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HomeMy WebLinkAbout6.n. Bonaire Path East, City Project 2018-03 Approve Engineering Agreement with Union Pacific Railroad Company for Rail Crossing ImprovementsI:\City Clerk\Agenda Items\Approved Items\6.n. Bonaire Path East, City Project 2018-03 Approve Engineering Agreement with Union Pacific Railroad Company for Rail Crossing Improvements.docx EXECUTIVE SUMMARY City Council Meeting: December 4, 2018 AGENDA ITEM: Bonaire Path East, City Project 2018-03: Approve Engineering Agreement with Union Pacific Railroad Company for Rail Crossing Improvements AGENDA SECTION: Consent PREPARED BY: Brian Erickson, PE, Director of Public Works/City Engineer Stephanie Smith, PE, Assistant City Engineer AGENDA NO. 6.n. ATTACHMENTS: Sample Agreement with Union Pacific APPROVED BY: LJM RECOMMENDED ACTION: Motion to Approve Entering into an Agreement with Union Pacific Railroad for Engineering the Railroad Improvements on Bonaire Path East. BACKGROUND City Project 2018-03 is proposed to convert Bonaire Path East from the existing rural gravel section to a paved section. The project will also include utility work and improvements at the existing railroad crossing on Bonaire Path E to facilitate extending the City’s Quiet Zone. RAIL CROSSING IMPROVEMENTS As part of the project the scope includes construction a concrete median and installing track panel improvements, signals and crossing arms at the railroad intersection to meet Quiet Zone standards. Union Pacific Railroad (UPRR) requires the City enter into the attached agreement in order to review this proposed project and design plans for the crossing improvements within Union Pacific’s right-of-way. Once construction is completed, the City will apply to expand the Quiet Zone to include this crossing. This approval is given by the Federal Rail Administration (FRA) and will be completed via a separate process. It should be noted that the signal and crossing arm improvements may be need to follow a separate timeline based on Union Pacific’s staffing levels and anticipated work timeline. City staff will keep the Council updated as we learn more. Staff has been working with MnDOT regarding the rail safety and financial aspects of the project. At this time, an initial engineering agreement with Union Pacific Railroad (UPRR) in order to insure a timely review of the design is necessary. This agreement accomplishes that. As the project progresses, it’s anticipated that additional agreements will be required for replacing the crossing and installing the signal system. These future agreements will be brought forward at a future council meeting. COSTS & FUNDING Per the Feasibility Report, the railroad crossing improvements are estimated at $779,000 which is approximately 20% of the total project cost. The total project cost estimate is tabulated below: 2 This project is scheduled in the 2018-2027 CIP. It is proposed to be funded by a combination of MN State Bonding funds, MN State-Aid funds, utility core funds, and special assessments of benefitting properties. A preliminary assessment roll is included in the Feasibility Report. SUMMARY Staff recommends the City Council approve entering into an Agreement with Union Pacific Railroad for Engineering. 1032063 AGREEMENT USDOTNO 380393G (F-1197) S.P. 88RM-296 FUNDS State (Lump Sum) Preliminary Engineering Agreement Ash St (CSAH 74) City of Farmington, Dakota County, MN Union Pacific Railroad Company THIS AGREEMENT, made and entered into by and between the UNION PACIFIC RAILROAD COMPANY, (Company) and the STATE OF MINNESOTA through its COMMISSIONER OF TRANSPORTATION, (State), RECITALS: 1. Ash Street (CASH 74), as now established, crosses the track of the Company at grade in The City of Farmington, Dakota County, MN, the location of the crossing and railway track shown on the attached print, marked Exhibit “B”. 2. The Company and the State desire that said grade crossing be provided with a new railroad flashing light signal system and the Company is willing to provide preliminary engineering services for the railroad flashing light signal system upon the terms and conditions in this Agreement. 3. The State of Minnesota, pursuant to Minnesota Statutes Section 219.1651, is authorized to enter into an agreement with the Company for the work. 2 Agreement No. 1032063 CONTRACT: 1. EXHIBITS 1.1 The State’s “Standard Clauses for Railroad-Highway Agreements” (Standard Clauses), is attached and incorporated as Exhibit “A”. Except as expressly modified, all of the terms and conditions set forth in the Standard Clauses are incorporated into this Agreement. 1.2 Exhibit “B” the location print, is attached hereto and made a part of this Agreement. 2. WORK PERFORMANCE AND TIME SCHEDULE 2.1 This Agreement is effective upon the date the State obtains all signatures as required by Minnesota Statutes Section 16C.05, Subd. 2, any work by the Company prior to the effective date of this Agreement is not reimbursable. Work by the Company shall be completed within 6 months after the date the Company is authorized to begin work. If the Company determines it is not possible to complete the work within the period herein specified, it shall make a written request to the State for an extension of time for completion, setting forth therein the reason for such extension. 2.2 The Company will provide a detailed cost estimate for the installation of a new flashing light signal system at the location indicated on Exhibit “B” with its own equipment and regularly employed forces and in accordance with the Company’s Agreements with such regularly employed forces. 2.3 The State will provide a detailed request for the cost estimate of the new flashing light signal system after this Agreement has been fully executed. 2.4 The Company’s cost estimate will be in accordance with all Applicable standards for railroad grade crossing design and shall consist of standards and regulations in AASHTO, AREMA, FHWA, FRA, MN MUTCD, Minnesota Statutes 219.0 et seq. and Minnesota Rules 8830 et seq. Should a conflict be identified in any of these rules and regulations, the Minnesota rules and statutes shall be controlling, unless preempted by federal regulations. 3 Agreement No. 1032063 3. LUMP SUM COST 3.1 For the work to be performed by the Company under paragraph 2 of this Agreement the State and the Company have agreed upon a LUMP SUM PAYMENT of $10,000.00. The lump sum amount will be paid to the Company by the State when the State certifies that the work has been satisfactorily completed. The State will pay the lump sum, in total, within 90 days of certification that the work has been completed satisfactorily. If the work is not certified by the State as satisfactorily completed the Company has 90 days to take corrective action to remedy the work to achieve an acceptable certification of completion by the State. 4. WORK CHANGES 4.1 In the event it is determined that a change from the scope of work to be performed by the Company is required, it shall be authorized only by an amendment to this Agreement executed prior to the performance of the work involved in the change. 5. ASSIGNMENT OF RECEIVABLES 5.1 Any party to this Agreement may assign any receivables due them under this Agreement, provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this Agreement. 6. MODIFICATIONS OF STANDARD CLAUSES (EXHIBIT “A”) 6.1 The following clauses of the “Standard Clauses” are modified as follows in the context of this Agreement: 7. WORK REPORTS – deleted in its entirety. 8. REIMBURSEMENT – deleted in its entirety. 10. COST SHARING – deleted in its entirety 11. INSPECTION, STANDARDS OF PERFORMANCE – deleted in its entirety 12. OVERRUN OF ESTIMATED COSTS WITH NO WORK CHANGES deleted in its entirety, as this provision does not apply to a lump sum agreement. 16. DISADVANTAGED BUSINESS ENTERPRISE - deleted in its entirety, as there are no federal funds being used. EXHIBIT “A” - Page 1 of 5 EXHIBIT “A” STATE OF MINNESOTA DEPARTMENT OF TRANSPORTATION 1. EFFECTIVE DATE STANDARD CLAUSES FOR RAILROAD-HIGHWAY AGREEMENTS This Agreement will become effective upon the date State obtains all signatures required by Minnesota Statutes Section 16C.05 (Subd. 2). 2. CANCELLATION The State may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot be continued at a level sufficient to allow for the payment of the services covered here. Termination must be by written or fax notice to the Company. The State is not obligated to pay for any services that are provided after notice and effective date of termination. However, the Company will be entitled to payment, determined on an actual cost basis for services satisfactorily performed to the extent that funds are available. The State will not be assessed any penalty if the Agreement is terminated because of the decision of the Minnesota Legislature, or other funding source, not to appropriate funds. The State must provide the Company notice of the lack of funding within a reasonable time of the State’s receiving that notice. 3. GOVERNING LAW, JURISDICTION, AND VENUE Except to the extent preempted by federal laws, rules or regulations, Minnesota law, without regard to its choice-of-law provisions, governs this Agreement. Venue for all legal proceedings arising out of this Agreement, or its breach, will be in the appropriate state or federal court with competent jurisdiction in Ramsey County, Minnesota. 4. COMMISSIONER’S OFFICIAL CAPACITY The Commissioner of Transportation of the State of Minnesota is acting in an official capacity only and is not personally responsible or liable to the Company or to any person or persons whomsoever for any claims, damages, actions, or causes of action of any kind or character arising out of or by reason of the execution of this Agreement or the performance or completion of the project. 5. DATA DISCLOSURE Under Minnesota Statutes Section 270C.65, and other applicable law, the Company consents to disclosure of its social security number, federal employer tax identification number, and/or Minnesota tax identification number, already provided to the State, to federal and state tax agencies and state personnel involved in the payment of state obligations. These identification numbers may be used in the enforcement of federal and state tax laws which could result in action requiring the Company to file state tax returns and pay delinquent state tax liabilities, if any. EXHIBIT “A” - Page 2 of 5 6. ELIGIBILITY OF COSTS Pursuant to Minnesota Rule 8830.3300, the provisions contained in Federal-Aid Policy Guide, Chapter 1, Subchapter G, Part 646, Subpart B and Chapter1, Subchapter B, Part 140, Subpart I, apply to railway-highway project, regardless of the method of financing the project. 7. WORK REPORTS The Company will furnish the State’s Engineer in charge of the project: a. “Form 21191, Minnesota Department of Transportation, Daily Utility Report”, Union Pacific electronic payroll report which lists labor hours and costs in a form acceptable to FHWA, or equivalent approved by the State’s engineer showing the number of people on payroll, classification, and total hours worked, and equipment used, at a time mutually agreed upon by the Company and the State. b. Full detailed information as to progress of work and amount of labor and material used as of the time of request. The Company will, make other reports, keep other records and perform other work in such manner a time as may be necessary to enable State to collect and obtain available federal aid. 8. REIMBURSEMENT The State will reimburse the Company for actual expenses incurred performing the work set forth in this Agreement. Payments will be made in accordance with the following: a. Partial bills will be based on actual (not estimated) costs incurred. Partial bills need not be itemized, but State must be able to substantiate costs by checking the Company’s records. The final bill will also be based on actual (not estimated) costs and will be a detailed, itemized statement of all items of work performed by the Company, as shown in the appropriate exhibit or exhibits attached to this Agreement. State’s payment of progressive partial billing and also final billing will be made to the Company within thirty (30) days of the State’s receipt of such billing from the Company. Notwithstanding the preceding payment procedures, the State retains the right to audit the final billing submitted by the Company as set forth in this Article 8 and in Article 12. If, when doing such audit review, it is determined by the State and the Company that the Company is to reimburse the State for any payment already made by the State to the Company, the Company shall make such reimbursement within thirty (30) days after the State and the Company have made such determination. Likewise, if it is determined by the State and the Company that the State needs to make any additional payment to the Company, the State shall make such additional payment within thirty (30) days after the State and the Company has made such determination. 9. WORKERS’ COMPENSATION The Company will certify that it is in compliance with workers’ compensation insurance coverage required by Minnesota Law unless the Company is subject to Federal Law which preempts the Minnesota Law requirement. If the Company is subject to Minnesota Law on workers’ compensation insurance coverage, the Company will require its contractors to present proof of coverage under the Minnesota Workers Compensation Act. The Company’s employees and agents will not be considered State employees. Any claims arising under workers compensation laws and any claims made by a third party as a consequence of the acts or omissions of the Company, its agents, employees or contractors are in no way the responsibility of the State. EXHIBIT “A” - Page 3 of 5 10. COST-SHARING If the cost of a project is being shared by the State and other parties, each party should receive a bill setting forth its proportional share of the costs whenever a project billing is submitted. 11. INSPECTION, STANDARDS OF PERFORMANCE The Company and/or Local Agency will permit the State to inspect and approve the work performed under this Agreement during the regular working hours of the Company without prior notice. The State may refuse to approve any and all work performed under this Agreement for failure to comply with applicable standards for work of that type. If the State fails to approve the work performed under this Agreement, the State may refuse to make any further payments under this Agreement until the work at issue is performed in accordance with acceptable standards for work of this type and said work is approved by the State. Applicable standards for railroad grade crossing construction shall consist of standards and regulations in AASHTO, AREMA, FHWA, Minnesota MUTCD, Minnesota Statutes §§ 219.0 et seq. and Minnesota Rules §§ 8830 et seq. Should a conflict be identified in any of these rules and regulations, the Minnesota rules and statutes shall be deemed controlling. The Company and/or Local Agency warrants that it will perform all work under this Agreement in a workmanlike and timely manner in accordance with all applicable standards for work of the type at issue. Should the work fail to be performed in a timely manner or in accordance with applicable standards, the State may immediately suspend further payments under this Agreement and the Company must repay all funds expended on unsatisfactory work. 12. OVERRUN OF ESTIMATED COSTS WITH NO WORK CHANGES If it appears to the Company, at any time subsequent to the date of this Agreement and prior to the final completion of such work, that the actual cost of the project will exceed the estimated cost, the Company must send written request for approval to the State. The request will explain the reasons for the additional costs and the amount of the costs. If State approves such request, State will encumber additional funds and then issue a notice to proceed. Any additional expenses incurred by the Company prior to receiving notice to proceed may not be reimbursed by State. 13. STATE AUDITS Under Federal Aid Policy Guidelines 23 CFR 140.922(c) the Company’s books, records, documents, and accounting procedures and practices relevant to this Agreement are subject to examination by the Federal Government, the State and the State Auditor or Legislative Auditor, as appropriate, for a minimum of three years after an appropriate State official certifies the Company’s completion of the construction required under this Agreement. 14. DATA PRACTICES A) Government Data Practices. The Company and State acknowledge Minn. Stat. §13.05, subdivision 11 and must comply with the requirements of the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13. The civil remedies of Minn. Stat. §13.08 apply to the release of the data governed by the Minnesota Government Data Practices Act by either the Company or the State. EXHIBIT “A” - Page 4 of 5 If the Company receives a request to release the data referred to in this Clause, the Company must immediately notify State. State will give the Company instructions concerning the release of the data to the requesting party before the data is released. (B) This Sub-section B applies to State. All data and information provided to State, by the Company, as a result of entering into this Agreement and performing any obligation hereunder will be “government data” as defined in Minn. Stat. §13.02, subdivision 7. State will treat all government data in accordance with the requirements of the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13. If the Company believes that any data submitted to State qualifies as “Trade Secret Data” or “Security Information” (see Minn. Stat. §13.37), or otherwise qualifies as “non-public data”, then the party providing such data must clearly label such data with the qualifying classification. If State receives a request to release such data, State will use its best reasonable efforts to notify the party that provided such data of such request. This Agreement is “public data” and State will release this Agreement upon request without regard to any “confidential” or similar legend placed on this Agreement by any party. (C) Notwithstanding Minn. Stat. 16C.05, subdivisions 4 and 5 and Minnesota Statutes Chapter 13, the parties acknowledge that the Company shall not be required to provide to State any information determined by the Company in its sole discretion to be confidential or proprietary. The parties acknowledge State does not have access or possession of such data and the Company agrees to defend all claims and disputes regarding the non- disclosure of such data determined by the Company in its sole discretion to be confidential or proprietary. 15. NONDISCRIMINATION If the Company enters into a contract with a contractor, to perform all or any portion of the Company’s work set forth in this Agreement, the Company for itself, its assigns and successors in interest, agrees that it will not discriminate in its choice of contractors and will include all of the nondiscrimination provisions in this agreement and as set forth in “Appendix A” attached hereto and made a part hereof. 16. DISADVANTAGED BUSINESS ENTERPRISE The Company and/or Local Agency acknowledges the Minnesota Department of Transportation’s responsibility to comply with 49 C.F.R. Part 26 to create a level playing field on which DBE’s can compete for contracts financed in whole or in part with United States Department of Transportation funds. While there is no specific numerical DBE goal assigned to this Agreement, the Company and/or Local Agency should cooperate in fulfilling this responsibility and must not discriminate on the basis of race, color, national origin, or sex in awarding or administering any contract under this Agreement. 17. AMENDMENTS, WAIVER, MERGER, AND COUNTERPARTS Any amendments to this Agreement must be in writing and executed by the same parties who executed the original Agreement, or their successors in office. Failure of a party to enforce any provision of this Agreement will not constitute or be construed as, a waiver of such provision or of the right to enforce such provision. This Agreement contains all prior negotiations and agreements between the Company and the State. No other understandings, whether written or oral, regarding the subject matter of this Agreement will be deemed to exist or to bind either or both of the parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement. EXHIBIT “A” - Page 5 of 5 APPENDIX A Non-Discrimination Provisions of Title VI of the Civil Rights Act of 1964 During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the “contractor”), agrees as follows: (1) Compliance with Regulations: The Contractor will comply with Regulations of the Department of Transportation relative to nondiscrimination in federally-assisted programs of the Federal Highway Administration (Title 49, Code of Federal Regulation, Part 21, hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix “A”, “B” and “C”. (3) Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor’s obligation under this contract and the Regulations relative to discrimination on the ground of race, color or national origin. (4) Information and Reports: The contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Department of Transportation or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information, the contractor shall so certify the Department of Transportation, or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for noncompliance: In the event of contractor’s noncompliance with the nondiscrimination provisions of this contract, the Department of Transportation shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including but not limited to, (a) withholding of payments to the contractor under the contract until the contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. (6) Incorporation of Provisions: The contractor will include the provisions of paragraph (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, order, or instructions issued pursuant thereto. The contractor will take such action with respect to any subcontract or procurement as the Department of Transportation or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the State to enter into such litigation to protect the interests of the State, and in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. Exhibit "B" SP 88RM-296 STATE OF MINNESOTA ENCUMBRANCE WORKSHEET MnDOT Agreement No. 1032063 Federal Project No. n/a State Project No. 88RM-296 AGREEMENT TYPE (Check appropriately) State Accounting Information AMENDMENT INFORMATION Annual Plan Agreement (APK) Swift Contract (SC) ID #: …147639 Amendment Yes or No Work Order Agreement (MWK) If yes: • T-Number: Purchase Order (PO) ID #: Amend expiration date • SC #: 3000439255 Change Total Contract Amount Interagency (LAK) Encumbered by: Amendment Amount Partnership Digitally signed by Marcia Marcia Guerra Guerra (EXEMPT FROM TAX) GCSA Lump sum Agreement • Receivable Date: 2018.09.27 10:25:43 Date: -05'00' • Payable Other Contract Type (CEO) Agency Fiscal Year Vendor ID: TRANSPORTATION 2019 0000217846 Total Contract Amount: Amount of Contract for Current FY: $10,000.00 Accounting Line 1: Accounting Line 2: Accounting Line 3: Fund Code: 2000 Fund Code: Fund Code: Fin. Dept.: T7934500 Fin. Dept.: Fin. Dept.: Approp ID: T790764 Approp ID: Approp ID: Category: 95111604 Category: Category: Account : 472301 Account : Account : Project: T86461 Project: Project: Source Type: 6050 Source Type: Source Type: Amount to Encumber: $10,000.00 Amount to Encumber: Amount to Encumber: Agreement Start Date (Upon execution) Agreement Expiration Date Julie Digitally signed by Julie Whitcher Whitcher Date: 2018.09.26 15:33:36 -05'00' Rail Administration Manager Karissa Williams 651-366-3679 Encumbrance Worksheet (CM Revised 09/29/11)