Commuter rail operating agreement

Levels of maintenance shall be performed per all MBTA standards and requirements unless governed by other special conditions as defined by MBTA (such as, but not limited to, MBTA maintenance contracts with outside vendors, warranties, lease or rental agreements, and programmed maintenance). The Operator shall not relieve any Third Party with which it contracts of the obligation to conform to these standards.

Levels of maintenance to the Service Property and Support Property shall be performed per the manufacturer's recommendations and instructions to the extent that they exist or unless otherwise directed herein.

All Service Property and Support Property and associated systems shall be maintained by the Operator in accordance with all applicable local, State, and federal codes, laws and regulations. Maintenance of the MBTA’s Service Property also shall be sensitive to the historical nature of the Service Property.

Notwithstanding section 3.1 of this Schedule 3.2 (Engineering Services), the MBTA reserves the right, at its discretion, to use contracted cleaning services at any of the Service Property locations, and to effect a Service Change to reflect this decision.

GENERAL RESPONSIBILITIES

The Operator shall provide cleaning services at all buildings, facilities, and stations, including without limitation rubbish removal, sand removal, and vandalism-related repairs.

MBTA does not allow dumping or stockpiling of debris and spoils on its property. The Operator shall secure and use legal disposal locations to ensure the Service Property is kept clean.

The Operator shall remove all trash and debris immediately, and in no event longer than 24 hours after discovering same or receiving notice from the MBTA of the existence of same. In the event that the Operator fails to remove such trash or debris following written notice by the MBTA of the continued existence of the condition, the MBTA shall have the right to take corrective measures at the Operator’s expense.

The Operator shall not apply decals, bumper stickers, or other materials not related to the Agreement Services to any surface on the Commuter Rail Property, including non-revenue vehicles and work equipment. The Operator shall remove all such materials immediately upon discovery or notification.

Graffiti shall be removed expeditiously, and in no event longer than 24 hours after receipt of a report of graffiti at any location on the Service Property. The removal of graffiti shall be prioritized by the MBTA but in every case graffiti containing ethnic, racial, obscene or otherwise offensive content shall be removed immediately upon notification or discovery. In stations or highly visible locations, graffiti can be temporarily covered until the entire surface can be repainted as weather permits.

The Operator shall operate and maintain, repair or replace all Service Property exhaust ventilation systems, dampers, air curtains, equipment and components except where those assets are maintained by MBTA staff, e.g. Back Bay Station.

The Operator shall maintain all HVAC systems and purchase heating fuels and other utilities at all Service Property locations, including without limitation, stations, unless MBTA directs otherwise.

The Operator shall take necessary measures (e.g. maintaining basic maintenance tasks, periodic inspection, maintaining low levels of heat in cold weather) to stabilize unused Service Property (such as station buildings awaiting a lease) in order to prevent further damage or deterioration.

All MBTA supplied machinery, equipment, buildings and facilities used by the Operator shall be kept clean and maintained, repaired or replaced so as to be kept in a Good Working Condition. Pursuant to Section 2.3 (Capital and Productivity Improvement) of this Schedule 3.2 (Engineering Services), the Operator shall identify for the MBTA any of the foregoing assets which the Operator believes are beyond their useful lives.

Automobiles and trucks shall be maintained in a State of Good Repair and washed inside and outside monthly by private local businesses licensed and permitted for such activity.

All maintenance of way reporting locations, tool houses, and shop facilities, including buildings, equipment, utilities, sanding facilities, fueling facilities and train storage areas, shall be kept clean and in a Good Working Condition. New or reconstructed shop facilities shall be maintained to the level received. All maintenance of way reporting locations shall receive a large scale, intensive cleaning, utilizing all available personnel between April 1 and May 1 of each Agreement Year.

All driveways, roadways and access ways shall be kept clean and maintained in a Good Working Condition.

Facility floors, work areas, windows, platforms, and pits shall be kept, clean and free of accumulations of dirt, grease and other contaminants. Walkways and service aisles shall be maintained free of parts and debris.

Oil, engine coolant and any other waste or hazardous material effluence shall be captured, labeled and disposed of by the Operator in accordance with environmental regulations.

TRACK

Inspection

At a minimum, the Operator shall perform the following inspections in accordance with the following:

FRA mandated track and right of way inspections (ODRL 3.2-006) at the required frequency.

Supervisory track and right of way inspections (ODRL 3.2-007) shall be performed monthly.

System-wide Service Property inspections (ODRL 3.2-110) by the Operator’s management by train shall be performed once every week.

Track geometry car inspection (ODRL 3.2-008) shall be performed once every three months.

Grade crossing inspections (ODRL 3.2-009) shall be performed annually.

Special inspection of track and right of way during and immediately after severe weather conditions. The Operator shall promptly submit a report of observed conditions that could affect track and railroad operations and identify corrective actions required (ODRL 3.2-010).

Walking turnout inspection (ODRL 3.2-011) shall be performed monthly.

Switch inspections shall be performed monthly (ODRL 3.2-012) with representatives of both track and signal departments, commonly referred to as joint switch inspections.

The results of all inspections shall be recorded on the prescribed form, including digital photographs as appropriate, and signed by inspector(s) and submitted to the appropriate agency(s) with a summary report of all inspections submitted monthly to the MBTA (ODRL 3.2-013). The Commuter Rail IT Environment regarding these inspections shall be updated to reflect the fact that the inspections occurred and detail any conditions found during the inspections.

Rail

The Operator shall conduct ultrasonic testing (Sperry Rail Services or equivalent) once annually in rail yards, but not allowing less than 10 months and not more than 14 months between tests.

The Operator shall ultrasonically test main line replacement rail before installation.

The Operator shall perform additional tests if, in the opinion of any of the MBTA, the Operator, or a regulatory agency having competent jurisdiction, conditions warrant additional testing.

The Operator shall address all defects identified during ultrasonic testing in accordance with the latest FRA and MW-1 requirements, but in no case shall the Operator allow a temporary repair to a defect revealed during ultrasonic testing to remain in track longer than 10 days.

The Operator shall submit a report detailing results of rail testing and corrective actions made (ODRL 3.2-014). The Operator shall submit such reports within two weeks of testing and corrective measures employed.

The Operator shall develop a rail grinding program in the amount of $500,000 per Agreement Year (ODRL 3.2-015), to prevent the need for premature replacement of the rail or where otherwise required to mitigate hazardous conditions that may jeopardize the safety of train operations. In lieu of rail grinding, and with prior MBTA approval, the Operator may propose limited rail replacement up to $500,000 per Agreement Year. This rail grinding program shall indicate the approximate location and schedule of the rail grinding (or rail replacement) and shall be submitted to the MBTA for approval as part of the annual Engineering Services Plan. The Operator shall avoid performing rail grinding during the drier months (i.e. typically July, August & September) of the year.

The Operator shall purchase, weld, and position five track miles of CWR, including OTM, in the first six months of each Agreement Year and shall install such CWR, including OTM, each Agreement Year. A rail replacement plan (ODRL 3.2-016) indicating the approximate location of the new rail shall be developed by the Operator and submitted to the MBTA for approval as part of the annual Engineering Services Plan.

The Operator shall keep replacement rails neatly stacked in accordance with AREMA standards. The Operator shall only stack replacement rails at MBTA approved locations. The Operator shall include proposed rail storage locations as part of the rail replacement plan.

The Operator shall provide inspection and maintenance services for all aspects of the rail in order to maintain the Service Property in a Good Working Condition. The Operator shall provide these services to achieve the performance standard described in Section 2.9 (Performance Standard) of this Schedule 3.2 (Engineering Services).

For those sections of track designated with an “S” in the Asset Register, the Operator shall perform safety and security functions on an as-needed basis, but not less than annually, with periodic inspections as directed by the MBTA or as required by severe weather conditions or other similar circumstances, or in the event that the Operator becomes aware of a situation or condition necessitating such inspection. The cost of such inspections is included in the Annual Fee. On these track segments, the Operator shall also repair any defects found or perform remediation work as directed by the MBTA. The cost of such repairs or remediation shall be reimbursed as Supplemental Work.

Ties and Timber

All crossties shall be replaced as required for the designated maintenance class. A minimum of 40,000 new crossties shall be installed by the Operator during each Agreement Year. The MBTA shall provide a tie program for the first six months of the first Agreement Year. The Operator shall develop a tie replacement plan for the remainder of the Term (ODRL 3.2-017) indicating the approximate location of the new ties. The plan shall be submitted to the MBTA for approval as part of the annual Engineering Services Plan.

Upon initiation of tie program work, the Operator shall work continuously without interruption until the tie program work is complete. Tie disposal shall begin concurrently with tie installation and shall continue without interruption until complete.

The Operator shall purchase and install an additional 10,000 ties per Agreement Year as directed by the MBTA for spot replacement due to track conditions.

Tie replacement incidental to other work including, but not limited to grade crossing replacement, switch panel replacement, joint ties on side tracks to the property line, and wreck repair, shall be included in the Annual Fee and are in addition to the tie program and the spot replacement ties.

The Operator shall perform all tie replacement in conformance with AREMA standards and track buckling procedures in the Engineering Services Standards.

Switch timber shall be changed as required to maintain the Service Property in a Good Working Condition.

Bridge ties and timber shall be changed as required to maintain the Service Property in a Good Working Condition.

Ties shall be replaced with ties made from the same material as that removed unless otherwise approved by the MBTA.

The Operator shall be responsible to purchase, deliver, and install all ties and timbers.

Within 30 days of removal, the Operator shall sort all removed ties and timbers, separating ties to be reused on the Service Property from ties for disposal.

Within 30 days of removal, the Operator shall stack and stockpile neatly ties to be reused on the Service Property. Within 30 days of removal, the Operator must dispose of all remaining ties through a properly certified and licensed hazardous materials disposal contractor, pursuant to all applicable laws and regulations unless other arrangements are made with MBTA written approval. Wooden ties and timber shall be disposed of in a proven manner in compliance with all federal, state and local regulations; concrete ties shall be disposed of via crushing and proper disposal in an approved landfill. Ties fit for reuse off the Service Property may be sold by a properly certified and licensed hazardous materials disposal contractor, pursuant to all applicable laws and regulations.

The Operator shall provide inspection, maintenance, and replacement services for all ties and timbers in order to maintain the Service Property in a Good Working Condition. The Operator shall provide these services to achieve the Performance Standard described in Section 2.9 (Performance Standard) of this Schedule 3.2 (Engineering Services).

Track Structure

Gauge rods are prohibited. Any exception to the requirements in this Section 4.4 (Track Structure) of this Schedule 3.2 (Engineering Services) shall be submitted to the MBTA Chief Engineer for prior written approval.

Discovery by the Operator of an improperly anchored track shall require the implementation of a temporary speed restriction and immediate notification of the condition to MBTA. The Operator shall perform corrective measures to anchor the track in accordance with the Engineering Services Standards.

Discovery by the Operator of any curves not spiked to MBTA and applicable standards shall require the Operator to bring the track up to all applicable standards within 30 days.

The Operator shall perform all track surfacing and aligning as frequently as necessary to meet maintenance class requirements and maintain speed conditions authorized by the maintenance class of the MW-1, and never less than the speed in existence as of the Commencement Date, as identified in the Asset Inventory or higher as track speeds or classifications are upgraded during the Agreement Term.

The temporary speed restrictions that are in existence on the Commencement Date shall be removed as quickly as practical. The Operator shall submit a schedule for completion of this work no later than 120 days after NTP (ODRL 3.2-018). This schedule shall be included in the initial Engineering Services Plan and subject to MBTA approval.

Tracks and turnouts shall always be resurfaced and realigned by the Operator as part of any re-timbering work and included within the submitted work by schedule.

The Operator shall keep all frogs, switch points and stock rails ground in accordance with the Engineering Services Standards as part of the required inspection and maintenance services.

The Operator shall be inspect, maintain and rehabilitate all at grade crossings in order to maintain the Service Property in a Good Working Condition. Crossings, including Automatic Highway Crossing Warning Systems shall be maintained by the operator in a manner that is safe, convenient and compliant with all applicable uses, rules and regulations including FRA, DOT, Manual or Uniform Traffic Control Devices (“MUTCD 2000”), Mass DPU and MassDOT.

The Operator shall ensure that all components of the warning system are in place and functioning. The Operator shall notify Third Parties as necessary to remedy noted deficiencies.

The Operator shall establish and provide to the MBTA for approval, a grade crossing improvement plan as part of the Engineering Services Plan (ODRL 3.2-019). This plan shall include a schedule and budget for the replacement and/or upgrade of at least 15 grade crossings per year having a design life expectancy of approximately 15 years, in accordance with MBTA Standard Plans and using equivalent materials, unless otherwise approved or directed by the MBTA. The budget shall be sufficiently detailed and itemized to determine various costs to include paving, rail, signals, utility upgrades, drainage, signage, etc. The locations of the grade crossing construction activities shall be subject to the approval of the MBTA. At the sole discretion of the MBTA, after consultation with the Operator with the goal, if possible, of avoiding or minimizing additional financial consequences to the Operator, some of the budgeted monies may be allocated to MassDOT for participation in their grade crossing replacement program in order to satisfy the MBTA’s 20% participatory funding requirement.

The Operator shall maintain, repair or replace rail lubricators as necessary to lubricate curves of 4 degrees or greater. All replacement materials shall be of equal quality or better. Lubricating materials shall be replenished by the Operator on an as-needed basis.

At a minimum, the Operator shall perform inspection and maintenance of the turnouts, crossovers and sidings in order to maintain the Service Property in a Good Working Condition.

All switch components and other track materials removed from track and deemed as reusable by mutual agreement of the MBTA and the Operator shall be repaired for reuse by the Operator and returned to the Support Inventory. Repaired and refurnished inventory reclaimed to inventory shall be tracked as such in the Commuter Rail IT Environment.

Rights Of Way

The Operator shall fully and consistently maintain track drainage systems to their design capacity.

The Operator shall control flooding on the right of way by the use of drainage systems. The Operator shall anticipate and perform pumping to remove water from the right of way and track as necessary (for example, as is often the case during storm events near Natick Station). All locations requiring the assistance of pumping to maintain proper drainage shall be identified in the Engineering Services Plan along with mitigating measures and “triggers” that will ensure pumping is performed on a timely basis when needed (ODRL 3.2-020).

Culverts used to pass water under tracks shall be maintained by the Operator for their entire length.

The Operator shall keep drainage ditches open and at proper design profiles (depth, grade and alignment). The Operator shall reshape at least 2,500 lineal feet of drainage ditches per line per Agreement Year in accordance with the design profiles. The Operator shall establish and provide an annual Drainage Ditch Reshaping Plan (ODRL 3.2-021) to the MBTA for approval as part of the Engineering Services Plan. This Drainage Ditch Reshaping Plan shall indicate the approximate location and schedule of drainage ditch improvements.

The Operator shall keep brush cut back to the existing width of the Right of Way from property line to property line or as designated by the MBTA, and the Operator shall promptly chip and remove all brush from the Right of Way. Vegetation identified by the MBTA as a nuisance or safety hazard shall be removed by the Operator with due diligence, and in any event, not later than 15 days after notification by MBTA.

The Operator shall keep all approaches to grade crossings clear so that approaches to the crossing shall be visible from the train.

The Operator shall keep approaches to all wayside signals free of vegetation in order to ensure a clear line of sight for approaching trains.

The Operator shall keep the Right of Way free and clear of debris and rubbish. The Operator shall immediately respond to MBTA reports of debris or rubbish on the Right of Way.

Railroad materials and equipment removed from service shall be removed from the Right of Way by the Operator within 30 days except where otherwise specified. The Operator shall not store materials awaiting installation along the Right of Way for more than 30 days, unless otherwise permitted or agreed to by the MBTA, with the exception of any material that is considered a safety hazard by the MBTA and which shall be immediately removed or repositioned upon discovery by the Operator or notification by the MBTA. Continuous welded rail strings longer than 200 feet awaiting installation are excepted with prior written approval from the MBTA.

Scrap rail and relay rail shall be removed from the Right of Way by the Operator within 30 days of removal from the track.

The Operator shall not be permitted to scrap any Service Property or Support Property without prior written consent of the MBTA. All proceeds from the sale of the scrap and relay rail, and all other scrap and obsolete materials, shall be put into an escrow account pursuant to Schedule 3.4 (Materials Management and Procurement) of this Agreement.

The Operator shall report to the MBTA Transit Police, and shall attempt to control, illegal dumping activities, trespassing, and unauthorized use of the Service Property. In addition, the Operator shall also participate with MBTA in programs to educate the public to the dangers of trespassing on the Right of Way.

The Operator shall apply State-approved herbicides to prevent weed growth from all track beds and other approved areas, to the extent that regulations allow.

The Operator shall maintain and install right of way signage pursuant to MBTA standards and shall repair or replace damaged or missing signs.

The Operator shall provide engineering, including survey and plans, to control encroachments on the Rights of Way. All engineering and survey work shall be saved in the Commuter Rail IT Environment no later than 30 days after the work is completed. The Operator shall not permit any construction or modification to any facility that reduces existing clearance dimensions at any location along the Right of Way, without the prior written approval of the MBTA.

Right of Way fences and fence gates shall be kept well maintained by the Operator. Holes and gates shall be repaired by the Operator as soon as the schedule will allow, but they shall always be repaired within 10 business days of discovery and/or notification by the MBTA. Holes discovered in known safety sensitive areas or upon notification by the MBTA shall be repaired by the Operator immediately upon notification or discovery.

The Operator shall be responsible for replacing or installing at least 2 lineal miles of MBTA standard fencing on an annual basis at locations that are mutually agreed to by the MBTA and the Operator. The Operator shall establish and provide to the MBTA for approval, a Fencing Installation Plan as part of the Engineering Services Plan (ODRL 3.2-022). The Operator shall repair or replace any gating in the areas of the fence replacement.

STRUCTURES

General

The Operator shall inspect and maintain in a Good Working Condition all layover facilities, buildings, facilities, stations, drainage systems, culverts, switch heaters, overhead and under-grade bridges, tunnels, and pedestrian structures that are part of the Service Property for which the MBTA has the maintenance responsibility.

The Operator shall perform structural inspections not less than once per Agreement Year, and more frequently as required, on all structures that are part of the Service Property, including those not used in the performance of Agreement Services.

All inspections shall be documented by the Operator and recorded in the Commuter Rail IT Environment. All structural inspections shall include digital photographs. An annual report summarizing each structural inspection and findings regarding structural condition (ODRL 3.2-023) shall be provided to the MBTA. The cost of preparing the annual report is included in the Annual Fee.

The Operator shall maintain the Support Property and facilities required to perform Agreement Services. The MBTA owns most of the Support Property used for Agreement Services, as described in the Asset Register.

Layover Facilities

The Operator shall maintain in a Good Working Condition all Service Property, Service Equipment and Support Property located at the layover facilities. At a minimum, the Operator shall provide the following services:

The Operator shall maintain all electrical systems and facilities in a Good Working Condition in compliance with Section 7 (Electrical) of this