4.15. SR 05-16-2016
Request for Action
To Item Number
Mayor and City Council 4.15
Agenda Section Meeting Date Prepared by
ConsentMay 16, 2016Justin Femrite, P.E., City Engineer
Item Description Reviewed by
Approve Joint Powers Agreement with MnDOT Cal Portner, City Administrator
Reviewed by
Action Requested
Approve, by resolution, a joint powers agreement with MnDOT for payment of costs associated with
installation of 4-quad gate systems at Main Street and Jackson Street.
Background/Discussion
As detailed when the council approved our agreement with the BNSF for installation of 4-quadrant gate
systems at Main Street and Jackson Street, the State of Minnesota will be paying for these installations.
The agreement (MnDOT Contract No: 1000938) formalizes this understanding.
Financial Impact
None
Attachments
Joint Powers Agreement
Resolution
Mn/DOT Contract No: 1000938
STATE OF MINNESOTA
DEPARTMENT OF TRANSPORTATION
And
CITY OFELK RIVER
JOINT POWERS
AGREEMENT
State Project Number (S.P.):71-00126Original Amount Encumbered
This Agreementis between the State of Minnesota, acting through its Commissioner of Transportation ("State") and
City of Elk Riveracting through its City Council ("City").
Recitals
1.Main St.(USDOTNO. 082943J)and Jackson St. NW(USDOTNO. 082944R), as now established, crosses the
track of the BNSF Railway at grade in Elk River, Sherburne County, MN, the location of the crossings shown
on the attached print marked Exhibit A.
2.The State and the City desire the rail crossings at Main St. and Jackson St. NW be upgraded with flashing
LED lights, gates, and constant warning circuitry in all four quadrants of eachintersection.
3.The State, pursuant to Minnesota Statute Section 219.26, has reviewed the proposed selectionof warning
devices for the railroad grade crossing and has determined that the proposed selection is appropriate for said
crossings.
4.Minnesota Statutes §161.20, subdivision2 (a) authorizes the Commissioner of Transportation to contract
with railroad companies for the installation of safety devices at trunk highway-railroad crossings.
5.Minnesota Statutes §161.20, subdivision2(b)authorizes the Commissioner of Transportation to make
arrangements with and cooperate with any governmental authority for the purposes of effectuating the
provisions of Minnesota StatutesChapter 161.
6.The Citywill enter into a separate Signal Agreement with BNSF Railway for the installation of the four-
quadrant gate systemand vehicle detection.
7.TheCityrequests the Stateparticipatein the costs of the four-quadrant signalsystem installations,and the
State is willing to participate in the costs of said installationsand associated engineering.
8.Minnesota Statutes § 471.59 authorizes the State and City to enter into this Agreement.
Agreement
1.Term of Agreement; Survival of Terms; Plans; Incorporation of Exhibits
1.1.
Effective date.This Agreement will beeffective onthe date the State obtains all signatures required by
Minnesota Statutes § 16C.05, subdivision 2.
1.2..
Expiration dateThis Agreement will expire when all obligations have been satisfactorily fulfilled.
1.3.
Survival of terms.All clauses which impose obligations continuing in their nature and which must survive
in order to give effect to their meaning will survive the expiration or termination of this Agreement,
including, without limitation, the following clauses: 2.3.State Ownership of Improvements; 9. Liability;
Worker Compensation Claims;11. State Audits; 12.Government Data Practices; 13.Governing Law;
Jurisdiction; Venue; and 15. Force Majeure.
1.4.
Plans, Specifications, Special Provisions.The placement of the signals must be in accordance with Part
VIII of the Minnesota Manual on Uniform Traffic Control Devices (MMUTCD). The Company’s detailed
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Payable Standard (Municipal Agreements)
Mn/DOT Contract No: 1000938
plans and specifications for the work to be done must be submitted to and approved by the State, prior to
starting work.
1.5..
ExhibitsExhibitA“Location Prints” and Exhibit B “Cost Estimate” are attached and incorporated into this
Agreement.
2.Right-of-WayUse
2.1.
State Access; Suspension of Work; Remedial Measures.The State's Rail Administrative Representative
retains the right to enter State’s right-of-way and inspect the installation of the four-quadrant signalsystems
at any time and without notice to the Cityor BNSF Railway. If the State determines (in its sole discretion)
that the construction is not being performed in a proper or timely manner, or that environmental laws (or the
terms of permits) are not being complied with, or that traffic control or other necessary safety measures are
not being properly implemented, then the State may direct the Cityand BNSF Railwayto take such
remedial measures as the State deems necessary. The State may require the Cityand BNSF Railwayto
suspend their operations until suitable remedial action plans are approved and implemented. The State will
have no liability to the Cityand BNSF Railwayfor exercising its rights under this provision.
2.2.
Traffic Control; Worker Safety.While the Cityand BNSF Railwayare occupying the Stateright-of-way,
they must comply with the approved traffic control plan, and with applicable provisions of the Work Zone
Field Handbook (http://www.dot.state.mn.us/trafficeng/workzone/index.html). AllCityand BNSF Railway
personnel occupying the State's right-of-waymust be provided with required reflective clothing and hats.
2.3.
State Ownership of Improvements.The four-quadrant signal systemsprovided for in this Agreement arethe
property of the State and must not be removed unless there has been a determination by the State that the
four-quadrant signal systems areno longer required at theselocations.If the signal system is to be removed,
BNSF Railwaymust notify the State of its pending removal. Upon request of the State, the BNSF Railway
will reinstall the signal system at some other crossing within the State on the BNSF Railway’stracks or
return the signal system to a location designated by the State. The location and division of cost of such
relocation will be agreed upon between the BNSF Railwayand the State prior to such removal.The State
will not be liable to the City for exercising its right under this clause.
3.Construction
3.1.
Direction, Supervision and Inspection of Construction
A.
The contract construction willbe under the direction of the Cityand under the supervision of a registered
professional engineer; however, the Stateparticipation constructioncovered under this Agreement will
be open to inspection by the State Rail Administrative Representative.
3.2.
Plan Changes. The State will not participate in the cost of any contract construction that is in addition to the
State participation constructioncovered under this Agreement unless the following conditions have been
met:
A.
The necessary State funds have been encumbered.
B.
All changes in the Project Plansand all addenda, change orders and supplemental agreements entered
into by the Cityand BNSF Railwayfor State participationconstruction are approvedin writing by the
State Rail Administrative Office.
3.3
Compliance with Laws, Ordinances, Regulations.The City will comply and cause BNSF Railwayto
comply with all Federal, State and Local laws, and all applicable ordinances and regulations. With respect
only to that portion of work performed on the State's trunk highway right-of-way, the Citywill not require
the BNSF Railwayto follow local ordinances or to obtain local permits.
4.Basis of State Cost
4.1.
State Participation Construction.The State will pay 100% of the actual cost to install the four–quadrant
gate systems including any engineering costs,as detailed in Exhibit B.
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Payable Standard (Municipal Agreements)
Mn/DOT Contract No: 1000938
5.Maintenance and Ownership of Signal Equipment
Upon completion of the project, the Citywill provideinspection, operation and maintenanceof the signal system
installed under this Agreement, without cost or expenseto the State, according to the following terms and
conditions:
5.1.
The City will contract with BNSF Railway for the inspection,operation and maintenanceof the signal
system provided for in this Agreement upon completion of its installation. The obligation to maintain said
signal system shall continue in accordance with the law of the State as it shall be amended from time to time
in the future.
5.2.
The City shall payBNSF Railway annually for inspection, operationand maintenance costs.
6.State Cost and Payment by the State
6.1..
State Cost
A.
State’s estimated cost for the installation of the four-quadrant gate systemsis $1,905,494.00.
I
B.n the event it is found that the cost of the work will exceed the estimated cost, but will be less than the
estimated cost plus 20%, then an increase in eligible reimbursementwill be allowed without an
amendment to this Agreement.
C.
The State’s total financial obligation shall not increase beyond the estimated cost plus 20%, without the
State’s approval and the encumbrance of additional funds. Any work which will result in costs
exceeding 120% of the estimated cost will require an amendment to this Agreement and prior approval
of the State before the work is performed.
6.2.
Payment.
A.
City will submit invoices to State for payment.
B.
State will make payments in accordance with MinnesotaStatutes §16A.124.
C.
Invoices for labor and materials (“partial invoices”) may be submitted on a periodic basis during the
term of the project, but not more frequently than once per month. These valid partial invoices will be
paid 30 days from the date they are received by the Office of Freight and Commercial Vehicle
Operations, Railroad Administration Section.
D.
Partial invoices that are not approved due to disputed items will be returnedto the City with a request for
an explanation for any disputed items. If the dispute is resolved, the State shall pay the City within 30
days of receiving a corrected invoice. The State may pay the non-disputed portion of any disputed
invoice.
E.
Partial invoices must be based on actual (not estimated) costs incurred. Partial invoices need not be
itemized, but the State must be able to substantiate costs by checking the records.
6.3.
Records Keeping and Invoicing by the City
The Citywill keep records and accounts that enable it to provide the State with the following prior to final
payment:
A.
Copies of the Cityinvoices covering all contract constructionfrom BNSF Railway.
B.
Copies of the endorsed and canceled Citywarrant(s) or check(s)paying for final contract construction,
or computer documentation of the warrant(s) issued, certified by an appropriate Cityofficial that final
construction contract payment has been madeto BNSF Railway.
C.
Copies of all construction contract change ordersand supplemental agreements.
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Payable Standard (Municipal Agreements)
Mn/DOT Contract No: 1000938
D.
A certification of completion form provided by the State. The certification form will be signed by the
City's Engineer in charge of the contract construction attesting to the following:
i.
Satisfactory performance and completionof all contract construction according tothe Project Plans.
ii.
Acceptance and approval of all materials furnished for the contract construction relative to
compliance of those materials to the State's current "Standard Specifications for Construction".
iii.
Fullpayment by the Cityto BNSF Railwayfor all contract construction.
6.4.
Final Payment by the State
payment of the final invoice will be made after State
Upon completion of all contract construction,
inspects and approves the work
and include all State participation construction items and the construction
engineering cost share covered under this Agreement. If the final cost of the State participation construction
exceeds the amount of funds paid by the State, the State will pay the difference to theCitywithout interest.
If the final cost of the State participation construction is less than the amount of funds paid by the State, the
Citywill refund the difference to the State without interest.
The State andthe Citywaive claims for any payments or refunds less than $5.00 according to Minnesota
Statutes § 15.415.
7.Authorized Representatives
Each party’s AuthorizedRepresentative is responsible for administering this Agreement and is authorized to give
and receive any notice or demand required or permitted by this Agreement.
7.1.
The State's Authorized Representative will be:
Name/Title:Timothy Spencer,Rail Administration Acting Manager (or successor)
Address:395 John Ireland Boulevard, Mailstop 470, St. Paul, MN 55155
Telephone:(651) 366-3702
E-Mail:timothy.spencer@state.mn.us
7.2.
The City/County's Authorized Representative will be:
Name/Title:Justin Femrite, City Engineer(or successor)
Address:13065 Orono Parkway, Elk River MN 55330
Telephone:(763) 635-1051
Fax:(763) 635-1090
E-Mail:jfemrite@elkrivermn.gov
8.Assignment;Amendments;Waiver;Contract Complete
8.1.
Assignment.Neither party may assign or transfer any rights or obligations under this Agreement without the
prior consent of the other party and a written assignment agreement, executed and approved by the same
parties who executed and approved this Agreement, or their successors in office.
8.2.
Amendments.Any amendment to this Agreement must be in writing and will not be effective until it has
been executed and approved by the same parties who executed and approved the original Agreement, or
their successors in office.
8.3.
Waiver.If a party fails to enforce any provision of this Agreement, that failure does not waive the provision
or the party’sright to subsequently enforce it.
8.4.
Contract Complete.This Agreement contains all prior negotiations and agreements between the State and
the City. No other understanding regarding this Agreement, whether written or oral, may be used to bind
either party.
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Payable Standard (Municipal Agreements)
Mn/DOT Contract No: 1000938
9.Liability; Worker Compensation Claims
9.1.
Each party is responsible for its own acts, omissions and the results thereof to the extent authorized by law
and will not be responsible for the acts and omissions of others and the results thereof. Minnesota Statutes
§3.736 and other applicable law govern liability of the State. Minnesota Statutes Chapter 466 and other
applicable law govern liability of the City. Notwithstanding the foregoing, the Citywill indemnify, hold
harmless, and defend (to the extent permitted by the Minnesota Attorney General) the State against any
claims, causes of actions, damages, costs (including reasonable attorneys fees), and expenses arising in
connection with the project covered by this Agreement, regardless of whether such claims are asserted by
BNSF Railwayor by a third party because of an act or omission by the Cityor BNSF Railwayor
consultant(s).
9.2.
Each party is responsible for its own employees for any claims arising under the Workers Compensation
Act.
10.Nondiscrimination
Provisions of Minnesota Statutes § 181.59 and of any applicable law relating to civil rights and discrimination are
considered part of this Agreement.
11.State Audits
Under Minnesota Statutes § 16C.05, subdivision5, the City’s books, records, documents, and accounting
procedures and practices relevant to this Agreement are subject to examination by the State and the State Auditor
or Legislative Auditor, as appropriate, for a minimum of six years from the end of this Agreement.
12.Government Data Practices
The Cityand State must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter
13, as it applies to all data provided under this Agreement, and as it applies to all data created, collected, received,
stored, used, maintained, or disseminated by the Cityunder this Agreement. The civil remedies of Minnesota
Statutes §13.08 apply to the release of the data referred to in this clause by either the Cityor the State.
13.Governing Law; Jurisdiction; Venue
Minnesota law governs the validity, interpretation and enforcement of this Agreement. Venue for all legal
proceedings arising out of this Agreement, or its breach, must be in the appropriate state or federal court with
competent jurisdiction in Ramsey County, Minnesota.
14.Termination; Suspension
14.1.
By Mutual Agreement. This Agreement may be terminated by mutual agreement of the parties or by the
State for insufficient funding as described below.
14.2.
Termination for Insufficient Funding.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 theCity. The State is not obligated to pay for any services that are provided after notice and
effective date of termination. However, the Citywill be entitled to payment, determined on a pro rata basis,
for services satisfactorily performed to the extent that funds are available. The State will not be assessed any
penalty if this Agreement is terminated because of the decision of the Minnesota Legislature, or other
funding source, not to appropriate funds.
14.3.
Suspension.In the event of a total or partial government shutdown, the State may suspend this Agreement
and all work, activities, performance and payments authorized through this Agreement. Any work
performed during a period of suspension will be considered unauthorized work and will be undertaken at the
risk of non-payment.
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Payable Standard (Municipal Agreements)
Mn/DOT Contract No: 1000938
15.ForceMajeure
Neither party will be responsible to the other for a failure to perform under this Agreement (or a delay in
performance), if such failure or delay is due to a force majeure event. A force majeure event is an event beyond a
party’s reasonable control, including but not limited to, unusually severe weather, fire, floods, other acts of God,
labor disputes, actsof war or terrorism, or public health emergencies.
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Payable Standard (Municipal Agreements)
Mn/DOT Contract No: 1000938
STATE ENCUMBRANCE VERIFICATIONCOMMISIONEROF TRANSPORTATION
Individual certifies that funds have been encumbered
as required by Minnesota Statutes § 16A.15 and
16C.05.Recommended for Approval:
Signed:By:
(Manager, Railroad Administration Section)
Date:Date:
COMMISSIONER OF ADMINISTRATION
:
SWIFT Purchase Order:
CITY OF ELK RIVER By:
(AuthorizedSignature)
The undersigned certify that they have lawfully
Date:
executed this contract on behalf of the Cityas required
by applicable charter provisions, resolutions or
ordinances.
By:
Title:
Date:
By:
Title:
Date:
INCLUDE COPY OF RESOLUTIONAPPROVING THE AGREEMENT AND AUTHORIZING ITS
EXECUTION.
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Payable Standard (Municipal Agreements)
Resolution 16-___
A Resolution of the City of Elk River approving Joint Powers Agreement with
the Minnesota Department of Transportation
WHEREAS,
the City of Elk River has reviewed Joint Powers agreement provided by
MnDOT.
NOW, THEREFORE, BE IT RESOLVED
by the City Council of the City of Elk
:
River, Minnesota, as follows The Joint Powers Agreement between the City of Elk River
and the Minnesota Department of Transportation (Contract No: 1000938) is hereby
approved.
th
Passed and adopted this 16 day of May, 2016.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk