Commuter rail operating agreement

The Operator shall procure all permits, certificates and licenses that can be obtained only in the Operator’s or Environmental Subcontractor’s name, to pay all charges, fees and taxes, and give all notices necessary or incidental to the obtaining and provision of such permits, certificates and licenses at the Operator’s sole expense.

The Operator shall cooperate with the MBTA in the procurement of any permits that must be obtained by either the MBTA or both the MBTA and the Operator, including without limitation, preparation of permit applications, and preparing responses to questions and comments on the permit applications.

All required permits will be transferred prior to the Agreement Services Commencement Date. The Operator shall be responsible for any and all costs associated with the transfer of permits.

The Operator shall submit to the MBTA for review and approval, a draft Emergency-Spill Response/Spill Prevention Control and Countermeasure (SPCC) Plan, including a chain of command for each applicable Service Property location not later than 60 days after NTP (ODRL 3.8-007). A final Emergency Spill Response/SPCC Plan for each facility shall be submitted by the Operator to the MBTA for approval not later than 90 days after NTP (ODRL 3.8-008). This plan shall be reviewed and updated (as needed) on an annual basis, or sooner if necessary, and provided to the MBTA by February 1st of each Agreement Year. Every five years the Emergency Spill Response/SPCC Plan shall be reviewed and updated (as needed) by a Professional Engineer.

Operator shall maintain all designated wildlife crossings in conformance with the Greenbush Wildlife Crossing Maintenance Plan. Operator shall regularly inspect and maintain the crossings to crossings to ensure the integrity of the barrier fence and fencing structures, each of the identified locations. Operator shall perform bi-annual inspections to ensure that the crossings are free of trash, materials, and debris which may inhibit the free movement of wildlife. Corrective actions, as a laid out in the Maintenance Plan, shall be implemented as necessary.

The Operator shall be responsible for all testing, monitoring, permitting and reporting related to air emission controls at the CRMF. The Final Approval and Facility Wide Emissions Cap approved by the Environmental Protection Agency (EPA) contains specific emission limitations, conditions, and requirements that must be met. It is the responsibility of the Operator to comply with all conditions included in the permit. The permit reference number is Application No. MBR-98-COM-002, Transmittal No. 122540.

As required by Section 11 (Fuel Purchasing) of Schedule 3.4 (Materials Management and Procurement) of this Agreement, the Operator must retain all fuel purchase receipts for both locomotive and heating fuel. The Operator must maintain fuel usage logs, which are to include total monthly fuel usage for all combustion units, and total CRMF fuel usage for the previous twelve (12) months. A monthly report must be submitted to the MBTA that includes a copy of all fuel usage logs and calculates the past 12 months of fuel usage (ODRL 3.8-009). All receipts and logs must be maintained on-site and available for inspection by any regulatory agency upon request.

The Operator must maintain logs for the CRMF that include total locomotive engine hours per month and total engine hours for the previous 12 months. Engine hours are to include the specific date and time that any locomotive is running within the CRMF, from the time it is started or enters to the time it is shut down, plugged in or exits the CRMF. The log is also to include the name and signature of the responsible foreperson. Engine hours must be calculated on a daily basis. Monthly run time reports must be submitted by the Operator to the MBTA. All logs must be maintained on-site and available for inspection by any regulatory agency upon request.

The Operator must prepare all required annual and periodic reports for the MBTA to submit to the EPA in accordance with the conditions of The Final Approval and Facility Wide Emissions Cap for the CRMF/Boston Engine Terminal (ODRL 3.8-010).

The Operator must follow locomotive idling regulations as set forth in 310 CMR 7.11(2) and the Consent Decree in Civil Action NO. 10-11311. In addition Operator is subject to the provisions of Section 11 (Fuel Purchasing) of Schedule 3.4 (Materials Management and Procurement) of this Agreement.

Any regulated waste or hazardous materials located on the Service Property produced or generated while delivering the Agreement Services shall be disposed of in accordance with all applicable environmental regulations.

The Operator shall review the current policy and procedures manual and guidelines for handling and managing hazardous waste and materials required for the Agreement Services within 30 days of NTP and provide a draft updated hazardous materials management plan within 60 days of NTP (ODRL 3.8-011). Said policies shall include but not be limited to, spill prevention and control, hazardous materials, medical waste handling, hazardous materials or waste generators (not limited in size) and wetlands protection. The policies shall be in compliance with all applicable local, state and federal environmental laws and regulations, applicable permits, and shall be coordinated with the policies of the MBTA, and shall be kept up-to-date at all times. The MBTA shall have the right to comment on the draft hazardous materials management plan, and the Operator must address any and all deficiencies noted by the MBTA and provide a final updated hazardous materials management plan within thirty (30) days of receipt of the MBTA’s comments (ODRL 3.8-012). A copy of the final hazardous materials management plan must be provided to the MBTA and a copy maintained by the Operator.

Disposal of any regulated materials such as paint, fluorescent light bulbs, railroad ties, drip pans, and batteries shall be through the services of a properly certified and licensed Hazardous Materials Disposal Operator and in compliance with all Applicable Law.

Disposal of defective or obsolete batteries shall begin within one week of removal from service and completed within sixty (60) days. Battery disposal and storage sites shall be in accordance with OSHA regulations.

Railroad tie disposal shall begin concurrently with any tie installation program and shall continue, without interruption, until complete.

The Operator shall take immediate actions to comply with all applicable local, state and federal laws and regulations and permit conditions concerning the release of any contaminant on or along the Service Property without regard to source.

The Operator and all subcontractors shall comply with all written policies maintained by the MBTA or applicable regulatory agencies pertaining to environmental compliance and/or response policies and procedures, including coordination with the MBTA, and/or their designated subcontractor(s) or representative(s).

Immediately upon receipt, copies of all waste management documentation, including manifests, bills-of-lading, weight slips, and receiving facility receipts shall be provided to the MBTA. Copies of all documentation shall also be maintained with the Operator’s files (ODRL 3.8-013).

Environmental Subcontractor

The Operator shall retain the services of an Environmental Subcontractor (the “Environmental Subcontractor”) to test, operate, maintain and service various environmental systems located throughout the service property as specified herein. The Environmental Specifications include Tank System Servicing, Oil/Water Separator System Servicing, Stormwater Inspections and Catch Basin Cleaning, Onsite Subsurface Disposal System Servicing, Boston Engine Terminal Wastewater Pretreatment Facility Operations and Maintenance, and Widett Circle Terminal Wastewater Treatment and Reuse Facility Operations and Maintenance. All work outlined herein shall be directly performed and coordinated by the Environmental Subcontractor unless otherwise approved in advance by the MBTA. All costs associated with Environmental Subcontractor shall be included in the Annual Fixed Price.

The Operator must review the current Environmental Services Work Plan within 30 days of NTP and provide a draft updated environmental services work plan within 60 days of NTP (ODRL 3.8-014). The plan shall include a schedule specifying when all work items in the Environmental Specifications will be performed. This schedule will be subject to MBTA approval, and cannot be changed without the consent of the MBTA. The MBTA shall have the right to comment on the Draft Environmental Services Work Plan, and the Operator must address any and all deficiencies noted by the MBTA and provide a final updated Environmental Services Work Plan within thirty (30) days of receipt of the MBTA’s comments (ODRL 3.8-015). A copy of the final Environmental Services Work Plan must be provided to the MBTA and a copy maintained by the Operator.

Environmental Subcontractor shall respond immediately in the event of uncontained releases of hazardous materials to assist in containment. Environmental Subcontractor shall also respond to emergency environmental services requests by the MBTA or the Operator.

Services provided by the Environmental Subcontractor shall include all labor, tools, equipment, materials, testing, and reporting associated with providing services described in the Environmental Specifications herein.

The Operator shall provide copies of all correspondence with local, state, and federal regulatory agencies regarding the environmental systems under the Environmental Specifications to the MBTA’s designated contact (ODRL 3.8-016).

The Operator shall notify the MBTA’s designated contact immediately to report any malfunctions observed during work conducted under the Environmental Specifications. The Operator shall provide written documentation to the MBTA’s designated contact providing detailed information regarding the malfunction within three business days.

Malfunctions of environmental equipment or systems, which can be rectified through minor repairs, must be repaired by the Operator in a timely manner so as not to result non-compliance of any permit or permit conditions.

If the Operator believes that the information concerning the Environmental Facilities provided herein is inconsistent with conditions in the field, the Operator shall report inconsistencies to the MBTA but any amendment to this Agreement will be entirely within the discretion of the MBTA.

Except as specified herein, no allowance will be made for any increased expenses, loss of expected reimbursement, or loss of anticipated profits suffered or claimed by the Operator resulting either directly or indirectly from increased or decreased quantities not identified by Operator prior to NTP. In cases where the MBTA requests Supplemental Work or which Supplemental Work is required, compensation will be governed by the terms of Schedule 9 (Supplemental Work) of this Agreement.

On or before the date(s) stated in the Environmental Services Work Plan or the MBTA approved completion date(s), the Environmental Subcontractor shall perform the work items specified in the plan.

In case a work item has not been substantially and physically completed by the date stipulated in the Environmental Services Work Plan or the MBTA approved completion date, the Operator shall pay to the MBTA any cost incurred by the MBTA due to the Operator’s failure to complete the work item on time, including fines and penalties issued for failure to comply with any permit condition.

Permitting the Environmental Subcontractor to complete any work item in whole or in part after the date(s) approved in the Environmental Services Work Plan or the MBTA approved completion date, shall not constitute a waiver on the part of the MBTA of any rights under this Agreement.

Neither acceptance, payment nor any provision in the Agreement nor partial or entire use of the, facilities, systems, equipment or reports by the MBTA shall constitute an acceptance of work not done in accordance with the Agreement or relieve the Operator or Environmental Subcontractor of liability with respect to any express warranties or responsibility for faulty materials or workmanship.

Except where longer periods of warranty are specified for certain items, the Environmental Subcontractor warrants that all work done under the Agreement relating to system repair and replacement of parts or equipment be free from faulty materials and workmanship for a period of one year from date of acceptance thereof.

Upon receiving notification from the MBTA, the Operator or the Environmental Subcontractor shall immediately make repairs or replacements to any work found defective. If repairs or replacements are not started within 10 days from the date of notification and continuously executed to completion, the MBTA reserves the right to employ others to complete the work item. The Operator agrees, upon demand, to reimburse the MBTA for all amounts which the MBTA expends for such repairs or replacements.

All remedied work shall carry the same warranty as the original work starting with the date of acceptable replacement or repair.

Spare Parts and Emergency Repairs

The Environmental Subcontractor must respond immediately upon becoming aware of a malfunction or to requests by the MBTA for emergency repairs. The Environmental Subcontractor must maintain spare parts lists and supplier contacts and complete repairs to environmental systems, and associated equipment and appurtenances within a 24 hour period whenever possible, or sooner if imminent hazard conditions are present. The Environmental Subcontractor shall maintain an up-to-date inventory of tools and parts recommended by the equipment manufacturers of the various environmental systems serviced under the Environmental Specifications. A copy of the inventory and spare parts and tools must be provided to the MBTA and maintained at each facility and/or at Operator’s local office or service facility (ODRL 3.8-017). The Environmental Subcontractor must use new parts to make repairs and/or replacements to the MBTA’s environmental systems.

The Environmental Subcontractor shall obtain all permits and licenses necessary to perform the work included herein The Environmental Subcontractor shall prepare and submit the necessary license and permit applications, and shall obtain licenses and permits to conduct this work.

The Environmental Subcontractor shall obtain all necessary permits, licenses, and/or certifications from federal, state, and/or local regulatory agencies required for the management, transportation, and disposal of hazardous and/or non-hazardous wastes generated by this work.

Environmental subcontractor shall maintain compliance with permit conditions including inspection, monitoring, and reporting requirements.

During execution of work included herein, the Environmental Subcontractor shall ensure that containers used for storage and transportation of waste materials meet applicable federal, state, and local requirements for labeling, storage, disposal, and transportation of waste materials.

The Environmental Subcontractor shall conduct any and all testing of waste materials to be transported and disposed off-site, if required, to determine proper and legal methods for transport and disposal in accordance with all applicable local, state, and federal regulations.

The Environmental Subcontractor shall prepare hazardous waste manifest forms completely and accurately on behalf of the facility generating the waste as required by federal, state, and/or local regulatory agencies for the transportation and disposal of hazardous wastes to be collected under these specifications. Manifests will be signed by the Operator. The Environmental Subcontractor shall provide the appropriate copy(ies) of the completed hazardous waste manifest to the facility supervisor and to the MBTA. In the event the MBTA approves the use of electronic recordkeeping with respect to this Section 1.5.9.5 (Waste Containerization, Characterization, Transport and Disposal) of this Schedule 3.8 (Environmental Services), records shall be maintained in the Commuter Rail IT Environment.

The Environmental Subcontractor shall transport waste materials in a manner that meets all federal, state, and local regulations including vehicles with appropriate markings, placards, and licenses.

The Environmental Subcontractor shall ensure that waste materials collected during conducting Agreement Services are disposed at a facility that is properly equipped and licensed by federal and state regulatory agencies to receive the materials collected.

The Operator shall develop and implement a Health and Safety Plan for all Operator Personnel or subcontractor personnel working with and or exposed to hazardous or other contaminated materials as part of their work (ODRL 3.8-018). A copy of the plan shall be submitted to the MBTA, within ninety (90) days of Notice to Proceed, as proof of completion of the plan. The Health and Safety Plan shall be prepared following the guidelines of the United States Department of Labor, Occupational Safety and Health Administration (OSHA) 29 CFR 1910. The Operator shall ensure that the work area is secured when work is not being performed and otherwise secured during the work to prevent inadvertent access to the work area by unauthorized and/or unqualified persons.

The Operator shall ensure that personnel executing Environmental Services are qualified to perform the services. Qualifications shall include, but not limited to, demonstrated experience servicing systems described herein.

All Operator and Environmental Subcontractor personnel who work on the Service Property executing Environmental Services must be trained in compliance with applicable regulations as required by OSHA, MassDEP, and EPA.

All Operator and Environmental Subcontractor personnel who work on the Service Property executing Environmental Services must be MBTA ROW (right of way) Safety Certified by completing the MBTA’s ROW Safety Awareness Certification Program.

All Operator and Environmental Subcontractor personnel who work on the Service Property executing Environmental Services must be certified as trained in Roadway Worker Protection Safety by completing the Operator Safety Awareness Certification Program.

All Operator and Environmental Subcontractor personnel executing Environmental Services who work on the Service Property where hazardous waste is present or likely to be encountered must have hazardous waste management training required by MassDEP regulations under 310 CMR 30.0000.

All Operator and Environmental Subcontractor personnel who work on the Service Property executing Environmental Services must be trained in compliance with OSHA regulations including but not limited to 40-Hour HAZWOPER, 24-Hour HAZWOPER, Right-to-Know, Lock Out/Tag Out, Confined Space Entry, and Personal Protective Equipment as applicable and as required by OSHA.

Pest Control

The Operator shall install and maintain, bird, rodent and pest control on or about the Service Property. Pigeons and other animals shall be controlled at stations and as directed by the MBTA at other Service Property locations that are maintained pursuant to this Agreement. The Operator shall retain the services of a certified Pest Control Subcontractor to perform this work.

STORMWATER INSPECTIONS AND CATCH BASIN CLEANING

Description of Services

This specification defines the conditions and requirements for conducting routine and emergency stormwater drainage area inspections, routine and emergency maintenance, and routine and emergency cleaning of catch basins on the service property. Environmental Subcontractor shall conduct inspections of stormwater drainage areas at facilities having NPDES MultiSector General Stormwater Discharge Permits, and furnish all labor, equipment, and materials necessary to clean out and dispose of excavated materials from catch basins at facilities described herein. Environmental Subcontractor shall conduct all work to fulfill, and comply with, all applicable local, state, and federal regulations, policies, ordinances, or guidelines applicable to this work.

Table ES1-1 (Parts A & B) summarizes the facilities where the work is to be performed and information on catch basins at each facility, as provided by the MBTA. Part A lists Commuter Rail Maintenance and Layover Facilities (Facility) and Part B lists Commuter Rail Stations (Station) where work is to be performed. The MBTA has determined that the average catch basin size is 30” in diameter with no catch basin larger than 36”, with an average basin volume of 500 gallons. There are currently 742 catch basins at 88 locations.

Table ES1-1 Facility/Station and Catch Basin Information