City Argues Bridge Cost Should Be A 50/50 Share

The Fourth Avenue Bridge has been a major thoroughfare in Moose Jaw since its first wooden iteration in 1911.

It has always been a major traffic bridge over top of the operations of the Canadian Pacific Railway (CPR) today’s forerunner of Canadian Pacific Kansas City Railway (CPKC)

The present day cement Fourth Avenue Bridge was constructed in 1929 and is in dire need of major structural and other repairs.

According to documents submitted by the City to the Canadian Transportation Agency “the Viaduct is well past any legitimate service life expectations.”

Repairs will potentially cost into the tens of millions of dollars and take the main traffic artery out of service for months during reconstruction.

With the design work on the lastest rebuilding proposal for the Fourth Avenue Bridge almost complete the big question is where will the money come from?

The City of Moose Jaw is hoping CPKC will shoulder part of the cost of the multi-million dollar re-build. The railway has responded negatively to the City’s request.

The entire matter is now before arbitration with the Canadian Transportation Agency for a decision.

At the present time neither side is commenting publicly while arbitration is on-going.

The Canadian Transportation Agency is yet to render a decision in the case.

Today we look at the legal rebuttal by the City of Moose Jaw to CPKC’s legal argument that the railway company should not have to pay anything let alone 50 percent of the Fourth Avenue Bridge’s reconstruction/rehabilitation costs.

Fifth and final part in a series.

By Robert Thomas

“The City’s position throughout the 115 year lifespan of the Viaduct has been consistent and straightforward. Costs of building or structurally rebuilding the Viaduct should be shared equally between CPKC and the City. Both parties have always shared an equal responsibility to coexist at this juncture, and will continue to benefit equally.”
— City of Moose Jaw's response to CPKC's submission to the Canadian Transportation Agency arbitration hearing

In the first few paragraphs of their response to CPKC’s submission to the Canadian Transportation Agency the City of Moose Jaw’s position is one of a shared existence,

The City - or at least a settlement - and CPKC have existed together since the first rails were laid.

Both have benefitted and shared from the beginning and the City thinks this logic should apply to the multi-million dollar rehabilitation/rereconstruction of the Fourth Avenue Bridge.

It is a view not shared by CPKC who see the financial ramifications of the proposed rehabilitation as 100 percent the City’s concern.

At best CPKC concedes that 15 percent of the costs should be borne by the Railway.

CPKC bases the majority of their view on the background and the original 1929 agreement to fund the bridge. It’s not a view shared by the City of Moose Jaw.

A position that if adopted by the on-going arbitration by the Canadian Transportation Agency (CTA) costing the City millions if not tens of millions of dollars.

Potentially putting the proposed upgrades and construction beyond the City’s economic means.

Costs are rising and the proposed project once estimated to cost about $12 million is said to have topped about $22 million if the scuttlebutt about it at City Hall is correct.

It a proposed project seemingly outside of the means for the City to afford given the other major infrastructure problems - most notably the $66 million needed to replace the Crescent View Lift Station.

However the City’s response to CPKC’s position is not entirely amicable.

The City characterizes CPKC’s position as “minimizing, and, at times, misrepresenting the scope and nature of the proposed work.”

The misrepresentation claim is put forward by the City in that “CPKC’s position patently ignores the inevitability of major reconstructive work.”

THE FOURTH AVENUE BRIDGE SHORTLY AFTER ITS OPENING - FROM THE MOOSE JAW CHAMBER OF COMMERCE’S COLLECTION

CPKC for their part point to the original 1929 agreement that the 50/50 share (up to $70,000) for building the Fourth Avenue Bridge was a one time deal.

The maintenance of the cement structure was and still is the City’s 100 percent responsibility.

A responsibility CPKC claims the City’s own report points out was not being funded and done properly causing the expensive rehabilitation work. For CPKC the poor shape forcing the reconstruction of the Fourth Avenue Bridge is the City not properly maintaining the structure as agreed to in 1929.

In their response, the City attempts to - in a round about way - to jump over the 1929 agreement - by stating the “time has come” for the Fourth Avenue Bridge and “it is time for a rebuild as was done in 1929.”

It needs to be remembered the existing concrete Fourth Avenue Bridge was largely built in 1929 but at the same time was a replacement for a 1911 wooden structure to save the City money on maintenance.

The City points out that CPKC owns all of the land under the Fourth Avenue Bridge - 15 tracks including two main line tracks. A single line is owned by CN Rail - pointed out by CPKC’s submission as sharing in any potential financial obligation.

The number of tracks and the 25 trains daily using CPKC’s main lines is used by the City to claim the bridge is “extremely important to CPKC’s operations.”

The City goes on to point out in the 1989 application to the National Transportation Agency (NTA) they had argued the work should be cost shared 50/50. CPKC had argued the NTA had no jurisdiction given the 1929 agreement, the City claims.

A main fact of the 1989 application was CPKC wanted the City to financially contribute to the restoration of the portion of the bridge the railway was responsible to maintain - the steel truss - but CPKC did not want to contribute to the rest of the work, the City claims.

The City points out the NTA decided the 1929 agreement is not binding, made no submission how to split costs in the 1989 application and the result was CPKC was ordered to pay at its own expense the steel truss, piers and abutments.

For the City there is a contrarian position by CPKC from the 1989 reconstruction when the Railway argued the then NTA (CTA today) had no jurisdiction to today when CPKC says the 1989 reconstruction decision is binding and nothing else can be considered.

The City’s position is one where they argue the CTA has jurisdiction to adjudicate the issue and the contract does not cover the entire situation today.

“Although the 1929 Agreement does govern the respective maintenance and repair obligations of the two parties for specific portions of the Viaduct, it does not cover the proposed work, which goes beyond “repair and maintenance”. In this way, the 1929 Agreement neither binds the City to bear the full costs of the proposed construction work…”
— City of Moose Jaw response to CPKC

For the City the 1910 and 1929 agreements provide context the proposed major repairs and upgrades be cost shared on a 50/50 basis.

The 1929 agreement is sited that the work proposed then was upgrades to the existing 1911 structure were seen as equally cost shared. The scope of the presently proposed work is of the same nature and thus should be a 50/50 cost sharing structure.

“The proposed work is tantamount to a rebuild and directly analogous to the work done in 1929. The City is proposing to effectively build new bridge structures that tie in, on the north and south ends, to the existing Steel Truss,” the City argues.

The City and CPKC await the Canadian Transportation Agency final decision. Meanwhile repair cost continue to increase last estimated at $22 million.

It’s an arbitration decision the City cannot afford to lose. If the City loses it may spell the eventual end of the structure.

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