Attachment 22 Railroad Agreements

Size: px

Start display at page:

Download "Attachment 22 Railroad Agreements"

Regina Curtis
6 years ago
Views:

1 Attachment 22 Railroad Agreements Contract No. 18FH012 Attachment 22

2 Railroad Agreements Capitalized terms used but not otherwise defined herein shall have the meaning given to them in the Railroad Agreement to which the section containing such term relates, or if not defined therein, the meaning given to them in the Agreement. 1. UNION PACIFIC RAILROAD COMPANY AGREEMENTS 1. The UPRR Property Transfer Agreement (Annex 1.1) With respect to the FasTracks Project Property Transfer and Railroad Relocation Agreement dated June 24, 2009 between Union Pacific Railroad Company and RTD (the UPRR Property Transfer Agreement) a copy of which is attached as Annex 1.1, the Concessionaire shall not be required to perform the following obligations: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Recital B, to initial and attach any Addendum to the UP Master Agreement, provided that the Concessionaire shall assist RTD in undertaking its obligations and duties under Recital B by preparing, where applicable, any engineering plans required under Recital B; Recital D, to enter into any ancillary agreements under; Article 2 (Sale and Purchase; Exchange), the RTD obligation and duty to meet the UPRR design standards, other than under Article (Flyover Easements); Article 4.1 (Purchaser's Acquisition of Certain Property), to acquire Exchange Property; Article 4.2 (Design and Construction for Relocations), to negotiate and execute the Relocation and Construction Agreements for Addendum B and Addendum C and the Moffat Tunnel Subdivision/Gold Line Right of Entry Agreement for Addendum D; Article 4.2 (Design and Construction for Relocations), to pay costs (a) incurred by UPRR in constructing and installing a new signal system on the Moffat Tunnel Subdivision/Gold Line, (b) not paid by third parties related to the Third Party Work for fiber optics lines and other private utilities or incurred by the UPRR in connection therewith under Articles (Private Utilities) and (Utility and Fiber Optics Relocations); Article (Boulder Industrial Lead/North Metro Line), to enter into a shared use agreement for the Boulder Industrial Lead/North Metro Line or to pay any Costs incurred for modifications to continue freight rail service for UPRR's existing customers; Article (Limon and Greeley Subdivisions/East Corridor), to pay any Costs related to RTD's eminent domain actions and/or cessation of UPRR freight rail service; Article (Roadways and Public Utilities), to pay Costs not paid by third parties or incurred by UPRR related to work for roadways and public utilities; Article 4.4 (Additional Work Costs), to pay any Costs; Contract No. 18FH012 Attachment 22 Page 1

3 (k) (l) Article 4.5 (Purchaser Payments), provided that the Concessionaire shall cooperate with and assist RTD in the resolution of any such dispute, to make payments to UPRR or to settle any disputes; Article (Project Representative), to designate the RTD project representative or to pay any costs associated with UPRR's designated project representative; (m) Article 5 (Consideration), Article 6 (Title), Article 7 (Due Diligence), Article 8 (Representations and Warranties), Article 9 (Disclaimers), Article 10 (Responsibility for Hazardous Substances), and Article 11 (Covenants), to perform any obligations; (n) (o) (p) (q) (r) (s) Article (Railroad Relocation and Construction), to acquire or to pay all Costs associated with the Seller Relocation Property and Exchange Property and, other than as provided in the Agreement, to perform all UPRR relocation and construction work for each Project Segment; Article (Freight Customer Service Modifications), to pay all Costs associated with any freight rail customer relocations, service modifications, and access mitigation plans for Seller's freight rail customers and any other third parties seeking relocation assistance and, solely for those Project Segments not related to the, to initiate any such relocations, modifications and access mitigation plans; Article (Roadways and Public Utilities), to pay any Costs associated with the modifications of roadways and relocation of public utilities and, solely for those Project Segments not related to the, to relocate any such modifications and relocations; Article (Other Relocation Costs), to pay all Costs in connection with the BNSF requirements and, solely for those Project Segments not related to the, to satisfy such requirements; Article (Compliance by Purchaser), to comply with the conditions and covenants of the Due Diligence Rights of Entry; and Article (Withdrawals from Utility Agreements), Article (Jurisdictional Determination), Article 12.2 (Purchaser's Conditions Precedent), Article 13 (Opening and Closing of Escrow), Article 14 (Risk of Loss; Condemnation; Defaults and Remedies), Article 15 (Miscellaneous), to perform any obligations. Contract No. 18FH012 Attachment 22 Page 2

4 2. Addendum C With respect to Addendum C to the UPRR Property Transfer and Railroad Relocation Agreement Limon & Greeley Subdivision/East Corridor (Addendum C), to be entered into between UPRR and RTD on terms consistent with Addendum A to the UPRR Property Transfer Agreement (Addendum A), a copy of which is attached hereto as Annex 1.2, the Concessionaire shall not be required to perform any obligation or duty to pursue any authority, exemption or confirmation from the Surface Transportation Board under Article (Authority). 3. The 38 th Street Flyover Easement With respect to any flyover agreement to be entered into between the UPRR and RTD with respect to a pedestrian bridge at 38 th Street (the 38 th Street Flyover Easement) on terms consistent with the form agreement attached as Exhibit D to Addendum A, a copy of which is attached hereto as Annex 1.2, the Concessionaire shall not be required to perform the following obligations: (a) to enter into any necessary support easements or to amend the 38 th Street Flyover Easement to provide for UPRR's grant of such support easements under the fourth paragraph; (b) (c) (d) (e) to execute, acknowledge and deliver to UPRR an amended and restated form of the 38 th Street Flyover Easement to correspond to as built surveys and revised legal descriptions provided upon completion of each bridge under the sixth paragraph; to pay all costs associated with the preparation and recording of the amended and restated 38 th Street Flyover Easement under the sixth paragraph; Section 9 (Insurance), to obtain insurances not required to be obtained by the Concessionaire under Attachment 12 (Insurance) of the Agreement; Exhibit A (Additional Terms and Conditions); (i) (ii) (iii) (iv) (v) Section 2 (Government Approvals), to obtain any necessary governmental approvals; Section 2 (Government Approvals), to reimburse any costs incurred by UPRR in providing its support of any government approvals related to UPRR schedule adjustments under subparagraph (a) of Section 4 (Construction; Maintenance and Operations; Relocations; Inspections); Subparagraph (b) of Section 4 (Construction; Maintenance and Operations; Relocations; Inspections), to reimburse any costs incurred by UPRR to perform any corrective measures; Subparagraph (f) of Section 4 (Construction; Maintenance and Operations; Relocations; Inspections), to reimburse UPRR for any costs incurred to perform inspections of the Bridge and to prepare and provide any reports; Subparagraph (g) of Section 4 (Construction; Maintenance and Operations; Relocations; Inspections), to reimburse UPRR for all costs and expenses incurred Contract No. 18FH012 Attachment 22 Page 3

5 on account of UPRR's exercise of its rights and obligations under the 38 th Street Flyover Easement; (vi) (vii) (viii) (ix) Section 13 (Termination; Abandonment; Removal), to deliver a written response to UPRR regarding any inquiry submitted to RTD; Section 13 (Termination; Abandonment; Removal) or Section 14 (Quitclaim Deed), to execute and deliver to UPRR any quitclaim deed; Section 16 (Arbitration), to settle disputes or submit to arbitration, provided that the Concessionaire shall cooperate with and assist RTD in resolving any dispute or attending any arbitration; and Exhibit E (Contractor's Right of Entry Agreement), to pay the administrative fee under Article 8 (Administrative Fee) of the Contractor's Right of Entry Agreement. 4. The EC Rail Bridge Flyover Easement With respect to any agreement to be entered into between RTD and UPRR with respect to a flyover easement for a rail transit bridge over Airport Road on terms consistent with the form agreement attached as Exhibit D to Addendum A, the Concessionaire shall not be required to perform the obligations identified in Section 1.3 (The 38 th Street Flyover Easement). 5. The EC Relocation Agreement (Annex 1.3) With respect to any agreement to be entered into between RTD and the UPRR with respect to relocation and construction for the East Corridor (the EC Relocation Agreement), a draft copy of which is attached hereto as Annex 1.3, the Concessionaire shall not be required to perform the following obligations: (a) (b) Article 3.7 (RTD Insurance) Article 7 (Costs and Payments), to perform any obligation; and (c) Article 9 (Dispute Resolution), to perform any obligation, provided that the Concessionaire shall cooperate with and assist RTD in the resolution of any such dispute. 6. The EC Crossing Agreement Any agreement to be entered into between RTD and the UPRR for a private crossing and roadway license (the EC Crossing Agreement) on terms consistent with the form agreement at Exhibit H to Addendum C of the EC Relocation Agreement, a draft copy of which is attached hereto as Annex The Utility License/Easement Any agreement to be entered into between RTD and the UPRR with respect to a utility license or easement for electric power line crossing on terms consistent with the form agreement at Exhibit I to Addendum C of the EC Relocation Agreement (the Utility License/Easement). Contract No. 18FH012 Attachment 22 Page 4

6 8. Addendum D With respect to Addendum D to the Property Transfer and Railroad Relocation Agreement Moffat Tunnel Subdivision/Gold Line (Addendum D), to be entered into between UPRR and RTD on terms consistent with Addendum A, a draft copy of which is attached hereto as Annex 1.2, the Concessionaire shall not be required to perform any obligation or duty to pursue any authority, exemption or confirmation from the Surface Transportation Board under Article (Authority). 9. The Utah Junction Flyover Easement With respect to any agreement to be entered into between UPRR and RTD with respect to a flyover easement for a rail transit bridge over Utah Junction on terms consistent with those of the form agreement attached as Exhibit D to Addendum A, a draft copy of which is attached hereto as Annex 1.2, the Concessionaire shall not be required to perform the obligations identified in Section 1.3 (The 38 th Street Flyover Easement). 10. The Fox Street Pedestrian Bridge Flyover Easement With respect to any agreement to be entered into between UPRR and RTD with respect to a flyover easement for a rail transit bridge over Fox Street on terms consistent with those of the form agreement attached as Exhibit D to Addendum A, the Concessionaire shall not be required to perform the obligations identified in Section 1.3 (The 38 th Street Flyover Easement). 11. The Gold Line Rail Transit Bridge Flyover Easement With respect to any agreement to be entered into between UPRR and RTD with respect to a flyover easement for a rail transit bridge for the Gold Line on terms consistent with those of the form agreement attached as Exhibit D to Addendum A, the Concessionaire shall not be required to perform the obligations identified in Section 1.3 (The 38 th Street Flyover Easement). 2. BNSF RAILWAY COMPANY AGREEMENTS 1. The BNSF Purchase and Sale Agreement (Annex 2.1) With respect to the Purchase and Sale Agreement dated [ ], 2010 between BNSF Railway Company and ] (the BNSF Purchase and Sale Agreement), a draft copy of which is attached hereto as Annex 2.1, the Concessionaire shall be required to perform the following obligations: (a) (b) Section 3.4 (Utilities), to ensure that any modifications to or relocations of Utilities shall ensure ongoing utility service to BNSF s operations without material interruption; and Exhibit G (Form of DUS Corridor Easement), to perform all RTD obligations. Contract No. 18FH012 Attachment 22 Page 5

7 2. The BNSF Relocation and Construction Agreement (Annex 2.2) With respect to the Relocation and Construction Agreement dated [ ], 2010 between BNSF Railway Company and RTD (the BNSF Relocation and Construction Agreement), a draft copy of which is attached hereto as Annex 2.2, the Concessionaire shall not be required to perform the following obligations: (a) (b) (c) Section 2.1 (Conditions Precedent to Construction) and Section 3.2 (BNSF Modifications Payments), to reimburse BNSF for BNSF costs incurred in connection with the Eagle Project; Article V (Insurance), to obtain insurances not required to be obtained by the Concessionaire under Attachment 12 (Insurance) of the Agreement; Section 3.4 (Additional Property), to convey any property to BNSF; and (d) Section 4.2 (Defense), without limiting the Concessionaire's obligations under Section 35 (Indemnity) under the Agreement, to assume the defense of any lawsuits or other proceedings against BNSF under the BNSF Relocation and Construction Agreement. 3. The BNSF Joint Use Agreement (Annex 2.3) With respect to the Joint Corridor Use Agreement dated [ ], 2010 between BNSF Railway Company and RTD (the BNSF Joint Use Agreement), a draft copy of which is attached hereto as Annex 2.3, the Concessionaire shall not be required to perform the following obligations: (a) (b) (c) (d) (e) (f) Section 2.1.A (Easement Rights), to convey to BNSF an easement for track usage rights; Section 3.4 (Reimbursement for Capital Projects Contributing to Service Capacity and Reliability), to reimburse BNSF for costs BNSF incurs in connection with the BNSF Joint Use Agreement; Section 3.5.B (Taxes), to pay any taxes or assessments; Section 4.3.C (Labor Claims and Labor Protection), to assume the cost of labor claims and labor protection obligations; Section 5.2 (Police and Security), to undertake any security obligations that are not required to be undertaken by the Concessionaire under the Agreement; and Section 5.4 (Liaison with Other Transit Agencies), to coordinate with other transit agencies. Contract No. 18FH012 Attachment 22 Page 6

8 3. AMTRAK AGREEMENTS 1. The Amtrak Agreement (Annex 3.1) With respect to the Terminal Agreement dated July 28, 1976, between RTD (as successor to Denver Union Terminal Railway Company) and National Railroad Passenger Corporation, a District of Columbia corporation d/b/a Amtrak (the Amtrak Agreement), attached hereto as Annex 3.1, the Concessionaire shall not be required to perform the following obligations: 1 (a) with respect to those portions of RTD property at DUS not forming a part of the DUS Commuter Rail Segment; (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) Section 3 (Utilities), to perform any obligation; Section 4 (Maintenance, Repairs and Security), to perform any obligation; Section 11 (Improvements), to perform any obligation; Section 13 (Concessions), to perform any obligation; Section 14 (Operations), to perform any obligation; Section 15 (Laws and Regulations), to perform any obligation; Section 16 (Casualty Loss), to perform any obligation; Section 18 (Liability), to perform any obligation; Section 19 (Labor Agreements and Replacement of Employees), to perform any obligation; Section 20 (Audits), to perform any obligation; and Section 24 (Notices), to perform any obligation; in each case only to the extent that Amtrak can reasonably exercise its rights under the Amtrak Agreement under the above-referenced sections without impacting the DUS Commuter Rail Segment); and (b) with respect to any portion of DUS property, with respect to any portion of DUS governed by the Amtrak Agreement, including those portions of DUS forming a part of the Commuter Rail Segment; (i) (ii) (iii) Section 6 (Taxes), to perform any obligation; Section 9 (Effective Date, Term and Terminations), to perform any obligation; Section 17 (Condemnations), to perform any obligation; 1 NOTE: While the term of this Agreement has expired, RTD (as successor to Denver Union Terminal Railway Company) and Amtrak have elected to continue to perform under and adhere to the terms of the agreement, treating it as currently in effect. Contract No. 18FH012 Attachment 22 Page 7

9 (iv) (v) Section 21 (Interpretation-Arbitration), provided that the Concessionaire shall cooperate with and assist RTD in resolving any dispute or attending any arbitration, to perform any obligation; and Section 22 (Assumption of Functions), to perform any obligation. 2. The Roadrailer Agreement (Annex 3.2) With respect to the Letter Agreement Relating To Use of Denver Union Station for the Amtrak Roadrailer Service Dated December 29, 1999, between RTD (as successor to Denver Union Terminal Railway Company) and National Railroad Passenger Corporation, a District Of Columbia Corporation D/B/A Amtrak (Roadrailer Agreement) attached hereto as Annex 3.2, the Concessionaire shall be required to perform all obligations. Contract No. 18FH012 Attachment 22 Page 8

10 ANNEX 1 UNION PACIFIC RAILROAD COMPANY Contract No. 18FH012 Attachment 22, Annex 1 Page 9

11 ANNEX 1.1 FasTracks Project Property Transfer and Railroad Relocation Agreement dated June 24, 2009 between Union Pacific Railroad Company and RTD [Attached] Contract No. 18FH012 Attachment 22, Annex 1 Page 10

12 ANNEX 1.2 Addendum A to the UPRR Property Transfer Agreement [Attached] Contract No. 18FH012 Attachment 22, Annex 1 Page 11

13 ANNEX 1.3 Relocation and Construction Agreement dated [ ], 2010 for the East Corridor [Attached] Contract No. 18FH012 Attachment 22, Annex 1 Page 12

14 ANNEX 2 BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY Contract No. 18FH012 Attachment 22, Annex 2 Page 13

15 ANNEX 2.1 Purchase and Sale Agreement dated March [ ], 2010 between BNSF Railway Company and RTD [Attached] Contract No. 18FH012 Attachment 22, Annex 2 Page 14

16 ANNEX 2.2 Relocation and Construction Agreement March [ ], 2010 between BNSF Railway Company and RTD [Attached] Contract No. 18FH012 Attachment 22, Annex 2 Page 15

17 ANNEX 2.3 Joint Corridor Use Agreement dated March [ ], 2010 between RTD and BNSF Railway Company [Attached] Contract No. 18FH012 Attachment 22, Annex 2 Page 16

18 ANNEX 3 AMTRAK Contract No. 18FH012 Attachment 22, Annex 3 Page 17

19 ANNEX 3.1 Terminal Agreement dated July 28, 1976, between RTD (as successor to Denver Union Terminal Railway Company) and National Railroad Passenger Corporation, a District of Columbia Corporation d/b/a Amtrak [Attached] Contract No. 18FH012 Attachment 22, Annex 3 Page 18

20 ANNEX 3.2 Letter Agreement relating to Use of Denver Union Station for the Amtrak Roadrailer Service dated December 29, 1999, between RTD (as successor to Denver Union Terminal Railway Company) and National Railroad Passenger Corporation, a District of Columbia Corporation d/b/a Amtrak [Attached] Contract No. 18FH012 Attachment 22, Annex 3 Page 19

BOARD OF COUNTY COMMISSIONERS SARPY COUNTY, NEBRASKA

BOARD OF COUNTY COMMISSIONERS SARPY COUNTY, NEBRASKA RESOLUTION APPROVING AND AUTHORIZING EXECUTION OF THE FUNDING AGREEMENT FOR CONSTRUCTION OF HIGHWAY GRADE SEPARATION BNSF RAILWAY COMPANY CAPEHART ROAD-SARPY