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HomeMy WebLinkAbout2018-1381 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2018-138 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING BNSF AGREEMENT NO. BF -10011068 (SBCTA CONTRACT NO. 17-1001621) RELATED TO THE MOUNT VERNON AVENUE VIADUCT REPLACEMENT PROJECT OVER THE BNSF RAILWAY INTERMODAL YARD (SSO4-012) BY AND AMONG BNSF RAILWAY COMPANY, A DELAWARE CORPORATION, THE CITY OF SAN BERNARDINO, A CHARTER CITY AND MUNICIPAL CORPORATION UNDER THE CONSTITUTION AND LAWS OF THE STATE OF CALIFORNIA AND THE SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY. BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized and directed to execute on behalf of the City, the Preliminary Engineering Agreement related to the Mount Vernon Avenue Viaduct Replacement Project over the BNSF Railway Intermodal Yard (SSO4-012), attached hereto and incorporated herein as Exhibit "A." SECTION 2. The authorization to execute the above -referenced Agreement is rescinded if it is not executed by all parties and returned to the Office of the City Clerk within one -hundred twenty (120) days of the passage of this Resolution. 1 1 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING BNSF AGREEMENT NO. BF-10011068 2 (SBCTA CONTRACT NO. 17-1001621) RELATED TO THE MOUNT VERNON AVENUE VIADUCT REPLACEMENT PROJECT OVER THE BNSF RAILWAY 3 INTERMODAL YARD (SSO4-012) BY AND AMONG BNSF RAILWAY COMPANY, 4 A DELAWARE CORPORATION, THE CITY OF SAN BERNARDINO, A CHARTER CITY AND MUNICIPAL CORPORATION UNDER THE CONSTITUTION AND 5 LAWS OF THE STATE OF CALIFORNIA AND THE SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY. 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 8 and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 9 16th day of May 2018, by the following vote, to wit: 10 11 Council Members: AYES NAYS ABSTAIN ABSENT 12 MARQUEZ 13 BARRIOS X 14 VALDIVIA xi1i� 15 SHORETT T 16 NICKEL 17 � 18 RICHARD %r' 19 MULVIHILL X(5) 20 21 � _C��• �-��- �—jc� Georgean canna, CM ity Clerk 22 The foregoing Resolution is hereby approved this 16fl' day of May 2018. 23 24 cr�r<<I -� 25 R. Care . Davis, Mayor 26 Approved as to form: City of San Bernardino 27 Gary D. Saenz, City Attorney 28, B y:Z 2 ENGINEERING AGREEMENT BNSF Agreement No. BF -10011068 SBCTA Contract No. 17-1001621 City Contract No. SSO4-012 This Engineering Agreement ("AGREEMENT") related to the Mount Vernon Avenue Viaduct Replacement Project over BNSF Railway Intermodal Yard is entered into as of the EFFECTIVE date (defined below) by and among BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"); CITY OF SAN BERNARDINO, a charter city and municipal corporation under the Constitution and laws of the State of California ("CITY"); and SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY ("SBCTA"). BNSF, CITY and SBCTA are hereinafter individually referred to as a "Party" and collectively referred to as the ("PARTIES"). CITY and SBCTA are hereinafter collectively referred to as the "PUBLIC ENTITY" RECITALS WHEREAS, the Mount Vernon Avenue Viaduct ("VIADUCT") over the BNSF Railway Intermodal Yard, Main Tracks and Storage Tracks (collectively, the "BNSF Yard") in the City of San Bernardino, California was constructed in 1934 and is an important public transportation facility, for businesses, residents, commuters and emergency services; WHEREAS, in 1997, Caltrans inspectors determined that the VIADUCT had a sufficiency rating of less than 50 out of a possible 100. Bridges rated less than 50 are considered to be structurally deficient and functionally obsolete. In 2004 and again in 2008, temporary shoring was installed on the existing bridge as a precautionary measure. The shoring was repaired and upgraded in 2014 under a permit from BNSF which is valid for ten years. The temporary shoring restricts BNSF's ability to maximize the utilization of the BNSF Yard; WHEREAS, the PUBLIC ENTITY proposes to remove and replace the existing VIADUCT over the BNSF Yard, while making improvements to existing streets, storm drains, traffic signals and related work necessitated by the VIADUCT removal and replacement (hereinafter collectively referred to as the "PROJECT" and as further described in the draft 2018 Supplemental Environmental Assessment dated _April , 2018); WHEREAS, the PARTIES wish to efficiently and expeditiously coordinate and complete the PROJECT, in order to minimize impacts and inconvenience to the local community, to limit interference with BNSF's operations and to restore the operation of the VIADUCT to the public; WHEREAS, the PARTIES have continued to revise the PROJECT with the goal of reducing construction time and thereby reduce impacts to the businesses, residents, commuters, BNSF and emergency services, and have updated the PROJECT cost estimate, inclusive of mitigation costs, to $150 million; WHEREAS, the PARTIES wish to identify and design various mitigation measures which are intended to reduce and offset the PROJECT's impacts to BNSF's operations and to reduce the duration in which the VIADUCT will be fully out of service to the community; WHEREAS, BNSF is willing to commence engineering work to identify and define the scope and nature of such mitigation and is prepared to contribute Twenty -Nine Million Five Hundred Thousand Dollars ($29,500,000) (the "BNSF Contribution") toward the cost of part of the total PROJECT; WHEREAS, the Parties contemplate entering into a Construction and Maintenance Agreement ("C&M") and one or more agreements related to conveyances of properties that will be needed to offset parking impacts to BNSF as a result of the PROJECT (collectively, the C&M and such other agreements are referred to as the "Project Agreements") once the final design of the mitigation and the overall PROJECT has been agreed upon by the Parties; WHEREAS, the purpose of this AGREEMENT is to authorize BNSF to commence design engineering for such railroad mitigation work associated with the PROJECT. The design engineering will include an engineer's estimate for railroad mitigation work ("ESTIMATE"), which ESTIMATE will be incorporated into the C&M. AGREEMENT NOW, THEREFORE, the Parties hereby agree as follows: 1. The recitals set forth above are true and correct and are incorporated herein by this reference. 2. BNSF's mitigation engineering design shall be managed by BNSF which includes but is not limited to: engineering design of all BNSF buildings, structures, lighting, fencing, electrical and mechanical services, drainage, pavement, site grading, replacement parking and shoofly track(s), and generating an ESTIMATE for all aforementioned items, 3. BNSF will submit its railroad mitigation work engineering plans, specifications and estimates ("BNSF PS&E") to SBCTA for review and comment upon completion of 30%, 60%, 90% and final BNSF PS&E. BNSF shall use best efforts to submit BNSF PS&E to SBCTA in accordance with the schedule attached hereto as Exhibit A_ and incorporated herein. The Parties agree to meet and confer in good faith to resolve any comments on PS&E to the mutual satisfaction of the Parties. 4. The cost to perform the preliminary design engineering for all of the railroad mitigation work ("COST") is estimated to be Four Hundred Eighty -Six Thousand Five Hundred Forty -Five and No/100 Dollars ($486,545.00), as shown on Exhibit B attached hereto and made a part hereof. For purposes of this Agreement, "COST' means all actual and reasonable costs and expenses incurred by BNSF or a BNSF contractor or consultant in the performance of any of the preliminary design engineering work contemplated in this AGREEMENT including all actual costs and expenses of labor, travel, vehicles, lodging, meals, supplies, machinery, tools and materials incurred for or in connection with BNSF's provision of the Services, federally approved additives, overhead, applicable sales, use, business and occupation, public utility taxes or any other tax, government charged or assessed fee, or other like assessment or charge. SBCTA will reimburse BNSF the COST under the terms and conditions of the Project Agreements. 5. The Parties agree that any further contribution of funds by BNSF is contingent upon the Parties execution of the Project Agreements. 6. The Parties agree that: (i) the ESTIMATE and the BNSF PS&E will be incorporated into the total PROJECT estimate and design that will be included and be a part of the C&M; (ii) SBCTA shall have no obligation to fund any portion of the railroad mitigation work that exceeds forty-eight million three hundred and twenty-five thousand dollars ($48,325,000) minus any credits given BNSF for railroad mitigation work ("SBCTA Mitigation Payment"), and (iii) BNSF shall have no obligation to fund any portion of the PROJECT cost above the BNSF Contribution. 7. BNSF shall provide SBCTA upon written request, evidence of the COST incurred by BNSF pursuant to this AGREEMENT. SBCTA agrees to notify BNSF promptly upon any determination that the PROJECT is financially infeasible or that environmental clearance issues cause the PROJECT to be unduly delayed. BNSF may cease work on the BNSF PS&E upon any such determination whereupon none of the Parties shall have any further obligation under this AGREEMENT. 8. The Parties do not intend to create any third party beneficiaries hereto and expressly provide that this AGREEMENT does not create any such third party beneficiaries. 9. All signatories hereto warrant that they are duly authorized to execute this AGREEMENT on behalf of said Parties and that by executing this AGREEMENT the Parties hereto are formally bound to this AGREEMENT. 10. Except on subjects preempted by federal law, this AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, without giving effect to that body of laws pertaining to conflict of laws. Except on subjects preempted by federal law, the Parties agree to follow all local, state, county and federal laws and ordinances with respect to performance under this AGREEMENT. The Parties agree that BNSF is not a contractor of the Public Entity for purposes of this AGREEMENT or otherwise in connection with the Project. The Parties explicitly acknowledge and agree that BNSF is not intended to be a "contractor" or "subcontractor", within the meaning of, or as those terms are used in or defined in, California Government Code sections 8350 et seq., California Government Code section 12990, and California Code of Regulations, title 2, sections 11100(d) and 11100(f). 11. The Parties hereto agree that all actions or proceedings arising in connection with this AGREEMENT shall be tried and litigated either in the Superior Court of the State of California for the County of San Bernardino. The aforementioned choice of venue is intended by the Parties to be mandatory and not permissive in nature. 12. Federal audit requirements (HBP Funds). BNSF and SBCTA .shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to COST incurred under this Agreement. BNSF and SBCTA shall make such materials available at their respective offices where such materials are kept in the normal course of their respective business at all reasonable times during the AGREEMENT term and for three years from the date of this AGREEMENT. The state, State Auditor, SBCTA, FHWA, or any duly authorized representative of the federal government shall have access to any such materials that are pertinent to the COST for audit, examinations, excerpts, and transactions. 13. If any clause or provision of this AGREEMENT is fully and finally determined by a court of competent jurisdiction to be illegal, invalid or unenforceable under applicable present or future laws, then it is the intention of the Parties that the illegal, invalid or unenforceable clause or provision shall be deemed severed from this AGREEMENT and the remainder of this AGREEMENT shall not be affected but shall remain in full force and effect. 14. This AGREEMENT cannot be amended or modified in any way except in writing, signed by all Parties hereto. 15. Neither this AGREEMENT, nor any of the Parties' rights, obligations, duties, or authority hereunder may be assigned in whole or in part by any Party without the prior written consent of the other Party in its sole, and absolute, discretion. Any such attempt of assignment shall be deemed void and of no force and effect. 16. No waiver of any default shall constitute a waiver of any other default whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 17. It is mutually understood that this AGREEMENT does not obligate the PROJECT to be constructed or in any way limit any Party's discretion to comment on, approve or disapprove any additional environmental documentation which may be required either under the California Environmental Quality Act or the National Environmental Policy Act whether as a lead agency, responsible agency or interested party. Should such additional environmental documentation not be approved, in any Party's sole and absolute discretion, the Parties shall have no obligation to any other Party to enter into the Project Agreements. 18. In the event of litigation arising from this AGREEMENT, each Party to this AGREEMENT shall bear its own costs, including attorney(s) fees. 19. This AGREEMENT may be signed in counterparts, each of which shall constitute an original. 20. The Parties agree to commence negotiation of the Project Agreements upon the EFFECTIVE date. The Parties understand that if environmental documentation of the PROJECT is approved, it is in the best interests of the public for SBCTA to award a design -build contract as soon as feasible after environmental approval of the PROJECT, and that the C&M must be in effect before the final Request for Proposals for the design - build contract is issued. The Parties shall negotiate diligently and in good faith the terms of the C&M to completion which will set forth how the BNSF Contribution and the SBCTA Mitigation Payment will be paid and the obligations of the Parties with respect to the PROJECT. The C&M will include federal audit, invoicing, records retention and other requirements associated with the PROJECT's receipt of HBP funding. 21. Any notice required, authorized or permitted to be given hereunder or any other communications between the Parties provided for under the terms of this AGREEMENT shall be in writing, unless otherwise provided for herein, and shall be served personally or by reputable courier to the relevant party at the address stated below: BNSF: French Thompson Director of BNSF Public Projects 2650 Lou Menk Dr. OOB 3rd Floor Fort Worth, TX 76131 SBCTA: Paula Beauchamp Director of Project Delivery 1170 West Third Street, Second Floor San Bernardino, CA 92410-1715 CITY: Trish Rhay Director of Public Works 290 North "D" Street San Bernardino, CA 92401 IN WITNESS THEREOF, this AGREEMENT has been executed by the Parties hereto and is effective ("EFFECTIVE") on the date signed by the last Party. SIGNATURES ON FOLLOWING PAGES: BNSF RAILWAY COMPANY SIGNATURE PAGE BNSF RAILWAY COMPANY By: Name Title: 'r,--:XeR-TopPuw� Date: rolls/106 SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY SIGNATURE PAGE SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY By: L/ /-- - - Raymon Wolfe Executive Director Date: APPROVED AS TO FORM: By. S-13, //,g Eileen Monaghan Teichert General Counsel By: Jeffe , I/ Procurement Manager CITY OF SAN BERNARDINO SIGNATURE PAGE CITY OF SAN BERNARDINO By: 1q, "J& Andrea 9. Miller City Manager Date: APPROVED AS TO FORM: Gary D. Saenz, City Attorney EXHIBIT A BNSF PS&E SUBMITTAL SCHEDULE Percentage Months after Complete A_areement Effective Date 30%: 5 months 60%: 7 months 90%: 8.5 months 100%: 9 months Bid Docs: 9.5 months EXHIBIT B RAILROAD MITIGATION WORK DESIGN ENGINEERING COST BNSF-Mount Vernon Bridge Replacement Project Wilson & Company Cost Proposal - April 19, 2017 Engineering Estimate Project Management $33,278 Civil Track $77,955 Parking Lot $65,904 Architecture $69,180 Electrical $114,554 Mechanical $84,622 Structural $8,872 Survey $14,000 Geotechnical $18,180 Total Engineering Design Fee $486,545