IGA; Boulder County; Four Mile Creek; no end date
INTERGOVERNMENTAL AGREEMENT
AND GRANT OF CONSTRUCTION EASEMENT
between
Boulder County and the City of Boulder
for
the Construction and Maintenance
of the Four Mile Creek Bikeway Connection
THIS INTERGOVERNMENTAL AGREEMENT AND_gRANT OFSP-, TRUCTION
EASEMENT (the "Agreement") is made and entered into this day of 2009, by and
between the county of Boulder (the "County"), a body corporate and politic, and the city of Boulder, a
Colorado home rule municipality (the "City") (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 Article 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 § 30-11-101 et seq. and § 31-15-101 et seq., C.R.S.
C. The City's bikeway system contains a missing link between the existing Four Mile Creek Trail,
east of 47t1i Street, and the existing Cottonwood Trail, east of the BNSF railroad tracks.
D. The County has included the construction of a new multi-use bikeway connection between Four
Mile Creek Trail and the Cottonwood Trail (the "Bikeway Connection") in its list of Regional Trails
Projects, has identified a combination of countywide regional trails funds and federal transportation funds
for design and construction of the Bikeway Connection, and is prepared to advertise the project for
construction as early as August 2009.
E. The Bikeway Connection is a critical link for non-motorized access underneath SH 119 and
underneath the BNSF railroad that connects two existing City trails: Four Mile Creek Trail and
Cottonwood Trail.
F. The design for the Bikeway Connection includes a 24-inch stormwater pipe (the "Pipeline") that
will convey water from the Bikeway Connection's most westerly underpass across Colorado Department
of Transportation ("CDOT") right-of-way and Burlington Northern Santa Fe Railroad (`BNSF") right-of-
way to wetlands located on City-owned land ("City Land").
G. The Bikeway Connection will be built upon City Land; land belonging to a private property owner
from whom the City has obtained an easement for a multi-use path, public improvements and flood
control channel improvements and utilities (the "Easement Area"); CDOT right-of-way ("CDOT Land")
and BNSF right-of-way ("BNSF Land"). The Pipeline will be built upon City Land, CDOT Land and
BNSF Land, but not in the Easement Area. City Land, the Easement Area, CDOT Land and BNSF Land
are depicted in Exhibit A, attached hereto and incorporated herein by this reference.
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OFFICIAL CENTRAL RECORDS COPY
20090819-5087
H. It is the Parties' intent that once the entire Bikeway Connection is constructed, the County will
own those sections of the Bikeway Connection on CDOT Land and BNSF Land and the City will own
those sections of the Bikeway Connection on City Land and on the Easement Area. The County will own
and maintain those sections of the Pipeline on CDOT Land and BNSF Land and the City will own and
maintain that section of the Pipeline on City Land. The Pipeline will not be located on the Easement
Area.
1. The City currently maintains both the Cottonwood Trail and the Four Mile Creek Trail, including
winter and summertime maintenance needs, and is agreeable to providing certain maintenance for the
entire Bikeway Connection. The City has the operational capacity to clear the Bikeway Connection of
year-round debris (including winter precipitation), to maintain the Bikeway Connection's storm sewer and
lighting, and to maintain the mitigation wetland for the Bikeway Connection in a timely manner.
J. The City has requested that the County include underpass lighting in the design and construction
of two underpasses included in the Bikeway Connection and install underpass lighting in an existing City
trail underpass under SH 157.
K. As currently designed, the County's construction of the Bikeway Connection will impact
wetlands. The City's wetland permit process requires the County to install wetlands mitigation. The site
chosen for this mitigation is adjacent to Four Mile Canyon Creek on City Land that is managed by OSMP.
In consideration of the mutual covenants and commitments made herein, the Parties agree as
follows:
AGREEMENT
1.0 GENERAL
The Recitals set forth above are incorporated herein by reference and made a part of this Agreement.
2.0 CONSTRUCTION AND GRANT OF TEMPORARY CONSTRUCTION EASEMENT
2.1 The Bikeway Connection and the Pipeline (the "Project") shall be designed and
constructed by the County, at its sole cost, pursuant to the contract documents for the 4-Mile Creek
Bikeway Connection, Federal Aid Project No. STE C070-030, Project Code No. 16164, Colorado
Department of Transportation, Final Review, May 2009 (the "Contract Documents"), which are
incorporated herein by this reference. The County shall include underpass lighting in the design and
construction of both the SH 119 underpass and BNSF railroad underpass included as part of the Bikeway
Connection. The County shall also add underpass lighting, as described in the Contract Documents, to the
existing City trail underpass under SH157.
2.2 The City does hereby grant to the County a temporary nonexclusive easement in the
Easement Area and in certain portions of the City Land as depicted in Exhibit A as Temporary Access
Easement and Temporary Construction Easement (the "Temporary Easement") for its use during the
construction of the Bikeway Connection and the Pipeline and the installation of underpass lighting, as
described in the Contract Documents. The Temporary Easement shall commence no sooner than July 1,
2009 and shall terminate on December 31, 2011. The Temporary Easement will be rehabilitated to the
condition prior to the County's occupancy. The County covenants and agrees to restore said property,
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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 Easement for
ingress to and egress from the Temporary Easement or for any other purpose.
2.3 The City does hereby grant to the County a temporary nonexclusive easement in the area
depicted in Exhibit A (the "Temporary Wetlands Easement") for its use during the maintenance and/or
replacement of the wetlands area as described in the City of Boulder Simple Wetland Permit Application
for the State Highway (SA) 119 Bikeway Improvement Project, Four Mile Creek. The Temporary
Wetlands Easement shall commence no sooner than July 1, 2009 and shall terminate on the day of City
acceptance of the wetlands mitigation. With the exception of the wetlands mitigation performed by the
County pursuant hereto, the Temporary Wetlands Easement will be rehabilitated to the condition prior to
the County's occupancy and the County shall 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 Wetlands Easement for ingress to and egress
from the Temporary Easement or for any other purpose.
2.4 The County shall obtain all necessary easements and licenses, in its sole name and without
reference to the City except as otherwise provided herein, from CDOT and BNSF in order to construct the
Bikeway Connection and the Pipeline on CDOT Land and BNSF Land.
2.5 The County intends to hire an independent contractor ("Contractor"), to construct the
Bikeway Connection and the Pipeline within the Temporary Easement. 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 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 Bikeway Connection and
Pipeline.
2.6 Contractor shall be required to carry all applicable insurance policies and/or additional
coverages in amounts sufficient to meet all local, state and federal standards and requirements and to
name the County and the City as additional insureds, except as otherwise provided herein. Contractor
shall carry Commercial General Liability - CG 0001 Form or its equivalent. Coverage shall include:
Premises and Operations, Personal /Advertising Injury, Products / Completed Operations, and Contractual
Liability for liability assumed under an insured contract, Additional Insured Endorsement (Owners,
Lessees or Contractors Endorsement ISO Form 2010 and ISO CG 2037 or equivalent) naming the County
and the City and their respective officials, employees, agents, and volunteers as "Additional Insureds" for
work that is being performed by the Contractor. A Waiver of Subrogation and Separation of Insureds
Clauses shall be included in favor of the County and the City. The Commercial General Liability
Insurance Policy must be written with a combined single limit of liability of not less than $2,000,000 for
each occurrence of bodily injury and/or property damage, and an annual aggregate liability of no less than
$2,000,000 for bodily injury and/or property damage.
2.7 The County shall require that the Contractor's guarantee for those sections of the Bikeway
Connection and Pipeline that will be owned by the City pursuant to paragraph 3. 1, below, shall continue
for a period of two years after the date of final acceptance by the City, notwithstanding the warranty
period of any product which may be incorporated into the work which would otherwise expire before the
expiration of this two-year warranty period. The establishment of the warranty period relates only to the
specific obligations of the Contractor to correct known defects in the work which are discovered and
KATRPM\a-Intergovemmental Agreement and Grant of Construction Easement between Boulder County and the City of Boulder-732.DOC
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called to the Contractor's attention during the warranty period, and has no relationship to the time within
which its obligation to comply with the County's Contract Documents may be sought to be enforced, nor
to the time within which proceedings may be commenced to establish the Contractor's liability with
respect to its obligations and resulting damages. The City shall be a third party beneficiary of the
County's contract with the Contractor to construct the Bikeway Connection and the Pipeline. Nothing
therein or herein shall limit the City's right to seek recovery for latent defects which are not observable
until after the warranty periods have run.
2.8 The County shall cause the Contractor to repair or replace all damaged or defective work
immediately upon discovering any damage or defect. The Contractor's warranty excludes remedy for
damage or defect caused by abuse, modifications not executed by the construction manager, improper or
insufficient maintenance, improper operation, or normal wear and tear under normal usage to the extent
the above do not arise out of Contractor's action or failure to act. The Contractor shall promptly, without
cost to the City and in accordance with the project manager's written instructions, either correct such
defective work, or, if it has been rejected by the City, remove it from the site and replace it with non-
defective work. The Contractor's guarantee shall cover all materials and equipment incorporated in the
work, and shall cover the work of the Contractor and any subcontractors and their employees and agents
engaged in the work.
2.9 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 Bikeway Connection and/or Pipeline.
3.0 OWNERSHIP
3.1 Upon (i) the substantial completion of the Bikeway Connection and the Pipeline 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 any and all sums due any other contractor, subcontractor or
materialmen for work or materials related to the construction of the Bikeway Connection and the Pipeline,
the City will accept as a City-owned public improvement those sections of the Bikeway Connection on
City Land or on the Easement Area.
3.2 The County shall own those sections of the Bikeway Connection and Pipeline that are not
owned by the City pursuant to paragraph 3. 1, above.
4.0 MAINTENANCE
4.1 The City shall maintain those sections of the Bikeway Connection and the Pipeline owned
by the City. Except as provided in paragraph 4.2, below, the County shall maintain those sections of the
Bikeway Connection and the Pipeline owned by the County.
4.2 Upon substantial completion of the Bikeway Connection, the City shall be responsible for
performing the following maintenance tasks for the Bikeway Connection, as determined to be necessary
in the City's sole discretion and at the City's sole cost and expense:
4.2.1 Removal, through plowing or sweeping, of accumulated winter precipitation
and other debris that is accumulated year round on the Bikeway Connection.
The threshold for winter precipitation removal will be in accordance with the
winter maintenance that occurs on the surrounding trails;
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4.2.2 Removal of accumulated debris from the Bikeway Connection's storm sewers;
4.2.3 Removal of vegetation overgrowth affecting the use and/or maintenance of the
Bikeway Connection;
4.2.4 Removal of graffiti and/or repairs due to vandalism of the Bikeway Connection;
and
4.2.5 Replacement and/or fixing of lighting bulbs, light fixtures, wiring and other
items associated with the underpass lighting.
5.0 WETLANDS
5.1 The County shall obtain any and all required City wetland permit(s) and shall comply with
all City wetland permit conditions, including monitoring the success of the wetlands as described in the
City of Boulder Simple Wetland Permit Application for the State Highway (SH) 119 Bikeway
Improvement Project, Four Mile Creek.
5.2 The County shall comply with all requirements in "City of Boulder Open Space Board of
Trustees Policy for Compensatory Wetland Mitigation Requests on Open Space, Adopted May 13, 1987--
Revisions Adopted June 22, 1994."
6.0 NOTICE
Whenever notice is required to be given hereunder, it shall be in writing and may be sent 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, Director Executive Director of Public Works
Department of Transportation City of Boulder Public Works
PO Box 471 PO Box 791
Boulder, CO 80306 Boulder, CO 80306
Fax: 303-441-4594 Fax: 303-44,1-4210
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
KATRI'M\a-Intergovernmental Agreement and Grant of Construction Easement between Boulder County and the City of Boulder-732.130C
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7.0 MISCELLANEOUS
7.1 Entire Agreement. This document, and all exhibits hereto, shall constitute the entire
agreement of the Parties, superseding all prior oral or written communications.
7.2 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.
7.3 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 any one or more defaults or breaches of this Agreement by a Party
shall not constitute a waiver by that Party of any of the other terms or obligation of this Agreement.
7.4 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.
7.5 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.
. 7.6 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.
7.7 Modification. This Agreement may only be modified upon written agreement of the
Parties.
7.8 Assi ng ment. 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.
7.9 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.
7.10 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.
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7.11 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.
7.12 Authority. The signatories to this Agreement affirm and warrant that they 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.
. 7.13 No Multiple Fiscal Year Obligation. 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 Commissioner's 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.
IN WITNESS THEREOF, City and County have executed this Agreement as of the day and year
first above set forth.
CITY OFBOULDER BOULDER COUNTY
~~J-~ 5 . r By: 'L~ ;
City Manager Ben Pearlman, Chair
ATTEST: By: , ~
Cindy Domen' o, Vice-Chair
By:
City Clerk on behalf of the Will Toor, Commissioner
Director of Finance and Record
APPROVED AS TO FORM: TE T:
' f
I
City Attorney's Office Clerk to the Doar
c, ( O .
/ >E
KATRI'Wa-intergovernmental Agreement and Grant of Construction Easement between Boulder County and the City of Boulder-732. DOC
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BUSINESS MEETING ITEM COVER SHEET
DEPARTMENT Transportation
DIVISION
TITLE Intergovernmental Agreement with City of Boulder (temporary
construction easement for Four-Mile Creek Bikeway
Connection)
DOCUMENT TYPE IGA
SUBTYPE
BUSINESS MEETING DATE 09/08/09
COMMISSIONERS' ACTION ® ❑ ❑
Approved Denied Other
ORIGINAL(S) RETURNED TO Agenda File + Becki Beckham
AGENDA ITEM NUMBER 4
~Jf
COMMENTS Includes Resolution 2009-132 SEP f19
2009
Boulder t:-
Tr0nsP ; Q,ici)
Boulder County Business Meeting Cover Sheet v 5.0 last revision 1/25/2007
RESOLUTION NO. 2009 -132,
CONCERNING INTERGOVERNMENTAL AGREEMENT BETWEEN BOULDER COUNTY
AND THE CITY OF BOULDER FOR CONSTRUCTION AND MAINTENANCE OF THE
FOUR-MILE CREEK BIKEWAY CONNECTION.
WHEREAS, the Four Mile Creek bikeway connection is part of the State Highway
119 Bikeway project identified in the 2003 Regional Trails prioritization process;
and
WHEREAS, Boulder County has received federal funds for the construction of the
bikeway connection and has completed plans for construction of the facility; and
WHEREAS, the Bikeway connection lies in both the city of Boulder and
Unincorporated Boulder County; and
WHEREAS, Boulder County is authorized to enter into contracts for the
construction and maintenance of regional trail improvements pursuant to
Sections 43-1-106 and 43-2-144, C.R.S. as amended; and
WHEREAS, the Board of County Commissioners authorizes the Chair as
signatory to this agreement; and
NOW, THEREFORE, BE IT RESOLVED that the Chair of the Board of County
Commissioners is authorized to sign the agreement on behalf of Boulder County.
BE IT FURTHER RESOLVED that the Boulder County Transportation Department
is authorized to proceed with construction of such improvements using the
easements as authorized in this agreement.
* SEAL p~ DOPTED this day of 2009.
BOARD OF COUNTY COMMISSIONERS:
O Q
Nry,G~ Ben Pearlman, Chair
ATTEST: Will T-eer, Vie hair In y omernca
Clerk to the Boar Gimdy Pameniee, Commissioner
Will Toor