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Resolution 2025-121Resolution No. 2025-121 A RESOLUTION OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS APPROVING A PRELIMINARY ENGINEERING SERVICES AGREEMENT WITH BNSF RAILWAY COMPANY FOR QUIET ZONE EVALUATION WHEREAS, the United City of Yorkville (the "City") is a duly organized and validly existing non home -rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and WHEREAS, the City's Code of Ordinances provides that the City may approve contracts contracts for the services of individuals possessing a high degree of professional skill, such as engineering agreements, that have not been competitively bid; and WHEREAS, the Train Horn Rule, a federal law codified at 49 CFR Part 222, requires trains to sound their horns in advance of crossing a public highway, unless the highway crossing has been designated a Quiet Zone; and WHEREAS, prior to designating a Quiet Zone, a study must be conducted to ensure certain safety measures exist at public highway railroad crossings; and WHEREAS, a rail line controlled by the BNSF Railway Company ("BNSF") runs through the City and trains operating on this line are subject to the Train Horn Rule; and WHEREAS, City authorities desire to have certain railway crossings within the City's corporate boundaries designated as Quiet Zones (the "Project"); and WHEREAS, BNSF is willing to conduct a study for the purpose of declaring certain railway crossings within the City as Quiet Zones and has provided the City with a Preliminary Engineering Services Agreement, wherein BNSF agrees to conduct necessary preliminary work toward the Project, for a cost of $28,099 (the "Agreement"); and WHEREAS, the Mayor and City Council have determined that it is in the best interests of Resolution No. 2025-121 Page 1 the health and safety of the City and its residents to waive the competitive bidding requirement and to authorize and approve the Agreement with BNSF, for a total cost not to exceed $28,099. NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois: Section 1. The foregoing recitals are hereby incorporated in this Resolution as the findings of the Corporate Authorities. Section 2. The Corporate Authorities hereby waive the competitive bidding requirement pursuant to the City's Code of Ordinances, and approve the Preliminary Engineering Services Agreement with BNSF Railway Company, in an amount not to exceed $28,099. Section 3. That this resolution shall be in full force and effect from and after its passage and approval according to law. [Remainder of Resolution intentionally blank. Roll call vote follows.] Resolution No. 2025-121 Page 2 Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this 281h day of October, A.D. 2025. CA) k tdy CLERK KEN KOCH AYE DAN TRANSIER AYE ARDEN JOE PLOCHER AYE CRAIG SOLING AYE CHRIS FUNKHOUSER NAY MATT MAREK AYE RUSTY CORNEILS AYE RUSTY HYETT AYE APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois this Y�day of �G�b � , A.D. 2025. Attest: C Y CLERK Resolution No. 2025-121 Page 3 "~WA6Wr.. R,4l1 WA Y Contract Number: BF-20561555 PRELIMINARY ENGINEERING SERVICES AGREEMENT Quiet Zone Project BNSF File No.: BF-20561555 Mile Post 44.512 Line Segment 1 U.S. DOT Number 079584S, 079578N, 079579V Subdivision This Agreement ("Agreement") is executed to be effective as of 0C/kA9t , 2025 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF") and the Unified City of Yorkville, a political subdivision of the State of IL ("Agency"). RFrITAI R WHEREAS, BNSF owns and operates a line of railroad in and through Yorkville, State of IL; WHEREAS, Agency has stated its intention to proceed initially with a project to establish two quiet zones (the "Project") that include the crossings as identified in Exhibit A ("Crossing" or "Crossings"); WHEREAS, Agency has requested that BNSF perform certain preliminary engineering review services and other Work (defined below) with respect to its railroad facilities located at or near the Project site to facilitate Agency's evaluation of the feasibility of proceeding with the Project; and WHEREAS, BNSF is agreeable to performing the Work, subject to the terms and conditions of this Agreement; AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1 of 6 ,gArL WA Y Contract Number: BF-20561555 1) Scope of Work As used herein, the term "Work" includes all work performed by BNSF, its employees, contractors, consultants, or other agents (collectively, the "BNSF Parties") pursuant to this Agreement, including, but not limited to: (a) conducting on -site visits including diagnostic evaluations; (b) performing preliminary engineering services; (c) developing cost estimates for construction of the Project; (d) preparing draft agreements including legal review; and (e) reviewing and/or providing comments on preliminary layouts or other designs, plans, and/or documents in connection with the Project. 2) Payment and Deposit for Work Agency authorizes BNSF to proceed with the Work relating to the Project. Agency shall pay and reimburse BNSF for all actual costs and expenses that BNSF incurs in performing the Work, including without limitation: (a) labor, supplies, and material; (b) direct and indirect labor and contractor charges including additives; (c) delivery charges; (d) BNSF's additives and overhead, as such are in effect on the date BNSF prepares its final billing; and (e) all applicable taxes due, paid, or payable by BNSF on such products and services, including sales and use taxes, business and occupation taxes, and similar taxes (collectively, "Actual Costs"). BNSF's estimated cost for Work on this Project is 28,099 ("Estimated Cost"). Any estimate provided by BNSF for the Work shall not be a limitation on the Work to be performed or the costs and expenses incurred, which Agency shall reimburse to BNSF in full. During its performance of the Work pursuant to this Agreement, BNSF will send Agency progressive invoices detailing the costs of the Work performed to date. Agency must reimburse BNSF for completed Work within thirty (30) days of the date of the invoice for such Work. Upon final completion of the Work, BNSF will send Agency a detailed invoice of final costs. Agency must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past such thirty (30) or ninety (90) day terms, as applicable. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end. Finance charges will be noted on invoices sent to Agency under this section. 2 of 6 ~_A� RAIAe WAY Contract Number: BF-20561555 3) Scope and Limitations of Agreement The parties acknowledge that entering into this Agreement does not of itself obligate either BNSF or Agency to participate in the construction of the Project. If Agency elects to proceed with the Project after the Work is performed, then BNSF and Agency agree to enter into negotiations for appropriate agreements regarding the construction of the Project and other related activities. Nothing in this Agreement — including BNSF's performance of the Work — shall obligate BNSF to enter into any subsequent agreement or otherwise permit the Project except and subject to any terms and conditions that BNSF may subsequently approve in its sole discretion. The Project is understood to be undertaken, in whole or in part, as part of Agency's proposal to seek to establish and/or maintain a quiet zone in accordance with 49 CFR Part 222 ("Quiet Zone"). Agency acknowledges that BNSF does not recommend the establishment of a Quiet Zone and believes that, if not properly accounted for with appropriate safety enhancements, the elimination of the train horn can be detrimental to safety. The train horn is intended to alert the motoring and pedestrian public of train movement, and Agency is responsible for using the requirements provided at 49 CFR Part 222 as a minimum guideline in any approach to creating a situation where the train horn is eliminated. The Work to be performed by BNSF for the Project is not intended to be an endorsement or approval of the use of the Crossing or of any facilities or equipment to be installed by BNSF for the purposes of establishing or maintaining a Quiet Zone. Notwithstanding anything to the contrary in this Agreement, BNSF's review, approval, and/or other participation in the Project or any element thereof, including the Work performed by the BNSF Parties hereunder, are expressly limited to — and are intended and understood by the parties to be in furtherance of — BNSF's railroad purposes, and are not in furtherance of Agency's purposes in undertaking the Project. BNSF is providing the Work — including without limitation the design, selection, or provision of signal equipment and other Crossing appurtenances or BNSF's modifications under or subsequent to this Agreement, including the review or adequacy of any existing equipment or appurtenances — in consideration of BNSF's subjective standards for its railroad purposes only. Consequently, the Work shall in no way be construed or deemed to be BNSF's recommendation, condition, or direction to Agency, nor shall the Work be construed or deemed to be BNSF's opinion or approval that the plans and specifications or any work intended or completed on the Project (a) is appropriate for any other purpose including Agency's use of the Crossing for highway purposes; (b) is structurally sound; or (c) meets applicable standards, regulations, laws, statutes, local ordinances, and/or building codes. No benefits to Agency or any third party are provided, intended, or implied herein. Agency shall at all times be solely responsible for the adequacy and compliance F ff f. f +. F +E l7 .:. + i h:..h .J +ham,. hE:., Af_-Cklf'v 01 all design lE elements s of a the r i oject o highway way and other public purposes. P%%aL-119%0 I 3 of 6 "~J�Ao= R,artWAr Contract Number: BF-20561555 SHALL WAIVE ANY CLAIMS AGAINST BNSF FOR — AND SHALL RELEASE BNSF FROM — ANY AND ALL CLAIMS WHICH MAY OR COULD RESULT FROM THE WORK PERFORMED HEREUNDER, AND IF APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY SHALL INDEMNIFY BNSF FOR AND HOLD IT HARMLESS FROM AND AGAINST ANY SUCH CLAIMS. Agency is solely responsible for obtaining regulatory approvals consistent with this Agreement. AGENCY is solely responsible for establishing, and if approved, maintaining compliance of any Quiet Zone authorized by the Federal Railroad Administration, at its sole expense. Any additional work or equipment required to be installed at the Crossing as the result of the establishment of a Quiet Zone shall be at no cost to BNSF. 4) No Right of Entry Nothing in this Agreement shall be construed as providing Agency or its contractors, consultants, or other agents any right of entry upon property owned or occupied by BNSF. Any preliminary engineering or other work required by Agency in connection with the Project necessitating entry upon BNSF's railroad right-of-way shall only be conducted as authorized by a separate written permit obtained by Agency from BNSF for such entry ("Entry Permit"). The Entry Permit will provide that any on -site visits, including diagnostic evaluations, by Agency and its parties required for the Project shall be conducted only from adjoining properties, and Agency shall ensure that no attendees enter or remain on BNSF's right- of-way, except when using an authorized highway -rail crossing designated for such purpose. Agency or its agents must contact BNSF's Manager of Public Projects, Jacob Rzewnicki at 913-551-4275, or BNSF's permitting agent Jones Lang LaSalle Brokerage, Inc. ("JLL") at http://bnsf.railpermitting.coml to obtain the required Entry Permit prior to any entry. 5) Disclaimer BNSF GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY OTHER MATTER, OF OR FOR THE WORK PERFORMED PURSUANT TO THIS AGREEMENT OR ANY REPORT OR OTHER DELIVERABLE WHICH BNSF MAY FURNISH TO AGENCY PURSUANT TO THIS AGREEMENT. BNSF SHALL IN NO WAY BE RESPONSIBLE FOR AGENCY'S PROPER RELIANCE UPON, INTERPRETATION OF, OR OTHER USE OF THE WORK. BNSF IS NOT A CONTRACTOR, AGENT, PARTNER, OR JOINT VENTURER OF AGENCY BECAUSE OF THIS AGREEMENT OR BECAUSE OF BNSF'S PERFORMANCE OF THE WORK. 4 of 6 AW~w�A F =� RAIZWAY Contract Number: BF-20561555 LIKEWISE, THE BNSF PARTIES WHO MAY ASSIST BNSF IN PERFORMING THE WORK ARE DOING SO FOR BNSF'S BENEFIT ONLY, AND ARE NOT — AND SHALL NOT BE DEEMED TO BE -- CONTRACTORS, SUBCONTRACTORS, OR AGENTS OF AGENCY. 5of6 ~MA5rAF= A.41 Z WA Y Contract Number: BF-20561555 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first written above. Unified City o Yorkville Name: John pu�CO� BNSF Railway Company Name: Assistant Director Public Projects Accepted and effective thisWday of OC tO , 2025.