Loading...
HomeMy WebLinkAbout05/03/2011, B3 - RAILROAD SAFETY TRAIL AND PREFUMO CREEK BRIDGE PROJECT UPDATES r \ I 1 council "mtisD agenda Report CITY OF SAN LUIS OBISPO FROM: Jay D. Walter,Director of Public Worksd� Prepared By: Peggy Mandeville, Principal Transportation Planner Dan VanBeveren, Senior Civil Engineer SUBJECT: RAILROAD SAFETY TRAIL AND PREFUMO CREEK BRIDGE PROJECT UPDATES RECOMMENDATION 1. Direct staff to continue its efforts on the alternative alignment designs for the Railroad Safety 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 Road alternative for the Prefumo Creek Bridge Safe Route to School project. REPORT IN BRIEF This report provides update and revised recommendations for implementation on two major bikeway projects being undertaken by the City: 1) the Railroad Safety Trail and 2) the Prefumo Creek Bicycle Bridge to Laguna Middle School. The projects have encountered obstacles to completion mostly having to do with acquisition of right of way and access across privately held property. This report discusses alternative assessments conducted for each:of these projects and recommends alteratives for Council consideration to the previously•.-approved project alignments. DISCUSSION Railroad Safety Trail 1. Background The City has been working on the Railroad Safety Trail project since the late 1990's. The City Council approved the overall trail concept in 2001, and in 2004, the City submitted plans to 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 shows segments and phase areas for reference. UPRR conceptually agreed to the trail as reflected in the 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 for the trail based on the approved alignment, and hired consultants to complete design and environmental studies in order to prepare plans for construction. The City has also recently undertaken certain maintenance and improvement obligations on UPRR property throughout the 13J=i i 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 in 2009. In the summer of 2008, when staff submitted plans to UPRR for final approval of the bike path between the Amtrak Station and Hathway Avenue and to enter into necessary license agreements to proceed with the construction, staff was then advised by UPRR that the bikeway project was not consistent with current UPRR policy. Specifically, UPRR policy does not allow for public 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 in compliance with this requirement. Staff continued discussions with UPRR officials, provided the previous documentation of conceptual approval, noted the safety benefits of such a project through fencing of the railroad tracks, and communicated the fact that the project was not 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 the tracks. Despite the information submitted by City staff and the previous conceptual approval by 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 to meet with UPRR officials to further discuss the matter and gain approval for the license 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 previously approved based on its policy (Attachment 2). UPRR has continued to refuse to consider any proposed trail project, in any form, that would occupy the active right-of-way and is closer than 40 feet to the railroad tracks. Staff contacted several railroad consultants about the UPRR denial•and learned that the original support from UPRR in 2004 was fairly unconventional/unusual and that they felt the City's best opportunity to get approval from UPRR for a trail. alignment would be if the project were 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 the 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, 2010 (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 work 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 bicycle boulevards on low volume streets (Islay and Toro) to complete this section. This route would be within City right-of-way and therefore will not require any approvals from UPRR. 3. Marsh Street to Hathwav Avenue In consultation with the Bicycle Advisory Committee, staff has developed a conceptual alignment that minimizes the need for UPRR right-of-way, and still accomplishes the objective of completing a Class I pathway along this stretch. The pathway would utilize the eastern edge of -83-2 Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 3 ERROR: timeout OFFENDING COMMAND: timeout the Pepper Street right-of-way, continue north across a new bridge over Monterey Street, cross the railroad tracks on a second bridge linking Pepper Street to the California Highway Patrol (CHP) property, and continue to the southern edge of the existing pathway at Hathway by 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 were 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 to Pepper) to proceed with these new alignments, minimizing the use of UPRR right-of-way, and 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 then seek future grants to complete the project's design and construction. 4. Foothill Blvd. to Campus Way Phase 4A Update Although the Phase 4A bike path construction appears to be complete, the City has had to stop work on the project while waiting for an agreement to be processed with UPRR. The reason for stopping the work is that the current traffic signal near the railroad crossing cannot be modified until the existing pre-emption circuits are moved on the tracks, and new conductors are in place at the railroad cabinet. The delay has caused staff to demobilize the contractor while waiting for the agreement. This delay has also prevented the City from performing the final work to the signal and opening the bicycle path to the public. The agreement with UPRR was approved in March 2011, and UPRR's crews have been scl heduldd to begin the work on April 26, 2011. Once. UPRR completes its work, the City's contractor ikill complete the remaining signal work at Foothill and California. Staff estimates that'this'phaseiof the project to be completed by the end of July, 2011. i 1, 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 an access easement for the City to construct a pedestrian and bicycle path, along with a bridge over Prefumo Creek, to access the existing Vista Lago Park from Oceanaire Drive. The bridge and path would serve the needs of both bicyclists and pedestrians by providing a preferable route to traveling on Los Osos Valley Road (LOVR) to access the area schools and neighborhoods (Attachment 6). In May 2007, a grant for $798,600 from the Safe Routes to Schools program was approved for 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 of 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 B3-3 Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 4 culminated in an appeal by a Windermere Condominium homeowner of the Architectural 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 appeal and uphold the ARC's action to approve the project, along with a Mitigated Negative Declaration subject to mitigation measures and conditions to expand the path width and evaluate path lighting (Attachment 7). The Council also voted 5:0 to direct staff that if the project as designed and approved by the ARC and City Council becomes infeasible, then staff should return to Council with an alternate route consistent with grant funding provisions. One such way that it 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 its homeowners. On the granting of an easement for the bike path project, the vote was I 1 in favor and 25 not-in-favor with 13 of the 49 ballots not returned. Although staff did not see the ballot 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 pursued three options, described below. Staff is recommending Item #3 pursuing an alternative routing 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 Windermere easement prepared and presented :it to the�HOA.board. The board conducted their own appraisal which valued the easement at'app'rozimately 3 times the appraisal prepared for the City. The City's appraiser reviewed Windermere's appraisal and did not concur with its assumptions of developable land and damage's.'After sharing this review, the HOA board notified the City that they unanimously sup rte their own appraisal and that they were not interested in entertaining any offers lower than the one presented in their appraisal. The HOA noted that the motivation to sell was low and therefore the City "must be willing to provide 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 City 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 bicycle pedestrian bridge across Prefumo Creek. One other location was identified, however, the neighborhood connection would not be as direct as the Windermere easement and it would require easement acquisitions from two property owners, one of whom was contacted and did 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 is possible to construct a two-way 12 foot wide path along the northeast side of LOVR (Attachment 8). Given this ability, staff has requested Caltrans approval of a time extension :B3-4 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 the LOVR alternative route. If approved, the project has sufficient grant funding to complete the project. Although not the preferred route, staff recommends that the City proceed with the LOVR alternative route because it is feasible and does not require the use of any private property to make the connection. CONCURRENCES The Bicycle Advisory Committee and County Bike Coalition Board has been kept apprised of staff efforts on each project and has been supportive of staff's recommended course of action. FISCAL IMPACT The Hathway to Taft project proposes to utilize approved BTA grant funding which had previously programmed for the Amtrak Station to Marsh Street project. The Taft to Pepper 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 impacted the City's plans for two grant funded projects, Amtrak to Marsh Street and the Highway 101 pedestrian/bicycle bridge. Staff has requested grant time extensions and shifts in funding to other sections of the Railroad Safety Trail with the goal of utilizing all of the grant funding approved to-date. Original Grant'Amount/ Approved Funding Grant Deadline Trail Section Remainin .Fundin . Shift to: Amtrak Station to BTA $890,000/$500,000 Foothill to Campus April 30, 2011 Marsh Street Hathway to Taft (time extension requested) Highway 101 Bridge BTA/SHA Taft to Pepper April 1, 2015 $495,000/$158,000 ALTERNATIVES Railroad Safety Trail Project 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 this alternative because of the number of driveways that would need to be crossed and the 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 be successful in our efforts and the grant funding received to date would be put further as risk without the certainty of an approved route. B3-5 Railroad Safety Trail and Prefumo Creek Bridge Project Updates Page 6 3. The Council could consider abandoning the project altogether. Staff does not recommend this alternative because completing this segment between Marsh Street and the current terminus at Hathway Street will provide a direct bicycle and pedestrian route from the downtown to the Cal Poly campus. Prefumo Creek Bridge Project 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 and the likelihood of receiving 100 percent property owner approval is low. 5. The Council could consider abandoning the project altogether. Staff does not recommend this alternative because there is still a need to provide an improved bicycle and pedestrian connection between the two neighborhoods. ATTACHMENTS 1. UPRR letter of November 2004 2. UPRR letter of November 2009 3. Council memo of February 2010 4. UPRR Alternative Alignment Map and Segments Map 5. Aerial Photo of Alternative Alignment 6. Prefumo Creek Bridge Site Map 7. Council Action of Prefumo Creek Bridge Project 8. Proposed LOUR Street Cross Section \\chstoreATeam\Council Agenda Reports\Public Works CAR\201.1\Transportation\RRST-Prefumo Update\CAR RRST-Prefumo project updates-final.doc B3= ATTACHMENT November 17,2004 - Ms..Peggy Mandeville Public Works Department. City of San Luis Obispo 955 Morro Street S;an Luis Obispo,CA 93401 RE: Proposed San Luis Oltispo Safety Traiil,MP-248.53 to 246.93 Coast Subdivision, 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/or criteria that the city will be responsible for. Any/all utility adjustments including but not limited to;pipeline,wireline and fiber o • All drainage,stomrwater etc.must be diverted off railroad Property and handled Properly by city drainage.intiastructure. Any proposed drainage issues will need 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 r+etrim from Palm Street,just south of MMI Street to the Calpoly campus past Foothills Blvd to the existing private crossing at W-246.93,DOT 745351H • Vegetation shall not be planted and existing vegetation maintainedtoCPUC TRA standards within 300'in either direction from Marsh Street MP-248-15,DOT 745356S as well as all other at grade crossings within the cityjurisdiction: • 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,labeled "fence to begin after tact existing gate",to Foothills Blvd MP-247.15,DOT 745352P, will not be permitted on UPRR.properly. Fencing and/or access will have to be on the West Side of the property line;city to work with adjacent landowners to provided .desired access. Patrick A.Berg ManquI"dmuygPWfikpnjects,6ugmwinBD uft=t LIMON PACRrC RAMROAD 10031 P00thi3c 30u VMA ROS V&,CA 95747 Ph.(916)789-6334 8e.(916)789.6333 D3-7 ATTACHMENT 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 no cost to the Union Pacific Railroad. This conceptual approval does not include any real estate issues that may apply for this project,nor does this conceptual approval provide any authority or approval for construction of said-safety trail. Construction will only be permitted when a fully executed Construction and Maintenance'ffivase agreement is ent�'into between the Union Pacific Railroad and the City of Sar!Luis Obispo. . The City of San Luis Obispo will be required to enter into our standard license agreement that corrtsins-a provision that either par#y may terminate said agreement& any reason with a 30 day written cancellation notice. If for any reason this agwinent is terminated' by either party,the city will be responsible for removal of said trail and returning the prel?e-ty to its original condition. At this time,the City should prepare the-plai map and legal description for the property required to construct the safety trail so we can evaluate and appraise the value of said 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. Si Pah AL Manager of Industry and Public Projects Union Pacific Railroad CC Tom Ogee,UPRR Steve BerkL UPRR David Peterson,UPRR Carol Harris,UPRR Patrick A.&era Manager twustrY&Public Proieft Engineering DVaW=t UNION FnctmeRmaom won Foothills Boulevard,Aoaevfllq cA 9s747 B3-8 nh.fOlf.1 TA0JtiAd fr.fOtGl 7aaJCtii .- 'TTACHMENT Z,- Scott iScott D.Moore Vice President Public.Affairs i i November 3,2009 Honorable Dave Romero Mayor,City of San Luis Obispo 990 Palm Street San Luis Obispo,CA 93401 Dear Mayor Romero: Let me begin by thanking you and your team for coming to our Western Region offices here in 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 subsequent letter transmitted that same day. UP sometimes receives requests for projects that involve pedestrian and bicycle paths that would utilize our existing rights of way or cross the tracks at-grade. We believe that such projects would place pedestrians and bicyclists in harm's way and for that reason UP has a consistent policy of denying such requests for longitudinal easements on our property along an active rail 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 I of this project. The Railroad 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 terms include the provision that the leased area is no closer than.40 feet from the centerline of our track,and that the leased area may be used for a vandal resistant security fence and landscaping. That agreement provides that the trail itself;except for a couple minor pavement 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 over Highway 101,before considering approval of an extension of the lease from Highway 101 to the 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 the future. If I can be of further assistance or provide further illumination on this matter please do not hesitate to call. Sincerel Scott Moore cc: Kenneth Hampian,City Manager,Cityof San Luis Obispo Jay Walter,Public Works Director,City of San Luis Obispo Wes Lujan,Public Affairs Director, Union Pacific Railroad Lisa Burnside,Sr..Manager Real Estate,Union Pacific Railroad UNION PACIFIC RAILROAD 10031 Foothills Blvd., Roseville.CA 95747 (916) 739-6015 -R3=9 ATTACHMENT? council memoizanbum February 16, 2010 TO: City Council FROM: Katie Lichtig, City Manager Jay D. Walter, Public Works Director SUBJECT: OPTIONS FOR DEALING WITH UPRR RIGHT-OF-WAY DECISION RECOMMENDATION Provide direction to staff on whether to proceed with follow-up negotiations with Union Pacific Railroad (UPRR) to obtain right-of-way in light of its decision to reverse its 2004 approval to allow the Railroad Safety Trail bike path to occupy its active right-of-way. DISCUSSION Background In 2004, the City submitted plans to UPRR for the City's proposed Railroad Safety Trail, which 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 letter dated November 2004. In reliance on the conceptual approval and consistent with the stated conditions, the City undertook certain maintenance and improvement obligations on UPRR property. Staff also moved forward with obtaining grant funding for the construction of the trail in compliance with those plans. In the summer of 2008, when staff returned to UPRR to finalize plans and enter into necessary license agreements to proceed with the construction of the Phase 4 section of the trail, staff was advised that more information would be needed before UPRR would consider approving further sections of the trail. Staff continued discussions with UPRR officials, including submitting all required information, but still did not receive final approval. In October 2009 the Mayor, along 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 conceptually 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 any 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 the Highway 101 pedestrian/bicycle bridge. In addition it puts in jeopardy any future plans to utilize 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 the Railroad Safety Trail (RBST) to the upper Monterey paving and sidewalk installation project. 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 is warranted, given UPRR's clear decision to not allow us the use of its right-of-way based on what appears to be its corporate policies prohibiting this type of use in its right-of-way. The options currently available to the City are set forth below. OPTIONS 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 employees that specialize in getting approvals from UPRR. Staff has made a preliminary contact and provided some background information for them to evaluate what our best options are for continuing to work with UPRR for approval. At this point in time, it is not known what the cost would be to retain their services, or whether we would be 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 would be advantageous. However, it is not clear what influence county supervisors would 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 UPRR 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 persuading UPRR to make an exception to its policies: d. Federal elected officials— Lois Capps' local office was contacted, but could offer no assistance or ideas for how to proceed. Before he left, Ken Hampian offered to contact Senators Dianne Feinstein and Barbara Boxer, but that contact has not yet been made. e. Public Utilities Commission — Through a former professional contact of Katie Lichtig's (lobbyist and former legislator Mike Roos) an initial conversation with PUC Chairman Michael Peevey took place during which Chairman Peevey expressed a willingness to discuss the safety issues with the City but made no commitments about 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 the trail. The conversation had not taken place at the time of this writing. f. Caltrans, SLOCOG — Neither organization was helpful in offering suggestions for 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 B3=11 ATTACHMENT 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 needed 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 or 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 its 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 hold UPRR harmless for any death or injury arising from pedestrian and bicycle use of the path in exchange for UPRR's authorization to locate the path in its right of way. The City Attorney and Risk Manager have discussed this option with the City's insurance pool and 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 the City was to make this significant concession, it is not likely to alter UPRR's strong, albeit belated,policy position regarding uses in its right-of-way. 4. Legal action to compel compliance with the conceptual approval and to recover 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 the conditions outlined by UPRR. The City also expended approximately $460,000 on studies and designs to date. Having to return the grant funding that has been awarded so far will likely damage the City's credibility for future applications, as there will be extra scrutiny about whether we actually have the necessary approvals to move forward. Because the City partially executed the agreement between the City and UPRR based 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 not high as a practical matter and initiation of such action will undoubtedly not strengthen the 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 these 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 gain 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 terminating 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 the trail from the freeway to the train station. The down side to this is that UPRR would 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 B342 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 already 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 if necessary. There is also the possibility that the City could attempt to acquire right of way adjacent to the railroad corridor, but that would take a great deal more time and have some potential conflicts, such as higher costs and unwilling property owners. At this time, we believe that exploring alternate routes that will complete the trail and achieve City goals is the most productive option available to us. Staff would work to present new trail options to the Council by June 2011. Project Status Summary Project Adopted Project Funding Sources Total Cost Status RRST Phase 3 State Highway Account: $70,000 $2,930,000 Design Complete (between Amtrak State Bicycle Transportation Account station and Marsh (BTA): $890,000 St) Federal Transportation Enhancement Activities (TEA): $249,000 Other Grants: $101,000 (Subsequently lapsed) ARRA:$1,200,000 (Subsequently reallocated to upper Monterey paving/sidewalk project) Transportation Impact Fees(TIF): $420,000 RRST Gap project $0 Not finalized Studies underway (between Marsh St and the RRST 101 Bridge) RRST Hwy 101 BTA:$495,000 $1,093,500 Design underway Bridge TIF: $571,000 General Fund: $27;500 The RRST Gap project would be the final project phase that would complete the trail from the Amtrak Station to Cal Poly. It currently has no funding allocated for it (either grant or General 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 Status 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 the upper Monterey Street project in order not to lose them altogether. The BTA grant of$890,000 is in jeopardy if construction is not complete by Spring of 2012. The 101 Bridge project has a BTA P32 13 A IACHMENT 3. Options for Dealing with UPRR Right-of-Way Decision Page 5 grant in the amount of$495,000, which is in jeopardy if construction is not complete by Fall 2011. City staff is working with the grant administrators to find out how much flexibility there is to rescope the projects in such a way that the grants can be retained. It is possible that the City will be required to return the grant funds if no compromise on project scope or timeline can be reached. G:\Staff-Reports-Agendas-Minutes\_CCMemos\2010\UPRR Strategies.doc ATTACHMENT f Railroad Safety Trail Alternative Alignment - 2011 Legend , Bike Boulevard or Class 1 Bike Path Bike Bridge }. STAFFORD Class 1 Bike Path _ TAFT WIL — SON , z W Ui ;Z., PHILLIPS 0 25.0 "500 750 1000 Feet C7:.A' ll Say?,I111D OFitaS F1Q,'" q:'i� B3-15 ATTACHMENT 4 It Mustang Stadium +5 to Campus Way ' . a Completed s Campus way w i to Foothill Blvd _ t * ` Ph 4a-Under Const x � .. __... Foothill Blvd. _ . South to Hathway a, Completed 'u N Vim. Hathway to Marsh I,- " ett Revised Alignment }" Csj' , x vl1` fk rf ; �' Marsh to Amtrak . u.JI �A _ r�`! r 9 Revised Alignment ` rN INE • � t Amtrak to �h;_. ''a _ . Orcutt Complete +tet a k3�..1 RBST Segments and Phase Areas B3-16 �' li •� 1 ry .a rf :y♦c.. 1 lowlkiF PT-M- �p,W •I •.�� i��� _ - 4 s Cha a �j. :•, A� "�• r t�.,�Y,�r � a ,w ' '�� x�; fib.: a` v ii 'SSP$ ®2010 Goc la Imopo b 2010 GfpilalGtobe '� "' i 35:i�7�19.08{N :0�3Hi^H.93;W ] m. elev•2551t'' Jul.007 *`�►2K".:. Ey.eTall B9fi�l;.- ATTACHMENT !p ' S _ / V O�� � I � ✓ter ��} y� ) f� '�~ � .;mac`"'- / �' F �:. ;� ` .� � •., ,` �. a � r to,� CL r _ 1 CLcr1 i f h C. i OL! ZIA. CN �t� //� r CN W 4J cli 4-6 � I m m L m 4) > CD C N p d C U to U na Q Q B3-18 ATTACHMENT 7 RESOLUTION NO. 10157(2010 Series) A RESOLUTION OF THE CITY OF SAN LUIS OBISPO DENYING AN APPEAL OF THE ARCHITECTURAL REVIEW COMMISSION'S ACTION TO APPROVE THE DESIGN OF A BICYCLE AND PEDESTRIAN PATH WITH BRIDGE OVER PREFUMO CREEK AND A MITIGATED NEGATIVE DECLARATION FOR PROPERTY LOCATED AT 1269 VISTA LAGO (ARCIER 74-09) WHEREAS, the Architectural Review Commission, on January 20, 2010, approved a Mitigated Negative Declaration and granted final approval to the design fora proposed bicycle and pedestrian path extending from Vista Lago to Oceanaire Drive including a bridge over Prefumo Creek; and WHEREAS, Paul Johansen, a property owner of a dwelling unit in the Windemere 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 hearing in the Council Chamber of City Hall, 990 Palm Street, San Luis Obispo, California, on March 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 of environmental impact as prepared by staff and adopted by the Architectural Review Commission; and WHEREAS, the Council has duly considered all evidence, including the record of the Architectural Review Commission hearing and action, testimony of interested parties, and the evaluation and recommendations by staff,presented at said hearing. NOW,THEREFORE,BE IT RESOLVED,by the City Council of the City of San Luis Obispo as follows: SECTION 1. landings. Based upon all the evidence, the City Council makes the following findings: Project Design 1. The proposed project consisting of a bicycle and pedestrian pathways and a connecting bridge over Prefumo Creek is consistent with Section 7.1, Creekside Development, of the City's Community Design Guidelines because it: a. Minimizes encroachment into the riparian corridor by its free-span bridge design which 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 creek environment. R 10157 -' ATTACHMENT 7 Resolution No. 10157 (2010 Series) Page 2 Creek Setback Exceptions 2. The location and design of the free-span bridge and the connecting pathways will minimize impacts to scenic resources, water quality, and riparian habitat, including opportunities for wildlife habitation, rest and movement because the encroaching features are relatively minor in scale. 3. The exception will not limit the City's design options for providing flood control measures that are needed to achieve adopted City flood policies because the project creek banks and stream channel remain essentially unaltered. 4. The exception will not prevent the implementation of City-adopted plans, nor increase the adverse environmental effects of implementing such plans because along with the minor exceptions requested, the project will not adversely affect the health and vitality of the riparian corridor. 5. There are circumstances applying to the site, such as shape and topography, which do not apply generally to land in the vicinity with the same zoning that would deprive the property of privileges enjoyed by other property in the vicinity with the same zoning because the 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 inconsistent with the limitations upon other properties in the vicinity with the same zoning-because the 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 in the area of the project or downstream because of the project's environmentally sensitive design. . 8. Site development cannot be accomplished with a redesign of the project because the alternatives to having a bridge with no encroachments in the creek setback would have more significant aesthetic and environmental impacts because they would require more extreme bridge heights and support features. 9. Redesign of the project would deny the property owner reasonable use of the property given the unique circumstances of a bridge that would require some sort of creek setback exception to be feasible. SECTION 2. Environmental Review. The City Council reaffirms the Architectural Review Commission's adoption of a Mitigated Negative Declaration finding that it adequately identifies the project's potentially significant impacts with incorporation of the following mitigation measures and monitoring programs: ATTACHMENT Resolution No. 10157 (2010 Series) Page 3 Mitigation Measures: Reduction of Light and Glare 1. Bridge lighting shall be limited in intensity and scale necessary for security and safety and 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. .All exterior lighting shall be shielded down-lights that do not shine skyward or spill onto adjacent properties to the review and approval of the Architectural Review Commission (ARC). Construction plans shall include details of light fixtures with illumination levels and shielding mechanism • Monitoring Program: The ARC will review development plans for the project. City staff, including Planning and other departments, will review plans to assure that all of the ARC's requirements related to lighting are compliant with the MASP provisions and have been incorporated into working drawings. City building inspectors will be responsible for assuring that all lighting is installed pursuant to the approved lighting plan. AIR QUALITY MITIGATION Short-term Construction Impacts 2. During construction/ground disturbing activities, the applicant shall implement the following particulate (dust) control measures. These measures shall be shown on grading and building plans. In addition, the contractor shall designate a person or persons to monitor the dust control program and to order increased watering, as necessary, to prevent transport of dust off site. Their duties shall include holiday and weekend periods when work may not be in progress. The name and.telephone number of such persons shall be provided to the City 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 dust from leaving the site. Increased watering frequency will be required whenever wind speeds exceed 15 mph. Reclaimed (non-potable) water should be used whenever 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 the approval of the City Biologist and.Department of Fish&Game. e. Vehicle speed for all construction vehicles shall not exceed 15 mph on any unpaved surface at the construction site. f. All trucks hauling dirt, sand, soil, or other loose materials are to be covered or should maintain at least two feet of freeboard (minimum vertical distance between top of load and top of trailer) in accordance with California Vehicle Code Section 23114. -- -- S3721 ATTACHMENT Resolution No. 10157 (2010 Series) Page 4 • Monitoring Program Community Development Department staff will insure that project plans incorporate the mitigation measures. City Engineering staff will inspect the construction operations to verify conformance with specifications and mitigations. BIOLOGICAL RESOURCES MITIGATION Vegetation,CRF,and South-central California.steelhead 3. All staging work will be in clearly designated and flagged areas from the proposed alignment 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 will 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 other 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 bank when working near Prefumo Creek. This will serve to keep animals out of the worksite and 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 staging 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,unaffected willows; or if feasible, cuttings will be directly installed from willows that need to be trimmed for bridge installation (i.e., trimmings will be planted near the work area immediately after they are removed). The replanting will occur in the open, exposed area of the floodplain immediately upstream of the bridge crossing. The willows will be monitored and maintained until successfully established (MR 6).. 9. Pre-Activity surveys for Steelhead trout, California Red-legged Frog, nesting birds, and sensitive plants will be completed. A reference site will be examined for appropriate comparison. Nesting;Birds 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) - -- -- - B3-22 ATTACHMENT 7 Resolution No. 10157 (2010 Series) Page 5 prior to the arrival of spring migrant birds. Doing so will minimize the potential for impacts 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 Migratory Bird Treaty Act; the U.S. Fish and Wildlife Service will be notified if a nest, egg, or nesting will be affected (MR 7). 10. Prior to construction, a qualified biologist shall be retained to conduct a pre-construction survey (approximately one week prior to construction) to determine presence/absence of nesting birds within the project area. If no breeding or nesting activities are detected near the 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 one week prior to construction(MR 9). 12. Construction near or adjacent to the riparian corridor will be conducted to minimize disturbance to any birds that may still be nesting in the area as an additional precautionary measure 9MR 10). Erosion Control 13. Restore all previously vegetated areas that are cleared during project activities through revegetation with appropriate seed mix. If necessary, irrigate to establish a ground cover prior to onset of the wet season. Silt fencing should be installed around any disturbed area located less than 23 feet from the main channel of Prefumo Creek. The City biologist or other qualified monitor will ensure erosion control measures are intact and functioning properly 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 General 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 prior 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 (MR 13). 16. Best Management Practices (BMP's) to control dust will entail use of a water truck on-site during the excavation of the abutments. Should material need to be removed from the site via 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 be 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 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 be installed at the Vista Lago Park location. This may allow for vehicles to be driven across the 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 to surrounding neighborhoods(MR 15). • Monitoring Program(Mitigation Measures 3-17) City Engineering staff will inspect the construction operations daily to verify conformance with specifications and mitigations. The Natural Resources Manager will conduct periodic 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 compliance with biological mitigation requirements, and prepare a daily log to document the presence or absence of any sensitive species and actions taken. CULTURAL.RESOURCES MITIGATION 18. If excavations encounter significant paleontological resources, archaeological resources or cultural materials, then construction activities that may affect them shall cease until.the extent of the resource is determined and the Community Development Director approves appropriate protective measures. The Community Development Director shall be notified of the extent and location of discovered materials so that a qualified archaeologist may record them. 19. If pre-historic Native American artifacts are encountered, a Native:American monitor should 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 pians for the project. • Monitoring Program Requirements for cultural resource mitigation shall be clearly rioted on all plans for project grading and construction. GEOLOGY AND SOILS MITIGATION 20. Grading and construction of the bridge and other improvements shall be designed and performed in compliance with the submitted foundation report. • Monitoring Program Community Development and Public Works staff shall review plans to assure that the recommendations of the foundation report are incorporated into plans. =B3-24 ATTACHM>_NT ' Resolution No. 10157 (2010 Series) Page 7 21. Hazardous materials transfers, fueling, and other use of chemicals shall be restricted to staging areas away from the project site. o Monitoring Program City Engineering staff will inspect the construction operations daily to verify conformance with specifications and mitigations. HYDROLOGY AND WATER QUALITY MITIGATION Avoidance and Minimization Measures for Impacts to CRF from the Programmatic 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 the biologist is qualified to conduct the work. 24. A Service-approved biologist will survey the project site 48-hours before the onset of work activities. If any life stage of the California red-legged frog is found and these individuals are likely to be killed or injured by work activities, the approved biologist will be allowed 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 distance possible to a location that contains suitable habitat and will not be affected by the activities associated with the proposed project. The Service-approved biologist will maintain detailed 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 translocated animals are returning to the original point of capture. 25. Before any activities begin on a project, a Service-approved biologist will conduct a training session for all construction personnel. At a minimum, the training will include a description of the California red-legged frog and its habitat, the specific measures that are being implemented to conserve the California red-legged frog for the current project, and the boundaries with-in which the project may be accomplished. Brochures, books and briefings may be used in the training session, provided that a qualified person is on hand to answer any questions. 26. A Service-approved biologist will be present at the work-site until all California red-legged frogs have been removed, workers have been instructed, and disturbance of habitat has been completed. After this time, the state or local sponsoring agency will designate a person to monitor on-site compliance with all minimization measures. The Service-approved biologist Will ensure that this monitor received the training outlined in mcasure 4 and in the identification of California red-legged frogs. If the monitor or the Service-approved biologist recommends that work be stopped because California red legged frogs-would be affected to a --- B3-25 ATTACHMENTS Resolution No. 10157 (2010 Series) Page 8 degree that exceeds the levels anticipated by the Federal Highways Administration and Service during review of the proposed action, they will notify the resident engineer (the 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, all 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-feet from riparian habitat or water bodies and not in a location from where the spill would drain directly toward aquatic habitat. The monitor will ensure contamination of habitat does not. occur during such operations. Prior to the onset of work, the- Federal Highway Administration will ensure that a plan is in place for prompt and effective response to any accidental spills. All workers will be informed of the importance of preventing spills and of 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. Environmentally sensitive areas will be established to confine access routes and construction areas to the minimum area necessary to complete construction, and minimize the impacts to California Red-legged Frog habitat; this goal includes locating access routes and construction areas outside of wetlands and riparian areas to the maximum extent possible. 30.To control sedimentation during and after this project implementation, the Federal Highway Administration and sponsoring agencies will implement best management practices outlined in the authorizations or permits, issued under the authorities of the Clean Water Act that it receives for the specific project. If best management practices are ineffective, the Federal Highway Administration will attempt to remedy the situation immediately, in consultation with the Service. • Monitoring Program The Federal Highway Administration and sponsoring agencies will implement best management practices outlined in the authorizations or permits, issued under the authorities of the Clean Water Act that it receives for the specific project. Community Development and Public Works staff shall review plans to assure that the best management practices are incorporated into plans. 31. If the Community Development Director or hearing body determines that the above mitigation measures are ineffective or physically infeasible, he may add, delete or modify the mitigation to meet the intent of the original measures. B3-26 ATTACHMENT • .7 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 proposed bicycle and pedestrian path extending from Vista Lago to Oceanaire Drive including a bridge over Prefumo Creek, subject to the following conditions: Conditions: 1. The proposed lighting fixtures for the bridge shall be a different style to better complement the aesthetics of the bridge and modified to comply with Mitigation Measure No. I 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 and Community Development Department Directors. 2. The ultimate fencing detail selected for the edge of the bike path on the northeast side of the Windemere Condominiums shall: 1) eliminate the sharp pickets at the top of the fence to address safety concerns; and 2) maintain a minimal footprint so that the pathway can be as wide as possible. f 3. The design of the bridge shall be modified to include entry embellishments and a softer appearance to the approval of the Public Works and Community Development Department 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 condominium development may be approved by the Community Development Director if the modifications result in a wider path width at this location. 5. An evaluation of site lighting shall be conducted to determine the need to provide additional lighting along the bicycle pathways to address safety and security issues,to the approval of the.Community Development Director. Upon motion of Council Member Marx, seconded by Council Member Ashbaugh, and on the following vote: AYES: Council Members Ashbaugh and Marx, and Vice Mayor Carter NOES: Council Member Settle and Mayor Romero ABSENT: None - - --B3-27 - - - ATTACHMENT 7 Resolution No. 10157 (2010 Series) Page 10 The foregoing resolution was adopted this 16`"day of March 2010. Mayor David P. Romero ATTEST: Elaina Cano City Clerk APPROVED AS TO RM: hristine Dietrick City Attorney -- BI-28 — -. - _. ATTACHMENT 8 � m _ _ O U •� Y Q) m C O UO Z �U O v N m m O LO c O CL 1: « o w M ma m c r Ln O N N 'J L L o w U � O �. UO U cr O � m m - U 'p O O a. 2 m O J m in C N O � � O U N N ` I c in (V cT J N O U 06 m c o QJ L m n m U i m Q C _ J ^ O M m O C O J ^ m a o o00 E m U � d Y m O m my U B3-2-