever is sooner.The Temporary Licensearea will be rehabilitated to the condition prior to the County’s occupancy. The County covenants and agrees to restore said property, landscaping, fences, or other improvements to a level comparable to their original condition. Nothing herein shall permit the County to use any lands owned by the City outside the Temporary Licensefor ingress to and egress from the Temporary License or for any other purpose. 2.4 The County shall obtain all necessaryeasements and licenses, in its sole name and without reference to theCity except as otherwise provided herein, from BNSF in order to construct the Trail Connection on BNSF Land.The County shall obtain all necessary easements and licenses, in the name of the City except as otherwise provided herein from CDOT in order to construct the Trail Connection on CDOT Land. The City will review these easements before they are signed. 2.5 The County intends to hire an independent contractor ("Contractor") to construct the Trail Connection. The County shall require the Contractor to indemnify and hold the County and the City harmless from and against all losses, claims, demands, liabilities, injuries, damages and expenses, including, without limitation, attorneys' fees and court costs the County or the City AGENDAT ITEM 5 PAGE 6 ATTACHMENT A may suffer or incur as a result of the use, occupancy and possession of the Temporary Easement by Contractor, it's agents, subcontractors, employees or representatives which may arise from their negligent or wrongful performance while constructing the Trail Connection. 2.6 The County's contract with the Contractor shall permit no liens to be placed on City Land or the Easement Area as a result of the construction of the Trail Connection. 3.0OWNERSHIP 4.0Upon (i) the substantial completion of the Trail Connection in accordance with the Contract Documents (ii) receipt of proof of final payment of all sums due pursuant to the Contractor; and (iii) final payment of allsums due any other contractor, subcontractor or material forwork or materials related to the construction of the Trail Connection, the City will accept as a City-owned public improvement all improvements on sections of the Trail Connection on City Land, the Easement Area, CDOT Land. 5.0MAINTENANCE 5.1 The City shall maintain all sections of the Trail Connection improvements owned by the City. Except as provided in paragraph 5.2, below, the County shall maintain those sections of the Trail Connection improvements owned by the Countyandsections of the Trail Connection improvements located on BNSF land. 5.2 Upon substantial completionof the Trail Connection, the City shall be responsible for performingroutine and annualmaintenance tasks for the Trail Connection, as determined to be necessary atthe City’s sole discretion and at the City’s sole cost and expense. 6.0WETLANDS 6.1 The City shall obtain allrequired City wetland permit(s) for wetland impacts located on City Land or the Easement Area. 6.2 The County shall obtain necessary wetland permits from the US Army Corps of Engineers for all impacted wetlands. 7.0NOTICE s Whenever notice is required to be given hereunder, it shall be in writing and may beent by facsimile or delivered to the party entitled thereto or mailed to the party entitled thereto by registered or certified mail, return receipt requested. Until changed by notice in writing, notice shall be given as follows: To the County:To the City: George Gerstle, DirectorDirector of Open Space and Mountain Parks Department of Transportation City of Boulder Open Space and Mountain Parks PO Box 471 PO Box 791 Boulder, CO 80306 Boulder, CO 80306 Fax: 303-441-4594 AGENDAT ITEM 5 PAGE 7 ATTACHMENT A Executive Director of Public Works City of Boulder Public Works PO Box 791 Boulder, CO 80306 Director of Parks and Recreation City of Boulder Parks and Recreation PO Box 791 Boulder, CO 80306 City Manager PO Box 791 Boulder, CO 80306 Fax: 303-441-4478 With Copy to:With Copy to: Boulder County Attorney Boulder City Attorney PO Box 471 PO Box 791 Boulder, CO 80306 Boulder, CO 80306 Fax: 303-441-4794 Fax: 303-441-3859 8.0MISCELLANEOUS 8.1 Entire Agreement.This document and all exhibits hereto, shall constitute the entire Agreement of the Parties, superseding all prior oral or written communications. 8.2 Governing Law and Venue. This Agreement shall be governed by the laws of the state of Colorado, and any legal action concerning the provisions hereof shall be brought in Boulder County, Colorado. 8.3 No Waiver. The waiver by any Party of any breach of any term, covenant or condition of this Agreement by another Party shall not be deemed a waiver of such term, covenant, or condition for any subsequent breach of the same or of any other term, covenant, or condition of this Agreement. Delays in enforcement or the waiver of anyone or more defaults or breaches of this Agreement by a Party shall not constitute a waiver bythat Party of any of the other terms or obligation of this Agreement. 8.4 Binding Effect. The City and the County each bind itself, its successors and assigns to the other party to this Agreement with respect to all rights and obligations under this Agreement. 8.5 Third Parties. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and the County and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of the City and the County and not for the benefit of any other party. AGENDAT ITEM 5 PAGE 8 ATTACHMENT A 8.6 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. 8.7 Modification. This Agreement may only be modified upon written agreement of the Parties. 8.8 Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either party without the written consent of the others. 8.9 Governmental Immunity. The City and the County certify that they are self-insured for property and general liability coverage including errors and omissions to the limits set forth in the Colorado Governmental Immunity Act. The City and the County, their officers, and their employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24- 10-101, et seq., as amended (the “CGIA"), or otherwise available to the City, the County and their respective officers or employees. 8.10 Rights and Remedies. Any Party hereto shall have the right to enjoin any substantial breach or threatened breach of this Agreement by any other Party, and shall have the right to specific performance of this Agreement. The rights and remedies of the Parties under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit any of the Parties' legal or equitable remedies, or the period in which such remedies may be asserted, for negligent or defective performance. 8.11 No Joint Venture. Nothing in this Agreement shall be construed to create a joint venture, partnership, employer/employee or other relationship between the Parties other than independent contracting parties. Except as permitted under the remedies provision hereunder, no Party shall have the express or implied right to act for, on behalf of, or in the name of any other Party. 8.12 Authority. The signatories to this Agreement affirm and warrant thatthey are fully authorized to enter into and execute this Agreement, and all necessary actions, notices, meetings and/or hearings pursuant to any law required to authorize their execution of this Agreement have been made. 8.13 No Multiple Fiscal Year Obligations. Nothing herein shall constitute a multiple fiscal year obligation pursuant to Colorado Constitution, Article X, Section 20. Notwithstanding any other provision of this Agreement, the County's and the City's obligations under this Agreement are subject to annual appropriation by the Board of County Commissioners and the City Council, respectively. Any failure of a Board of County Commissioners or a City Council annually to appropriate adequate monies to finance that Party's obligations under this Agreement shall terminate this Agreement at such time as such then-existing appropriations are to be depleted. AGENDAT ITEM 5 PAGE 9 ATTACHMENT A IN WITNESS THEREOF , City and County have executed this Agreement as of the day and year first above set forth. CITY OF BOULDERBOULDER COUNTY City ManagerCindy Domenico, Chair ATTEST:Elise Jones,Commissioner City Clerk on behalf of the Deb Gardner, Commissioner Director of Finance and Record APPROVED AS TO FORM:ATTEST: City Attorney’s OfficeClerk to Board AGENDAT ITEM 5 PAGE 10 N 63RD ST CITY OF BOULDER RIGHT-OF-WAY