Signed Contract_Dakota, Minnesota & Eastern Railroad Corporation (Canadian Pacific) for the 17th St. Storm Sewer ProjectCity of Dubuque
City Council Meeting
ITEM TITLE
SUMMARY:
SUGGESTED
DISPOSITION:
ATTACHMENTS:
Description
Signed Contract(s)
Consent Items # 16.
Copyrighted
September 7, 2021
Service Agreement with Dakota, Minnesota & Eastern Railroad
Corporation (Canadian Pacific) for the 17th Street Storm Sewer Project;
I nterim Management Agreement with Dubuque Community I ce and
Recreation Center for management of Mystique Community Ice Center;
Parking Agreement with Q Casino for use of a City -owned area for
parking on specified dates.
Suggested Disposition: Receive and File
17th Street Storm Sewer Project
Dubuque Community Ice and Recreation Center
Q Casino Parking Agreement
Type
Supporting Documentation
Supporting Documentation
Supporting Documentation
SERVICE AGREEMENT
This AGREEMENT made and entered into by and between the City of Dubuque, Iowa
("City"), and Dakota, Minnesota & Eastern Railroad Corporation, doing business as Canadian
Pacific ("CP").
WITNESSETH:
WHEREAS, City is involved in activities to modify storm water drainage by increasing
the storm sewer conveyance capacity of the 17th Street storm sewer system ("17th Street Storm
Sewer Project") from Pine Street to the lower Bee Branch Creek all within the city limits;
WHEREAS, City is conducting design engineering of the 17th Street Storm Sewer Project
(the "Design Engineering");
WHEREAS, the freight railroad operating property and freight rail operations of CP will
be impacted by the 17th Street Storm Sewer Project;
WHEREAS, City needs access to CP property and records, input from CP for design
engineering, and ultimately requires CP's written approval of the Design Engineering plans;
WHEREAS, CP is willing to cooperate with City's Design Engineering work, provided
that CP is fully reimbursed for such services and City is agreeable to proceeding on that basis;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
SECTION 1. The Parties shall perform the following services. The term "Services"
means all services the Parties are required to provide under this Agreement for Design
Engineering. The Services specifically excludes the transfer of real property rights, construction,
operation, and maintenance in connection with implementation of the 171h Street Storm Sewer
Project.
(I) SERVICES BY CITY. City shall furnish or cause to be furnished, at its sole
expense, all the Services required to perform and complete:
a. All required design engineering and signal design for the 171h Street Storm
Sewer Project, other than that described in paragraph (II) below; and
b. Incidental Services necessary to complete the items hereinabove specified.
(II) SERVICES BY CP. CP shall furnish or cause to be furnished, at the request and
expense of City, the following Services required for City to perform and complete
the design engineering plans:
a. Physical access to CP property through the issuance of a Release or Right of
Entry agreement as appropriate based on the scope of 171h Street Storm Sewer
Project;
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b. Flagging protection as required for any work pursuant to this Agreement,
including without limitation in support of survey or geotechnical work;
c. Access to property and engineering records that are applicable to the 17a'
Street Storm Sewer Project;
d. CP minimum engineering design requirements for freight rail infrastructure
and other technical guidance;
e. Review of Design Engineering plans;
f. Incidental Services, including supervisory and legal expenses, necessary to
complete the items hereinabove specified.
CP will make its best effort to provide the Services, as they are requested by City, in a
timely manner.
The Parties agree the Reimbursable Expenses for the CP Services set forth above shall
not exceed $50,000 unless this Agreement is otherwise amended. Reimbursement for the
Services and Reimbursable Expenses will be on the basis of actual cost of the Services, including
CP's customary labor and material additives, and Reimbursable Expenses to CP. CP's labor and
material additives are subject to change without notice to Licensee, and the City shall reimburse
CP based upon the labor and material additives actually in effect as of the date of the Services.
CP may perform the Services through the use of its own forces, CP's preferred service
providers, or other providers satisfactory to CP. All Services will be performed in accordance
with CP standards. CP must approve the design of all improvements on CP property.
The Parties acknowledge the above -stated limit for the Reimbursable Expenses is based
on incomplete information as to the level of effort required of CP and subject to change, through
an amendment to this Agreement. Further, at City's request and CP's agreement, this Agreement
may be amended to include CP review of structure plans and calculations and other additional
services.
SECTION 2. CP shall be entitled to payment for the actual reasonable and necessary
costs of Services and Reimbursable Expenses, subject to the maximum of $50,000, in accordance
with the "Standard Provisions for Highway -Railroad Agreements" attached hereto as Exhibit A.
SECTION 3. In the event that delays or difficulties arise which in the opinion of City
render it impracticable to proceed with the Project, then at any time City may serve formal notice
of cancellation upon CP and this Agreement shall thereupon become null and void, except City
shall reimburse CP for all actual reasonable and necessary costs incurred by CP prior to notice of
cancellation or which are unavoidable by CP after notice of cancellation has been received.
SECTION 4. GENERAL PROVISIONS.
(I) FORCE MAJEURE. The obligations of City and CP under this Agreement, other
than payment, shall be subject to force majeure (which shall include strikes, riots,
floods, accidents, Acts of God, and other causes or circumstances beyond the
reasonable control of the Party claiming such force majeure as an excuse for non-
performance), but only as long as, and to the extent that, such force majeure shall
prevent performance of the obligations.
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(II) ASSIGNMENT. Neither City nor CP may assign or in any manner transfer either
in whole or in part this Agreement or any right or privilege granted to it
hereunder, nor permit any person or persons, company or companies to share in
any such rights or privileges without the prior written consent of the Parties
hereto. This Agreement shall be binding upon and inure to the benefit of, and
shall be enforceable by, the Parties hereto and their respective successors and
permitted assigns.
(III) NOTICE. All notices or other communications required or permitted hereunder
shall be in writing and shall be delivered in person, by a scanned official letter and
transmitted electronically or by express mail or courier, or certified or registered
mail, return receipt requested, postage prepaid, to the persons specified herein as
entitled to receive such notice, or to their duly authorized representative, unless
notice of a change of address is given pursuant to the provisions of this Section.
Notices shall be addressed as follows:
To CP: Dakota, Minnesota & Eastern Railroad Corporation
Suite 800
Canadian Pacific Plaza
120 South 6t' Street
Minneapolis, MN 55402
Attn: Dan Sabatka
To City: City of Dubuque
Engineering Department
50 W 13t' Street
Dubuque, IA 52001
Attn: Steve Brown
Subject to proof of earlier delivery or receipt, any such notice, demand, request,
consent or approval shall be conclusively deemed to have been given or made on
the day upon which same is delivered or, if sent by prepaid registered mail, on the
fifth business day following the date of mailing or, if transmitted by electronic
means, on the second business day following acknowledged transmission, as the
case may be. Any party may, at any time, give notice to the others of any change
of address or electronic address.
(III) WAIVER. No delay or omission on the part of a Parry hereto in the exercise of
any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy.
(IV) NOT FOR THE BENEFIT OF OTHERS. This Agreement and each and every
provision hereof is for the exclusive benefit of the Parties hereto and their
permitted assigns and not for the benefit of any other person.
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(VI) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with Iowa law. Iowa law shall apply for all purposes, regardless of
the venue for the dispute, including without limitation, jurisdiction, venue,
conflicts of law, and choice of law.
(VII) CONFIDENTIALITY. All books, manuals, drawings, computer software, other
documentation and know-how provided or made available to the City or its
representatives pursuant to this Agreement ("Confidential Information") is
confidential and proprietary, and shall remain the property of CP at all times.
City is licensed to use such books, manuals, drawings, computer software and
other documentation and know-how as will be supplied to City solely as
necessary for the Services. City's right and its obligations hereunder shall be in
force irrespective of whether such books, manuals, drawings, documents and
computer software and know-how have been made by or are the property of CP
itself or external consultants, or subcontractors. In no circumstances shall City
use or permit others to use any of the books, manuals, drawings, computer
software and other documentation or know-how provided pursuant to this
Agreement for any purpose other than for the Services. City shall not provide any
Confidential Information to third Parties other than as required by law, or make
any alterations in any Confidential Information without the prior written consent
of CP. City has advised CP that it is subject to certain public disclosure
requirements pursuant to applicable public records laws. In the event that City
receives a request with which it must comply pursuant to such public disclosure
requirements for any Confidential Information, it shall promptly advise CP. The
provisions of this Section 4(VII) shall survive the expiration or termination of this
Agreement for any reason.
Limitations. In protecting confidential and proprietary information, a Party will
use the same reasonable steps that it takes to protect its own confidential and
proprietary information. The obligations set forth above in this Section will not
apply to information that is or comes into the public domain through no violation
of this or any other agreement; that was known to the party from sources other
than activities pursuant to this Agreement; that is rightfully received from any
third party who is under no contractual obligation to keep such information
confidential; that is developed independently by the Party receiving the
information without reference to such information, provided that it is developed
by persons working for the party who have not had access to such information; or
that a Party is required by a court of competent jurisdiction to disclose.
Exception. CP agrees that City may furnish a copy of this Agreement and any
exhibits and attachments thereto to other parties, agencies or the federal
government involved in financing on behalf of the 171h Street Storm Sewer
Project, subject to the execution of a confidentiality undertaking substantially in a
form as attached hereto as Exhibit B.
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(XI) TERM. This Agreement automatically will expire on June 30. 2022. unless
extended by mutual agreement of the parties or terminated earlier under the terms
of this Agreement.
(XII) This Agreement constitutes the entire agreement between the Parties. No waiver.
consent, modification. or change of terms of this agreement shall bind either Party
unless in writing and signed by both Parties. Such waiver. modification, or
change. if made. shall be effective only in the specific instance and for the
specific purpose given. There are no understandings, agreements. or
representations, oral or written, not specified herein regarding this Agreement.
IN WITNESS WHEREOF. the parties hereto have caused this Agreement to be executed in
duplicate counterparts. each of which shall be considered as an ori_ainal bw their duly authorized
officials as of the dates below indicated.
Executed this25 day of August
Attest:
2021
DAKOT.A. MINNESOTA R EASTERN
RAILROAD CORPORATION
dba Canadian Pacific
Daniel Daniel Sabatka
2021.08.25
B : Sabatka 19:10:32-05'00'
Executed this 25daN of August 2Q21
CI fY OF IXJBt Q1IF.. 1011'A
Attest:
l Ciw: �n/W�t (/Hn,i��
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EXHIBIT A
STANDARD PROVISIONS FOR HIGHWAY -RAILROAD AGREEMENTS
(FEDERAL AID PROJECTS)
For the purposes of this Exhibit A, City is referred to as "ROAD AUTHORITY" and CP is
referred to as "COMPANY".
I. All COMPANY work shall be performed in accordance with the terms, stipulations and
conditions contained in the US Department of Transportation, Federal -Aid Highway
Program Manual Volume 1, Chapter 4, Section 3 and supplements to or revisions
thereafter.
2. Subject to Section 1 of this Agreement, the COMPANY, for performance of its work, may
bill the ROAD AUTHORITY monthly for the ROAD AUTHORITY'S share of the actual
reasonable and necessary costs and expenses incurred. These progressive invoices may be
rendered on the basis of the estimated percentage of the work completed. The ROAD
AUTHORITY after verifying that the bill is reasonable and necessary shall promptly
reimburse the COMPANY.
The COMPANY, upon the completion of its work, shall send the ROAD AUTHORITY a
detailed final statement of actual reasonable and necessary expenses it incurred, including
allowable additives. After the ROAD AUTHORITY'S representatives have checked the
final statement and have agreed that the costs are reasonable and necessary insofar as they
are able to ascertain, the ROAD AUTHORITY shall reimburse the COMPANY in the
amount, less previous payments, if any, equal to the amount billed.
After the ROAD AUTHORITY representatives have audited the expensed incurred by the
COMPANY and final inspection of the installation has been made, the COMPANY shall
reimburse the ROAD AUTHORITY for any item (or items) of expense found by the
ROAD AUTHORITY representatives to be ineligible for reimbursement.
3. It is understood that the project herein contemplated shall be subject to all appropriate
Federal laws, rules, regulations, orders and approvals pertaining to all agreements in
general. The use of said guidelines for reimbursement between the parties hereto shall not
be deemed to require reimbursement of the ROAD AUTHORITY by the Federal Highway
Administration as a condition precedent to the ROAD AUTHORITY'S obligation.
4. All work herein provided to be done by the ROAD AUTHORITY or its contractor or
contractors on the right-of-way or upon, over, under or across the railroad tracks of the
COMPANY shall be done in a manner satisfactory to the COMPANY and shall be
performed at such time and in such manner as not to interfere unnecessarily with the
movement of trains or traffic upon the tracks of the COMPANY. The ROAD
AUTHORITY shall require its contractors or contractors to use all care and precaution
necessary to avoid accident, damage or interference to the COMPANY'S tracks or the
trains or traffic using its tracks, and to notify the COMPANY a sufficient time in advance
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whenever the contractor is about to perform work adjacent to the track to enable the
COMPANY to arrange for the furnishing of flagging and such other protective services as
might be necessary to insure safety of railroad operations.
The COMPANY shall have the right to furnish all such flagging or protective service as in
its judgment is necessary, and the ROAD AUTHORITY or its contractor or contractors
shall reimburse the COMPANY for the cost thereof. Wherever safeguarding of trains or
traffic or the COMPANY is mentioned in this agreement, it is intended to cover all users
of the COMPANY'S track having permission for such use.
5. The ROAD AUTHORITY shall require its contractor or contractors, upon completion of
the work, to remove all machinery, equipment, temporary buildings, false work, debris and
rubbish from COMPANY right-of-way, to provide proper drainage away from
COMPANY track, and to leave the tracks and right-of-way in a neat condition, satisfactory
to the COMPANY'S Chief Engineer or his representative.
6. Any contract between the ROAD AUTHORITY and its contractor or subcontractor to
perform the work herein provided to be done by the ROAD AUTHORITY shall require
that the contractor or sub -contractor protect DAKOTA, MINNESOTA & EASTERN
RAILROAD CORPORATION, and any other railroad occupying or using COMPANY
right-of-way or lines of railroad with the permission of the COMPANY, against all loss
and damage arising from the activities of the contractor, its forces, or any of its
subcontractors or agents, and shall further provide that the contractor shall furnish the
COMPANY a Railroad Protective Liability Insurance policy providing for protection of
the COMPANY, in accordance with the Federal -Aid Policy Guide, Title 23, Part 140,
Subpart 1 and any supplements to or revisions unless otherwise noted. The limits of the
policy shall be not less than $2,000,000 combined single limit per occurrence for bodily
injury, death, property damage and physical damage to property, with an aggregate limit
of not less than $6,000,000 per policy period. The insurance policy shall be delivered to
and approved by the COMPANY prior to entry upon or use of its property to commence
work upon, over, under, across or adjacent to COMPANY tracks by and contractor.
7. Subsequent to the award of any contract, and before any work is started on this project, a
conference shall be held between the representatives of the ROAD AUTHORITY, the
COMPANY, and the interested contractor at a time and place designed by the ROAD
AUTHORITY for the purpose of coordinating the work to be performed by the several
parties and at such time a schedule of operation will be adopted.
8. The COMPANY will credit the ROAD AUTHORITY for the salvage value of all track,
communication and signal line material used on a temporary basis during the construction
of the project and accepted by the COMPANY for return to its stock.
The ROAD AUTHORITY shall be afforded a reasonable opportunity to inspect materials
recovered by the COMPANY prior to disposal by sale of scrap.
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9. When the roadway is to be closed to vehicular traffic while the railroad work is being
performed, the ROAD AUTHORITY at its expense shall furnish, erect, maintain and
remove the traffic control devices necessary to detour highway traffic after the COMPANY
gives two weeks' advance notice to the ROAD AUTHORITY'S engineer.
When the COMPANY is to perform its work while maintaining highway traffic, the ROAD
AUTHORITY shall furnish or cause to be furnished, at its expense, the signs, barricades
and traffic control devices for erection by the COMPANY after two weeks' advance notice
is given to the ROAD AUTHORITY'S engineer. The COMPANY at the expense of the
ROAD AUTHORITY shall erect, maintain, relocate and remove the signs, barricades, and
other traffic control devices, including the furnishing of flagmen, as required to maintain
highway traffic throughout the time the railroad work is being performed.
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EXHIBIT B
CONFIDENTIAL UNDERTAKING
I, , am an employee of , for
whom I am performing due diligence concerning the potential financing for the City of Dubuque,
Iowa ("City") for planning, additions and improvements necessary to establish the 17t' Street
Storm Sewer Project (the "Project"). I agree to be bound by the following conditions.
1. I understand and agree, as a condition precedent to my reviewing the Service
Agreement ("Agreement") between the City and Dakota, Minnesota & Eastern Railroad
Corporation dba Canadian Pacific ("CP"), that I will take all necessary steps to assure that said
Agreement and any exhibits or attachments are kept on a confidential basis by me and my
employer, and that under no circumstances will I permit access to, or share said information
with, directly or indirectly, any other person or entity.
2. My review of the Agreement will be done solely for due diligence purposes. I
agree not to use or to permit the use of any information therein or to use or to permit the use of
any methodologies or techniques disclosed or information learned as a result of receiving such
data or information, for any purpose other than evaluation of the aforementioned financing of the
Project. I agree that any information I review will not be used for any competitive purpose vis-a-
vis CP or any other person or entity.
3. I understand and agree that money damages would not be a sufficient remedy for
breach of this Undertaking and that CP shall be entitled to specific performance and injunctive
and/or other equitable relief as a remedy for any such breach. I further agree to waive any
requirement for the securing or posting of any bond in connection with such remedy. Such
remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking, but shall
be in addition to all remedies available at law or equity.
Signed
Date
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