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<br />4. <br /> <br />Relate to BNSF performance ~, on-ti~e performance, quality of <br />service, customer relations); and <br />Include a reasonable profit. <br /> <br />. <br /> <br />5. <br /> <br />B. Capital investments <br />1. Public funds will only be expended for capital improvements that are <br />necessary for its desired levels and standards of commuter rail service. <br />2. The benefits derived by BNSF and others from use of the capital <br />investments funded by the State shall be fully recognized in allocating costs <br />and establishing BNSF's compensation. <br />3. Payments or reimbursements to BNSF for maintenance and repair costs for <br />the right-of-way shall not exceed the public's proportionate use or benefit <br />from those assets. <br />4. The public sector contribution for capital investments shall not exceed <br />funds available. <br />5. If commuter rail trains are consistently late or other contractual obligations <br />to NCDA are not met due to insufficient line capacity, BNSF shall be <br />required to remedy those deficiencies at its own cost. <br /> <br />C. Liability and Insurance <br />The parties will work to ensure that both the public and private participants are <br />protected against unreasonable risks of loss or injury. <br /> <br />IV. <br /> <br />Operations, Roles and Responsibilities <br /> <br />. <br /> <br />A. Structure <br />So long as it is consistent with other basic principles, the parties will structure the <br />project to minimize adverse tax impacts on all participants. <br /> <br />B. Operating control <br />1. If the parties reach agreement as to other issues, NCDA will not object to <br />BNSF's dispatching and operating commuter rail trains, maintaining its <br />right-of-way, and overseeing construction of mainline track improvements. <br />2. NCDA shall have the right to require BNSF to take appropriate personnel <br />action in order to ensure the highest quality service. <br />3. The State (or its designee) shall have the right to control operations within <br />stations and over related trackage, to establish commuter rail fares, to <br />collect and disburse revenues, to arrange for security and enforcement, to <br />market the commuter rail service, to arrange for maintenance of rail cars <br />and locomotives, to determine the schedule and frequency of service, and <br />to control the oversight of service. <br /> <br />-2- <br /> <br />. <br />