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HomeMy WebLinkAbout04/19/2011, B4- RAILROAD SAFETY TRAIL AND PREFUMO CREEK BRIDGE PROJECT UPDATEScounci lj acEnaa uEpoat Meeting Date 4/19/1 1 Item Number C I T Y O F S A N L U I S O B I S P O FROM : Jay D . Walter, Director of Public Works Prepared By: Peggy Mandeville, Principal Transportation Planne r Dan VanBeveren, Senior Civil Enginee r SUBJECT : RAILROAD SAFETY TRAIL AND PREFUMO CREEK BRIDG E PROJECT UPDATE S RECOMMENDATIO N 1.Direct staff to continue its efforts on the alternative alignment designs for the Railroad Safet y Trail, pursuing approval from the State of California and utilizing City right-of-way where possible . 2.Direct staff to begin preparation of plans and specifications for the Los Osos Valley Roa d alternative for the Prefumo Creek Bridge Safe Route to School project . REPORT IN BRIE F This report provides update and revised recommendations for implementation on two majo r bikeway projects being undertaken by the City : 1) the Railroad Safety Trail and 2) the Prefum o Creek Bicycle Bridge to Laguna Middle School . The projects have encountered obstacles t o completion mostly having to do with acquisition of right of way and access across privately hel d property . This report discusses alternative assessments conducted for each of these projects an d recommends alternatives for Council consideration to the previously approved projec t alignments . DISCUSSION Railroad Safety Trai l 1 . Backgroun d The City has been working on the Railroad Safety Trail project since the late 1990's . The Cit y Council approved the overall trail concept in 2001, and in 2004, the City submitted plans t o Union Pacific Railroad (UPRR) for the City's proposed Railroad Safety Trail . The Railroad Safety Trail is a Class I (separated facility) bikeway which would be built parallel to the existing railroad tracks, and would be constructed partially on UPRR right-of-way . Attachment 4 show s segments and phase areas for reference . UPRR conceptually agreed to the trail as reflected in th e plans, subject to several conditions set forth in a letter dated November 2004 (Attachment 1). Following UPRR's conceptual approval, staff moved forward with obtaining grant funding fo r the trail based on the approved alignment, and hired consultants to complete design an d environmental studies in order to prepare plans for construction . The City has also recentl y undertaken certain maintenance and improvement obligations on UPRR property throughout the Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 2 City as a condition for the license agreement for the portion of the trail that was constructed i n 2009 . In the summer of 2008, when staff submitted plans to UPRR for final approval of the bike pat h between the Amtrak Station and Hathway Avenue and to enter into necessary license agreement s to proceed with the construction, staff was then advised by UPRR that the bikeway project wa s not consistent with current UPRR policy . Specifically, UPRR policy does not allow for publi c pathways to be constructed within 40 feet of the centerline of the railroad tracks . In order for UPRR to consider approving the project, the pathway would need to be redesigned to be i n compliance with this requirement. Staff continued discussions with UPRR officials, provided th e previous documentation of conceptual approval, noted the safety benefits of such a projec t through fencing of the railroad tracks, and communicated the fact that the project was no t feasible based on the new terms stated by UPRR . Simply stated, it would not be possible for a pathway to be built along this corridor and remain greater than 40 feet from the centerline of th e tracks . Despite the information submitted by City staff and the previous conceptual approval b y UPRR, UPRR remained firm on its position to deny the Railroad Safety Trail . In October 2009, the Public Works Director, the Mayor and the City Manager were invited t o meet with UPRR officials to further discuss the matter and gain approval for the licens e agreement for this trail section. City staff was not successful in solidifying an agreement . Rather , UPRR restated its position that a trail could not be constructed in the location previousl y approved based on its policy (Attachment 2). UPRR has continued to refuse to consider an y proposed trail project, in any form, that would occupy the active right-of-way and is closer tha n 40 feet to the railroad tracks . Staff contacted several railroad consultants about the UPRR denial and learned that the origina l support from UPRR in 2004 was fairly unconventional/unusual and that they felt the City's bes t opportunity to get approval from UPRR for a trail alignment would be if the project wer e redesigned to be greater than 40 feet from the tracks . Due to the limited width of UPRR right-of- way, the only option would be to design a new alignment which would not be located in th e right-of-way, with exception of a few locations where a bridge would cross over the tracks . Staff concurred with this assessment and notified Council in a memo dated February 16, 201 0 (Attachment 3) that staff would begin exploring alternate routes that would complete the trail , and present new trail options to the Council by June 2011 . Staff has undertaken extensive wor k to evaluate other alignment alternatives for the Railroad Safety Trail . The following is a description of each section . 2.Amtrak Station to Marsh Street (also known as Phase 3 ) Staff and the Bicycle Advisory Committee recommend a connected route of on-street bicycl e boulevards on low volume streets (Islay and Toro) to complete this section . This route would b e within City right-of-way and therefore will not require any approvals from UPRR . 3.Marsh Street to Hathway Avenu e In consultation with the Bicycle Advisory Committee, staff has developed a conceptua l alignment that minimizes the need for UPRR right-of-way, and still accomplishes the objectiv e of completing a Class I pathway along this stretch. The pathway would utilize the eastern edge of Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 3 the Pepper Street right-of-way, continue north across a new bridge over Monterey Street, cros s the railroad tracks on a second bridge linking Pepper Street to the California Highway Patro l (CHP) property, and continue to the southern edge of the existing pathway at Hathway b y utilizing the existing California Blvd bridge over Highway 101 (Attachment 4 and 5). Staff has met with CHP about the possibility of using the rear of its property, and initial discussions wer e very encouraging . Subsequent verbal conversations with the Public Utilities Commission (PUC ) and UPRR real estate and operations divisions indicate their support for the trail realignment . Staff has proposed one new Capital Improvement Project in the 2011-13 Financial Plan (Taft t o Pepper) to proceed with these new alignments, minimizing the use of UPRR right-of-way, an d utilizing the remaining grant funds approved for the original project . The Hathway to Taft project utilizes existing grant funding to complete the design and construction while the Taft to Pepper project utilizes State Highway Account (SHA) funds to begin the effort to develop a design and receive the necessary approvals from UPRR, PUC and CHP . The City would the n seek future grants to complete the project's design and construction . 4 . Foothill Blvd . to Campus Way Phase 4A Updat e Although the Phase 4A bike path construction appears to be complete, the City has had to sto p work on the project while waiting for an agreement to be processed with UPRR . The reason fo r stopping the work is that the current traffic signal near the railroad crossing cannot be modifie d until the existing pre-emption circuits are moved on the tracks, and new conductors are in plac e at the railroad cabinet . The delay has caused staff to demobilize the contractor while waiting fo r the agreement . This delay has also prevented the City from performing the final work to th e signal and opening the bicycle path to the public. The agreement with UPRR was approved in March 2011, and UPRR's crews have been scheduled :o begin the work on April 26, 2011 . Once UPRR completes its work, the City's contractor will complete the remaining signal work a t Foothill and California . Staff estimates that this phase of the project to be completed by the en d of July, 2011 . Prefumo Creek Bridge Project On September 19, 2006, the City Council approved a General Plan amendment, rezone and minor subdivision to allow the Windermere Condominiums to sell their recreation building as a dwelling unit . As a condition of approval for the sale, the Council required dedication of a n access easement for the City to construct a pedestrian and bicycle path, along with a bridge ove r Prefumo Creek, to access the existing Vista Lago Park from Oceanaire Drive . The bridge an d path would serve the needs of both bicyclists and pedestrians by providing a preferable route t o traveling on Los Osos Valley Road (LOVR) to access the area schools and neighborhood s (Attachment 6). In May 2007, a grant for $798,600 from the Safe Routes to Schools program was approved fo r the project. In October 2008, design was started on the bike / pedestrian path and bridge . With a preliminary design nearly completed, staff presented the project to residents within the vicinity o f the bike path for public comment . Some residents, including several property owners in the Windermere Condominiums, were strongly opposed to the bike path . This opposition Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 4 culminated in an appeal by a Windermere Condominium homeowner of the Architectura l Review Commission's (ARC) action to approve the project . At the City Council meeting on March 16, 2010, the City Council voted 3 :2 to deny the appea l and uphold the ARC's action to approve the project, along with a Mitigated Negative Declaratio n subject to mitigation measures and conditions to expand the path width and evaluate pat h lighting (Attachment 7). The Council also voted 5 :0 to direct staff that if the project as designe d and approved by the ARC and City Council becomes infeasible, then staff should return t o Council with an alternate route consistent with grant funding provisions . One such way that i t would be clear that the alternative needed to be pursued is if Windermere homeowners decided to forego granting the City easements for the bike path . Soon after the March 16, 2010 Council meeting, the Windermere Condominium Homeowners ' Association (HOA) Board sent a ballot concerning the granting of an easement to it s homeowners . On the granting of an easement for the bike path project, the vote was 11 in favo r and 25 not-in-favor with 13 of the 49 ballots not returned . Although staff did not see the ballo t language, it is certain that the ballot did not include any property appraisal information . The vote to sell the recreation room for conversion to a residence also did not pass . In order for the City to exhaust all possible opportunities with regard to this project, staff pursue d three options, described below . Staff is recommending Item #3 pursuing an alternative routin g for the connection that utilizes existing street right of way along Los Osos Valley Road : 1.Easement Appraisal and direct compensation .Staff had an appraisal of the Windermer e easement prepared and presented it to the HOA board. The board conducted their ow n appraisal which valued the easement at approximately 3 times the appraisal prepared for th e City . The City's appraiser reviewed Windermere's appraisal and did not concur with it s assumptions of developable land and damages . After sharing this review, the HOA boar d notified the City that they unanimously supported their own appraisal and that they were no t interested in entertaining any offers lower than the one presented in their appraisal . The HO A noted that the motivation to sell was low and therefore the City "must be willing to provid e the owners with sufficient financial incentive above the assessed value to approve the sale". Further, the HOA board reiterated they would not enter into any agreement with the Cit y without obtaining 100 % approval from its 49 members . Given these two significant hurdles staff does not recommend pursuing this alignment any further and instead direct its efforts to other options . 2.Other Creek Crossing Locations .Staff investigated other possible locations for a bicycl e pedestrian bridge across Prefumo Creek . One other location was identified, however, th e neighborhood connection would not be as direct as the Windermere easement and it woul d require easement acquisitions from two property owners, one of whom was contacted and di d not express an interest in granting the City an easement for the appraised value . 3. Alternative Route on LOVR .Staff evaluated alternative designs and has determined that it i s possible to construct a two-way 12 foot wide path along the northeast side of LOV R (Attachment 8). Given this ability, staff has requested Caltrans approval of a time extension Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 5 and change to the project description to move the Safe Routes to School grant funding to th e LOVR alternative route . If approved, the project has sufficient grant funding to complete th e project . Although not the preferred route, staff recommends that the City proceed with th e LOVR alternative route because it is feasible and does not require the use of any privat e property to make the connection . CONCURRENCE S The Bicycle Advisory Committee and County Bike Coalition Board has been kept apprised o f staff efforts on each project and has been supportive of staff's recommended course of action . FISCAL IMPAC T The Hathway to Taft project proposes to utilize approved BTA grant funding which ha d previously programmed for the Amtrak Station to Marsh Street project . The Taft to Peppe r project proposes to utilize SHA funds, as well as existing and future grant funding, to pay for the design and construction of the project . Grant Funding Impacts UPRR's reversal of approval for the Railroad Safety Trail conceptual design adversely impacte d the City's plans for two grant funded projects, Amtrak to Marsh Street and the Highway 10 1 pedestrian/bicycle bridge . Staff has requested grant time extensions and shifts in funding to othe r sections of the Railroad Safety Trail with the goal of utilizing all of the grant funding approve d to- date . Original Grant Amount/ Approved Funding Grant Deadlin e Shift to :Remainin2 .FundinR Amtrak Station t o Marsh Street BTA $890,000/$500,000 Foothill to Campu s Hathway to Taft April 30, 201 1 (time extension requested) Highway 101 Bridge BTA/SHA $495,000/$158,000 Taft to Pepper April 1, 2015 ALTERNATIVES Railroad Safety Trail Projec t 1.The Council could consider other alternative routes such as utilizing California Blvd . to Phillips Lane . Although much less expensive to implement, staff does not recommend thi s alternative because of the number of driveways that would need to be crossed and th e complexities of two-way travel on one side of the roadway . 2.The Council could consider negotiating further with UPRR on the City's preferred route . Staff does not recommend this alternative because staff does not believe the City will b e successful in our efforts and the grant funding received to date would be put further as ris k without the certainty of an approved route . Trail Sectio n Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 6 3.The Council could consider abandoning the project altogether . Staff does not recommen d this alternative because completing this segment between Marsh Street and the curren t terminus at Hathway Street will provide a direct bicycle and pedestrian route from th e downtown to the Cal Poly campus . Prefumo Creek Bridge Projec t 4.The Council could consider negotiating further with the Windermere homeowner's association . Staff does not recommend this alternative because it would be very costly an d the likelihood of receiving 100 percent property owner approval is low . 5.The Council could consider abandoning the project altogether . Staff does not recommen d this alternative because there is still a need to provide an improved bicycle and pedestrian connection between the two neighborhoods . ATTACHMENT S 1. UPRR letter of November 2004 2. UPRR letter of November 200 9 3.Council memo of February 201 0 4.UPRR Alternative Alignment Map and Segments Ma p 5.Aerial Photo of Alternative Alignment 6.Prefumo Creek Bridge Site Ma p 7.Council Action of Prefumo Creek Bridge Projec t 8.Proposed LOVR Street Cross Sectio n \\chstore4\Team\Council Agenda Reports\Public Works CAIWull\fransportation\RRST-Prefumo Update\CAR RRST-Pretumo projec t updates-final.doc ATTACHMENT I November 17, 2004 Ms. Peggy Mandeville Public Works Department. City of San Luis Obisp o 955 Morro Street San Luis Obispo, CA 9340 1 RE : Proposed San Luis Obispo Safety Trail, MP-248 .53 to 246 .93 CoastSubdivision, San Luis Obispo,CA Ms. Mandeville : This letter is in response to our review of the plans that were submitted by Mr.Michael McCluskey, dated July 26, 2004 for the proposed San Luis Obispo Safety Trail . The Union Pacific Railroad conceptually approves the design plans with the following exceptions. and for criteria that the city will be responsible for . • Any/all utility adjustments including but not limited to ; pipeline, wireline and fiber optics•All drainage, stormwater etc . must be diverted off railroad property and handle d properly by city drainage- infrastructure . Any proposed drainage issues will nee d approval from the UPRR before construction can begin . The city shall submit drainage proposals and plans for our review and approval . :_ Install and maintain 10' security fence with top return from Palm Street, just south o f Mill Street to the Calpoly campus past Foothills Blvd to the existin g.private crossing at MP-246 .93, DOT 745351 H •Vegetation shall not be planted and existing vegetation maintained 'to CPUC/FRA standards within 300' in either direction from Marsh Street MP-248 .15,: DO T 745356S as well as all other at grade crossings within the city jurisdiction: •At Mill Street, keep the trail at the same distance from the track between F-F on each , side of the overpass where the trail is within 25' from the track . •- Proposed 8' fenced access on west side of tracks, as indicated on sheet 5, labele d "fence to begin after last existing gate", to Foothills Blvd MP-247 .15, DOT 745352P , will not be permitted on UPRR property. Fencing and/or access will have to be o n the West Side of the property line ;city to work with adjacent landowners to provide d desired access. Patrick A. Ken Manager Industry & Public Projects, Engineering Department UNION PACIFIC RAILROAD , 16831 Foothills Boulevard, Roseville, CA 9574 7 ph. (916) 789-6334 6E. (916) 789-6333 UI'10 7 PACIFIC itC1't 7 '?r -n i L r_ c'vv4 ATTACHMEN T PACIFI C • The UPRR and CPUC must approve. any/all new or modified grade separations.. Our conceptual approval does not give permission or approval for any new or modified crossing. The City of San Luis Obispo shall pay 100% of all costs associated with this project at n o cost to the Union Pacific Railroad . This conceptual approval does not include any rea l estate issues that may apply for this project, nor does this conceptual approval provid e any authority or approval for construction of said-safety trail . Construction will only b e permitted when a fully executed Construction and Maintenance license agreement i s entered 'into between the Union Pacific Railroad and the City of San Luis Obispo.. The City of San Luis Obispo will be required to enter into our standard license agreement that contains'a provision that either 'party may terminate said agreement for any reason with a 30 day written cancellation notice . If for any reason this agreement is terminated ' by either party, the city will be responsible for removal of said trail and returning the property to its original condition. At this time, the City should prepare the plat map and legal description for the propert y required to construct the safety trail so we can evaluate and appraise the value of sai d property issues. If the city will not construct the trail all at once;please provide a phasing and timing schedule for our use . If you have any questions please contact me at (916 ) 789-6334 . CC Tom Ogee,UPRR Steve Berki, UPRR David Peterson, UPR R Carol Harris, UPRR Patrkk A. Kip; Manager Industry & Public Projects, Engineering Department _ UNION PACIFIC RAILROAD 10031 Foothills Boulevard, Roseville, CA 9574 7 nh_(9%I 7A0-MA rr .IQI 7AQXi t*4 Patric A.e Manager of Industry and Public Project s Union Pacific Railroad ATTACHMENT Z-- Scott D. Moore Vice President Public Affairs November 3, 2009 Honorable Dave Romero Mayor, City of San Luis Obisp o 990 Palm Stree t San Luis Obispo, CA 9340 1 Dear Mayor Romero: Let me begin by thanking you and your team for coming to our Western Region offices here i n Roseville, CA for our meeting on October 14, 2009 . It was a pleasure to meet you and I was personally impressed with your decades of service to your community . This letter will serve as a written response to the request you made of Union Pacific in our meeting and the subsequen t letter transmitted that same day . UP sometimes receives requests for projects that involve pedestrian and bicycle paths that woul d utilize our existing rights of way or cross the tracks at-grade . We believe that such project s would place pedestrians and bicyclists in harm's way and for that reason UP has a consisten t policy of denying such requests for longitudinal easements on our property along an active rai l corridor. For this reason I regret to inform you that we must deny your request . We are willing to continue with the precedent set with Phase 1 of this project . The Railroa d would be willing to give the City a lease under the same terms and conditions as our lease dated December 22, 2008, covering the area from approximately Foothills Boulevard to Highway 101 . Those tenns include the provision that the leased area is no closer than 40 feet from the centerlin e of our track, and that the leased area may be used for a vandal resistant security fence an d landscaping . That agreement provides that the trail itself, except for a couple minor pavemen t encroachments, is not on the Railroad's property. We would need to see the City's plans for both the Phase 2 and Phase 3 areas at the same time, including a separate pedestrian bridge ove r Highway 101, before considering approval of an extension of the lease from Highway 101 to th e depot . Union Pacific values the positive working relationship we have with you and your community . We look forward to a continued good working relationship on this project and others in th e fixture . If I can be of further assistance or provide further illumination on this matter please d o not hesitate to call . cc : Kenneth Hampian, City Manager, City of San Luis Obisp o Jay Walter, Public Works Director, City of San Luis Obisp o Wes Lujan, Public Affairs Director, Union Pacific Railroa d Lisa Burnside, Sr. Manager Real Estate, Union Pacific Railroa d UNIONPACIFIC UNION PACIFIC RAILROAD 10031 Foothills Blvd ., Roseville, CA 95747 (916) 789-6015 'ATTACHMENT ,3 council mEmoaanOu m February 16, 201 0 TO : City Council FROM : Katie Lichtig, City Manage r Jay D . Walter, Public Works Directo r SUBJECT : OPTIONS FOR DEALING WITH UPRR RIGHT-OF-WAY DECISION RECOMMENDATIO N Provide direction to staff on whether to proceed with follow-up negotiations with Union Pacifi c Railroad (UPRR) to obtain right-of-way in light of its decision to reverse its 2004 approval t o allow the Railroad Safety Trail bike path to occupy its active right-of-way . DISCUSSIO N Background In 2004, the City submitted plans to UPRR for the City's proposed Railroad Safety Trail, whic h reflected construction of portions of the trail on UPRR right-of-way . UPRR conceptually agreed to the trail as reflected in the plans, subject to several conditions set forth in the attached lette r dated November 2004 . In reliance on the conceptual approval and consistent with the state d conditions, the City undertook certain maintenance and improvement obligations on UPR R property . Staff also moved forward with obtaining grant funding for the construction of the trai l in compliance with those plans . In the summer of 2008, when staff returned to UPRR to finalize plans and enter into necessar y license agreements to proceed with the construction of the Phase 4 section of the trail, staff wa s advised that more information would be needed before UPRR would consider approving furthe r sections of the trail . Staff continued discussions with UPRR officials, including submitting al l required information, but still did not receive final approval . In October 2009 the Mayor, alon g with City staff, met with UPRR officials in an attempt to gain approval for the license agreement . UPRR denied the City's request for the trail to be constructed in the location conceptuall y approved based on their policy to not allow uses within 40 feet of the center line of the tracks . UPRR has proven intransigent in its refusal to further consider the proposed trail project in an y form that it occupies the active right of way . UPRR's reversal adversely impacts our plans for both Phase 3 (Amtrak to Marsh Street) and th e Highway 101 pedestrian/bicycle bridge. In addition it puts in jeopardy any future plans to utiliz e the rail right of way for a trail project. As a consequence of UPRR's change in position, staff acted quickly to reprogram and, thus, preserve $1 .2 million in American Recovery and Reinvestment Act (ARRA) grant funding that was previously programmed for Phase 3 of th e Railroad Safety Trail (RRST) to the upper Monterey paving and sidewalk installation project . B4-10 ATTACHMENT 3 Options for Dealing with UPRR Right-of-Way Decision Page 2 Staff is now seeking direction from the Council regarding whether any further action i s warranted, given UPRR's clear decision to not allow us the use of its right-of-way based on wha t appears to be its corporate policies prohibiting this type of use in its right-of-way . The option s currently available to the City are set forth below . OPTION S 1 . Pursue outside assistance to convince UPRR to allow the trail —possibilities include : a.Railroad consultants —Transystems is a firm made up of former UPRR employee s that specialize in getting approvals from UPRR . Staff has made a preliminary contac t and provided some background information for them to evaluate what our bes t options are for continuing to work with UPRR for approval. At this point in time, it i s not known what the cost would be to retain their services, or whether we would b e successful in altering the UPRR decision . b.Local elected officials —County Supervisors have not as yet been lobbied for their help to convince UPRR that the placement of the trail within the right-of-way woul d be advantageous . However, it is not clear what influence county supervisors woul d have in this case . c.State elected officials —A meeting was held between City staff and Sam Blakeslee , and his subsequent discussions with UPRR staff were unsuccessful in getting UPR R to change its position . Abel Maldonado has not been approached for his help , although as the new Lieutenant Governor, he might have some leverage in persuadin g UPRR to make an exception to its policies . d.Federal elected officials —Lois Capps' local office was contacted, but could offer n o assistance or ideas for how to proceed . Before he left, Ken Hampian offered t o contact Senators Dianne Feinstein and Barbara Boxer, but that contact has not ye t been made . e.Public Utilities Commission —Through a former professional contact of Kati e Lichtig's (lobbyist and former legislator Mike Roos) an initial conversation with PU C Chairman Michael Peevey took place during which Chairman Peevey expressed a willingness to discuss the safety issues with the City but made no commitments abou t the PUC's ability to positively impact the outcome . Katie has a call into Chairman Peevey to discuss the issue, with a particular emphasis on the safety benefits of th e trail . The conversation had not taken place at the time of this writing . f.Caltrans, SLOCOG —Neither organization was helpful in offering suggestions fo r how we might appeal the decision within UPRR . g.Community groups —The SLO Bike Coalition has offered to help, but no clear plan of how they would help has been outlined . They would likely use their members and lobbying contacts to bring their message of support for the trail to UPRR . This B4-11 ATTACHMENT 3 Options for Dealing with UPRR Right-of-Way Decision Page 3 resource might best deployed in conjunction with one of the above options rather than on its own . 2.Offer to buy the property needed for the trail –Make a direct offer to buy the neede d property from UPRR, instead of only acquiring a license agreement to use the property . This option would add costs to the projects that are not currently within the scope o r budget, and would require more grant funding or City funding to complete the projects . And again, given UPRR policy, it is unlikely that it would be any more willing to sell it s right-of-way than it was to grant us a license agreement . 3.Offer to indemnify the railroad from liability –UPRR has suggested that liability concerns drive their policy decision to disallow this type of path in the proposed location . In order to address those concerns, the City could offer to assume liability and hol d UPRR harmless for any death or injury arising from pedestrian and bicycle use of th e path in exchange for UPRR's authorization to locate the path in its right of way . The Cit y Attorney and Risk Manager have discussed this option with the City's insurance pool an d such a hold harmless and indemnification agreement would not jeopardize the City's coverage in the event of a covered claim against the City . On the other hand, even if th e City was to make this significant concession, it is not likely to alter UPRR's strong, albei t belated, policy position regarding uses in its right-of-way . 4.Legal action to compel compliance with the conceptual approval and to recove r damages for work already completed –Based on UPRR's previous conceptual approval , the City proceeded, with UPRR's full knowledge and inducement, to fulfill certain of th e conditions outlined by UPRR . The City also expended approximately $460,000 o n studies and designs to date. Having to return the grant funding that has been awarded s o far will likely damage the City's credibility for future applications, as there will be extr a scrutiny about whether we actually have the necessary approvals to move forward . Because the City partially executed the agreement between the City and UPRR base d upon UPRR's representations, it is possible that the City could state a claim against UPRR for detrimental reliance . The likelihood of success on such a claim is probably no t high as a practical matter and initiation of such action will undoubtedly not strengthen th e City's position with UPRR in any future transactions . It should be noted that staff is not optimistic about the likelihood of success of any of thes e options in light of UPRR's recently invoked corporate policy regarding uses in its right-of-way , and the absence of any motivation, from its perspective, to make changes to accommodate the City's goals . Accordingly, if the Council decides not to pursue any other attempts to gai n approval from UPRR, there are still a couple of options to consider : 5.Terminate our agreement to provide right of way maintenance services –If there will be no further easement or agreement with UPRR, then we could consider terminatin g the previous agreement to pay for maintenance of their right of way throughout the City . It was agreed to in part understanding that we would be able to get the easement for th e trail from the freeway to the train station . The down side to this is that UPRR woul d probably do as little as possible to maintain it themselves, and likely would see this as a punitive move on the City's part. A possible consequence of this action would be that B4-12 ATTACHMENT 3 Options for Dealing with UPRR Right-of-Way Decision Page 4 UPRR would order us to vacate the easement area in use for the Phase 4 project alread y constructed . This would require us to remove the iron fence put in place by that project , as it sits within the easement area . The actual path does not, so it could remain . 6 . Explore other options –Relocate the trail entirely outside of UPRR's right-of-way . Staff is ready to go back to the drawing board and re-plan the route along City streets i f necessary . There is also the possibility that the City could attempt to acquire right of wa y adjacent to the railroad corridor, but that would take a great deal more time and hav e some potential conflicts, such as higher costs and unwilling property owners . At thi s time, we believe that exploring alternate routes that will complete the trail and achiev e City goals is the most productive option available to us . Staff would work to present ne w trail options to the Council by June 2011 . Project Status Summar y Project Adopted Project Funding Sources Total Cost Statu s RRST Phase 3 (between Amtrak station and Mars h St) State Highway Account : $70,00 0 State Bicycle Transportation Accoun t (BTA): $890,00 0 Federal Transportation Enhancemen t Activities (TEA): $249,00 0 Other Grants : $101,000 (Subsequentl y lapsed ) ARRA :$1,200,000 (Subsequentl y reallocated to upper Montere y paving/sidewalk project ) Transportation Impact Fees (TIF): $420,000 $2,930,000 Design Complet e RRST Gap projec t (between Marsh St and the RRST 10 1 Bridge) $0 Not finalized Studies underwa y RRST Hwy 10 1 Bridge BTA :$495,000 TIF : $571,000 General Fund : $27,500 $1,093,500 Design underway The RRST Gap project would be the final project phase that would complete the trail from th e Amtrak Station to Cal Poly. It currently has no funding allocated for it (either grant or Genera l Fund) and was to be worked on after the completion of Phase 3 and the 101 Bridge . Our other Railroad Safety Trail project, Phase 4a (Foothill to Hathaway), is not affected by UPRR's decision . Grant Statu s The RRST Phase 3 project is affected the most by the denial of the easement by UPRR. It was programmed for $1,200,000 in ARRA funds : as noted above, they have been reallocated to th e upper Monterey Street project in order not to lose them altogether . The BTA grant of $890,000 i s in jeopardy if construction is not complete by Spring of 2012 . The 101 Bridge project has a BTA B4-1 3 A TAC s ,r1 N Options for Dealing with UPRR Right-of-Way Decision Page 5 grant in the amount of $495,000, which is in jeopardy if construction is not complete by Fal l 2011 . City staff is working with the grant administrators to find out how much flexibility there is t o rescope the projects in such a way that the grants can be retained . It is possible that the City wil l be required to return the grant funds if no compromise on project scope or timeline can b e reached . G :\Staff-Reports-Agendas-Minutes\ CCMemos\2010\UPRR Strategies .doc B4-14 ATTACHMENT f Railroad Safety Trail Alternative Alignment -2011 ATTACHMENT 4 rr Mustang Stadiu m to Campus Wa y Complete d Campus wa y to Foothill Blv d Ph 4a -Under Const. Foothill Blvd . ,fit South to Hathwa y Completed Hathway to Mars h Revised Alignment Marsh to Amtra k Revised Alignment Amtrak t o Orcutt Complete RRST Segment s and Phase Areas B4-16 ATTACHMENT 5 Appendix C : Project Site Ma p Legend N Crossing Guard - School Route --- Cree k Project Sit e IN 1Cil1~Access Pat h Alternative Path ATTACHMENT 7 RESOLUTION NO . 10157 (2010 Series ) A RESOLUTION OF THE CITY OF SAN LUIS OBISPO DENYING AN APPEAL O F THE ARCHITECTURAL REVIEW COMMISSION'S ACTION TO APPROVE TH E DESIGN OF A BICYCLE AND PEDESTRIAN PATH WITH BRIDGE OVE R PREFUMO CREEK AND A MITIGATED NEGATIVE DECLARATION FO R PROPERTY LOCATED AT 1269 VISTA LAGO (ARC/ER 74-09) WHEREAS, the Architectural Review Commission,on January 20, 2010,approved a Mitigated Negative Declaration and granted final approval to the design for a proposed bicycl e and pedestrian path extending from Vista Lago to Oceanaire Drive including a bridge ove r Prefumo Creek ; an d WHEREAS, Paul Johansen,a property owner of a dwelling unit in the Windemer e Condominiums, filed an appeal of the Architectural Review Commission's action on January 28 , 2010 ; and WHEREAS, the City Council of the City of San Luis Obispo conducted a public hearin g in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on Marc h 16, 2010, for the purpose of considering the appeal of the Architectural Review Commission's action ; and WHEREAS, the City Council has considered the Mitigated Negative Declaration o f environmental impact as prepared by staff and adopted by the Architectural Revie w Commission ; an d WHEREAS, the Council has duly considered all evidence, including the record of th e Architectural Review Commission hearing and action, testimony of interested parties, and th e evaluation and recommendations by staff, presented at said hearing . NOW, THEREFORE, BE IT RESOLVED,by the City Council of the City of San Lui s Obispo as follows : SECTION 1 .Findings .Based upon all the evidence, the City Council makes th e following findings : Project Desig n 1 . The proposed project consisting of a bicycle and pedestrian pathways and a connectin g bridge over Prefumo Creek is consistent with Section 7 .1, Creekside Development, of th e City's Community Design Guidelines because it : a.Minimizes encroachment into the riparian corridor by its free-span bridge design whic h includes its support piers above the top of creek bank outside of the creek channel ; b.Include lighting fixtures that do not produce glare, but provide for the safety of users ; and c.Provides for pedestrian and bicycle circulation while protecting the quality of the cree k environment . R 10157 B4-19 ATTACHMENT 7 Resolution No . 101'57 (2010 Series ) Page 2 Creek Setback Exception s 2.The location and design of the free-span bridge and the connecting pathways will minimiz e impacts to scenic resources, water quality, and riparian habitat, including opportunities for wildlife habitation, rest and movement because the encroaching features are relatively mino r in scale . 3.The exception will not limit the City's design options for providing flood control measure s that are needed to achieve adopted City flood policies because the project creek banks an d stream channel remain essentially unaltered . 4.The exception will not prevent the implementation of City-adopted plans, nor increase th e adverse environmental effects of implementing such plans because along with the mino r exceptions requested, the project will not adversely affect the health and vitality of th e riparian corridor . 5.There are circumstances applying to the site, such as shape and topography, which do no t apply generally to land in the vicinity with the same zoning that would deprive the propert y of privileges enjoyed by other property in the vicinity with the same zoning because th e project site is irregularly shaped and includes an extensive amount of the creek corridor . 6.The exception will not constitute a grant of special privilege – an entitlement inconsisten t with the limitations upon other properties in the vicinity with the same zoning - because th e proposed project provides a significant public benefit to surrounding properties . 7.The exception will not be detrimental to the public welfare or injurious to other property i n the area of the project or downstream because of the project's environmentally sensitiv e design . 8.Site development cannot be accomplished with a redesign of the project because th e alternatives to having a bridge with no encroachments in the creek setback would have mor e significant aesthetic and environmental impacts because they would require more extrem e bridge heights and support features . 9.Redesign of the project would deny the property owner reasonable use of the property give n the unique circumstances of a bridge that would require some sort of creek setback exceptio n to be feasible. SECTION 2 .Environmental Review .The City Council reaffirms the Architectura l Review Commission's adoption of a Mitigated Negative Declaration finding that it adequatel y identifies the project's potentially significant impacts with incorporation of the followin g mitigation measures and monitoring programs : B4-20 A' C HM NT 7 Resolution No . 10157 (2010 Series ) Page 3 Mitigation Measures : Reduction of Light and Glar e 1.Bridge lighting shall be limited in intensity and scale necessary for security and safety an d shall be designed not to shine offsite in conformance with the requirements of the City's Night Sky Preservation standards contained in Chapter 17 .23 f the Zoning Regulations ..Al l exterior lighting shall be shielded down-lights that do not shine skyward or spill ont o adjacent properties to the review and approval of the Architectural Review Commission (ARC). Construction plans shall include details of light fixtures with illumination levels an d shielding mechanis m • Monitoring Program : The ARC will review development plans for the project. City staff, including Planning an d other departments, will review plans to assure that all of the ARC's requirements related t o lighting are compliant with the MASP provisions and have been incorporated into workin g drawings . City building inspectors will be responsible for assuring that all lighting is installe d pursuant to the approved lighting plan . AIRQUALITYMITIGATION Short-term Construction Impact s 2.During construction/ground disturbing activities, the applicant shall implement the followin g particulate (dust) control measures . These measures shall be shown on grading and buildin g plans. In addition, the contractor shall designate a person or persons to monitor the dus t control program and to order increased watering, as necessary, to prevent transport of dus t off site . Their duties shall include holiday and weekend periods when work may not be i n progress . The name and telephone number of such persons shall be provided to the Cit y Public Works Department prior to commencement of construction . a.Reduce the amount of disturbed area where possible . b.Use water trucks or sprinkler systems in sufficient quantities to prevent airborne dus t from leaving the site . Increased watering frequency will be required whenever win d speeds exceed 15 mph . Reclaimed (non-potable) water should be used wheneve r possible . c.Dirt stock pile areas (if any) should be sprayed daily as needed . d.All areas disturbed by construction shall be re-vegetated with plant materials to th e approval of the City Biologist and Department of Fish & Game . e.Vehicle speed for all construction vehicles shall not exceed 15 mph on any unpave d surface at the construction site . f.All trucks hauling dirt, sand, soil, or other loose materials are to be covered or shoul d maintain at least two feet of freeboard (minimum vertical distance between top o f load and top of trailer) in accordance with California Vehicle Code Section 23114 . B4-21 ATTACHMENT 7 Resolution No. 10157 (2010 Series ) Page 4 • Monitoring Program Community Development Department staff will insure that project plans incorporate th e mitigation measures . City Engineering staff will inspect the construction operations to verify conformance with specifications and mitigations . BIOLOGICAL RESOURCES MITIGATIO N Vegetation, CRF, and South-central California steelhea d 3.All staging work will be in clearly designated and flagged areas from the proposed alignmen t and previously disturbed areas to avoid inadvertent disturbance of existing riparian vegetation or damage to associated root systems of trees . Any new proposed staging area wil l be first inspected by the City biologist or other qualified monitor (MR 1). 4.Prior to commencement of construction, the City biologist or qualified biological monitor will clearly mark with visible flagging the extent of the work area in sensitive sites (e .g ., near the top of the creek banks or riparian vegetation, and ensure that no trees are impacted othe r than those shown on plans to be removed to accommodate bridge construction) (MR 2). 5.Exclusionary fencing will be installed around the work area on either side of the top of ban k when working near Prefumo Creek . This will serve to keep animals out of the worksite an d keep material from leaving the site (MR 3). 6.All areas of disturbed soil will be stabilized to prevent erosion (MR 4). 7.Heavy construction equipment shall be restricted to the project area or established stagin g areas (MR 5). 8.If willows are removed during the project, they will be replanted at a 2 :1 ratio or as specified in the CDFG permit . The willows shall be installed from cuttings of the adjacent, unaffecte d willows ; or if feasible, cuttings will be directly installed from willows that need to b e trimmed for bridge installation (i .e., trimmings will be planted near the work are a immediately after they are removed). The replanting will occur in the open, exposed area o f the floodplain immediately upstream of the bridge crossing . The willows will be monitore d and maintained until successfully established (MR 6). 9.Pre-Activity surveys for Steelhead trout, California Red-legged Frog, nesting birds, an d sensitive plants will be completed . A reference site will be examined for appropriat e comparison . Nesting Bird s 9 . If possible, the project should be completed without removal/trimming of willows . If willow removal/trimming is necessary it should be conducted in late winter (September – January) B4-22 ACHHMENT 7 Resolution No. 10157 (2010 Series ) Page 5 prior to the arrival of spring migrant birds . Doing so will minimize the potential for impact s to nesting sensitive bird species during the spring and summer . Prior to such trimming,a qualified biologist shall inspect such willows to ensure that nesting birds, or other species , will not be directly and adversely affected by the activity . In accordance with the Migrator y Bird Treaty Act, the U .S . Fish and Wildlife Service will be notified if a nest, egg, or nestin g will be affected (MR 7). 10.Prior to construction, a qualified biologist shall be retained to conduct a pre-constructio n survey (approximately one week prior to construction) to determine presence/absence o f nesting birds within the project area . If no breeding or nesting activities are detected near th e proposed work areas, construction activities may proceed . (MR 8). 11.A qualified biologist, with experience in Bell's vireo surveys will conduct nesting bird , and/or presence/absence surveys along the project alignment and in the riparian corridor on e week prior to construction (MR 9). 12.Construction near or adjacent to the riparian corridor will be conducted to minimiz e disturbance to any birds that may still be nesting in the area as an additional precautionar y measure 9MR 10). Erosion Contro l 13.Restore all previously vegetated areas that are cleared during project activities throug h revegetation with appropriate seed mix . If necessary, irrigate to establish a ground cove r prior to onset of the wet season . Silt fencing should be installed around any disturbed are a located less than 23 feet from the main channel of Prefumo Creek . The City biologist or othe r qualified monitor will ensure erosion control measures are intact and functioning properl y during winter (MR 11). 14.All earth disturbing construction will occur in the typical dry season (April 15 to October 15 ) (MR 12). Noise, Dust, and Genera l 15.The work area will not be expanded into the adjacent riparian community . The City biologist or other biological monitor will clearly mark the boundaries of the proposed work area prio r to and during construction using highly visible flagging or fencing . All construction personnel will be advised to conduct work activities within the defined work area only (M R 13). 16.Best Management Practices (BMP's) to control dust will entail use of a water truck on-sit e during the excavation of the abutments . Should material need to be removed from the site vi a trucks, covers on the trucks would further prevent fugitive dust from leaving the site or being blown out along travel routes . Since the staging area at the Windemere location can b e reached by pre-existing asphalt surfaces, a stabilized entrance would not be required . However, the Vista Lago Park entrance/exit is not paved . Plywood sheets shall be laid down B4-23 ATTACHMENT 7 Resolution No . 10157 (2010 Series ) Page 6 to prevent tracking of dirt and/or mud out of the project area . A new trail connector will b e installed at the Vista Lago Park location . This may allow for vehicles to be driven across th e grass during excavation of the north abutment (MR 14). 17 . Work hours will be limited from 7 :00 a .m . to 5 :00 p.m . to reduce noise impacts t o surrounding neighborhoods (MR 15). •Monitoring Program (Mitigation Measures 3-17 ) City Engineering staff will inspect the construction operations daily to verify conformanc e with specifications and mitigations . The Natural Resources Manager will conduct periodi c spot-check inspections to verify conformance with specifications and mitigations .A qualified Monitoring Biologist will be retained during work which could affect sensitive habitat . The Monitoring Biologist will inspect the work site each day, coordinate complianc e with biological mitigation requirements, and prepare a daily log to document the presence o r absence of any sensitive species and actions taken . CULTURAL RESOURCES MITIGATIO N 18.If excavations encounter significant paleontological resources, archaeological resources o r cultural materials, then construction activities that may affect them shall cease until th e extent of the resource is determined and the Community Development Director approve s appropriate protective measures . The Community Development Director shall be notified o f the extent and location of discovered materials so that a qualified archaeologist may recor d them . 19.If pre-historic Native American artifacts are encountered, a Native American monitor shoul d be called in to work with the archaeologist to document and remove the items . Disposition of artifacts shall comply with state and federal laws . A note concerning this requirement shall be included on the grading and construction plans for the project . •Monitoring Progra m Requirements for cultural resource mitigation shall be clearly noted on all plans for projec t grading and construction . GEOLOGY AND SOILS MITIGATIO N 20 . Grading and construction of the bridge and other improvements shall be designed an d performed in compliance with the submitted foundation report . •Monitoring Progra m Community Development and Public Works staff shall review plans to assure that th e recommendations of the foundation report are incorporated into plans . B4-24 Al JACHME NT 7 Resolution No . 10157 (2010 Series ) Page 7 21.Hazardous materials transfers, fueling, and other use of chemicals shall be restricted t o staging areas away from the project site . • Monitoring Program City Engineering staff will inspect the construction operations daily to verify conformanc e with specifications and mitigations . HYDROLOGY AND WATER QUALITY MITIGATIO N Avoidance and Minimization Measures for Impacts to CRF from the Programmati c Agreement between the Federal Highway Administration and USFWS (1-8-02-F-68 ) (Only the measures pertinent to the project are listed below). 22.Only Service-approved biologists will participate in activities associated with the capture , handling, and monitoring of California Red-legged Frogs . 23.Ground disturbance will not begin until written approval is received from the Service that th e biologist is qualified to conduct the work . 24.A Service-approved biologist will survey the project site 48-hours before the onset of wor k activities . If any life stage of the California red-legged frog is found and these individuals ar e likely to be killed or injured by work activities, the approved biologist will be allowe d sufficient time to move them from the site before work activities begin . The Service - approved biologist will re-locate the California red-legged frogs the shortest distanc e possible to a location that contains suitable habitat and will not be affected by the activitie s associated with the proposed project. The Service-approved biologist will maintain detaile d records of any individuals that are moved (e .g . size, coloration, any distinguishing features , photographs, [digital preferred]) to assist him or her in determining whether translocate d animals are returning to the original point of capture . 25.Before any activities begin on a project, a Service-approved biologist will conduct a trainin g session for all construction personnel . At a minimum, the training will include a descriptio n of the California red-legged frog and its habitat, the specific measures that are bein g implemented to conserve the California red-legged frog for the current project, and th e boundaries with-in which the project may be accomplished . Brochures, books and briefing s may be used in the training session, provided that a qualified person is on hand to answer an y questions . 26.A Service-approved biologist will be present at the work-site until all California red-legge d frogs have been removed, workers have been instructed, and disturbance of habitat has bee n completed . After this time, the state or local sponsoring agency will designate a person t o monitor on-site compliance with all minimization measures . The Service-approved biologis t will ensure that this monitor received the training outlined in measure 4 and in th e identification of California red-legged frogs . If the monitor or the Service-approved biologis t recommends that work be stopped because California red-legged frogs would be affected to a B4-25 Aa TAO HMEN 7 Resolution No . 10157 (2010 Series ) Page 8 degree that exceeds the levels anticipated by the Federal Highways Administration an d Service during review of the proposed action, they will notify the resident engineer (th e engineer that is directly overseeing and in command of construction activities) immediately . The resident engineer will either resolve the situation by eliminating the effect immediately or require that all actions which are causing these effects be halted . If work is stopped, the Service will be notified as soon as is reasonably possible . 27 . During project activities, all trash that may attract predators will be properly contained , removed from the work site, and disposed of on a daily basis . Following construction, al l trash and construction debris will be removed from work areas. 28.All refueling, maintenance, and staging of equipment and vehicles will occur at least 60-fee t from riparian habitat or water bodies and not in a location from where the spill would drai n directly toward aquatic habitat . The monitor will ensure contamination of habitat does no t occur during such operations . Prior to the onset of work, the Federal Highwa y Administration will ensure that a plan is in place for prompt and effective response to an y accidental spills . All workers will be informed of the importance of preventing spills and o f the appropriate measures to take should a spill occur. 29.The number of access routes, size of the staging areas, and the total area of the activity will be limited to the minimum necessary to achieve the proposed project goal . Environmentall y sensitive areas will be established to confine access routes and construction areas to th e minimum area necessary to complete construction, and minimize the impacts to Californi a Red-legged Frog habitat ; this goal includes locating access routes and construction area s outside of wetlands and riparian areas to the maximum extent possible . 30.To control sedimentation during and after this project implementation, the Federal Highwa y Administration and sponsoring agencies will implement best management practices outline d in the authorizations or permits, issued under the authorities of the Clean Water Act that i t receives for the specific project . If best management practices are ineffective, the Federa l Highway Administration will attempt to remedy the situation immediately, in consultatio n with the Service. • Monitoring Program The Federal Highway Administration and sponsoring agencies will implement bes t management practices outlined in the authorizations or permits, issued under the authoritie s of the Clean Water Act that it receives for the specific project . Community Development an d Public Works staff shall review plans to assure that the best management practices ar e incorporated into plans . 31.If the Community Development Director or hearing body determines that the abov e mitigation measures are ineffective or physically infeasible, he may add, delete or modify th e mitigation to meet the intent of the original measures . __B4-26 Resolution No . 10157 (2010 Series ) Page 9 SECTION 3 .Action .The City Council does hereby deny the appeal of the Architectural Review Commission's action, thereby granting final approval to the design for a propose d bicycle and pedestrian path extending from Vista Lago to Oceanaire Drive including a bridg e over Prefumo Creek, subject to the following conditions : Conditions : 1.The proposed lighting fixtures for the bridge shall be a different style to better complemen t the aesthetics of the bridge and modified to comply with Mitigation Measure No . 1 and the City's Night Sky Preservation standards . These fixtures and details shall be shown on plans submitted for a building permit and shall be to the approval of the Public Works an d Community Development Department Directors . 2.The ultimate fencing detail selected for the edge of the bike path on the northeast side of th e Windemere Condominiums shall : i) eliminate the sharp pickets at the top of the fence t o address safety concerns ; and 2) maintain a minimal footprint so that the pathway can be a s wide as possible . 3.The design of the bridge shall be modified to include entry embellishments and a softe r appearance to the approval of the Public Works and Community Development Departmen t Directors . Roof elements were suggested as a design consideration, but not mandated . 4.Based on continuing negotiations with the Windemere Homeowners' Association Board , modifications to the path design on the northern boundary of the Windemere condominiu m development may be approved by the Community Development Director if the modification s result in a wider path width at this location . 5.An evaluation of site lighting shall be conducted to determine the need to provide additiona l lighting along the bicycle pathways to address safety and security issues to the approval o f the Community Development Director . Upon motion of Council Member Marx, seconded by Council Member Ashbaugh, and o n the following vote : AYES : Council Members Ashbaugh and Marx, and Vice Mayor Carte r NOES : Council Member Settle and Mayor Romer o ABSENT : None B4-27 „1NIENT 7 Resolution No . 10157 (2010 Series ) Page 1 0 The foregoing resolution was adopted this 16th day of March 2010 . ATTEST : Elaina Cano City Clerk 'rL B4-28 Face of Prefum o Creek Culvert -8 .0 ' 6 .0 ' 13 .0 ' 11 .0 '11 .0 '7 .6 '11 .0 '11 .0 ' Typ . Cross Section Back of Sidewal k Face of Curb Railin g (N) RoilingCutter /7 (N) Railin g Lane Bike ---6 .0 '2 .0 ' --1 .5 'Face of Prefum o 13 .0 '.5 'Creek CulvertLandscaping -13 .0 '— Shared—Us e Pat h 6 .0 '11 .0 '