DATE: October 26, ACHD Commissioners, ACHD Director, ACHD Deputy Directors. Al Busche, Project Manager

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1 Jim D. Hansen, President Sara M. Baker, Vice President Rebecca W. Arnold, Commissioner Kent Goldthorpe, Commissioner Paul Woods, Commissioner DATE: October 26, 2015 TO: FROM: SUBJECT: ACHD Commissioners, ACHD Director, ACHD Deputy Directors Al Busche, Project Manager Construction Agreement with Boise Valley Railroad LLC Cloverdale Rd, Franklin Rd/Fairview Ave Project No Consent Agenda: October 28, 2015 Programmed Expenditures 2016 Approved Budget Construction $2,400, Traffic Materials $85, Utilities $250, IFYWP Priority Rating: 13 of 98 EXECUTIVE SUMMARY: Staff has prepared an agreement with Boise Valley Railroad LLC (BVRR), to construct the railroad crossing for the Cloverdale Rd, Franklin Rd/Fairview Ave project. In the agreement BVRR will reconstruct the crossing and ACHD will reimburse them for the construction. ACHD legal has reviewed and approved the agreement. Staff recommends approval of the agreement. FACTS AND FINDINGS: BVRR will coordinate and construct the railroad crossing in its entirety. The following are two specific highlights of the agreement: BVRR will remove all materials for the existing crossing and provide labor and materials to construct the new, five lane crossing ACHD will reimburse BVRR in its entirety for costs incurred to construct the crossing FISCAL IMPLICATIONS: There is $243,000 included in the construction budget in FY16 for the railroad crossing. The total estimate for BVRR to construct the crossing, as of October 7, 2015, is approximately $311,232. All costs incurred to construct the crossing will be reimbursed by ACHD to BVRR. Total estimated construction costs for this Cloverdale Rd, Franklin Rd to Fairview Ave project are $2,468,000 including all phases of the project. The project budget will be revised to meet the current estimates at the first budget adjustment. POLICY IMPLICATIONS: The project complies with the approved ACHD Integrated Five Year Work Plan, adopted by the ACHD Commission on October 22, SCHEDULE IMPLICATIONS: Ada County Highway District 3775 Adams Street Garden City, ID PH FX

2 Per term 2.D with BVRR, the crossing will be completed on or before May 15, Substantial completion of the ACHD road project is October ALTERNATIVES: 1) Approve the BVRR agreement and authorize the Commission President and Director to sign. 2) Do not approve the agreement. RECOMMENDATION: Staff recommends Alternative 1, approve the BVRR agreement and authorize the Commission President and Director to sign. Attachments Agreement with BVRR

3 ACTUAL COST RAILROAD CONSTRUCTION AGREEMENT CLOVERDALE ROAD, BOISE, IDAHO CLOVERDALE RD, FRANKLIN RD/FAIRVIEW AVE AAR/DOT CROSSING NO U ACHD PROJECT NO THIS AGREEMENT, made and entered into this day of, 2015, by and between BOISE VALLEY RAILROAD, LLC (a Limited Liability Company of Delaware) hereinafter called the Company and the ADA COUNTY HIGHWAY DISTRICT acting by and through its Board of Commissioners, hereafter called the District. GENERAL DEFINITIONS: The following definitions apply to this Agreement: Authorized User. Any entity that has rights by permit, agreement, or contract to use Company property including tracks. Crossing. At-grade highway-railroad crossing of railroad track(s) by a highway for use by highway traffic including pedestrians located at railroad milepost of the Boise Main Line in ADA County, Idaho. Crossing Surface. The highway surface area between the rails plus two feet outside of the rails of railroad track(s) of a Crossing. Plans. The completed Project plans that are assigned the Project Number as shown on the first page of this Agreement that have been approved in writing by the Company s Chief Engineer- Design or his authorized representative. The Plans are hereby made a part of this Agreement by reference. Project. The work defined by the plans and specifications developed by the District with approval from the Company that is assigned the Project Number as shown on the first page of this Agreement. PURPOSE: The District is reconstructing and widening Cloverdale Road in Boise, Idaho as part of its Cloverdale Road, Franklin Road to Fairview Avenue project and coincident with this work the District, desires the reconstruction of the Crossing Surface, and signal warning system, at railroad milepost of the Boise Main Line and side track in ADA County, Idaho identified as AAR/DOT Crossing # U and Cloverdale Road. The Company will provide all Labor, Equipment, Signal Materials and Construction Material for the removal of the existing Crossing Surface, installing a new widened Crossing Surface of

4 insulated concrete planking, provide railroad flagging and other railroad protective services at project expense. The District will provide all the Labor, Equipment and Material for reconstruction and widening the roadway up to the new crossing planking, the hauling and disposal of removed existing materials from project site and roadway traffic control at project expense including temporary asphalt patching. The existing advance warning signs will be retained. The District will also administer project funds and provide necessary inspection of work at project expense. This Agreement sets out the terms for the installation, operation, maintenance, and payment of the Crossing work for removing the existing Crossing Surface, installation of Crossing Surface improvements (insulated concrete planking), railroad flagging and other railroad protective services, construction traffic control, patching the roadway up to the new crossing planking, the installation of new standard Crossing pavement markings. TERMS: 1. District and Company Contact Persons A) The Company is to submit billings, documents and coordinate all activities through the District s contact person of: Al Busche Ada County Highway District 3775 Adams Street Boise, Idaho Telephone number is (208) The District may change its contact person by notifying the Company s contact person in writing. B) The District is to coordinate all activities on Company property through the Company s contact person of: Gary Wagensellar General Manager Boise Valley Railroad, LLC 420 Hansen Street South Twin Falls, Idaho Telephone number is (208) The Company may change its contact person by notifying the District s contact persons in writing.

5 2. Installation of Crossing Surface by the Company A) The Company shall at Project expense, furnish all labor, materials, and equipment necessary for the complete construction and installation of the Crossing Surface at the Crossing as shown by detailed plan sheets labeled as Exhibit A and generalized standard drawings for a Crossing labeled as Exhibit B hereto attached and made a part of this Agreement. This work by the Company shall include the removal of the existing Crossing materials and signal warning system as necessary. B) The position of the Crossing Surface at the Crossing shall be as shown by Exhibit A and Exhibit B. Exhibit A and Exhibit B are intended to be complementary in describing and providing information for work by the Company. In the case of discrepancy Exhibit A will govern over Exhibit B. C) The Company shall furnish at Project expense, such detailed plan sheets, specifications, lists of materials, and estimates of cost that may be required in addition to those prepared by the District. These plan sheets, specifications, lists of materials, and estimates are hereby made a part of this Agreement by reference. D) The Company shall not begin installation of the Crossing Surface at the Crossing until authorization is received from the District. The Company shall notify the District fortyeight (48) hours prior to the commencement of work by the Company on the Project. The Company shall have the work on the Project completed on or before May 15, E) The Company shall notify the District in writing of the date when all work by the Company is completed on the Project. F) The Company and District shall make a joint inspection after the completion of all work by the Company on the Project. 3. Flagging and Protective Services by the Company The Company, at its determination, may provide inspection, security, flagging, or other protective services as necessary for the protection of Company property or operations whenever there are District activities or Contractor operations on Company property. The cost of railroad flagging or other protective services provided by the Company will be at Project expense during Project construction and at District expense after completion of the Project. 4. Installation and Maintenance of Signs, Pavement Markings, and Guardrail for the Crossing A) The existing advance warning signs for the Crossing will be retained. The standard pavement markings for the Crossing shall be installed by the District at Project expense. B) Maintenance of advance warning signs and pavement markings, for the Crossing, shall be by the District at its own expense.

6 5. District to Reimburse Company by Actual Cost A) The District will reimburse the Company for the actual cost of work at Project expense. The estimated cost of the work is a total of $461,332.00; consisting of $136, for Crossing Surface, and $325, for railroad signal work, flagging and protective services. Cost estimating information is labeled as Exhibit C hereto attached and made a part of this Agreement. B) The Company may submit billings for reimbursement of Project expenses to the District for progress payments during the progress of the work. The Company shall submit a final bill to the District for reimbursement of all Project expenses within one hundred twenty (120) days after completion of the work. All billings shall include supporting documentation, applicable to the Project, used by the Company to substantiate the Project expenses. C) The District shall pay progress billings within forty-five (45) days and final billing within ninety (90) days after receipt of the bills. All payments are subject to the findings of a final audit by the District. D) Reference to the District Project Number and AAR/DOT Crossing Number shall be indicated on all bills, correspondence, and records pertaining to this Project. 6. Working on Company Property by District A) All work to be completed by the District on Company property shall be done in a manner satisfactory to the Company. The work shall be performed diligently and completed within a reasonable time or within such period of time as may be specified in writing by the Company. B) The work performed by the District shall be performed at such time and in such manner as not to damage any Company tracks or interfere with (i) the timely and safe movement of the Company's trains and on-track maintenance equipment or (ii) the installations or operations of Authorized Users, unless mutually agreed upon prior to any such work activity. C) The District shall provide at least fourteen (14) calendar days advance notice to the Company representative before any work is to be performed within twenty-five (25) feet of any Company property. This is to enable the Company to furnish railroad flagging and/or other protective services as might be necessary to ensure the safety of the Company operations. D) The District is to consider recommendations made by the Company regarding activities or operations on Company property. The District is not relieved of any liability by accepting recommendations made by the Company. E) The District representatives shall be suitably dressed to perform work safely and in a manner that will not interfere with vision, hearing, or free use of hands or feet when on

7 Company property. Shirts are to be waist length with sleeves. Trousers are to cover the entire leg with any flare-legged style tied to prevent catching. Footwear shall be sturdy like work boots; no open toe shoe (like sandals), thin soled (like a tennis or walking shoe), or shoes with high heels are to be worn. Additionally the following personal protective equipment is to be worn: a) Protective headgear, commonly called a hard-hat, which meets the American National Standard-Z89.1, latest revision. It is suggested that all hard-hats be affixed with the entity.s name or logo. b) Eye protection that meets American National Standard for occupational and educational eye and face protection, Z87.1, latest revision. Additional eye protection shall be provided to meet specific job situations such as welding and grinding. c) Hearing protection that affords protection from noise levels that may be occurring on the Job Site. F) Work on the Job Site shall not cease without the Company's written consent and subject to such reasonable conditions as the Company may specify. It is understood that the Company's tracks at and in the vicinity of the work will be in use during progress of the work and that movement or stoppage of rail traffic including track maintenance equipment may cause delays in the work of the Project. The District hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Company. G) All Project work shall be performed in compliance with all applicable Federal, State, and local laws, and regulations affecting the project work including, without limitation, all applicable Federal Railroad Administration regulations. H) The District, at no expense to the Company, shall provide and maintain suitable facilities for draining the highway and its appurtenances. The District shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, including water from the Company's culvert and drainage facilities), so that said waters may not be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Company or any part thereof, or property of others. 7. Indemnity by District and Insurance Furnished by District A) The District protects and holds harmless the Company and Authorized Users against all loss, liability, and damage arising from activities of the District on Company property. B) The District provides without expense to the Company and Authorized Users a minimum of five hundred thousand dollars ($500,000) of liability insurance for bodily or personal injury, death, or property damage or loss as the result of any one occurrence or accident, regardless of the number of persons injured or the number of claimants in accordance with Subsections and of Idaho Code.

8 C) The District shall correct any damage to Company and Authorized Users. property caused by itself or the Contractor during Project activities or the failure to perform activities; and in the event the Contractor or its insurance carrier(s) fail to repair or restore the same. 8. Maintenance and Operation of Crossing Surface The Company and the District shall maintain the Crossing Surface of Crossing as provided by law. Currently Section of Idaho Code specifies that the area between the rails and a minimum distance of two feet outside the rails shall be maintained by the Company at its expense. 9. Moving and Relocation of Crossing If rearrangement, relocation or alteration of the Crossing Surface is necessitated on account of improvements to railroad or highway facility, the party whose improvement causes such changes shall bear the entire cost thereof without obligation by the other party. 10. Cessation of Operation of Crossing A) The Company shall be released from further maintenance and obligation if Crossing Surface is rendered unnecessary, undesirable, or improper because of closure, relocation, separation of grades, or improvements in Crossing protection or Crossing Surface by agreement, negotiation, or by order of competent authority. B) In the event of cessation of operation of the Crossing Surface, the salvageable items shall be disposed of by agreement of the parties hereto prior to removal of the Crossing Surface. 12. Choice of Law and Severability A) This Agreement shall be governed by and construed under the laws of the State of Idaho and the parties hereto consent to the jurisdiction of the state courts of Ada County in the State of Idaho, in the event of any dispute with the State with respect to this Agreement. B) If any part of this Agreement is declared invalid or becomes inoperative for any reason, such invalidity or failure shall not affect the validity and enforceability of any other provision. 13. Modifications to Project or Agreement Proposed modifications to the Project or this Agreement shall be approved in advance by a change order from the District. Deviation from the Project or this Agreement without such prior approval by one party will remove that portion of the work from any financial obligation of the other parties.

9 14. Successors and Assigns This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives. ATTEST for Boise Valley Railroad, LLC BOISE VALLEY RAILROAD, LLC By: By Title: Title: ATTEST for Ada County Highway District ADA COUNTY HIGHWAY DISTRICT By: By: Director President

10 EXHIBIT A To Actual Cost Railroad Construction Agreement Cover Sheet for the District s Detailed Plans

11 EXHIBIT B To Actual Cost Railroad Construction Agreement Cover Sheet for the District s Standard Drawings

12 EXHIBIT C To Actual Cost Railroad Construction Agreement Cover Sheet for the Company s Surface Improvement Estimated Cost