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HomeMy WebLinkAbout1998 Ordinance No. 079. ' • • • ORDINANCE NO . 1/1 SERIES OF 1998 BY AUTHORITY COUNCIL BILL NO. 65 INTRODUCED BY COUNCIL MEMBER HABENICHT AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ENTITLED "DARTMOUTH AGREEMENT" PERTAINING TO THE DARTMO UT H A VENUE BRIDGE BETWEEN THE REGIONAL TRANSPORTATION DISTRICT (RTD), THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY (BNSF), THE UNION PACIFIC RAILROAD COMPANY (U P) AND THE CITY OF ENGLEWOOD, COLORADO. WHEREAS , the Englewood City Co uncil a uthorized the passage of Resolution No. 50 , Series of 1990 which was the original Maintenance Agre e ment Dartmouth Avenue Grade Separation Structure for the construction of a grade separation s tructure by which Dartmouth Avenue would pass under the railroad tracks of Atchison T opeka and Santa F e Railway Company ; a nd WHEREAS , Regional Transportation District purchased all right-of-way owned by the Denver Rio Grande Western Railroad Company at Dartmouth Avenue with the execution of a Bargain and Sale Deed on March 31 , 1993 ; and WHEREAS , the Union Pacific Railroad Company retains an operating easement on land purchased by Regional Transportation District ; and WHEREAS, the Burlington Northern and Santa Fe Railway Company is the successor-in-interest by merger to the Atchison Topeka and Santa Fe Railway Company ; and WHEREAS , the Union Pacific Railroad Company is the successor-in-interest by merger to Denve r Rio Grande Western Railroad Company; and WHEREAS , the grade separation structure constructed under the original agreement of 1990 consists of a three bay railroad bridge with the easternmost bay of the bridge carrying BNSF track (the Northbound Main), the westernmost bay carrying Union P a cifi c Railroad Company track (the Southbound Main) and the middle bay being vacant ; and WHEREAS , the Burlington Northern and Santa Fe Railway Company and Regional Transportation District are the current owners of the rights-of-way through which Dartmouth Avenue passes; and WHEREAS , the Union Pacific Railroad Company holds an easement for construction and operation of freight rail facilities on the Regional Transportation District right-of-way; and WHEREAS, Regional Transportation District will be constructing a new two bay freight bridge to the west of the existing three bay railroad bridge which will accommodate the southbound main and a third freight track ; a nd -1 - 11 b i WHEREAS , Regional Transportation District will convert the existing northbound main and vacant middle bay to light rail use ; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD , COLORADO , AS FOLLOWS : Section 1. The Intergovernmental Agreement entitled "Dartmouth Agreement" between the Regional Transportation District (RTD), the Burlington Northern and Santa Fe Railway Company (BNSF), the Union Pacific Railroad Company (UP) and the City of Englewood , Colorado , pertaining to the Dartmouth Avenue Bridge and construction of a new two bay freight bridge to the west of the existing three bay railroad bridge , attached hereto as "Exhibit A," is hereby accepted and approved by the Englewood City Council. Section 2 . The Mayor is authorized to execute and the City Clerk to attest and seal the Intergovernmental Agreement for and on behalf of the City of Englewood, Colorado. Introduced, read in full , and passed on first reading on the 19th day of October, 1998 . Published as a Bill for an Ordinance on the 23rd day of October, 1998 . Read by title and passed on final reading on the 2nd day of November, 1998. Published by title as Ordinance No .fJ.i. Series of 1998 , on the 6th day of November, 1998. I , Loucrishia A. Ellis , City Clerk of the City of Englewood , Colorado, hereby certify that the above and foregoing is a true cop~~ the Ordinance passed on final reading and published by title as Ordinance No. 'JJ, Series of 19 . -2- ' . • • • • 9\23\98 DARTMOUTH AGREEMENT This Agreement made this_ day of , 1998 among the Regional Transportation District (RTD), apolitical subdivision of the State of Colorado, the City ofEnglewood (the City), a municipal corporation of the State of Colorado, The Burlington Northern and Santa Fe Railway Company (BNSF), a Delaware corporation, and Union Pacific Railroad Company (UP), a Delaware corporation, provides for the use and maintenance of the Dartmouth A venue grade separation and for the maintenance of all freight and light rail structures which cross the subway. RECITALS 1. The State of Colorado, The Denver and Rio Grande Western Railroad Company (DRGW), Tue Atchison Topeka and Santa Fe Railway Company (ATSF) and the City entered into an agreement on July 2, 1990 (1vfaintenance Agreement Dartmouth Avenue Grade Separation Structure, hereafter, the Original Agreement) for the construction of a grade separation structure by which Dartmouth Avenue would pass under the railroad tracks of ATSF at approximately Milepost 729.94 (Dartmouth Avenue) and under DRGW tracks at • approximately Milepost 6.98 . • 2. RTD purchased all right-of-way owned by the DRGW at Dartmouth Avenue by Bargain and Sale Deed dated March 31, 1993. UP retains and operating easement on land purchased by RTD. 3. BNSF is the successor-in-interest by merger to ATSF . CP is the successor-in-interest by merger to DRGW. 4. Tue grade separation structure constructed under the Original Agreement consists of a three bay railroad bridge, the easternmost bay of the bridge carrying BNSF track (the Northbound Main), the westernmost bay carrying UP track (the Southbound Main) and the middle bay being vacant. BNSF and RTD are the current owners of the rights-of-way through which Dartmouth A venue passes. UP holds an easement for construction and operation of freight rail facilities on the RTD right-of-way. RTD will be constructing a new two bay freight bridge to the west of the existing three bay railroad bridge which will accommodate the Southbound Main and a third freight 'track. RTD will convert the existing Northbound Main and vacant middle bay to light rail use. Northbound freight rail operations will relocate to the existing Southbound Main. Attached hereto as Exhibit A is a diagram of all bridges and Dartmouth Avenue following construction . 1 E x H I B I T 5. (A) The parties hereto have previously entered into agreements which affect the use and operation of Dartmouth A venue, and the construction and maintenance of freight and light rail structures. Those agreements, listed below, are incorporated herein by reference: (1) The Railroad Relocation and Maintenance Agreement between the Burlington Northern and Santa Fe Railway Company and the Regional Transportation District dated October 15, 1997 (the BNSF Construction Agreement). (2) The Railroad Relocation Construction Agreement between Union Pacific Railroad Company and the Regional Transportation District dated October 17, 1997 (the UP Construction Agreement). (3 ) Bargain and Sale Deed between DRGW and RTD dated :Vfarch 31, 1993 conveying all right-of-way formerly owned by DRGW at Dartmouth. (4 ) The Original Agreement between DRGW, ATSF , and the City dared July 2, 1990. (5) Contract N o. 150296 dated August 4, 19 7 6 between the ATSF and the City granting a license to the City for Dartmouth Avenue to cross ATSF's tracks at grade. (B ) Among RTD, BNSF, and UP, in the event of any conflict between the foregoing Agreements and this Agreement, the order of preference will be the Bargain and Sale Deed, then • the BNSF and UP Construction Agreements, then this Agreement. • (C) Among the City, RTD, BNSF, and UP, in the event of any conflict between the foregoing Agreements and this Agreement, the order of preference will be the Original Agreement, then this Agreement, then the ATSF or DRGW license agreements as applicable .. 6. The Parties hereto wish to provide for the construction and re location of the freight and light rail bridges across Dartmouth A venue, and for ongoing maintenance. NOW THEREFORE, it is mutually agreed by and between the Parties hereto as follows: ARTICLE I. GRAL'IT OF RIGHTS 1. BNSF, without consideration other than the performance of this Agreement, hereby reaffirms all rights granted and reserved pursuant to Contract 150296, as modified by the Original Agreement 2. RTD reaffirms all rights granted and reserved by DRGW to the City's to use, occupy and maintain Dartmouth Avenue pursuant to the Original Agreement between the City and DRGW. 3. UP reaffirms all right and obligations granted and reserved in the Original Agreement. 2 • • • • ARTICLE II. CONSTRUCTION I. RTD, pursuant to the BNSF and UP Construction Agreements will construct a new two track freight rail bridge on right-of-way owned by RID and BNSF which will support the new Southbound Main and the new middle track. RTD will relocate the BNSF to the existing Southbound Main, which will become the new Northbound Main. All demolition, design, preparation of plans and specifications, and construction of railroad facilities will be in conformance with the BNSF and UP Construction Agreements. RTD will locate its light rail tracks on the existing Northbound Main bridge. RTD will provide copies of all plans and specifications for the new freight bridges to the City for review and comment. 2 . After completion of construction of the li ght and freight rail ~ridges and relocation of freight trackage, RTD will provide a complete set of as-b uil t plans to each of the parties to this Agreement. 3. It is expressly understood that the C ity 's ri ght to ins tall ut ili ties , or to authorize an y other person or entity to install utilities is restricted to the placement of underground utilities beneath the roadway surface from back of sidewalk to back of sidewalk. C nder no circumstances wi ll utilities be allowed behind the abutments, near piers or pi les , or allowed to hang from the structures. All utility crossings over freight rail bridges \\ithin the limits of the licensed are a will be covered by separate agreements between BNSF, l TP, and the C ity depending upon the desired location of the utility and the user of the affecte d structure. The City will not be permitted to place or authorize placement of utilities on the RTD light rail structure. ARTICLE ill. J\-L;\INTENAi'l"CE 1. BNSF will, at its ovm cost, subject to current Joint Facilities Agreement(s), maintain the track structure on that portion of the shared freight and light rail bridge containing the ne w Northbound freight rail track and the track structure on that ponion of the new freight rail bridge containing the middle track, including w aterproofing, rai is. ties, ballast , walkways, hand rai ls, communication and signal facilities belonging to it and associated "'ith the middle track and Northbound freight track. 2. UP will, at its own cost, subject to current Joint Fac ilities Agreement(s), maintain the track structure on that portion of the new bridge containing the new Southbound freight rail track including waterproofing, rails, ties, ballast, walkways, hand rails, communication and signal facilities belonging to it and associated with the Southbound freight track. 3. RTD will, at its ovm cost, maintain that portion of the shared freight and light rail bridge containing the LRT tracks, including but not limited to waterproofing, rails, ties , ballast walkways, hand rails, communications and signal facilit i es , abutments, piers , and girders belonging to it and associated with the LRT tracks. 3 4. The City will share 1/6 the cost, the Railroads, subject to current Joint Facilities • Agreements, will share 1/6 the cost, and RTD will share 2/3 the cost of maintaining the existing shared Northbound freight and light rail bridge including all abutments, piers, and girders, and any and all elements of the substructure and superstructure not assumed by BNSF in Paragraph III(l). 5. The City will share 1/2, and the Railroads, subject to the current Joint Facilities Agreements, will share 112 the cost of maintaining the new Southbound freight bridge and the middle track including all abutments, piers , and girders, and any and all elements of the substructure and superstructure not assumed by UP and BNSF in Paragraph III (1) & (2). 6. The City will continue to maintain at its own cost and expense all of the Dartmouth A venue land and waterway areas including structures , grading and improvements located thereon , lying beneath the bridge structures . The City will install and maintain vertical clearance signs ifrequired by the .Yfanual of U niform Traffic Control de v ices standards, which accurately reflect the current lowest minimum v ertical clearance , and 'Wi ll perform all required graffiti removal. Under this pro vision, the C ity's responsibi li ties include, but are not limited to , maintenance of the Dartmouth A venue roadway surface , roadbed , curb , gutter, sidewalk, retaining wall on the north side of the roadway, and roadway drainage . The City's maintenance responsibilities hereunder also extend to all slope pa ving and cobblestone pav ing beneath this structure and to Little D ry Creek's channel and stream bed, its stream banks and drainage slopes, • and to any existing or required bank and slope stabilization and/or control structure , and grading. The discharge of the City's responsibilities shall be carried out in accordance with and meet the City's and an y other applicable agencies' procedures , standards and criteria. 7. Access to railroad fac i lities for ma intenance shall be go verned b y construction and maintenance agreements or other existing and applicab le agreements including , but not limi ted to , Joint Facilities Agreements betw'een the panies. 8. The City shall have access to the RTD and BNSF O\vned rights-of-way for purposes of maintenance of all City maintained fac i lities . If at an y time the City or its contractors require access to any portion of the right of way other than the subway beneath the bridges, the City shall obtain any necessary right-of-entry permits from RTD and shall ensure that all railroad , RTD , FRA and PUC safety requirements are met , at the City's cost and expense . Before commencing any work wi th City forces on railroad property or easement areas , the City shall provide 48 hours prior notice (excluding weekends and holidays), as provided in Article IV, Section 6, below. Access by City contractors to railroad or RTD right-of-way shall be governed by the required Contractor's Right-of-Entry Agreement provided for in Article IV , Section 1, below. RTD , BNSF and UP shall hav e access to the subway for purposes of maintenance 4 • . . whenever required. RTD, BNSF and UP shall ensure that all City traffic control and safety • requirements are met, at the maintaining party's cost and expense. • • 9. The City shall ensure that use of the subway causes no damage to any freight or light rail bridge crossing the subway, and covenants as an express condition of the right to use the subway that, in the event of any damage to any freight or light rail bridge by any vehicle or user of the subway, it will immediately repair or replace the damaged structure so as to restore the structure to its condition immediately prior to the damage, and take any reasonable and necessary temporary emergency measures as may be required to maintain freight and light rail traffic. 10. RTD shall be responsible for any damage to any freight or light rail bridge crossing the subway which is damaged by light rail operations and shall repair or replace such freight or light rail bridge at RTD expense, and shall take such reasonable ~ergency measures as may be necessary to maintain continued freight and light rail traffic, and vehicular traffic on Dartmouth Avenue. 11 . BNSF or UP shall be responsible for any damage to any freight or light rail bridge crossing the subway which is damaged by their respective freight rail operations and shall repair or replace such freight or light rail bridge at its own expense, and shall take such reasonable emergency measures as may be necessary to maintain continued freight and light rail traffic, and vehicular traffic on Dartmouth A venue . 12. Nothing contained in this Agreement shall preclude any party hereto from pursuing any action to recover costs for damage to any structure or to the subway from any third persons not a party to this Agreement. 13 . The parties will conduct periodic inspections of all bridge and roadway strucrures forming or crossing the Dartmouth Subway to determine the need for my maintenance, repair or replacement of any portion of the structures or the subway . )To insp~:ion by any other party will relieve the responsible party of the obligation to fulfill its maintenance obligations under this Agreement. In the event that any party feels that maintenance responsibilities of any other party are not being met, all parties shall be put on written notice by the complaining party of the maintenance requested. If the parties cannot reach agreement as to the maintenance required, a consultant who is a professional structural engineer licensed in the State of Colorado shall be hired, all parties to share equally in the cost . The consultant shall determine maintenance required and such determination shall be binding on the parties, unless the party objecting to such determination shall produce within 30 days of receipt of the consultant's report another report signed by a Colorado licensed professional structural engineer, which report states that there would be a danger to the structural integrity of a strucrure or portion of the subway, or to the health and safety of the public or any employees or agents of the parties hereto, by following the recommendation of the consultant retained by all parties. In that event the party producing the second opinion may seek review pursuant to the Arbitration section of this Agreement. 5 ARTICLE IV . GENERAL CONDffiONS 1. Contractor's Right of Entry: The City shall include in any agreement between it and every contractor for the construction, ownership, maintenance or operation of the Dartmouth Subway, language providing that such contractor shall enter into Railroads' and RTD's standard form of Contractor's Right of Entry Agreement. In the event that the City obtains Raihoad Preteetir.·e tfisl:H"!mee, the Cit)· sfiall aeme eYery ee~a-aetor a:! im additional insmed: on M"ey immm1ce policy mrd amend:tnents thereto. 2. Arbitration: If a question or controversy shall arise between the parties hereto in connection with the meaning or operation of this Agreement, such question or controversy shall be submitted to and settled by arbitration. • If the parties to the dispute are able to agree upon a single competent and disinterested arbitrator within twenty (20 ) days after written notice by one party of its desire for arbitration to the other party , then the question or contro v ers y shall be submitted to and settled b y that single arb itrator. Otherwise , an y party (the notifying party ) may not ify the other party (the noticed party) in writing of its request for arbitration and appointing one arbitrator. Within twenty (20 ) day s after rece ipt of said not ice, the noticed party shall appoint an arbitrator and notify the notifying party in writing of such appointment. Should the noticed party fail within twenty (20) days after receipt of such notice to name its arbitrator, said arbitrator ma y be appointed by the Chie f Judge (or acting Chief Judge) of the United States District Court for Colorado upon application by • either party after ten (10 ) day s written not ice to the other party. The two arbitrators so chosen shall select one addi tional arbitrator to complete the board. If the arb itrators so chosen fail to agree upon an additional arbitrator, the same shall , upon applicat ion o f a party, be appointed by said judge in the manner heretofore stated. Upon selection of the arbitrator(s), said arbitrator(s) shall, with reasonable diligence, determine the questions as disclosed in said notice of arbitration , shall gi ve both parties reasonable notice o f the time and place (of which the arbitrator(s) shall be the judge) of hearing evidence and argument, may take such evidence as the arbitrator(s) deem reasonab le or as either party may submit with witnesses required to be sworn, and hear arguments of counsel or others. If the arbitrator(s) declines or fails to act, the party (or parties in the case of a single arbitrator) by whom the arbitrator was chosen or said judge shall appoint another to act in the arbitrator's place. After considering all evidence, testimony and arguments, said single arbitrator or the majority o f said board of arbitrators shall promptly state such decision or award and the reasoning for such decision or award in writing which shall be final, binding, and conclusive on all parties to the arbitration when delivered to them. The award rendered by the arbitrator(s) may be entered as a judgment in any court having jurisdiction thereof and enforced as between the parties without further evidentiary proceeding, the same as entered by the court at the conclusion of a judicial proceeding in which no appeal w as taken. Until the arbitrator(s) shall issue the first decision or award upon an y question submitted for arbitration, performance under this Agreement shall 6 • . . • continue in the manner and form existing prior to the rise of such question. After delivery of said first decision or award, each party shall forthwith comply with said first decision or award immediately after receiving it. Each party to the arbitration shall pay all compensation. costs, and expenses of the arbitrator appointed in its behalf and all fees and expenses of its own wimesses, exhibits, and counsel. The compensation. cost, and expenses of the single arbitrator or the additional arbitrator in the board of arbitrators shall be paid in equal shares by all parties to the arbitration. The parties may obtain discovery and offer evidence in accordance with the Federal Rules of Civil Procedure Rules 26 -37, and Federal Rules of Evidence, as each may be amended from time to time. Interest, compounded annually, at a rate equal to the Prime Rate plus two (2) percentage points , shall be applied to any and all arbitrator's awards requiring the payment of money and shall be calculated from thirty (30) days following the date of the applicable arbitrat ion dec ision. T h e term "Prime Rate" shall mean the minimum commerc ial lending rate charged by banks to their most credit-worthy customers for short-term loans , as pub li shed daily in the Wall Street Journal. 3. This constitutes the entire agreement of the parties w ith respect to Dartmouth Avenue, and may be amended only by written agreement of the parti es • 4 . This Agreement shall be binding upon the parties hereto and their respective successors and assigns . • 5. This Agreement is solely for the benefit of the parties hereto and does not confer any rights upon an y other persons or entities and does not create an y third-party beneficiaries. 6. All notices or communications under this Agreement shall be addressed to: Regional Transportation Disnic: Director, Planning and Deve lopment 1600 Bake Street Denver, Colorado 8020 2 The Burlington Northern and Santa Fe Railway Company Manager of Public Projects 20 l North 7th Street Lincoln, Nebraska 68501 Union Pacific Railroad Company Director, Industry and Public Projects 1416 Dodge Street Room 101 0 Omaha, NE 681 79 7 City of Englewood Director of Public Works 3400 South Elati Street Englewood, CO 80110 or to any other address as may be designated in writing to the other parties. 7. If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, it is the intent of the parties that such provision. and all other provisions in this Agreement be enforceable to the maximum extent permitted by law. 8. This Agreement may be signed in multiple counterparts which shall be valid and binding on the parties. IN' WITNESS WHEREOF, authorized representatives of the parties hereto have executed this Dartmouth Avenue Agreement as of this __ day of __ , 1998. REGIONAL TRA.i'l"SPORTATION DISTRICT THE BURLIN'GTONNORTHERN A.t"\JD SAi'ITAFE RAILWAY COMPA.i'l"Y l JNION PACIFIC RAILROAD COMJ>Ai'N T itle: 8 • • • ' . CITY OF ENGLEWOOD • By: __________________ _ Thomas J. Burns Title: Mayor • • 9 • . 5:1 ('.), ~I ><:, ~I g:, ~I 0 tri ~. [I I Ir ' _,I ro • I tr' _,I ai• r< . :......,r-1 -i . ···1n1 c::".:=t=:::J rnr• -i -1--=~ =: ~f[_ ~ 10000 DODO DODO., Er--- . . -- NEW FREIGHT BRIDGE EXISTING FREIGHT BRIDGE --- / ·' DAR TMOUTH AVENU E BRIDGE SECTION AT DARTMOUTH AVENUE (LOOKING NORTH) EXHIBIT A • •• • • Date October 19, 1998 INITIATED BY COUNCIL COMMUNICATION Agenda Item 10 a iii STAFF SOURCE Subject O rdinance Approv ing Dartmouth Agreement Department of Pub li c Works Charles Esterly, Director of Public Works COUNCIL GOAL AND PREVIOUS COUNCIL ACTION Counc il approved Resolution No . 50 , Series of 1990 accepting the original Maintenance Agreemen t Dartmouth Avenue Grade Separat ion Structure. RECOMMENDED ACTION Staff seeks Council approval of a Bill for an Ordinance to enter into an agreement with the Reg iona l Transportation District (RTD), the Burlington Northern and Santa Fe Railway Company (BNSF), and t he Un ion Pac if ic Railroad Company (UP). The agreement prov ides for t he use and maintenance of the Dartmouth Avenue grade separation as well as for the maintenance of all freight and light rail structures at Dartm outh Avenue . BACKGROUND , ANALYSIS, AND ALTERNATIVES IDENTIFIED In 1990, Council adopted the Ma intenance Agreement Dartmouth Avenue Grade Separation Struct ure for constructio n of a structure separat ing the grade at Dartmouth Avenue to allow the roadway to travel under the ra ilroad tracks owned by the Atchison Topeka and Santa Fe Railway Company. RTD executed a Bargain and Sale Deed in 1993 to p u rchase all right-of-way owned by the Denver Rio Grande Western Railroad Company at Dartmouth Avenue ; however, Union Pacific Railroad Company retains an operating easement on the land purchased by RTD . S ince the or iginal contract of 1990, Burlington Northern and Santa Fe Railwa y Company (BNSF) has merged w ith Atchison Topeka and Santa Fe Railway Company, whi le Union Pacific Railroad Company (UP ) has merged with Denver Rio Grande Western Railroad Company. The 1990 agreement was for a grade separation structure consisting of a 3 bay railroad bridge . The easternmost bay of the bridge carries BNSF track northbound , while t he westernmost bay carries UP track southbound . The middle bay is vacant. Under the new Dartmouth Agreement , BNSF and RTD are the current owners of the rights-of-way through which Dartm outh Avenue passes, and UP holds an easement for construction and operat ion of freight rail facilities on the RTD right-of-way. RTD will be constructing a new two bay freight br idge to the west of the existing three bay railroad b ridge to accommodate the southbound track and a third freigh t track . The ex isti ng northbound track and vacan t middle bay w ill be converted to light ra il use. • The City 's respons ibilit ies , as previously agreed to in 1990, are being shifted f rom 100% of the ex isting structure (3 bays) to 100% of the new structure (2 bays) p lus 1/3 of the old structure. RTD is respons ible for 2/3 of the old structure wh ich encompasses the tracks they will actually use to run light rail. FINANCIAL IMPACT The City's total financial responsibility under the 1990 contract is not changed by this contract. A slight benefit is that 2/3 of our responsibility is shifted to a newer structure. LIST OF ATTACHMENTS Bill tor an Ordinance Dartmouth Agreement • • •