Tri-Rail Downtown Miami Link Access, Operating and Funding Agreement between Florida East Coast Railway, L.L.C., All Aboard Florida Operations LLC and South Florida Regional Transportation Authority, dated August 8, 2016

This TRI-RAIL DOWNTOWN MIAMI LINK ACCESS, OPERATING AND FUNDING AGREEMENT (the “Agreement”) is made as of the Effective Date (as defined herein) by and among FLORIDA EAST COAST RAILWAY, L.L.C., a Florida limited liability company whose address is 7411 Fullerton Street, Suite 300, Jacksonville, Florida 32256 (“FECR”), ALL ABOARD FLORIDA-OPERATIONS LLC, a Delaware limited liability company whose address is 2855 Lejeune Road, 4th Floor, Coral Gables, Florida 33134 (“AAF”), and SOUTH FLORIDA REGIONAL TRANSPORTATION AUTHORITY, a regional transportation authority created pursuant to Fla. Stat. §§ 343.51—343.58 whose address is 800 N.W. 33rd Street, Pompano Beach, Florida 33064 (“SFRTA”).

These definitions shall apply to this Agreement:

“AAF Exclusive Tracks” – shall have the meaning set forth in Section IV.1.d. herein.

“AAF Lender” – shall have the meaning set forth in Section XVI.2. herein.

(ii)         on or about the Corridor, the Viaduct/Station Segment or in the MiamiCentral Station for any purpose related to the AAF Intercity Passenger Railroad Service, including parking or purchasing tickets therefor, and coming to, waiting for, leaving from locomotives, rail cars, or rail equipment; or

(iii)         meeting, assisting, or in the company of any person described in clause (i) or (ii).

“Access Fee” – shall have the meaning set forth in Section V.2. herein.

“Additional Costs” – shall have the meaning set forth in Section II.9.d. herein.

“Additional Non-SFRTA Commuter Rail Costs” – shall have the meaning set forth in Section II.9.e. herein.

“Additional Trains” – shall have the meaning set forth in Section II.9.d. herein.

“Ancillary Agreements” – shall collectively mean the Loan Agreement (if SFRTA elects to execute); the Revenue Agreements, as amended; the Tri-Rail Trackage Improvements Agreement; the Development Agreement; and the Joinder.

“Approved Plans and Specifications” – shall have the meaning set forth in the Development Agreement.

 

“Assignment Conditions” – shall have the meaning set forth in Section VIII.2.b. herein.

“Cost of Tri-Rail Station Improvements” – shall mean $48.9 million, as more particularly described in Exhibit B which is to be funded by the contributions more particularly described in Exhibit B, plus the cost of any Change Orders.

“Cost of Tri-Rail Trackage Improvements” – shall mean $16.19 million, as more particularly described in Exhibit C, plus the cost of any Change Orders approved by both AAF and SFRTA.

“Credit Amount” – shall have the meaning set forth in Section XX.4. herein

“DCA” – shall mean the Design and Construction Agreement described in Section VI.1. herein.

“DCRE” – shall mean that certain Declaration of Covenants, Restrictions and Easements entered into by DT Miami LLC, a Delaware limited liability company (“DT Miami”) and recorded in Official Records Book 30057, Page 1740, of the Public Records of Miami Dade County, Florida, as amended, which agreement sets forth the structure in which the different elements, Station (including Tri-Rail Station Improvements), Residential, Office, Retail and Shared Facilities of the MiamiCentral Project, are integrated and the easements, covenants and costs allocated to the ownership entities.

“Declarant” – shall have the meaning set forth in the DCRE.

“Deficiency” – shall have the meaning set forth in Section I.6.e.

“Development Agreement” – shall have the meaning set forth in Section VI.2. herein.

“Dispatch Costs” – shall mean the cost incurred by FECR for dispatching services in the Corridor and the Viaduct/Station Segment.

“Dispute Resolution Process” – shall mean the process outlined in Section XI and Exhibit E.

“Dual Obligee Rider” – shall have the meaning set forth in Section VI.2. herein

“Easement” – shall have the meaning set forth in Section V.1.a. herein.

“Easement Agreement” – shall have the meaning set forth in Section V.1.a. herein.

“East/West Segment” – shall have the meaning set forth in Exhibit D.
 

“Effective Date” – shall have the meaning set forth in Section X.2 herein.

“Embankment” – shall mean the embankment constructed to support the track beginning at Station 19262+30 and ending at Station 19276+20.27 (the transition point to the Viaduct).

“Escalation Percentage” – shall have the meaning set forth in Section IV.2.C.

“Escrow Agreement” – shall mean the agreement described in Section I.2.e.

“Existing IRIS Crossing” – the existing, at-grade railroad crossing between the SFRC and the Corridor located in Miami-Dade County.

“FDOT” – shall mean the Florida Department of Transportation.

“FECR Operating Rules” – the operating rules adopted by FECR and provided, in writing, to SFRTA as indicated herein.

“FECR Rail Corridor Invitee” – shall mean any Rail Corridor Invitee who is present on the Corridor or the Viaduct/Station Segment at the request of, or pursuant to a contract with, or otherwise for the purpose of doing business with or at the behest of FECR. For the avoidance of doubt “FECR Rail Corridor Invitee” does not include patrons at any station; commercial or residential tenants of the developments in and around the stations or their invitees, or any third parties performing work at a station or in the Corridor, such as employees and invitees of PI or related entities, utilities and fiber optic companies or others who may be performing work in the Corridor, or invitees or employees of FDOT and any county or municipality performing work in the Corridor.

“Final Acceptance” – shall have the meaning set forth in the Development Agreement.

“FRA” – shall mean the Federal Railroad Administration.

“FRA Acceptance” – shall have the meaning set forth in Section I.6.f.

“Freight Railroad Service” – shall mean any and all uses and purposes that are related to or ancillary to current and future freight railroad operations on, along, over, under and across the Corridor, including operating trains, rail cars, business cars, locomotives, hi-rail vehicles and other rail equipment for the movement of freight in overhead and local service; interchanging rail cars with other freight railroads; providing pickups, setoffs, transloading services or storage in transit; and any and all other activities that are ancillary or related to the transportation of freight on or along the Corridor.

“Future New River Bridge” – shall mean the bridge proposed to be constructed by FDOT over the New River in Fort Lauderdale, FL (“New River”) adjacent to the existing FECR bridge over the New River.

“Intercity Passenger Railroad Service” – shall mean all passenger service on the Corridor and the Viaduct/Station Segment other than Commuter Railroad Service and is characterized by making less frequent stops along the Corridor and the Viaduct/Station Segment than the Commuter Railroad Service.”

“Interest Amount” – shall have the meaning set forth in Section XVI.2 herein.

“Insurance Coverage Limit” – shall have the meaning set forth in Section VIII.4.c. herein.

“Joinder” – shall have the meaning set forth in Section VI.2. herein.

“Joint Infrastructure” – shall mean the Corridor and that portion of the Viaduct/Station Segment that does not contain AAF Exclusive Tracks or SFRTA Exclusive Tracks and portions of the MiamiCentral Station used by both AAF and SFRTA, such as, but not limited to, stairs, elevators and escalators.

“Lease” – – shall have the meaning set forth in Section V.1.b. herein.

“Legislative Amendments” – shall mean the changes to the Florida statutes that make such statutes consistent with the requirements for Liability and Insurance that are set forth in Section VIII of this Agreement.

“Lender” – shall mean the lender or lenders of AAF or AAF’s affiliates for the MiamiCentral Station or the trustee with respect to the bond holders.

“Limited Covered Accident” – shall mean:

a)          A collision directly between the trains, locomotives, rail cars, or rail equipment of SFRTA and FECR only, where the collision is caused by or arising from the willful misconduct of FECR or its subsidiaries, agents, licensees, employees, officers, or directors (as adjudicated pursuant to a final and non-appealable court order) or where punitive damages or exemplary damages are awarded due to the conduct of FECR or its subsidiaries, agents, licensees, employees, officers, or directors (as adjudicated pursuant to a final and non-appealable court order); or

“Loan Agreement” – shall mean the agreement governing financing of the Tri-Rail Station Improvements, as described in Section XVI.2.

“Local Government Prompt Payment Act” – shall have the meaning set forth in Exhibit E.

“Memorandum of Lease” – shall mean the memorandum of lease to be recorded in the Public Records of Miami-Dade County Florida to provide notice of the Lease.

“MiamiCentral Project” – shall mean the project in Downtown Miami that includes the MiamiCentral Station, office, residential and/or retail components of the project, as currently identified in Exhibit A.

 “MiamiCentral Station” – shall mean the All Aboard Florida station in Downtown Miami, which includes the Tri-Rail Station Improvements, as identified in Exhibit A and defined as the “Station Element” in the DCRE.

“MiamiCentral Station Common Area Maintenance Costs” – shall have the meaning set forth in Section IV.1.a. herein.

“Monthly Dispatch Costs” – shall have the meaning set forth in Section II. 11. herein.

“New IRIS Improvements” – shall mean the new connection between the SFRC and the Corridor located northeast of the Existing IRIS Crossing for the transfer of trains from and to the FDOT-owned SFRC from and to a portion of the Corridor and other improvements on either: (1) the Corridor to accommodate the operation of SFRTA Commuter Railroad Service on the Corridor; or (2) on the SFRC.

“Non-Disturbance Agreement” – shall have the meaning in Section I.l.d. herein.

“Non-SFRTA Commuter Railroad Service” – shall have the meaning set forth in Section II.9.e. herein.

“Non-SFRTA Commuter Railroad Service Operator” – shall mean the operator of the Non-SFRTA Commuter Railroad Service.

“North/South Segment” – shall have the meaning set forth in Exhibit D.

“Notification” – shall have the meaning set forth in Section IV.6.

“O/M and Dispatch Invoice Format” – shall have the meaning set forth in Section IV.2.c.ii. herein.

“Omni CRA” – shall mean the Omni Community Redevelopment Agency.

“Operating Agreement” or “Agreement”– shall mean this Agreement.

“Operating and Maintenance Costs” – shall have the meaning set forth in Section IV.2.c.i. herein.

“Other Train” – shall have the meaning set forth in Section VIII.1.g.

“Outstanding Monies” – shall have the meaning set forth in Section I.6.e.

“Overall Maintenance Costs” – shall mean collectively the Operating and Maintenance Costs and Dispatch Costs.

“Parking Garage” – shall mean the to-be-constructed building containing approximately 1,100 parking spaces, which will be available to SFRTA and AAF passengers, located two blocks from the MiamiCentral Station at the corner of N.W. 6^th Street and N.W. 2^nd Avenue.

“Parties” – shall mean FECR, AAF and SFRTA.

“Passenger Easement” – shall have the meaning set forth in the Second WHEREAS clause.

“Payment Conditions” shall have the meaning set forth in Section I.2. herein.

“PI” – shall have the meaning set forth in Section VII herein.

“PTC” – shall mean Positive Train Control.

“Rail Corridor Invitee” – shall mean all persons who are on or about the Corridor, the Viaduct/Station Segment or the MiamiCentral Station in which the AAF, SFRTA or the Non-SFRTA Commuter Railroad Service Operator has an easement interest, a lease, a right to operate or a right of access: (i) at the behest of one of AAF, SFRTA, FECR or the Non-SFRTA Commuter Railroad Service Operator for any purpose by one of the entities listed here; (ii) other persons who are entitled to be on or about the Corridor or (iii) meeting, assisting or in the company of a person described in clause (i) or (ii) above.

“Rail Facilities” – shall mean the track and infrastructure and any other equipment, fixtures, buildings, and track materials used in the operation of a railroad.

“Required Amount” – shall have the meaning set forth in Section I.6.e.

“Revenue Agreements” – shall mean those agreements, as amended, between SFRTA and various local government funding partners for a portion of the Cost of the Tri-Rail Station Improvements. The local funding partners are Miami-Dade County, the City of Miami, the Miami Downtown Development Authority, the Omni CRA, SEOPW CRA and the Bayfront Park Management Trust.

“RTC” – shall have the meaning set forth in Section II.9.d. herein.

“Self-Insurance Retention Account” or “SIRA” – shall have the meaning set forth in Section VIII.4.C.

“SEOPW CRA” – shall mean Southeast Overtown/Park West Community Redevelopment District.

“SFRC” – shall mean South Florida Rail Corridor.

“SFRC Insurance Program” – shall have the meaning set forth in Section VIII.4.c. herein.

“SFRTA Exclusive Tracks” – shall have the meaning set forth in Section IV.1.d. and as shown in Exhibit K.

 

“SFRTA PTC Equipment” – shall have the meaning set forth in Section II.7.

“SFRTA Rail Corridor Invitee” – shall mean any Rail Corridor Invitee who is SFRTA’s Commuter Rail Passenger or is otherwise present on the Corridor or the Viaduct/Station Segment at the request of, or pursuant to a contract with, or otherwise for the purpose of doing business with or at the behest of SFRTA. For the avoidance of doubt “SFRTA Rail Corridor Invitee” does not include patrons at any station (except those patrons who are also SFRTA’s Commuter Rail Passengers); commercial or residential tenants of the developments in and around the stations or their invitees, or any third parties performing work at a station or in the Corridor, such as employees and invitees of PI or related entities, utilities and fiber optic companies or others who may be performing work in the Corridor, or invitees or employees of FDOT and any county or municipality performing work in the Corridor.

 

“SFRTA Request” – shall have the meaning set forth in Section II.9.d. herein.

“SFRTA Trained Personnel” – shall have the meaning in Section II.6. herein.

“SFRTA VTMI Contract” – shall have the meaning in Section IV.l.d. herein.

“Shared Facilities Manager” – shall have the meaning set forth in the DCRE.

“Special Train” – shall mean a train that is not to be added to the regular schedule of operations on the Corridor and the Viaduct/Station Segment and is operated by either FECR, AAF or SFRTA on a limited basis.

“Station Maintenance Standards” – shall have the meaning set forth in Section IV.1.b. herein.

“Station/Track Availability” – shall have the meaning set forth in Section I.6. herein.

“STB” – shall mean Surface Transportation Board.

“Suspension Maintenance Costs” – shall have the meaning set forth in Section XX.4 herein.

“Term Sheet” – shall mean that Term Sheet outlining terms for the Tri-Rail Downtown Miami Link Service Project approved by the SFRTA Governing Board on December 11, 2015.

“TIGER Grant” – shall mean the 2013 TIGER Grant awarded to FDOT for the South Florida Freight & Passenger Rail Enhancement project (TIGER Grant No. FR-TII-0026-14-01-00) that includes funding for construction of the New Iris Improvements.

“Tri-Rail Improvements” – shall mean collectively, the “Tri-Rail Trackage Improvements” and the “Tri-Rail Station Improvements.”

“Tri-Rail Station Improvements” – shall mean those improvements to be designed and constructed by AAF for SFRTA at the MiamiCentral Station, including the portion of Viaduct to be used by SFRTA and other improvements, including exclusive and shared escalators, all as more particularly described in Exhibit A.

“Tri-Rail Trackage Improvements” – shall mean those Corridor improvements (including but not limited to the Embankment and the track, grade crossings and signal improvements on the Corridor and the Viaduct/Station Segment) and PTC infrastructure improvements deemed necessary by, and constructed by, AAF to facilitate the SFRTA Commuter Railroad Service in the event that any such PTC infrastructure improvements in addition to those required for FECR and AAF operations on the North/South Segment, the East/West Segment and the Viaduct/Station Segment are required for the SFRTA Commuter Railroad Service, as more particularly described in Exhibit A.

“Tri-Rail Trackage Improvements Agreement” – shall mean the agreement between AAF and SFRTA for the design and construction of the Tri-Rail Trackage Improvements.

“Undercutting” – shall mean the process by which ballast under the track is removed with an off-track undercutter which travels and removes the ballast without removing the track, and then the fouled ballast is replaced with new ballast.

“Undercutting Expenses” – shall having the meaning set forth in Section IV.2.g.

“Viaduct” – shall mean the elevated structure (not including the track placed thereon) beginning its elevation at Station 19276+20.27 and ending at Station 19296+10.86 (the bumpers at the MiamiCentral Station) and comprising a portion of the Viaduct/Station Segment.

“Viaduct/Station Segment” – shall mean the Embankment, Viaduct, the AAF Exclusive Tracks, and the SFRTA Exclusive Tracks. The Viaduct/Station Segment shall commence at Station 19262+30.00 and terminate at Station 19296+10.86 for a total of 3,380.86 feet, and shall include the track and ancillary rail facilities at the MiamiCentral Station, according to the track map attached as Exhibit K.

“VTMI Corridor Amendment” – shall have the meaning in Section IV.2.C. herein.

“VTMI Viaduct/Station Segment Amendment” – shall have the meaning in Section IV.l.d. herein.

References herein to any agreement or contract mean such agreement or contract as amended. As used in this Agreement: the word “days” refers to “calendar days”, the word “including” means “including without limitation,” and terms such as “herein”, “hereof, “hereby”, “hereunder” and “hereinafter” refer to this Agreement as a whole and not to the particular sentence, paragraph or Section where such words appear, unless the context otherwise requires. All personal pronouns used in this Agreement shall include the other genders whether used in the masculine or feminine or neuter gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires.

References herein to approvals to be granted or decisions to be made shall refer to the person(s) so authorized by each Party. In the case of SFRTA, it shall mean the SFRTA Governing Board or person(s) with sufficient delegated authority from same.

I.          Transaction Milestones.

The purpose of this Section is to outline the various key milestones in the transaction, when they shall occur and what the Parties’ obligations are in connection with the milestones.

a.          The Easement Agreement executed by SFRTA, and FECR and AAF, as their interests may appear, and then recognized by the Declarant and the Shared Facilities Manager as to the assignment of certain rights by AAF to SFRTA under the DCRE.

b.          The Lease and Memorandum of Lease executed by SFRTA and FECR and AAF, as their interests may appear, and then recognized by the Declarant, and the Shared Facilities Manager as to the assignment of certain rights by AAF to SFRTA under the DCRE.

c.          The Bill of Sale executed by AAF.

d.          A non-disturbance agreement, executed by the Lender which provides that the Lender shall not disturb SFRTA during the term of the Easement Agreement in the event of a foreclosure of the fee interest in the Station Element, the Viaduct/Station Segment and/or the Corridor (the “Non-Disturbance Agreement”).

e.          The Tri-Rail Trackage Improvements Agreement executed by AAF and SFRTA.

a.          Execution of this Agreement by all Parties;

b.          Execution of the Loan Agreement, if between SFRTA and the AAF Affiliate, by SFRTA and the AAF Affiliate, if SFRTA elects to obtain such a loan from the AAF Affiliate;

c.          Execution of the Development Agreement by SFRTA and AAF and the Joinder by AAF and AAF’s construction manager and the Dual Obligee Rider and General Purpose Rider by AAF, AAF’s construction manager and the surety;

d.          Execution of the amendments to the Revenue Agreements, as outlined in Section XVI.3. of the Agreement, which AAF and SFRTA shall diligently and in good faith pursue, and execution of the Revenue Agreement between SEOPW CRA, the City of Miami and SFRTA;

e.          Execution of an escrow agreement by AAF, SFRTA and a mutually agreed upon escrow agent, under the terms of which the Parties will deliver the executed Lease, Memorandum of Lease, the Easement Agreement, the Bill of Sale, and the Non-Disturbance Agreement and the One Million Dollars ($1,000,000.00) Access Fee and which specifies the conditions upon which those documents and the Access Fee will be released from escrow (the “Escrow Agreement”).

3.          Payment for the Tri-Rail Trackage Improvements. SFRTA shall have no obligation for the payment of any monies to AAF for the Cost of the Tri-Rail Trackage Improvements, as outlined in this Agreement, until AAF and SFRTA have entered into the Tri-Rail Trackage Improvements Agreement which shall govern the design and construction of the Tri-Rail Trackage Improvements.

4.          Delivery of Bill of Sale. Subject to satisfaction of the Escrow Conditions, as defined in the Escrow Agreement, the Escrow Agent shall deliver the Bill of Sale to SFRTA no later than five (5) business days after receiving the necessary authorization from AAF and FECR pursuant to the Escrow Agreement.

 

5.          Delivery of Lease, Memorandum of Lease and Easement Agreement. Subject to satisfaction of the Escrow Conditions, the Escrow Agent shall deliver the Easement Agreement, the Lease and the Memorandum of Lease to SFRTA no later than five (5) business days after receiving the necessary authorization from AAF and FECR pursuant to the Escrow Agreement. If the Escrow Agent delivers the Lease, the Easement Agreement and the Memorandum of Lease, SFRTA shall record the Easement Agreement and pay any associated recordation fee, including documentary stamp tax, if applicable, and the Memorandum of Lease in the public records of Miami-Dade County no later than ten (10) business days after receipt. If AAF determines that any amendments to the Easement Agreement, Lease and/or the Memorandum of Lease are required, AAF shall deliver the amendments thereto to SFRTA, and SFRTA shall provide written approval or objections within thirty (30) days thereafter. If SFRTA provides written objections to the amendments, AAF and SFRTA agree to work diligently to reach mutual agreement on the wording of the applicable amendments. If written approval is provided and/or objections resolved, then the amendments to the Easement Agreement and the Memorandum of Lease or amended agreements shall be recorded by AAF in the public records of Miami-Dade County no later than ten (10) days following receipt of such written approval. Any unresolved dispute between AAF and SFRTA regarding any or all of the applicable provisions in the amendments shall be subject to the Dispute Resolution Process. AAF and FECR represent that they shall not take any actions prior to recordation of the Easement that would materially and adversely affect SFRTA’s title to the Easement or the ability of SFRTA to utilize the Easement for the provision of the SFRTA Commuter Railroad Service.

6.          Station/Track Availability. SFRTA shall be permitted to have access to the MiamiCentral Station, the Viaduct/Station Segment and the Corridor for the purpose of commencing revenue service to the said station upon the occurrence of the following (“Station/Track Availability”):

a.          Issuance of a Temporary Certificate of Occupancy for the MiamiCentral Station;

b.          Final Acceptance of the Tri-Rail Station Improvements has occurred;

c.          SFRTA has approved invoices for the entire Cost of the Tri-Rail Station Improvements;

d.          SFRTA has paid the entire Cost of the Tri-Rail Trackage Improvements and has issued final acceptance (as that term is defined in the Tri-Rail Trackage Improvements Agreement) for the Tri-Rail Trackage Improvements;

e.          SFRTA has paid to AAF all of the money due from SFRTA for the Tri-Rail Station Improvements, including funds for the Change Orders, and SFRTA has paid to AAF all the funds SFRTA has received under the Revenue Agreements for the Tri-Rail Station Improvements from the local government funding partners other than the SEOPW CRA, in an aggregate amount equal to or greater than $31 million, plus the cost of any Change Orders (the “Required Amount”). If AAF has not received the Required Amount as set forth above due to the failure of one or more of said local government funding partners to pay monies when due under the applicable Revenue Agreement(s) (the “Outstanding Monies”), then the Parties agree to make all good faith efforts to resolve any issues with the applicable local government funding partner(s), with it being understood that AAF’s Lender may enforce its rights under the Loan Agreement as to the Revenue Agreements but SFRTA shall not be required to initiate legal proceedings against the applicable local government funding partner(s). If SFRTA has paid to AAF the Required Amount less $1 million (the “Deficiency”) from its funds and funds from the local government funding partners other than the SEOPW CRA, as set forth above, and all the other conditions listed herein regarding Station/Track Availability have been satisfied, then this Section I.6.e. shall be deemed to have been satisfied no later than one hundred twenty (120) days following the satisfaction of all of the other conditions of Station/Track Availability regardless of whether or not the Deficiency has been paid by the local government funding partner(s).

If a letter(s) of credit has been posted to address the Deficiency, or a portion thereof, it shall be recognized towards satisfaction of the Deficiency, with it being understood that Station/Availability will not be deemed to have occurred until AAF has been paid in an aggregate amount equal to or greater than $30 million ($5 million of which may be satisfied by a letter(s) of credit), plus the cost of any Change Orders, from the local government funding partners other than the SEOPW CRA. Letters of credit shall include provisions that: (i) AAF can draw upon the letter of credit upon production of a certificate stating it has not received the funds under the Revenue Agreements represented by the letter of credit(s) and (ii) that the letter of credit shall remain in effect for one (1) year following Final Acceptance.

 

f.          Any issues presented by the FRA with respect to the operation of the SFRTA trains at the MiamiCentral Station or on the Corridor or the Viaduct/Station Segment that are within the control of AAF have been resolved, and the Tri-Rail Improvements are ready for train operations in an FRA-compliant condition (“FRA Acceptance”);

g.          SFRTA has paid the Access Fee into escrow; and

h.          SFRTA has paid the closing costs for the Loan Agreement, if with the AAF Lender.

 

i.           SFRTA has provided AAF and FECR with evidence of the SFRTA Insurance Program.

Subject to Station/Track Availability, the following provisions shall apply to the operation of the SFRTA Commuter Railroad Service, the AAF Intercity Passenger Railroad Service, and the Non-SFRTA Commuter Railroad Service, as defined in this Agreement, on the Corridor and Viaduct/Station Segment and the operation of the FECR Freight Railroad Service on the Corridor:

a.          SFRTA will have the right to operate SFRTA Commuter Rail Service trains with its contractors on the Corridor and the Viaduct/Station Segment, on the relevant portions of the Joint Infrastructure and only on the SFRTA Exclusive Tracks, and at the MiamiCentral Station with no access fee beyond the Access Fee; provided that SFRTA shall have the right to operate the SFRTA Commuter Railroad Service on the North/South Segment and the exclusive right to operate Commuter Rail Service on the East/West Segment and shall have the exclusive right to use the Tri-Rail Station Improvements (except for the Joint Infrastructure) and the SFRTA Exclusive Tracks; and provided further that all trains operated by SFRTA over the Corridor and the Viaduct/Station Segment and at the MiamiCentral Station shall be powered by diesel locomotives. For the avoidance of doubt, AAF has access and the right to access the MiamiCentral Station over the Joint Infrastructure and AAF Exclusive Tracks. SFRTA may exercise the rights granted to it by AAF and FECR in this Section II.1, solely for the purpose of providing the SFRTA Commuter Railroad Service.
 

b.          AAF shall have the right to operate Intercity Passenger Railroad Service on the Corridor and the Viaduct/Station Segment, on the relevant portions of the Joint Infrastructure and on the AAF Exclusive Tracks, and on its portion of the MiamiCentral Station and the Joint Infrastructure. AAF or its designee shall have the right to operate the Non-SFRTA Commuter Railroad Service on the North/South Segment and the Viaduct/Station Segment, on the relevant portions of the Joint Infrastructure and on the AAF Exclusive Tracks and on AAF’s portion of the MiamiCentral Station excluding the Tri-Rail Station Improvements for which SFRTA has the exclusive right of use for the provision of the SFRTA Commuter Railroad Service. Notwithstanding the foregoing, neither AAF nor its designee for the operation of the Non-SFRTA Commuter Railroad Service shall have authority to construct or operate any station for serving passengers using the Non-SFRTA Commuter Railroad Service on either the North/South Segment or the East/West Segment without first obtaining SFRTA’s written approval, except AAF and any AAF-designated operator of Non-SFRTA Commuter Railroad Service may access the MiamiCentral Station from any stations located outside of the Corridor.

 

c.          FECR shall have the exclusive right to provide Freight Railroad Service on the Corridor.

 

2.          As described in the terms of this Agreement, FECR (or AAF, if such responsibility is delegated to AAF by FECR or transferred to AAF) shall have exclusive control of the day-to-day management and operation (dispatching, maintenance and security) of the Corridor and day-to-day management and operation of dispatching of the Viaduct/Station Segment. FECR will issue nondiscriminatory Combined Operating Rules (as defined below), timetables, practices, regulations, bulletins, instructions and orders governing train operations on the Corridor and the Viaduct/Station Segment. AAF shall have exclusive control of the day-to-day management and operation (maintenance and security) of the Viaduct/Station Segment. Both AAF and FECR shall adopt operating rules, as more particularly outlined herein and shall reach agreement on a final FECR and supplemental AAF set of operating rules that shall govern the Corridor and Viaduct/Station Segment (the “Combined Operating Rules”).

3.          Dispatching of all passenger trains (including trains in Commuter Railroad Service) on the Corridor and the Viaduct/Station Segment and at the MiamiCentral Station and freight trains on the Corridor shall be performed by FECR (subject to AAF’s rights to dispatch if those rights are transferred to AAF). The dispatching protocol will be established by mutual agreement of the Parties provided, however, that such protocol shall accord first priority to AAF’s Intercity Passenger Railroad Service trains, second priority to SFRTA trains, third priority to any Non-SFRTA Commuter Railroad Service trains, and fourth priority to FECR Freight Railroad Service trains, subject to the following conditions:

4.          SFRTA will have the right to operate a maximum of twenty-eight (28) Commuter Railroad Service trains per day (whether revenue or non-revenue service trains) on the Corridor and the Viaduct/Station Segment and at the MiamiCentral Station, unless the Parties agree to increase the number of trains SFRTA operates pursuant to the process outlined in Section II.9. The Parties specifically agree that, subject to approval by (which approval may be withheld in FECR’s or the dispatcher’s sole discretion), and coordination of the following “emergency train movements” with, the FECR dispatcher, in the event that: (i) an SFRTA Commuter Railroad Service train becomes disabled on the Corridor and/or the Viaduct/Station Segment, SFRTA may operate additional non-revenue service trains to rescue and/or remove the disabled equipment; or (ii) one of the units of a scheduled non-revenue movement of a double-trainset at the beginning or conclusion of an operating day is disabled and not ready for movement at the scheduled time, SFRTA may also move that non-revenue train over the Viaduct/Station Segment and the Corridor.

5.          AAF, FECR and SFRTA shall each develop a security plan for their respective operations. FECR shall provide officers to patrol the Corridor, which officers, upon noting an issue, will call the local jurisdiction in charge to respond to the situation. If SFRTA requests additional security personnel, FECR will be reimbursed by SFRTA for the incremental cost in security personnel requested by SFRTA that are needed to monitor the Corridor due to their respective use. Except for FECR’s security personnel costs outlined herein, each Party shall be responsible for its own security costs. In the event that SFRTA provides security personnel related to the operation of its trains on the Corridor, FECR shall grant access and other rights to such personnel as are necessary to permit them to fulfill their assigned responsibilities, subject to the terms of this Agreement, the Easement Agreement and the Ancillary Agreements.

6.          SFRTA personnel shall be trained and conversant in the Combined Operating Rules (“SFRTA Trained Personnel”). FECR and AAF shall provide SFRTA with the Combined Operating Rules and an AAF Employee Code of Conduct, at least one-hundred and eighty (180) days prior to commencement of SFRTA Commuter Rail Service pursuant to this Agreement, and shall provide any amendments thereto in a timely fashion thereafter. FECR and AAF shall have the right to remove an AAF or SFRTA employee, including SFRTA contractors’ employees, from the Corridor, or the Viaduct/Station Segment or the MiamiCentral Station if he or she fails to comply with Combined Operating Rules or AAF Employee Code of Conduct. SFRTA shall cooperate with FECR by assisting in the removal of such employee which may include the reallocation of, or change in, such employee’s duties.

7.          SFRTA’s locomotives and cab cars shall be equipped with PTC equipment which is compatible with the PTC facilities on the Corridor and Viaduct/Station Segment, if applicable (“SFRTA PTC Equipment”). The cost of acquisition, installation and maintenance of the SFRTA PTC Equipment shall be borne by SFRTA. SFRTA shall have no other capital PTC obligations associated with the initial installation of PTC equipment on the North/South Segment for the SFRTA Commuter Rail Service or on the East/West Segment, except for any PTC costs included in the Cost of the Tri-Rail Trackage Improvements and/or any capital improvements required as a result of changes in law or regulation or written requirements issued by FRA prior to the initial installation of PTC equipment on the Corridor. Allocation of any future expenses associated with the maintenance and/or replacement of PTC capital improvements on the Corridor and Viaduct/Station Segment will be as follows:

 

a.          SFRTA shall be responsible for 100% of all future replacement PTC capital costs on the East/West Segment; and

b.          SFRTA and AAF shall share (50/50) in the cost of future replacement PTC capital costs on the North/South Segment and Viaduct/Station Segment, except for any capital costs associated with any PTC or PTC-related software, which shall be borne 100% by AAF.

c.          SFRTA and AAF shall also share maintenance costs for the PTC system installed on the Corridor and Viaduct/Station Segment, including hardware and software, based upon an allocation to be agreed upon by SFRTA and AAF (except each party bears sole responsibility for the maintenance of any PTC or PTC-related equipment on its rolling stock), which allocation shall be determined within thirty (30) days following the Effective Date, unless such time period is extended by the Parties.

 

d.          The Parties agree that if AAF operates, or permits a third party to operate the Non-SFRTA Commuter Railroad Service, the Parties shall re-apportion such capital and maintenance costs to account for the presence of such third party operator.

8.          FECR shall clear tracks and assist with mechanical failures of SFRTA trains and shall be reimbursed for actual expenses incurred in connection therewith. In the event such work is performed by FECR, FECR shall provide SFRTA with an invoice, including sufficient back up documentation, to account for any such expense reimbursement requests.

9.          Schedule Changes.

a.          The timetable schedules for the Parties’ respective operations will be mutually agreed upon between the Parties within sixty (60) days following the Effective Date, unless such time period is extended by the Parties. If the Parties cannot reach mutual agreement of the timetable schedule(s) then this provision shall be subject to the Dispute Resolution Process in Section XI herein.

 

b.          Subject to providing thirty (30) days prior notice to SFRTA of changes to its schedule (which notice is not required for Special Trains or emergency operations), FECR may periodically make changes, additions or deletions to its timetable schedules without the prior approval of the other Parties, provided that the changes do not unreasonably interfere with the other Parties’ use of the Corridor or Viaduct/Station Segment.

c.          Subject to thirty (30) days’ prior advance written notice to SFRTA (which notice is not required for Special Trains), AAF may periodically make changes, additions or deletions to its timetable schedules for Intercity Passenger Railroad Service without the prior approval of the other Parties provided that the changes, additions, or deletions do not unreasonably interfere with the other Parties’ use of the Corridor or the Viaduct/Station Segment.

d.          If SFRTA desires to make changes to its timetable schedule, SFRTA will request approval of the schedule change by providing AAF and FECR thirty (30) days prior advance written notice, which notice shall include (i) a rail traffic controller (“RTC”) model establishing that the modified schedule or the additional trains do not adversely impact the other Parties’ operations and (ii) a detailed description of any proposed infrastructure improvements to accommodate the change. If SFRTA requests (“SFRTA Request”) a modified timetable schedule, or an increase in the number of SFRTA trains operating between the Existing Iris Crossing and the MiamiCentral Station in excess of the number of SFRTA trains specified in Section II.4, not including emergency train movements (“Additional Trains”), which, when including the Additional Trains, the aggregate of all SFRTA trains shall not exceed thirty (30) trains (including Commuter Railroad Service revenue service trains and Commuter Railroad Service non-revenue service trains), AAF and FECR agree to determine, in a timely manner, whether any additional capacity (in excess of the then current capacity and the reserved capacity for AAF and FECR) is needed to accommodate the SFRTA Request and what, if any capital or Operating and Maintenance Costs would be associated with the SFRTA Request (“Additional Costs”). If AAF and FECR determine there are Additional Costs, and SFRTA agrees to pay the Additional Costs, the Parties agree that no further costs, including any additional access fees, shall be owed by SFRTA for implementation of the SFRTA Request and that FECR and AAF shall proceed diligently to implement the changes necessary to implement the SFRTA Request.

e.           If AAF desires to operate, or to have a third party designee other than SFRTA operate, trains in Commuter Railroad Service (the “Non-SFRTA Commuter Railroad Service”), on the North/South Segment and/or the Station/Viaduct Segment, subject to the limitations herein including Section II.1, or modify its timetable schedule for the Non-SFRTA Commuter Railroad Service, AAF or its designee shall provide the proposed schedule for such trains to SFRTA and FECR thirty (30) days prior advance written notice, which notice shall include (i) a RTC model establishing that the additional trains or the modified schedule do not adversely impact the other Parties’ operations and (ii) a detailed description of any proposed infrastructure improvements to accommodate the change. If AAF or its designee desires operation of Non-SFRTA Commuter Railroad Service trains or a modified schedule, SFRTA and FECR agree to determine, in a timely manner, but no later than sixty (60) days from notice from AAF or its designee, whether any additional capacity (in excess of the then current capacity and the reserved capacity for AAF and FECR) is needed to accommodate the AAF operation and what, if any, capital or Operating and Maintenance Costs would be associated with the AAF operation of the Non-SFRTA Commuter Railroad Service (“Additional Non-SFRTA Commuter Rail Costs”). If the Parties determine there are Additional Non-SFRTA Commuter Rail Costs, and AAF or its designee agrees to pay the Additional Non-SFRTA Commuter Rail Costs, the Parties agree that AAF or its designee shall proceed diligently to implement the changes necessary to implement the operation of the Non-SFRTA Commuter Railroad Service. If the Parties are unable to agree on whether any additional improvements are required or the Additional Non-SFRTA Commuter Rail Costs required, the Parties shall promptly submit the matter to the Dispute Resolution Process. After the commencement of the initial operation of any Non-SFRTA Commuter Railroad Service, in the event that AAF or its designee desires to operate additional Non-SFRTA Commuter Railroad Service trains (above the original amount identified by AAF), then the Parties shall undertake the same analysis to determine the additional costs to be borne by AAF or its designee in implementing the additional trains. For the avoidance of doubt, nothing herein shall be construed to entitle SFRTA or FECR to prohibit AAF’s operation of Non-SFRTA Commuter Railroad Service trains; provided however that no such trains may operate until the improvements identified pursuant to this section, if any, have been completed.

 

f.          FECR, AAF, SFRTA and the Non-SFRTA Commuter Railroad Service Operator, shall each have the right to operate Special Trains on the Corridor on reasonable notice to the other Parties, provided that no such Special Trains shall unreasonably interfere with the scheduled operations of the other Parties on the Corridor. Any Special Train operated by SFRTA shall stop at every commuter station located on or along the segment of the Corridor which that train traverses and which are operational at the time the Special Train is operating. The foregoing provisions in this Section II.9 are not intended to limit the number of SFRTA Commuter Railroad Service trains that may operate on any rail corridor owned by FECR (including a portion of the Corridor, as defined herein) between the MiamiCentral Station and the Town of Jupiter in Palm Beach County as part of the Tri-Rail Coastal Link Service (in the event an agreement encompassing such services is mutually agreed upon by the Parties) or any other additional SFRTA Commuter Railroad Service. Any such additional service provided by SFRTA trains not contemplated by this Agreement shall be subject to a separate agreement or agreements between and among FECR, SFRTA and AAF.

10.          AAF will continue to have the exclusive right to provide Intercity Passenger Railroad Service on the Corridor and Viaduct/Station Segment; provided however, AAF shall not be entitled to add additional Intercity Passenger Railroad Service stations along the Corridor without the prior consent of SFRTA (this is in addition to the restrictions outlined in Section II.1.b herein), which consent shall not unreasonably be withheld. SFRTA shall not be permitted to construct stations along the Corridor without the prior consent of FECR and AAF, which consent shall not be unreasonably withheld once SFRTA agrees it is responsible for any upfront capital costs and incremental operating/maintenance costs resulting from an additional station being added to the Corridor. The requirement for prior consent does not apply to the MiamiCentral Station.

III.          Use of Corridor, Viaduct/Station Segment and MiamiCentral Station.

1.          AAF Operations.

a.          Subject to the provisions of the Passenger Easement, the Easement Agreement and this Agreement, FECR shall have the exclusive right to provide Freight Railroad Service on, along and over the Corridor. FECR may operate freight trains in either direction on, along and over the Corridor. FECR shall have the right of ingress and egress to any tracks, switches, turnouts, or other Rail Facilities on, along or near the Corridor, and to any additional tracks, switches, turnouts, or other Rail Facilities that FECR may install, place or construct on, along and over the Corridor during the term of this Agreement.

b.          The Freight Railroad Service operated by FECR on the Corridor may include both overhead and local train movements. FECR shall have the right to serve all existing or future freight shippers, receivers and terminal facilities (including any existing or future intermodal facilities, automotive transfer facilities, transload operations, ports, industrial facilities or facilities of any type) that connect to or are located on, along or near the Corridor and to interchange traffic with other freight rail carriers at any point on or along the Corridor. Subject to the terms of this Agreement, FECR shall have the right to grant trackage rights to other freight rail carriers, and to perform haulage services for the account of other freight rail carriers, on, along or over any portion of the Corridor. Unless otherwise provided in this Agreement or in an agreement with such designee(s) to which AAF, SFRTA, and FECR are all parties, trains operated by, or moving in the account of, other freight railroads shall be considered as trains of FECR for purposes of this Agreement. Such other freight rail carrier(s) shall at all times conduct their freight operations in accordance with (i) all applicable government regulations, (ii) the terms and conditions set forth in this Agreement (or such other agreement(s) to which such other freight rail carrier, AAF, FECR and SFRTA are all parties), and (iii) all applicable operating rules and standards established from time to time pursuant to this Agreement, and shall not unreasonably interfere with the use of the Corridor by AAF for Intercity Passenger Railroad Service or Non-SFRTA Commuter Railroad Service, or by SFRTA for Commuter Railroad Service. FECR shall obtain such designee’s written agreement to comply with the terms of this Agreement and shall provide SFRTA with a copy of such executed, written agreement. Failure of the designee to comply with the terms of this Agreement shall be treated as a failure of FECR to comply and therefore, shall be considered a breach of this Agreement by FECR and SFRTA shall have all rights to pursue FECR granted to it under this Agreement for the failure of its designee.

3.          SFRTA Operations. Subject to the provisions of the Easement Agreement, the Lease and this Agreement, SFRTA shall have the right to provide the SFRTA Commuter Railroad Service on, along and over the Corridor and the Viaduct/Station Segment, within the MiamiCentral Station and between the MiamiCentral Station and SFRTA stations on the SFRC. SFRTA may operate trains in the SFRTA Commuter Railroad Service in either direction on, along and over the Corridor and the Viaduct/Station Segment and within the MiamiCentral Station. SFRTA shall have the right of ingress and egress to any tracks, switches, turnouts, or other rail facilities on, along or near the Corridor or Viaduct/Station Segment or the MiamiCentral Station. The rights granted to SFRTA by this Agreement do not include the right to use the Corridor or Viaduct/Station Segment for Intercity Passenger Railroad Service or Freight Railroad Service or Non-SFRTA Commuter Railroad Service, and shall not be exercised in a manner that unreasonably interferes with the use of the Corridor by AAF for Intercity Passenger Railroad Service or Non-SFRTA Commuter Railroad Service or by FECR for Freight Railroad Service. SFRTA shall not provide, or authorize any third party to provide, Freight Railroad Service, Intercity Passenger Railroad Service on, along or over the Corridor or the Viaduct/Station Segment and shall not authorize a third party (except a designee permitted pursuant to Section XII of this Agreement, to exercise all or any portion of the rights granted to SFRTA under this Agreement to provide SFRTA Commuter Railroad Service without the prior written approval of AAF and FECR and subject to the limitations in Section II.9.

4.          Other Passenger and Freight Railroad Service.

a.          Nothing in this Agreement shall (or shall be construed to) limit, restrict, alter, modify or otherwise affect the rights granted to AAF pursuant to the Passenger Easement to install, place, construct, occupy, use, operate, alter, maintain, repair, renew and replace such additional rail lines, facilities, platforms, signals and communications facilities and equipment, utilities, stairways, escalators, elevators, structures and/or improvements on, along, over or across the Corridor, the Viaduct/Station Segment or the MiamiCentral Station, except with respect to the Tri-Rail Station Improvements (other than the Joint Infrastructure) and the SFRTA Exclusive Tracks which shall require SFRTA’s prior written approval, as AAF, in its sole judgment, determines are necessary or desirable or legally required in connection with Intercity Passenger Railroad Service. AAF’s exercise of such rights shall at all times (i) comply with the terms of this Agreement, the Passenger Easement and the Easement Agreement, and (ii) be exercised in a manner that does not unreasonably interfere with the use of the Corridor, by FECR for Freight Railroad Service or (iii) be exercised in a manner that does not unreasonably interfere with the use of the Corridor, Viaduct/Station Segment and the MiamiCentral Station by SFRTA for the SFRTA Commuter Railroad Service.

b.          Nothing in this Agreement shall (or shall be construed to) limit, restrict, alter, modify or otherwise affect the right of FECR to install, place, construct, occupy, use, operate, alter, maintain, repair, renew and replace such additional rail lines, signals and communications facilities and equipment, utilities, structures and/or improvements on, over or across the Corridor as FECR, in its sole judgment, determines are necessary or desirable or legally required in connection with Freight Railroad Service including without limitation rail lines, signals and communications facilities and equipment, utilities, structures and/or improvements to serve new customers, terminals or port facilities, intermodal facilities and transload facilities. FECR’s exercise of such rights shall at all times: (x) comply with the terms of this Agreement, the Passenger Easement and the Easement Agreement; and (y) be exercised in a manner that does not unreasonably interfere with the use of the Corridor by AAF or by SFRTA in accordance with the terms of this Agreement.

5.          Qualification of Employees. All employees of AAF (or its designee), any operator of Non-SFRTA Commuter Railroad Service, FECR and SFRTA, or employees of entities under contract with any of the foregoing, who operate trains, locomotives, rail cars and rail equipment on, along and over the Corridor shall be qualified for operation thereover. As used in this Section III.5, qualification pertains only to the employee’s operation of trains, locomotives, rail cars and rail equipment on, along and over the Corridor and Viaduct/Station Segment in accordance with FRA and the Combined Operating Rules and practices. AAF, any operator of Non-SFRTA Commuter Railroad Service and SFRTA shall make such arrangements with FECR as may be necessary to have their employees so qualified. FECR shall provide reasonable cooperation and assistance in the qualification of AAF, Non-SFRTA Commuter Railroad Service and SFRTA train and engine crews for service on the Corridor and Viaduct/Station Segment. AAF, any operator of Non-SFRTA Commuter Railroad Service and SFRTA shall reimburse FECR, upon receipt of invoices therefor, for any reasonable costs incurred by FECR in qualifying AAF, Non-SFRTA Commuter Railroad Service and SFRTA employees, respectively, as well as the cost of pilots furnished by FECR (if required) until such time as such AAF, Non-SFRTA Commuter Railroad Service or SFRTA employees are deemed by the appropriate examining officer of FECR to be properly qualified for operation on the Joint Infrastructure. Either AAF, an operator of Non-SFRTA Commuter Railroad Service or SFRTA (or all of them) may assume responsibility for qualifying that Party’s train and engine crews for service on the Corridor or Viaduct/Station Segment by establishing a testing and qualification program for that Party’s crews that is reasonably acceptable to FECR.

IV.          Track and Station Maintenance.

a.          SFRTA and AAF shall apportion common area maintenance costs at the MiamiCentral Station which shall include (i) actual station maintenance costs, including the cost of all utilities for the common areas, but not costs related to the rest of the non-station development, including only the applicable retail, office, commercial spaces, in accordance with the formula in Exhibit D, and (ii) a proportionate share of the shared facilities costs for the MiamiCentral Project as set forth in the DCRE (together the, “MiamiCentral Station Common Area Maintenance Costs”), which will be paid monthly by SFRTA to AAF. Such monthly payments shall begin on Station/Track Availability. The allocation formula is set forth in Exhibit D attached hereto. Note the costs set forth in Exhibit D are only an estimate and SFRTA will be responsible for the actual costs. For the purposes of this Section IV.1.a., if AAF operates or permits a third party to operate Non-SFRTA Commuter Railroad Service to or from the MiamiCentral Station, the Parties shall re-apportion the common area maintenance costs at the MiamiCentral Station to account for the presence of such third party operator at the MiamiCentral Station. AAF and SFRTA shall also apportion any assessments against the MiamiCentral Station (or Station Element, as it is referred to in the DCRE), using the formula in Exhibit D.

 

b.          AAF shall prepare, in conjunction with SFRTA, a protocol and set of requirements for maintenance of the Station Element (as defined in the DCRE) used in providing and operating passenger rail service (the “Station Maintenance Standards”). In the event that SFRTA elects to maintain any of the portion of the Tri-Rail Station Improvements that are used exclusively by SFRTA, then SFRTA shall maintain such elements to the Station Maintenance Standards. AAF shall establish at the beginning of each SFRTA fiscal year commencing with Station/Track Availability, an estimated budget for such costs attributable to AAF and SFRTA, and upon receipt of an invoice from AAF in the O/M and Dispatch Invoice Format (which shall be in the format attached hereto as Exhibit G) for that fiscal year, SFRTA shall pay to AAF on the first day of each calendar month one-twelfth (1/12) of the total amount of the estimated annual budget attributable to SFRTA (“Monthly Station O/M Costs”). If Station/Track Availability occurs in the middle of a SFRTA fiscal year, the Parties shall develop an estimated budget for the portion of the SFRTA fiscal year, and SFRTA shall pay an equal monthly share of such Monthly Station O/M costs for the remainder of that SFRTA fiscal year. Subsequent to the expiration of the third year after the certificate of occupancy has been received for the components of the MiamiCentral Project, the Parties shall amend this process to limit annual increases in controllable Station O/M Costs, i.e. those costs that are not set by other third parties outside of AAF’s control, such as property taxes, so that SFRTA shall have some limitation on these costs for budgeting purposes. Within thirty (30) days following the end of each SFRTA fiscal year, AAF or the Shared Facilities Manager, as applicable, shall provide SFRTA with a statement of the actual MiamiCentral Station Common Area Maintenance Costs incurred during the prior fiscal year, using the O/M and Dispatch Invoice Format included in Exhibit G of this Agreement. AAF shall determine and notify SFRTA in writing (the “Notification”) as to whether the payments made by SFRTA during the prior fiscal year based on the estimated budget have resulted in: (i) overpayment by SFRTA, in which case AAF or Shared Facilities Manager, as applicable, shall promptly refund the excess payment amount to SFRTA but no later than sixty (60) calendar days after the date of the Notification; or (ii) underpayment by SFRTA in which case SFRTA shall promptly pay AAF the amount due in accordance within the time frames required by the Local Government Prompt Payment Act and the process outlined in Exhibit E, following SFRTA’s receipt of a complete invoice from AAF or the Shared Facilities Manager. Any disputes regarding the amount owed or due to AAF as a result of such determination shall be governed by the Local Government Prompt Payment Act and the process outlined in Exhibit E and shall not be subject to the suspension of the Easement outlined in Section IX.2; provided, however, that any failure on the part of SFRTA to pay an amount determined to be due by such Dispute Resolution Process shall be an Event of Default. AAF shall be required to (i) keep accurate books and records reflecting the O/M Costs in accordance with sound and generally accepted accounting principles consistently applied, and (ii) make such records, and reasonable supporting detail, available for examination during normal business hours upon reasonable notice by SFRTA and its representatives; provided that any such examination or audit shall be at SFRTA’s sole cost and expense, unless the audit discloses a discrepancy of 10% or more in the actual costs reported by AAF or the Shared Facilities Manager for the O/M Costs, in which event AAF or the Shared Facilities Manager shall be responsible for all third party auditor costs incurred by SFRTA which are associated with the audit. In addition, if the audit discloses any (i) overpayment by AAF or the Shared Facilities Manager, then AAF or the Shared Facilities Manager shall refund the excess payment amount to SFRTA within thirty (30) days of the written notice of the audit determination from SFRTA and agreement as to such excess payment; or (ii) underpayment by SFRTA, then SFRTA shall promptly pay AAF the amount due in accordance within the time frames required by the Local Government Prompt Payment Act and Exhibit E.

c.          SFRTA shall be responsible for security and all maintenance required for the Tri-Rail Station Improvements, excluding maintenance of the elevators and escalators (which are included in the Common Area Station Maintenance), and any other portion of the MiamiCentral Station which it occupies solely, based upon the station area maintenance cost allocation methodology set forth in Exhibit D, and consistent with the Station Maintenance Standards, regarding maintenance activities.

d.          SFRTA and AAF (including if there is Non-SFRTA Commuter Railroad Service) shall share the cost of maintaining the Joint Infrastructure portion of the Viaduct/Station Segment based on a 50/50 percentage allocation. SFRTA and AAF shall each maintain its exclusive tracks and infrastructure, unless the Parties reach mutual agreement otherwise to maintain such tracks and infrastructure collectively. If AAF permits any Non-SFRTA Commuter Railroad Operator to use the Viaduct/Station Segment, then SFRTA and AAF shall address a reallocation of the share of maintenance costs within sixty (60) days of the Non-SFRTA Commuter Railroad Service commencing revenue service over such Segment. It is understood and specifically agreed, subject to the requirements of Section XX, that AAF and SFRTA shall have the exclusive right to use the tracks constructed and dedicated to their use throughout the term of this Agreement. Specifically, commencing at Station 19251+7.13, one track is for SFRTA’s exclusive use by SFRTA for the provision by SFRTA of the SFRTA Commuter Railroad Service which expands into two tracks for SFRTA’s exclusive use for the provision by SFRTA of its Commuter Railroad Service (“SFRTA Exclusive Tracks”), and commencing at Station 19246+83.72, one track is for AAF’s exclusive use for either or both of Intercity Passenger Service or Non-SFRTA Commuter Railroad Service and which expands into two (2) tracks and then three (3) tracks for AAF’s exclusive use for either or both of Intercity Passenger Service or Non-SFRTA Commuter Railroad Service (“AAF Exclusive Tracks”). The Viaduct/Station Segment shall be maintained to FRA Class 4 standards. AAF shall, in its sole discretion, select the entity which shall provide maintenance on the Viaduct/Station Segment. If AAF elects, in its sole discretion, to contract the maintenance of the Viaduct/Station Segment to SFRTA, SFRTA shall attempt to negotiate an amendment to Agreement No. 14-012 between SFRTA and VTMI for Maintenance of Way Services (the “SFRTA VTMI Contract”), the terms of which must be agreeable to AAF (the “VTMI Viaduct/Station Segment Amendment”). The VTMI Viaduct/Station Segment Amendment shall contain provisions similar to those outlined in Section IV.2, below, unless clearly inapplicable. If SFRTA is unable to reach an agreement with VTMI, AAF shall obtain the services of another contractor (which may be FECR) to provide maintenance services for the Viaduct/Station Segment at a cost mutually agreeable to both AAF and SFRTA. All such maintenance services shall be inclusive of any utility costs.

e.          Utilities.

ii.          AAF shall separately initiate, contract for and obtain all utility services, including gas, electricity, telephone, water and sewer connections and services, required for AAF’s exclusive areas with the MiamiCentral Station and the AAF’s Exclusive Tracks on the Viaduct Station Segment. AAF shall pay directly to the providers of such services all charges for such services. AAF shall also separately initiate, contract for and obtain, in its name, all utility services, including gas, electricity, telephone, water and sewer connections and services, required for the common areas at the MiamiCentral Station. AAF shall pay directly to the providers of such services all charges for such services for the common areas and the cost and expense for such services shall be allocated among AAF and SFRTA using the allocation in Exhibit D for common area maintenance costs. In the event the Non-SFRTA Commuter Railroad Service is initiated, the MiamiCentral Common Area Maintenance Costs shall be reapportioned to account for the presence of such third party operator at the MiamiCentral Station.

iii.          SFRTA shall separately initiate, contract for and obtain all utility services, including gas, electricity, telephone, water and sewer connections and services, required for the Tri-Rail Station Improvements at the MiamiCentral Station and the SFRTA Exclusive Tracks on the Viaduct Station Segment. SFRTA shall pay directly to the providers of such services all charges for such services.

iv.          In the event that SFRTA cannot separately contract for the some or all of the utility services in paragraph iii, above, then AAF shall contract for them and SFRTA shall pay AAF its share of the costs based on usage.

2.          Trackage and Related Infrastructure Costs.

a.          The Corridor shall be maintained to FRA Class 4 standards.

b.          Maintenance of each Party’s respective rolling stock, onboard PTC and other associated rolling stock and locomotive equipment shall be performed by and at the cost of that Party.

c.          FECR shall have the exclusive right to perform the work associated with the maintenance of the Corridor. The sums which SFRTA shall pay to FECR for such maintenance shall be the amounts set forth in Exhibit D escalating annually at the percentage increase in the Association of American Railroads (“AAR”) Annual Index of Chargeout Prices and Wage Rates (1997=100)-East, with 2015 used as the base, (the “Escalation Percentage”) for the first three (3) years and thereafter unless mutually agreed to the contrary, provided, however, after the 3-year period from the Effective Date, the Parties will evaluate whether the Escalation Percentage should be adjusted. Notwithstanding the foregoing, if AAF operates or designates a third party to operate Non-SFRTA Commuter Railroad Service on the North/South Segment, the Viaduct/Station Segment or at the MiamiCentral Station, the Parties shall renegotiate the percentage allocation for the costs of maintenance of the Corridor. If FECR elects to contract the maintenance of the Corridor to SFRTA, SFRTA shall attempt to negotiate an amendment to the SFRTA VTMI Contract the terms of which must be agreeable to FECR. The contract terms between SFRTA and VTMI for maintenance of the Corridor (“VTMI Corridor Amendment”), shall include the following:

i.          All costs associated with maintaining and repairing the Corridor, such as trackage, signals and communication facilities on the Corridor shall be allocated based on the percentage set forth on Exhibit D attached hereto (“Operating and Maintenance Costs”). FECR shall offset the Operating and Maintenance Costs assessed to FECR, SFRTA and AAF with funds received by governmental authorities with respect to grade crossings.

iii.          VTMI shall invoice the Operating and Maintenance costs in accordance with the process outlined as follows: VTMI and the Parties have established a budget for such costs attributable to FECR, AAF, and SFRTA, and upon receipt of an invoice from VTMI in the O/M and Dispatch Invoice Format for the SFRTA fiscal year, SFRTA, FECR and AAF shall pay to VTMI on the first day of each calendar month one-twelfth (1/12) of the total amount of the annual budget attributable to such Party (“Monthly O/M Costs”). The established budget shall be subject to the Escalation Percentage each SFRTA fiscal year. The allocation of these costs shall be as shown in Exhibit D. Any disputed amounts, by any Party, shall be addressed using the Dispute Resolution Process. SFRTA’s, AAF’s or FECR’s failure to address the disputed amounts by using the process in Exhibit E shall be an Event of Default. If the Non-SFRTA Commuter Railroad Service commences, the allocation will be revised accordingly to reflect the presence of that service.

iv.          In its management of the Corridor, FECR may request SFRTA to cause VTMI to make additional replacements or repairs needed within the Corridor. Any unforeseen or extraordinary operating and maintenance Costs may be billed by VTMI using the O/M and Dispatch Invoice Format including all supporting documentation required pursuant to Exhibit G of this Agreement. Within twenty-five (25) business days of the receipt of the invoice, FECR and AAF, as applicable, shall pay to VTMI their respective share of said costs less any disputed amounts. SFRTA shall pay to VTMI its respective share of said costs less any disputed amounts pursuant to the Local Government Prompt Payment Act. Any disputes regarding the amount owed or due from SFRTA as a result of such determination shall be governed by the Local Government Prompt Payment Act and shall not be subject to the suspension of the Easement outlined in Section IX.2.

v.          VTMI shall provide notice to FECR and AAF of all proposed maintenance activities.

vi.          Other than as set forth in the VTMI Corridor Amendment, VTMI shall not perform any work on the Corridor without the approval of SFRTA, FECR and AAF, which approval shall not be unreasonably withheld.

d.          If negotiations between SFRTA and VTMI are unsuccessful and the VTMI Corridor Amendment is not entered into, or if FECR does not agree to the terms of the VTMI Corridor Amendment, FECR agrees to perform the work associated with the VTMI Corridor Amendment at the same cost as proposed by VTMI in the VTMI Proposal (see Exhibit F), escalated in accordance with the Escalation Percentage.

e.          If negotiations are successful between VTMI and SFRTA, SFRTA shall provide a copy of the proposed VTMI Corridor Amendment to AAF and FECR for their written approval of the terms of the VTMI Corridor Amendment. AAF and FECR agree to provide approval or objections in writing within fourteen (14) days after receipt of the VTMI Corridor Amendment from SFRTA. SFRTA shall use commercially reasonable efforts to have the VTMI Corridor Amendment revised to address any objections.

f.          The VTMI Corridor Amendment shall provide that, if FECR determines that VTMI has failed to perform its duties under the VTMI Corridor Amendment, for reasons set forth in a communication to VTMI, AAF and SFRTA and which include a reasonable basis for that determination, FECR may give notice to SFRTA that it requires termination of the VTMI Corridor Amendment, which shall constitute termination for cause. If FECR requires the VTMI Corridor Amendment to be terminated for convenience or without cause, it shall be solely and entirely responsible for any and all costs permitted under law that are associated with the termination, including but not limited to mobilization costs, and FECR agrees to indemnify and hold harmless SFRTA for any costs, including but not limited to attorneys’ fees and damages, which SFRTA may incur as a result of the termination of the VTMI Corridor Amendment based on FECR’s requirement that SFRTA terminate such agreement for convenience or without cause. The foregoing notwithstanding, FECR, SFRTA and AAF will negotiate mutually agreeable termination language to be included in the VTMI Corridor Amendment. Upon termination of the VTMI Corridor Amendment, FECR shall perform the duties set forth therein at the same costs as VTMI would have performed the duties pursuant to the VTMI Corridor Amendment and AAF and SFRTA shall pay their allocated amounts to FECR.

g.          The Parties agree to place in their budget and record in their books of account an Undercutting expense in the amount of $505,000 (with each Party contributing one-third of the amount) for Corridor undercutting (“Undercutting Expense”) on the Effective Date. As funds are used to pay for such work, each of the Parties shall replenish its share of the Undercutting Expense through a rebudget and rerecording of that expense no later than the first day of the following SFRTA fiscal year. The Parties agree that they shall collectively analyze the amount to be budgeted on an annual basis. The Parties agree that in any one (1) year, no more than $1 million of Undercutting can be performed. Further, the Parties agree that in the first year of SFRTA operations on the Corridor, no more than $505,000 of Undercutting can be performed if recommended by FECR or VTMI (whoever is then currently performing the Corridor maintenance) and approved using the approval process stated herein. If FECR recommends Undercutting is required in any one fiscal year up to a cap of $1 million per year, FECR shall provide notice prior to April of any given fiscal year for such Undercutting to be performed in the following fiscal year and the Parties shall meet and reach mutual agreement as to the necessity thereof, or failing that mutual agreement, then agreement by a majority of the Parties, on the amount of the Undercutting for the upcoming fiscal year (not to exceed the $1 million cap in any SFRTA fiscal year). In that event, the Parties agree to contribute the additional funds, with each paying one-third of the amount, to bring the Undercutting Expense amount to $1 million and to replenish the Undercutting Expense amount on their respective books for the following year. The foregoing shall be analyzed every three (3) years and adjusted as required.

h.          FECR and AAF shall be third party beneficiaries to the VTMI Corridor Amendment.

 

i.          AAF, any Non-SFRTA Commuter Railroad Operator and/or SFRTA shall be responsible, as applicable, for increased costs, outlined in Exhibit D (Operations and Maintenance), associated with FRA regulations or other laws uniquely applicable to Intercity Passenger Railroad Service, or Commuter Railroad Service, apportioned based on timetable trains.

j.          FECR and AAF shall be invoiced jointly by VTMI for their costs and FECR and AAF shall be jointly and severally liable for the failure to pay any and all invoices when due.

k.          FECR shall have the right to perform, at its sole cost and expense, any additional maintenance in the Corridor, subject to prior mutual written agreement of the Parties, and subject to the requirement that such additional maintenance not unreasonably interfere with the operations of Intercity Passenger Railroad Service or Commuter Railroad Service except to the extent contemplated herein or agreed upon by all Parties.

V.          Lease, Easement Agreement and Bill of Sale.

1.           Lease and Easement Agreement

1.          FDOT has engaged FECR to perform the design and construction of the New Iris Improvements pursuant to that certain Design and Construction Agreement dated June 5, 2015 (the “DCA”) between FECR and FDOT, which shall also govern the arrangements between and among the parties to the DCA related to the construction of the New Iris Improvements. All engineering associated with the New Iris Improvements shall be performed to the satisfaction of FECR’s chief engineer and in accordance with the terms of the DCA. FDOT shall be responsible for all costs associated therewith, which costs are currently anticipated to be funded pursuant to the TIGER Grant and other participating entities, including FECR, CSXT and SFRTA.

2.          With respect to the Tri-Rail Station Improvements, on or prior to the payment of any monies by SFRTA to AAF for the Tri-Rail Station Improvements, except as outlined in Section II.l.b herein: (i) AAF and SFRTA will enter into an agreement which shall govern the arrangements between AAF and SFRTA related to the design and construction of the Tri-Rail Station Improvements, SFRTA’s inspection rights related to the work to be performed by AAF on behalf of SFRTA and any other necessary provisions (the “Development Agreement”) in substantially the form attached hereto as Exhibit H; (ii) AAF, SFRTA and AAF’s general contractor will enter into an agreement addressing compliance with s. 255.05, F.S., the surety bond requirements of s. 255.05, F.S. (the “Joinder”), in substantially the form attached hereto as Exhibit A to the Development Agreement, and (iii) AAF’s general contractor and its surety will enter into a dual obligee rider adding SFRTA as an additional obligee to the Performance and Payment Bond No. 09042373 (the “Dual Obligee Rider”), in substantially the form attached hereto as Exhibit A-1 to the Development Agreement.

3.          AAF, FECR and SFRTA shall enter into Tri-Rail Trackage Improvements Agreement, which shall provide that SFRTA shall be solely responsible for the Cost of the Tri-Rail Trackage Improvements, including the Embankment, as provided for herein, but SFRTA shall not have any liability for any additional costs (in excess of the Cost of the Tri-Rail Trackage Improvements) associated with the Tri-Rail Trackage Improvements, except for any changes to the work requested solely by SFRTA.

4.          Construction related matters and changes to the Approved Plans and Specifications requested by SFRTA or made by AAF shall be pursuant to the terms of the Development Agreement.

FDG Flagler Station II LLC (“PI”) has an easement on the Corridor for non-rail uses. PI shall have the right to continue to access the Corridor and grant easements, licenses and leases to its affiliates or third parties pursuant to the terms of those certain agreements between AAF, PI and FECR, provided that such agreements, or any actions or activities permitted by them, do not unreasonably interfere with the rail operations of SFRTA, AAF or FECR. Further, SFRTA, AAF and FECR shall not unreasonably interfere with PI’s rights unless PI is compensated for such reduction of rights based on the fair market value of such rights at the time of any such interference. AAF, FECR and SFRTA agree that they must coexist in good faith in the use of the Corridor.

VIII.          Liability and Insurance

1.          Allocation of Liability Between and Among SFRTA, AAF, FECR and Non-SFRTA Commuter Rail Operator.

SFRTA shall indemnify AAF and FECR, and AAF and FECR shall indemnify SFRTA in accordance with the terms specified in this Section VIII.1.

a.          Except as specifically provided in this Section VIII., SFRTA shall forever protect, defend, indemnify, and hold harmless FECR, its officers, agents, and employees, successors and assigns, from and against any liability, cost, and expense, including, but not limited to SFRTA’s Commuter Rail Passengers, and Rail Corridor Invitees, in or on or about the Corridor or Viaduct/Station Segment, regardless of whether the loss, damage, destruction, injury, or death giving rise to any such liability, cost, or expense is caused in whole or in part, and to whatever nature or degree, by the fault, failure, negligence, misconduct, nonfeasance, or misfeasance of FECR, or its officers, agents, and employees, successors and assigns, or any other person or persons whomsoever.; or

b.          Except as specifically provided in this Section VIII., SFRTA shall forever protect, defend, indemnify, and hold harmless AAF, and its officers, agents, and employees, successors and assigns, from and against any liability, cost, and expense, including, but not limited to, SFRTA’s Commuter Rail Passengers, and Rail Corridor Invitees, in or on or about the Corridor or Viaduct/Station Segment, regardless of whether the loss, damage, destruction, injury, or death giving rise to any such liability, cost, or expense is caused in whole or in part, and to whatever nature or degree, by the fault, failure, negligence, misconduct, nonfeasance, or misfeasance of AAF or its officers, agents, and employees, successors and assigns, or any other person or persons whomsoever.

c.          The assumption of liability of SFRTA may not in any instance exceed the following parameters of allocation of risk:

i.          SFRTA shall be solely responsible for any loss, injury, or damage to SFRTA’s Commuter Rail Passengers, or Rail Corridor Invitees, or trespassers (other than passengers or invitees of the Non-SFRTA Commuter Railroad Service), regardless of circumstances or cause, subject to the terms and provisions of this Section VIII.1.

ii.          FECR shall, with respect to a Limited Covered Accident, protect, defend, and indemnify SFRTA for the amount of the SIRA.

iii.          AAF shall, with respect to a Limited Covered Accident, protect, defend, and indemnify SFRTA for the amount of the SIRA.

d.          When only one train is involved in an incident, including incidents with trespassers or at grade crossings, SFRTA shall be solely responsible for any loss, injury, or damage if the train is an SFRTA train.

e.          When an incident occurs with only FECR’s train involved, including incidents with trespassers or at grade crossings, FECR shall be solely responsible for any loss, injury, or damage, except for SFRTA’s Commuter Rail Passengers, SFRTA employees and SFRTA Rail Corridor Invitees; or

f.          When an incident occurs with only AAF’s train involved, including incidents with trespassers or at grade crossings, AAF shall be solely responsible for any loss, injury, or damage, except for SFRTA’s Commuter Rail Passengers, SFRTA employees and SFRTA Rail Corridor Invitees.

g.          For the purposes of this subsection:

i.          An “Other Train” is a train that is neither SFRTA’s train, nor FECR’s train, nor AAF’s train, nor a train of a Non-SFRTA Commuter Rail Service Operator nor a train of any other operator of Intercity Rail Passenger Service, and shall be treated as a train of the Party to this Agreement that made the initial request for the train to operate on the Corridor or the Viaduct/Station Segment.

ii.          Allocation of liability in an incident involving any Other Train that is an SFRTA train, pursuant to the definition of “Other Train,” and is involved in an incident shall be treated as an SFRTA train, solely for purposes of any allocation of liability between SFRTA and FECR, and SFRTA and FECR shall share responsibility equally as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of any incident involving both SFRTA’s train and FECR’s train, and the allocation as between SFRTA and FECR, regardless of whether the Other Train is treated as a SFRTA train, shall remain one-half each as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident. The involvement of any Other Train shall not alter the sharing of equal responsibility as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident; or

iii.          Allocation of liability in an incident involving any Other Train that is an SFRTA train, pursuant to the definition of “Other Train,” and is involved in an incident shall be treated as an SFRTA train, solely for purposes of any allocation of liability between SFRTA and AAF only, and SFRTA and AAF shall share responsibility equally as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of any incident involving both a SFRTA train and AAF’s train, and the allocation as between SFRTA and AAF regardless of whether the Other Train is treated as a SFRTA train, shall remain one-half each as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident. The involvement of any Other Train shall not alter the sharing of equal responsibility as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident.

h.          When more than one train is involved in an incident:

i.          If only SFRTA’s train and FECR’s train, or only an Other Train that is an SFRTA train by definition, and FECR’s train, are involved in an incident, SFRTA shall be responsible for its property and all of its people, all SFRTA’s Commuter Rail Passengers, SFRTA employees and SFRTA Rail Corridor Invitees, FECR shall be responsible for its property and all of its employees and FECR Rail Corridor Invitees, and SFRTA and FECR shall each share one-half responsibility as to the Joint Infrastructure and Rail Corridor Invitees who are not SFRTA Rail Corridor Invitees or FECR Rail Corridor Invitees, including but not limited to trespassers or third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident; or

ii.          If only SFRTA’s train and AAF’s train, or only an Other Train that is by definition an SFRTA train and AAF’s train, are involved in an incident, SFRTA shall be responsible for its property and all of its people, all SFRTA’s Commuter Rail Passengers, SFRTA employees and SFRTA Rail Corridor Invitees, and AAF shall be responsible for its property and all of its employees, AAF’s Intercity Rail Passengers and AAF Rail Corridor Invitees, and SFRTA and AAF shall each share one-half responsibility as to the Joint Infrastructure and Rail Corridor Invitees who are not SFRTA Rail Corridor Invitees or AAF Rail Corridor Invitees, including but not limited to trespassers or third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident.

iii.          If a FECR train, a SFRTA’s train and an AAF’s train are involved in an incident, SFRTA shall be responsible for its property and all of its people, all SFRTA’s Commuter Rail Passengers, SFRTA employees and SFRTA Rail Corridor Invitees, and AAF shall be responsible for its property and all of its employees, AAF’s Intercity Rail Passengers and AAF Rail Corridor Invitees, FECR shall be responsible for its property and all of its employees and FECR Rail Corridor Invitees and SFRTA, FECR and AAF shall each share one-third responsibility as to the Joint Infrastructure and Rail Corridor Invitees who are not SFRTA Rail Corridor Invitees or AAF Rail Corridor Invitees or FECR Rail Corridor Invitees, including but not limited to trespassers or third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident.

iv.          If SFRTA’s train, FECR train, and AAF’s train are involved in an incident, the allocation of liability among SFRTA, FECR, and AAF, shall be one-third each as to third parties outside the Corridor or Viaduct/Station Segment who incur loss, injury, or damage as a result of the incident.