Bee Branch Creek Service Agreement with DM&E Railroad
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Bee Branch Creek Restoration project, Service Agreement with Railroad
DATE: September 13, 2012
City Engineer Gus Psihoyos is recommending a Service Agreement between Dakota,
Minnesota, & Eastern Railroad Corporation, a corporation doing business as Canadian
Pacific (CP), and the City of Dubuque relating to the design of the proposed railroad
bridge to be constructed as part of the Bee Branch Creek Restoration Project.
City Attorney Barry Lindahl and Civil Engineer Deron Muehring have negotiated the
Agreement which serves as a prerequisite for completing the engineering design of the
railroad bridge associated with the next phase of the Bee Branch Creek Restoration
Project.
In 2001 the City Council adopted the Drainage Basin Master Plan which outlined what is
now referred to as the America's River III Bee Branch Creek Restoration & Gateway
Project as one of three projects to provide flood protection for 1,150 properties within
the Bee Branch Watershed.
In December of 2004, the City Council adopted the alignment of the Bee Branch Creek
Restoration Project based on the work and recommendation of the Bee Branch Citizen
Advisory Committee. The adopted alignment crosses a railroad yard at 506 Garfield
Avenue. The City has been conversing with the various owners of the tracks and rail
yard since 2007. In 2007, it was owned by Iowa, Chicago & Eastern Railroad (IC&E). In
2008, the tracks and yard were acquired by Dakota, Minnesota, & Eastern Railroad.
And finally, in 2010 the tracks and yard were acquired by CP.
The Bee Branch Creek Restoration Project will impact the railroad in three ways: the
railroad will lose the use of their current yard office, a new bridge will be constructed
under railroad trackage, and the railroad will temporarily lose the use of various tracks
during construction of the new bridge. In the spring of 2012, CP indicated that they
could not begin to quantify or understand the impacts to the railroad until they are
provided a 30% design of the proposed bridge. On May 14, 2012 the City's engineering
design consultant sent the 30% bridge design to CP. While CP was willing to do a
cursory review of the design, they were unwilling to provide a complete response until a
Page 2
memorandum of understanding (MOU) was in place. While the terms of an MOU are
non-binding, an MOU outlines the general expectations of both parties.
On September 7, 2012 the City Manager signed the non-binding MOU. The MOU was
subsequently mailed to CP for their consideration and execution. Per the MOU:
• CP and the City will enter into formal agreements by January 1, 2013. The formal
agreements will be as follows:
o A professional services agreement;
o A binding purchase agreement;
o An easement agreement;
o A facilities relocation agreement;
o A track design and construction agreement;
o A construction, maintenance, and indemnification agreement; and
o Any other agreements necessary such as utility agreements for sewer and
fiber conduit installation.
• Pursuant to final agreements, the City will reimburse the Railroad for all
reasonable and necessary actual costs and expenses incurred by the Railroad
that are in any way related to the planning, design, and/or construction of the
railroad bridge project.
• Both CP and the City shall use their best efforts to complete all Investigations,
design criteria, and final plans and produce their respective reports by December
31, 2012. CP shall use its best efforts to provide any comments to designs and
plans within 45 days of receipt thereof.
The Service Agreement includes:
(I) The City shall furnish at its sole expense all the Services required to perform and
complete the required design engineering for the Bee Branch Creek Railroad
Bridge Project;
(II) CP shall furnish, at the request and expense of City, Services required for City to
perform and complete the design engineering plans such as:
a. Physical access to CP property through the issuance of a Release or Right of
Entry agreement as appropriate based on the scope of City's work;
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 CP property and CP engineering records;
d. CP minimum engineering design requirements for freight rail infrastructure
and other technical guidance;
e. Review of Design Engineering plans excluding review of structure plans and
calculations; and
2
Page 3
f. Incidental Services, including supervisory and legal expenses, necessary to
complete the items hereinabove specified.
(III) CP will make its best effort to provide the Services in a timely manner as they are
requested by the City.
(IV) The City shall reimburse CP for the actual reasonable and necessary costs of
Services and Reimbursable Expenses, subject to the maximum of $100,000, in
accordance with the "Standard Provisions for Highway-Railroad Agreements"
attached to the Agreement as Exhibit A.
(V) Both the City and CP acknowledge that the $100,000 limit 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, this
Agreement may be amended to include CP review of structure plans and
calculations and other additional services.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
/ AAh kt1&1
Michael C. Van Milligen
MCVM:sv
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Gus Psihoyos, City Engineer
Jenny Larson, Budget Director
Steve Brown, Project Manager
Deron Muehring, Civil Engineer
3
THE C
D
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manage
FROM: Gus Psihoyos, City Engineer
DATE: September 13, 2012
Dubuque
Al AmeAa CRY
II I.,
2012
SUBJECT: Bee Branch Creek Restoration project, Service Agreement with Railroad
INTRODUCTION
The purpose of this memorandum is to present for consideration a Service Agreement
(Agreement) between Dakota, Minnesota, & Eastern Railroad Corporation, a
corporation doing business as Canadian Pacific (CP), and the City of Dubuque relating
to the design of the proposed railroad bridge to be constructed as part of the Bee
Branch Creek Restoration Project.
City staff recommends entering into the Agreement as a prerequisite for completing the
engineering design of the railroad bridge associated with the next phase of the Bee
Branch Creek Restoration Project.
BACKGROUND
In 2001 the City Council adopted the Drainage Basin master Plan which outlined what is
now referred to as the America's River III Bee Branch Creek Restoration & Gateway
Project as one of three projects to provide flood protection for 1,150 properties within
the Bee Branch Watershed.
In May of 2003, the City Council approved the hiring of CDM, a consulting engineering
firm, to provide engineering and design services for the Bee Branch Creek Alignment
Study. The main objective was to establish the optimum alignment for the proposed
open waterway along its approximately 4,500 -foot length (from 16th Street detention
basin to 24th and Elm Streets) based on existing environmental, utility, social, and
economic constraints.
In December of 2004, the City Council adopted the alignment of the Bee Branch Creek
Restoration Project based on the work and recommendation of the Bee Branch Citizen
Advisory Committee. The adopted alignment crosses a railroad yard at 506 Garfield
Avenue. The City has been conversing with the various owners of the tracks and rail
yard since 2007. In 2007, it was owned by Iowa, Chicago & Eastern Railroad (IC &E). In
2008, the tracks and yard were acquired by Dakota, Minnesota, & Eastern Railroad.
And finally, in 2010 the tracks and yard was acquired by CP.
In August of 2008, the City Council authorized the hiring of Strand & Associates
(Madison, WI), in association with IIW Engineers (Dubuque, IA) and Ken Saiki Design
(Madison, WI), to prepare the final design of the Project.
In June of 2011 the City entered into a contract with HDR Engineering (HDR). The
scope of HDR's work was to provide engineering review of the design, plans, and
specifications of the Project as it relates to the Canadian Pacific property.
The Bee Branch Creek Restoration Project will impact the railroad in three ways: the
railroad will lose the use of their current yard office, a new bridge will be constructed
under railroad trackage, and the railroad will temporarily lose the use of various tracks
during construction of the new bridge. In the spring of 2012, CP indicated that they
could not begin to quantify or understand the impacts to the railroad until they are
provided a 30% design of the proposed bridge. On May 14, 2012 the City's engineering
design consultant sent the 30% bridge design to CP. While CP was willing to do a
cursory review of the design, they were unwilling to provide a complete response until a
memorandum of understanding (MOU) was in place. While the terms of an MOU are
non - binding, an MOU outlines the general expectations of both parties.
On June 4, 2012 CP provided a draft MOU to the City. City staff and City consultants
immediately began reviewing the MOU. The challenge of formulating a response was
that the proposed MOU included very specific terms that would typically be found in a
formal agreement.
On June 15, 2012 the City hosted a conference call with CP, City consultants, and
legislative representatives from Senator Harkin's Office, Senator Grassley's Office, and
Representative Braley's Office to discuss the MOU.
On June 29, 2012 the City returned the MOU to CP with the City's suggested changes.
On August 1, 2012 City staff met with CP staff in Minneapolis to reconcile the
differences between the language in the MOU drafted by CP and the changes proposed
by the City. On August 3, 2012 the City sent CP a revised MOU that reflected the terms
agreed upon at the August 1, 2012 meeting.
On September 4, 2012 CP notified the City that they had reviewed the City's draft
revision of the MOU and agreed that it reflected the changes discussed at the August 1,
2012 meeting. They also indicated that they would circulate the MOU for review and
approval upon receipt of two original, executed copies from the City.
On September 7, 2012 the City Manager signed the non - binding MOU attached hereto.
The MOU was subsequently mailed to CP for their consideration and execution. Per the
MOU:
• CP and the City will enter into formal agreements by January 1, 2013. The formal
agreements will be as follows:
2
• A professional services agreement;
• A binding purchase agreement;
• An easement agreement;
• A facilities relocation agreement;
• A track design and construction agreement;
• A construction, maintenance, and indemnification agreement; and
• Any other agreements necessary such as utility agreements for sewer and
fiber conduit installation.
• Pursuant to final agreements, the City will reimburse the Railroad for all
reasonable and necessary actual costs and expenses incurred by the Railroad
that are in any way related to the planning, design, and /or construction of the
railroad bridge project.
• Both CP and the City shall use their best efforts to complete all Investigations,
design criteria, and final plans and produce their respective reports by December
31, 2012. CP shall use its best efforts to provide any comments to designs and
plans within 45 days of receipt thereof.
DISCUSSION
Canadian Pacific (CP) provided the City a draft service agreement on September 4,
2012. The City responded on September 11, 2012 with suggested changes based on
the input of City engineering and legal staff. And on September 13, 2012 CP notified the
City that the City's suggested changes were acceptable to CP.
Attached is the Service Agreement with terms agreeable to both CP staff and City staff
(Engineering and Legal Departments). Per the Service Agreement:
(1) The City shall furnish at its sole expense all the Services required to perform and
complete the required design engineering for the Bee Branch Creek Railroad
Bridge Project;
(11) CP shall furnish, at the request and expense of City, Services required for City to
perform and complete the design engineering plans such as:
a. Physical access to CP property through the issuance of a Release or Right of
Entry agreement as appropriate based on the scope of City's work;
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 CP property and CP engineering records;
d. CP minimum engineering design requirements for freight rail infrastructure
and other technical guidance;
e. Review of Design Engineering plans excluding review of structure plans and
calculations; and
3
f. Incidental Services, including supervisory and legal expenses, necessary to
complete the items hereinabove specified.
(III) CP will make its best effort to provide the Services in a timely manner as they are
requested by the City.
(IV) The City shall reimburse CP for the actual reasonable and necessary costs of
Services and Reimbursable Expenses, subject to the maximum of $100,000, in
accordance with the "Standard Provisions for Highway - Railroad Agreements"
attached to the Agreement as Exhibit A.
(V) Both the City and CP acknowledge that the $100,000 limit 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, this
Agreement may be amended to include CP review of structure plans and
calculations and other additional services.
RECOMMENDATION
I recommend that the City sign the attached Service Agreement with Dakota,
Minnesota, & Eastern Railroad Corporation, a corporation doing business as Canadian
Pacific (CP) and the City of Dubuque.
REQUESTED ACTION
I respectfully request that the City Council adopt the attached resolution authorizing the
City Manager to sign and amend if reasonable and necessary the attached Service
Agreement with Dakota, Minnesota, & Eastern Railroad Corporation, a corporation
doing business as Canadian Pacific for the purpose of advancing the engineering
design of the railroad bridge required as part of the next phase of the Bee Branch Creek
Restoration Project.
Attach.
Prepared by Deron Muehring, Civil Engineer II
Cc: Barry Lindahl, City Attorney
Teri Goodmann, Assistant City Manager
Jenny Larson, Budget Director
Steve Brown, Project Manager
Deron Muehring, Civil Engineer
2
RESOLUTION NO. 262 -12
AUTHORIZING THE SERVICE AGREEMENT MADE AND ENTERED INTO BY AND
BETWEEN THE CITY OF DUBUQUE, IOWA AND DAKOTA, MINNESOTA &
EASTERN RAILROAD CORPORATION, DOING BUSINESS AS CANADIAN PACIFIC
WHEREAS, City is involved in activities to modify storm water drainage by day
lighting the Bee Branch Creek ( "Bee Branch Project ") from 15th Street and Sycamore
Street to 24th Street and Washington Street all within the city;
WHEREAS, City is conducting design engineering of the Bee Branch Project (the
"Design Engineering ");
WHEREAS, the freight railroad operating property and freight rail operations of
CP will be impacted by the Bee Branch Project;
WHEREAS, City needs access to CP property and records, and 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;
WHEREAS, City and CP have signed a Memorandum of Understanding dated
September 7, 2012 concerning their mutual roles and objectives for the Bee Branch
Project;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
That the City Manager is hereby authorized to sign the attached Service Agreement and
any necessary amendments thereto with Dakota, Minnesota, & Eastern Railroad
Corporation, a corporation doing business as Canadian Pacific for the purpose of
advancing the engineering design of the railroad bridge required as part of the next
phase of the Bee Branch Creek Restoration Project.
Passed, approved and adopted this 17th day of September 012.
Attest ! _
Kevin F. stahl, City lerk...—
Roy D. Buol, Mayor
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 day lighting
the Bee Branch Creek ( "Bee Branch Project ") from 15th Street and Sycamore Street to 24th Street
and Washington Street all within the city;
WHEREAS, City is conducting design engineering of the Bee Branch Project (the
"Design Engineering ");
WHEREAS, the freight railroad operating property and freight rail operations of CP will
be impacted by the Bee Branch Project;
WHEREAS, City needs access to CP property and records, and 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;
WHEREAS, City and CP have signed a Memorandum of Understanding dated September 7,
2012 concerning their mutual roles and objectives for the Bee Branch Project;
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 Bee Branch 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 Bee Branch 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 City's work;
9- 13 -12d1m 1
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;
d. CP minimum engineering design requirements for freight rail infrastructure
and other technical guidance;
e. Review of Design Engineering plans excluding review of structure plans and
calculations;
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.
An estimate of the cost of CP's Services ( "Reimbursable Expenses ") is attached hereto as
Exhibit C. The Parties agree the Reimbursable Expenses for the CP Services set forth above
shall not exceed $100,000 unless this Agreement is otherwise amended. Reimbursement for the
Services and Reimbursable Expenses will be on the basis of actual cost of the Services and
Reimbursable Expenses to CP.
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, 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 $100,000, 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-
9- 13 -12d1m 2
performance), but only as long as, and to the extent that, such force majeure shall
prevent performance of the obligations.
(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:
To City:
Dakota, Minnesota & Eastern Railroad Corporation
Suite 900
Canadian Pacific Plaza
120 South 6th Street
Minneapolis, MN 55402
Attn: Curt Whelan
City of Dubuque
Engineering Department
50 W 13th 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 Party 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.
9- 13 -12dlm 3
(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.
(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 Bee Branch Project, subject to
the execution of a confidentiality undertaking substantially in a form as attached
hereto as Exhibit B.
9- 13 -12d1m 4
(XI) TERM. This Agreement automatically will expire on February 28, 2013, 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 original by their duly authorized
officials as of the dates below indicated.
Executed this day of c-rds vQ- , Z
Attest:
sW
Executed this _day of r� ,
DAKOTA, MINNESOTA & EASTERN
RAILROAD CORPORATION
dba Canadian Pacific
By:
9- 13 -12d1m 5
CITY OF DUBUQUE, IOWA
By:
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 ".
1. 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 thafr 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
9- 13 -12dIm 6
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 SOO LINE RAILROAD COMPANY, 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.
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
9- 13 -12d1m 7
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.
9- 13 -12d1m 8
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 Bee Branch
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
9- 13 -12d1m 9
EXHIBIT C
COST ESTIMATE FOR REIMBURSABLE EXPENSES
Planning & Coordination with City 30 minutes /week/3 people $15,000
Access to Records
Access to Property
Flagging
Work Plan Review
Technical Input & Review*
Engineering Plan Review **
Legal Services & Other Incidentals
Subtotal
Contingency 30%
Total
*Including but not limited to regulatory, engineering, real
other related technical matters.
20 hours + printing costs $2,500
10 days @ $700 per day
25 hours
150 hours
4 plan sets; 2 -4 reviewers
lump sum
$7,000
$2,500
$15,000
$24,000
$7,500
$73,500
$22,050
$95,550
estate, operations, maintenance and
* *This estimate contemplates review of up to four plan sets. Additional submissions for plan
review will trigger reassessment of this estimate and possibly a revision to the maximum
reimbursement amount in the Service Agreement.
9- 13 -12dlm 10
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION
1. Parties
This Memorandum of Understanding, dated for reference purposes the 7 day of S! m4% , 2012, is
made and entered into by and between
DAKOTA, MINNESOTA, & EASTERN RAILROAD CORPORATION, a Delaware Corporation
doing business as Canadian Pacific, "Railroad"
and
The CITY OF DUBUQUE, "City"
2. Recitals
WHEREAS, the Railroad owns land, a yard office, a railroad track, and other appurtenances thereto, all
located at 506 Garfield Avenue in the City of Dubuque, Iowa (the "Dubuque Yard "); and
WHEREAS, the City is proposing to build a bridge on the Railroad's land, through the yard office, and
under a portion of the railroad track to upgrade stormwater drainage capacity across Railroad property to
current standards, to provide grade separated bike and pedestrian access across Railroad property, and to
install a grade separated thirty-six (36) inch sanitary sewer and fiber optic duct bank facilities across
Railroad property (collectively, the "Bridge Project "); and
WHEREAS, the City is interested in acquiring fee simple interest in and to a portion of the Railroad's
land and an easement under a portion of the railroad tract in order to construct the Bridge Project; and
WHEREAS, preliminary to transferring any land or easement to the City for such purposes, the City and
Railroad must come to an understanding of the scope of the Bridge Project, and the costs, maintenance,
and liabilities associated with such Bridge Project.
3. Terms of Understanding
NOW THEREFORE, the parties set forth the following as general terms of understanding in order to
construct the Bridge Project and facilitate the transfer of property interests from the Railroad to the City,
all for the City's benefit and to induce the Railroad to enter into formal agreements regarding the same:
A. Plans, Investigation, and Design
The parties anticipate that the City, or its agents, contractors or consultants, at the City's cost and expense,
will perform all investigations necessary to create plans and designs for construction of the Bridge
Project, subject to the Railroad's approval. To the extent the City, or its agents, contractors or
consultants needs to enter upon the Dubuque Yard or any of the Railroad's property appurtenant thereto,
to perform visual or non - invasive inspections of the same or any improvements thereupon (the
Investigations), this Memorandum of Understanding shall serve as the Railroad's consent to such
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inspection on the express condition that the City, its agent, contractor or consultant obtain a separate
Right of Entry agreement from the Railroad. The City will provide the Railroad, at no cost to the
Railroad, a copy of any report generated from its inspection of the Dubuque Yard or any of the Railroad's
property appurtenant thereto.
B. Cost Reimbursement
The parties anticipate that the Final Agreements for the Bridge Project will require the City to reimburse
the Railroad for all reasonable and necessary actual costs and expenses incurred by the Railroad that are
in any way related to the planning, design, and/or construction of the Bridge Project including, without
limitation, any costs or expenses related to engineering, surveying, drawing, negotiation, review, track
work, monitoring well abandonment, flagman protection costs, design of new train control signals,
equipment, supplies, insurance, personnel, and incidental services associated with the items hereinabove
specified. The Railroad will itemize such reasonable and necessary actual costs and expenses clearly and
in detail when submitting to the City for reimbursement.
C. Timing
The parties will use their best efforts to complete all Investigations, design criteria, and final plans and
produce their respective reports by December 31, 2012. The Railroad will use its best efforts to provide
any comments to designs and plans within 45 days of the Railroad's receipt thereof. To accommodate
lead time for rail materials, the City will be required to provide the Railroad with nine (9) months prior
written notice before commencing construction on any aspect of the Bridge Project.
D. Consideration
In addition to the Cost Reimbursement in Section 3(B) above, as consideration for the transfer of fee
simple interest to a portion of the Railroad's land and building to the City, the transfer of permanent and
temporary easements to the City, and for operations and business impacts to the Dubuque Yard resulting
from the Bridge Project, the Railroad anticipates that the City will pay to the Railroad, at the time of
transferring such property interests to the City, a one -time payment in an amount to be set forth expressly
in the Formal Agreements referenced in Paragraph E of this Memorandum of Understanding.
E. Formal Agreements
Assuming that the City is able to finalize plans and design drawings for the Bridge Project that are
acceptable to the Railroad and provide financial assurances to the Railroad that the City has access to the
funds required to construct the Bridge Project, the parties will endeavor to enter into formal agreements in
accordance with this Memorandum of Understanding for the following matters on or before January 1,
2013:
A professional service agreement;
ii. A binding purchase agreement for transfer of fee simple interest to a portion of the
Railroad property to the City;
iii. An easement agreement for permanent and temporary easements for a portion of the
Railroad's property;
iv. A facilities relocation agreement for the phased relocation of facilities currently located
on the Dubuque Yard and which will be demolished or impacted by the Bridge Project;
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V. A track design and construction agreement for the reimbursement of costs and expenses
incurred by the Railroad in connection with the Bridge Project and a construction,
maintenance, and indemnification agreement for construction and maintenance of the
bridge, track, and Railroad appurtenances necessary to construct and maintain the Bridge
Project;
vi. Utility agreements for sewer and fiber conduit; and
vii. Any other agreement necessary to carry out the intent of this Memorandum of
Understanding.
Dubuque Yard Operation
The Bridge Project will not take the Dubuque Yard out of service. The Dubuque Yard must remain
operating at a capacity acceptable to the Railroad during construction of the Bridge Project. If
improvements on the Dubuque Yard are to be demolished or will not be fully operational due to the
Bridge Project, such improvements must be relocated and/or replaced in an operational level on the
Dubuque Yard or on the Dubuque Yard corridor (which may serve as a suitable replacement location for
Dubuque Yard improvements that are demolished or fully operational), as determined by the Railroad in
its sole discretion, before any such improvements may be demolished or negatively affected by the City in
carrying out the Bridge Project plans.
G. Maintenance of Bridge Project Improvements; Liability; Indemnification
The parties anticipate that the Final Agreements will require the City to be responsible for maintaining
improvements related to the Bridge Project before, during, and after completion thereof and that the City
will also be liable for, and will indemnify the Railroad for damage to property or injury to persons located
on the Dubuque Yard or the property transferred to the City in fee, which is connected to the normal use
or operation of the Bridge Project to the extent permitted law. The Railroad will, at its own expense, be
responsible for ownership and maintenance of track components following the completion of the Bridge
Project.
H. Termination of Bridge Project
In the event that delays or difficulties arise which in the opinion of the City render it impracticable to
proceed with the Bridge Project, then at any time before a formal construction and maintenance
agreement is executed or actual construction is started, the City may serve formal notice of cancellation
upon the Railroad and this Memorandum of Understanding shall thereupon become null and void. The
Final Agreements will provide that within 30 days of written demand from the Railroad, the City will
reimburse the Railroad for all reasonable and necessary actual costs incurred by Railroad related to the
Bridge Project prior to receiving the notice of cancellation from the City, and for all reasonable and
necessary actual costs related to the Bridge Project that are unavoidable by the Railroad after receiving
the notice of cancellation.
L Confidentialitv: Media
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 Memorandum of
Understanding ( "Confidential Information ") is confidential and proprietary, and will remain the property
of Railroad at all times. The City is licensed to use such books, manuals, drawings, computer software
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Bridge Construction over Bee Branch Line — Dubuque, IA Page 3 of 4
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and other documentation and know -how as will be supplied to the City solely as necessary for the Bridge
Project. The City's right and its obligations hereunder will 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 Railroad itself or external consultants, or subcontractors. In no circumstances may the
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 Memorandum of Understanding for any purpose
other than for the Bridge Project. The City may 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 Railroad. The City has advised Railroad that it is subject to certain public disclosure
requirements pursuant to applicable public records laws. In the event that the City receives a request with
which it must comply pursuant to such public disclosure requirements for any Confidential Information, it
will promptly advise Railroad. The provisions of this Section I will survive the expiration or termination
of this Memorandum of Understanding for any reason.
4. Whole Agreement
This Memorandum of Understanding„ including any of the terms or conditions herein, is not intended to
be binding upon either party. Except for any separately executed Right of Entry Agreements and the
professional service agreement referred to in Par. E(i), no agreement between the parties with respect to
the subject of this Memorandum of Agreement will be binding until each and every Formal Agreement
has been approved by the Railroad and the City of Dubuque City Council. Neither party may use the
contents or ideas expressed in the Memorandum of Understanding to the detriment of the other party.
5. Sianatures
THE PARTIES HERETO have caused this Memorandum of Understanding to be executed as of the
date and year set forth below.
6. Effective Date.
The Memorandum of Understanding is effective when executed by both parties.
CITY OF DUBUQUE
Date / <
By
Its City Manager
DAKOTA, MINNESOTA, & EASTERN
RAILROAD CORPORATION
doing business as Canadian Pacific
Date
Its
Memorandum of Understanding
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