CONSTRUCTION SUPPORT INCLUDING PTC

CONSTRUCTION SUPPORT INCLUDING PTC

CAPITAL PROJECT SUPPORT

MBTA Capital Work

During the Term, the MBTA anticipates that a significant amount of design and construction work will be performed by Other Contractors on and adjacent to the Service Property (the “MBTA Capital Work”). The Operator shall furnish construction project support personnel and functions (“Construction Support”) for the MBTA Capital Work. Construction Support shall be funded wholly through the Capital Support Allowance as provided for in Schedule 7 (Payments) of this Agreement, or as Supplemental Work for amounts required in excess of the Capital Support Allowance. A list of currently anticipated projects is included in Appendix 1 to this Schedule 3.11 (Construction Support Including PTC). This project list and schedule is for guidance purposes only and is subject to change. Construction Support provided by the Operator will include some or all of the following functions:

Flag protection for Other Contractors’ employees and project equipment related to MBTA Capital Work.

Engineering reviews of plans and specifications submitted in connection with MBTA Capital Work.

Flag protection, service diversion planning and staffing, to address any situation that in any way may have the potential to disrupt service or create an unsafe condition and signal engineering support for all signal system modifications and for all cutovers and testing.

Perform signal cutovers and testing as needed to ensure proper operation, utilizing qualified signal personnel and signal engineering support for all signal, electrical, and communication system modifications and for all cutovers and testing.

Training of Operator Personnel, MBTA staff and Other Contractors’ employees as necessary to safely allow continued or expanded use of the Right of Way. This training includes but is not limited to: operating and physical characteristics for train and engineering personnel, dispatchers and maintenance of way forces. The training also includes transportation, coverage and back filling of positions and any other issues that need to be resolved so that employees are available to receive training.

Project management services to support MBTA Capital Work, including estimating and scheduling, including attendance at meetings as required by the MBTA.

Flag protection, service diversion planning and staffing and other support for MBTA Capital Work. The type of capital work that typically requires this support includes but is not limited to: refurbishment and/or replacement of moveable and fixed span bridges, track construction, electrical and signal cutovers, grade crossing installation, station construction, and other projects that may require or benefit from approved Service Disruptions.

Inspection and acceptance of work by Other Contractors.

Administration and payment of Construction Support not funded from the Capital Support Allowance shall be pursuant to Schedule 9 (Supplemental Work) of the Agreement.

The Operator shall include all anticipated MBTA Capital Work support and the resultant operational, engineering, flag protection and other support functions necessary to support such project work in the development of the Operator’s Annual Engineering Services Plan as provided for in Schedule 3.2 (Engineering Services) of this Agreement.

The Operator shall include a detailed Construction Support section in the Annual Engineering Services Plan that addresses staffing, material and all other Construction Support needs. The Annual Engineering Services Plan shall be submitted on the dates required by section 2.2.2 of Schedule 3.2 (Engineering Services) of this Agreement.

The Operator shall prepare and maintain records detailing the cost of Construction Support. The Operator shall inform the MBTA, in writing, immediately once the Operator has earned eighty percent (80%) expenditure level of the Capital Support Allowance.

Payment for Construction Support services shall be in accordance with Schedule 9 (Supplemental Work).

POSITIVE TRAIN CONTROL

General

The MBTA is committed to adhering to the requirements of 49 CFR 236 subpart I and will be installing a Positive Train Control (“PTC”) system to support the entire Commuter Rail System. The PTC system will be designed, built, installed and tested through an Agreement with a PTC System Design/Build Integrator (the “PTC DBI”).

The Operator shall coordinate and cooperate with the PTC DBI for the duration of this Agreement as directed by the MBTA.

PTC Coordination Agreement

The Operator and the PTC DBI shall enter into a coordination agreement (the “PTC Coordination Agreement”). This agreement is a requirement for both the Operator and the PTC DBI, the terms of which shall be subject to the written approval of the MBTA.

The PTC Coordination Agreement shall, at a minimum, define the obligations of the Operator and PTC DBI for the period of performance during which the PTC system is designed, built, installed and tested. The provisions of Sections 2.3 (PTC DBI Access to the Service Property) through 2.6 (PTC System Operation and Maintenance) of this Schedule 3.11 (Construction Support Including PTC) shall be included in the PTC Coordination Agreement.

PTC DBI Access to the Service Property

The Operator shall provide the PTC DBI complete access to the Service Property. This access shall include, but not be limited to all of the following:

Wayside signal equipment;

Wayside switches and switch machines;

Radio communications equipment;

Backhaul communications equipment;

Rolling stock;

Hi-rail access to all track;

Dispatch system equipment;

Technical documentation for signal equipment;

Technical documentation for rolling stock;

Technical documentation for dispatch system equipment; and

Technical documentation for communications equipment.

The Operator shall provide any access upon a schedule requested by the PTC DBI provided that such access that does not unreasonably interfere with the Agreement Services. Any access requested by the PTC DBI that is deemed to be unreasonable by the Operator may be over-ruled by the MBTA.

Roadway Worker Protection Training

In addition to its Roadway Worker Protection (“RWP”) training obligations provided by Schedule 3.10 (Training of Operator Personnel) of this Agreement, the Operator shall provide RWP training for the PTC DBI for up to 20 people per year. This training shall be provided at the commencement of the PTC DBI’s agreement with the MBTA.

PTC Installation and Testing

There are three options for installation and testing of the PTC system:

Option 1 – PTC DBI performs all PTC installation and testing.

Option 2 – The Operator performs all PTC installation and testing under the technical guidance of PTC DBI.

Option 3 – PTC DBI and the Operator divide installation work into work elements to be handled by each entity, all under the technical guidance of the PTC DBI.

The MBTA shall make a determination regarding the option to use for the installation and testing of the PTC system and whether any alternative arrangement provides a better course of action.

The Operator shall be prepared to support any of the options listed above. All of the work performed by the Operator as the result of the chosen option shall be performed as Supplemental Work pursuant to Schedule 9 (Supplemental Work) of this Agreement.

PTC System Operation and Maintenance

The requirements for operation and maintenance for the PTC system have yet to be defined. Once these requirements are known, the MBTA shall prepare a scope of work for this additional service that shall form the basis for a Service Change as set forth in Schedule 8 (Changes) of this Agreement.

MOBILIZATION SCOPE AND DURATION

Mobilization will begin when the Operator receives a Notice to Proceed from the MBTA. Mobilization will be from NTP to the Agreement Services Commencement Date and shall be no more than six months in duration.

During Mobilization the Operator shall prepare to transition all MBTA Commuter Rail Services operations and maintenance services and ensure that its employees are qualified and trained to assume their duties on the Agreement Services Commencement Date.

The Agreement Services Commencement Date is the date on which the Operator assumes full responsibility for all MBTA Commuter Rail Services.

The current operator shall continue to perform operations and maintenance during the Mobilization Period and perform all other Agreement Services in compliance with the current Agreement until the Operator is prepared to assume responsibility for Agreement Services, but no later than the Agreement Services Commencement Date.

The Operator shall prepare a Mobilization Plan (ODRL 3.12-001) that includes all the steps, activities, schedule and sequencing necessary for the Operator to assume all operations and maintenance services by the Agreement Services Commencement Date in a planned and orderly fashion. This Plan shall be the Mobilization Plan submitted to the MBTA as part of the Proposal and shall be submitted to the MBTA for final approval and acceptance as a condition to the issuance of the NTP, and the Parties shall negotiate in good faith to further memorialize the Mobilization Plan and the Parties' obligations during the Mobilization Period  in a separate agreement relating to mobilization and compensation during the Mobilization Period (the "Mobilization Agreement").

The Operator General Manager shall lead the Mobilization effort. Other Operator managers may be designated to assist the Mobilization effort in various functions defined by the Operator.

The Operator shall prepare and present a Mobilization organization structure as part of the Mobilization Plan (ODRL 3.12-002). Each function required to ensure the success of the Mobilization and Transition Plan will be defined in the organization structure and an individual shall be assigned to perform the duties of each position. All responsibilities and reporting relationships must be clearly defined. The MBTA will not approve any Plan that includes designations such as “TBD” in the organization structure unless arrangements are made with MBTA by the Operator in advance of the beginning of the Mobilization period.

All Mobilization services that rely on Third Party contractors must be identified and scheduled as part of the Mobilization Plan (ODRL 3.12-003). Responsibility for each third party operator must be assigned to an individual on the Operator’s Mobilization team. Each third party contractor must be identified by name, address and other pertinent information.

All Mobilization services that rely on the prior operator of the Commuter Rail Services or Third Party Contractors to be performed shall be identified and scheduled (ODRL 3.12-004). Responsibility for each of these activities must be assigned to an individual on the Operator’s Mobilization team. In addition, each Third Party Contractor must be indentified by name, address, activity performed, and other pertinent information.

The Operator shall be prepared to address all FRA requirements. All plans, programs, testing and documentation must be included in the Mobilization Plan and accompanying schedule.

All transactions between FRA and other regulatory agencies shall be the responsibility of the OGM. Specific duties may be delegated to Operator designees, but primary responsibility will remain with the OGM.

The Operator shall designate responsibility for each part of the FRA requirements to specific individuals who will be in charge of the completion and submission of each task and document. This will be included on the agenda for each Mobilization Status Meeting described in Section 2 (Weekly Status Meetings) of this Schedule 3.12 (Mobilization).

Each FRA and other regulatory agency deliverable must be compiled on a spreadsheet including title of document or task; associated rule number, if applicable; date required; the Operator employee responsible; FRA or other regulatory contact assigned responsibility; status; the Operator completion date; date forwarded to FRA or other regulatory agency; date of FRA or other regulatory agency approval and included in the Mobilization Plan (ODRL 3.12-005).

Deliverables required by each agency may be tracked on separate spreadsheets in order to simplify the management of deliverables.

The Operator must develop a list of all required environmental permits and a schedule for transferring those permits to the appropriate parties.

The Mobilization Plan must include provisions for completing any necessary training during Mobilization required in this Agreement, including but not limited to the requirements of Schedule 3.5 (Safety and Security) and Schedule 3.8 (Environmental Services) of this Agreement.

The Mobilization Plan must include a detailed schedule that identifies when each segment of Agreement Services are ready to be assumed by the Operator. (ODRL 3.12-006). The schedule must identify key milestone dates for deliverables and other critical events, tasks and other objectives. The schedule shall also include the critical path for achieving each milestone deliverable. The Plan shall show the assumptions of responsibilities as soon as practicable.

The Mobilization Plan must include a concise list of underlying assumptions that support each deliverable (ODRL 3.12-007). Every area of the Agreement Services must be considered and addressed in the Mobilization Plan. The MBTA will not approve a Plan that does not include all required elements of Agreement Services.

The Operator shall be responsible for completing the various work activities and submitting the designated ODRL items specified in other sections of this Agreement and compiled in Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE) of this Agreement, within the Mobilization period.

To effect a smooth transfer, Mobilization may require the Operator’s managers and other employees to “shadow” the current operator’s managers and employees performing their duties. The Operator shall identify all anticipated overlapping roles in the Mobilization Plan and describe how this transition will be accomplished with minimum disruption to Commuter Rail Services (ODRL 3.12-008).

WEEKLY STATUS MEETINGS

During Mobilization, the Operator will schedule weekly meetings, at a minimum, with the MBTA in order to review the progress of Mobilization and discuss any problems or anticipated problems. The Operator shall submit a meeting schedule that covers the duration of the Mobilization period no later than NTP. These meetings will also review Operator’s progress with respect to the requirements of Section 2 (Hiring of Existing Workforce) of Schedule 3.9 (Management and Personnel) of this Agreement. (ODRL 3.12-009)

The Operator shall be prepared to report on the development status of each plan, schedule, program, system, guideline, manual, and form required under the terms of the Agreement and in accordance with the ODRL schedule.

The OGM will be in attendance at each of these meetings along with his or her designees in order to ensure that all areas of concern are discussed.

Operator submittals (ODRLs) will be reviewed and approved by the MBTA during Mobilization. The status of this process will be discussed at each of these meeting and concerns addressed.

If the MBTA requires changes to a plan, schedule, program, system, guideline, manual, or form – whether in format or content – the Operator shall revise and re-submit it for the MBTA’s review and approval within the timeframe established by the MBTA in the Agreement.

DOCUMENTATION

An Operator Deliverable Requirements List (ODRL) is provided at the end of each Schedule within Schedule Three (Agreement Services) of this Agreement. Many of these ODRLs are documents and document templates for use during the term of the Agreement.

The Operator shall prepare a spreadsheet listing each of these documents and document templates, their due dates and frequency of submittal. The Operator shall also include the person responsible for ensuring timely delivery of each document to the MBTA for review and approval. The spreadsheet shall include all documents used to enable data entry into the Commuter Rail IT Environment (ODRL 3.12-010). This spreadsheet shall be delivered to the MBTA for final review and approval no later than NTP.

This report shall be part of the agenda of the Weekly Status Meetings described in Section 2 (Weekly Status Meetings) of this Schedule 3.12 (Mobilization). The Operator shall cite the ODRL number of each document and document template and due date.

Where there is overlap between the items on this spreadsheet and the items on the FRA and other regulatory agencies’ spreadsheets, those items shall be tracked on the FRA and other regulatory agencies spreadsheets and referenced in this report.

All documents shall comply with FRA, FTA and other agency reporting requirements and use compatible coding, formats and definitions. The Operator may consider using an electronic format for some of these documents providing all other requirements are met, subject to MBTA approval.

SERVICE READINESS

The Operator must prepare and submit a Draft of the following: Operating Rule book, Employee Timetable and Special Instructions, and Train Dispatcher’s Manual, Air Brake & Train Handling Instructions, Door & Trap Procedures, Customer Service Manual, Road Foreman Notices, Fare Collection & Remittance Manual, Commuter Rail Tariff and Transportation Safety Instructions in compliance with Section 10 (Employee Timetable, Operating Rule Book & Train Dispatcher's Manual) of Schedule 3.1 (Transportation Services) of this Agreement.

The Operator’s maintenance and operating plans must support continuous service, free of disruption, during mobilization and transition. All essential contracts for services related to service delivery, critical component supply (new parts; repair & return or rebuilt parts and assemblies) must be renewed or replaced by the Operator.

EMPLOYMENT

The Operator shall fill all Workforce Positions in compliance with the requirements of Schedule 3.9 (Management and Personnel) of this Agreement, including the provision of weekly written reports to the MBTA, updating its status of the hiring process. This shall be an agenda item at the Weekly Status Meeting described in Section 2 (Weekly Status Meetings) of this Schedule 3.12 (Mobilization).

The Operator shall submit to the MBTA a list of positions that the Operator defines as “Safety Sensitive” as provided for in Section 13 (Safety Sensitive Positions) of Schedule 3.5 (Safety and Security) of this Agreement. (ODRL 3.12-011). This list shall include all subcontractor employees in “Safety Sensitive” positions. This list shall be furnished prior to the commencement of the Mobilization and Transition period, but in no case later than NTP. All employees holding positions listed shall be subject to the Operator’s Drug & Alcohol Policy.

MATERIAL MANAGEMENT

Pursuant to Section 5 (Physical Inventory and Audit) of Schedule 3.4 (Materials Management and Procurement) of this Agreement, Operator and the MBTA will participate in an initial physical count of all Support Inventory and an Audit of all Support Property no later than ten (10) days prior to the Agreement Services Commencement Date.

OPERATOR’S COSTS FOR MOBILIZATION SERVICES

The Operator shall include an itemized price estimate for all Mobilization Services tasks with the Mobilization Plan submitted with its Proposal. The Parties, following execution of the Agreement, shall negotiate the scope and costs set forth in the estimate, as well as a price cap establishing a maximum amount of compensation payable to the Operator for Mobilization Services, which shall not be exceeded except with the written consent of the MBTA. Payment of Operator invoices during the Mobilization period shall be contingent upon the Operator having submitted to the MBTA all deliverables set forth in Section 8 (Operator Deliverable Requirements List) of this Schedule 3.12 (Mobilization).

Unless otherwise agreed upon by the Parties in the Mobilization Agreement, the Operator shall invoice the MBTA each month during the Mobilization Period for Mobilization Services satisfactorily performed and for which the MBTA is responsible for paying (each, a "Mobilization Invoice").  Each Mobilization Invoice shall include information and backup sufficient to allow the MBTA to identify the listed charges and, upon request, the Operator shall provide the MBTA with additional supporting material for each Mobilization Invoice.  The MBTA shall make payment to the Operator within forty-five (45) days of the MBTA's receipt of each Mobilization Invoice.

OPERATOR DELIVERABLE REQUIREMENTS LIST

AFFIRMATIVE ACTION/EQUAL OPPORTUNITY/DBE

DIVERSITY REQUIREMENTS

The Diversity Requirements of the Agreement are comprised of two separate elements: Disadvantaged Business Enterprise (DBE) Requirements; and Affirmative Action, Equal Employment, and Nondiscrimination Requirements.

DBE OVERVIEW

It is the policy of the MBTA and the United States Department of Transportation (“DOT”) that Disadvantaged Business Enterprises (“DBEs”), as defined herein and in the federal regulations published at 49 CFR Part 26, shall have an equal opportunity to participate in DOT-assisted agreements. It is also the policy of the MBTA to:

Ensure nondiscrimination in the award and administration of DOT-assisted agreements;

Create a level playing field on which DBEs can compete fairly for DOT-assisted agreements;

Ensure that the DBE program is narrowly tailored in accordance with applicable law;

Ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs;

Help remove barriers to the participation of DBEs in DOT assisted agreements; and

Assist in the development of firms that can compete successfully in the marketplace outside the DBE program.

This Agreement is subject to 49 CFR Part 26. Therefore, the Operator is required to meet the requirements of 49 CFR Part 26 for DBE participation as set forth herein. These requirements are in addition to all other equal opportunity employment requirements of this Agreement.

DBE REQUIRED SUBMISSIONS THAT ARE INCORPORATED INTO THE AGREEMENT

The Operator is required to submit the following information:

A completed DBE Plan, attached as Attachment “A” to this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE), that meets the requirements of and ensures overall compliance with 49 CFR Part 26;

A completed DBE Utilization Certificate (in the form attached as Attachment “B” to this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE));

A completed DBE Participation Schedule (in the form attached as Attachment “C” to this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE)) listing those certified DBEs with which the Operator intends to contract for the performance of portions of the work under the Agreement during the initial three year period based on the Operator’s estimate of cost projections for years one through three of the Agreement (subsequent years will be submitted on an annual basis after year one and thereafter for the life of the Agreement). The completed DBE Participation Schedule must include:

The agreed price to be paid to each DBE for its work;

Identifying in detail the Agreement items or parts to be performed by each DBE, including a proposed timetable for the performance or delivery of the Agreement item(s);

Providing other information as required by the DBE Participation Schedule form;

A completed original DBE Letter of Intent (in the form attached as Attachment “D” to this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE)) signed by each DBE listed in the DBE Participation Schedule;

A copy of the most recent certification letter or document of each DBE listed in the DBE Participation Schedule; and

An original DBE Affidavit (in the form attached as Attachment “E” to this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE)) executed by each DBE listed in the DBE Participation Schedule stating that there has not been any change in its DBE status since the date of its last certification; and

A Certificate of Payment to DBEs to be completed and submitted monthly (in the form attached as Attachment “F” to this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE)).

MONITORING OF CONTINUED COMPLIANCE

The MBTA shall monitor the Operator’s DBE compliance during the life of the Agreement. It will be the responsibility of the Operator to submit monthly written reports to the MBTA that summarize the total expenditure through DBE firms under this Agreement. These reports shall provide the following details:

DBE utilization goal established for the Agreement and level of expenditure relative for that goal, expressed as a percentage for the month;

Total value of expenditures with DBE firms for the month; and

Total value of expenditures with DBE firms from inception of the Agreement.

Reports and other correspondence must be submitted to the DBE Liaison Officer with copies provided to the Senior Director and the Chief Procurement Officer. Reports shall continue to be submitted monthly until final payment is issued or until DBE participation is completed.

The Operator shall maintain:

All data/records pertaining to DBEs as stated in Schedule 3.14 (Reporting and Submittals).

All data/records pertaining to non-DBE subcontracting and purchasing as required and reported to MBTA on a monthly basis.

The Operator shall permit:

The MBTA to have access to necessary records to examine information as the MBTA deems appropriate for the purpose of investigating and determining compliance with this provision, including, but not limited to, records of expenditures, invoices, and agreements between the Operator and DBE parties entered into during the life of the Agreement.

The authorized representatives of the MBTA, the U.S. Department of Transportation, the Comptroller General of the United States, to inspect and audit all data and records of the Operator relating to its performance under the Disadvantaged Business Enterprise participation provisions of this Agreement.

Counting DBE Participation – Participation will be counted toward fulfillment of the DBE goal as follows:

When a DBE participates in a Agreement, the Operator counts only the value of the work actually performed by the DBE towards DBE goals.

The DBE participation counted toward the DBE goal shall be as provided in the federal regulations (49 CFR Part 26) including 49 C.F.R. Section 26.55.

TERMINATION OR SUBSTITUTION OF DBE SUBCONTRACTOR

The Operator shall not terminate the DBE subcontractor(s) listed in the DBE Participation Schedule or an approved substitute DBE firm and then perform the work of the terminated DBE subcontractor with its own forces or an affiliate without first complying with the federal regulations (49 CFR Part 26), including 49 CFR Section 26.53(f) and without the MBTA’s prior written consent. When a DBE subcontractor is terminated for good cause after written consent of MBTA or fails to complete its work on the Agreement for any reason, the Operator shall comply with 49 CFR Section 26.53 and make good faith efforts to find another DBE subcontractor to substitute for the original DBE and immediately notify the MBTA in writing of its efforts to replace the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the Agreement as the DBE that was terminated, to the extent needed to meet the Agreement DBE participation goal established for this Agreement.

Good cause to terminate a DBE subcontractor, as provided in 49 CFR Part 26.53(f), includes the following circumstances:

The listed DBE subcontractor fails or refuses to execute a written contract;

The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the Operator;

The listed DBE subcontractor fails or refuses to meet the Operator's reasonable, nondiscriminatory bond requirements.

The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;

The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant 2 CFR Parts 180, 215 and 1,200 or applicable state law;

The MBTA has determined that the listed DBE subcontractor is not a responsible contractor;

The listed DBE subcontractor voluntarily withdraws from the project and provides to the MBTA written notice of its withdrawal;

The listed DBE is ineligible to receive DBE credit for the type of work required;

A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the contract;

Other documented good cause that the MBTA determines compels the termination of the DBE subcontractor. Provided, that good cause does not exist if the Operator seeks to terminate a DBE it relied upon to obtain the Contract so that the Operator can self-perform the work for which the DBE contractor was engaged or so that the Operator can substitute another DBE or non-DBE contractor after contract award.

Before transmitting to the MBTA its request to terminate and/or substitute a DBE subcontractor, the Operator must give notice in writing to the DBE subcontractor, with a copy to the MBTA, of its intent to request to terminate and/or substitute, and the reason for the request.

The Operator must give the DBE subcontractor five days to respond to the Operator’s notice and advise the MBTA and the Operator of the reasons, if any, why the DBE subcontractor objects to the proposed termination of its subcontract and why the MBTA should not approve the Operator's action. If required in a particular case as a matter of public necessity (e.g., safety), the MBTA may provide a response period shorter than five days.

OPERATOR’S ASSURANCE TO IMPLEMENT 49 CFR PART 26

The Operator or any subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Operator shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted agreements. Failure by the Operator to carry out these requirements is a material breach of the Agreement, which may result in the termination of this Agreement or such other remedy as the MBTA deems appropriate. The Operator shall cooperate with the MBTA in implementing the obligations concerning the DBE requirements. The Operator shall also cooperate with the MBTA and the FTA in reviewing the Operator’s activities relating to implementing 49 CFR Part 26.

In each subcontract it awards under this Agreement, the Operator shall include the following

“The Subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Subcontract. The Subcontractor shall carry out applicable requirements of 49 CFR Part 26 in the award of contracts under this Subcontract. Failure by the Subcontractor to carry out these requirements is a material breach of this Subcontract, which may result in the termination of this Subcontract or such other remedy as the Operator or MBTA shall deem appropriate.”

PROMPT PAYMENT

The Operator agrees to pay subcontractors within ten calendar days of the receipt of all invoices unless there exists a genuine dispute as to the amount owed. In the event of a genuine dispute as to the amount owed to a subcontractor for any services or materials provided, only payment of the disputed portions may be delayed, while payment for any undisputed amounts owed must nevertheless be submitted within ten calendar days. The subcontractors’ acceptance of such partial payment shall not in any way waive, excuse, or bar the right to any additional amount owed under the disputed invoice. The Operator shall not postpone or delay any undisputed payments owed subcontractors without good cause and without prior written consent of the MBTA. The Operator agrees to include in all subcontracts a provision requiring the Operator’s compliance with the terms of this Section 7 (Prompt Payment) of this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE) and a provision requiring the use of appropriate alternative dispute resolution mechanisms to resolve payment disputes.

SANCTIONS FOR VIOLATIONS

If at any time the MBTA has reason to believe that the Operator is in violation of its DBE obligations under the federal regulations (49 CFR Part 26), the Agreement, and /or this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE) or has otherwise failed to comply with terms of the federal regulations (49 CFR Part 26), the Agreement, and/or this Schedule 3.13 (Affirmative Action/Equal Opportunity/DBE), the MBTA may, in addition to pursuing any other available legal remedy, commence proceedings, which may include but are not limited to, the following:

Suspension of any payment or part due the Operator until such time as the issues concerning the Operator’s compliance are resolved;

Suspension, termination or cancellation of the Agreement, in whole or in part, unless the Operator is able to demonstrate within a reasonable time that it is in compliance with the DBE terms stated herein.

Condition continuation of the Agreement, in whole or in part, upon a program for future compliance and corrective actions approved by the MBTA;

Debarment of the Operator from entering into any future contracts with the MBTA.

Any other remedies allowed for breach of an agreement as provided in this Contract or the federal regulations (49 CFR Part 26).

AFFIRMATIVE ACTION, EQUAL OPPORTUNITY, AND NONDISCRIMINATION:

The following affirmative action, equal employment opportunity and nondiscrimination requirements apply to this Agreement:

Affirmative Action, Equal Opportunity and Workplace Environment. In connection with the execution of the Agreement, the Operator shall not discriminate against any employee because of race, religion, color, sex, national origin, disability, or sexual orientation. The Operator shall take affirmative action to ensure that applicants are employed, and that employees are treated during their employment without regard to their race, religion, color, sex, national origin, disability, or sexual orientation. Such actions shall include, but are not limited to: employment, upgrading, demotion or transfer, recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

Dignity in the Workplace. The Operators and its employees shall comply with the MBTA Dignity in the Workplace requirement. The Operator’s employees who violate this policy are to be removed from the MBTA Agreement and are not to be employed on another MBTA Agreement.

MBTA Dignity in the Workplace Policy. In accordance with governing statutes, regulations, and collective bargaining agreements, and consistent with its existing policies, the MBTA demands of itself and its employees that all work and work-related activities be conducted with complete respect for the dignity of all employees. In practice, this means that no action, inaction or language which would offend a reasonable employee or which any reasonable employee deems unwelcome will be tolerated. All personnel decisions will be based solely on objective consideration of relevant articulated factors. No personnel decision will directly or indirectly be based on consideration of an employee's age, race, sex, religion, creed, color, sexual orientation, national origin, disability/handicap, ancestry or Vietnam era veterans status.

These prohibitions on harassment and impermissible discrimination are absolute.

49 U.S.C. § 5332 (Nondiscrimination in Federal Public Transportation Programs);

Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d et seq., and with USDOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act”, 49 CFR Part 21;

The Operator shall comply with all applicable requirements under Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d et seq., with the Title VI Program of the MBTA, and with all applicable FTA Circulars (including FTA Circular 4702.1B) and federal regulations (including 49 C.F.R. Part 21) implementing Title VI, including general requirements of Title VI as follows:

Public participation plan including public outreach efforts and involvement activities to ensure meaningful access to activities;

Procedures for tracking and investigating Title VI complaints;

List of public transportation-related Title VI investigations, complaints and lawsuits;

Language assistance programs (for providing language assistance to persons with limited English proficiency);

Title VI notices to the public and instructions to the public regarding how to file a Title VI complaint (notifying public of their rights afforded to them by Title VI); and

Environmental Justice analysis.

The Age Discrimination Act of 1975, as amended, 42 U.S.C. §§ 6101 et seq., and any U.S. Health and Human Services implementing regulations, "Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance", 45 CFR Part 90;

The Age Discrimination in Employment Act, 29 U.S.C. §§ 621 through 634 and any U.S. Equal Employment Opportunity Commission implementing regulations, “Age Discrimination in Employment Act”, 29 CFR Part 1625;

All equal employment opportunity provisions of 49 U.S.C. § 5332, with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and federal implementing regulations and any subsequent amendments thereto, except to the extent FTA determines otherwise in writing, and any applicable federal equal employment opportunity directives that may be issued from time to time; and

All applicable equal employment opportunity requirements of U.S. Department of Labor regulations, “Office of Federal Agreement Compliance Programs, Equal Employment Opportunity, Department of Labor”, 41 CFR Parts 60 et seq., which implement Executive Order No. 11246, “Equal Employment Opportunity”, as amended by Executive Order No. 11375, “Amending Executive Order No. 11246 Relating to Equal Employment Opportunity”, 42 U.S.C. § 2000e, and also with any federal laws, regulations, and directives that may in the future affect the operations and maintenance under this Agreement.

In addition, the Operator agrees to comply with any implementing requirements FTA may issue with respect to the above referenced laws, statutes, regulations, and executive orders.

In connection with the performance of this Agreement, the Operator will cooperate with MBTA in meeting its commitments and goals with regard ensuring opportunities for creating a level playing field on which DBEs can compete fairly for U.S. Department of Transportation assisted agreements. The Operator shall complete and submit this DBE Utilization Certificate with its proposal and as part of the Agreement.

1.1 What percentage and dollar value of the Agreement will be performed or supplied by certified DBEs? TOTAL DBE UTILIZATION: % = $

NOTE: For each DBE supplying or performing a percentage of the Agreement amount, you must complete the attached DBE Participation Schedule.

1.2 If the Operator has not met the goal as specified above, the Operator shall attach documentation detailing its good faith efforts to meet the goals and justifying why the goal was not met.

I hereby certify that the above information is true and accurate to the best of my knowledge:

NAME:

AUTHORIZED SIGNATURE:

TITLE:

DATE:

ATTACHMENT “C”

DBE PARTICIPATION SCHEDULE

The Operator shall complete the following information for each DBE for which a percentage is given in the attached DBE Utilization Certificate. Also, please furnish the name and telephone number of the appropriate contact person should MBTA have any questions in relation to the information furnished herein.

(Use additional sheet of paper, if necessary.)

Prime Company Name:

Name of Contact Person:

Telephone Number:

ATTACHMENT “D”

DBE LETTER OF INTENT (TO BE COMPLETED BY DBE FIRM)

The undersigned intends to provide goods and services in connection with the above-referenced RFP as a subcontractor or supplier for (Proposer).

The Disadvantaged Business status of the undersigned is confirmed by the attached certification.

Description and type of work to be performed or material to be supplied by DBE firm:

The Proposer is committed to utilizing the below named DBE firm for the work described above. The estimated dollar value of this work is $ .

Name of Disadvantaged Business Enterprise:

The above work will not be sublet to a non-disadvantaged business enterprise at any tier. The undersigned will enter into a formal contract for the above work with the Proposer conditioned upon the Proposer’s award and execution of a Contract with the MBTA.

Affirmation

The above-named DBE firm affirms that it will perform the portion of the Contract for the estimated dollar value as stated above.

Date: By:

Name

Title

STATE OF ________________________ Date: __________________________

COUNTY OF _______________________

The undersigned being duly sworn, deposes and says that he/she is the

(sole owner, partner, president, treasurer or other duly authorized official of a corporation)

of

(Name of DBE)

(Federal ID number)

and certifies that since the date of its certification by the Massachusetts Supplier Diversity Office

(SDO, formerly known as SOMWBA), the certification has not been revoked nor has it expired nor has there been any change in the socially or economically disadvantaged owner’s status or the minority status of

(Name of DBE)

(Signature and Title of Person Making Affidavit)

Sworn to before me this _______ day of ________________, 20____.

Notary Public

My commission expires:

NOTE: The Operator must attach the DBEs most recent certification letter or document to this affidavit.

Compliance Office Contract Date: _________________________

Ten Park Plaza, 6th

Boston, MA 02116

Contract Name____________________________________

The undersigned hereby certifies under penalty of perjury that the Operator has made the following payments to the named DBE for work performed on the above Agreement:

	DBE Firm Name	Work Performed	Subcontract Amount	Payment this Month	Cumulative Payments
			$	$	$
			$	$	$
			$	$	$
			$	$	$
			$	$	$
			$	$	$
			$	$	$
			$	$	$
			$	$	$
			$	$	$

Authorized Signature _______________________________ Date _______________________

Print Name and Title _________________________________________________________

Telephone No. __________________________________

∗ DBE payment reports are required for each month of the fiscal year for the MBTA Contract.

NOTICE: Intentionally submitting false information in this document may subject the Operator to criminal prosecution and/or debarment from public contracting

INCIDENT MANAGEMENT AND NOTIFICATIONS

In the event of an incident that results in delays or disruptions to the Commuter Rail Services, the Operator shall follow those procedures described in Schedule 3.1 (Transportation Services) and Schedule 3.5 (Safety and Security).

REPORTING AND RECORDKEEPING REQUIREMENTS

General

The Operator shall keep, store, and maintain full and accurate Records relating to all aspects of the Services.