Matters from Staff Agenda Item #9

Board of County Commissioners - Staff Report

Meeting Date: March 16, 2021 Presenter: Brian Schilling Submitting Dept: Public Works - Pathways Subject: Consideration of Amendments to the Memorandum of Agreement and Funds Transfer Agreement for the Federal Lands Access Program (Teton Pass Centennial Trail)

Statement / Purpose: Approval of Amendment No. 1 to the Memorandum of Agreement and Amendment No. 2 to the Funds Transfer Agreement with the Federal Highway Administration (FHWA) for the Teton Pass Centennial Trail.

Background / Description (Pros & Cons): In 2014 Teton County was awarded federal funding through the Federal Lands Access Program (FLAP) for a pathway on the west side of Teton Pass. The project is a partnership with the City of Victor to construct a pathway from the Moose Creek trailhead to the Trail Creek Campground (the portion is the 0.25 mile segment from the state line to the Trail Creek Campground). The project has been bid and is planned for construction this summer. The FLAP funds require a 9.51% local match. Per prior agreements, Teton County has contributed a total of $143,802. The project was put out to bid for construction last year and the bids came in $487,884 higher than the available project funding. FHWA subsequently revised their contribution upward by $441,486 to cover their portion of the overrun and has requested that Teton County provide an additional $46,398 (9.51% of $487,884) in matching funds. The additional amount would bring the County’s total match to $190,200. FHWA has provided two documents for County approval. The first is an amendment (No. 1) to the Memorandum of Agreement originally approved by the County on 2/14/18. (The proposed amendment effectively replaces the 2/14/18 MOA in its entirety). The second document is an amendment (No. 2) to the Funds Transfer Agreement originally approved by the County on 2/18/17. The proposed amendment to the agreement allows until October 31, 2021 to provide the funding. Stakeholder Analysis & Involvement: The Wyoming Department of Transportation and the Caribou-Targhee National Forest are partners and co-signatories on the agreement. They have been involved in every step of the project.

Fiscal Impact: Teton County’s additional match obligation is $46,398. A request for this funding is included in the FY22 Pathways capital budget.

Staff Impact: Minimal. A voucher will be produced to send a check to FHWA. Otherwise there is no impact to staff.

Legal Review: Gingery

Staff Input / Recommendation: Approval of Amendments 1 and 2

Attachments: 1. FLAP Memorandum of Agreement Amendment 1 2. FLAP Funds Transfer Agreement Amendment 2 Suggested Motion: I move to approve Amendment No. 1 to the Memorandum of Agreement and Amendment No. 2 to the Funds Transfer Agreement with the Federal Highway Administration for the Wyoming Teton Pass Centennial Trail Project.

Service ● Excellence ● Collaboration ● Accountability ● Positivity ● Innovation

Federal Lands Access Program Project Memorandum of Agreement Amendment 1

Project / Facility Name: WY DOT 22(1) – Wyoming Teton Pass Centennial Trail

Project Route: Wyoming State Hwy. 22

State: Wyoming

County: Teton County, Wyoming

Owner of Federal Lands to which the Project Provides Access: Caribou – Targhee National Forest – USDA Forest Service

Entity with Title or Maintenance Responsibility for Facility: Teton County, Wyoming

Type of Work: The project is to include:

 Preliminary Engineering including environmental studies to support an environmental decision  Construction Engineering / Contract Administration

This Agreement does not obligate (commit to) the expenditure of Federal funds nor does it commit the parties to complete the project. Rather, this agreement sets forth the respective responsibilities as the project proceeds through the project development process and construction.

This agreement amends Memorandum of Agreement dated: 2/14/18 between FHWA-WFL, Wyoming Department of Transportation, Caribou-Targhee National Forest and Teton County, Wyoming.

Parties to this Agreement: Teton County, Wyoming; Wyoming Department of Transportation; Caribou – Targhee National Forest – USDA Forest Service; and the Federal Highway Administration, Western Federal Lands Highway Division (FHWA-WFL).

The Program Decision Committee initially approved this project in 2014 and subsequently approved the addition of the HWY 22 underpass and small parking area at Trail Creek on August 15, 2017.

AGREED:

Natalia D. Macker, Chairwoman Date Teton County Board of County Commissioners

Attest:

Maureen E. Murphy Date Teton County Clerk

Mark Gillett, PE, Chief Engineer Date Wyoming Department of Transportation

Mel Boling, Forest Supervisor Date Caribou-Targhee National Forest

Daniel Donovan, Chief of Business Operations Date Western Federal Lands Highway Division, FHWA-WFL

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 2 of 11

A. PURPOSE OF THIS AGREEMENT:

This agreement documents the intent of the parties and sets forth the anticipated responsibilities of each party in the development, construction, and continued maintenance of the subject project. The purpose of the agreement is to identify and assign responsibilities for Project Development, Contract Advertisement, and Construction Administration as appropriate for this project, and to ensure continued maintenance of the facility for public use if improvements are made. The parties understand that any final decision as to design or construction will not be made until after the environmental analysis required under the National Environmental Policy Act (NEPA) is completed (this does not prevent the parties from assigning proposed design criteria to be studied in the NEPA process.) Any decision to proceed with the design and construction of the project will depend on the availability of appropriations at the time of obligation and other factors such as issues raised during the NEPA process, a natural disaster that changes the need for the project, a change in Congressional direction, or other relevant factors.

If Federal Lands Access Program (FLAP) funds are used for the development or construction of this project, Teton County, Wyoming agrees to provide a matching share equal to 9.51% of the total cost of the project, as detailed more fully in Section J below. When agencies other than FHWA-WFL will be expending FLAP funds, the parties agree to execute a separate obligating document. No reimbursement will be made for expenses incurred prior to execution of the obligating document.

B. AUTHORITY:

This Agreement is entered into between the signatory parties pursuant to the provisions of 23 U.S.C. 204 and TETON COUNTY, WYOMING, a duly organized county of the State of Wyoming.

C. JURISDICTION AND MAINTENANCE COMMITMENT:

Teton County, Wyoming has jurisdictional authority to operate and maintain the existing facility and will operate and maintain the completed project at its expense.

D. FEDERAL LAND MANAGEMENT AGENCY COORDINATION:

Teton County, Wyoming has coordinated project development with the Caribou – Targhee National Forest. The Caribou – Targhee National Forest support of the project is documented in the Project Proposal by endorsing the proposal.

Each party to this agreement who has a primary role in NEPA, design or construction should coordinate their activities with the Federal Land Management Agency.

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 3 of 11

E. PROJECT BACKGROUND / SCOPE:

The Old Jackson Highway turned 100 years old in summer 2013. This project will help mark the centennial celebration of the historic connection of and Wyoming over Teton Pass – creating enhanced bicycle and pedestrian access for the next century. The challenging terrain and iconic views will draw visitors to experience public lands and enhance the quality of life in Teton County and surrounding communities. ID-33 connects directly with providing access to and Grand Teton National Park on the east side of Teton Pass, which has an extensive pathway system.

The alignment of the Teton Centennial Pathway will take advantage of the old highway roadbed where feasible. Minor earthwork will be required to reconnect old road sections. Retaining walls protection may be required to construct the path within limited cuts and fills. Rock fall protection may be required to protect pathway and highway users.

WFLHD, in conjunction with Teton County, Wyoming, completed a Concept Design Report in February 2016. The Concept Design Report refined the project scope and identified alternative design treatments for a Crossing at Trail Creek Campground.

At a Concept Review Meeting conducted in March 2016, the project stakeholders initially agreed to pursue development of the trail with an at-grade crossing. Additionally, the stakeholders identified the need for 5 – 8 spot day use parking area at Trail Creek Campground to accommodate trail users.

Project proponents subsequently applied for separate funding to complete an undercrossing at Trail Creek under a separate project request through the Federal Lands Access Program in 2017. That funding request was approved by the Wyoming Program Decisions Committee (PDC) on August 15, 2017.

The project development team will undertake to meet these design alternatives within available budgets, environmental constraints. It is likely that changes will occur throughout design as the team attempts to balance environmental, financial, operational and stakeholder considerations.

The project will be designed in accordance with the American Association of State Highway & Transportation Officials (AASHTO) Policy on Geometric Design and Operations of Pedestrian Facilities and the US Forest Service Trail Accessibility Guidelines for a Class 5 bicycle facility, with deviations documented in a Design Standards Memorandum, as necessary.

General:

The proposed project is along Wyoming Highway 22, beginning at approximate Milepost (MP) 154.72 and would end at approximate MP 155.08. This project is located at approximate coordinates 43°32'36.92"N, 111° 2'43.79"W.

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 4 of 11

F. PROJECT BUDGET:

This is the anticipated budget for the project based on information developed to date and reflects updated budget approved by the Program Decision Committee in 2017. See Notification Letter from Christopher Longley, Federal Lands Access Program Manager to Sean O’Malley, Teton County Public Works Director. Federal Lands Access Program funds in conjunction with matching funds provided by TETON COUNTY, WYOMING will fund this project as detailed in Section K.

Item Total Comments Preliminary Engineering including $220,380 scoping and NEPA (PE) Construction (CN) $1,469,230 Contract Bid Construction Engineering (CE) $146,920 Construction Modifications (CM) $163,470 Contingency TOTAL $2,000,000

G. ROLES AND RESPONSIBILITIES:

TETON COUNTY, WYOMING  Will appoint a representative who will be the primary contact for FHWA-WFL’s Project Manager.  Will provide appropriate match to all FLAP funds expended on the project even if the project is terminated prior to completion.  Will enter into maintenance agreement with WYDOT to ensure adequate maintenance for new facility at County expense.  Will coordinate all public information and outreach efforts necessary to maintain public support.  Will be responsible for the acquisition of any rights-of-way and / or easements necessary to complete the project.  Upon completion of construction, a final inspection will be convened by FHWA-WFL with attendees from TETON COUNTY/CARIBOU – TARGHEE NATIONAL FOREST – USDA FOREST SERVICE and WYDOT, and if it is determined the project has been constructed in substantial conformity with approved plans and specifications, TETON COUNTY, WYOMING will provide written confirmation of its acceptance of the constructed project.

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 5 of 11

WYOMING DEPARTMENT OF TRANSPORTATION

 Will appoint a representative who will be the primary contact for FHWA-WFL’s Project Manager.  Coordinate with CTNF for expanded easement rights for project construction, if necessary.  Provide design review comments for any work which will impact Wyoming State Highway 22.  Facilitate construction of undercrossing and any impacts to Wyoming State Highway 22, with permitting and oversight in coordination with FHWA-WFL, as necessary.

CARIBOU – TARGHEE NATIONAL FOREST – USDA FOREST SERVICE  Will appoint a representative who will be the primary contact for FHWA-WFL’s Project Manager.  Will complete NEPA documentation for project completion.  Will expand easement rights to WYDOT as necessary to accommodate pathway construction, if necessary.

FHWA-WFL  Will appoint a Project Manager to coordinate project delivery.  Will prepare contract documents.  Will advertise and administer construction contract.  Will be responsible for stewardship and oversight activities.  FHWA-WFL will be responsible for FHWA decisions that may be not be delegated.

H. ROLES AND RESPONSIBILITIES – MILESTONE SCHEDULE:

Responsible Product/Service Schedule Start/Finish Lead

FHWA-WFL Concept Design Complete - February 2016 Report

CTNF NEPA documentation Complete – November 2016

FHWA-WFL NEPA Decision Complete - February 2018

FHWA-WFL 70% PS&E Complete - April 2018

FHWA-WFL 95% PS&E Complete – April 2019

FHWA-WFL Advertise/Award Complete – Fall 2019

FHWA-WFL Construction April 2021/October 2021

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 6 of 11

I. PROPOSED DESIGN STANDARDS:

Preferred design alternatives will be determined through the NEPA process.

Criteria Comments

Standard American Association of State Highway & Transportation Officials (AASHTO) Policy on Geometric Design and Operations of Pedestrian Facilities US Forest Service Trail Accessibility Guidelines for a Class 5 bicycle facility Functional Classification Arterial Proposed Facility is a shared use pedestrian and bicycle pathway

Surface Type Asphalt

Design Volume 8,916 ADT Projected 2032 ADT for HWY 22

Design exceptions to standards will be documented and sent to TETON COUNTY, CARIBOU – TARGHEE NATIONAL FOREST – USDA FOREST SERVICE, and WYDOT for concurrence.

J. FUNDING:

The project is funded by the Federal Lands Access Program administered by FHWA-WFL with matching funds provided by TETON COUNTY.

Funding Source Amount % Comments

Federal Lands Access Funds $1,809,800 90.49% PDC Approved December 2020

Local Matching Share (TETON $190,200 9.51% $143,802 received from Teton County, as COUNTY, WY) of January 4, 2021

Total Projected Costs $2,000,000 100%

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 7 of 11

K. MATCHING SHARE REQUIREMENTS:

The purpose of this section is to document the intent of TETON COUNTY, WYOMING to meet its match requirement for the subject project as authorized under section 23 USC 201(b)(7)(B). All FLAP expenditures associated with this project will need to be matched by a Non- Federal source, by other Federal funds other than those made available under Titles 23 and 49 of the United States Code, or by funds made available under 23 U.S.C. 202 and 203. The matching requirement under the FAST Act will be met by TETON COUNTY, WYOMING.

TETON COUNTY/ CARIBOU – TARGHEE NATIONAL FOREST – USDA FOREST SERVICE and other agencies have committed to the project. The forms of match shall be those consistent with the 'Federal-Aid Guidance Non-Federal Matching Requirements' and as approved by FHWA-WFL. In the state of Wyoming, the match share is 9.51% of the total project cost.

This project is authorized to use a Tapered Match. Under this approach, the non-Federal match is imposed over the entire project rather than individual progress payments. Timing of all fund transfers are specified in the Funding Plan. Tapered Match is authorized because it will result in an earlier completion date.

Estimated costs and fiscal year (FY) for the funding are based on the best budgeting and scheduling information known at the time. The final match will be determined based on actual expenditures at the conclusion of project work. Matching cash funds in FHWA-WFL receipt may need to be supplemented, or returned, once actual expenditures are determined. As noted under Modifications, if costs increase over the amount within this agreement, FHWA-WFL will consult with the agency(ies) providing Match before granting approval.

Maintain all project records, including source documentation for all expenditures and in-kind contributions, for a period of three (3) years from the date of final acceptance. If any litigation claim, negotiation, or audit has been started before expiration of the three-year period, the records shall be retained until completion of the action and resolution of all issues that arise from it.

The following agencies have agreed to contribute the amounts shown which will reduce the federal share by the same amount. The Funding Plan is as follows:

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 8 of 11

Agency Phase Form Due Value Comments

TETON PE CASH June $7,620 Paid June 2016. COUNTY, WY 2016

TETON PE CASH January $11,400 Paid June 2018 COUNTY, WY 2018

TETON CN CASH August $124,782 Paid September 2018 COUNTY, WY 2018

TETON CN CASH October $46,398 COUNTY, WY 2021

L. PROJECT TEAM MEMBERS – POINT OF CONTACT:

The following table provides the points of contact for this project. They are to be the first persons to deal with any issues or questions that arise over the implementation of each party’s role and responsibility for this agreement.

NAME / TITLE ORGANIZATION TELEPHONE NO. / E-MAIL

Brian Schilling, TETON COUNTY (307)732-8573/ Pathways Coordinator [email protected]

Jay Pence, District CARIBOU – TARGHEE (208)354-2312/ Ranger NATIONAL FOREST – [email protected] USDA FOREST SERVICE

Bob Hammond, Wyoming Department of (307)733-3665/ Resident Engineer Transportation [email protected]

Kevin J. Gray, Project Federal Highway 360-619-7652/ Manager Administration-Western [email protected] Federal Lands Highway Division

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 9 of 11

NAME / TITLE ORGANIZATION TELEPHONE NO. / E-MAIL

Susan Ellis, Project Federal Highway 360-619-7810/ Manager Branch Chief Administration-Western [email protected] Federal Lands Highway Division

M. CHANGES / AMENDMENTS / ADDENDUMS:

The agreement may be modified, amended, or have addendums added by mutual agreement of all parties. The change, amendment, or addendum must be in writing and executed by all of the parties.

The types of changes envisioned include, but are not limited to, changes that significantly impact scope, schedule, or budget; changes to the local match, either in type or responsibility; change that alter the level of effort or responsibilities of a party. The parties commit to consider suggested changes in good faith. Failure to reach agreement on changes may be cause for termination of this agreement.

A change in composition of the project team members does not require the agreement to be amended.

It is the responsibility of the project team members to recognize when changes are needed and to make timely notifications to their management in order to avoid project delivery delays.

N. ISSUE RESOLUTION PROCEDURES MATRIX:

Issues should be resolved at the lowest level possible. The issue should be clearly defined in writing and understood by all parties. Escalating to the next level can be requested by any party. When an issue is resolved, the decision will be communicated to all levels below.

TETON COUNTY CTNF WYDOT FHWA-WFL Time Brian Schilling, Jay Pence, District Ranger Bob Hammond, Kevin Gray, 15 Pathways Coordinator Resident Project Days Engineer Manager Heather Overholser, Mel Boling, Forest Tory Thomas, Brent Coe, 15 Director of Public Supervisor Acting District Project Days Works Engineer Manager Branch Chief

O. TERMINATION:

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 10 of 11

This agreement may be terminated by mutual written consent of all parties. This agreement may also be terminated if either the NEPA process or funding availability requires a change and the parties are not able to agree to the change. Any termination of this agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. If Federal access funds have been expended prior to termination, the party responsible for the match agrees to provide a match in the applicable percentage of the total amount expended on the project prior to the termination.

Project Memorandum of Agreement, Amendment 1 Wyoming Teton Centennial Trail January 4, 2021 Page 11 of 11

Western Federal Lands Highway Division, FHWA 610 E. Fifth Street

Vancouver, WA 98661 US Department of Transportation Federal Highway Administrat ion Funds Transfer Agreement Monday, December 18, 2017 Teton County, WY Providing Funding of $190,200.00 Western Federal Lands Highway Division, FHWA Agreement # DTFH70-16-E-00043 – Amendment 0002 Project Number/Name: WY DOT 22(1), Wyoming Teton Pass Centennial Trail This letter is to confirm that Teton County has committed to provide through either electronic funds’ transfer or by check, $46,398 to the Western Federal Lands Highway Division, FLWA for project work and/or a construction contract to construct a mixed-use pathway from WY/ID state line to the Trail Creek Campground; plan, permit and design a pathway from Trail Creek Campground to Coal Creek Trailhead; plan and permit a pathway from Coal Creek Trailhead to Teton Pass summit. This Agreement is hereby increased by $46,398 to new FTA funding level of $190,200 by reason of this amendment. The expiration date is extended to December 31, 2022 for project work by reason of this amendment. Fund Transfer Summary: Phase Form Amount Due Received FTA Number Amend # Comment PE Cash $ 7,620.00 7/1/2016 6/30/2016 DTFH7016E00043 Base Match for PE PE Cash $ 11,400.00 4/1/2018 06/11/2018 DTFH7016E00043 0001 Match for PE CN Cash $ 124,782.00 8/1/2018 09/07/2018 DTFH7016E00043 0001 Match for CN CN Cash $ 46,398.00 10/31/2021 0002 Match for CN $190,200.00 Extend Period of Performance

The following is the Teton County, WY Finance Billing The following is Western Federal Lands Highway Division, Information: FHWA Finance Billing Information:

DUNS# 096-690-854 DUNS# 139-768-597 Finance Contact Maureen Murphy Finance Contact Genise L. Dance Finance Phone (307) 733-4430 Finance Phone (360) 619-7534 Finance Fax Finance Fax (360) 619-7945 Finance E-mail [email protected] Finance E-mail [email protected]

Project Contact Brian Schilling Project Contact Lotse Townsend Project Phone (307) 733-3317 Project Phone (360) 619-7882 Project Fax Project Fax (360) 619-7945 Project E-mail [email protected] Project E-mail [email protected] Street Address 200 South Willow Street PO Box 3594

City, State, Zip Jackson, WY 83001

Expiration Date: This Funds Transfer Agreement will expire on 12/31/2022.

The current authorized funding is $190,200. In no case, shall the Teton County, WY or FHWA exceed this amount or extend the date of the agreement without a mutually agreed upon written modification of this Agreement.

Natalia D. Macker, Chairwoman Date Namrata Battan, Contracting Officer Date Teton County, WY Western Federal Lands Highway Division, FHWA