OPERATIONS AND MAINTENANCE AGREEMENT …

OPERATIONS AND MAINTENANCE AGREEMENT

AMENDMENT #1

FOR THE

LIGHT RAIL TRANSIT SYSTEM

BY AND BETWEEN

VALLEY METRO RAIL, INC

AND THE

CITY OF TEMPE

MARCH 2016

i

Table of Contents

SECTION 1.0 DEFINITIONS ................................................................................................................ 2

SECTION 2.0 EFFECTIVE DATE; TERM ........................................................................................... 7

SECTION 3.0 OPERATIONS ............................................................................................................... 8

SECTION 4.0 MAINTENANCE ............................................................................................................ 8

SECTION 5.0 NEW FACILITIES .......................................................................................................... 8

SECTION 6.0 TERMINATION .............................................................................................................. 8

6.1 GROUNDS FOR TERMINATION ....................................................................... 8

6.2 NOTICE .............................................................................................................. 9

SECTION 7.0 AGREEMENT NON-ASSIGNABLE ............................................................................. 9

SECTION 8.0 INDEMNIFICATION ...................................................................................................... 9

SECTION 9.0 INSURANCE ............................................................................................................... 10

SECTION 10.0 DEFAULT .................................................................................................................. 10

SECTION 11.0 ISSUE RESOLUTION ............................................................................................... 11

SECTION 12.0 AUDIT ........................................................................................................................ 12

SECTION 13.0 NOTICE ..................................................................................................................... 12

SECTION 14.0 AMENDMENT ........................................................................................................... 13

SECTION 15.0 APPLICABLE LAW AND LITIGATION ................................................................... 13

SECTION 16.0 NON-WAIVER ........................................................................................................... 13

SECTION 17.0 SEVERABILITY ........................................................................................................ 14

SECTION 18.0 BENEFIT AND BINDING EFFECT ........................................................................... 14

SECTION 19.0 SURVIVAL................................................................................................................. 14

SECTION 20.0 FURTHER ASSURANCES ....................................................................................... 14

SECTION 21.0 CONFLICTS OF INTEREST ..................................................................................... 14

SECTION 22.0 CONSTRUCTION AND INTERPRETATION OF AGREEMENT ............................ 14

SECTION 23.0 THIRD PARTY BENEFICIARIES ............................................................................. 15

SECTION 24.0 POLICE POWER ...................................................................................................... 15

SECTION 25.0 ENTIRE AGREEMENT ............................................................................................. 15

SECTION 26.0 INCORPORATION OF EXHIBITS ............................................................................ 15

ii

EXHIBIT A - SYSTEM MAP ..................................................................................................... 1

EXHIBIT B - SYSTEM OPERATIONS ................................................................................... 1


SECTION 2.0 VMR OPERATIONS ...................................................................................................... 1

2.1 SYSTEM OPERATIONS ..................................................................................... 1

2.2 MINIMIZE IMPACTS ........................................................................................... 1

2.3 ACCESS ............................................................................................................. 1

2.4 TRAIN/TRAFFIC SIGNAL COORDINATION ...................................................... 2

2.5 TEMPE TOWN LAKE BRIDGE .......................................................................... 2

SECTION 3.0 TEMPE OPERATIONS ................................................................................................. 3

3.1 TEMPE FACILITIES ........................................................................................... 3

3.2 TEMPE ACCESS TO GUIDEWAY ..................................................................... 3

3.3 PRIVATE UTILITY AND THIRD PARTY CONSTRUCTION PERMITS .............. 3

SECTION 4.0 FIRE/LIFE/SAFETY AND SECURITY COORDINATION ............................................ 4

4.1 GENERAL .......................................................................................................... 4

4.2 REGIONAL SECURITY TEAM ........................................................................... 4

4.3 EMERGENCY PROCEDURES ........................................................................... 4

4.4 EMERGENCY DRILLS ....................................................................................... 5

4.5 EMERGENCY ACCESS ..................................................................................... 5

SECTION 5.0 POLICE/SECURITY/FARE EVASION ENFORCEMENT ............................................ 6

SECTION 6.0 DISPLAYS AND SPECIAL EVENTS ........................................................................... 6

6.1 DISPLAYS .......................................................................................................... 6

6.2 SPECIAL EVENTS ............................................................................................. 7

SECTION 7.0 TRANSIT CENTER/PARK-AND-RIDE OPERATIONS ............................................... 8

7.1 VMR’S RESPONSIBILITIES .............................................................................. 8

7.2 TEMPE’S RESPONSIBILITIES .......................................................................... 8

SECTION 8.0 OPERATIONS COSTS ................................................................................................. 8

8.1 FISCAL RESPONSIBILITY ................................................................................ 8

8.2 OPERATIONS BUDGET .................................................................................... 8

8.3 SERVICE AGREEMENTS .................................................................................. 8

SECTION 9.0 REVENUE/FARE POLICY ............................................................................................ 8

EXHIBIT C - SYSTEM MAINTENANCE ................................................................................ 1

iii


SECTION 2.0 GENERAL ..................................................................................................................... 1

SECTION 3.0 PROTECTION OF ADJACENT FACILITIES ............................................................... 1

SECTION 4.0 NOTICE AND APPROVALS ........................................................................................ 2

SECTION 5.0 MAINTENANCE RESPONSIBILITIES ......................................................................... 7

5.1 GENERAL .......................................................................................................... 7

5.2 SIGNAGE ........................................................................................................... 7

5.3 PARK-AND-RIDES ............................................................................................. 8

5.4 TRANSIT CENTERS .......................................................................................... 8

5.5 LIGHTING........................................................................................................... 8

5.6 CORROSION CONTROL ................................................................................... 9

5.7 NOT USED ........................................................................................................11

5.8 STORM DRAINAGE ..........................................................................................11

5.9 TRAFFIC SIGNAL SYSTEM AND BLANKOUT SIGNS ....................................11

5.10 CROSSING GATES ..........................................................................................11

5.11 ARTWORK ........................................................................................................12

5.12 PAVEMENT .......................................................................................................12

5.13 STRUCTURES ..................................................................................................12

SECTION 6.0 SAFETY ....................................................................................................................... 14

SECTION 7.0 MAINTENANCE COSTS ............................................................................................ 14

7.1 FISCAL RESPONSIBILITY ...............................................................................14

7.2 MAINTENANCE BUDGET ................................................................................14

7.3 SERVICE CONTRACTS ....................................................................................14

EXHIBIT D - NOT USED .......................................................................................................... 1

EXHIBIT E - NOT USED .......................................................................................................... 1

EXHIBIT F - INSURANCE ....................................................................................................... 1

SECTION 1.0 INSURANCE REQUIREMENTS ................................................................................... 1

1.1 MINIMUM SCOPE AND LIMITS OF INSURANCE ............................................. 1

1.2 ADDITIONAL INSURANCE REQUIREMENTS .................................................. 2

1.3 NOTICE OF CANCELLATION ........................................................................... 2

1.4 ACCEPTABILITY OF INSURERS ...................................................................... 2

1.5 VERIFICATION OF COVERAGE ....................................................................... 3

iv

1.6 SUBCONTRACTORS ........................................................................................ 3

1.7 APPROVAL ........................................................................................................ 3

EXHIBIT G - TRACK ACCESS ............................................................................................... 1

SECTION 1.0 GENERAL ..................................................................................................................... 1

SECTION 2.0 VMR TRACK ACCESS PERMIT .................................................................................. 1

SECTION 3.0 TRACK ACCESS PROCEDURES ............................................................................... 1

1 VMR/Tempe O&M Agreement March 2016

THIS OPERATIONS AND MAINTENANCE AGREEMENT (the “Agreement”), dated as

of ____________________, 2016, IS HEREBY ENTERED into by and between VALLEY

METRO RAIL, INC., a corporation formed under the Arizona Nonprofit Corporation Act (A.R.S. §

10-3101 et seq.) by certain cities within Maricopa County utilizing the authority granted under

A.R.S. § 11-952 (“VMR”), and the CITY OF TEMPE, a municipal corporation duly organized and

existing under the laws of the State of Arizona (“Tempe”), individually “Party” or collectively

“Parties”.

RECITALS:

WHEREAS, VMR designed and constructed the Central Phoenix/East Valley Light Rail

Transit Project; the initial light rail system in the Central Phoenix and East Valley area.

WHEREAS, the Parties entered into that certain Operations and Maintenance

Agreement dated May 2007 (“2007 Agreement”) which defined the operations and maintenance

actions of the City and VMR for the operations and maintenance of the Light Rail Transit

Project, within the jurisdictional boundaries of Tempe, identified in Exhibit A.

WHEREAS, the Parties intend to amend and restate the 2007 Agreement with this

Agreement and that upon the Effective Date of this Agreement the 2007 Agreement will be

amended and restated.

WHEREAS, this Agreement may be amended from time to time as the System expands.

WHEREAS, Tempe has granted VMR non-exclusive use rights on certain Tempe

streets, public ways, and parcels for the design, construction, operation, and maintenance of the

System in the Public Way Use Agreement for the Central Phoenix/East Valley Light Rail Transit

Project or as amended.

WHEREAS, the By-Laws of VMR define many of the obligations of the Members of

VMR.

WHEREAS, Tempe is a Member of VMR.


WHEREAS, Tempe has agreed, in the Design and Construction Agreement for the

Central Phoenix/East Valley Light Rail Transit Project ("Design and Construction Agreement"),

to allow VMR to construct the System.

WHEREAS, similar but separate Operations and Maintenance Agreements have been

entered into by VMR with the Cities of Phoenix and Mesa.

NOW, THEREFORE in consideration of the mutual promises, conditions, and covenants

contained herein, VMR and Tempe hereby agree as follows:

SECTION 1.0

DEFINITIONS

The following capitalized terms shall have the following meanings when used in this

Agreement, unless a different meaning is clearly intended:

1.1 “Adjacent Facilities” means a facility adjacent to the other Party’s facility located in the

boundaries of Tempe or VMR.

1.2 “Agreement” means this Agreement.

1.3 “Articles” means the Articles of Incorporation for Valley Metro Rail, Inc.

1.4 “Baseline Mode” means the last agreed to traffic/light rail signal timing scenario or as

agreed to jointly. Baseline Mode is intended to provide satisfactory timing for both traffic

(vehicular and pedestrian) and light rail.

1.5 “Board of Directors” or “Board” means the governing body of Valley Metro Rail, Inc..

1.6 “By-Laws” means VMR’s By-Laws.

1.7 “City” means the City of Tempe, a municipal corporation duly organized and existing

under the laws of the State of Arizona.

1.8 “Contractor” means any contractor who executes a contract with VMR for the operations

or maintenance of the System.

1.9 “Days” means calendar days.


1.10 “Effective Date” means the date on which the Agreement becomes operative as defined

in Section 2.0.

1.11 “Force Majeure” means any event which: (i) causes VMR to be unable to exercise the

VMR Use Rights provided for hereunder; and (ii) is outside the reasonable control of

VMR and could not be avoided by VMR through the exercise of due care. Force Majeure

events include, without limitation: terrorists, earthquakes, fires, floods, tornadoes, wars,

labor strikes or similar accidents, disputes or similar events.

1.12 “LRT”, as used in this Agreement, means the original Light Rail Transit Project (formally

known as the Central Phoenix/East Valley Light Rail Transit Project) together with any

extensions which may include light rail, streetcar, or other rail technologies mutually

agreed upon.

1.13 “Guideway” means the steel rail and concrete structure VMR uses for rail operations.

The limits of the Guideway are defined by the edges of the concrete track slab the rails

are embedded in when there is a single track or the outer edges of the concrete slabs

when there are two tracks. When a concrete curb or curb and gutter are directly adjacent

to the concrete track slab(s), the Guideway is further extended to include such structures.

Figure 1 provides examples of the limits of the Guideway in varying configurations.


Figure 1 – Guideway

1.14 “Members” or “Member Cities” means the City of Phoenix, the City of Tempe, the City of

Mesa, and the City of Glendale.

1.15 “New Facilities” means those facilities that are added to the System or adjacent to the

System after Revenue Service begins, that materially changes the appearance, function,

maintainability, or operations of the System.

1.16 “Occupied Tempe Property” means that portion of real property (including streets and

improvements thereto) owned or controlled by Tempe that is to be physically occupied by

System improvements in accordance with the Public Way Use Agreement.

1.17 “OCS” means the overhead contact system.

1.18 “OCS Wire” means any overhead wire associated with the OCS including OCS span

wires or OCS contact wire.

1.19 “Party” means VMR or Tempe and “Parties” means both entities collectively, as

governed by the context in which such word is used.

1.20 “Public Works” means a department within the City responsible for the operations and

maintenance of streets.


1.21 “Public Way Use Agreement” means that certain Public Way Use Agreement for the

Central Phoenix/East Valley LRT Project or as amended, entered by and between Tempe

and VMR, which document sets forth the terms and conditions pursuant to which the non-

exclusive use of Tempe streets, public ways, and parcels has been granted.

1.22 “Revenue Service” means the System has been designed, constructed, and tested and

is providing passenger service in the same context as Revenue Operations is defined in

the Public Way Use Agreement.

1.23 “System” means the light rail transportation system to be owned, operated, or maintained

by VMR within the System Alignment, including all tracks, stations, park-and-rides, light

rail vehicles, streetcars, conduits, electrical lines, traction power poles, traction power

substations, cross-span wires, traffic equipment, stray current protection equipment, as

well as other functionally related and appurtenant equipment.

1.24 “System Alignment” means the alignment as shown in Exhibit A. Exhibit A may be

amended from time-to-time as the System expands and/or as needs require.

1.25 “System Maintenance” means the maintenance of the System; a responsibility of VMR

as described in Exhibit C.

1.26 “System Operations” means the operations of the System; a responsibility of VMR as

described in Exhibit B.

1.27 “Tempe Facilities” means facilities owned or operated by Tempe, excluding those that

are not part of, nor utilized for the operations and maintenance of the System.

1.28 “Tempe Maintenance - Emergency” means maintenance activities that require

immediate action as an operational imperative or that supersedes operational needs.

1.29 “Tempe Maintenance - Outside of Guideway” means maintenance activities that can be

performed without interference to light rail operations or risk to maintenance personnel.

The limits for work meeting these criteria are shown in Figure 1, and include any area not

defined by the Guideway unless otherwise defined.


1.30 “Tempe Maintenance - Within Guideway” means maintenance activities that interfere

with light rail operations. The limits for work meeting these criteria are shown in Figure 1,

and include any area not defined by the Guideway unless otherwise defined.

1.31 “Transit Center” means a facility located in the City providing an area to load/unload bus

passengers; a Transit Center may also contain administrative building space to support

bus transit operations. Exhibit A identifies Transit Centers along the System alignment.

1.32 “Transportation Division” means a Division within Tempe’s Public Works Department

responsible for City traffic signal operations and timing.

1.33 “VMR Emergency Maintenance” means a major maintenance activity performed on an

immediate response basis to restore the intended daily operational conditions of the

System, which generally results from unintended or unusual conditions that may cause

an actual emergency or a potential emergency.

1.34 “VMR Non-Routine Maintenance” means major maintenance activities performed on an

irregular, infrequent, or unscheduled basis.

1.35 “VMR Operations Control Center” means a centrally located facility staffed by VMR,

that contains equipment to monitor and control the System.

1.36 “VMR Routine Maintenance” means maintenance activities performed on a routine,

frequent, or scheduled basis on items requiring recurring maintenance.

1.37 “VMR Routine Maintenance in Traffic Lanes” means maintenance activities performed

on a routine, frequent, or scheduled basis on items requiring recurring maintenance in

shared use areas.

SECTION 2.0

EFFECTIVE DATE; TERM

2.1 The Effective Date is the date this Agreement is signed by both Parties.

2.2 To the maximum extent permitted by law, the term of this Agreement is for an indefinite

period of time.


2.3 The Operations and Maintenance Agreement for the Light Rail Transit System (May

2007) is amended and restated entirely by this Agreement.

SECTION 3.0

OPERATIONS

VMR shall comply with the System Operations provisions identified in Exhibit B for

portions of the System that have entered Revenue Service.

SECTION 4.0

MAINTENANCE

VMR shall comply with the maintenance provisions identified in Exhibit C for portions of

the System that have entered Revenue Service.

SECTION 5.0

NEW FACILITIES

Upon Revenue Service, requests for New Facilities from VMR with impacts outside the

Guideway shall be evaluated by Tempe with identified impacts addressed by VMR. Requests

for New Facilities from Tempe with impacts to the Guideway shall be evaluated by VMR with

identified impacts addressed by Tempe.

Regarding third party traffic signal requests, VMR and Tempe must agree that the traffic

signals are needed and that System and traffic operations are not adversely impacted. Tempe

and VMR shall negotiate the cost sharing on a case-by-case basis at the time the traffic signal is

approved.

SECTION 6.0

TERMINATION

6.1 Grounds for Termination

This Agreement may be terminated at the option of either VMR or Tempe upon sixty (60)

days prior written notice delivered to the other, upon the occurrence of any of the following

events:

(i) The Use Agreement is terminated; or


(ii) VMR is in default in the performance of any material covenant, term or condition

contained in this Agreement and fails to cure, pursuant to the terms and time frames set forth in

Section 10.0 hereof.

6.2 Notice

In the event notice of termination is given, such notice shall be given in compliance with

Section 13.0 of this Agreement.

SECTION 7.0

AGREEMENT NON-ASSIGNABLE

VMR may not assign or otherwise transfer any of its rights or obligations hereunder to a

third party without the express prior written consent of Tempe, which may be granted or

withheld by Tempe in its sole and absolute discretion. Any assignment or transfer without such

prior written consent shall be void.

SECTION 8.0

INDEMNIFICATION

8.1 Except for claims arising solely and exclusively from the negligent or willful acts or

omissions of Tempe, its officers, officials, agents, and employees (hereinafter referred to as

“Indemnitee”) VMR shall indemnify, defend, save and hold the Indemnitee harmless from and

against any and all claims, actions, liabilities, damages, losses, expenses, and costs (including

court costs, attorneys’ fees, and costs of claim processing, primary loss investigation, and trial

and appellate litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury

(including death), loss or damage to tangible or intangible property, and economic or financial

loss of any character or any nature: (1) arising under this Agreement, including but not limited to

the System, System Maintenance, System Operations, and the use of Occupied Property, or,

(2) caused, or alleged to be caused, in whole or in part or directly or indirectly, by the negligent

or willful acts or omissions of VMR or any of its owners, officers, directors, agents, contractors,

or employees including employees from the City assigned to work part-time or full-time for VMR.


8.2 It is the specific intent of the Parties to this Agreement that the Indemnitee shall, in all

instances except for loss or damage resulting from the sole and exclusive negligence of the

Indemnitee, be indemnified against all liability, loss or damage of any nature whatever for or on

account of any injuries to or death of person or damages to or destruction of property belonging

to any person, or economic or financial losses arising out of or in any way connected with the

performance of this Agreement.

8.3 It is agreed that VMR will be responsible for primary loss investigation, defense, and

judgment costs.

8.4 This Section will survive the termination, cancellation, or revocation whether in whole or

in part, and future amendments of this Agreement.

SECTION 9.0

INSURANCE

9.1 VMR will procure and maintain the minimum insurance coverages described in Exhibit F.

9.2 VMR will provide Tempe with a copy of all policies, endorsements, and certificates upon

request.

SECTION 10.0

DEFAULT

10.1 Either Party shall be deemed in default under this Agreement upon the failure of such

Party to observe or perform any material covenant, condition, or agreement on its part to be

observed or performed hereunder, and the continuance of such failure for a period of thirty (30)

days after written notice by the other Party, as required herein. Such notice shall specify the

failure and request that it be remedied, unless the Party giving notice agrees in writing to an

extension of the time period prior to its expiration. However, if the failure stated in the notice

cannot be corrected within the applicable period, it will not give rise to a default hereunder if

corrective action is instituted within the applicable period and diligently pursued until the failure

is corrected. In the event of a default hereunder, the non-defaulting Party may have a breach of


contract claim and remedy against the other in addition to any other remedy provided or

permitted by law, provided, however, that no remedy that would have the effect of amending

any provisions of this Agreement shall become effective without the formal amendment of this

Agreement.

10.2 If any maintenance is required to be performed by VMR under this Agreement, under the

Public Way Use Agreement, any subsequently executed operations and maintenance

agreement, or required by any City, State or Federal legislative act, rule or regulation and is not

completed within ten (10) days after written notice is received by VMR, or within a reasonable

time thereafter, given the nature of the maintenance required, then, and in that event, Tempe

may perform or cause to be performed, using a third party contractor such maintenance or

repairs as it reasonably deems necessary, not inconsistent with City, State or Federal law or

regulation, pursuant to said notice. For such work, VMR shall entirely reimburse Tempe for all

of Tempe’s costs, including, but not limited to, personnel and administration costs and expenses

within sixty (60) days of receipt of Tempe's invoice.

SECTION 11.0

ISSUE RESOLUTION

11.1 Any dispute arising out of System Operations, System Maintenance, interpretation of

any provision of this Agreement, any policy matter, or the determination of an issue of fact,

which dispute is not resolved at staff level, shall be referred to VMR’s Chief Executive Officer

and the Tempe City Manager. If, after good faith negotiations aimed at reaching an amicable

solution, a dispute cannot be resolved, the dispute shall be presented to the VMR Board of

Directors for resolution. If not resolved at this level, the dispute may be brought before a court

of competent jurisdiction in Maricopa County, Arizona.

11.2 Disputes regarding reimbursement shall be resolved through mediation. If mediation

fails, the dispute may be brought before a court of competent jurisdiction in Maricopa County,

Arizona.


SECTION 12.0

AUDIT

All books, accounts, reports, files and other records relating to this Agreement under the

custody or control of VMR shall be subject at all reasonable times to inspection and audit by

Tempe for five years after completion of the contract. Such records shall be produced at VMR

offices as and when requested by Tempe.

SECTION 13.0

NOTICE

13.1 Any notice, consent, or other communication (“NOTICE”) required or permitted under

this Agreement shall be in writing and either delivered in person, sent by facsimile transmission,

deposited in the United States mail, postage prepaid, registered or certified mail, return receipt

requested, or deposited with any commercial air courier or express service addressed as

follows:

If intended for Valley Metro Rail, Inc.: Valley Metro Rail, Incorporated 101 N. First Avenue, Suite 1300 Phoenix, Arizona 85003 Attention: General Counsel Attention: Chief Operations Officer

If intended for City of Tempe:

City Manager City of Tempe 31 E. Fifth Street Tempe, Arizona 85281 Telephone: (480) 350-8221 With a copy to: City Attorney 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Telephone: (480) 350-8227

13.2 Notice shall be deemed received at the time it is personally served or, on the day it is

sent by facsimile transmission, on the second day after its deposit with any commercial air


courier or express service or, if mailed, ten (10) days after the notice is deposited in the United

States mail as above provided. Any time period stated in a notice shall be computed from the

time the notice is deemed received. Either party may change its mailing address, FAX number,

or the person to receive notice by notifying in writing the other party as provided in this Section.

13.3 Notice sent by facsimile transmission shall also be sent by regular mail to the recipient at

the above address. This requirement for duplicate notice is not intended to change the effective

date of the notice sent by facsimile transmission.

SECTION 14.0

AMENDMENT

This Agreement may be modified or amended only by a written document executed by

both VMR and Tempe and approved as to form by the City Attorney. Such document shall

expressly state that it is intended by the Parties to amend specifically identified terms and

conditions of this Agreement.

SECTION 15.0

APPLICABLE LAW AND LITIGATION

This Agreement shall be governed by, and construed in accordance with, the laws of the

State of Arizona. Any and all litigation between the Parties arising from this Agreement shall be

litigated solely in the appropriate state court located in Maricopa County, Arizona.

SECTION 16.0

NON-WAIVER

No covenant or condition of this Agreement may be waived by any Party, unless done so

in writing. Forbearance or indulgence by any Party in any regard whatsoever shall not

constitute a waiver of the covenants or conditions to be performed by the other.


SECTION 17.0

SEVERABILITY

Any provision of this Agreement that is prohibited or unenforceable under the laws of the

state of Arizona shall be ineffective to the extent of such prohibition or unenforceability without

invalidating the remaining provisions hereof.

SECTION 18.0

BENEFIT AND BINDING EFFECT

The terms and provisions of this Agreement shall inure to the benefit of and be binding

on VMR and Tempe and their respective successors and permitted assigns.

SECTION 19.0

SURVIVAL

The indemnifications and limitations on liability provided in this Agreement shall have full

force and effect notwithstanding any other provisions of this Agreement and shall survive any

termination or expiration hereof.

SECTION 20.0

FURTHER ASSURANCES

The Parties hereto shall execute such other documents and take such other actions as

may be reasonably necessary or proper to achieve the intent and purposes hereof.

SECTION 21.0

CONFLICTS OF INTEREST

All Parties hereto acknowledge that this Agreement is subject to cancellation by Tempe

pursuant to the provisions of Section 38-511, Arizona Revised Statutes.

SECTION 22.0

CONSTRUCTION AND INTERPRETATION OF AGREEMENT

This Agreement, and each of its provisions, exhibits, terms, and conditions, has been

reached through negotiations between the Parties. Accordingly, each of the Parties expressly

acknowledges and agrees that this Agreement shall not be deemed to have been authored,

prepared, or drafted by any particular Party, and that the rule of construction that resolves


ambiguities against the drafting party shall not be employed in the interpretation of this

Agreement.

SECTION 23.0

THIRD PARTY BENEFICIARIES

This Agreement is intended to benefit the corporate and municipal interests of VMR and

Tempe alone, and no other person shall claim any implied right, benefit or interest in such

services. The Parties intend not to create rights in or remedies to any third party as a

beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established

under this Agreement.

SECTION 24.0

POLICE POWER

The Parties acknowledge the right vested in the Tempe pursuant to general law to

exercise its police power for the protection of the health, safety, and welfare of its constituents

and their properties. Nothing in this Agreement shall be construed as precluding the City from

exercising such powers in connection with the System.

SECTION 25.0

ENTIRE AGREEMENT

This Agreement, together with the exhibits, instruments and other documents required to

be executed and delivered in connection herewith, supersedes all prior agreements and

understandings of the Parties with respect to the operations and maintenance of the System.

SECTION 26.0

INCORPORATION OF EXHIBITS

This Agreement in its entirety includes Exhibits A through G, all of which are, by this

reference, incorporated herein and made part hereof as though fully set forth. The Exhibits of

this Agreement are as follows:

EXHIBIT A System Map

EXHIBIT B System Operations

EXHIBIT C System Maintenance


EXHIBIT D Not Used

EXHIBIT E Not Used

EXHIBIT F Insurance

EXHIBIT G Track Access

VALLEY METRO RAIL, INC. CITY OF TEMPE

Date: Date:

By: By: Scott Smith Mark W. Mitchell Chief Executive Officer Mayor APPROVED AS TO FORM APPROVED AS TO FORM By: By: Michael J. Minnaugh Judith R. Baumann General Counsel City Attorney

ATTEST By:_______________________ Brigitta M. Kuiper City Clerk

A-1 VMR/Tempe O&M Agreement March 2016

EXHIBIT A - SYSTEM MAP

EXHIBIT B VMR/Tempe O&M Agreement March 2016

EXHIBIT B - SYSTEM OPERATIONS

B-1 VMR/Tempe O&M Agreement March 2016

SECTION 1.0

DEFINITIONS

The terms defined in Section 1.0 of this Agreement are incorporated into and made a

part of Exhibit B.

SECTION 2.0

VMR OPERATIONS

2.1 System Operations

2.1.1 Valley Metro Rail is responsible for the operations of the System. Only VMR may

operate light rail vehicles and maintenance vehicles on the Guideway unless a Track Access

Permit is secured following the guidelines established in Exhibit G.

2.1.2 The System Operations shall be performed in a manner compliant with the requirements

of this Agreement and as directed by the VMR Board.

2.1.3 VMR and Tempe recognize the need to balance automobile traffic progression and

System operations at a reasonable level where they share City streets. Each Party will work

cooperatively and jointly to establish signal protocols and timing on Tempe’s traffic coordination

systems.

2.1.4 System vehicles and operators traveling on the Guideway shall be subject to all traffic

control ordinances, statutes, and regulations, not in conflict with federal law.

2.2 Minimize Impacts

VMR will operate the System in a manner that minimizes negative impacts to Tempe and other

local jurisdictions, while meeting all local, state, and federally mandated requirements.

2.3 Access

The City and VMR shall develop a program that allows VMR to park for a limited period

of time in metered stalls or other acceptable locations while performing operational duties

utilizing either government license plates, bagged meters, or other method.


2.4 Train/Traffic Signal Coordination

2.4.1 VMR and Tempe will work cooperatively to develop, implement, and maintain a

coordinated traffic and train signal system, including the signals and crossing gates, both during

startup and testing and once the System is in Revenue Service. The goal is an optimized level

of service for System, pedestrian, and vehicular traffic. Both Parties will support changes that

will improve operations and/or safety for the public. Prior to Revenue Service, VMR and Tempe

will establish the Baseline Mode timing.

2.4.2 VMR and Tempe shall meet as necessary to establish the timing needs of the System

and traffic signals. Except in emergency situations, once the signals are coordinated, Tempe

shall not adjust signal time that will have any impact on VMR operations without prior

consultation with VMR. In emergency situations, the City shall notify VMR as circumstances

permit.

2.4.3 During emergency situations, VMR and the City shall comply with the directions of the

authority in charge of the emergency situation.

2.5 Tempe Town Lake Bridge

2.5.1 VMR shall be responsible for the operations and maintenance of the bridge including

specialty lighting located in and around Tempe Town Lake Bridge, specialty lighting

programming, and security systems, including intrusion detection and CCTV equipment.

Notwithstanding, VMR and the City of Tempe will coordinate any changes to the default

program of the display (modify the colors and patterns presented). No change will be made

without prior approval of both Parties.

2.5.2 Tempe Town Lake Bridge Security

VMR will be responsible for Tempe Town Lake Bridge security.


SECTION 3.0

TEMPE OPERATIONS

3.1 Tempe Facilities

Tempe is responsible for the operations of Tempe Facilities including but not limited to

roadways, traffic signals, street lights, signage, and all other facilities owned by the City that are

not addressed within this Agreement excluding facilities that are not part of, or utilized by

System.

3.2 Tempe Access to Guideway

Vehicles owned or operated by Tempe may operate on the VMR Guideway in a manner

consistent with public use. No maintenance activities may occur unless a Track Access Permit

is secured following the guidelines established in Exhibit G.

In a non-emergency situation, if access to the Guideway is required, Tempe agrees to

follow VMR’s Track Access Procedures as described in Exhibit G of this Agreement. Access

permits are not required when crossing Guideway at intersections or crosswalks unless work is

performed within the Guideway.

3.3 Private Utility and Third Party Construction Permits

At a minimum, Tempe shall include the following permit requirements before any such

permit is issued for construction work by a third party:

1. System service must be maintained.

2. VMR facilities must not be damaged.

3. Work performed within 3 feet of the Guideway or 10 feet of the OCS wires, see

Figure 1, must be done only after a Track Access Permit is secured from VMR,

see Exhibit G.


SECTION 4.0

FIRE/LIFE/SAFETY AND SECURITY COORDINATION

4.1 General

Tempe and VMR agree that the Guideway is not to be considered or treated as a

designated primary emergency response route, throughway, or short cut. Provided, however,

that Tempe is the designated first emergency responder for all incidents that involve, or appear

to involve, public health, safety, or welfare within the Guideway or adjacent there to within

Tempe.

4.2 Regional Security Team

The Regional Security Team consists of representatives of VMR, Member Cities, the

State of Arizona, and the United States Department of Homeland Security. These

representatives shall have the authority to make recommendations in the areas of emergency

response, fire/life safety, and security. The Regional Security Team meets on a monthly basis

to discuss and plan activities requiring interface between state and local emergency response

departments. VMR shall chair the Regional Security Team. Final decisions regarding

emergency response, fire/safety and security will be the responsibility of VMR’s CEO, the Board

of Directors, and the Member Cities.

4.3 Emergency Procedures

An emergency procedure will be developed by VMR consistent with the requirements

defined in National Fire Protection Association 130 (NFPA 130) – Fixed Guideway Transit

Systems, Chapter 6 as it currently exists or is hereafter amended and other applicable

guidelines and regulations. The emergency procedure (System Security and Emergency

Preparedness Plan SSEPP) will be reviewed and coordinated with and approved by state and

local emergency response departments.


4.4 Emergency Drills

Emergency response drills will be conducted at periodic intervals as defined by NFPA

130, Chapter 6 and other appropriate authority. VMR will plan and conduct drills in coordination

with appropriate emergency response organizations through the Regional Security Team.

4.5 Emergency Access

4.5.1 Notwithstanding Section 4.1, the Guideway will be available for emergency use by

Tempe upon contact with VMR’s Operations Control Center.

4.5.2 At the request of the emergency response official, the incident commander on the scene,

or their designee in charge at the location of an incident, VMR personnel will remove power

from the OCS and prevent rail traffic in the affected area of the Guideway.

4.5.3 Procedures for interrupting and restoring power will be consistent with NFPA 130 (2003),

Chapter 10 as it currently exists or is hereafter amended. Detailed procedures, approved by the

Safety and Security Coordinator, will be developed by VMR and coordinated with the Regional

Security Team. Prior to start of revenue service, VMR will provide training to Tempe emergency

response personnel to enable them to confirm that power has actually been removed.

4.5.4 VMR and Tempe emergency response personnel will work cooperatively to minimize

power interruption and blockage of the Guideway that may occur. These situations shall be

limited to events where no other reasonable alternatives as determined by the incident

commander are available to enable Tempe or VMR emergency response organizations to

perform their life/safety responsibilities. These responsibilities include providing emergency

medical treatment and investigating criminal acts or traffic accidents that occur in, or adjacent

to, the Guideway. While every effort will be made to clear the Guideway as soon as practical,

the proper and complete investigation of any incident takes precedence over the disruption of

service and a return to service.

4.5.5 Any emergency condition that may affect operations or public safety that comes to the

knowledge of Tempe personnel or any actual emergency response action along the Guideway


shall be reported immediately to the VMR Operations Control Center to the extent

circumstances permit. Likewise, any emergency condition on a Tempe facility that may affect

operations or public safety that comes to the knowledge of VMR personnel, or any actual

emergency response action along a Tempe street, corridor, or facility including portions in the

operational throughway initiated by VMR personnel shall be reported immediately to Tempe or

appropriate contact to the extent circumstances permit.

4.5.6 VMR shall cooperate with any accident investigation conducted by Tempe providing

access to records and documents pertinent to the investigation in possession or control of VMR.

SECTION 5.0

POLICE/SECURITY/FARE EVASION ENFORCEMENT

5.1 VMR will provide security for passengers on trains, at stations, and on the System at a

level and using a means, that VMR and the Member Cities determine to be appropriate.

Interface between VMR and Tempe regarding security procedures for the System will be

coordinated through Regional Security Team meetings. Nothing in this Section restricts state

and local police powers, as authorized by state and local laws.

5.2 VMR is responsible for making arrangements for System fare evasion enforcement,

code enforcement, law enforcement, and security.

SECTION 6.0

DISPLAYS AND SPECIAL EVENTS

6.1 Displays

6.1.1 Within the Guideway

No displays or attachments, unrelated to System Operations, will be placed within, over, or on

facilities within the Guideway including, but not limited to, OCS poles, traffic signal poles, station

platforms, or pedestrian signal poles.

6.1.2 Outside the Guideway

6.1.2.1 Tempe shall be responsible for issuing permits for display of non-operational materials

on OCS poles, joint use poles, or other System facilities outside the Guideway.


6.1.2.2 Under no circumstances will a permit be issued by Tempe for any activity, event,

display, or attachment that would in any way interfere with the safe operation or maintenance of

the System.

Permits shall clearly identify the limits of installation and activity in detail and include: (1) a

scaled diagram of all proposed displays and attachments with specific dimensions incorporated

into the diagram, (2) an identification of the timeframes for installation, (3) a description of the

manner and methods of installation (including all tools and equipment intended to be utilized

and the manner of utilization), (4) and the display interval and activity interval. VMR has the

right to perform the installation and removal of any such display or attachment to its OCS poles.

Cost reimbursement for installation/removal will be detailed by VMR on permit.

6.1.2.3 The permit shall require the permittee to notify the VMR Operations Control Center,

Tempe’s Public Works Director or designee, and any other persons required by the permit to be

notified before commencing any activity under the permit.

6.1.2.4 After consultation with Tempe and irrespective of whether Tempe has issued a permit,

VMR has the right to remove any banner or attachment, and to prohibit any activity or event

when, in the opinion of VMR such action is necessary for the safe operation or maintenance of

the System.

6.2 Special Events

6.2.1 VMR and Tempe shall work together on the City’s Special Events Task Force. Special

Events are defined as those events occurring within the public way, for a purpose, and

controlled by the City through a permit process.

6.2.2 Permit requests for Special Events crossing the Guideway or occurring directly adjacent

to the Guideway, shall be reviewed both VMR and the Tempe. In these situations, VMR shall

have an active role in the permit approval and must concur prior to issuance. Permit requests

for Special Events in locations other than adjacent to or crossing the Guideway shall be

reviewed by Tempe. In these situations, VMR shall serve as an advisor only.


SECTION 7.0

TRANSIT CENTER/PARK-AND-RIDE OPERATIONS

7.1 VMR’s Responsibilities

VMR will be responsible for the operation of the station platform, park-and-rides, and all utilities,

facilities, and infrastructure associated with the same. At park-and-rides where City

development occurs, VMR shall only be responsible for those areas available for park-and-ride

use.

7.2 Tempe’s Responsibilities

Tempe is responsible for the operation and security of all Transit Centers and all utilities,

facilities, and infrastructure associated with the same. At park-and-rides where City

development occurs, Tempe shall take responsibility for those areas developed and not

available for park-and-ride use.

SECTION 8.0

OPERATIONS COSTS

8.1 Fiscal Responsibility

Each Party is fiscally responsible for all their respective operational activities identified in this

Agreement.

8.2 Operations Budget

VMR shall establish an operations budget annually subject to Board approval.

8.3 Service Agreements

VMR or the City may require support to perform the operational activities within each area of

responsibility. At the discretion of the responsible Party, services may be performed by the

other. These services shall be defined with service agreements or similar contracts.

SECTION 9.0

REVENUE/FARE POLICY

VMR and all Member Cities shall develop a separate agreement addressing, at a

minimum, the distribution of fare box revenues, the process of accounting with respect to

revenue, operations, and maintenance and the distribution of revenue received through existing


and future pass programs. Additionally, the annual budget processes will be further defined to

align with Tempe accounting processes.

(Remainder of page intentionally left blank)

EXHIBIT C VMR/Tempe O&M Agreement March 2016

EXHIBIT C - SYSTEM MAINTENANCE

C-1

VMR/Tempe O&M Agreement March 2016

SECTION 1.0

DEFINITIONS

The terms defined in Section 1.0 of this Agreement and Exhibit B of the O&M Agreement

are incorporated into and made a part of Exhibit C.

SECTION 2.0

GENERAL

2.1 The System and Occupied Tempe Property will be maintained by VMR in a manner

consistent with this Agreement, with Tempe rules, requirements, ordinances, and codes, and as

governed by applicable state or federal law. The System and Occupied Tempe Property will be

maintained in a neat, clean, and orderly condition. Without limiting the foregoing, VMR will keep

the Occupied Tempe Property free of weeds, trash, garbage, and unsightly or deleterious

objects or structures, and will keep the System and all Occupied Tempe Property free from

graffiti.

2.2 VMR may perform maintenance activities without restriction as long as the work does

not interfere with roadway or pedestrian traffic or require access through property other than

Occupied Tempe Property. VMR will obtain a permit as required by Tempe for all other

maintenance activities other than repairs associated with a bona fide emergency.

SECTION 3.0

PROTECTION OF ADJACENT FACILITIES

3.1 Adjacent Facilities shall be reasonably protected when maintenance activities are

occurring. If, through installation, use, or maintenance, an Adjacent Facility is disturbed or

damaged, the Party responsible will, at its own expense restore or repair the facility in as good a

condition as before such damage or disturbance.

3.2 If such restoration, repair, or replacement is not completed within a reasonable time, or

such repair or replacement does not meet the owner’s duly adopted standards, or if no

standards, to the standard governing its original construction updated to the current level of

technology, the owner shall have the right to perform the necessary restoration, repair, or

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replacement, either through its own forces or through a hired contractor. The non-compliant

party shall reimburse the owner for its expenses in so doing within thirty (30) days after receipt

of the invoice therefor.

3.3 VMR agrees to reimburse Tempe for all costs arising from the reduction in the service

life of any public road resulting from pavement cuts made at the direction of VMR. VMR shall

pay such costs, within thirty (30) days from the date of the invoice.

3.4 VMR agrees to be a member of Arizona 811 or other utility identification organization as

applicable and to adhere to the requirements associated with such. VMR is responsible for

locating System ductbanks from the System traffic backbone to the signal cabinet.

SECTION 4.0

NOTICE AND APPROVALS

4.1 Prior to the performance by VMR of any maintenance or repair work on improvements

constructed upon the Guideway (other than routine maintenance or repair that does not interfere

with traffic, or work that is a bona fide emergency), VMR will obtain a permit as required by

Tempe in connection with such work, and shall abide by the requirements thereof that are not

preempted by state or federal law or regulation. In this context, a VMR bona fide emergency is

defined as a situation where the public’s safety is jeopardized or there is a service headway

disruption. Tempe may require that repair and maintenance work be done during off-peak traffic

times to minimize traffic disruptions. Notwithstanding the foregoing, Tempe understands and

acknowledges that there may be instances when VMR is required to make repairs, in

compliance with federal and/or state codes, that are of an emergency nature. VMR shall notify

Tempe’s Public Works Department prior to making such repairs and if practicable will obtain the

necessary permits within a reasonable time after notification.

4.2 With respect to maintenance and repair work to be performed pursuant to this Section,

Tempe and VMR shall use their best efforts to avoid disruption of traffic and System service for

maintenance and other work and, to the extent practicable, shall perform work during off-peak

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traffic times to minimize disruptions to System Operations, business, and traffic. In cases of

emergency or urgent circumstances, the Party affecting the repair shall immediately notify and

cooperate in good faith with the other Party.

4.3 Written notice to VMR shall be addressed to or as otherwise directed:

Valley Metro Rail c/o Chief Operations Officer 101 N. First Avenue, Suite 1300 Phoenix, AZ 85003

4.3.1 Verbal notice to VMR shall be to or as otherwise directed:

VMR Operations Control Center

4.4 Written notice to Tempe shall be addressed to or as otherwise directed:

City of Tempe c/o Public Works Director 31 E. 5th Street Tempe, AZ 85280

4.4.1 Verbal notice to Tempe shall be to or as otherwise directed:

Tempe Traffic Operations Center

4.5 Notwithstanding Section 4.1 and 4.2, Table C-1 and Table C-2 provide the requirements

regarding notice and approvals for maintenance activities.

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Table C-1 Valley Metro Rail Notice and Approvals Type of Work

Examples

Required Notice

Approval

Timeframe

Approval Form

Notes

VMR Routine

Maintenance

• Inspections • Replacement of bulbs

and lenses in LRV signals

• Cleaning • Switch adjustments

None N/A N/A

All work must be within Guideway and cannot block or impede Tempe operations.

VMR Routine

Maintenance in Traffic Lanes

• Inspections • Cleaning

• If inspections or cleanings are after normal operational hours, progressively advance along the roadway, or last for less than 30 minutes, no permit is required, otherwise;

• VMR will notify Tempe in writing 5 days prior to work

• VMR will contact Tempe’s traffic management center immediately prior to work

• Tempe will address initial notice within 3 days

• Tempe will provide verbal approval to start work at initiation

Tempe will issue a written permit and verbal approval on

day of work.

VMR will comply with Tempe traffic control guidelines when working outside the Occupied Tempe Property

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VMR Non-Routine Maintenance

• Renewal of track surface at grade crossings or intersections

• Repair of OCS above streets or public right of way

• Repair of clearance signage

• Utility vault inspection and maintenance

• VMR will notify Tempe in writing 5 days prior to work

• VMR will contact Tempe’s traffic management center immediately prior to work

• Tempe will address initial notice within 3 days

• Tempe will provide verbal approval to start work at initiation

• Tempe will issue a written permit and verbal approval on day of work.

VMR will comply with Tempe traffic control guidelines when working outside the Occupied Tempe Property.

VMR Emergency

Maintenance

• Repair work required to operate the System

• Structural failure of facility

• De-Railed vehicle • Repair of fallen OCS

wire • Stalled vehicle within

the guideway

• Discretionary. Situations involving the public directly - call 911.

• None required for emergency situations.

• None issued for emergency situations.

VMR agrees to address emergency expeditiously and to renew roadway traffic within a reasonable timeframe. VMR shall notify Tempe of any delays that could affect traffic operations. Non-emergency repairs will be scheduled as Non-Routine.

Table C-2 Tempe Notice and Approvals

Type of Work

Examples

Required Notice

Approval

Timeframe

Approval Form

Notes

Tempe Maintenance

Outside of Guideway

• Roadway Inspections

• Roadway Rehabilitation

• Signals • Cleaning

None N/A

All work must be outside of the Occupied Tempe Property and cannot interfere with VMR operations.

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• Lights • Signs • Misc. maintenance • Sidewalk Work • Landscape

Maintenance • Tree Trimming (>3’

from Guideway)

Tempe Maintenance

Within Guideway

• Pedestrian Signal Work

• Utility Inspections • Building Inspections • Signage • Lighting • Access to lighting • Tree Trimming (<3’

from Guideway)

• Tempe will secure Track Access Permit

• Tempe will call VMR’s Control Center 30 minutes prior to access

• Track Access requests are addressed once per week

• VMR will issue a Track Access Permit

Tempe will comply with VMR’s procedures for working in and around an operating light rail system.

Tempe Maintenance Emergency

• Traffic Accident • Structural failure of

facility • Downed Trees within

Guideway

• Tempe Fire/ Police agree to verbally notify VMR of emergency situations on or adjacent to the Guideway

• None required for emergency situations.

• None issued for emergency situations.

Tempe agrees to address the emergency expeditiously and to renew VMR’s ability to operate within a reasonable timeframe. Non-emergency repairs will be scheduled.

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SECTION 5.0

MAINTENANCE RESPONSIBILITIES

5.1 General

5.1.1 VMR’s maintenance responsibilities extend to the System and System Facilities located

within the Occupied Tempe Property including within the Guideway. Table C-3 provides an

overview of maintenance responsibilities.

5.1.2 Except as specified in Section 5.9 herein, VMR’s maintenance responsibilities include

the maintenance of all facilities within the Guideway (see Figure 1) and facilities in direct support

of VMR’s operations. These facilities include, but are not limited to, the rail and all

appurtenances, trackslab, switch machines, and track drains to the point of connection to

drainage trunk lines, the train signal system, and the traction power system including poles,

foundations, wires, hangers, traction power substations, and signal bungalows.

Also included are retaining walls used to retain materials above or under the trackslab,

artwork, retaining wall drains, station platforms and all station platform elements including but

not limited to canopies, drinking fountains, benches, landscaping, and ticket vending machines.

5.2 Signage

5.2.1 VMR is responsible for all System signage inside and outside the Guideway.

5.2.2 VMR is responsible for Tempe traffic signs within the Guideway pertaining to safe

rail or traffic operations, including, but not limited to, R15-6 (No Vehicles on Tracks), R15-8

(LOOK), R6-1 (One Way), R4-7 (Keep Right), and R9-3 (pedestrian prohibition) signing.

5.2.3 VMR is also responsible for the following signs outside of the Guideway: all high

voltage/low-clearance warning signage for the rail System and any wayfinding or informational

signage for light rail facilities.

5.2.4 Tempe is responsible for all traffic signs outside of the Guideway intended for

automobile, pedestrian and bicycle travel including, but not limited to, R2-1 (speed limit), R8-8

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(Do Not Stop on Tracks), W10-1 (railroad crossing), R1-1 (STOP), R6-1 (One Way), R3 series

overhead and ground mounted lane-use and turn prohibition.

5.2.5 Tempe is also responsible for all guide, recreational, cultural and informational

signs not related to rail operations and all pedestrian information plaques for signal control

within the Guideway.

5.3 Park-and-Rides

5.3.1 VMR is responsible for the maintenance activities of park-and-rides directly and adjacent

to and supporting a light rail station including the pavement, striping, lighting, structures,

landscaping, irrigation, fencing, artwork, and all other elements associated with the park-and-

ride facilities beyond the public right of way unless otherwise assumed by Tempe or assigned

by Tempe in development agreements.

5.3.2 At park-and-rides where City development occurs, VMR shall only be responsible for

those areas available for park-and-ride use. Tempe shall take responsibility for those areas

developed and no longer available for park-and-ride use.

5.4 Transit Centers

5.4.1 Tempe is responsible for the maintenance activities for Transit Centers including

sidewalks, landscaping, irrigation, fencing, artwork, and all other elements associated with

Transit Centers. It may be mutually beneficial for VMR and Tempe to share maintenance

activities.

5.4.2 VMR shall be responsible for the acquisition and maintenance of the Transit Center

bench/shade structure “Kit of Parts” at all Transit Center locations where the bench/shade

structures share a common architectural theme as the adjacent station platform.

5.4.3 The definition of Transit Center is found in Exhibit B.

5.5 Lighting

5.5.1 VMR is responsible for the maintenance of platform lighting and park-and-ride lighting

including the poles, luminaires, bulbs, and all other appurtenances associated with the lighting.

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5.5.2 Tempe is responsible for all other lighting; Tempe’s Streets Traffic Signal Section shall

maintain lights on traffic signal poles and Tempe’s Street Lighting Section shall be responsible

for all other lights. VMR shall be responsible for the maintenance of OCS poles securing

pedestrian lights. Tempe is responsible for the maintenance of the pedestrian lights.

5.5.3 Maintenance of lights adjacent to or over the Guideway, requiring work from within the

Guideway, shall be maintained only after securing a Track Access Permit from VMR - see

Exhibit G. Maintenance of lights within 3 feet of the Guideway or 10 feet from the OCS wires,

regardless of location with respect to Guideway, shall occur only after securing a Track Access

Permit from VMR - see Exhibit G.

5.5.4 Maintenance of lights requiring a Track Access Permit shall be performed during non-

operational periods.

5.6 Corrosion Control

5.6.1 Pre-Revenue Service

5.6.1.1 Stray current tests will be performed to determine the performance of the System and

make any corrections or repairs. This test will serve as the baseline test for future stray current

monitoring.

5.6.1.2 Testing will be done by connecting test equipment to the stray current test stations

installed in the track slab. Testing shall be performed by a National Association of Corrosion

Engineers (NACE) certified corrosion specialist.

5.6.2 Revenue Service

5.6.2.1 VMR will have an annual stray current monitoring program to identify stray current which

may be emanating from the rail system.

5.6.2.2 The track slab will be vacuum broomed no less than once a month or more often as

necessary to keep the flangeway and track clean and free of debris.

5.6.2.3 The track will be inspected on an ongoing basis to identify problem areas of the

rail, rail-boot assembly, and switch areas. Block outs for switch machines, impedance bonds,

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and cross-bonding will be inspected to insure the drainage pathway is clear of debris which

could impede drainage of storm water.

5.6.4 On-going Stray Current Monitoring

5.6.4.1 Upon commencing Revenue Service and as long as the light rail system operates, stray

current testing will be performed annually. VMR shall promptly deliver to Tempe upon request

the results of all stray current tests.

5.6.4.2 During stray current tests, a chart recorder will be connected to the test stations. Testing

will be for 1 to 2 hours for each location. The results will be collated into a report and the report

and all collected data shall be made available to Tempe.

5.6.4.3 Rail to earth resistance testing will be performed in discrete sections between insulated

joints. Two rails will be tested concurrently and if test results are below the design criteria (100

ohms per 1000 track feet embedded and 250 ohms per 1000 track feet ballasted & direct

fixation) then each rail will be tested individually to isolate the problem area for correction. Prior

to rail to earth testing the leads from the impedance bonds to the track will be removed as will all

cross-bond leads. The results will be collated into a report and the report and all collected data

shall be made available to Tempe.

5.6.5 Stray Current Remedy

In the event it is determined that the information provided above indicates stray current

from the light rail system is occurring, VMR shall determine and remedy the cause of stray

current, and Tempe may retain an Engineer certified by NACE to review the data provided by

VMR. This NACE certified professional may provide a professional opinion of any possible ill

effects on water and wastewater utilities within 20’ of the light rail tracks. Upon agreement by

both Parties, further investigation shall occur to determine extent of damage. If the investigation

reveals no damage, the Tempe shall bear the cost of the investigation. If damage caused by

stray current is proven by the investigation, VMR shall pay for the investigation and all

necessary repairs to bring the system into compliance with the original design.

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5.7 Not Used

5.8 Storm Drainage

5.8.1 VMR is required to ensure all storm water gathered in the Guideway meets the

requirements of the Environmental Protection Agency (EPA) National Pollution Discharge

Elimination System (NPDES) for a Municipal Separate Storm Sewer System (MS4).

5.8.2 VMR is responsible for all drainage facilities within the Guideway, park-and-rides, and

traction power sites including catchments, piping, and cleanouts. The limits of responsibility

extend outside the Guideway to the point of connection with Tempe’s drainage infrastructure.

5.9 Traffic Signal System and Blankout Signs

5.9.1 VMR is responsible for the maintenance of train detection loops and the communication

lines connecting the Guideway to Tempe’s signal controller at each signalized intersection.

Tempe is responsible for the light rail signal software installed on the City’s traffic controller

located at each signalized intersection.

5.9.2 Tempe is responsible for the maintenance of all traffic signals, pedestrian signals, train

block signals and blankout signs located both within the Guideway and adjacent to the

Guideway. Tempe maintenance personnel working on pedestrian and traffic signal equipment

located within the Guideway must contact VMR’s Operations Control Center, prior to entering

Guideway, for approval to proceed. Tempe maintenance personnel working on traffic signal

equipment within 3 feet of the Guideway or 10 feet of the OCS wires, regardless of location with

respect to Guideway, shall perform such work only after securing approval from VMR’s

Operations Control Center.

5.9.3 Any OCS pole or traffic signal pole damaged and impacting through traffic or train

movements shall be considered an emergency situation.

5.10 Crossing Gates

System gates, associated with the System, are the responsibility of VMR.

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5.11 Artwork

5.11.1 VMR is responsible for artwork at any location designated as Occupied Tempe Property

including but not limited to the Guideway, station platforms, and park-and-rides.

5.11.2 Pre-existing artwork reinstalled by VMR remains the responsibility of Tempe.

5.12 Pavement

Tempe is responsible for pavement surfacing outside of the Guideway. At grade

crossing locations and shared use areas, VMR shall be responsible for pavement grinding

within the Guideway. Tempe shall be responsible for identifying and requesting action by VMR.

VMR shall have 30 days to secure the necessary pavement grinding services and 60 days to

complete the pavement grinding services.

5.13 Structures

5.13.1 VMR is responsible for the inspection and maintenance of the Tempe Town Lake Bridge

(TTLB). The elements included in this responsibility are the bridge abutments, steel trusses,

approach walls, bridge deck, railings, System equipment, bridge artwork, and all other facilities

associated with the bridge. Additionally, the landscaping located adjacent to the TTLB on the

west and south side of the Rio Salado Parkway from TPSS No. 10 to just west of the TTLB is

included as a VMR responsibility.

5.13.2 Tempe shares the responsibility for the maintenance of the roadway elements on the

Tempe Canal Bridge with the City of Mesa including but not limited to paving, striping,

sidewalks, bike lanes, traffic signals, and cleaning.

Table C-3 Maintenance Responsibilities

Subject Responsible Agency

VMR Tempe Trackway Rail, rail boot, flangeway, trackslab, and track curb (as applicable) x Rail, ties, ballast, and ballast curbs (as applicable) x Station Platforms x Asphalt or concrete paving within Guideway x Special trackwork (incl. switches, turnouts, etc.) x Track Curb including the drainage flow-through curb x Signaling and Control

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Light rail signals (heads, brackets, lenses, bulbs, ductbanks, and other appurtenances)

x

Traffic signals (poles, arms, heads, lenses, bulbs, and other appurtenances including blankout signs)

x

Pedestrian signals x Pedestrian gates x Intersection signal cabinet x Intersection signal controller x Light rail switch cabinet/controller x Train loops/detectors (all included to cabinet) x Traffic loops/detectors (all included to cabinet) x Roadways Roadway pavement, curb, gutter, and sidewalk x Striping, including striping across the Guideway x Storm drainage system for roadway x Guideway storm drainage system (To connection point incl.

manholes) x

Traction Power System OCS poles and foundations x OCS wires, brackets, and hangers x Traction power substations and associated site x Duct banks from Guideway to TPSS site x Street Lighting Street Lighting on Traffic Signal Poles x Pedestrian Lighting on OCS Poles x Pedestrian/Street Lighting x Landscaping Landscaping within Occupied Tempe Property including stations x Landscaping at east end of Tempe Town Lake Bridge near TPSS x Landscaping outside Occupied Tempe Property x Park-and-Ride Facilities All facilities x Transit Centers All facilities x Structures Tempe Town Lake Bridge and all appurtenances x Tempe Canal Bridge (paving, striping, cleaning) x Signs System signage x Park-and-ride signage x Traffic signs x System Wayfinding signs x Traffic Signage in Guideway x Water Facilities Corrosion Control monitoring of Rail and Transformers x Waterline inspection and monitoring x Miscellaneous Fencing (defining Occupied Tempe Property) x Fencing x

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General maintenance (within Occupied Tempe Property) x General maintenance (outside Occupied Tempe Property) x Artwork x Beach Park Artwork Bench x

SECTION 6.0

SAFETY

Tempe shall be responsible for assuring that key Tempe personnel or its contractors,

when working in the Guideway are certified by VMR in proper safety procedures prior to

entering the Guideway. Certification tags or other identification will be issued to certified

personnel and shall be carried at all times while within the boundaries of the Guideway. VMR

shall provide safety training and instruction to such personnel and contractors at periodic

intervals not to exceed one year. Safety training and instruction will be provided by VMR within

thirty (30) days after request is received as outlined in Exhibit G, Section 3.0.

SECTION 7.0

MAINTENANCE COSTS

7.1 Fiscal Responsibility

Each Party is fiscally responsible for the maintenance activities identified in this

Agreement, respectively.

7.2 Maintenance Budget

VMR shall establish a maintenance budget annually subject to Board approval.

7.3 Service Contracts

VMR or the City may require support to perform the maintenance activities within each

area of responsibility. At the discretion of the responsible Party, services may be performed by

the other. These services shall be defined with service contracts.

(Remainder of page intentionally left blank)

EXHIBIT D


EXHIBIT D - NOT USED

EXHIBIT E


EXHIBIT E - NOT USED

EXHIBIT F


EXHIBIT F - INSURANCE

F-1


SECTION 1.0

INSURANCE REQUIREMENTS

These insurance requirements herein are minimum requirements for this Agreement and

in no way limit the indemnity covenants contained in this Agreement. The City in no way

warrants that the minimum limits contained herein are sufficient to protect VMR from liabilities

that might arise out of the performance of the work under this Agreement by VMR, his agents,

representatives, employees or subcontractors and VMR is free to purchase additional insurance

as may be determined necessary.

1.1 Minimum Scope and Limits of Insurance

VMR shall obtain and maintain and/or cause to be obtained or maintained, coverage

with limits of liability not less than those stated below.

1.1.1 Commercial General Liability and if necessary Umbrella/Excess Liability - Occurrence Form

Policy shall include bodily injury, property damage, and broad form contractual liability

coverage.

• General Aggregate $100,000,000

• Products – Completed Operations Aggregate $100,000,000

• Personal and Advertising Injury $100,000,000

• Each Occurrence $100,000,000

The policy shall be endorsed to include the following additional insured language: "The

City of Tempe shall be named as an additional insured with respect to liability arising out

of the activities performed by, or on behalf of VMR".

1.1.2 Automobile Liability

Bodily Injury and Property Damage for any owned, hired, and non-owned vehicles used

in the performance of this Agreement.

Each Accident $2,000,000

1.1.3 Worker’s Compensation and Employers’ Liability

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Workers' Compensation Statutory

Employers' Liability

• Each Accident $100,000

• Disease – Each Employee $100,000

• Disease – Policy Limit $500,000

Policy shall contain a waiver of subrogation against the City of Tempe.

1.2 Additional Insurance Requirements

The policies shall include, or be endorsed to include, the following provisions:

1. On insurance policies where the City of Tempe is named as an additional

insured, the City of Tempe shall be an additional insured to the full limits of

liability purchased by VMR even if those limits of liability are in excess of those

required by this Agreement.

2. VMR's insurance coverage shall be primary insurance and non-contributory with

respect to all other available sources.

1.3 Notice of Cancellation

Each insurance policy required by the insurance provisions of this Agreement shall

provide the required coverage and shall not be suspended, voided, canceled, reduced in

coverage or endorsed to lower limits except after thirty (30) days prior written notice has been

given to the City and shall be sent by certified mail, return receipt requested.

1.4 Acceptability of Insurers

Insurance is to be placed with insurers duly licensed or approved unlicensed companies

in the state of Arizona and with an “A.M. Best” rating of not less than B+ VI. The City in no way

warrants that the above-required minimum insurer rating is sufficient to protect VMR from

potential insurer insolvency.

F-3


1.5 Verification of Coverage

VMR shall furnish the City with certificates of insurance (ACORD form or equivalent

approved by the City) as required by this Agreement. The certificates for each insurance policy

are to be signed by a person authorized by that insurer to bind coverage on its behalf.

All certificates and endorsements are to be received and approved by the City before

Revenue Service commence. Each insurance policy required by this Agreement must be in

effect at or prior to commencement of Revenue Service and remain in effect for the duration of

this Agreement. Failure to maintain the insurance policies as required by this Agreement or to

provide evidence of renewal is a material breach of contract.

All certificates required by this Agreement shall be sent directly to the City. The City

project/contract number and project description shall be noted on the certificate of insurance.

The City reserves the right to require complete, certified copies of all insurance policies required

by this Agreement at any time.

1.6 Subcontractors

Subcontractors providing primary Operations, LRV Maintenance, and System

Maintenance shall be included as additional insureds or insureds under the VMR Commercial

General Liability policy(ies).

1.7 Approval

Any modification or variation from the insurance requirements in this Agreement shall be

made by the Risk Management Section, whose decision shall be final. Such action will not

require a formal Agreement amendment, but may be made by administrative action.

EXHIBIT G


EXHIBIT G - TRACK ACCESS

G-1


SECTION 1.0

GENERAL

VMR is responsible for the Guideway in accordance with the current State Safety and

Security Guidelines.

SECTION 2.0

VMR TRACK ACCESS PERMIT

2.1 A Track Access Permit is required anytime access is needed to the Guideway or when

activities require either person or equipment is within 3 feet of the Guideway or 10 feet of the

overhead contact wire.

2.2 Tempe agrees to apply for a Track Access Permit and to follow VMR’s track access

procedures identified on the Track Access Permit before accessing the Guideway or working

within 3 feet of the Guideway or 10 feet of the overhead contact wire. Requirements stated on

the permit must be followed.

2.3 Tempe shall require all permitted construction activities within the City within 3 feet or

the VMR Guideway or 10 feet of the overhead contact wire to secure a track access permit from

VMR prior to the commencement of construction activities.

2.4 Emergency situations shall be precluded from Track Access Permit requirements

however, as circumstances permit, VMR’s Operations Control Center shall be notified of the

situation.

SECTION 3.0

TRACK ACCESS PROCEDURES

3.1 The procedure to secure a Track Access Permit is as follows:

1. Fill out one-page track access request detailing work location, access needs,

type of equipment to be used, whether overhead power needs to be shut down,

work times, and point of contact.

2. Attend VMR’s weekly track access meeting.

3. Notify VMR’s Operations Control Center prior to entering Guideway.

G-2


3.2 All workers performing work within the Guideway must maintain current track access

certification. VMR shall provide certification training at no cost upon 30 days of notice of

required training and upon successful completion of such training, issue the appropriate

certificate. An exception to the above is if the worksite is controlled by a watchman previously

certified by VMR and in possession of a valid certification. The use of watchmen shall be

indicated on the permit and VMR shall direct the permittee on the number of needed watchmen.

The permittee is required to supply the watchmen at no cost to VMR.

3.3 VMR may modify the Track Access Procedures as necessary to address safety or

security concerns.

OPERATIONS AND MAINTENANCE AGREEMENT …

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