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OCR for page 67
Content of Shared-Use Access and Operating Agreements 67 compromised and that benefits from infrastructure investments can be fully realized. Because the future is inherently unpredictable, the agreements must include a process by which ser- vice changes can be negotiated to accommodate changes in performance and traffic levels, within agreed-upon limits. For example, if a long-term commuter rail plan envisions start- ing only with four peak hour trips per day, increasing frequency and adding off-peak services as demand grows and funding becomes available, then the agreement should reflect that and agree on what investments are required to make service increases possible. If the freight opera- tor wants to assure the availability of a given capacity at different points over the term of the agreement, then the agreement should specify what passenger service levels are consistent with meeting that goal, what investments are needed to make this possible, and how the costs will be shared. Experience has shown it is unwise to leave some matters for future discussion or agreement or to accept verbal assurances that, for example, additional freight or passenger trains can be accom- modated at some point in the future. The negotiators who meet for a later round of discussions are unlikely to be different from those who negotiated the original agreement. Any understandings or assurances that were not explicit in the original agreement will not be enforceable, and changes in personnel, policy, or external circumstances could mean that non-binding assurances have been forgotten or will no longer be honored. Experience has also shown that the agreements should be highly explicit and cover all aspects of operating needs of corridor users. Lower probability scenarios should be considered and provided for in the agreements, where possible. For example, one commuter rail agency purchased a rail cor- ridor from a freight railroad, which retained trackage rights for freight service on the corridor. Fifteen years later, the commuter authority faced difficulties because the freight railroad wanted to operate more freight trains than either party envisioned when the original agreement was signed. The original agreement lacks any provision to address this situation, thus a broad renegotiation of the agreement is required. Flexibility, Renegotiation Periods, and Dispute Resolution All agreements should contain both procedures for periodic revision or renegotiation of con- tracts and a mechanism to resolve disputes. Given the inherent uncertainties in demand for freight and commuter rail service and in funding availability for passenger rail developments, many agree- ments provide for renegotiation on request by either party. Other agreements provide for reviews at regular, often 5-year, intervals with provisions for intermediate adjustments where necessary. Several parties commented that shorter intervals tended to produce an inefficient and frustrating state of continuous negotiation. Some contract elements, such as access and maintenance costs, may be subject to annual adjustment based on an agreed-upon cost index. The STB is not able to resolve disputes over shared commuter rail and freight service. However, under Section 401 of PRIIA, the STB does offer non-binding mediation if the parties are unable to resolve differences on their own. This function of the STB is new, and there is no experience of how the process will work out in practice. Prior to PRIIA, commuter rail shared-corridor agreements usually set out a process for resolving disputes, often ending with submitting the problem to an independent arbitrator when negotiations reach an impasse. 4.4.3 Access Alternatives Because commuter rail agencies cannot invoke Amtrak's right of access to the U.S. railroad at incremental cost, they have to negotiate access at arm's length with the owner of the rail corridor over which service is planned, essentially purchasing the rail line capacity required for the service. A variety of approaches to accessing capacity have evolved.

OCR for page 67
68 Guidebook for Implementing Passenger Rail Service on Shared Passenger and Freight Corridors Alternative 1: Commuter Rail Agency Purchases Right-of-Way from the Freight Railroad This approach is commonly used when the commuter rail service expects to be the dominant user of the corridor, and the freight railroad is willing to sell. The commuter authority purchases the ROW and gives the freight railroad long-term or perpetual operating rights to offer defined freight service in the shared corridor. This alternative gives the commuter authority the most con- trol and is strongly preferred where substantial capital investments in infrastructure are required. The commuter authority becomes responsible for track construction and maintenance, signals and train control systems, and dispatching and will typically contract for all these services. The agreement with the freight railroad should specify: The geographical limits of the corridor included in the agreement. If a freight railroad is willing to make a sale, it may insist on selling more track than the commuter operator plans to use, so that it is not left with isolated track segments that are expensive and inconvenient to operate. Any limits on freight service, such as maximum trains per day, times of day during which freight trains may operate (e.g., avoiding peak commute hours), and action to be taken if the freight operator wishes to increase traffic beyond agreed-upon levels (e.g., how planned and imple- mented and who is responsible for infrastructure investments where they are necessary, etc.). Any size and weight restrictions on freight equipment (e.g., will 286,000 lb or even 315,000 lb freight cars be permitted) and clearances for freight vehicles. This factor can have a significant effect on platform heights and arrangements for ADA access to passenger trains. Access fees for freight operations, usually expressed as payments per train- and/or car-mile. The fees should be representative of the equivalent expense a freight railroad would incur to provide comparable service on its own property. Liability agreement. Usually, the freight operator will want "but for" protection, as discussed in Chapter 2. As with all long-term agreements, provisions to review and renegotiate the agreement as circum- stances change and a mechanism to resolve disputes. Alternative 2: Negotiate Access to a Freight Railroad Corridor This is the primary alternative for commuter rail agencies where the freight railroad is unwill- ing to sell, often because the corridor is an important link in that railroad's network and/or car- ries heavy freight traffic. Because commuter service does not enjoy a right of access comparable to that available to Amtrak intercity service, commuter rail agencies have to pay for the capacity used by the commuter service, distinct from a contribution to infrastructure maintenance, dis- patching, and administrative costs. This payment can be made in a number of ways, depending on the situation of the freight railroad corridor before the introduction of commuter service and the railroad's expectations of freight traffic growth: An investment in capacity sufficient to fully meet the needs of the passenger service, so that freight service capacity is unaffected at all times of day. This alternative is most likely to be used where freight growth is expected and spare capacity is limited. A lump sum payment for long-term or perpetual access for a specified number of trips at a given performance level. Rather than being tied to specific capacity expansion projects, the freight railroad may use the payment anywhere on its system, provided the access agreement is honored. A commuter rail agency may prefer a lump sum agreement that can be funded by a capital grant or bond funding to annual access payments that would have to come from local government funds. A per-train-mile or per-car-mile capacity access payment. The amount of the payment can vary widely with local circumstances, including the amount of related investment in the infrastruc- ture using commuter rail agency funds.