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HomeMy WebLinkAboutresolution.council.046-97 e RESOLUTION NO, 11&> Series of 1997 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN, PITKIN COUNTY, COLORADO, AND THE DEPARTMENT OF TRANSPORTATION, STATE OF COLORADO, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Intergovernmental Agreement between the City of Aspen, Pitkin County, and the Department of Transportation, State of Colorado, a copy of which contract is annexed hereto and made a part thereof. e NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves that Intergovernmental Agreement between the City of Aspen, Pitkin County, and the Department of Transportation, State of Colorado copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said agreement on behalf of the City of Aspen. . e . . Section Two. In the event that the purchase of the Denver & Rio Grande Western Railroad, Aspen Branch does not take place as contemplated in the Intergovermnental Agreement, the City Manager is hereby authorized to return the funds provided by the Department of Transportation, State of Colorado, and to terminate the Intergovernmental Agreement. Dated: ~ ,1997. ~8~ John . Bennett, Mayor 9 I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held r. 9 1997. ~~~ e - . Co:rrl:ide:n.:tia.1 A.-t-to:r:n.ey-CUe:n.:t CO:n1:D1.u.:n..:ica.-tio::n l.YIe:x:n..o:ra.:n.d-uxn. TO: Mayor and Members of Council FROM: John P. Worcester, Aspen City Attorney DATE: April 21, 1997 RE: D&RGWRR Acquisition - Colorado Dept. of Transportation Grant Agreement Attached please fmd a copy of the Colorado Department of Trausportation Intergovernmental Agreement. This document is appended to the RFRHA IGA as Exhibit "C". It is the agreement authorizing a grant of $2,000,000.00 towards the purchase of the right-of-way. Parties: The Agreement is between CDOT, Pitkin County and the City of Aspen. The RFRHA IGA, however, makes clear that all the governmental entities will be responsible for complying with the obligations imposed by the Agreement. Pitkin County and the City of Aspen are signatories to make the process simpler and because CDOT doesn't want to have to deal with all of the governmental entities. Section II - CDOT commits to contributing $3.0 million towards the purchase of the right -of- way. Pitkin County is established as the fiscal agent to receive the funds on behalf of RFRHA. Section m. - State Commitments: A. - CDOT commits to work with RFRHA on the remaining studies that will be needed as part of the Comprehensive Plan referenced in the RFRHA lOA. B. - Parties agree that except for existing uses on the corridor and any actions required by the federal Surface Transportation Board no new uses will be allowed unless/until appropriate NEP A requirements are followed. At the end of the paragraph this section does recognize that certain interim uses are contemplated pending the adoption of the Comprehensive Plan. These interim uses will be identified and appended as Exhibit "B". This Exhibit is the same exhibit referenced in the RFRHA IGA as the permitted uses (crossings) while the Comprehensive Plan is developed. Section IV - County and City Commitments A. City and County agree to work with RFRHA in developing Comprehensive Plan. Confidential Attomey-Client Communir.ation - Page 1 i I e e e Confidential Memorandum From John P. Worcester. Page 2 B. $750,000 of RFRHA's non-CDOT funding will be set aside to meet the required match for the $3.0 million CDOT is contributing from their federal funds. C. We commit to implementing a "multi-modal transportation system" by the year 2020. The defInition of a multi-modal transportlltion system was left vague deliberately as we can't predict at this point what sort of technology might be used in 10-20 years and to allow us some flexibility on how we meet this commitment. If this commitment is not met by the year 2020, we agree to repay the $3.0 million grant. This contingent obligation is subject to appropriations and annual budgeting of the City and County when, and if, we ever need to repay the money. F, The April I, 1997, date for closing will be changed before we sign the agreement. Section V - General Provisions Most of these sections are boiler plate. Subsection 0 may appear a little complex, but it merely attempts to clarifY that the Agreement and the repayment obligation is not "debt' within the meaning of Amendment One. . OUTSTANDING ISSUES Access Plan needs to be approved by GoCo and CDOT. cdotl.doc Confidential Attorney-Chent Communication I e e e 4/4-/q-; SH 82 FROM 1-70 to WOODY CREEK Pitkin, Garfield, and Eagle County/CDOT ~ERGOVERNMENTALAGREEMENT THIS INTERGOVERNMENTAL AGREEMENT is made this day of , 1997, by and between the State of Colorado for the use and benefit of THE DEPARTMENT OF TRANSPORTATION, hereinafter referred to as "the State", PITKIN COUNTY, STATE OF COLORADO, hereinafter referred to as "the County", and the CITY OF ASPEN, STATE OF COLORADO, hereinafter referred to as "the City". WHEREAS, authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment of $3,000,000 in Fund Number 400, Organization 9991, Appropriation 010, Program 5000, Function _, Object 4210, Originating Unit 0526, Project Number 1176700M; and, WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and, WHEREAS, the County has been established as the legal entity for accepting funds for the purchase of the Aspen Branch Une which goes from Glenwood Springs to Woody Creek, hereinafter referred to as "the Rail Line"; and, WHEREAS, the local governments in the Roaring Fork Valley including the County and City have established the Roaring Fork Railroad Holding Authority, hereinafter referred to as "RFRHA" for the purpose of purchasing the Rail Une; and, WHEREAS, RFRHA, pursuant to its organizational document attached hereto as Exhibit A, is authorized to enter into agreements and spend money on behalf of its member entities for multi-modal transportation purposes; and, WHEREAS, RFRHA has authorized the County and City to act as its agents for purposes of this agreement; and, Page 1 - e e WHEREAS, the purchasing of the Rail line has been identified as an integral part of any comprehensive multi-modal transportation solution for the Roaring Fork Valley; and, WHEREAS, the SH 82 corridor from Aspen to Glenwood Springs has been included in the Strategic Project Investment Program; and, WHEREAS, RFRHA has successfully negotiated an agreement with the Southern Pacific Transportation Company for the purchase of the Rail line for a total cost of $8,500,000; and, WHEREAS, a total of $5,500,000 has been either raised or committed by local governments in the Roaring Fork Valley as well as other state agencies leaving a balance of $3,000,000 needed to complete the purchase of the Rail Line; and, WHEREAS, this agreement is executed by the County and City under authority of an appropriate ordinance or resolution duly passed and adopted by the authorized representatives of the County and City, copies of which are attached hereto and made a part hereof; and, WHEREAS, the Colorado Transportation Commission by resolution and budget action approval on December 19, 1996 has authorized the funding of $3,000,000 of federal funds and execution of this agreement; and, WHEREAS, the State and Colorado Transportation Commission are authorized to enter into intergovernmental agreements for purposes of assisting multi-modal transportation solutions pursuant to c.R.S. 43-1-102 (6) and43-1-106 (14); and, WHEREAS, this agreement is executed by the parties pursuant to Article XIV Section 18 of the Colorado Constitution and under authority of Sections 29-1- 203, 43-1-110, and 43-1-106 (14), C.R.S., as amended; and, NOW, THEREFORE, it is hereby agreed that: 1. PROJECT DESCRIPTION This agreement establishes the general provisions for and defines certain responsibilities of the State, the County, and the City regarding the purchase of the Rail Line from the Southern Pacific Transportation Company. Page 2 e n. PROJECT FUNDING PROVISIONS A. The State shall contribute a total $3,000,000 from federal funds as its share of the total cost to purchase the Rail Line which has been established to be $8,500,000. B. The County has been established as the agency to receive fimds on behalf of RFRHA for the purchase of the Rail Line. The remaining funds needed to purchase the Rail Line have either already been commitlted or funding approval given for the remaining $5,500,000. ill. ST ATE COMMITMENTS e A. The State will work with RFRHA on the remaining studies that need to be completed to advance the implementation of the final set of preferred transportation solutions for the Roaring Fork Valley. The State will participate in planning efforts either through the State's Regional Transportation Director (or designated representative), Region 3, located in Grand Junction or the Director of Transportation Development (or designated representative) located in Denver. At a minimum, a Corridor Investment Study/Comprehensive Plan will be prepared and mutually accepted by CDOT and RFRHA. e B. Except as necessary to carry out existing uses of the property and to implement requirements imposed under the Interstate Commerce Commission Tennination Act, related statutes, regulations and orders of the Surface Transportation Board, and to maintain property in a reasonable and prudent fashion, no physical use and/or construction impacts to the rail right-of-way will occur untiVunless appropriate National Environmental Protection Act (NEP A) documentation is completed, including satisfying the provisions of Section 4 (f) and Section 106, as appropriate, with agreement of the State Historic Preservation Officer and the Advisory Council on Historic Preservation. Nothing herein shall restrict operations by Southern Pacific or its successors within the "wye" to the extent pennitted under rights retained by Southern Pacific in its contract with RFRHA, nor shall anything herein be deemed to bar existing public uses or the interim uses planned by various governmental entities as set forth in Exhibit "B" attached hereto. Page 3 e . . HPR 23 '97 12:32PM CDOT-DIV ,RAN5F ui::vi::i..urf'It::Ni r.c./i IV. COUNTY AND CITY COMMITMENTS A. RFRHA was established by an intergovernmental agreement (pursuant to C.R.S, 29-1-203) to acquire the Rail Line, and to manage and plan for 1I:he use of the Rail Line to the benefit of the general public. The County and City shall work cooperatively with RFRHA to ensure the completion of necessary planning studies for identifying the best multi-modal transportation solution for the Roaring Fork Valley. At a minimum this will include a transportation master plan with emphasis on the future use of the Rail Line. B, The County and City will set aside $750,000 ofRFRHA's funding as the State's match for the federal funds used to purchase of the Rail Line, C. A multi-modal transportation system utilizing the Rail Line corridor shall be implemented by the year 2020, The multi-modal transportation system can include rail, bicycle/pedestrian/cross country/equestrian trails as a conidor joint use facility but shall not be limited to such uses. If a multi. modal transportation system is not implemented by December 31, 2020, the County and City agree to repay the State the full amount set forth in this agreement, $3,000,000 without interest. The obligation of the County and City to repay the grant to the State is expressly made subject to the appropriation and annual budgeting of sufficient funds for that purpose and appropriated by the County and City. The parties understand that the multi- modal transportation system may utilize property outside the current conidor if deemed necessary for design. engineering, or cost considerations, or to improve the efficiency of the rail or trail components of the system. D, The County and City assure the State that none of the $5,500,000 already raised for the pUrchase of the Rail Line is from other federal funding sources, E. It is the intent of the parties to use $4,750,000 of the purchase price as matching funds for potential additional federal funding, F, The County and City shall use the funds provided in this agreement only for the purchase of the Rail Line which is to take place no later than July 1, 1997. If the County and City fails to use the funds by July 1, 1997 the County and City shall repay the full amount pursuant to Section V paragraph A. Page 4 ~. 1I" GENERAL PROVISIONS V. A. This agreement may be terminated as follows: (a) Termination for Cause. If, through any cause, the County and City shall fail to fulfill, in a timely and proper manner, its obligations under this agreement, or if the County and City shall violate any of the covenants, agreements, or stipulations of this agreement, the State shall thereupon have the right to terminate this agreement for cause by giving written notice to the County and City of such termination and specifying the effective date of such termination. In that event that the agreement is terminated for cause the County and City shall reimburse the State the entire amount paid to the County and City for the project in a lump sum payment made within thirty (30) days of the termination. .- If after such termination it is determined, for any reason, that the County and City was not in default, or that the County and City's action/inaction were excusable, such termination shall be treated as a termination for convenience, and the rights and obligations of the parties shall be the same as if the agreement had been terminated for convenience, as described herein. (b) Termination for Convenience. The State may terminate this agreement at any time the State determines that the purposes of the distribution of funds under the agreement would no longer be served by completion of the purchase. The State shall effect such termination by . giving written notice of termination to the County and City and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. . (c) Termination Due to Loss of Funding. The parties hereto expressly recognize that the County and City is to be paid, reimbursed, or otherwise compensated with funds which are available to the State for the purposes of contracting for the purchase provided for herein, and therefore, the County and City expressly understands and agrees that all its rights, demands and claims to compensation arising under this agreement are contingent upon availability of such funds to the State. In the event that such funds or any part thereof are not available to the State, the State may immediately terminate or amend this agreement. Page 5 - e The State recagnizes that its grant is 'Only a part 'Of the tat~1 purchase price 'Of $8,500,000 necessary far acquisitian 'Of the right-af-way, and that if the entire funding is nat available ta RFRHA and/ar the County and City, that the agreement is tenninated and the Caunty and City shall return any manies received by the State far purpase 'Of the acquisitian within thirty days fram tenninatian, withaut interest, and withaut further abligatian ta the State. B. Natwithstanding anything herein ta the cantrary, the parties understand and agree that all terms and conditians 'Of this agreement and attachments hereta which may require cantinued performance 'Or campliance beyand the tenninatian date 'Of the agreement shall survive such tenninatian date and shall be enfarceable by the State as pravided herein in the event 'Of such failure ta perfarm 'Or camply by the Caunty and City. C. This agreement is subject ta such madificatians as may be required by changes in federal 'Or State law, or their implementing regulatians. Any such required madificatian shall autamatically be incarparated inta and be part 'Of this agreement an the effective date 'Of such change as if fully set farth herein. Except as provided abave, na madificatian 'Of this agreement shall be effective unless agreed ta in writing by bath parties in an amendment ta this agreement that is praperly executed and approved in accardance with applicable law. D. Ta the extent that this agreement may be executed and perfannance 'Of the abligatians 'Of the parties may be accamplished within the intent of the agreement, the terms 'Of this agreement are severable, and shauld any term 'Or provisian hereaf be declared invalid 'Or became inaperative far any reasan, such invalidity 'Or failure shallnat affect the validity of any ather term 'Or provisian hereaf. The waiver 'Of any breach 'Of a term hereaf shall nat construed as a waiver 'Of any ather term, 'Or the same term upan subsequent breach. E. e This agreement is intended as the camplete integratian 'Of all understandings between the parties. Na priar 'Or cantemparaneaus additian, deletian, or ather amendment hereta shall have any farce 'Or effect whatsaever, unless embadied herein in writing. Na subsequent navatian, renewal, additian, deletian, 'Or ather amendment hereta shall Page 6 e . . have any force or effect unless embodied in a written ,agreement executed and approved pursuant to the State Fiscal Rules. F. Except as herein otherwise provided, this agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. G. The Special Provisions attached hereto are hereby made a part of this agreement. H. The County and City shall be cognizant of and comply with federal requirements under this federally funded agreement, 49 CFR, Part 18. I. The County and City represents and warrants that it currently has no interest, and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of the County and City's obligations under this agreement. The County and City further covenants that, in the performance of this agreement, it will not employ any person or firm having any such known interests. 1. This agreement shall become "effective" only upon the date it is executed by the State Controller, or designee. The term of this agreement shall begin on the date first written above and shall continue through the completion and final acceptance of this project by the State, County, and City. K. During the performance of all work under this agreement, the parties hereto agree to comply with Title VI, of the Civil Rights Act of 1964, the salient points of which are shown in the Non-discrimination Provisions attached hereto and made a part hereof. L. If a conflict occurs between the provisions of this agreement proper and the attachments hereto, the priority to be used to resolve such a conflict shall be as follows: 1. The Special Provisions and the attachments enumerated in Section V, paragraph L, above; and 2. This agreement proper; and 3. Other agreement attachments and exhibits. Page 7 MPR 27 '97 04:58PM CDOT-DIV TRANS? DEVELlJPf1ENT e . e ....:1...-.;; M. It is expressly understood and agreed that the enforcement of the terms and conditions of this agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the parties hereto" and nothing contained in this agreement shall give or allow any .such cWm or right of action by any other or third person on such agreement. It is the express intention of the parties that any person or entity other lban the parties receiving services or benefits under this agreement be deemed to be an incidental beneficiary only. N, The County and City assures and guarantees that it possesses the legal authority to enter into this agreement. The County and City warrants that it has taken all actions required by its procedures. by-laws, andlor applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to e;c:ecute this agreement and to bind the County and City to its term The person(s) executing this agreement on behalf of the County and City warrant that they have full authorization to execute this agreement. o. Multiple Year Obligations of the Citv of Aspen and Pitkin County To make certain the understanding of the partieS because this Agreement will extend beyond the current fiscal year, COOT understands , acknowledges, agrees, and intends 4hat ilothing in this Agreement shall be construed to constitute a current obligation or eXpense of the City of Aspen or Pitkin County. The City of Aspen' 9 and Pitkin County's obligations to repay all or any portion of the grant, or any other payment obligation, in any given fiscal year, is expressly contingent upon appropriation and budgeting of the funds for payment in a given fiscal year by the City of Aspen or Pitkin County. It is only after the foregoing condition has been met that any payment or repayment obligation shall constitute an obligation of the City of Aspen or Pitkin County. Neither the City of Aspen nor Pitkin County has pledged the full faith and credit of the City of Aspen ot Pitkin County to the payment of any obligation hereunder, and this Agreement shall not . directly obligate the City of Aspen or Pitkin County or any agency or department thereof to apply money ~om, or levy or pledge any form of taxation or other revenue source to, the payment o.f obligations in this Agreement. , Page 8 e e . IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. - A ITEST: By Chief Clerk CLIFFORD W. HALL State Controller By ATIEST: (SEAL) By Title ATTEST: (SEAL) By Title STATE OF COLORADO ROY ROMER, GOVERNOR By Executive Director DEP ARTMENT OF TRANSPORT AnON APPROVED: GALE A. NORTON Attorney General By BARRY B. RYAN Assistant Attorney General Civil Litigation Section PITKIN COUNTY, COLORADO By Title Federal Employer Identification Number: CITY OF ASPEN, COLORADO By J~ /3~- Title '1f4-bCJOD~b.3 Federal Employer Identification Number: Page 9