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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 1.0 DEFINITIONS ................................................................................................................ 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 1.0 DEFINITIONS ................................................................................................................ 1
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.
2 VMR/Tempe O&M Agreement March 2016
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.
3 VMR/Tempe O&M Agreement March 2016
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.
4 VMR/Tempe O&M Agreement March 2016
5 VMR/Tempe O&M Agreement March 2016
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.
6 VMR/Tempe O&M Agreement March 2016
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.
7 VMR/Tempe O&M Agreement March 2016
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.
8 VMR/Tempe O&M Agreement March 2016
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
9 VMR/Tempe O&M Agreement March 2016
(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.
10 VMR/Tempe O&M Agreement March 2016
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
11 VMR/Tempe O&M Agreement March 2016
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.
12 VMR/Tempe O&M Agreement March 2016
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
13 VMR/Tempe O&M Agreement March 2016
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.
14 VMR/Tempe O&M Agreement March 2016
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
15 VMR/Tempe O&M Agreement March 2016
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
16 VMR/Tempe O&M Agreement March 2016
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.
B-2 VMR/Tempe O&M Agreement March 2016
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.
B-3 VMR/Tempe O&M Agreement March 2016
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.
B-4 VMR/Tempe O&M Agreement March 2016
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.
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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
B-6 VMR/Tempe O&M Agreement March 2016
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.
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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.
B-8 VMR/Tempe O&M Agreement March 2016
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
B-9 VMR/Tempe O&M Agreement March 2016
and future pass programs. Additionally, the annual budget processes will be further defined to
align with Tempe accounting processes.
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EXHIBIT C VMR/Tempe O&M Agreement March 2016
EXHIBIT C - SYSTEM MAINTENANCE
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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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
• 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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
(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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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.
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EXHIBIT D
VMR/Tempe O&M Agreement March 2016
EXHIBIT D - NOT USED
EXHIBIT E
VMR/Tempe O&M Agreement March 2016
EXHIBIT E - NOT USED
EXHIBIT F
VMR/Tempe O&M Agreement March 2016
EXHIBIT F - INSURANCE
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VMR/Tempe O&M Agreement March 2016
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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VMR/Tempe O&M Agreement March 2016
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.
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VMR/Tempe O&M Agreement March 2016
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
VMR/Tempe O&M Agreement March 2016
EXHIBIT G - TRACK ACCESS
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VMR/Tempe O&M Agreement March 2016
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.
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VMR/Tempe O&M Agreement March 2016
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.