HomeMy WebLinkAbout1998 Ordinance No. 079. '
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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
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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 .
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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 .
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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 .
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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
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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.
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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.
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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
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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.
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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.
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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.
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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
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• 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 .
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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
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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:
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CITY OF ENGLEWOOD • By: __________________ _
Thomas J. Burns
Title: Mayor
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NEW
FREIGHT BRIDGE
EXISTING
FREIGHT BRIDGE
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DAR TMOUTH AVENU E
BRIDGE SECTION AT DARTMOUTH AVENUE
(LOOKING NORTH)
EXHIBIT A
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Date
October 19, 1998
INITIATED BY
COUNCIL COMMUNICATION
Agenda Item
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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
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