Neither this Agreement nor any interest herein shall be assigned, pledged or otherwise transferred by the Operator without the prior written consent of the MBTA. If the Operator makes any such assignment, pledge or other transfer without the prior written consent of the MBTA, this Agreement shall be voidable at the election of the MBTA. The MBTA may impose such additional conditions or terms under this Agreement, in connection with its consent to any such assignment, pledge or other transfer, as may be deemed necessary to ensure the performance of the terms of this Agreement by the assignee. Moreover, unless otherwise agreed to in writing by the MBTA, any transfer by the Operator shall not release the Operator of its liability under this Agreement. NO WAIVER None of the provisions of this Agreement, unless otherwise specified, shall be considered waived by either Party unless such waiver is in writing and signed by both Parties. No such waiver shall be construed as a modification of any of the provisions of this Agreement or as a waiver of any past or future default or breach hereof, except as expressly stated in such waiver. SEVERABILITY In the event any provision of this Agreement, or of any Schedule or Exhibit hereto, shall be determined, declared, or adjudged invalid, illegal, unconstitutional, or otherwise unenforceable, such determination, declaration, or adjudication shall in no manner affect the remainder of this Agreement, which shall remain in full force and effect as if such provision declared, determined, or adjudged invalid, illegal, unconstitutional, or otherwise unenforceable, was not originally contained in this Agreement. HEADINGS NOT BINDING The headings appearing in this Agreement have been inserted for identification and reference purposes only, and are not to be considered as defining or limiting in any way the scope or intent of the provisions hereof. BINDING EFFECT This Agreement shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the Operator and the MBTA. NO THIRD PARTY BENEFICIARIES Nothing in this Agreement shall be deemed to create any right in any person not a Party hereto other than permitted successors and assigns of a Party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of a Third Party except as aforesaid. SURVIVAL
“MDEP” means the Massachusetts Department of Environmental Protection. “MDPU” means the Massachusetts Department of Public Utilities. “Mechanical Services” means the Agreement Services described in Schedule 3.3 (Mechanical Services), and all services functionally related thereto. “Mechanical Services Plan” means the plan described as part of the Mechanical Services in Schedule 3.3 (Mechanical Services). “Member” means any of [TBD – list members of the Operator if a limited liability company or a joint-venture]. "Mobilization Commencement Date" means [TBD]. “Mobilization Period” means the period beginning on the Notice to Proceed Date and ending on the Agreement Services Commencement Date. “Mobilization Plan” means the Mobilization Plan developed by the Operator and approved by the MBTA pursuant to Schedule 3.12 (Mobilization). “Mobilization Services” means those Agreement Services described in Schedule 3.12 (Mobilization) (and elsewhere in this Agreement that pertain to the Mobilization Services) that the Operator shall commence performing on the Mobilization Commencement Date, as more fully described in the Mobilization Plan, and all services functionally related thereto. “Monthly Fee” means the fee paid to the Operator for the performance of the Agreement Services for each Reporting Period, as set forth in Schedule 7.1 (Fees). “Monthly Passes” means joint-use tickets honored for transportation on MBTA subways, buses, and harbor ferries as well as within the Commuter Rail System. “Necessary Consents” means all licenses, permits, approvals, consents, authorizations, or agreements issued, granted or obtained, or required to be issued, granted or obtained, by or from any Governmental Authority, in connection with the provision or performance of the Services. “Net Annual Fee” means for each Agreement Year, the Annual Fee less Allowance Items, as set forth in Schedule 7.1 (Fees), Section 2 (Fixed Fee). “NORAC” means the Northeast Operating Rules Advisory Committee. “Normal consumption” means the steady, planned level use of materials and parts necessary to support the proper performance of the Agreement Services. “Normal replacement” means the scheduled replacement of a piece of Service Equipment or Support Property at the end of its life expectancy.
“Notice to Commence Services” means the issuance by the MBTA to the Operator of a written notice to proceed with the Agreement Services, specifying the Agreement Services Commencement Date. “Notice to Proceed” or “NTP” means the issuance by the MBTA to the Operator of a written notice to proceed with the Mobilization Services, upon the Operator’s fulfilling all of the conditions precedent, as set forth in Schedule 2 (Conditions Precedent), subject to any express waiver of a condition precedent by the MBTA. “Notice to Proceed Date” means the date of issuance of the NTP by the MBTA to the Operator. By way of clarification, the Notice to Proceed Date is the same date as the Mobilization Commencement Date. “Obsolete Material” means materials, equipment, and parts no longer required for use in the normal operation and maintenance of the Commuter Rail Property, and may include unique material that is only used under extraordinary circumstances, such as in an Emergency, and, once identified, should be kept on hand at a minimum book value. “OCC” means the Operations Control Center. “OEM” means the original equipment manufacturer. “Off-Peak Commuter Periods” means those times not denoted as Peak Periods on the public timetables published by the MBTA. “On-Time Performance” or “OTP” has the meaning assigned in Schedule 3.1 (Transportation Services). “Operating Rule Book” has the meaning assigned in Schedule 3.1 (Transportation Services). “Operator General Manager” or “OGM” means the current occupant of the position described in Schedule 3.9 (Management and Personnel). “Operator Remedial Performance Notice” has the meaning assigned in Schedule 6.1 (Performance Evaluation), Section 5 (Operator Notice of Failure to Achieve Performance Levels). “Operator Personnel” means all Eligible Union Employees and Eligible Management Employees who are hired by the Operator, and all other employees directly engaged by the Operator to perform any of the Services, but not including Subcontractors. As used in this Agreement, unless otherwise noted, the term “employee(s)” means Operator Personnel. “Other Contractors” means contractors engaged by the MBTA to perform work or services, other than the Services. “Other Required Work” means work related to the Agreement Services that a Third Party desires to subcontract to the Operator, and that the MBTA directs the Operator to perform subject to the provisions of Schedule 9 (Supplemental Work).
1. (a) Each Late Train (as determined in accordance with Section 1.1 (On Time Performance) of this Schedule 6.1 (Performance Evaluation)) shall be categorized as an L1P Train, an L1O Train, an L2P Train, an L2O Train, an L3P Train or an L3O Train, as follows: “L1P Train”: A Late Train operating during Peak Commuter Periods with an Adjusted Arrival Time of at least five minutes but less than 10 minutes after its Scheduled Arrival Time. “L1O Train”: A Late Train operating during Off-Peak Commuter Periods with an Adjusted Arrival Time of at least five minutes but less than 10 minutes after its Scheduled Arrival Time. “L2P Train”: A Late Train operating during Peak Commuter Periods with an Adjusted Arrival Time of at least 10 minutes but less than 20 minutes after its Scheduled Arrival Time. “L2O Train”: A Late Train running operating during Off-Peak Commuter Periods with an Adjusted Arrival Time of at least 10 minutes but less than 20 minutes after its Scheduled Arrival Time. “L3P Train”: A Late Train operating during Peak Commuter Periods with an Adjusted Arrival Time of at least 20 minutes but less than 40 minutes after its Scheduled Arrival Time. “L3O Train”: A Late Train operating during Off-Peak Commuter Periods with an Adjusted Arrival Time of at least 20 minutes but less than 40 minutes after its Scheduled Arrival Time. (b) Each Terminated Train (as determined in accordance with Section 1.1 (On Time Performance) of this Schedule 6.1 (Performance Evaluation)) shall be categorized as a T1P Train, a T1O Train, a T2P Train or a T2O Train as follows: “T1P Train”: A Terminated Train (as defined in Schedule 1 (Definitions)) operating during Peak Commuter Periods that is not terminated due to insufficient fuel. “T1O Train”: A Terminated Train (as defined in Schedule 1 (Definitions)) operating during Off-Peak Commuter Periods that is not terminated due to insufficient fuel. “T2P Train”: A Terminated Train (as defined in Schedule 1 (Definitions)) operating during Peak Commuter Periods that is terminated due to insufficient fuel. “T2O Train”: A Terminated Train (as defined in Schedule 1 (Definitions)) operating during Off-Peak Commuter Periods that is terminated due to insufficient fuel.
Services Fee Adjustment Form Service Change Number: Description: Category Direct Labor Costs Non-Labor Costs Annual Total $ (12 months) Number of Staff ("0" if Not a Direct Labor Cost) Number of Hours Worked in Year per Staff ("1" if Salary or Lump Cost) Wage Rate / Salary Overtime Cost (Including Taxes, Benefits) Benefits Uplift % for Wages, Excluding Overtime ("0%" if n/a) Service, Materials, or Utility Cost select # # $ or $/hr $ % $ $ Example 1 - a general manager ($) Direct Labor 1 1 $ 100,000.00 30.0% $ 130,000 Example 2 - laborers ($/hour) Direct Labor 20 2080 $ 21.93 $ 100,000 30.0% $ 1,285,974 Example 3 - cleaning cost Service 0 1 0.0% $ 1,000,000 $ 1,000,000 Admin/HR General Manager and Primary Direct Reports General Manager Direct Labor $ - Chief Engineer Direct Labor $ - Chief Transportation Officer Direct Labor $ - Customer Service Manager Direct Labor $ - Chief Mechanical Officer Direct Labor $ - Director - Finance, Accounting, and Administration Direct Labor $ - Manager - Safety Direct Labor $ - Manager - Quality Direct Labor $ - Legal and Compliance Direct Labor $ - Other Managers Direct Labor $ - Accounts/Payroll Direct Labor $ - IT, Data Analysis & Reporting Direct Labor $ - Planning and Performance Monitoring/Management Direct Labor $ - Sales/Marketing/Publicity Direct Labor $ - Labor Relations / Equal Op & Div Direct Labor $ - Human Resources and Training & Qualification Direct Labor $ - Safety and Security Direct Labor $ - Claims Management Direct Labor $ - Contracts and Procurement Direct Labor $ - Environmental Engineering Direct Labor $ - Materials Management Direct Labor $ - Accessibility Direct Labor $ - Clerical Support Direct Labor $ - Claims and Insurance Service $ - Legal & Professional Fees Service $ - Office Supplies & Services Service $ - Office Cleaning Service $ - Telcoms Service $ - Uniforms & Protective Clothing Materials $ - Spare Spare $ - Spare Spare $ - Spare Spare $ - Sub Total - Admin/HR - $ - Services Fee Adjustment Form
Operator MBTA Commuter Rail Additional Services and/or Extra Work Estimate Project Name A) Labor: Salaried $0 Non Operating FT - Straight Time $0 FT - Overtime $0 Other Labor Costs (Per Diem) $0 Total (A) $0 B) Fringe Benefits: $0 C) Equipment: $0 D) Materials: $0 E) Outside Services: $0 Sub-Total (A-E) $0 F) Management Fee: $0 Total: $0 EXTRA WORK ESTIMATE - LABOR PROJECT NAME DEPT DESCRIPTION RATE # EMPLOYEES REGULAR WORK WEEK WEEKEND WORK S.T. DOLLAR O.T. DOLLAR PER DIEM DAYS S.T.HRS O.T.HRS DAYS HRS LABOR TOTAL LABOR 0 0 0 PROJECT MANAGEMENT TOTAL MANAGEMENT LABOR 0 0 0
The Operator shall obtain and maintain in full force and effect, at its sole cost and expense, throughout the Term with financially sound and reputable insurance companies, policies of insurance, which shall include the following coverages: FELA or worker’s compensation insurance, as applicable, in accordance with Applicable Law. Automobile liability insurance for bodily injury and property damage with a combined single limit of not less than $5 million covering vehicles owned or leased by the Operator. Pollution liability insurance of not less than $25 million per occurrence. In the case of FELA/workers’ compensation insurance, the Operator may at any time during the Term submit to the MBTA for approval a proposal pursuant to which the Operator would self-insure in lieu of securing the insurance policy described in Section 1.1.1 of this Schedule 10 (Insurance) above. The MBTA shall review such proposal, including information relevant to the Operator’s financial stability and ability to discharge and satisfy any FELA or workers’ compensation claims for which the Operator is responsible pursuant to this Agreement. The MBTA either shall approve such proposal, such approval not to be unreasonably withheld, delayed or conditioned, or reject such proposal and provide a written explanation of the reasons for such rejection. At no time during the Term shall the Operator fail to maintain either a FELA/workers’ compensation insurance policy or an MBTA-approved self-insurance plan. Insurance Policies Except for instances in which the MBTA permits the Operator to self-insure, the Operator shall ensure that all insurance coverage it obtains pursuant to this Agreement is AM Best Rated at least A- throughout the Term of the Agreement. The insurance specified in this Schedule 10 (Insurance) shall be secured through insurance companies authorized to do business in the Commonwealth or otherwise approved by the MBTA, and shall be in force on or before: the issuance of the Notice to Proceed, with respect the coverages required by Sections 1.1.1 and 1.1.2 of this Schedule 10 (Insurance) for the activities and Operator Personnel engaged during the Mobilization Period; and the Agreement Services Commencement Date, with respect to the coverages required by Sections 1.1.1, 1.1.2 and 1.1.3 of this Schedule 10 (Insurance) with respect to the full performance of the INSURANCE
the effect or the anticipated effect of such event on such Party’s obligations under this Agreement; and a description of the steps taken and/or proposed to be taken by such Party to prevent the occurrence of, and/or to mitigate and minimize the effects of the event, and, in the case of the Operator claiming relief, to restore the provision of the Agreement Services; exercise all reasonable efforts to continue to perform its obligations in accordance with the provisions of this Agreement to the maximum extent possible; expeditiously take action to correct or cure the event to the extent practicable; exercise all reasonable efforts to mitigate or limit damages or losses arising from the event or condition; and promptly, but not later than two Business Days after, notify the other Party of the cessation of the event. CONSEQUENCES OF FORCE MAJEURE EVENTS The Party claiming relief shall not be responsible for any failure to perform any of its obligations under this Agreement, nor shall there be any breach of this Agreement, if and to the extent that such failure is caused by any Force Majeure Event. Following the occurrence of a Force Majeure Event, the payment of the Annual Fee shall continue unaffected, unless the provisions of Schedule 7 (Payments) otherwise apply.