NEW YORK STATE DEPARTMENT OF …...residual or uncommitted funds from prior years or programs at its...

PASSENGER & FREIGHT RAIL ASSISTANCE PROGRAM

& 2005 TRANSPORTATION BOND ACT RAIL & PORT PROGRAM

NEW YORK STATE DEPARTMENT OF TRANSPORTATION

PROGRAM GUIDELINES and

PROJECT FUNDING APPLICATION FY 2008

JULY 2008

TABLE OF CONTENTS Introduction ................................................................................................................... 1 Eligible Applicants ........................................................................................................ 1 Program Goals & Objectives........................................................................................ 2 General Program Requirements .................................................................................. 3 Application Instructions ............................................................................................... 4 Project Selection Process .......................................................................................... 10 Appendices: A – 2005 Transportation Bond Act MOU, Section III & Appendix C B – Applicable Laws

C – NYSDOT Evaluation Criteria D – Sample form of Agreement E – Application Form

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UNIFIED RAIL & PORT PROJECT APPLICATION GUIDELINES

INTRODUCTION: The New York State Department of Transportation administers two current programs which provide funding for rail and port projects throughout the state. Subject to the availability of funds, in FY 2008 the Passenger and Freight Rail Assistance Program may provide up to $20 million for rail projects and the Transportation Bond Act may provide up to $27 million for rail and port projects. In addition to FY 08 funds, the Department of Transportation may allocate residual or uncommitted funds from prior years or programs at its sole discretion. These guidelines are issued pursuant to the Rebuild and Renew New York Transportation Bond Act of 2005 and Section III, Item 5 of the 2005 Transportation Bond Act Memorandum of Understanding, issued jointly by the Governor and Legislature on July 13, 2005. This document outlines the program purpose and eligibility requirements for each program, provides instructions for completion of the application form, and includes a sample form of agreement for NYSDOT grant agreements. Questions or comments regarding the application should be addressed to: Mr. Raymond F. Hessinger, P.E. NYSDOT Freight Bureau 50 Wolf Road, POD 5-4 Albany, NY 12232 (518) 457-8075 [email protected] ELIGIBLE APPLICANTS:

• Railroads: All common-carrier or tourist railroad corporations in good standing with the Department of Transportation that own and/or operate over active railroad property in the State of New York are eligible to apply for funding. Railroads will be considered in good standing if they have submitted the most recent annual report, as required by New York State Transportation Law §116 (2006), and have paid their annual rail safety fee in accordance with New York State Transportation Law §135 (2006) by the application deadline.

• Ports: Any entity which owns or operates an inland public port facility within the State of

New York is eligible to apply for funding.

• Public Entities: Municipal Corporations (including counties, cities, towns and villages), Public Authorities, or Public Benefit Corporations may apply for publicly owned rail and port facilities or may sponsor projects for privately-owned facilities.

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PROGRAM GOALS & OBJECTIVES: The specific goals and objectives of each program are described in more detail below. • Passenger & Freight Rail Assistance Program

Funds will be made available for the construction and improvement of passenger and freight rail projects, including, but not limited to, the acquisition, construction, reconstruction, improvement, or rehabilitation of any railroad capital facility. Funds will be allocated to support the following objectives:

o Promote increased rail safety. o Preserve and improve the infrastructure of shortline railroads that feed traffic to

the Class I railroads. o Increase capacity in key freight corridors to provide reliable freight rail service. o Promote the development of rail freight terminals in key locations. o Promote employment opportunities for industries dependent on rail service. o Increase service reliability and reduce travel time of passenger rail service along

key corridors.

• 2005 Transportation Bond Act Rail & Port Program The program intent of the Governor and Legislature was expressed in the 2005 Transportation Bond Act MOU (see Appendix A), and is summarized as follows: Railroads: Bond issue proceeds will be allocated to urban, commuter and intercity passenger rail, freight rail, and passenger and freight facilities and equipment, including facilities used jointly by commuter railroad companies and freight railroad companies, but otherwise exclusive of those operated by or under the jurisdiction of the Metropolitan Transportation Authority and its subsidiaries, the New York City Transit Authority and its subsidiaries and the Triborough Bridge and Tunnel Authority. Proceeds will be allocated to support the following objectives:

o Promote increased rail safety. o Preserve and improve infrastructure of the shortline railroads with emphasis

given to projects that help attain line capacity for 286,000 pound rail cars. o Increase capacity along Class I railroad corridors to provide more timely rail

service between rail-truck terminals throughout New York State. o Promote the development of rail-truck freight terminals in key locations, to reduce

the distance that goods need to be moved to New York State businesses. o Increase reliability of passenger rail service in New York State, reduce travel time

and improve safety will also be advanced as part of this program. Ports. Bond issue proceeds will be allocated to ports, marine terminals and marine transportation facilities exclusive of those under the jurisdiction of the Port Authority of New York and New Jersey. Funds will be allocated to support the following objectives:

o Improve access to upstate port facilities o Improve their cargo handling capabilities.

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GENERAL PROGRAM REQUIREMENTS: The program is authorized by Section 14 and Article 22 of NYS Transportation Law. • Geographic Location: Projects must be located in New York State.

• Environmental Review/Approval: All projects are subject to review in accordance with the

State Environmental Quality Review Act (17 NYCRR Part 15 or 6 NYCRR Part 617).

• Grant Program: The Passenger & Freight Rail Assistance Program and the 2005 Transportation Bond Act Rail & Port Program are a reimbursement grant programs. Project grantees are required to pay all bills before requesting reimbursement.

• Reimbursements: Reimbursements to the grantee will be made monthly.

• Match Requirements: Projects funded by the 2005 Transportation Bond Act require a minimum 10% local share of total project costs. Projects funded by the Passenger & Freight Rail Assistance Program do not require a local share. Preference will be given to those applications that are able to provide a greater local share of total project costs.

• Eligible Costs: Work elements eligible for reimbursement will conform to 23 CFR, Part I, Subpart 140, and include: engineering, construction management, site preparation, the preparation of designs, plans, specifications, estimates, environmental impact statements, appraisals and surveys, and the acquisition of real property. The net salvage value of materials recovered must be included in the estimate as a credit against project costs.

• Maintenance & Service Commitments: In the case of rail projects, applicants must agree to provide service for the duration of the useful life of the capital project, which can vary depending on the type of improvement or the fund source. Projects funded by the 2005 Transportation Bond Act require the grantee to operate and maintain the improvement for 30 years for rail infrastructure projects, 20 years for rail rolling stock, and 15 years for port projects. Projects funded by the Passenger & Freight Rail Assistance Program require the grantee to operate and maintain the improvement for not less than 10 years.

• Contracting: Applicants must comply with applicable New York State procurement rules and regulations.

• Professional Services: Consultant services are to be obtained as a result of a competitive,

qualifications-based selection process.

• Force Account Work: The Department will also assess proposals to perform engineering or construction by force account.

• Project Administration: Projects will by managed in accordance with the following NYSDOT documents and procedures: o Manual of Construction Supervision and Inspection Procedures for Railroad Let Projects o Manual of Construction Supervision and Inspection Procedures for Work by Railroad

Force Account o Manual of Billing Procedure for Submission of Rail Project Payment Vouchers to NYSDOT o Manual of Uniform Record Keeping (MURK)

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APPLICATION INSTRUCTIONS: To apply for funding in 2008, an applicant must complete a separate project application for each proposed project. The project application form is attached as Appendix E. Completed project applications must be submitted by September 30, 2008. Be sure to sign and date the hard copy and submit via surface mail to: Mr. Raymond F. Hessinger, P.E. (Acting) Director, Freight Bureau New York State Department of Transportation 50 Wolf Road, POD 54 Albany, NY 12232 The following instructions are keyed to the Rail & Port Programs Project Funding Application – FY 2008

1. APPLICANT’S FULL LEGAL NAME: Enter the full legal name of the corporate of government entity that will execute the capital project agreement with the State of New York.

2. APPLICANT’S FEDERAL TAX ID NUMBER: Enter the applicant’s federal tax identification number. Reimbursements can only be made when this number is on file.

3. APPLICANT’S MAILING ADDRESS: Enter the full mailing address for the applicant. This should be the address to which all pertinent correspondence, including legal agreements are to be sent.

4. NAME & TITLE OF PERSON TO CONTACT ABOUT THE APPLICATION: Enter the name, title, phone, and e-mail information for the individual who should be contacted concerning the application. If this individual is not located at the address shown in Item #3, please indicate the contact’s mailing address in the space provided.

5. SHORT TITLE OF PROPOSED PROJECT: Provide a short, descriptive title for the project of 80 characters or less.

6. SHORT DESCRIPTION OF PROPOSED PROJECT: Provide a short narrative of the describing the project intent.

7. AMOUNT OF STATE GRANT REQUESTED: Provide the dollar amount of the grant request for this project. See Item #19 (f).

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8. PROJECT LOCATION: Provide the project location, including County(ies), begin and end Municipalities, railroad line name, begin and end milepost. Attachments should include a project location map and track chart, indicating project begin and end points. Other attachment may include valuation maps, ZTS maps, or other reference data.

9. EXISTING CONDITIONS AND NEEDS: Describe the problems the project is intended to address. Include photographs, inspection reports or other information as necessary. Class 1 mainline capacity improvement projects should be supported with baseline simulation results or other quantitative analysis of existing conditions.

10. PROJECT OBJECTIVE: Describe what the project is intended to accomplish.

11. PROJECT ALTERNATIVES: Describe the various methods considered for achieving the project objectives. This section should provided detailed information regarding the overall scope and intent of the project.

12. PROJECT COORDINATION:

Describe the relationship of this project to other capital projects under development by the applicant (either publicly or privately funded), annual maintenance programs, and other projects previously funded by NYSDOT.

13. RAIL / PORT SERVICE TYPES:

Identify the types of passenger and freight services which will benefit from the proposed project.

14. PROJECT BENEFITS:

Describe the benefits of the project to the applicant, shippers, and the public. All benefits claimed must be directly attributable to this project. Applications which quantify the public benefits will receive greater consideration than those containing broad generalizations. All costs or benefits shall be expressed in 2008 dollars. Rail car loads generated or diverted as a direct result of this project:

Complete the table in the application, indicating the commodity, origin and destination of the shipment, car loads per year and tons per carload of any new rail traffic generated or diverted from truck as a direct result of this project. Use additional sheets as necessary.

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Reduction in annual truck miles Using the data provided on new rail traffic generated above, convert the shipments to equivalent annual truck loads and calculate the total number of truck miles avoided. Attach your calculations, and include any assumptions or conversion factors used. NYSDOT will calculate fuel and highway maintenance savings.

Changes in annual passenger vehicle miles

Provide origin and destination pairs of any projected increase in rail passenger traffic. Calculate the total number of passenger miles and convert to vehicle miles using a factor of 1.75 passengers per vehicle mile. Attach your calculations, and include any assumptions or conversion factors used. NYSDOT will calculate fuel and highway maintenance savings.

Retention of employment

How many existing jobs will be retained as a direct result of this project? What is the aggregate annual salary?

Increases in employment How many new jobs will be created as a direct result of this project? What is the aggregate annual salary?

Rail accident avoidance costs Will project lead to reduction in derailments or other FRA reportable accidents? What cost savings may accrue? Attach your calculations and include any assumptions.

Reductions in grade crossing risk

Use the FRA grade crossing Quiet Zone calculator found at http://safetydata.fra.dot.gov/quiet/ to compare grade crossing risk before and after the project. Attach the results. NOTE: The New York State Department of Transportation does not endorse the creation of quiet zones, except through the elimination or grade separation of crossings. Funds available through this application may not be used for the installation of supplemental safety measures or other devices in support of a quiet zone.

Changes in service reliability Will the project improve the reliability of rail service? For passenger operations, identify the anticipated change in on-time performance. Attach calculations supporting the improved OTP and include the criteria used to gage on time performance and number of trains affected. For freight operations, identify the anticipated change in on-time delivery of loads or empties relative to established service commitments. Attach calculations

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supporting the improvement in on-time delivery and include the criteria used to gage on time performance and number of carloads affected.

Passenger Trip Time Savings Identify any improvement in published passenger train schedules, in minutes. Identify the number of trains affected by the schedule reduction and the average number of passengers per train. Attach calculations which support the schedule change.

Freight Trip Time Savings

Identify any improvement in freight shipment times, in days. Identify the number carloads and commodities affected by the improvement. Attach calculations which support the schedule change.

Locomotive Fuel Savings Identify any locomotive fuel savings as a result of the project. Attach calculations comparing before and after conditions.

Locomotive Emissions Reductions

Identify any reductions in locomotive emissions, including Nitrogen Oxides (NOx), Particulate Matter (PM), Non-Methane Hydrocarbons (NMHC), and Greenhouse Gases (GHG). Attach calculations comparing before and after conditions.

Changes in annual transportation expenses

Will a mode shift from truck to rail reduce transportation expenses for a shipper? What annual savings will accrue?

Changes in annual railroad maintenance costs:

Will the project allow the railroad to save on annual maintenance expenses? Changes in annual railroad operating costs:

Does the project reduce the railroads operating costs? For example, track improvements may increase track speeds, which, in-turn reduce crew outlaw events.

Project Achievements: Describe the changes to railroad infrastructure (Track Class, Weight Limit, Clearances, or Other) which will be achieved at the completion of the project.

15. PROJECT BENEFIT NARRATIVE

Describe any project benefits not included above. Whenever possible, provide calculation or other supporting documentation to support the benefit.

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16. IMPLEMENTATION SCHEDULE: Furnish the proposed schedule, in months, for project implementation. Identify all major project milestones including environmental review. Applicants should assume the earliest funds from this solicitation would be available to be spent is Fall 2008.

17. PROPOSED METHOD OF PROJECT IMPLEMENTATON: Check the boxes that apply to the expected method of project implementation.

18. ESTIMATED PROJECT COSTS:

Provide a detailed project estimate. The estimate should identify the major items of work within the project scope with the costs broken down accordingly. The net salvage value of materials recovered must be included in the estimate as a credit against project costs. The estimate will determine the amount of financial commitment and should be as accurate as possible. Similarly, the more complete the estimate in the application, the sooner the grant agreement can be executed. All costs shall be expressed in 2008 dollars. NOTE: NYSDOT will award grants based on the cost estimate provided. These grants are for a fixed dollar amount and any cost increase is the sole responsibility of the applicant.

19. PROJECT FUND SOURCES: Identify the sources of funds to be used for the project. Indicate whether funds from other sources have been approved or applied for. a. Applicant Share: Direct contributions to the project by the entity submitting the

application. b. Federal Share: Identify the amount and sources of any Federal contributions to

the project. c. Other non-State Share: Identify the amount and source of any other non-State

contributions to the project. NOTE: The total of a+b+c must be at least 10% of the total project cost if the project is to be considered for funding from the 2005 Transportation Bond Act. Higher contributions are encouraged. While not required by enabling legislation, NYSDOT expects Class I railroads to provide a 50% contribution or justify proving a lesser share of project costs. d. Other NYSDOT Sources: Identify the amount and source of contributions to the

project from other NYSDOT funding programs, including Multi-Modal, Industrial Access Program, etc.

e. Other State Sources: Identify the amount and source of contributions to the project from other New York State agencies or programs.

f. Rail Grant Requested: Identify the amount of contributions to the project requested by this application. Carry this amount over to Item #7 on Page 1 of the application.

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20. ENVIRONMENTAL CONSIDERATIONS: Complete the environmental checklist in accordance with the instructions on the application. The information provided will assist NYSDOT in determining the appropriate project classification under the New York State Environmental Quality Review Act and does not constitute a final determination by NYSDOT. A final environmental determination must be made by NYSDOT (or filed with NYSDOT if the applicant will act as SEQR lead agency) prior to execution of any construction contracts by the State. NYSDOT may request the applicant to provide documentation to support responses contained in Section C.

21. RIGHT-OF-WAY CERTIFICATION: Describe the level of control the applicant has over the project right of way (ownership vs. lease / contract operator). If the applicant is a lessee or contract operator in the project area, identify the underlying owner of the right-of-way and provide the overall term, expiration date, and extension terms of the lease / contract. If the operation and maintenance term of project will extend beyond the applicants current lease or contract (See General Program Requirements: Commitments on page 3 of these instructions), attach a statement from the underlying owner of the right-of-way indicating a willingness to assume (or assign) the operation and maintenance obligations upon expiration of the current lease or contract with the applicant.

22. PROJECT PRIORITY: If the applicant is submitting applications for more than one project, identify the total number of project applications submitted and the applicant’s priority ranking of their own projects.

23. PROJECT SERVICE LIFE Identify the anticipated service life of the proposed project, in years. Specify the timeframe (in years) from the completion of the project until the benefits claimed in sections 14 and 15 of the application have reached their full value.

24. SUMMARY OF ATTACHMENTS:

This section provides the applicant with a checklist of potential attachments to be included with the application. There are no new submission requirements for this section.

25. ATTESTATION:

Type or clearly print the name, the title, and the date pertaining to the individual signing the application, and sign the application. Important: This person should be officially authorized to enter into an agreement with the Department.

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PROJECT SELECTION PROCESS Step 1: The New York State Department of Transportation (NYSDOT) announces the annual

Rail and Port project solicitation opportunity. Application deadlines are as provided in the transmittal letter, press release, or web site.

Step 2: Applicant and/or sponsor prepares the application in accordance with the instructions

provided herein. Step 3: Completed applications are submitted to the New York State Department of

Transportation prior to the application deadline. Completed applications may be submitted via e-mail with hard-copy originals to follow after the application deadline. NYSDOT reserves the right to accept amendments or modifications to submitted applications at NYSDOT’s sole discretion. NYSDOT will acknowledge the receipt of the applications via email to the contact person provided.

Step 4: Applications will be reviewed by NYSDOT to determine initial project eligibility in

accordance with Appendix C. NYSDOT will notify the project sponsor if any application is found to be ineligible for both the Passenger & Freight Rail Assistance Program and the 2005 Transportation Bond Act Rail and Port Program.

Step 5: Upon successful determination of eligibility, each application will be rated and

prioritized by NYSDOT in accordance with the project selection criteria and priorities contained in Appendix C of this guideline. The NYSDOT Freight Bureau will develop the annual program for the Passenger & Freight Rail Assistance Program and the Transportation Bond Act Rail & Port Program. NOTE: Project applications which contain less than a 10% contribution from non-State sources will be considered for funding only from the Passenger & Freight Rail Assistance Program. Applications containing at least a 10% contribution from non-State sources will be considered for funding from both programs. While not required by enabling legislation, NYSDOT expects Class I railroads to provide a 50% contribution or justify providing a lesser share of project costs.

Step 6: The NYSDOT Freight Bureau submits the recommended Passenger & Freight Rail

Assistance Program and the recommended Transportation Bond Act Rail & Port Program to the Commissioner of Transportation for initial approval. NOTE: Grantee’s will be restricted to a maximum of one grant from each program in any fiscal year.

Step 7a: The Commissioner of Transportation submits the Passenger & Freight Rail

Assistance Program to the Governor for final approval. Step 7b: The Commissioner of Transportation submits the Transportation Bond Act Program

to the Governor and the Legislative leaders in accordance with the Section III.5.d of the Transportation Bond Act MOU (see Appendix A). If no objections are received within 30 days, the program is approved.

Step 8: Once a program is approved in accordance with Step 7a or 7b above, NYSDOT will

notify all applicants of the decisions. Successful applicants will be required to

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complete a Vendor Responsibility Questionnaire (forms are available on the web at http://www.osc.state.ny.us/vendrep/index.htm).

Step 9: NYSDOT will work with the project sponsor to complete the project review under

SEQR and fully develop the project scope and schedule for inclusion in the project agreement.

Step 10: Upon completion of Step 9, a draft funding agreement will be prepared by NYSDOT

and mailed to the successful applicant (see Sample form of Agreement in Appendix C). Once the agreement is reviewed and agreed to by all parties, the document is executed by the applicant and any other signatories. The Department will then execute the agreement and forward the agreement and completed Vendor Responsibility Questionnaire for review and approval by the New York State Attorney General and the New York State Office of the Comptroller. NOTE: Project expenses incurred prior to final execution of the agreement by the Office of the State Comptroller are not eligible for reimbursement by the State.

NOTE: Projects will be selected for inclusion in the Passenger & Freight Rail

Assistance Program or the Transportation Bond Act Rail & Port Program based upon a competitive process. Changes to the scope and intent of a project after selection will be considered at NYSDOT’s sole discretion (and subject to executive, legislative and/or control agency review in accordance with the Transportation Bond Act MOU or State Finance Law, where applicable) only where it can be clearly demonstrated by the applicant that the public benefits of the revised project will exceed those of the original project as described in the application.

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APPENDIX A

2005 TRANSPORTATION BOND ACT MEMORANDUM OF UNDERSTANDING

Section III: Rail & Ports Program

Appendix C: Rail & Ports Program

APPENDIX B

APPLICABLE STATE LAWS

NYS Transportation Law, §480 (2) Transportation Law, §14-d

Transportation Law §480 (2) Program distribution. The moneys received by the state from the sale of bonds sold pursuant to the rebuild and renew New York transportation bond act of two thousand five for uses eligible pursuant to subdivision a of section four of the rebuild and renew New York transportation bond act of two thousand five shall be expended for the following transportation programs, pursuant to annual appropriations:

One billion four hundred fifty million dollars ($1,450,000,000) for the construction, reconstruction, replacement, improvement, reconditioning, rehabilitation and preservation, including engineering, construction management, site preparation, clearances, the preparation of designs, plans, specifications, estimates, environmental impact statements, appraisals and surveys, and the acquisition of real property and interests therein required or expected to be required in connection therewith, of:

state highways, bridges and parkways; highways and bridges off the state highway system necessary or reasonably expected to be necessary as a project component or incidental to projects otherwise authorized by this paragraph in relation to the canal system and appurtenances thereto;

highways and bridges either on or off the state highway system necessary or reasonably expected to be necessary as a project component or incidental to projects otherwise authorized by this paragraph in relation to airports and aviation facilities, ports, omnibus, mass transit, rapid transit and rail projects;

border crossing enhancements either on or off the state highway system; the improvement and/or elimination of highway-railroad grade crossings either on or off the state highway system; pedestrian and/or bicycle trails, pathways and bridges that serve transportation needs; the canal system and appurtenances thereto, including moveable bridges that cross over the canal system, canal infrastructure improvement and enhancement projects, and improvement and enhancement of canal harbors, service ports, marine terminals and marine transportation facilities on the canal system; airports and aviation facilities, equipment and related projects, exclusive of those airports and facilities under the jurisdiction of the port authority of New York and New Jersey or operated by the state of New York; ports, marine terminals and marine transportation facilities exclusive of those under the jurisdiction of the port authority of New York and New Jersey; omnibus, mass transit and rapid transit systems, facilities, and equipment, including acquisition, exclusive of those operated or acquired by or under the jurisdiction of the metropolitan transportation authority and its subsidiaries, the New York city transit authority and its subsidiaries and the Triborough bridge and tunnel authority; urban, commuter and intercity passenger rail, freight rail, and intermodal passenger and freight facilities and equipment, including alterations necessary to improve track clearances, and also including facilities used jointly by commuter railroad companies and freight railroad companies, but otherwise exclusive of those operated by or under the jurisdiction of the metropolitan transportation authority and its subsidiaries, the New York city transit authority and its subsidiaries and the Triborough bridge and tunnel authority.

Transportation Law § 14-d. Rail service preservation. 1. Authorization is hereby given to the commissioner of transportation:

a. to acquire, by purchase, gift, grant, transfer, contract or lease, any rail transportation facility with the state, or any part thereof, or the use thereof, and to utilize any such rail transportation facility, or any property acquired pursuant to the provisions of section eighteen of this chapter, for the purposes of rail transportation service thereon or therewith;

b. to enter into contracts with any person, firm, corporation or agency, including but not limited to any railroad company, state agency, the federal government, the Canadian government, any other state or agency or instrumentality thereof, any public authority of this or any other state, or any political subdivision or municipality of the state, for the purpose of providing, maintaining and improving rail transportation service on the rail transportation facilities thereof;

c. to sell, lease or otherwise contract for the utilization of any rail transportation facilities, or portion thereof, owned or acquired pursuant to this section or pursuant to section eighteen of this chapter, for the purpose of providing for, maintaining and improving rail transportation service thereon.

2. The commissioner, may, subject to the concurrence of the director of the budget:

a. Operate, maintain, renovate, repair, improve, extend or establish any rail transportation facility or any related services and activities, or may provide therefor by contract, lease or other arrangement with any person, firm, corporation or agency, including but not limited to any railroad company, state agency, the federal government, the Canadian government, any other state or agency or instrumentality thereof, any public authority of this or any other state, or any political subdivision or municipality of the state.

b. Enter into joint service agreements on behalf of the state with any railroad company, and any other state department or agency, the federal government, the Canadian government, any other state or agency or instrumentality thereof, any public authority of this state or any other state, or any political subdivision or municipality of the state, relating to property, buildings, structures, facilities, services, rates, fares, classifications, dividends, allowances or charges, or rules or regulations pertaining thereto, for or in connection with or incidental to transportation in part upon rail transportation facilities provided pursuant to this section.

c. Acquire by purchase, gift, grant, transfer, contract or lease any rail transportation facility, or any part thereof, necessary for or incidential to the effectuation of the purposes of this section.

d. Utilize federal monies available or which may become available to the state for the purpose of effectuating the provisions of this section and enter into any necessary agreements required to meet federal standards and criteria in connection therewith.

e. Establish, levy and collect or cause to be established, levied and collected and, in the case of a joint service arrangement, join with others in the establishment, levy and collection of such fares, tolls, rentals, rates, charges and other fees as he may deem necessary, convenient or desirable for the use and operation of any such rail transportation facility and related services.

f. Sell, transfer, lease or contract for the sale, transfer or lease of any rail transportation facility, or any part thereof, necessary for or incidental to the effectuation of the purposes of this section.

g. Do all things necessary, convenient or desirable to carry out the purposes of this section. 3. For the purposes of this section, the term "rail transportation facility" shall include railroad

rights of way as well as trackage, rails, cars, locomotives, rolling stock, signal, power, fuel,

communication and ventilation systems, power plants, stations, terminals, storage yards, repair and maintenance shops, yards, equipment and parts, offices, and other incidental real estate or personalty used or held for or incidental to the operation, rehabilitation or improvement of any railroad operating rail passenger or rail freight transportation services, or to operate such services, including, but not limited to buildings, structures and rail property.

4. Notwithstanding the provisions of any other general special or local law, expenses of the

department of transportation incurred in connection with the provision of rail transportation services as authorized by this section, may, with the approval of the director of the budget, be paid out of the gross revenues, if any, received pursuant to the authorization herein contained. All other revenues surplus to these expenses shall be paid into the state treasury to the credit of the general fund.

APPENDIX C

New York State Department of Transportation

Rail & Port Project Application Evaluation Criteria

The Department will initially screen the applications for eligibility as follows:

• Applicant: Is the applicant eligible to apply for funds from these programs (See application guidelines, Page 1).

• Project Scope: Is the proposed project a passenger rail, freight rail, or port project

eligible for funding from either program.

• Project Location: Is the proposed project located within the State of New York.

• Project Service Life: Can the proposed project be reasonably expected to obtain the minimum service life required by the fund source and project type.

NOTE: Eligible Sponsors who submit project applications which contain both eligible and ineligible work elements will be notified of the ineligible work elements and will be provided five (5) business days to submit an amended application.

Following the initial screening, the eligible project applications will be rated and prioritized based on a weighted qualitative analysis performed by a project scoring committee and a weighted quantitative analysis. Factors which will affect the project’s overall ranking include:

• Qualitative Analysis o Evaluation of non-quantifiable project Selection Criteria contained in Bond MOU

(See Appendix A) o Evaluation of non-quantifiable project Selection Priorities contained in Bond MOU

(See Appendix A) o Policy objectives established for Passenger & Freight Rail Assistance Program

(See Page 2 of application instructions) o Applicant’s prior history with NYSDOT Rail Grants

Number and dollar value of prior awards Were prior projects progressed in a timely fashion. Were prior projects progressed in accordance with NYSDOT procedures.

o Correlation between project scope and anticipated benefits o For sponsors that submit multiple applications, the project priority as indicated by

the applicant.

• Quantitative Analysis o Evaluation of quantifiable project selection criteria contained in the Bond MOU

(See Appendix A) o Evaluation of quantifiable project selection priorities contain in the Bond MOU

(See Appendix A) o NYSDOT will quantify project benefits, including impacts to safety, fuel

consumption, air quality, highway congestion, highway maintenance & capital expenditures, job creation, and service improvement.

o Leverage of State funds in excess of minimum match requirements (10% for Bond, 0% PFRAP). While not required by enabling legislation, NYSDOT expects lass I railroads to provide a 50% contribution or justify proving a lesser share of project costs.

APPENDIX D

Sample form of Agreement

(Subject to review and agreement by all parties)


GRANT AGREEMENT

Insert Grantee COMPTROLLER CONTRACT # ________ PROJECT IDENTIFICATION # This Agreement dated this xxxx day of xxxxxxxx, 200x, by and between the People of the State of New York (hereinafter referred to as "STATE") acting by and through the Commissioner of the Department of Transportation (hereinafter referred to as "COMMISSIONER"), with offices at 50 Wolf Road, Albany, New York 12232, and the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx with offices at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx hereinafter referred to as the "GRANTEE") provides for the design, construction, reconstruction, improvement or rehabilitation of rail facilities as is more fully described in Appendix I of this Agreement.

WITNESSETH

WHEREAS, the STATE and the GRANTEE wish to provide for the preservation and improvement of the Project Facilities so as to allow for the safe and efficient movement of rail and vehicular traffic; and, WHEREAS, Article 22 of the Transportation Law authorizes the COMMISSIONER to implement the Rebuild and Renew New York Transportation Bond Act of 2005; and WHEREAS, Section 14 of the Transportation Law authorizes the COMMISSIONER to enter into contracts for the purpose of maintaining and improving rail transportation service; and, WHEREAS, the total cost for this project, as identified Appendix 1-Work Schedule, is XXXXXXXXXX ($XXXXXX); and, WHEREAS, by Chapter 60, Section 11, of the Laws of 2005, Rebuild and Renew Transportation Bond Act funds have been appropriated to the Department of Transportation to provide assistance to Railroads (Ports) for the payment of the

STATE's share of the municipal transportation infrastructure and railroad projects to be undertaken in accordance with the provisions of the aforesaid Section 14 of the Transportation Law; and, WHEREAS, the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx agrees to provide xxxxxxxxxxxxxxxxxxxx dollars ($xxxxxxxx) or a prorata share of xx% towards the total cost of xxxxxxxxxxxxxxxxxx dollars ($xxxxxxxx) for this project; and, WHEREAS, it has been determined to be in the best interest of the public to make xxxxxxxxxxxxxxxxxxxxxxx dollars ($xxxxxxxxxx) available to the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx for those capital improvements used in connection herewith. NOW THEREFORE, the parties hereto in consideration of the mutual promises, conditions, terms and obligations herein set forth, agree and covenant as follows:

ARTICLE ONE: DEFINITIONS

What is intended by the words and expressions defined below, shall be construed to have these meanings except where it is clear from the context that another meaning is intended. "Agreement" means this document (with appendices).

"STATE" means the People of the State of New York acting by and through the Commissioner of the Department of Transportation.

"COMMISSIONER" means the Commissioner of the New York State Department of Transportation or his designated representative.

"GRANTEE" means the XXXXXX receiving financial assistance under this Agreement.

"Project or Approved Project" means the design, construction, reconstruction, establishment, improvement, rehabilitation or modernization of rail facilities and other capital improvements conducted pursuant to this Agreement.

"Project Costs" means those costs as defined and contemplated in Section 2.4 for accomplishing the work set forth in Appendix I of this Agreement and computed in accordance with 23 CFR, Part 140, Subpart I, and amendments thereto. "Project Facilities" means those facilities being constructed on underlying property excluding the underlying property, together with all materials, equipment, facilities or supplies acquired, constructed, reconstructed, established, improved or rehabilitated by or on behalf of the GRANTEE pursuant to the provisions of this Agreement to accomplish the work program set forth in the Work Schedule.

"Work Schedule" means a description of the project as described in Appendix I. ARTICLE TWO: CAPITAL IMPROVEMENTS Section 2.1. Description of Work GRANTEE agrees to complete or cause to be completed the work described in the Work Schedule constituting Appendix I of this Agreement (hereinafter referred to as the "Work Schedule"), which is attached hereto and made a part hereof, in accordance with said Work Schedule as may be modified or amended, and within the time limits specified in said Work Schedule or any extension thereof. Any time limits for the accomplishing of work which are set forth in said Work Schedule may be extended or modified by mutual agreement between the parties in writing. No work to be financed by the STATE may begin without written approval from the COMMISSIONER after the effective date in Section 3.16. Section 2.2. Approvals and Compliance GRANTEE agrees to obtain or cause to be obtained all approvals, permits and licenses necessary to progress the work, and also agrees to comply or cause to be complied with all applicable Federal, State and Local Laws, including New York Railroad Law, which in any way impacts work to be accomplished by the project.

Section 2.3 Maintenance GRANTEE agrees to maintain, or arrange to have maintained at no expense to STATE, the Project Facilities, as well as ancillary facilities useful or necessary for providing rail transportation services thereon or therewith, in accordance with the usage, the requirements of the COMMISSIONER and the length of time corresponding to the period of useful life for such project in Section sixty-one of the State Finance Law as follows:

a) 30 years for the acquisition, construction, reconstruction or improvement of any railroad capital facility;

b) 20 years in the case of railroad locomotives or other railroad rolling stock; and

c) 15 years for the construction, reconstruction, improvement, reconditioning and preservation of port or marine terminals.

Section 2.4. Reimbursement STATE agrees to reimburse GRANTEE the prorata share of xx% of the eligible Project Costs up to the amount identified in Appendix 1- Work Schedule which GRANTEE incurs for the work performed or facilities provided as described in the attached Appendix1-Work Schedule. GRANTEE agrees to provide a minimum prorata share of xx% of the eligible project costs as identified in Appendix 1-Work Schedule. Project Costs in excess of STATE funds available for the work shall be the responsibility of GRANTEE. STATE funds available for reimbursement under this agreement shall be limited to $XXXXXXXX. The STATE shall not be obligated to pay nor shall GRANTEE claim reimbursement for the use of facilities or equipment which have been acquired by GRANTEE in whole or in part with funds provided by STATE under this or any other agreement. GRANTEE shall provide its share of the cost of the project, if any. Prior to start of construction, GRANTEE shall certify the source and availability of funds for Project Costs which are in excess of STATE funds being made available under this Agreement. GRANTEE shall submit to STATE fair and reasonable charges less the value of materials recovered, as evidence by detailed invoices, for the cost of the work performed or facilities provided as described above, in accordance with the procedures

acceptable to the COMMISSIONER and the State Comptroller. STATE shall reimburse GRANTEE in the amount of the approved Project Costs so submitted as to the work performed. In no event shall the cost to STATE of said work exceed the amount specified in the Work Schedule, except as such cost may hereinafter be increased pursuant to a written amendment to this Agreement by the parties hereto. All costs so submitted by GRANTEE shall be subject to approval by COMMISSIONER, and to audit by the COMMISSIONER and the State Comptroller. Monthly accounting, in accordance with approved certification of such costs incurred by GRANTEE including the last day of the previous month less the value of materials recovered during that month, shall be submitted, provided the amount is $1,000.00 or more and may be submitted for smaller amounts or lesser time-frames upon special request by the party originating the same and approval of COMMISSIONER. Upon the completion of all said work by GRANTEE pursuant to this Agreement, a final statement of costs shall be submitted to the STATE within one hundred eighty (180) days. Upon receipt of the final statement of costs by the COMMISSIONER, the COMMISSIONER will conduct an audit of the GRANTEE project account records within one hundred eighty (180) days to determine the resources applied or used by GRANTEE in fulfilling the terms of this Agreement. Upon the completion of said audit and concurrence by GRANTEE, the final reimbursement payment will be made to GRANTEE. In the event that any payments are made by the STATE to the GRANTEE for costs incurred by GRANTEE, which are subsequently determined to be ineligible for reimbursement under this Agreement, STATE may retain an amount equal to any such excess payments from any monies then or which may become due and owing to GRANTEE under the Agreement, or GRANTEE shall repay such amount to STATE within forty-five (45) days from the date GRANTEE receives notice of such determination of ineligibility. All costs charged to the project shall be properly supported by executed payrolls or abstracts thereof, time, material and accounts payable distribution records, invoices, contracts, vouchers and/or canceled checks evidencing in proper detail the nature and propriety of the charges. These documents shall be retained and maintained by the GRANTEE, as provided in Section 3.9 herein, so that they will be available for audit by authorized representatives of the COMMISSIONER and State Comptroller.

Section 2.5 Federal Assistance GRANTEE shall apply for and/or make reasonable efforts to secure federal assistance, if any, for the project. In the event that federal assistance which was not included in the calculation of the state financial assistance becomes available to the GRANTEE, the amount of the state financial assistance shall be recalculated by reducing the amount of the state financial assistance by the amount of such federal assistance, and the GRANTEE shall pay to the state the amount by which the state payment actually made exceeds the state financial assistance determined by the recalculation, if any. Section 2.6 Title to Materials The materials installed at STATE expense pursuant to this Agreement, excluding the underlying land, shall be the property of the STATE and title thereto shall be vested in the STATE at the time of acquisition and shall remain vested in the STATE for the term of this Agreement. Upon completion of the term of this Agreement as identified in Section 3.17 herein, title shall be vested in the GRANTEE without the need of any execution and delivery of deeds, bill of sale or other title document. Section 2.7 Use and Disposition of Project Facilities Upon completion and acceptance of the Project Facilities by GRANTEE, GRANTEE shall certify in writing to the COMMISSIONER that the Project Facilities have been completed and accepted in accordance with the WORK SCHEDULE. GRANTEE shall use or cause to be used and provide or cause to be provided rail service on or in connection with the Project Facilities in a careful and proper manner and comply with and conform to or cause to be complied with and conformed to all applicable Federal, State and Local laws, ordinances and regulations in any way relating to the use, rail service or maintenance thereof. GRANTEE agrees that, during the period of time during which Title to the Project Facilities paid for by the STATE is held by the STATE or in any event if funding of the STATE's share is from the proceeds of bonds or other obligations issued by the STATE or any of its public benefit corporations, such Project Facilities shall not be sold,

rendered unusable, relinquished, or disposed of by GRANTEE without the express written consent of the COMMISSIONER having first been obtained. Section 2.8 Abandonment GRANTEE shall have the right to abandon part or all or the Project Facilities, or to discontinue or curtail service thereover, provided that: a. Said abandonment, discontinuance or curtailment of service has been

authorized by the federal Surface Transportation Board or any body having jurisdiction thereof;

b. At the time of abandonment, discontinuance or curtailment of service, the

Project Facilities shall comply with all provisions of said Agreement, and c. The GRANTEE has obtained the written permission of the

COMMISSIONER prior to abandoning any or all of the Project Facilities.

d. Should GRANTEE exercise this right to abandon part or all of the Project Facilities or permanently discontinue use thereof, GRANTEE shall reimburse STATE for Project Costs previously reimbursed by STATE under this Agreement based on straight line depreciation of Project Costs reimbursed by STATE calculated over the term of this agreement.

Section 2.9 Manner of Performing Work GRANTEE agrees to undertake or cause to be undertaken and to proceed expeditiously with and complete the project as approved by the Commissioner and as described in the Work Schedule, and to complete or cause to be completed said work within the time limits specified in said Work Schedule. GRANTEE shall update said schedule upon written approval of the COMMISSIONER as necessary to assure that it accurately reflects the GRANTEE’s timetable for completion. Section 2.10 Inspection During the term of this Agreement, the COMMISSIONER shall have the right to enter upon the Project Facilities for the purposes of inspecting and examining the

condition of the Project Facilities and any activities conducted pursuant to this Agreement. Such right shall be exercised only at reasonable times and upon prior notice to GRANTEE. Such inspection shall be conducted as outlined in the "Manual of Construction Supervision and Inspection Procedures for Work by Railroad Force Account" and/or the "Manual of Construction Supervision and Inspection Procedures for Railroad Let Contracts" as prepared by the Rail Division/Operations Bureau of the New York State Department of Transportation and dated January 1984, as amended. It is intended by the parties hereto that by reference to said manuals, it is agreed that the provisions thereof are deemed to be included herein and are accepted as binding upon the parties for purposes establishing construction inspection standards to the same extent and with the same force and effect as if said manuals had been set forth in and made a part of this Agreement. Section 2.11 Environmental Protection GRANTEE agrees that all work accomplished under this Agreement will be performed in accordance with all applicable local, State and Federal environmental laws and regulations. ARTICLE THREE: GENERAL PROVISIONS Section 3.1. Liability and Indemnification GRANTEE hereby agrees to indemnify and hold harmless the STATE, the Department of Transportation and their respective agents and employees from any and all liability for injury to or death of any person or persons and for loss of, damage to, or destruction of any property or equipment which arises from activities conducted by or on behalf of the GRANTEE pursuant to this Agreement, including all related costs and counsel fees, except when attributable to the fault or negligence of the STATE, the Department of Transportation, its respective agents and employees other than GRANTEE.

GRANTEE agrees to require its contractor(s) to procure and maintain until final acceptance of the Project by the STATE, insurance of the kinds and in the amounts hereinafter provided in insurance companies authorized to do business in the State of New York, covering all companies under this Agreement whether performed by the GRANTEE, its contractor(s) or subcontractor(s). GRANTEE shall furnish to the STATE a certificate(s), in a form satisfactory to the STATE, showing compliance with this Article, which certificate(s), shall provide that the policies shall not be changed or canceled until thirty (30) days written notice has been given to the STATE. Said insurance policies shall name the People of the State of New York, New York State, its officers, agents and employees as additional insureds thereunder. Upon written request by the STATE, the GRANTEE shall furnish to the STATE a letter certifying that the State of New York, and other required insureds, have been named as additional insureds to such policy. The kinds and amounts of insurance required are as follows: In addition to any other forms of insurance or bonds required under the terms of the contract and specifications, the GRANTEE’s Contractor will be required to carry insurance of the following kinds and amounts:

a. Public Liability Insurance. With respect to the operations performed, regular Contractor's Public Liability Insurance is provided for a limit of not less than $2,000,000. Single Limit, Bodily Injury and/or Property Damage combined, for damages arising out of bodily injuries to or death of all persons in any one occurrence and for damage to or destruction of property, including the loss of use thereof, in any one occurrence. b. Protective Public Liability Insurance. With respect to the operations performed, subcontractors provide regular Contractor's Protective Public Liability Insurance for a limit of not less than $2,000,000. Single Limit, Bodily Injury and/or Property Damage combined, for damages arising out of bodily injuries to or death of all persons in any one occurrence and for damage to or destruction of property, including the loss of use thereof, in any one occurrence. c. Motor Vehicle Liability Insurance. With respect to any motor vehicles which may be used in connection with the work to be performed, the Contractor shall maintain a policy(s) as required by the Motor Vehicle Laws of the State of New York to bear license plates.

d. Railroad Protective Public Liability Insurance. With respect to the operations the Contractor or any of the Contractor's subcontractors perform, Contractor shall provide Railroad Protective Public Liability Insurance (AAR-AASHTO Form) in the name of all railroad companies operating at the location of the Project Facilities providing for a limit of not less than $2,000,000. Single Limit, Bodily Injury and/or Property Damage combined, for damages arising out of bodily injuries to or death of all persons in any one occurrence and for damage to or destruction of property, including the loss of use thereof, in any one occurrence. Such insurance shall be furnished with an aggregate of not less than $6,000,000 for damages as a result of more than one occurrence. e. Force Account Insurance. The GRANTEE shall carry Force Account insurance covering bodily injury, legal liability, liability assumed under this Agreement and property damages resulting from any acts, errors or omissions for the work performed by GRANTEE’s employees in connection with this Agreement. This policy shall provide limits not less than Two Million ($2,000,000) nor more than Six Million Dollars ($6,000,000) as determined by GRANTEE, the appropriate cost of which shall be reimbursed under FHWA, 23 CFR Part 140, Subpart 1 (April 7, 1992) as amended. The GRANTEE retains the right to self-insure any of its obligations under this provision.

The insurance hereinbefore specified shall be carried until all work required to be performed under the terms of the Agreement is satisfactorily completed and formally accepted. Failure to carry or keep such insurance in force until all work is satisfactorily completed shall constitute a violation of the Agreement. Section 3.2. Assignment GRANTEE shall not assign this Agreement or any interest herein without first obtaining COMMISSIONER'S written consent thereto, which consent shall not be unreasonably withheld or delayed. Section 3.3 Approval of Contracts GRANTEE shall not execute any contract, subcontract or amendment thereto, or obligate itself in any other manner with any third party relating to or with respect to the

Project to be undertaken pursuant to this Agreement without the prior written approval of the COMMISSIONER. This Section shall apply only to contracts, subcontracts, amendments and obligations pursuant to which GRANTEE incurs costs or expenses which are to be paid for in whole or in part by the STATE pursuant to this Agreement. Section 3.4. Non-Waiver No covenant or condition of this Agreement can be waived except by the written consent of the parties hereto. Forbearance or indulgence by STATE in any regard whatsoever shall not constitute a waiver of any covenant or condition to be performed by GRANTEE as applicable, and until complete performance by the appropriate party of such covenant or condition, STATE shall be entitled to invoke any remedy available to it under this Agreement or by law or in equity despite such forbearance or indulgence. Section 3.5. Entire Agreement This instrument and the appendices identified herein constitute the entire agreement between STATE and GRANTEE and it shall not be amended, altered or changed except by a written agreement signed by all of the parties hereto. Section 3.6. Force Majeure The obligations of the parties hereunder shall be subject to force majeure (which shall include strikes, riots, floods, acts of God, and other causes or circumstances beyond the control of the party claiming such force majeure as an excuse for non-performance), but only as long as, and to the extent that, such force majeure shall prevent performance of such obligations. Section 3.7. Successors and Assigns All the covenants and obligations of the parties hereunder shall bind their successors and assigns, and any document assigning same will incorporate language whereby assignee will specifically accept and assume all such covenants and obligations.

Section 3.8. Interpretation The Article and Section headings utilized in this Agreement are for convenience only. This Agreement shall be construed in accordance with and governed by the Laws of the State of New York. All appendices attached hereto are integral parts of this Agreement and the provisions set forth in the Appendices shall bind the parties hereto to the same extent as if such provisions had been set forth in their entirety in the main body of this Agreement. Nothing expressed or implied herein shall give or be construed to give to any person, firm or corporation other than STATE or GRANTEE any legal or equitable right, remedy or claim under or in respect to this Agreement. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by COMMISSIONER and GRANTEE unless a provision hereof expressly permits any of the parties to effect termination, amendment, supplementation, waiver or modification hereunder, in which such action shall be taken in accordance with the terms of such provision. Section 3.9. Records and Documents GRANTEE shall maintain books, records and supporting documents in connection with the work to be accomplished pursuant to this Agreement. For a period of six (6) years from the date of submission of the final bill by GRANTEE, books, records, bills, vouchers, payrolls, invoices and other documents of every type and description pertaining to the work to be accomplished under this Agreement shall be available to COMMISSIONER or the State Comptroller, or their authorized representatives, for inspection and audit. All costs charged under this Agreement shall be supported by payrolls and time records, material consumption reports, business expense statements, paid invoices and contracts evidencing in detail the nature of the charges for which reimbursement is sought. Section 3.10 Termination or Suspension The STATE shall have the absolute right to terminate this Agreement, and such action shall in no event be deemed a breach of contract:

(a) If a termination is brought about for the convenience of the STATE and not as a result of unsatisfactory performance on the part of GRANTEE, final payment shall be made based on the actual cost incurred by GRANTEE in accordance with the terms of this Agreement and as verified by audit. In determining the value of the work performed by GRANTEE prior to the termination, no consideration will be given to profit which GRANTEE might have made on the uncompleted portion of the work. (b ) If the termination is brought about as a result of unsatisfactory performance on the part of GRANTEE, the value of the work performed by GRANTEE, prior to termination shall be established by the percent of the amount of such work completed by GRANTEE and acceptable to the STATE, of the total amount of work contemplated by this Agreement. ( c) If, for any reason, the commencement, prosecution or timely completion of the Project is rendered improbable, infeasible, impossible or illegal, or if GRANTEE is determined by the STATE to be in default under its agreement, then the STATE may terminate the Project upon fifteen (15) days prior written notice to GRANTEE. Section 3.11. Severability If any part of this Agreement is determined to be invalid, illegal or unenforceable, such determination shall not affect the validity, legality or enforceability of any other part of this Agreement and the remaining parts of this Agreement shall be enforced as if such invalid, illegal or unenforceable part were not contained herein. Section 3.12. Notices Any request, authorization, direction, notice, consent, waiver or other document provided for or permitted by this Agreement to be made upon, give or furnished to, or filed with one party by the other party, shall be in writing and shall be delivered by hand or by deposit in the mails of the United States, postage prepaid, to the COMMISSIONER, or to GRANTEE, at the address here before identified. Each party may change the address at which it shall receive notification hereunder by notifying the other of such change. Section 3.13. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be original.

Section 3.14. Relationship to Parties The relationship of the GRANTEE to the STATE is that of any independent contractor, and the GRANTEE, in accordance with its status as such contractor, covenants and agrees that it will conduct itself consistent with such status, that is will neither hold itself out as nor claim to be an officer or employee of the STATE by reason hereof, and that it will not by reason hereof, make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the STATE, including, but not limited to worker's compensation coverage, retirement membership or credit. Section 3.15. Effective Date of Agreement This Agreement shall take effect at the time at which it is approved by the State Comptroller. Section 3.16. Term of Agreement The term of this Agreement shall commence on the effective date thereof specified in Section 3.16 and shall extend until thirty (30) ((for rail)) twenty (20) ((for locomotives or rolling stock)) fifteen (15) ((for port)) years from the date of completion of the work as accepted by STATE. Section 3.17. Documents Forming Agreement This Agreement shall consist of this document and the following attachments: Appendix I, Work Schedule; and Appendix A, Standard Clauses for all New York State Contracts. CONTRACT NUMBER_______________ xxxxxxxxxxxxxx Department Certification xxxxxxxxxxxxxxxxxxxxxxxx “In addition to the acceptance of this contract, xxxxxxxxxxxxxxxxxxx I also certify that original copies of this SIGNATURE signature page will be attached to all other exact copies of this contract.”

By:________________________________ _________________________________ Title:_______________________________ COMMISSIONER’S SIGNATURE Dated:______________________________ Dated:___________________________ County of____________________ On this_______________day of____________________. 200x, before me personally came_______________________________________________to me known to be the _________________________________________of the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, the entity described in and which executed the foregoing instrument: acknowledged to me that he executed the same, pursuant to authorization by the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. ___________________________ Notary Public

Dated:______________________

ATTORNEY GENERAL’S SIGNATURE COMPTROLLER’S SIGNATURE ____________________________ ______________________________ Dated:_______________________ Dated:_________________________

APPENDIX 1 – WORK SCHEDULE

The Project will consist of the items of work set forth in this Work Schedule, and as more fully described in plans and estimates prepared by or on behalf of the GRANTEE as may be required. Should contract plans, specifications, and estimates be required, they shall be prepared by or on behalf of the GRANTEE and subject to STATE approval and shall be deemed to be included herein as part of the Work Schedule. The Project provides xxxxxxxxxxxxxxxxxxxxxxxxdollars ($xxxxxxxx) for Description Estimated Cost Work Element $ xxx,xxx.xx Work Element $ xxx,xxx.xx TOTAL $ xxx,xxx.xx Individual work elements may be adjusted within the total Agreement amount with prior written approval of NYSDOT. All work identified in this Work Schedule shall be completed no later than xxxxxxxx.

APPENDIX E

Application Form

New York State Department of Transportation RAIL & PORT PROGRAMS

PROJECT FUNDING APPLICATION FY - 2008 Return completed form to: Mr. Raymond F. Hessinger, P.E. Acting Director, NYSDOT Freight Bureau

50 Wolf Road POD 5-4 Albany, NY 12232

APPLICANT INFORMATION

PROJECT INFORMATION

5. SHORT TITLE OF PROPOSED PROJECT: ---------------------------------------------------------------------------------------------------------------------------------------------- 6. SHORT DESCRIPTION OF PROPOSED PROJECT (rail / tie replacement, surfacing, yard work, new access, structural improvements, etc.): ----------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------- 7. AMOUNT OF STATE GRANT REQUESTED: $ (Refer to Item # 19 – Project Fund Sources, line f.)

1. APPLICANT’S FULL LEGAL NAME:

2. APPLICANT’S FEDERAL TAX ID NUMBER:

3. APPLICANT’S MAILING ADDRESS:

Number and Street: City:

State:

Zip Code:

4. NAME & TITLE OF PERSON TO CONTACT ABOUT THIS APPLICATION:

Name: Title: Phone number: e-mail address:

Application Contact’s Address (if different than item #2 above):

Number and Street: City:

State:

Zip Code:

NYSDOT Rail & Port Program – Project Funding Application FY 08 Page 2 of 7 8. PROJECT LOCATION:

For railroad project give name of railroad line and project limits: Railroad Line Name or Port: Milepost or Limits of proposed project: At milepost or Between milepost and milepost County(ies): Attachments:

Location Map (Required) Track Chart (Required) Other: _______________ Valuation Map (As Necessary) ZTS Map (As Necessary)

Site or facility name (if appropriate): ----------------------------------------------------------------------------------------------------------------------------------------------

9. EXISTING CONDITIONS AND NEEDS: (Describe existing conditions intended to be remedied by this project) ----------------------------------------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------- Attachments (as necessary):

Photographs Inspection Reports Other: __________________ Network Simulation (baseline)

10. PROJECT OBJECTIVE: (Describe what the project is intended to accomplish) ----------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------- 11. PROJECT ALTERNATIVES: (Describe the methods considered to achieve project objectives) ----------------------------------------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------- Attachments (as necessary):

Plan & Profile Inspection Reports Other: __________________ Network Simulation (proposed)

12. PROJECT COORDINATION (Describe the relationship of this project to other projects under development by the applicant, annual maintenance programs, and other projects previously funded by NYSDOT.) ----------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------------------

NYSDOT Rail & Port Program – Project Funding Application FY 08 Page 3 of 7 13. RAIL / PORT SERVICE TYPES: Identify rail / port service types affected by the project (check all that apply):

Freight Intercity Passenger Commuter Tourist 14. PROJECT BENEFITS: (Provide information requested below, as applicable, on the benefits of the proposed project. Calculations supporting the benefits claimed must be provided with the application. Attach additional sheets as necessary to fully describe project benefits and/or support calculations. Refer to application instructions pages 5 thru 7 for further instructions on individual line items.) Rail car loads (Inbound / Outbound) generated or diverted from truck as a direct result of project:

Commodity Carloads / Year Origin City Destination City Tons / Railcar

Reduction in annual truck-miles: / yr Reduction in annual passenger vehicle miles: / yr Retention of employment: Jobs Created $ Avg. Annual Salary Increases in employment: Jobs Retained $ Avg. Annual Salary Rail Accident Avoidance Costs or Benefits: $ / yr Reductions in grade crossing risk: Use FRA Quiet Zone Calculator Changes in Service Reliability: % on time arrival / delivery Passenger trip time savings (min. / train) (train / day) (psgrs. / train) Freight trip time savings (days / shipment) Locomotive Fuel Savings gal / yr Locomotive Emissions Reductions tons / yr Changes in annual transportation expenses: $ / yr Changes in annual railroad maintenance cost: $ / yr Changes in annual railroad operating costs: $ / yr PROJECT ACHIEVEMENTS: Before After FRA Track Class in Project Area: Maximum allowable railcar weight: Minimum overhead clearances: Minimum horizontal clearances: Other (increased track speed, capacity, etc.): Identify

NYSDOT Rail & Port Program – Project Funding Application FY 08 Page 4 of 7 15. PROJECT BENEFIT NARRATIVE: (Describe any project benefit not included above. Quantify benefits wherever possible and attach calculations.) ----------------------------------------------------------------------------------------------------------------------------------------------

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---------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------------------

---------------------------------------------------------------------------------------------------------------------------------------------- 16. PROJECT IMPLEMENTATION SCHEDULE: (Provide a project schedule, in months. List all major project milestones, including environmental review) ----------------------------------------------------------------------------------------------------------------------------------------------

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---------------------------------------------------------------------------------------------------------------------------------------------- 17. PROPOSED METHOD OF PROJECT IMPLEMENTATION (Check as many as apply):

Consultant engineering Consultant project management Construction by private contractor In-house engineering In-house project management Construction by in-house forces (force account)

18. ESTIMATED PROJECT COSTS: The applicant must attach a detailed estimate for the project with the application. The value of any salvaged materials shall be shown as a credit in the estimate. In the event actual costs exceed the estimates provided here, the grantee will be expected to assume 100% of any cost over-runs. At minimum, the estimate must include the following categories (as applicable to the project): Engineering / Environmental Assessment $ 0.00 Site Work $ 0.00 Bridges & Structures $ 0.00 Track Work $ 0.00 Signals & Communications: $ 0.00 Mechanical $ 0.00 Contingency $ 0.00 SUBTOTAL $ 0.00 Salvage ( $ 0.00) TOTAL $ 0.00

NYSDOT Rail & Port Program – Project Funding Application FY 08 Page 5 of 7 19. PROJECT FUND SOURCES: (For projects to be funded by the 2005 Transportation Bond Act, non-State sources must provide a minimum 10% of the total project costs.)

a. Applicant Share: $

b. Federal Share: $ Source: (eg, FHWA, FRA, etc.) on STIP (Y/N) Year

c. Other non-State Share: $ Source: SUBTOTAL – Non-State Sources: $ (a+b+c), Must be at least 10% of project total for Bond projects

d. Other NYSDOT Sources $ Source: (eg. Multi-Modal, IAP, etc.) e. Other State Sources $ Source: (eg. ESDC, NYSERDA, NYSDEC, etc.)

SUBTOTAL – Other State Sources: $ (d+e)

f. Rail Grant Requested: $ Carry-over to Page 1, Item # 7.

TOTAL PROJECT COST: $ 20. ENVIRONMENTAL CONSIDERATIONS:

A. IS THE APPLICANT A MUNICIPAL CORPORATION, PUBLIC AUTHORITY, OR COUNTY

SUBJECT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQR)?

YES NO

• IF THE ANSWER IN SECTION “A,” IS “YES,” STOP. Pursuant to 17 NYCRR Part 15.5, the Applicant shall be

the lead agency under SEQR and shall file a copy of its SEQR determination with NYSDOT prior to initiation of construction activities.

IF THE ANSWER IN SECTION “B” IS NO, PLEASE ANSWER THE QUESTIONS IN SECTIONS “B” AND “C”. The applicant is advised that interaction with other agencies, such as State Historic Preservation Office (SHPO) and New York State Department of Environmental Conservation (DEC), may be necessary in order to comply with State Environmental Quality Review (SEQR) law. Also, it may be necessary for the applicant to provide additional documentation at later stages in the development of the proposed project.

B. IF THE ANSWER IN SECTION “A” IS NO, WHICH OF THE FOLLOWING STATEMENTS BEST DESCRIBES THE

SCOPE OF THE APPLICANT’S PROPOSED PROJECT? (Check only one box)

The acquisition or rehabilitation of transportation vehicles, including locomotives, freight & passenger cars, and

maintenance-of-way equipment.

The acquisition and use of signal and communications equipment.

The expansion, reconstruction, rehabilitation, or replacement of existing public transportation passenger terminal buildings involving expansion by less than 50% of the existing site or floor area.

The construction of new transportation buildings or terminals.

The replacement, reconstruction, or rehabilitation of existing highway/railroad crossings at grade and crossing

bridges.

The construction of new parking areas for less than 250 vehicles.

The construction, reconstruction, or rehabilitation of track.

Other:

NYSDOT Rail & Port Program – Project Funding Application FY 08 Page 6 of 7

C. IF THE ANSWER IN SECTION “A” IS NO, PLEASE ANSWER THE FOLLOWING THRESHOLD QUESTIONS: YES NO Does the project require the acquisition of any real estate? If YES, does this real estate involve any

occupied homes or businesses? YES NO YES NO Will the project result in significant changes in vehicular travel patterns, traffic volumes, or highway

access? YES NO Will the project have effects on abutting properties? YES NO Is the project consistent with plans or goals adopted by the local government body? YES NO Will the project alter more than 2.5 acres of public park land, recreation area, or designated open

space? YES NO Will the project have an effect on any district, site, building, structure, or object that is listed, or may be

eligible for listing on the National Register of Historic Places? YES NO Is the project located within 100 feet of a wetland area? YES NO Is the project located within a 100 year floodplain area? YES NO Is the project located within an agricultural district? YES NO Is the project located within 100 feet of a river, stream, lake, or other body of water?

If YES, please provide NAME of this body of water: ___________________ YES NO Will the project have an effect on any rare, endangered, or threatened species? Describe any special environmental conditions: ----------------------------------------------------------------------------------------------------------------------------------------------

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21. RIGHT OF WAY CERTIFICATION: Does the applicant lease the right-of-way or is applicant a contract operator over subject trackage ( yes / no ): If Yes, identify host entity:

Provide lease / contract term: years, expiration date: , and extension terms:

Depending on the fund source, NYSDOT rail and port grant agreements include a 10 to 30 year operation and maintenance clause beyond the completion of the project. If this clause extends beyond the terms of the applicant’s current lease or operation agreement, attach a statement from host entity indicating a willingness to assume those obligations upon expiration of the current lease / operation agreement with the applicant. 22. PROJECT PRIORITY: For applicants who submit more than one project funding application, please indicated the priority order of your applications as follows:

a. Number of applications submitted:

b. Priority order of this project: of

NYSDOT Rail & Port Program – Project Funding Application FY 08 Page 7 of 7 23. PROJECT SERVICE LIFE: Identify the anticipated service life of the improvements: 10 years 15 years 20 years 30 years Identify the timeframe from completion of project construction to achievement of steady-state accrual of project benefits: years. 24. SUMMARY OF ATTACHMENTS: 8. Project Location – Location Map (required), Track Chart (required) , & Other Information (as necessary) 9. Existing Conditions & Needs – Supporting Documentation (as necessary) 11. Project Alternatives – Supporting Documentation (as necessary) 14. Project Benefits – Supporting Documentation (as necessary) 15. Project Benefit Narrative – Supporting Documentation (as necessary) 16. Project Implementation Schedule – Supporting Documentation (as necessary) 18. Estimated Project Costs – Detailed Project Estimate (required) 20. Environmental Considerations – Supporting Documentation (as necessary) 21. Right-of-Way Certification – Host Support Statement (as necessary) n/a. Other Supporting Documentation (as necessary): ______________________________ 25. ATTESTATION: To the best of my knowledge, the information provided herein is true and accurate description of the proposed project and its benefits. NAME OF PERSON AUTHORIZED TO SIGN THIS APPLICATION, TITLE AND DATE SIGNED: Please Print Name Title Date Signature:

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