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Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build i Conformed Design-Build Contract
1.0 PROJECT DOCUMENTS.................................................................................................. 2 1.1 Abbreviations and Definitions .........................................................................................................2 1.2 Contract Documents ........................................................................................................................2 1.3 Interpretation....................................................................................................................................2 1.4 Omission of Details, Clarification from Authority ..........................................................................4 1.5 Responsibility for Design ................................................................................................................4 1.6 Maintenance of, Access to and Audit of Records ............................................................................5 1.7 Retention of Records........................................................................................................................6 1.8 Public Records Act...........................................................................................................................7
2.0 ROLES AND RESPONSIBILITIES OF CONTRACTOR................................................ 8 2.1 Design and Construction..................................................................................................................8 2.2 Representations and Warranties .......................................................................................................9 2.3 Cooperation......................................................................................................................................9 2.4 Supervision ....................................................................................................................................10 2.5 Contractor Personnel and Organization .........................................................................................10 2.6 Project Organizational Structure .................................................................................................... 11 2.7 Meetings......................................................................................................................................... 11 2.8 Compliance with Laws; Equal Employment Opportunity .............................................................12 2.9 Delay Mitigation ............................................................................................................................13
3.0 ROLES AND RESPONSIBILITIES OF AUTHORITY.................................................. 13 3.1 Role of Authority ...........................................................................................................................13 3.2 Effect of Reviews, Inspections, Tests and Approvals ....................................................................13 3.3 Right of Way ..................................................................................................................................13 3.4 Office Space...................................................................................................................................14
4.0 STRUCTURE OF DESIGN BUILD PAYMENTS TO CONTRACTOR ....................... 14 4.1 Overview of Compensation ...........................................................................................................14 4.2 Design Services..............................................................................................................................15 4.3 Professional Services .....................................................................................................................15 4.4 Insurance........................................................................................................................................15 4.5 Construction...................................................................................................................................15 4.6 Timing of Payments .......................................................................................................................15
5.0 SCOPE OF DESIGN SERVICES AND RESPONSIBILITIES....................................... 15 5.1 General Scope ................................................................................................................................15 5.2 Responsibilities ..............................................................................................................................16 5.3 Design Organization ......................................................................................................................16 5.4 Preliminary Engineering Documents .............................................................................................16 5.5 Review and Corrections.................................................................................................................16 5.6 Notice of Defects ...........................................................................................................................16
6.0 NOTICE TO PROCEED WITH DESIGN WORK.......................................................... 17 6.1 Notice of Award .............................................................................................................................17 6.2 Notice to Proceed...........................................................................................................................17 6.3 Design Package..............................................................................................................................18 6.4 Term of Design Services ................................................................................................................18
7.0 COMPENSATION FOR DESIGN SERVICES............................................................... 18 7.1 Basis of Compensation ..................................................................................................................18 7.2 Design Fee .....................................................................................................................................18
Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build ii Conformed Design-Build Contract
7.3 Design Allowance and Design Costs .............................................................................................19 7.4 Design Labor Costs........................................................................................................................19 7.5 Design Overhead Costs/Multiplier ................................................................................................20 7.6 Cost Reimbursements ....................................................................................................................20 7.7 Task Orders ....................................................................................................................................20
8.0 NEGOTIATION OF CONSTRUCTION PRICE; ESTABLISHMENT OF LUMP SUM FIXED PRICE .................................................................................................................. 21
8.1 Cost Estimate .................................................................................................................................21 8.2 Contractor’s Price Proposal ...........................................................................................................21 8.3 Negotiation between Contractor and Authority .............................................................................22 8.4 Design Packages ............................................................................................................................22 8.5 Lump Sum Fixed Price ..................................................................................................................23 8.6 Actions Following Agreement .......................................................................................................23 8.7 Actions Following Failure to Agree...............................................................................................23 8.8 Negotiation of Insurance Prices .....................................................................................................24
9.0 PROFESSIONAL SERVICES ......................................................................................... 24 9.1 Responsibility ................................................................................................................................24 9.2 Compensation for Professional Services .......................................................................................25 9.3 Professional Services Fee ..............................................................................................................25 9.4 Professional Services Allowance ...................................................................................................25 9.5 Professional Services Labor Costs.................................................................................................27 9.6 Professional Services Overhead Costs...........................................................................................27 9.7 Cost Reimbursements ....................................................................................................................28
10.0 INCENTIVES FOR DESIGN WORK AND PROFESSIONAL SERVICES WORK .... 28 10.1 Incentive for Completion of Design Work for less than the Design Allowance ............................28 10.2 Determinations regarding Design Incentives.................................................................................28 10.3 Payment of Design Incentive .........................................................................................................29 10.4 Incentive for Completion of Professional Services Work..............................................................29 10.5 Determinations Regarding Professional Services Incentive ..........................................................29 10.6 Payment of Professional Services Incentive ..................................................................................29
11.0 OWNERSHIP AND USE OF DRAWINGS AND MATERIALS................................... 30 11.1 Property of Authority .....................................................................................................................30 11.2 Confidentiality ...............................................................................................................................30
12.0 SCOPE OF CONSTRUCTION WORK AND RESPONSIBILITIES ............................. 30 12.1 Applicability ..................................................................................................................................30 12.2 General...........................................................................................................................................30 12.3 Project Management ......................................................................................................................30 12.4 Workmanship .................................................................................................................................31 12.5 Materials ........................................................................................................................................31
13.0 NOTICE TO PROCEED WITH CONSTRUCTION ................................................. 31 13.1 Preconditions .................................................................................................................................31 13.2 Issuance of NTP.............................................................................................................................31
14.0 TERM OF CONSTRUCTION ......................................................................................... 32 14.1 Period of Performance ...................................................................................................................32 14.2 Implementation of the Work ..........................................................................................................32 14.3 Schedule Controls and Reports ......................................................................................................32
Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build iii Conformed Design-Build Contract
14.4 Weather Delays Caused by Rain ....................................................................................................32 15.0 TOTAL COMPENSATION FOR CONSTRUCTION WORK ....................................... 33
15.1 Lump Sum Fixed Price ..................................................................................................................33 15.2 Construction Fee ............................................................................................................................34 15.3 Construction Allowance.................................................................................................................34 15.4 Construction Contingency .............................................................................................................35 15.5 Construction Incentive for Completion for Less Than Construction Allowance...........................35 15.6 Construction Incentive for Unused Construction Contingency Amount (“CCA”) ........................35 15.7 Construction Incentive for Early Completion................................................................................36
16.0 CONTRACTING PLAN, DBEs AND SUBCONTRACTS............................................. 36 16.1 Contracting Plan ............................................................................................................................36 16.2 Disadvantaged Business Enterprises; Equal Employment Opportunity ........................................38 16.3 Subcontracts...................................................................................................................................40
17.0 RISK ALLOCATION....................................................................................................... 42 17.1 Discovery of Certain Site Conditions ............................................................................................42 17.2 Differing Site Conditions ...............................................................................................................43 17.3 Responsibility for Utility Relocations / Rearrangements and Changes in City Facility Work ......44 17.4 Responsibility for Force Majeure Events.......................................................................................51 17.5 Responsibility for Environmental Compliance..............................................................................53 17.6 Responsibility for Hazardous and Contaminated Substance Remediation ....................................54 17.7 Risk of Loss ...................................................................................................................................56 17.8 Governmental Approvals ...............................................................................................................57 17.9 Environmental Compliance ...........................................................................................................58
18.0 INVOICING AND PAYMENT PROVISIONS............................................................... 59 18.1 Design Payments............................................................................................................................59 18.2 Professional Services Payments.....................................................................................................60 18.3 Insurance Payments .......................................................................................................................61 18.4 Construction Progress Payments....................................................................................................62 18.5 Invoicing Instructions ....................................................................................................................62 18.6 Application for Construction Progress Payment............................................................................63 18.7 Terms of Payment ..........................................................................................................................64 18.8 Payment for Goods Not Incorporated into the Work .....................................................................65 18.9 Title….. ..........................................................................................................................................65 18.10 Retention on Construction Progress Payments ..............................................................................65 18.11 Additional Deductions and Withholding........................................................................................67 18.12 Stop Notice.....................................................................................................................................68 18.13 Payment to Subcontractors ............................................................................................................68 18.14 Payment of Taxes ...........................................................................................................................69 18.15 Final Payment ................................................................................................................................69
19.0 CHANGE ORDERS ......................................................................................................... 71 19.1 Circumstances Under Which Change Orders May Be Issued .......................................................72 19.2 Procedure for Issuance of Change Orders by Authority ................................................................74 19.3 Contractor-Initiated Change Orders...............................................................................................75 19.4 Contents of Change Orders............................................................................................................81 19.5 Certain Limitations ........................................................................................................................83 19.6 Pricing of Change Orders...............................................................................................................85
Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build iv Conformed Design-Build Contract
19.7 Basis for Establishing Costs Associated with Change Orders .......................................................86 19.8 Changes in Basic Project Configuration ........................................................................................92 19.9 Changes Outside of Scope .............................................................................................................93 19.10 Change Order Records...................................................................................................................94 19.11 Disputes .........................................................................................................................................96 19.12 No Release or Waiver ....................................................................................................................96 19.13 Insurance Proceeds.........................................................................................................................97 19.14 Additional Requirements ...............................................................................................................97
20.0 DISPUTE RESOLUTION................................................................................................ 98 20.1 Introduction....................................................................................................................................98 20.2 Continuance of Work During Dispute............................................................................................99 20.3 Membership ...................................................................................................................................99 20.4 Operation .....................................................................................................................................102 20.5 Procedures....................................................................................................................................102 20.6 Compensation ..............................................................................................................................106 20.7 Cooperation..................................................................................................................................106 20.8 Provisional Remedies...................................................................................................................106 20.9 Continuing Performance ..............................................................................................................106 20.10 Participation in Other Proceedings ..............................................................................................107 20.11 Standard of Review......................................................................................................................107
21.0 VALUE ENGINEERING............................................................................................... 107 21.1 Description of VECPs..................................................................................................................107 21.2 Information to be Provided ..........................................................................................................107 21.3 Review by the Authority ..............................................................................................................108 21.4 Acceptance of VECPs..................................................................................................................108 21.5 Contract Price Adjustment ...........................................................................................................108
22.0 BONDING, INSURANCE AND INDEMNIFICATION............................................... 110 22.1 Payment and Performance Bonds ................................................................................................ 110 22.2 Insurance Requirements............................................................................................................... 111 22.3 Indemnification And Liability......................................................................................................123
23.0 PROJECT COMPLETION............................................................................................. 130 23.1 Time of Essence; Notice to Proceed ............................................................................................130 23.2 Completion Deadlines..................................................................................................................130 23.3 Liquidated Damages ....................................................................................................................131 23.4 Suspension ...................................................................................................................................132 23.5 Delay in Issuance of Notice to Proceed .......................................................................................133
24.0 AUTHORITY ACCEPTANCE........................................................................................ 134 24.1 Passage of Title ............................................................................................................................134 24.2 Substantial Completion................................................................................................................134 24.3 Punch List Completion ................................................................................................................136 24.4 Final Acceptance..........................................................................................................................136 24.5 Assignment of Causes of Action..................................................................................................137
25.0 WARRANTIES .............................................................................................................. 138 25.1 Representations, Warranties And Covenants of Contractor .........................................................138 25.2 Overall Warranty..........................................................................................................................139 25.3 Warranty Term .............................................................................................................................139
Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build v Conformed Design-Build Contract
25.4 Remedy ........................................................................................................................................139 25.5 Permits and Costs.........................................................................................................................140 25.6 Warranty on Corrected Deficiencies ............................................................................................140 25.7 Subcontractor Warranties .............................................................................................................140 25.8 Warranty Beneficiaries.................................................................................................................141 25.9 Damages for Breach of Warranty.................................................................................................141 25.10 Disputes .......................................................................................................................................141
26.0 PARTNERING ............................................................................................................... 141 26.1 Intent… ........................................................................................................................................141 26.2 Participation and Responsibilities................................................................................................142 26.3 Workshops....................................................................................................................................142 26.4 Rights of Parties...........................................................................................................................142
27.0 DEFAULT; SUSPENSION OF WORK; TERMINATION........................................... 142 27.1 Default of Contractor ...................................................................................................................142 27.2 Event of Default; Remedies .........................................................................................................144 27.3 Failure to Comply Caused by Damage Event..............................................................................146 27.4 Failure by Authority to Make Undisputed Payment ....................................................................146 27.5 Termination for Convenience.......................................................................................................147 27.6 Notice of Termination for Convenience.......................................................................................147 27.7 Contractor’s Responsibilities after Receipt of Notice of Termination .........................................147 27.8 Inventory......................................................................................................................................148 27.9 Settlement Proposal .....................................................................................................................148 27.10 Agreement as to Amount of Termination Settlement...................................................................148 27.11 No Agreement as to Amount of Claim.........................................................................................149 27.12 Reduction in Amount of Claim....................................................................................................150 27.13 Partial Payment ............................................................................................................................151 27.14 Inclusion in Subcontracts.............................................................................................................151 27.15 Limitation on Amounts Payable to Subcontractors......................................................................151 27.16 No Consequential Damages or Unearned Profits to Contractor ..................................................152 27.17 No Waiver ....................................................................................................................................152 27.18 Dispute Resolution.......................................................................................................................152 27.19 Allowability of Costs ...................................................................................................................152 27.20 Suspension of Work .....................................................................................................................152 27.21 Termination Due to Non-Appropriation of Funds .......................................................................152
28.0 MISCELLANEOUS ....................................................................................................... 153 28.1 Amendments ................................................................................................................................153 28.2 Waiver.. ........................................................................................................................................153 28.3 Independent Contractor................................................................................................................154 28.4 Successors and Assigns................................................................................................................154 28.5 Designation of Representatives; Cooperation with Representatives ...........................................155 28.6 Gratuities and Conflicts of Interest ..............................................................................................155 28.7 Survival........................................................................................................................................156 28.8. Limitation on Third Party Beneficiaries ......................................................................................156 28.9 Personal Liability of Authority Employees..................................................................................156 28.10 No Estoppel..................................................................................................................................156 28.11 Governing Law and Venue...........................................................................................................157
Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build vi Conformed Design-Build Contract
28.12 Notices and Communications ......................................................................................................157 28.13 Further Assurances.......................................................................................................................158 28.14 Severability ..................................................................................................................................158 28.15 Headings ......................................................................................................................................159 28.16 MTA Provisions ...........................................................................................................................159 28.17 Entire Agreement .........................................................................................................................159 28.18 Patents and Copyrights ................................................................................................................159 28.19 Attorney’s Fees ............................................................................................................................160
Exposition Metro Line Construction Authority Contract No.1-06
DESIGN-BUILD CONTRACT TABLE OF CONTENTS
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build vii Conformed Design-Build Contract
APPENDICES
APPENDIX 1 ABBREVIATIONS AND DEFINITIONS APPENDIX 2 DESIGN SERVICES CERTIFICATION FOR REQUEST FOR PAYMENT APPENDIX 2A PROFESSIONAL SERVICES CERTIFICATION FOR REQUEST FOR PAYMENT APPENDIX 3 SUBCONTRACTOR / DBE SCHEDULE / FORMS APPENDIX 4 DISPUTES REVIEW BOARD AGREEMENT APPENDIX 5 DESIGNATION OF INITIAL REPRESENTATIVES APPENDIX 6 DRAFT MTA/AUTHORITY TRUST AGREEMENT PROVISIONS APPENDIX 7 PERFORMANCE BOND APPENDIX 8 PAYMENT (MATERIAL AND LABOR) BOND APPENDIX 9 PARCEL AVAILABILITY MATRIX APPENDIX 10 FORM PP – PROPOSAL PRICE
Exposition Metro Line Construction Authority Contract No.1-06
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build 1 Conformed Design-Build Contract
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
Design-Build Contract
This Design-Build Contract (Contract) is entered into by and between the Exposition Metro
Line Construction Authority (Authority), a public entity of the State of California, and FCI /
Fluor / Parsons (Contractor), a joint venture, effective as of the last date set forth on the
signature page hereto, with reference to the definitions contained in Appendix 1 hereto and
the following facts:
RECITALS
A. The Authority is a public entity created by the California State Legislature pursuant to
Section 132600 of the Public Utilities Code for the purpose of developing a light rail transit
project from downtown Los Angeles to downtown Santa Monica, including an initial phase
known as the Mid-City/Exposition Light Rail Transit Project. Upon completion of the Mid-
City/Exposition Light Rail Transit Project it will be transferred to the Los Angeles County
Metropolitan Transportation Authority (the “MTA”).
B. The Authority issued a Request for Proposals in September 2005 seeking proposals
for the design and construction of the Mid-City/Exposition Light Rail Transit Project, under a
negotiated design-build contract.
C. Proposals were evaluated using a best value process, taking into account both
technical qualifications and price, and the Contractor was determined to be the highest
ranked proposer.
D. The Board of Directors of the Authority approved contract award to the Contractor at
its March 2, 2006 meeting and authorized the execution of a design build contract and
issuance of a Notice to Proceed for design and professional services work.
E. The Authority and the Contractor have agreed upon final contract terms and
conditions setting forth the rights and obligations of the parties and the requirements
governing the performance of the Work.
NOW, THEREFORE, in consideration of the above and the parties’ mutual promises as
hereinafter set forth, the Authority and the Contractor agree to the following terms,
conditions, and provisions:
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Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build 2 Conformed Design-Build Contract
1.0 PROJECT DOCUMENTS 1.1 Abbreviations and Definitions Appendix 1 hereto contains the meaning of various abbreviations and other terms used in the
Contract Documents.
1.2 Contract Documents The Contract Documents consist of the following, set forth hereafter in their order of
precedence:
(a) Design-Build Contract (The Terms and Conditions)
(b) Federal Requirements and Contract Clauses
(c) The Scope of Work and General Requirements
(d) The Approved Design Documents
(e) The Technical Specifications, Performance Specifications, Design Criteria,
and Drawings
(f) Fire, Life, Safety Criteria
(g) Mitigation Monitoring Plan
(h) Preliminary Engineering Drawings
(i) Final Environmental Impact Statement and Record of Decision
(j) Geotechnical Reports and Preliminary Environmental Initial Site Assessment
(k) Manuals (DBE and EEO Programs, Safety, Labor Compliance, Local Hire
Program)
(l) Master Agreements (Third Party Agreements)
(m) The RFP
(n) The Contractor’s Response to the RFP; including its Final Revised Proposal
(if any)
1.3 Interpretation In the Contract Documents, the following principles of interpretation shall apply:
(a) All requirements in this Design-Build Contract and the other Contract
Documents apply to both the Design Work and the Construction Work unless otherwise
specified.
(b) The singular includes the plural, and vice versa.
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(c) References to statutes or regulations include all statutory or regulatory
provisions consolidating, amending, or replacing the statute or regulation referred to.
(d) The words “including,” “includes,” and “include” shall be deemed to be
followed by the words “without limitation.” Words such as “herein,” “hereof,” and
“hereunder” shall refer to the entire document in which they are contained and not to any
particular provision or section. Words not otherwise defined, which have well-known
technical or construction industry meanings, are used in accordance with such recognized
meanings. Words of any gender shall include each other gender where appropriate.
(e) References to persons include their respective permitted successors and
assigns and, in the case of Governmental persons, persons succeeding to their respective
functions and capacities.
(f) References to “days” mean calendar days unless otherwise specified. If the
date to perform any act or give any notice (including the last date for performance or
provision of notice within a specified time period) falls on a non-working day, such act or
notice may be timely performed on the next succeeding day which is a working day.
Notwithstanding the foregoing, requirements relating to actions to be taken in the event of an
emergency, and other requirements for which it is clear that performance is intended to occur
on a non-working day, shall be required to be performed as specified, even though the date in
question may fall on a non-working day.
(g) Unless otherwise specified, lists contained in the Contract Documents
defining the Project or the Work shall not be deemed all-inclusive.
(h) The Contractor shall interpret the Contract as a whole and read all its parts
together. The Contractor shall not take advantage of any apparent non-conformity that may
be found in the Contract Documents. Should it appear that any contract provision requires
interpretation, the Contractor shall request from the Authority in writing (with an RFI), an
explanation or interpretation of contract provisions as may be necessary, and shall conform to
the interpretation given by the Authority. The interpretation of the Authority is final, and the
Contractor shall proceed with the Work based on the Authority’s interpretation, with the right
to submit a PCO Notice in accordance with Section 19 if the Contractor believes that the
Authority’s interpretation constitutes a change in the Contract or the Work.
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(i) In determining whether a conflict exists between the Proposal and other
Contract Documents, to the extent that the Proposal can reasonably be interpreted as an offer
to provide higher quality items than otherwise required by the Contract Documents or to
perform services in addition to those otherwise required, or otherwise contains terms which
Authority considers to be more advantageous than the requirements of the other Contract
Documents, the Proposal shall not be considered in conflict with the other Contract
Documents, and Contractor’s obligations hereunder shall include compliance with all such
statements, offers and terms.
1.4 Omission of Details, Clarification from Authority (a) Omission of details of the Work from the Contract Documents or the
misdescription of details of Work which are necessary to carry out the intent of the Contract
Documents, or which are customarily performed, shall not relieve the Contractor from
performing such omitted Work, or the misdescribed details of the Work, and they shall be
performed as if fully and correctly set forth and described in the Contract Documents,
without entitlement to a Change Order.
(b) If the Work to be done is not sufficiently detailed or explained in the Contract
Documents, the Contractor shall apply to the Authority in writing for further written
clarification and shall conform to the clarification provided. The Contractor shall promptly
notify the Authority of all errors, omissions, inconsistencies, or other defects (including
inaccuracies and inconsistencies) which it discovers in the Contract Documents, and shall
obtain from Authority specific instructions in writing regarding any such error, omission, or
defect before proceeding with the Design Work affected thereby.
1.5 Responsibility for Design The Baseline Requirements and Reference Documents regarding the Project as described in
the RFP shall comprise the basis for design of the Project. The Authority has allowed the
Contractor access to the Site for purposes of inspection and testing.
1.5.1 Contractor Responsible for Design
The Contractor is fully responsibility for the design of the Project and shall furnish the design
of the Project, utilizing fully licensed design firms in accordance with Section 2.1. The
Contractor is responsible for correcting any errors, omissions and defects in such design
through the design and/or construction process, and shall not be entitled to an increase in the
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Lump Sum Fixed Price (“LSFP”) or extension of the Contract Time in connection with such
correction.
1.5.2 Liability
The Authority, or Metro, will not be responsible or liable in any respect for any loss, damage,
injury, liability, cost or cause of action suffered by the Contractor, its employees, agents,
officers or Subcontractors or any other Persons for whom the Contractor is legally or
contractually responsible, by reason of use of information contained in the Baseline
Requirements or Reference Documents or action or forbearance in reliance thereon, except to
the extent that Authority has agreed that the Contractor shall be entitled to an increase in the
Contract Price and/or extension of a Completion Deadline with respect to such matter. To
the extent the Contractor or anyone on the Contractor’s behalf uses any of such information
in any way, such use is made on the basis that the Contractor, not the Authority (or Metro),
has approved and is responsible for such information; and the Contractor is capable of
conducting, and is obligated to conduct, all studies, analyses and investigations as it deems
advisable to verify or supplement such information, and that any use of such information is
entirely at Contractor’s own risk and at its own discretion.
1.5.3 Professional Licensing Laws
All design and engineering Work furnished by Contractor shall be performed by or under the
supervision of Persons licensed to practice architecture, engineering or surveying (as
applicable) in the State of California, by personnel who are careful, skilled, experienced and
competent in their respective trades or professions, who are professionally qualified to
perform the Work in accordance with the Contract Documents and who shall assume
professional responsibility for the accuracy and completeness of the Design Documents and
Construction Documents prepared by them in accordance with the normal standard of care of
the industry. The Authority will not pay for or receive any design services that are in
violation of any professional licensing laws.
1.6 Maintenance of, Access to and Audit of Records The Contractor shall maintain at its Project office (or maintain at its central office and assure
availability within 24 hours) a complete set of all books and records for the Project. The
Contractor shall grant to the Authority, or other parties designated by the Authority, such
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audit rights and allow Authority such access to and the right to copy such books and records
as Authority may request.
1.6.1 Actual Incurred Cost Documents
Where the payment method for any Work is on an actual incurred cost basis, the Authority
examination and audit rights shall include all books, records, documents and other evidence
and accounting principles and practices sufficient to reflect properly all direct and indirect
costs of whatever nature claimed to have been incurred and anticipated to be incurred for the
performance of such Work. If an audit indicates Contractor has been over credited under a
previous payment, the over credit will be credited against current payments.
1.6.2 Change Orders
For cost and pricing data submitted in connection with pricing Change Orders, unless such
pricing is based on adequate price competition, established catalog or market prices of
commercial items sold in substantial quantities to the public, or prices set by law or
regulation, the Authority and its representatives have the right to examine all books, records,
documents and other data of the Contractor related to the negotiation of or performance of
the Work under such Change Orders for the purpose of evaluating the accuracy,
completeness, and timeliness of the cost or pricing data submitted. The right of examination
shall extend to all documents deemed necessary by the Authority or its representatives to
permit adequate evaluation of the cost or pricing data submitted, along with the computations
and projections used therein.
1.7 Retention of Records The Contractor shall maintain all records and documents relating to the Work (including
copies of all original documents delivered to Authority) for five years after the Final
Acceptance Date or termination date, as applicable, and shall notify the Authority where such
records and documents are kept. Notwithstanding the foregoing, all records which relate to
Claims being processed or actions brought under the dispute resolution provisions hereof
shall be retained and made available until such actions and Claims have been finally
resolved. Records to be retained include all books and other evidence bearing on the
Contractor’s costs under the Contract Documents. The Contractor shall make these records
and documents available to the Authority for audit and inspection, at the Contractor’s office,
at all reasonable times, without charge, and shall allow the Authority to make copies of such
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documents (at no expense to Contractor). If approved by the Authority, photographs,
microphotographs or other authentic reproductions may be maintained instead of original
records and documents.
1.8 Public Records Act 1.8.1 Acknowledgement and Applicability
The Contractor acknowledges and agrees that all records, documents, drawings, plans,
specifications and other materials in the Authority’s possession, including materials
submitted by the Contractor are subject to the provisions of the California Public Records
Act (Government Code sections 6250 et seq.). The Contractor shall be solely responsible for
all determinations made by it under such Act, and for clearly and prominently marking each
and every page or sheet of materials with “Trade Secret” or “Confidential” as it determines to
be appropriate.
1.8.2 Trade Secrets
If any of the materials submitted by the Contractor to the Authority are clearly and
prominently labeled “Trade Secret” or “Confidential ” by the Contractor, the Authority will
endeavor to advise the Contractor of any request for the disclosure of such materials prior to
making any such disclosure. Under no circumstances, however, will the Authority be
responsible or liable to the Contractor or any other Person for the disclosure of any such
labeled materials, whether the disclosure is required by law or by court order or occurs
through inadvertence, mistake, or negligence on the part of the Authority, except for any
disclosure of trade secrets or proprietary information in violation of a confidentiality
agreement.
1.8.3 Litigation
In the event of litigation concerning the disclosure of any material submitted by the
Contractor to the Authority, the Authority’s sole involvement will be as a stakeholder
retaining the material until otherwise ordered by a court, and the Contractor shall be fully
responsible for otherwise prosecuting or defending any action concerning the materials at its
sole cost and risk.
1.8.4 Proprietary Information
The Contractor’s documents shall always remain the property of Contractor and shall be
considered to be in the Contractor’s possession, subject to the Authority’s right to review.
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The Authority acknowledges that the Contractor may consider that certain documents
constitute trade secrets or proprietary information. This acknowledgment is based upon the
Authority’s understanding that the information contained in these documents is not known
outside the Contractor’s business, is known only to a limited extent and by a limited number
of employees of Contractor, is safeguarded while in the Contractor’s possession, and may be
valuable to the Contractor’s construction strategies, assumptions and intended means,
methods and techniques of construction. The Authority further acknowledges that the
Contractor expended money in developing the information included in these documents and
further acknowledges that it would be difficult for a competitor to replicate the information
contained therein. The Authority acknowledges that these documents and the information
contained therein are being made accessible to the Authority only because it is an express
prerequisite to award of the Contract.
2.0 ROLES AND RESPONSIBILITIES OF CONTRACTOR 2.1 Design and Construction 2.1.1 The Contractor shall furnish the design of the Project and, should the Contractor and
the Authority reach agreement on the Construction Price(s) as set forth in Section 8.0 hereof,
the Contractor shall construct the Project as designed, in accordance with applicable
professional engineering principles and in accordance with the terms and conditions set forth
in the Contract Documents; and shall construct the Project, as designed, in accordance with
applicable construction and manufacturing practices generally accepted as standards of the
industry in the State of California, in a good and workmanlike manner, free from material
defects and in accordance with the terms and conditions set forth in the Contract Documents.
Except for materials, services and efforts otherwise specifically excluded from the
Contractor’s scope of work in the Contract Documents, all materials, services and efforts
necessary to achieve Substantial Completion, Punch List Completion and Final Acceptance
and to perform the Reliability Demonstration Testing on or before the deadlines provided in
Section 23 shall be the Contractor’s sole responsibility; and the cost of all such materials,
services and efforts will be included in the Lump Sum Fixed Price.
2.1.2 The Contractor shall comply with the requirements of any and all applicable
Governmental Rules and the conditions of any required licenses and permits prior to
commencing the Construction Work. Once a LSFP has been agreed upon, the Contractor
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shall be responsible for complying with such requirements at its sole cost and without any
increase in the LSFP or extension of any Completion Deadline on account of such
compliance, regardless of whether such compliance would require additional time for
performance or additional labor, equipment and/or materials not expressly provided for in the
Contract Documents. The Contractor will be required to obtain in due course any
Governmental Approval for which it is responsible under the General Requirements and
thereafter to keep such Approvals in effect so as to enable the Work to proceed in accordance
with the Contract Documents.
2.1.3 Submittals
All submittals, documents and drawings shall be in American English. All dimensions shall
be in English Units, except for metric parts.
2.2 Representations and Warranties The Contractor represents, warrants, and covenants that it will, throughout the term of
performance of the Work under this Section, maintain all required authority, license status,
professional ability, skills, and capacity to perform the Contractor’s obligations hereunder
and will perform them in accordance with the requirements of the Contract Documents. The
Contractor further represents and warrants that it can successfully perform the Work in
conformity with Contract Documents and all Governmental Approvals.
Contractor represents that (a) the Contractor is a joint venture duly organized and validly
existing under the laws of the State of California, with all requisite power to own its
properties and assets and carry on its business as now conducted or proposed to be
conducted, (b) the Contractor is composed of FCI Constructors, Inc., a California
corporation, Fluor Enterprises, a California corporation, and Parsons Transportation Group,
an Illinois corporation, and (c) each member of Contractor is duly qualified to do business,
and is in good standing, in the State of California, and will remain in good standing
throughout the term of the Contract and for as long thereafter as any obligations remain
outstanding under the Contract Documents.
2.3 Cooperation The Contractor shall cooperate with Authority, the Program Management Oversight
Consultant, the Utilities, Federal, State and Local Agencies with jurisdiction over the Project
in its performance of the Work, including design reviews, construction inspections, and other
matters relating to the Work.
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2.4 Supervision The Contractor shall supervise and be responsible to Authority for acts and omissions of
Contractor’s employees, agents, officers, and Subcontractors and other persons performing
portions of the Work, as though the Contractor directly employed all such persons.
2.5 Contractor Personnel and Organization 2.5.1 Project Manager
The Project Manager shall have full responsibility for the prosecution of the Work and will
act as a single point of contact in all matters on behalf of the Contractor. The Authority
reserves the right to give direction to the Project Manager as necessary to complete the Work
on schedule.
2.5.2 Key Personnel
The Contractor shall assign Key Personnel to the Project in accordance with the
Organizational and Management Structure and the Staffing Plan set forth in the Contractor’s
response to the RFP. The Key Personnel shall remain on the Project until such time as the
Authority decides it does not need the expertise and/or services or until completion of all
Work. The Authority shall have the right to review the qualifications of each individual to be
appointed to a Key Personnel position (including personnel employed by Subcontractors) and
to approve or disapprove use of such person in such position prior to the commencement of
any Work by such individual. The Contractor shall not change any Key Personnel without
the prior written consent of the Authority, which will not be unreasonably withheld.
Key Personnel:
Ray Hughes, Project Manager Glen Ianni, Construction Manager Nick Kakasenko, Lead Heavy Civil Safety Manager Gene Danylyshyn, Project Quality Manager Rod Lopez, Project Scheduler Tom Wilson, Design Manager
2.5.3 Removal of Contractor Personnel
If the Authority determines that any individual employed by the Contractor or by any
Subcontractor is not performing the Work in a proper and skillful manner, then at the written
request of the Authority, the Contractor or such Subcontractor shall remove such individual
and such individual shall not be re-employed for any Work without the prior written approval
of the Authority. If the Contractor or the Subcontractor fails to remove such individual or
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individuals or fails to furnish skilled and experienced personnel for the proper performance
of the Work, then the Authority may suspend the affected portion of the Work by delivery of
written notice of such suspension to the Contractor. Such suspension shall in no way relieve
the Contractor of any obligation contained in the Contract Documents or entitle the
Contractor to an extension of time, additional payment, or Change Order. Once compliance
is achieved, the Contractor shall be entitled to and shall promptly resume the Work.
2.5.4 Additional Personnel
The Contractor shall assign such further professional and technical personnel as required to
perform the Work and comply with the terms of the Contract Documents, including
Subcontractor personnel.
2.5.5 Damages for Removal of Key Personnel
2.5.5.1 Any removal of Key Personnel will potentially result in the Authority incurring
significant losses, including loss of reputation, loss of potential governmental funding, and
loss out of other contracts held by the Authority related to the Project. The Authority and the
Contractor acknowledge that these potential losses, while actual, may not be easy to prove in
a court of law. Accordingly, the Authority and the Contractor have agreed to the liquidated
damages amount set forth in Section 2.5.5.2 as a good faith estimate of the Authority’s
potential losses, not as a penalty:
2.5.5.2 If the Contractor makes the decision to remove its Project Manager or other Key
Personnel prior to the completion of the Work, the Contractor shall pay to the Authority
liquidated damages in the amount of $100,000.00. If the Authority agrees to a change in the
Contractor’s Project Manager or other Key Personnel, or if the Contractor documents that the
individual was removed for violation of law or regulation or pursuant to the order of a Court,
then no liquidated damages will be assessed against the Contractor.
2.6 Project Organizational Structure The Contractor’s Management and Organizational Structure is set forth in its response to the
RFP. Any changes to that Structure during the implementation of the Work shall be
submitted to the Authority in writing, and any proposed change involving Key Personnel
shall be subject to the provisions of Section 2.5.
2.7 Meetings The Contractor is required to have personnel, with appropriate technical skills and decision-
making authority, attend Project meetings. The Contractor shall prepare and update a master
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meeting calendar listing all scheduled Project related meetings (including community and
third party meetings such as with municipal agencies when necessary), which can reasonably
be identified. The calendar shall be updated at least weekly, and shall show a minimum of
eight weeks in advance. The calendar shall be made available electronically, and/or on a
website, and/or distributed on paper, at the Authority’s discretion. The Contractor shall
prepare minutes of all Project meetings and submit them to the Authority within three
working days, unless otherwise agreed to by the Authority in writing or specified in the
Contract Documents. The Authority shall have three days to review the minutes and request
revision to the minutes unless otherwise specified in the Contract Documents. Any requested
revisions must be submitted within three days of the Authority’s request.
2.8 Compliance with Laws; Equal Employment Opportunity 2.8.1 The Contractor shall comply with all requirements of all applicable Governmental
Rules, including:
(A) The Labor Code and implementing regulations, including requirements with respect
to prevailing wages, nondiscrimination, and employment and training of apprentices,
as more specifically described in the Labor Compliance Manual;
(B) All Environmental Laws, including requirements regarding the handling, generation,
treatment, storage, transportation and disposal of Hazardous Waste (subject to the
provisions contained in Section 22.3.2.2 limiting Contractor’s obligation to execute
hazardous waste manifests as a “generator”); and
(C) All requirements regarding nondiscrimination, including those set forth in Contract
Compliance Manual within the DBE and EEO Programs.
2.8.2 During the performance of the Contract, the Contractor will not discriminate against
any person or group of persons on account of race, color, religion, creed, national origin,
ancestry, physical handicap, medical condition, age, marital status, sex or sexual orientation.
2.8.3 The Contractor confirms that it has an equal employment opportunity policy ensuring
equal employment opportunity without regard to race, color, national origin, sex, age,
religion or handicap; and that it maintains no employee facilities segregated on the basis of
race, color, religion or national origin.
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2.8.4 The Contractor shall include Provisions 2.8.2 and 2.8.3 in every Subcontract, and
shall require that they be included in all Subcontracts at lower tiers, so that such provisions
will be binding upon each Subcontractor.
2.9 Delay Mitigation The Contractor shall mitigate delay to the Project in all circumstances, to the extent
reasonably possible, including by resequencing, reallocating or redeploying its forces to other
Work, as appropriate.
3.0 ROLES AND RESPONSIBILITIES OF AUTHORITY 3.1 Role of Authority The Authority shall give approval of and order changes in the Work and shall review and
approve Contractor’s invoices and authorize payments.
3.2 Effect of Reviews, Inspections, Tests and Approvals The Contractor shall not be relieved of any obligation to perform the Work in accordance
with the Contract Documents because of any review, test, inspection or approval performed
or granted by any persons, or by any failure of any person to take such action. The reviews,
inspections, tests and approvals conducted by the Authority, Program Manager, Program
Management Oversight Consultant, Utilities, Federal, State and Local Agencies and others
do not constitute acceptance of the materials or Work reviewed, tested, or inspected. The
Authority may reject or accept any Work or materials, and may request changes and/or
identify additional Work which must be done, at any time prior to the Final Acceptance Date
as specified in Section 23, whether or not previous reviews, inspections, tests or approvals
were conducted by any such persons.
3.3 Right of Way 3.3.1 Unless otherwise provided in another Section, the Authority shall acquire all Right of
Way and shall provide the Contractor with access to the Right of Way in order to allow Work
to be performed in accordance with the Preliminary Schedule or the approved Baseline
Schedule, as appropriate. A list of the Right of Way scheduled for acquisition, and the
anticipated availability dates, is provided in Appendix 9. Except with respect to Utility
Easements as provided in the General Requirements Section 01180, the Contractor shall be
responsible for obtaining, at its cost, any temporary easements or other real property interests
which Contractor deems necessary or advisable in connection with construction of the
Project and/or Relocations.
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3.3.2 In the event that the Authority at any time determines it will be unable to provide
access to a particular parcel or parcels prior to the scheduled date, the Authority shall notify
the Contractor, as soon as possible after it makes such determination, and shall provide the
revised projected date for delivery of access. The Contractor shall cooperate with the
Authority to work around such parcel until access can be provided, including rescheduling
Work so as to avoid any delay to the overall Project. If delay to the overall schedule is
unavoidable, then the Contractor shall take appropriate action to minimize the cost and time
impact thereof.
3.3.3 As a necessary condition for obtaining any increase in the LSFP or extension of the
Contract Time related to the Authority’s late delivery of access to the parcels as described in
3.3.2, the Contractor shall provide the Authority with a written notice, within 30 days after
the Authority’s notice under 3.3.2, when lack of availability of a given parcel will result in an
impact to the cost or schedule.
3.4 Office Space The Authority shall provide approximately 18,000 SF of space for the Contractor's use
relating solely to Project activities for a maximum of 18 months for the Design Phase (April
06 to October 07), and 9,000 SF of space for the Contractor's use for the Construction Phase
(October 07 through December 2010). The Authority will pay the rental (including utilities
except for air conditioning during non-business hours), provide audio-visual equipment for
the main conference room, and provide furniture for this space. All other costs associated
with the operations of the Contractor, including additional office space that the Contractor
requires, parking, computers, phone system, CADD stations, plotters and satellite field office
trailers for Contractor site personnel are included in the respective Allowance for either
Design, Professional Services or Construction. The Authority shall pay all costs relating to
its own operations.
4.0 STRUCTURE OF DESIGN BUILD PAYMENTS TO CONTRACTOR 4.1 Overview of Compensation The compensation to the Contractor from the Authority for the performance of the Work
shall fall into the following four categories: (a) Design; (b) Professional Services; (c)
Insurance Costs; and (d) Construction.
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4.2 Design Services The Contractor will be paid the Design Fee in accordance with Section 7.2 and will be
reimbursed for the Design Costs in an amount not to exceed the Design Allowance, in
accordance with Section 7.3, Section 7.4 and Section 7.5
4.3 Professional Services The Contractor will be paid the Professional Services Fee in accordance with Section 9.3 and
will be reimbursed for Professional Services costs in an amount not to exceed the
Professional Services Allowance, in accordance with Section 9.4, Section 9.5, and Section
9.6.
4.4 Insurance The Contractor will be paid for Insurance costs as a LSFP in accordance with Section 18.3.
4.5 Construction The Contractor will be paid for the Construction Work on the basis of Progress Payments, in
a total Lump Sum Fixed Price amount, in accordance with Section 15 and Section 18.
4.6 Timing of Payments Compensation for Professional Services will be over the entire term of performance of the
Work. Compensation for Design and Construction will be primarily during those respective
phases of the Work. However, if the Work proceeds in separate Design/Construction
packages, the Contractor may be performing Construction on certain packages at the same
time it is completing Design on other packages and in those circumstances compensation for
Design and Construction will overlap. Compensation for insurance is specified in Section
18.3.1.
5.0 SCOPE OF DESIGN SERVICES AND RESPONSIBILITIES
5.1 General Scope The Contractor shall be responsible for developing, providing, and completing all Design
Documents for the Project, as described in the Scope of Work and General Requirements
Section 01102. The responsibilities of the Contractor shall include design management, the
development and implementation of design procedures, the development and conducting of a
design process, the preparation of all drawings and materials necessary to complete the
Design Documents, and the delivery of signed and sealed design documents ready for
construction (or in the case of self-performed Work, design documents sufficient to construct
the Work). The Contractor shall proceed with the Work in accordance with the design
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packages and the design stages described in the Scope of Work and General Requirements
Section 01102. The Authority may also, in its discretion, issue Task Orders to the Contractor
for particular elements included within the Design Scope.
5.2 Responsibilities The Contractor shall supervise and direct design performance using its best skill and
following professional engineering practices, and shall be responsible for selecting the means
of performance. The Contractor shall be responsible for the acts and omissions of its
employees, agents, and subcontractors.
5.3 Design Organization The Contractor shall use the design organization identified in its Proposal in response to the
RFP, and the design organization designated as the lead engineer/designer in that Proposal
shall be the Engineer of Record. The Contractor shall not change the designated designer(s)
or shift work from one design organization to another (including changes in work performed
by Subcontractors) without the prior written approval of Authority.
5.4 Preliminary Engineering Documents The Contractor shall utilize the Preliminary Engineering documents in carrying out the
Design of the Project under the Contract Documents, consistent with the Contractor’s
responsibility under Section 5.5.
5.5 Review and Corrections The Contractor shall review the design contained in the Baseline Requirements and
Reference Documents, and shall notify Authority in writing, as soon as practicable after the
NTP for Design, of any errors, omissions, inconsistencies or other defects in such design.
The Contractor shall be fully responsible for correcting all such errors, omissions,
inconsistencies and other defects at its own cost and expense. If it is necessary to modify any
Baseline Requirements in order to correct any errors, omissions, inconsistencies or other
defects, the Contractor shall first obtain Authority’s and any third party approvals required by
the Contract Documents.
5.6 Notice of Defects If the Contractor learns of any actual or potential defect in the services or Work provided
under this Agreement, or any problem associated with the results of the performance of such
services or Work, or of any nonconformance with a provision of the Contract Documents or
of Federal, state, or local law, the Contractor shall inform the Authority in writing, within 24
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hours after learning of such defect, problem or nonconformance, with a full description of the
defect, problem, or nonconformance.
6.0 NOTICE TO PROCEED WITH DESIGN WORK
6.1 Notice of Award Following Contract award by the Authority, the Authority shall provide the Contractor with a
Notice of Award. The Notice of Award will direct the Contractor to submit the following to
the Authority within twenty (20) days: the certificates of insurance described in Section
22.2.1.
6.2 Notice to Proceed 6.2.1 Within five (5) days after receipt from the Contractor of the documentation required
under Section 6.1, the Authority will issue a Notice to Proceed to the Contractor for the
Design Work. For Scheduling purposes it shall be deemed that the Contractor shall
commence performance of the Work upon receipt of a written notice to proceed and shall
complete the Work within the time period specified in the Contract.
6.2.2 The Contractor shall not proceed with any work required under this Agreement
without a written Notice to Proceed from the Authority. Any Work performed or expenses
incurred by the Contractor prior to the Contractor’s receipt of Notice to Proceed shall be
entirely at the Contractor’s risk and is not subject to reimbursement. Work performed and
expenses incurred after Notice to Proceed will be eligible for reimbursement under the terms
of this Design-Build Contract.
6.2.3 Upon receipt of an NTP for the Design Work, the Contractor is also authorized to
proceed with associated and necessary Professional Services.
6.2.4 Within twenty (20) days after the Notice to Proceed for Design, the Contractor shall
submit to the Authority the Contracting Plan required under Section 16.1.
6.2.5 Following the Notice to Proceed for design, the Contractor shall also submit to the
Authority the DBE performance plan required under Section 16.2.3.1 and the DBE
information required under Section 16.2.3.2, in accordance with the schedules for submittals
set forth in those Sections.
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6.3 Design Package The Authority may authorize the Contractor, to proceed with the Design Work in specific
and identifiable Design packages. If such authorization is provided, the Contractor shall
implement the Work in accordance with those packages.
6.4 Term of Design Services 6.4.1 The period of service for the Design Work shall commence upon issuance of the
Notice to Proceed under Section 6.2 and will conform to the Contractor’ proposal schedule,
unless extended by the Authority or unless the sequencing of Design Packages requires that
certain Work extend beyond that date.
6.4.2 If the Authority and the Contractor successfully negotiate a LSFP for Construction,
the overall period of services of the Contractor will be increased, as agreed upon by the
parties, to cover the period required for the Construction Work.
7.0 COMPENSATION FOR DESIGN SERVICES
7.1 Basis of Compensation 7.1.1 The Contractor shall provide all personnel, facilities, materials and equipment
required to complete, to the full satisfaction of the Authority, all the Design Services
described in Scope of Work and General Requirements Section 01102.
7.1.2 The Authority shall compensate the Contractor for its costs incurred, which are
allowable under this Contract, to perform the Design Work. The Contractor shall submit
Invoices to the Authority and maintain auditable records and be paid pursuant to the Section
18.1.2.
7.1.3 As described in this Section, compensation to the Contractor for performance of
Design Work will consist of (1) payment of the Design Fee; and (2) reimbursement of the
Design Costs.
7.2 Design Fee 7.2.1 The Contractor will be compensated during the performance of the Design Work in
an amount not to exceed the Design Fee, as set forth in the Contractor’s proposal and
accepted by the Authority.
7.2.2. If an Authority-Directed Change increases the Design Costs above the amount of the
Design Allowance, the Contractor shall be eligible for payment of overhead in connection
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with that Change Order in accordance with Section 19.7.6, plus a Design Fee to be negotiated
by the Contractor and the Authority.
7.2.3. If the Contractor incurs Design Costs that are in excess of the Design Allowance and
that are not pursuant to a Change Order, the Contractor shall not be entitled to reimbursement
of those excess costs or to any additional Design Fee, overhead, or profit in connection with
those excess costs.
7.2.4. The Design Fee shall be the Contractor’s sole compensation for the following:
(a) Profit.
(b) Costs over and above a multiplier of 2.4 on the cost of salaries (fixed
compensation paid to employees, exclusive of benefits) paid for direct labor (direct labor
includes any premium pay required by statutory requirements).
7.3 Design Allowance and Design Costs 7.3.1 The Authority has established a Design Allowance as the estimated total cost of
performing the Design Scope of Work, in the amount of $ 21,100,000. The Design
Allowance is the total amount the Authority has budgeted and allocated for the cost of the
Design phase of the Project. The Contractor shall provide and pay for all labor, materials,
equipment, tools, water, heat, utilities, transportation, and other facilities and services
necessary for the proper execution and completion of all Design Work, all at no cost to the
Authority other than the compensation described in this Section.
7.3.2 The Contractor acknowledges that it has an obligation under this Agreement to
complete the Design Work for an amount not to exceed the Design Allowance, and also
acknowledges that the Design Allowance may not be increased except pursuant to an
Authority-Directed Change.
7.3.3 The Design Costs that are reimbursable under the Design Allowance set forth in
Section 7.3.1 are in two categories: Design Labor Costs described in Section 7.4 and Design
Overhead described in Section 7.5.
7.4 Design Labor Costs 7.4.1 Design Labor Costs are defined as the cost of salaries paid for direct labor for all
Design production and Design Management (including Designs of temporary facilities and
excluding what is paid for in Professional Services). Design support labor during
Construction (“DSDC”) of the Project is included in Professional Services. The hourly labor
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rates shall be the actual pay rates of the professionals proposed to perform the design at their
then current pay rates as proposed by the Contractor and agreed to by the Authority.
7.4.2 Design Labor Costs shall also include costs for permitting of the design and
Jurisdictional approvals.
7.5 Design Overhead Costs/Multiplier For the performance of the Design Work, the Contractor shall be compensated for Design
Labor Costs times a 2.4 multiplier for the Design Overhead Costs. The 2.4 multiplier is to
cover, but is not limited to, the following expenses: all home office overhead, including but
not limited to, burden and fringe benefits such as: vacation, sick, holiday, workers
compensation insurance, commercial automobile liability insurance, medical and life
insurance, employee welfare and development, employers share of FICA, unemployment and
disability insurance, bonding for Design, and General Overhead such as: indirect labor,
administrative tasks not directly billable by the Project Staff at the Project Office(s) in
support of design (for example invoice processing performed at a Home Office), operating
and reproduction supplies, administrative, financial and legal, facility costs, other rents and
leases, computers and facilities, repairs and maintenance, telephone and utilities, relocation,
advertising, professional activities, postage, freight and other expenses, corporate general and
administrative (G & A) assessment, depreciation and amortization, internal services,
gains/losses; bank charges, other interest expense, other direct costs (“ODCs”), and provision
for losses.
7.6 Cost Reimbursements The Contractor will be paid on a cost reimbursable basis, up to and not to exceed the Design
Allowance, for the Design Labor Costs times a 2.4 multiplier for the Design Overhead Costs
incurred in performing Design Work. Such reimbursement will cover the cost of all labor,
materials, and equipment necessary to complete the specific work involved, as more
specifically described in the invoicing and payment provisions set forth in Section 18.
7.7 Task Orders The Authority may in its sole discretion issue Task Orders to advance a particular part of the
Design Work. If the Authority issues Task Orders for any element of the Design Work, the
Contractor shall be reimbursed for the work performed under the Task Order in accordance
with the terms thereof. Any Task Order Work (other than pursuant to a Change Order) shall
be compensated within the Design Allowance.
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8.0 NEGOTIATION OF CONSTRUCTION PRICE; ESTABLISHMENT OF LUMP SUM FIXED PRICE
8.1 Cost Estimate Within 90 days after Notice to Proceed for the Design Work, the Contractor shall prepare an
initial estimate for the Construction Work, based on the Contract Documents. At the 60%
Design submittal phase for each design package, the Contractor shall prepare an interim
construction cost estimate and furnish this estimate to the Authority 14 days after the
submission of the 60% Design submittal.
If the Contractor’s estimated price is greater than the Construction Allowance (or the portion
of the allowance attributable to that package of Work), the parties shall discuss alternative
methods for performing the Work under the Contracting Plan, and shall review and evaluate
value engineering alternatives that were developed under Section 21 and other cost reduction
measures, with the goal of achieving a proposed price(s) that is within the Construction
Allowance.
8.2 Contractor’s Price Proposal At or near the completion of each specific Design Package (as specified in Section 6.3 and
the Scope of Work and General Requirements Section 01102) or at the conclusion of Design
(if Work is not proceeding in packages), the Contractor shall develop and submit to the
Authority a proposed price or prices for performing the Construction Work (or specific
packages or elements of that Work). In developing its proposed price, the Contractor shall
make every effort to be as consistent as feasible with the Construction Allowance. The
proposed price should include all direct construction costs for labor, materials, and
equipment (as well as an allocated share of the total construction bonding costs). The
Contractor shall develop these prices on the basis of:
(a) the detailed scope, quantity, and other information developed or established
during the Design process;
(b) current market rates for labor and materials;
(c) the prices or estimates established, pursuant to the Contracting Plan, for
particular package or elements of the Work;
(d) other relevant cost estimating data, information, and materials; and
(e) the amount, if any, of the Construction Contingency described in Section 15.4
that the Contractor estimates is necessary for that particular Work.
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8.3 Negotiation between Contractor and Authority 8.3.1 Immediately following the submittal of a price proposal by the Contractor, for the
Work or a specified package thereof, the Authority and the Contractor shall meet and begin
negotiation of the Construction Price (or the price for the specific Design Package(s), if
applicable). The negotiations shall be conducted in good faith and shall be “open book”.
The Contractor shall make available to the Authority all supporting background information,
unit prices, quantities, scope detail, and pricing data on which its proposed construction
price(s) was based, and the Authority shall make available to the Contractor all supporting
information, estimating techniques, and pricing data on which its Construction Allowance
was based.
8.3.2 If the Contractor’s proposed price is greater than the Construction Allowance (or the
portion of the allowance attributable to that package of Work), the parties shall discuss
alternative methods for performing the Work under the Contracting Plan, and shall review
and evaluate value engineering alternatives that were developed under Section 21 and other
cost reduction measures, with the goal of achieving a proposed price(s) that is within the
Construction Allowance.
8.3.3 If the Authority and the Contractor are unable to agree on the Construction Price for a
particular package of the Work (or an element of such package), the Authority may direct the
Contractor to subcontract that Work. In such event the Authority may require the
subcontracts to be awarded on a best value basis or based on competitive bids from
prequalified firms. The Contractor shall propose the specific procedures to be followed,
subject to Authority approval. The amount of the competitively awarded subcontract shall
then constitute the agreed upon Construction Price for that particular package or element of
the Work.
8.3.4 Any agreement on a Construction Price for a particular package of the Work shall
identify the amount of the construction contingency, if any, which is agreed to be allocated to
that package.
8.3.5. The negotiations shall be conducted for a period not to exceed thirty (30) days, unless
extended for an additional fifteen (15) days by mutual agreement of the parties.
8.4 Design Packages As noted in Section 8.2, in lieu of a single construction price, the Authority and the
Contractor may negotiate construction prices for specific Design packages or Work elements.
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8.5 Lump Sum Fixed Price 8.5.1 If the parties reach an agreement on the price for all of the Construction Work, that
price shall be deemed to be the Construction Price. The total price for construction will then
be treated as a Lump Sum Fixed Price (LSFP) that will consist of (a) the Construction Price,
as agreed upon by the parties (including any allocated amount from the construction
contingency); plus (b) the Construction Fee, as set forth in Section 15.2.1.
8.5.2 If the parties reach an agreement on the price for a specific package of the Work, that
price shall be deemed to be the Construction Price for that package. The total price for that
package will then be treated as a LSFP that will consist of (a) the Construction Price for that
package, as agreed upon by the parties (including any allocated amount from the construction
contingency); plus (b) the portion of the Construction Fee allocable to that package of the
Work, which shall be equal to the Construction Fee percentage identified in Section 15.2.1
times the Construction Price for that package, provided that the total amounts paid as
Construction Fee for all packages of the Work may not exceed the Construction Fee set forth
in Section 15.2.1. This provision also applies to Work covered by Section 8.3.3.
8.5.3 If the parties negotiate Construction Prices by packages as described in Section
8.5.2, the sum of the LSFP’s for each of those packages will constitute the LSFP for the
Construction Work.
8.6 Actions Following Agreement If the Authority and the Contractor reach agreement on the Construction Price, the parties
will promptly enter into a Contract amendment incorporating that agreed upon Construction
Price and establishing the LSFP for the agreed upon package(s) of the Construction Work.
8.7 Actions Following Failure to Agree 8.7.1 If the Authority and the Contractor are not able to agree on the Construction Price for
the Work (or any package or element of the Work), the Authority in its sole discretion may
proceed to procure or otherwise obtain that specific Work from other firms, in accordance
with terms and conditions the Authority will establish and prepare. In that event, the
Authority will have no responsibility to compensate the Contractor for any Construction
Work and any portion of the Construction Fee and Overhead allocable to that package of the
Work, which shall be equal to the Construction Fee and Overhead percentage identified in
Section 15.2.1 times the Construction Price for that package, upon which price agreement
could not be reached.
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8.7.2 In the event of a failure to agree, the Contractor will be responsible for completing a
camera ready IFB (complete biddable packages) for the Work to be performed by other firms
as described in Section 8.7.1, and also for completing all other remaining design work. The
Authority will issue the final IFB and select the other firm. The other firm will have a
contract directly with the Authority. The Contractor will continue to serve as the Project
Manager and the Engineer of Record for the Work to be performed by other firms, and will
be compensated for that Work as Professional Services in accordance with Section 9.0. If
any package of the Work is performed by another firm pursuant to this Section, the
Contractor shall not be liable for any liquidated damages for failure to achieve the Substantial
Completion Deadline if the contractor demonstrates to the satisfaction of the Authority that
(1) the Contractor exercised due diligence and complied with the Contract Documents in
serving as Project Manager for the Work performed by such other firm; and (2) the failure to
achieve the Substantial Completion Deadline was directly attributable to the performance or
non-performance of such other firm and was not due to the fault or negligence of the
Contractor. If the failure to achieve the Substantial Completion Deadline was due to more
than one factor, the Contractor shall only be relieved of liquidated damages for those days of
delay that are directly attributable to the performance or non-performance of such other firm.
8.8 Negotiation of Insurance Prices Prior to the commencement of the Construction Work, the Authority and the Contractor shall
negotiate a LSFP for the insurance coverages required for the Construction Work under
Section 22.2.2.2 (excluding Professional Liability Coverage). These coverages must cover
the Project from NTP for the first Construction Package through Final Acceptance.
9.0 PROFESSIONAL SERVICES 9.1 Responsibility For the duration of the Contract, the Contractor shall be responsible for the total management
of the design, construction, installation, inspection, Design support labor during Construction
(“DSDC”) of the Project, testing and acceptance of the Work provided under this Contract,
pursuant to the terms and conditions thereof. The Contractor shall be responsible for
establishing the required organization and procedures and providing personnel (in accordance
with its Organizational Structure and Staffing Plan) and supporting equipment/facilities to
ensure that the Project is completed within the time schedule set forth herein. If the
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Contractor and the Authority are unable to agree on a Construction Price for the Construction
Work (or any package or element thereof) pursuant to Section 8, the Contractor shall have an
obligation to continue to serve as Project Manager and Engineer of Record for that Work.
9.2 Compensation for Professional Services As described in this Section, compensation to the Contractor for performance of Professional
Services will consist of (1) payment of the Professional Services Fee; and (2) reimbursement
of the Professional Services Costs.
9.3 Professional Services Fee 9.3.1 The Contractor will be compensated during the performance of the Professional
Services Work in an amount up to and not to exceed the Professional Services Fee, as set
forth in the Contractor’s proposal and accepted by the Authority.
9.3.2 If an Authority directed Change Order increases the Professional Services costs over
the Professional Services Allowance, the Contractor shall be eligible for payment of
overhead in connection with that Change Order in accordance with Section 19.7.6, plus a
Professional Services Fee to be negotiated by the Contractor and the Authority.
9.3.3. If the Contractor incurs Professional Services Costs that are in excess of the
Professional Services Allowance and that are not pursuant to a Change Order, the Contractor
shall not be entitled to reimbursement of those excess costs or to any additional Professional
Services Fee, overhead, or profit in connection with those excess costs.
9.3.4. The Professional Services Fee shall be the Contractor’s sole compensation for the
following:
(a) Profit.
(b) Costs over and above an Owner’s multiplier of 2.2 on the cost of salaries
(fixed compensation paid to employees, exclusive of benefits) paid for direct labor (direct
labor includes any premium pay required by statutory requirements).
9.4 Professional Services Allowance 9.4.1 The Authority has established a Professional Services Allowance as the estimated
total cost of performing the Professional Services Scope of Work, in the amount of $
31,600,000. The Professional Services Allowance, plus the Professional Services Fee, is the
total amount the Authority has budgeted and allocated for the Professional Services phase of
the Project. The Contractor shall provide and pay for all labor, materials, equipment, tools,
water, heat, utilities, transportation, and other facilities and services necessary for the proper
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execution and completion of all Professional Services Work, all at no cost to the Authority
other than the compensation described in this Section. The Professional Services Allowance
includes, but is not limited to, the following:
(a) Project Management – Project Manager, Design-Build Manager, Design
support labor during Construction (“DSDC”) of the Project, including completion of as-built
drawings
(b) Construction Management – Construction Managers, Deputy or Assistant
Construction Managers, Resident Engineer(s) and Resident Engineer Assistant(s)
(c) Contract Administration / Management – Contract Administrators(s),
DBE/EEQ/AA Contract Compliance and Construction Claims Analyst(s)
(d) Document Control / Configuration Management
(e) Environmental Officer (Services, Compliance)
(f) Quality Assurance / Quality Control – Quality Engineer(s), Quality Control
Inspector(s)
(g) Project Controls – Cost Analyst(s), Cost Engineer(s), Scheduling Engineer(s),
and Estimator(s)
(h) Project Field and Office Engineers, Purchasing personnel, and Human
Resources personnel
(i) Safety – Lead Heavy Civil Safety Representative, Safety Engineer(s) (Civil,
Tunnel (for cut & cover), etc.)
(j) Community Relations – Public Affairs Officer(s)
(k) Administrative (Aide, Assistant, Analyst, etc.) – Receptionists(s) and
Secretary(s)
(l) ITS Network / User Support
(m) Specialists – Geotechnical Instrumentation Specialist (including
instrumentation and readings), Geotechnical analysis (including borings and interpretation of
Geotechnical data), any field investigations and associated equipment (including
contaminated soils investigations), Right of Way Specialist, System Integration Engineer(s),
Testing and Start-up, Third Party Administrator(s), Construction Security Specialist(s) and
Construction Specialist(s)
(n) Survey Party
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(o) 2.2 Multiplier on bare labor
9.4.2 The Contractor acknowledges that it has an obligation under this Agreement to
complete the Professional Services Work for an amount not to exceed the Professional
Services Allowance, and also acknowledges that the Professional Services Allowance may
not be increased except pursuant to an Authority directed Change Order.
9.4.3 The Professional Services Costs that are reimbursable under the Professional Services
Allowance are in two categories: Professional Services Labor Costs described in Section 9.4
and 9.5 and Professional Services Overhead described in Section 9.6.
9.5 Professional Services Labor Costs 9.5.1 Professional Services Labor Costs are defined as the cost of salaries paid to labor for
Professional Services Management and Professional Services support labor in support of
Construction of the Project, as specified in Section 9.4. The hourly labor rates shall be based
on the actual pay rates of the professionals proposed to perform the Professional Services at
their then current pay rates as proposed by the Contractor and accepted by the Authority.
9.5.2 Equipment costs for specialty subcontractors, including but not limited to equipment
of specialty subcontractors performing Geotechnical borings and field investigations are
included in the Professional Services Allowance (but not included in the 2.2 multiplier) and
are reimbursed separately from the Professional Services Labor Costs.
9.6 Professional Services Overhead Costs For the performance of the Professional Services Work, the Contractor shall be compensated
for Professional Services labor costs times a 2.2 multiplier for the Professional Services
overhead costs. The 2.2 multiplier is to cover, but is not limited to, the following expenses:
all home office overhead, including but not limited to, burden and fringe benefits such as:
vacation, sick, holiday, workers compensation insurance, commercial automobile liability
insurance, medical and life insurance, employee welfare and development, employers share
of FICA, unemployment and disability insurance, bonding for Professional Services, and
general overhead such as: indirect labor, administrative tasks not directly billable by the
Project Staff at the Project Office(s) in support of Professional Services (for example invoice
processing performed at a Home Office), operating and reproduction supplies, safety and first
aid supplies for Staff personnel, administrative, financial and legal, partnering costs, DRB
expenses, facility costs, other rents and leases, repairs and maintenance, telephone and
utilities, relocation, advertising, professional activities, construction photographs, postage,
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freight, Corporate general and administrative (G & A) assessment, depreciation and
amortization, internal services, bank charges, other interest expense, other direct costs
(ODCs), and provision for losses.
9.7 Cost Reimbursements The Contractor will be paid on a cost reimbursable basis, up to and not to exceed the
Professional Services Allowance, for the Professional Services Labor Costs times a 2.2
multiplier for the Professional Services Overhead Costs incurred in performing Professional
Services Work. Such reimbursement will cover the cost of all labor, materials, and
equipment necessary to complete the specific work involved.
10.0 INCENTIVES FOR DESIGN WORK AND PROFESSIONAL SERVICES WORK
10.1 Incentive for Completion of Design Work for less than the Design Allowance If the Contractor completes all of the Design Work, as set forth in the Scope of Work and
General Requirements Section 01102, (including the receipt of all City of Los Angeles,
County of Los Angeles, Caltrans and other third party jurisdictional approvals; the issuance
of the Design documents “Approved for Construction”; and the correction during
construction of any design errors and omissions) in a manner that is satisfactory to the
Authority and that does not adversely affect achievement of the Substantial Completion
Deadline, for a total design cost (excluding the Design Fee) that is less than the Design
Allowance, then the Contractor shall be eligible for incentives as follows:
(a) The Contractor shall be eligible for an incentive payment in an amount equal
to 25% of the amount by which the Design Allowance set forth in Section 7.3.1 exceeds the
total Design Costs incurred by the Contractor to complete the Design Work (excluding the
Design Fee), referred to as the “Design Underrun”.
(b) The remaining 75% of the Design Underrun shall be added to the
Construction Allowance set forth in Section 15.3.2, and shall be included in the
determination of the Contractor’s eligibility for a Constructive Incentive Payment under
Section 15.5.
10.2 Determinations regarding Design Incentives The Authority shall determine the applicability and amount of any Design incentive under
this Section at the Substantial Completion Date. The Authority shall provide the Contractor
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with notice and an opportunity to comment before making any final determination under this
Section.
10.3 Payment of Design Incentive The 25% incentive earned under Section 10.1 (a) shall be paid to the Contractor within 30
days after a final determination under Section 10.2.
10.4 Incentive for Completion of Professional Services Work If the Contractor performs all of the Professional Services, as set forth in the Scope of Work
and General Requirements, in a manner that is satisfactory to the Authority and that does not
adversely affect achievement of the Substantial Completion Deadline, for a total Professional
Services cost (excluding the Professional Services Fee) that is less than the Professional
Services Allowance, then the Contractor shall be eligible for incentives as follows:
(a) The Contractor shall be eligible for an incentive payment in an amount equal
to 25% of the amount by which the Professional Services Allowance set forth in Section
9.4.1 exceeds the total Professional Services costs incurred by the Contractor to perform all
of the Professional Services Work (excluding the Professional Services Fee), referred to as
the “Professional Services Underrun”.
(b) The remaining 75% of the Professional Services Underrun shall be added to
the Construction Allowance set forth in Section 15.3.2, and shall be included in the
determination of the Contractor’s eligibility for a Construction Incentive Payment under
Section 15.5.
10.5 Determinations Regarding Professional Services Incentive The Authority shall determine the applicability and amount of any Professional Services
Incentive under this Section prior to Final Acceptance. The Authority shall provide the
Contractor with notice and an opportunity to comment before making any final determination
under this Section.
10.6 Payment of Professional Services Incentive The 25% incentive earned under Section 10.4 shall be paid to the Contractor at the time of
Final Payment under Section 18.15.
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11.0 OWNERSHIP AND USE OF DRAWINGS AND MATERIALS
11.1 Property of Authority All drawings and materials developed by the Contractor as a part of its performance of the
Work shall be the property of the Authority. Upon completion of all Work, or upon the
termination or cancellation of the Work, all drawings and materials shall be delivered to the
Authority prior to final payment. All other materials provided to the Contractor by the
Authority to perform the work shall be retained by the Authority at completion, termination,
or cancellation of the Work. In the absence of an agreement by the parties, this Section 11.1
shall not operate to convey intellectual property rights to proprietary design materials that are
owned by the Contractor.
11.2 Confidentiality Any documents, reports, information, and drawings and materials available to or prepared or
assembled by the Contractor or subcontractors in the performance of the Work, shall not be
made available to any person, organization, or entity by the Contractor without advance
written consent from the Authority, unless the Contract Documents specifically direct the
Contractor to provide such materials to such other parties.
12.0 SCOPE OF CONSTRUCTION WORK AND RESPONSIBILITIES 12.1 Applicability This Section and Sections 13 through 15 shall apply to the performance of Construction
Work by the Contractor following an agreement on the Construction Price or prices pursuant
to Section 8 of this Design-Build Contract.
12.2 General The Contractor shall be responsible for conducting all Project Construction activities and for
furnishing all materials, appliances, tools, and labor of every kind required for the Scope of
Construction set forth in the General Requirements, and for constructing and completing all
tasks and Work in that Scope in a skillful and professional manner on or before the dates
specified in Section 23.
12.3 Project Management The Contractor shall be responsible for the management and oversight of Project
development and implementation, including budget and schedule controls, document
controls, invoice/cost controls, administration of quality assurance/quality control programs,
and other Project and technical oversight as specified in Section 9.0.
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12.4 Workmanship The Contractor shall be responsible for assuring that all Construction Work performed is
carried out and completed in a skillful, professional, and workmanlike manner.
12.5 Materials 12.5.1 The Contractor shall be responsible for assuring that all materials, equipment, and
products incorporated into the work are new and are of the grade and quality specified in the
Performance/Technical Specifications and the Design Documents.
12.5.2 The Contractor shall be responsible for assuring only materials conforming to the
requirements of the Performance/Technical Specifications are incorporated in the Work. All
materials shall be manufactured, handled, and incorporated so as to ensure completed Work
in accordance with this Article, the Design Documents and the other Contract Documents.
12.5.3 Materials shall be transported, handled, and stored in a manner, which will ensure the
preservation of their quality, appearance, and fitness for the Work. All materials shall be
stored in a manner to facilitate inspection by the Authority.
13.0 NOTICE TO PROCEED WITH CONSTRUCTION
13.1 Preconditions A Notice to Proceed for Construction shall only be issued to the Contractor if the Contractor
and the Authority agree on the Construction Price (or on a Construction Price for a package
of the Work) pursuant to Section 8 and the Authority has delivered to the Contractor a copy
of its agreement(s) evidencing availability of funding for the Project. In addition, the
Contractor must provide to the Authority, prior to the issuance of a NTP for Construction, the
payment and performance bonds required under Section 22.1 and the certificates of insurance
required under Section 22.2.2.
13.2 Issuance of NTP The Contractor shall begin the Construction Work upon receipt of the Notice to Proceed from
the Authority for the Construction Work. The Notice may be in the form of a single NTP
covering the full Scope of Construction Work, or it may be a series of sequential NTP’s
covering specific packages or elements of the Work. In either event, the Contractor agrees
that upon NTP issuance it will prosecute the Work so that it will be completed and performed
on or before the Substantial Completion Deadline in Section 23. Following the Notice to
Proceed with Construction, the Contractor shall submit to the Authority the DBE information
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required under Section 16.2.3.2 in accordance with the schedule for the submittal set forth in
that Section.
14.0 TERM OF CONSTRUCTION 14.1 Period of Performance The period of performance for all or a portion of the Construction Work shall commence
upon issuance of the NTP for all or a portion of Construction or upon other direction from
the Authority and shall expire on February 1, 2010. Time is of the essence in the
performance of the Construction Work. In carrying out the Construction Work, the
Contractor is required to perform all Work diligently and take all reasonable steps necessary
to ensure substantial and final completion of the Work in accordance with the deadlines
specified in Section 23. If any circumstances arise that cause the Contractor to believe that
the specified deadlines in Section 23 may or will not be met, the Contractor shall
immediately notify the Authority in writing.
14.2 Implementation of the Work Upon receipt of a Notice to Proceed, the Contractor shall proceed with the Work in
accordance with the Critical Path Schedule specified in Section 01310 of the Scope of Work
and General Requirements.
14.3 Schedule Controls and Reports The Contractor shall be responsible for managing and maintaining the Critical Path Schedule
and for establishing and implementing a system for comparing actual work performed with
the baseline schedule and tracking and resolving all schedule variances. The Contractor shall
prepare and submit to the Authority monthly progress schedules for the Work, as specified in
Section 01310 of the Scope of Work and General Requirements.
14.4 Weather Delays Caused by Rain For purposes of granting time extensions pursuant to the Section 19.5.2 in this Design-Build
Contract, resulting from rain more severe than normal which was not foreseeable, the impact
of normal rainfall for which the Contractor is not entitled to a time extension is defined by
the number of expected work days of delay (based on a five (5) day Standard Work Week)
caused by normal rainfall by month as follows:
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Month Number of Work Days
January 5
February 5
March 6
April 2
May 1
June 1
July 1
August 1
September 1
October 1
November 1
December 3
In scheduling the Work, the Contractor shall account for the above number of workdays by
month for which the effects of normal rainfall are expected to prevent work. In the event the
Contractor works a regularly scheduled workweek other than five (5) days per week, the
above numbers shall be multiplied by the ratio of the actual average number of workdays per
week divided by five (5) workdays.
The number of workdays identified on the table above shall be utilized only for the
associated month and may not be added to or carried over to any subsequent month.
15.0 TOTAL COMPENSATION FOR CONSTRUCTION WORK 15.1 Lump Sum Fixed Price The Contractor shall be compensated for Construction Work in a total Lump Sum Fixed
Price (“LSFP”). The LSFP is the sum of the Construction Fee, described in Section 15.2,
and the Construction Price or Prices, described in Section 8.5. The Contractor will not be
provided any compensation in excess of the LSFP other than through a Change Order issued
by the Authority under Section 19 of this Design-Build Contract.
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15.2 Construction Fee 15.2.1 The Contractor will be compensated during the performance of the Construction
Work for the Construction Fee set forth in the Contractor’s proposal and accepted by the
Authority. The Construction Fee is fixed and will not be increased or decreased on the basis
of the Construction Price(s) negotiated between the Contractor and the Authority. The
Contractor’s Construction Fee will be converted to a percentage of the Construction
Allowance for purposes of allocating the fee to a package or packages of the Work.
15.2.2 If an Authority directed Change Order increases the LSFP, the Contractor shall be
eligible for payment of overhead and profit in connection with that Change Order in
accordance with Section 19.7.6.
15.2.3 In the absence of such a Change Order described in 15.2.2, the Contractor will not be
paid any amount in excess of the LSFP.
15.2.4 The Construction Fee shall be the Contractor’s sole compensation for the following:
(a) Profit.
(b) Home Office Overhead
15.3 Construction Allowance 15.3.1 Not Used.
15.3.2 The Authority has established a Construction Allowance as the estimated total cost of
performing the Construction Scope of Work, in the amount of $ 295,000,000. The
Construction Allowance, plus the Construction Fee, is the total amount the Authority has
budgeted and allocated for the Construction phase of the Project. The Construction
Allowance will be superceded by the LSFP described in Section 15.1, which is binding on
the Contractor. The Construction Allowance includes, but is not limited to the following:
Construction Direct/Trade Labor up to and including General Superintendent and Foremen,
Construction Materials and Structures, Construction Small Tools and Consumables,
Construction Equipment, Subcontractors, General Requirements (other than those specified
in the Design and Professional Services Allowances), Field Logistics, Field Offices and
Expenses, construction related safety activities and supplies (such as first aid trailer, supplies,
safety incentive awards, training, drug testing, fire protection), Permits and Fees,
Jurisdictional Approvals, , Bonding for Construction, and all other Contractor’s General
Expenses and General Overhead for Construction.
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15.3.3 Construction Trade Work Costs are defined as the costs of construction performed by
the Contractor and its subcontractors to complete the Scope of Work. Construction Trade
Work Costs are inclusive of all necessary costs to construct the Project, including labor
(which includes worker’s compensation insurance, commercial automobile liability
insurance, fringe benefits and taxes), materials, and equipment, except for the Construction
Fee (as defined in Section 15.2) and any Contingency. Equipment costs for specialty
subcontractors during Design, including but not limited to equipment of specialty
subcontractors performing Geotechnical borings, shall be considered as part of the
Professional Services Allowance.
15.4 Construction Contingency The Authority has established a Construction Contingency Amount (“CCA”) of $ 20,000,000
to cover risks and unanticipated Project costs. If the parties negotiate prices for specific
packages of the Work, as described in Section 8.5.2, they will agree upon the portion of the
CCA that will be allocated to each such package. Any amounts remaining in the CCA after
completion of the Work and Final Acceptance under Section 24 will be handled in
accordance with the incentive provisions set forth in Section 15.6.
15.5 Construction Incentive for Completion for Less Than Construction Allowance If the Contractor completes all of the Construction Work on or before the Substantial
Completion Deadline for a total Construction Price (excluding any Authority directed
Change Orders and the Construction Fee) that is less than the Construction Allowance, then
the Contractor shall be entitled to an Incentive Payment in an amount equal to 10% of the
difference between the total Construction Price (as described above) and the Construction
Allowance. For purposes of calculations under this Section, the Construction Allowance
shall be increased by the sum of any Design Cost Underrun described in Section 10.1 and
any Professional Services Underrun described in Section 10.4.
15.6 Construction Incentive for Unused Construction Contingency Amount (“CCA”) If there is a balance in the Construction Contingency Amount at the time of the issuance of a
Certificate of Final Acceptance under Section 24.4, the Authority shall first set aside from
that balance a claims reserve in the amount it deems necessary to cover any and all claims
arising from the Work, and then the Authority shall distribute to the Contractor 10% of the
funds remaining in the CCA, at the time of Final Payment under Section 18.15.
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15.7 Construction Incentive for Early Completion If the Contractor is eligible for an incentive under Section 15.6 and completes all of the
Construction Work on or before the Substantial Completion Deadline, the Contractor shall be
entitled to an Incentive Payment that when combined with the incentive in 15.6 shall equal
20% of the funds remaining in the CCA, at the time of Final Payment under Section 18.15.
16.0 CONTRACTING PLAN, DBEs AND SUBCONTRACTS 16.1 Contracting Plan 16.1.1 Requirement
All Design and Construction Work must be carried out in accordance with a Contracting Plan
approved by the Authority.
16.1.2 Submittal to the Authority
The Contractor shall submit to the Authority, by the time specified in Section 6.2.4, the
Contracting Plan for the Design Work and the Construction Work. The Plan shall be based
on the proposed Contracting Plan submitted by the Contractor in response to the RFP, and
shall identify and explain any difference from that proposed Plan. The Contracting Plan shall
be subject to the review and approval of the Authority. Prior to commencing the
Construction Work, the Contractor shall submit to the Authority, for its approval, any
necessary revisions and updates to the Contracting Plan.
16.1.3 Contents of Plan
The Contracting Plan shall identify the delivery or subcontracting method that will be used
for each element or package of the Design and Construction Work. The allowable methods
for performing Construction Work (including supply of machinery, equipment, materials and
systems) are as follows: (a) self-performance by the Contractor; (b) performance by a
Subcontractor identified in the proposal, (c) performance by a Major Subcontractor selected
in accordance with a competitive process approved by the Authority as described below or
(d) performance by a non-Major Subcontractor. The Contracting Plan shall include
provisions to ensure that no Subcontract is entered into with a firm that is ineligible to
perform work on public works projects pursuant to Section 1777.1 or 1777.7 of the
California Labor Code (Contractor is permitted to rely on subcontractors self-certifications).
The Authority reserves the right, through its approval of the Contracting Plan, to concur in
the allocation and process of the work as described in this subsection. The Contractor
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acknowledges that it will be responsible for demonstrating to the Authority that the cost of
any Construction Work not competitively procured is fair and reasonable or otherwise in the
best interest of the Authority.
16.1.4 Self Performance
The Contracting Plan must provide that not less than 30% and not more than 60% of the
Construction Work will be self performed by the Contractor and its equity participants.
16.1.5 Full and Open Competition for Major Subcontracts
The Authority shall have sole discretion to disapprove any proposed procurement process for
Major Subcontracts that Authority determines does not provide for full and open
competition. Authority’s approval will not be unreasonably withheld for the following
procurement procedures: (a) Work to be subcontracted through low-bid, with the bids
publicly solicited and a fixed price contract awarded to the responsible bidder whose bid,
conforming to the material terms and conditions of the invitation for bids, is lowest in price;
and (b) Work to be subcontracted through value based selection, requests for proposals will
be publicized, evaluation factors identified in the solicitation document and used to review
proposals, and with awards made to the firm whose proposal is most advantageous or offers
the best value to the Project, with price and other factors considered. The Authority
acknowledges that, if the Authority requires Work to be competitively procured that the
Contracting Plan contemplated would be performed by a listed Major Subcontractor, it may
be beneficial to allow firms on the Major Subcontractor’s team to participate in the
competition, and will evaluate requests to allow such participation on a case-by-case basis.
16.1.6 Packages
If the Contractor intends to implement the Work in specific packages, the Contractor shall
include in the Contracting Plan a description of the delivery or subcontracting methods (as
described in Section 16.1.3) proposed for each package.
16.1.7 Inclusion of DBE Goals and Good Faith Efforts
The Contracting Plan shall include an identification of the Work that will be performed, or is
anticipated to be performed, by DBE firms in order to achieve the DBE goals. In addition,
the Contracting Plan shall assure that the process of procuring and awarding subcontracts is
designed and carried out to assure good faith efforts to meet the DBE goals.
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16.2 Disadvantaged Business Enterprises; Equal Employment Opportunity 16.2.1. General Requirement
16.2.1.1 The Authority is utilizing the MTA’s Diversity and Economic Opportunity
Programs, including a Disadvantaged Business Enterprises (DBE) Program (with certain
modifications) and an Equal Employment Opportunity and Affirmative Action Program as
set forth in DBE Program. For the purposes of DBE, Equal Employment Opportunity and
Affirmative Action Program compliance, references to the “MTA” or “METRO”, shall be
deemed to be references to the Authority unless otherwise noted.
16.2.1.2 In implementing the Project, the Contractor shall comply with the
Disadvantaged Business Enterprise (DBE) Regulations of the Department of Transportation,
as set forth in 49 C.F.R. Part 26, and with the DBE Program set forth in the Contract
Documents.
16.2.2. DBE Goals
The Contractor shall meet or make good faith efforts to meet the DBE contract goals for the
Project, which have been established by the Authority as (a) 20 % of the Design Allowance
(including Fee) (b) 20% of the Professional Services Allowance (including Fee), and (c) 20
% of the Construction Allowance (including Fee).
16.2.3. Performance Plan; Identification of DBE Subcontractors
16.2.3.1. The Contractor shall submit to the Authority, within twenty (20) days after the
Notice to Proceed for Design, a performance plan for the utilization of DBE subcontractors
to achieve the goals specified in Section 16.2.2. The plan shall include (a) an estimated
dollar amount to be awarded to DBE firms per year; (b) an identification of the areas of work
(in Design, Professional Services, and Construction) to be subcontracted to DBEs, specifying
the areas in which DBE firms have already been selected and the areas in which DBE firms
are anticipated to be used; (c) a description of the good faith efforts the Contractor has made
to date, and will make in the future, to meet the DBE goals; and (d) a description of the race
neutral means (consistent with 49 CFR 26.51) that the Proposer intends to use to facilitate
DBE participation.
16.2.3.2. The Contractor shall provide the Authority with the following DBE
information: (a) within fifteen (15) days after issuance of the NTP for Design, a list (with
names and addresses) of all certified DBE contractors that will perform any portion of the
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Design Work or Professional Services associated with the Design Work, together with a
description of their Work and the dollar amount of their participation; and (b) within fifteen
(15) days after issuance of the first NTP for Construction, a list (with names and addresses)
of all certified DBEs that will perform any portion of the Construction Work or Professional
Services associated with the Construction Work, together with a description of their Work
and the dollar amount of their participation and an identification of the specific package of
the Construction work in which they will be involved and the pricing information for each
such package.
16.2.4 Good Faith Efforts and Regulatory Requirements
16.2.4.1 If the information provided under Section 16.2.3.2 (a) indicates a DBE goal in
Section 16.2.2 will not be met, the Contractor shall provide evidence of good faith efforts (as
described in the DBE program) to meet that goal as may be requested by the Authority to
supplement the information included in the proposal. If the information provided under
Section 16.2.3.2(b) with regard to a Construction Package indicates that DBE goal has not
been met for such package, in combination with all previous packages, the Contractor shall
either provide evidence of good faith efforts to meet that goal or shall provide information
regarding its plan to achieve the goal through future solicitations.
16.2.4.2 If the Contractor fails to meet a DBE goal, the Authority will make a fair and
reasonable judgment whether the Contractor made adequate good faith efforts, based on the
standards in the DBE Program and Appendix A to 49 C.F.R. Part 26 and Appendix II of the
Authority’s Contract Compliance Manual. The Authority will consider the quality, quantity,
and intensity of the different kinds of efforts that the Contractor has made. The efforts
employed by the Contractor should be those that could reasonably be expected if the
Contractor were actively and aggressively trying to obtain DBE participation sufficient to
meet the DBE goals. Mere pro forma efforts by the Contractor are not considered to be
sufficient, but the Authority will not ignore bona fide good faith efforts.
16.2.4.3 In accordance with 49 C.F.R. 26.53(f), the Contractor shall obtain the
Authority’s written consent prior to terminating for convenience any DBE contractor and
then self-performing the terminated work; and the Contractor shall make good faith efforts to
find a substitute DBE subcontractor to replace any DBE subcontractor that is terminated or
fails to complete its Work for any reason.
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16.2.5 Remedies
The Authority will utilize the administrative remedies in the DBE Program in the event the
Contractor fails to comply with the requirements of this Section 16.2, including withholding
specified percentages from monthly invoices as provided in the Authority’s Contract
Compliance Manual.
16.2.6 Reports
The Contractor shall provide reports to the Authority monthly, and otherwise upon request by
the Authority, regarding the progress of the DBE Program participation. The Contractor
shall attach to the reports written confirmation from identified DBE’s that they are
participating in the Work. If, based on the reports provided by the Contractor, the Authority
determines, in its judgment, that the Contractor is not complying with the DBE Program,
then the Authority shall so advise the Contractor in writing and the Contractor shall have ten
(10) working days after receipt of such notice to meet with the Authority and agree upon a
course of action which will demonstrate to the Authority that the Contractor will comply with
the program. Provision of acceptable evidence of good faith efforts and pursuit of the agreed
upon course of action are conditions to the Authority’s obligation to process and pay
invoices. Failure to comply will result in withholding or delay in payment to the Contractor,
as specified in the DBE Program.
16.2.7 DBE Compliance Workshop
The Contractor, including the Project Manager and an individual designated by the
Contractor as the DBE Officer for the Project, shall participate in a workshop that will
explain the DBE Program requirements and provide guidance on how to complete all
required forms and reports.
16.3 Subcontracts 16.3.1 Major Subcontracts
The Contractor shall promptly notify the Authority in writing of the identity of each Major
Subcontractor selected. The Contractor shall not have the right to make any substitution of
any Major Subcontractor identified in the Proposal or selected in accordance with the
Contracting Plan, except in accordance with the provisions of the Subletting and
Subcontracting Fair Practices Act, Public Contract Code sections 4100 et seq., and the
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Contractor shall not amend any existing Major Subcontracts to result in an aggregate increase
of 10% or more in the Subcontract price, without the Authority’s prior written approval.
16.3.2 Required Terms and Subcontractor Schedule
16.3.2.1 The Contractor shall ensure that each Subcontract (at all tiers) shall include
those terms that are specifically required by the Contract Documents to be included therein as
well as such additional terms and conditions as are sufficient to ensure compliance by the
Subcontractor with all applicable requirements of the Contract Documents. The Contractor
shall ensure that all Subcontracts (at all tiers, including Subcontracts with Suppliers) shall
include an agreement by the Subcontractor to participate in any dispute review proceeding
pursuant to Section 20, if the Authority requests such participation.
16.3.2.2 Within fifteen (15) days after issuance of the NTP for Design, the Contractor
shall complete and provide to the Authority a schedule listing all of its current proposed
Subcontractors, using the form attached hereto as Appendix 3. The schedule should include
all Design and Professional Services subcontractors plus any Construction subcontractors
known at that time. The Contractor shall provide an updated schedule each month thereafter.
Such matrix form may be modified so that it can be used to comply with DBE reporting
requirements. The Contractor shall allow the Authority access to all Subcontracts and
records regarding Subcontracts and shall deliver to the Authority, within ten days after
execution, true and complete copies of all Major Subcontracts and, within ten days after
receipt of a request from the Authority, true and complete copies of all other Subcontracts as
may be requested.
16.3.3 Contractor Responsibility for Subcontracted Work
The Contractor shall be fully responsible to the Authority for all acts and omissions of its
own employees and of Subcontractors and their employees. The Contractor shall also be
responsible for coordinating the Work performed by Subcontractors. When a portion of the
subcontracted Work is not performed in accordance with the Contract Documents, or if a
Subcontractor commits or omits any act that would constitute a breach of the Contract, or if
the Authority makes reasonable objection to the use or continued use of such Subcontractor,
the Subcontractor shall be replaced at the direction of the Authority and shall not again be
employed on the Project.
16.3.4 Form of Subcontract
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The Authority shall have the right to review the form of subcontract used by the Contractor
for the Project and to require modifications to conform to the requirements herein.
17.0 RISK ALLOCATION 17.1 Discovery of Certain Site Conditions The procedures set forth in this Section 17.1 shall apply in the event of Contractor’s
discovery of (a) any on-Site material that Contractor believes may contain Hazardous Waste
that is required to be removed to a Class I, Class II or Class III disposal site, (b) any
threatened or endangered species, (c) any historic, archaeological, paleontological, or cultural
resources, (d) any Differing Site Conditions or (e) any Main or Trunkline Utilities that are
not indicated with reasonable accuracy in the Contract Documents.
17.1.1 During the progress of the Work, if the Contractor becomes aware of any material,
resource or species described in clauses (a), (b) or, (c) of Section 17.1, then the Contractor
shall immediately notify the Authority thereof telephonically or in person, to be followed
immediately by written notification within 48 hours. The Contractor shall immediately stop
Work in and secure the area pending further instructions. In such an event, the Authority will
view the location by the end of the next full regular working day after receipt of the
immediate notification and shall advise the Contractor at that time whether Work should be
resumed or whether further investigation is required. If during the course of the Work the
Contractor becomes aware of any condition described in clauses (d) or (e) of Section 17.1,
the Contractor shall promptly notify the Authority thereof telephonically or in person but
shall not be obligated to stop Work unless directed by the Authority.
17.1.2 If directed by the Authority, the Contractor shall promptly conduct such further
investigation. The Contractor shall determine within five working days after receipt of such
direction whether the material or condition falls within the scope of clauses (a), (b), (c), (d)
or (e) of Section 17.1. The Contractor shall at that time also advise the Authority of any
action recommended regarding the situation. If Hazardous Waste is involved, the notice
shall describe the type of remediation measures, if any, which the Contractor proposes to
undertake with respect thereto (also refer to Section 01175 of the General Requirements). If
threatened or endangered species or archaeological, paleontological, cultural, or historic
resources are present the notice shall advise the Authority what course of action the
Contractor intends to take with respect thereto and whether the location should be fenced off
or whether Work can resume (also refer to Section 01170 of the General Requirements). The
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Authority then will determine whether the Contractor’s findings and proposed actions are
acceptable and will either approve, or require modification of, the Contractor’s proposed
actions.
17.1.3 The Authority shall have the right to require the Contractor to recommence work in
the area at any time, even though an investigation may still be ongoing, so long as not in
violation of Governmental Rules and no health risk exists. The Contractor shall promptly
recommence Work in the area upon receipt of notification from the Authority to do so. On
recommencing Work, the Contractor shall follow all applicable procedures contained in the
Contract Documents and all other legal requirements with respect to such work, consistent
with the Authority’s determination or preliminary determination regarding the nature of the
material or condition.
17.1.4 Upon receipt of notification under Section 17.1.1, the Authority shall determine
whether the discovery is of (a) any materials, resources or species that the Contract
Documents indicate are present in the location in question, or (b) any resources or species for
which an incidental take is permitted under the terms of a Governmental Approval. If so, the
Authority shall have the right to require the Contractor to recommence Work in the area at
any time and to follow applicable procedures contained in the Contract Documents.
17.2 Differing Site Conditions This Section 17.2 describes how responsibility and liability for certain risks relating to
Differing Site Conditions are allocated between the parties after a LSFP is agreed upon,
either for individual packages or for the Total LSFP.
17.2.1 Responsibility for Differing Site Conditions
17.2.1.1. The term “Differing Site Conditions” means (a) subsurface or latent
conditions which differ materially from those indicated in the Geotechnical reports included
in the Geotechnical and Initial Site Assessment Documents, or (b) physical conditions of an
unusual nature, differing materially from those ordinarily encountered in the area and
generally recognized as inherent in the type of work provided for in the Contract Documents.
The term specifically excludes all such conditions of which Contractor had actual or
constructive knowledge as of the Proposal Due Date, and excludes Utility facilities,
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Hazardous Substances, and any other conditions that constitute or are caused by a Force
Majeure event.
17.2.1.2 Upon the Contractor’s fulfillment of all applicable requirements of Section 19,
and subject to the limitations contained therein, the Authority shall be responsible for, and
agrees to issue Change Orders, (a) to compensate the Contractor for additional costs directly
attributable to changes in the Work directly attributable to Differing Site Conditions not
reasonably avoidable by the Contractor, and (b) to extend the Completion Deadlines as the
result of any delay in the Critical Path caused by any such conditions. The Contractor shall
bear the burden of proving that a differing site condition exists and that it could not
reasonably have worked around the differing site condition so as to avoid additional cost or
delay.
17.3 Responsibility for Utility Relocations / Rearrangements and Changes in City Facility Work This Section 17.3 describes how responsibility and liability for certain risks relating to the
Utility Work and City Agreements are allocated between the parties after a LSFP is agreed
upon, either for individual packages or for the Total LSFP. This Section 17.3 also addresses
the circumstances under which reductions in the Utility Work and City Facility Work will
result in a deductive Change Order. Provisions regarding the scope of the responsibilities of
the Contractor and the Authority relating to Utility Work and City Facility Work are set forth
in Scope of Work and General Requirements Section 01180.
17.3.1 Entitlement to Change Orders
The Contractor shall be entitled to receive a Change Order for additional costs and delays
associated with Utilities, the Utility Work or City Agreements only as permitted by this
Section 17.3 or for circumstances for which such a Change Order is independently permitted
under Section 19. A deductive Change Order for reductions in the Work associated with the
Utilities, the Utility Work or City Facility Work shall be issued in the circumstances
providing for a decrease in the Contract Price described in this Section 17.3 or in
circumstances for which a deductive Change Order is independently permitted under
Section 19. All Change Orders pursuant to this Section 17.3 shall be subject to the
requirements, limitations, restrictions, and procedures set forth in Section 19.
17.3.2 Responsibility for Identification and Relocation / Rearrangement of Utility
Facilities
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17.3.2.1 The Contractor has the obligation to perform all responsibilities and to undertake
all liabilities with respect to identification and Relocation / Rearrangement of all Utilities
(including City Utilities), to the extent that the Contractor is responsible under Scope of
Work and General Requirements Section 01180 (unless otherwise expressly required by this
Section 17.3.2), including Main or Trunkline Utilities which would typically be the
responsibility and liability of public agencies subject to the requirements of Government
Code section 4215. All such responsibilities and liabilities shall be included in the
Construction Allowance.
17.3.2.2 Prior to the establishment of the LSFP pursuant to Section 8, the Contractor shall
be responsible for analyzing the Utility information set forth in the Contract Documents and
Reference Documents, contacting and making inquiries of Utility Owners, and performing
additional investigations as it deems appropriate to verify and supplement such information.
17.3.2.3 The term "reasonable accuracy," when used in this Section and Section 17.3.2.4
shall be determined with reference to location, size or type, as appropriate. If any Main or
Trunkline Utilities which are required to be Relocated are not indicated at all in the Contract
Documents or Reference Documents, or are not indicated on the drawings within + or – two
(2) feet of the actual location in the field, then the Contractor may be entitled to an
adjustment by the Authority for incremental changes in cost or adjustment in time to the
extent the Project critical path is affected, provided however, that if a reasonable examination
of the Site would have revealed the presence of such utility, such as the presence of
manholes, vaults, signs or markers, or other features observable at the surface, no adjustment
in time or cost will be made except for the utilities identified in the Scope of Work and
General Requirements Appendix A. Notwithstanding Section 17.3.2.3, the Contractor shall
be fully liable for, and no Change Order shall be issued with respect to, the circumstances
described in that Section, if (a) a surface inspection of the area would have shown (1) the
existence of a Main or Trunkline Utility with reasonable accuracy, or (2) the likelihood of the
existence of a Main or Trunkline Utility with reasonable accuracy by reason of the existence
of above-ground facilities, such as buildings, meters, junction boxes or identifying markers,
or (b) the exercise of reasonable care, including the investigations described in
Section 17.3.2.2, would have indicated a Main or Trunkline Utility with reasonable accuracy.
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17.3.2.4 If (a) it is not necessary to Relocate such Utility, or (b) there is a reduction in the
cost of the Work necessary to Relocate such Utility, then the Authority shall be entitled to a
Change Order reducing the LSFP to reflect the full value of any reduction in the Work that is
directly attributable to such correction. Such Change Order shall be based on the parties'
reasonable estimate of the reduction in the cost of performance of such Work (including
mark-ups calculated in accordance with Section 19.7).
17.3.3 Material Change in Allocation of Work Responsibility
17.3.3.1 Authority-Directed Change
Any changes in the Utility classification and allocation of Work responsibility pursuant to
Scope of Work and General Requirements Section 01180 resulting from the execution of a
Utility Agreement shall be treated as an Authority-Directed Change.
17.3.3.2 Notice Required
If the Contractor believes that an executed Utility Agreement has resulted in an Authority-
Directed Change of the type described in Section 17.3.3.1 warranting an increase in the LSFP
or an extension of the Contract Time, then the Contractor shall notify the Authority in writing
within 15 days after the Authority delivers an executed copy of such Utility Agreement to the
Contractor. In such event, the notification requirements of Section 17.3.3.2 shall apply in
lieu of the PCO Notice requirements set forth in Section 19. Notwithstanding any contrary
provision of the Contract Documents, the Contractor’s failure to provide the foregoing notice
shall constitute a waiver by the Contractor of the right to later claim that an Authority-
Directed Change has occurred on account of any matter which should have been covered by
such notice.
17.3.4 Betterments
17.3.4.1 Increase in Scope
If any changes to the Utility Work or to the City Facility Work are made in accordance with
Scope of Work and General Requirements Section 01180 which constitute Betterments that
were not indicated in the Contract Documents, or which increase the scope of Betterments
that were so indicated, then the Contractor shall be entitled to a Change Order with respect to
any increase in Contractor’s costs of performing the Work that is directly attributable to such
change(s).
17.3.4.2 Decrease in Scope
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If any changes to the Utility Work or to the City Facility Work are made which eliminate or
reduce the cost of any Betterments that were indicated in the Contract Documents, thereby
reducing the cost of the Work, then Authority shall be entitled to a Change Order reducing
the LSFP to reflect the value of any reduction in the Work that is directly attributable to the
reduction or elimination of such Betterment. Such Change Order shall be based on the
parties’ reasonable estimate of the reduction in the cost of performance of such Work
(including mark-ups calculated in accordance with Section 19).
17.3.5 Utility Owner Performs Incidental Utility Work
If a Utility Owner performs any Incidental Utility Work that was originally included in the
Contractor’s Scope of Work, thereby reducing the Work to be performed by the Contractor,
then the Authority shall be entitled to a Change Order reducing the LSFP to reflect the value
of any reduction in the Work that is directly attributable to the performance of such Work by
the Utility Owner. Such Change Order shall be based on the parties’ reasonable estimate of
the reduction in the cost of performance of such Work (including mark-ups calculated in
accordance with Section 19).
17.3.6 Change in Relocation / Rearrangement Requirements
In considering opportunities to reduce the costs of certain portions of the Work, which may
increase the costs of certain other portions of the Work, the Contractor shall at all times
consider the impact of Project design changes on Relocations / Rearrangement with the
overall goal of minimizing the necessity for Relocations / Rearrangements to the extent
practicable. Accordingly, except for cost increases or decreases resulting from Authority-
Directed Changes in Project design affecting Utility Work or City Facility Work (which shall
be governed solely by the provisions of Section 19), the following rules shall apply with
respect to any cost increases or decreases associated with Project design changes which
either (a) reduce or eliminate the costs of any Relocation, or (b) result in new Relocations /
Rearrangements or an increase in costs of existing Relocations / Rearrangements:
17.3.6.1 The Contractor shall not be entitled to a Change Order for any such additional
costs which it incurs, including both additional Relocation / Rearrangement costs and the
costs of any additional Work on other aspects of the Project, in order to facilitate the
avoidance or reduction of Relocation / Rearrangement costs.
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17.3.6.2 The Contractor shall reimburse the Authority, within 10 working days after
receipt of the Authority’s invoice therefore, for any such additional costs which the Authority
incurs, including (a) any increase in amounts owed by the Authority to Utility Owners or
City Facilities that is directly attributable to such change, (b) any amounts owed by the
Authority to Utility Owners or City Facilities for work which is unusable or which must be
redone as a result of such change, and (c) any acquisition costs incurred by the Authority for
additional Utility Easements required therefore.
17.3.6.3 The Contractor shall not be obligated to provide a credit to the Authority on
account of reductions in the cost of the Work due to any such avoided or reduced Relocations
/ Rearrangements, unless the Authority is entitled to such credit pursuant to any other
provision of this Section 17.3.
17.3.7 Delays
The Contractor shall give notice to the Authority of any circumstance that may lead to a
claim under this Section 17.3.7 within ten (10) working days of the Contractor’s becoming
aware that such circumstance has occurred or is likely to occur. Subject to the limitations
and restrictions set forth in Section 19, the Contractor shall be entitled to an extension of any
affected Completion Deadline:
(a) to the extent that any delay in the Critical Path is directly attributable to a
circumstance for which the Contractor is entitled to a Change Order for increased costs
pursuant to Section 17.3.2 or 17.3.4.1; and
(b) to the extent that any delay in the Critical Path is directly attributable to a
delay by a Utility Owner or City Facility in completing its assigned work on a Relocation /
Rearrangement, or otherwise complying with its obligations under City Agreements, beyond
the date scheduled therefore set forth on the Preliminary Schedule, approved Baseline
Schedule or approved Working Schedule, as appropriate, provided that (1) the Contractor has
made all reasonable efforts to obtain the timely cooperation of the Utility Owner or City
Facility, and (2) no extension shall be available if such delay is concurrent with another delay
which is the Contractor’s responsibility hereunder (in which event such delay and the
associated cost thereof, shall be borne 100% by Contractor).
17.3.8 Additional Restrictions on Change Orders
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In addition to all of the other requirements and limitations contained in this Section 17.3 and
in Section 19, the entitlement of either the Contractor or the Authority to any Change Order
under this Section 17.3 shall be subject to the following restrictions and limitations:
(a) The Contractor shall bear the burden of proving that the Relocation /
Rearrangement cannot reasonably be avoided and of adequately supporting, by
documentation acceptable to the Authority, the amount of any additional costs estimated by
the Contractor as both necessary and reasonable.
(b) The Contractor shall not be entitled to a Change Order with respect to costs
incurred or delays resulting from the performance of Incidental Utility Work by the
Contractor or any Utility Owner, except for any such costs or delays which are directly
attributable to circumstances for which additional costs or a time extension are independently
permitted under Section 19, such as for Authority-Directed Changes which affect Incidental
Utility Work.
(c) In no event will the Contractor be awarded any increase in the LSFP for any
increased costs of coordinating with Utility Owners or for assisting the Authority in its
coordination with Utility Owners, except for any such costs which are directly attributable to
circumstances for which additional costs or a time extension are independently permitted
under Section 19, such as for Authority-Directed Changes which affect Utility Work.
17.3.9 Assumption of Utility Risks by Contractor
The Contractor agrees that (a) the LSFP covers all of the Utility Work described in Scope of
Work and General Requirements Section 01180, and (b) it is feasible to obtain and/or
perform all necessary Relocations / Rearrangements within the time deadlines of the Contract
Documents. Without limiting the generality of the foregoing, the Contractor agrees that:
(a) Prior to the date of execution of the Contract, the Contractor analyzed the
risks involved and in negotiating and agreeing upon the LSFP included adjustments deemed
appropriate by the Contractor to account for the potential risks of additional costs and delays
relating to the Utility Work.
(b) The Contractor shall not be entitled to any Change Order with respect to any
Relocations, including any act or failure to act of any Utility Owner or City Facility which
may result in a delay to Contractor's planned schedule or in Contractor's incurring costs not
included in its budget for the Project, except as specified in this Section 17.3.
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17.3.10 Material Change in City Agreement
17.3.10.1 If after the date of execution of the Contract, Authority and City enter into a
City Agreement (which term for purposes of this Section 17.3.10 shall include agreements
amending existing executed City Agreements) which includes terms differing from the terms
of the applicable executed agreements between the Authority and the Utilities and Cities (or
assumed terms set forth in the Contract Documents if applicable), then the scope of the Work
shall automatically be deemed revised to account for all such changed terms immediately
upon delivery to the Contractor of the executed agreement or amendment incorporating such
change. If the Authority fails to enter into a City or Utilities Agreement replacing any Draft
City Agreement, the Contractor shall be entitled to assume that the terms contained in the
Draft City Agreement will apply.
17.3.10.2 Any change in the Scope of Work directly attributable to materially differing
terms contained in an executed City or Utility Agreement or to any material deviation from
assumed terms, if no City or Utility Agreement is in fact executed, shall be treated as an
Authority-Directed Change.
17.3.10.3 The Contractor shall notify Authority in writing of any perceived materially
differing terms from the applicable existing executed City Agreement (or assumed terms set
forth in the Contract Documents if the City is not covered by an existing executed City
Agreement) which the Contractor believes would constitute an Authority-Directed Change
warranting an increase in the LSFP or an extension of the Contract Time (a) within 15 days
after Authority delivers a draft revised City Agreement or amendment to a City Agreement to
Contractor, (b) within 15 days after the Authority notifies the Contractor that no City
Agreement will be executed and describing any changes in how such City will be handled
hereunder, or (c) within 15 days after the Contractor becomes aware that the City is not
acting in accordance with the assumed terms. In such event, the notification requirements of
this Section 17.3.10 shall apply in lieu of the Proposed Change Order (“PCO”) Notice
requirements set forth in Section 19.3.2.1.1. Any such Authority-Directed Change shall be
addressed in accordance with the procedures set forth in Section 19. The Contractor shall
thereafter consult with the Authority to discuss potential methods for modifying the draft
City Agreement or amendment, or minimizing the impacts thereof (or of the terms for
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handling City described in Authority's notice, if no replacement City Agreement will be
executed). The Authority with regard to the City may send more than one draft or notice,
and the Contractor shall respond to each such draft or notice as provided herein.
17.3.10.4 The Contractor shall notify the Authority in writing within 90 days after the
Contractor receives an executed City Agreement which includes terms which Contractor
believes constitute an Authority-Directed Change described in this Section 17.3.10 and
which warrant an increase in the LSFP or an extension of the Contract Time.
17.3.10.5 Notwithstanding any contrary provision of the Contract Documents,
Contractor’s failure to provide any of the foregoing notices shall constitute a waiver by
Contractor of the right to later claim that an Authority-Directed Change has occurred on
account of any matter which should have been covered by such notice.
17.3.11 Reimbursement of Contractor for Salvage Value Paid by City; No Other
Reimbursement To Be Passed On
In the event that, at a City’s request, the Contractor recovers and delivers (or holds for a
City’s account) materials and/or equipment from a City’s existing facilities which could
otherwise have been sold or reused by the Contractor, and a City pays to the Authority any
amount on account of the salvage value of such materials and/or equipment, the Authority
shall pay such amount to the Contractor within 30 days after receipt of such funds. The
Authority shall not be required to pass on any other payments or reimbursements received by
the Authority from a City. This Section only applies if a LSFP is agreed upon for individual
packages or a Total LSFP is agreed upon.
17.4 Responsibility for Force Majeure Events Except for the events described in this Section 17.4, the risk of events beyond the control of
the parties shall be borne by the Contractor.
17.4.1 Subject to the limitations contained in and upon the Contractor’s fulfillment of all
applicable requirements of Section 19, the Authority shall be responsible for and will issue
change orders based on the occurrence of a Force Majeure event, to:
(a) Compensate the Contractor for additional costs incurred arising from Force
Majeure events (excluding delay damages); and
(b) Extend the completion deadlines as the result of any delay in the critical path
on the baseline schedule caused by a Force Majeure event.
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17.4.2 “Force Majeure” shall mean any of the following events (provided such events are
beyond the control of the Contractor and are not due to an act or omission of the Contractor
or any Subcontractor or other Person for whom Contractor may be contractually or legally
responsible) which materially and adversely affects the Contractor’s obligations hereunder
and which event (or the effects of which event) could not have been avoided by due diligence
and use of reasonable efforts by the Contractor:
(a) Any earthquake exceeding 3.5 on the Richter scale and epicentered within 25
miles of the specific location of damage on the Worksite; exceeding 5.0 on the Richter scale
and epicentered within 50 miles from the specific location of damage on the Worksite; or
exceeding 6.5 on the Richter scale and epicentered within 75 miles from the specific location
of damage on the Worksite; in all cases based on the final determination regarding the
location and magnitude of the earthquake published by the National Earthquake Information
Center in Golden, Colorado, and any tidal wave that causes damage to the Work
(b) Any epidemic, hurricane, fire, flood, blockade, rebellion, war, riot, act of
sabotage, act of terrorism, or civil unrest;
(c) The discovery at, near or on the site of any archaeological, paleontological,
biological or cultural resources or hazardous or contaminated substances; provided that the
existence of such resources or substances was not disclosed by the Authority;
(d) Except as otherwise provided in the Contract Documents, (i) the suspension,
termination, interruption, denial or failure to issue, nonrenewal, or amendment of any
Environmental Approval; or (ii) with respect to other types of Governmental Approvals, any
change in, or adoption of policies or procedures by Governmental Persons resulting in
(A) the suspension, termination, interruption, denial or failure to issue, nonrenewal, or
amendment of a Governmental Approval, (B) a requirement to obtain a Governmental
Approval not contemplated as of the date the LSFP was determined, or (C) a material change
in the terms and conditions of any Governmental Approval from those contemplated as of the
date the relevant LSFP was determined;
(e) Any change in a Governmental Rule, or change in the judicial or
administrative interpretation of, or adoption of any new Governmental Rule which is
materially inconsistent with Governmental Rules in effect on the date of the relevant LSFP;
and
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(f) Any lawsuit seeking to restrain, enjoin, challenge, or delay construction of the
Project or the granting or renewal of any Governmental Approval, except to the extent that
the risk of such lawsuit has been assumed by the Contractor under the Contract Documents.
Notwithstanding the foregoing, the Contractor shall be responsible for providing builder’s
risk insurance and be responsible for payment of deductibles as specified in Design-Build
Contract Section 22.2.2.
17.5 Responsibility for Environmental Compliance 17.5.1 Performance of Mitigation Measures
17.5.1.1 The Contractor shall be responsible for performance of all environmental
mitigation measures (which term shall be deemed to include all requirements of the
Environmental Approvals and similar Governmental Approvals, regardless of whether such
requirements would be considered to fall within a strict definition of the term) for the Project,
excluding only those measures which are specified as Authority's or Metro’s responsibility in
the Mitigation Monitoring Program. The LSFP will include compensation for Contractor's
performance of all such mitigation measures and for performance of all mitigation measures
arising from New Approvals which this Section 17.5 provides are Contractor's responsibility.
17.5.1.2 The Contractor is required to monitor the progress of performance of
environmental mitigation measures and to provide periodic reports to the Authority as set
forth in the Mitigation Monitoring Program. The Authority's policy is to update the program
semi-annually to account for any revisions in mitigation requirements during the prior period.
17.5.2 New Approvals
The Contractor acknowledges and agrees that the Environmental Approvals were obtained
based on certain assumptions regarding the Project, and that it may be necessary to obtain
new Governmental Approvals of the same type as the Environmental Approvals or revisions,
modifications or amendments to the existing Environmental Approvals (collectively, “New
Approvals”) if the design and construction of the Project furnished by the Contractor results
in an impact on environmentally sensitive areas which exceeds the permitted impact(s). New
Approvals may also be required as the result of Authority-Directed Changes or Force
Majeure events such as a change in Governmental Rules.
17.5.2.1 The Authority is responsible for any New Approvals necessitated by an
Authority-Directed Change or a Force Majeure event. In the event that a New Approval is
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necessitated by an Authority-Directed Change or a Force Majeure event, the Contractor shall
not be responsible for obtaining such New Approval or performing additional mitigation
measures necessitated by such New Approval unless a Change Order is issued under
Section 19. The Contractor shall provide support services to the Authority with respect to
obtaining such New Approvals, without any additional compensation. The Change Order
covering the Authority-Directed Change or Force Majeure event would include
compensation to the Contractor for any changes in the Work (excluding such support
services) resulting from such New Approvals as well as any time extension necessitated by
the Authority-Directed Change or Force Majeure event, subject to the requirements and
limitations contained in Section 19.
17.5.2.2 Whenever a New Approval is obtained which changes the existing
environmental mitigation requirements or adds new environmental mitigation requirements,
the Mitigation Monitoring Program will be revised to include such amendments or new
requirements, and the Contractor shall comply with the revised program from and after the
date it receives the revised program. No Change Order shall be allowed in connection with
any revision to the Mitigation Monitoring Program except that (a) Change Orders shall be
issued for additional Work resulting from New Approvals which are Authority’s
responsibility as specified in Section 17.5.2.1, and (b) if the Contractor believes that any
revision constitutes an Authority-Directed Change it shall have the right to seek a Change
Order on that basis, in accordance with the requirements of Section 19.
17.5.2.3 In the event that a New Approval becomes necessary for any reason other than
those specified in Section 17.5.2.1, the Contractor shall be fully responsible for obtaining the
New Approval and for all requirements resulting therefrom as well as any litigation arising in
connection therewith. If the New Approval is associated with a Value Engineering Change
Proposal, costs of obtaining and complying with the terms of the New Approval shall be
considered in determining the cost savings to be shared with the Authority.
17.6 Responsibility for Hazardous and Contaminated Substance Remediation 17.6.1 Upon Contractor’s fulfillment of all applicable requirements of Section 19, and
subject to the requirements and limitations contained therein and in this Section 17.6, the
Authority shall be responsible for, and will issue Change Orders after a LSFP is agreed upon,
(a) to compensate the Contractor for additional costs directly attributable to changes in the
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Work arising from the discovery at, near or on the Site of any Hazardous Substances, and
(b) to extend the Completion Deadlines as the result of any delay in the Critical Path caused
by any such discovery; provided that such events are beyond the control of the Contractor
and are not due to an act or omission of the Contractor or any Subcontractor or other Person
for whom the Contractor may be contractually or legally responsible; such events materially
and adversely affects the Contractor’s obligations hereunder, and such event (or the effects of
such event) could not have been avoided by due diligence and use of reasonable efforts by
the Contractor.
17.6.2 The Authority reserves the right to use other labor forces to investigate and to
perform work to determine the nature and extent of any suspected Hazardous Substances(s)
and to handle and/or remove the Hazardous Substances(s) from the area.
17.6.3 Limitations on Change Orders
Although the Contractor shall in general be entitled to a change order in connection with any
hazardous and contaminated substance remediation, the Contractor shall have no right to
receive any compensation for any hazardous and contaminated substance required to be
removed due to any act or omission of the Contractor or of its employees, agents, officers, or
subcontractors or any other persons for whom the Contractor may be contractually or legally
responsible.
17.6.4 Time Extensions
The Contractor may be entitled to an extension of the Substantial Completion Deadline with
regard to hazardous or contaminated substances remediation only for quantities of hazardous
wastes as defined in 40 CFR 261. No extension shall be allowed with respect to any
hazardous or contaminated substances required to be removed due to any act or omission of
the Contractor or of its employees, agents, officers, or subcontractors or any other persons for
whom the Contractor may be contractually or legally responsible.
17.6.5 Use of Trained and Qualified Personnel and Subcontractors
The Contractor shall utilize the services of previously qualified, trained, and/or appropriately
certified personnel and subcontractors for hazardous and contaminated substance
remediation. No training costs (or costs for physical examinations) will be allowed in any
change order for hazardous and contaminated substance remediation.
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17.6.6 Notwithstanding anything to the contrary contained in Sections 17.6.3 and 17.6.4, if
the Contractor is prohibited from working at a particular location due to the type of
circumstance described in those sections during the last 12 months prior to the Substantial
Completion Deadline, thus making it impossible for the Contractor to complete all of the
Work required to be performed in that location by the date that all of the other conditions to
Substantial Completion of the Project have been satisfied, then that portion of the Work
which the Contractor was consequently unable to perform in that location by the date that all
other conditions to Substantial Completion were satisfied shall be considered to be a
condition to Final Acceptance (as applicable) rather than a condition to Substantial
Completion.
17.7 Risk of Loss 17.7.1 Maintenance and Repair Liability
17.7.1.1 At all times prior to the Revenue Operations Date, the Contractor shall maintain,
rebuild, repair, restore or replace all Work (including Design Documents, Construction
Documents, materials, equipment, supplies and maintenance equipment which are purchased
for permanent installation in, or for use during construction of, the Project and regardless of
whether the Authority has title thereto, but excluding Vehicles) that is injured or damaged
prior to the Authority’s acceptance thereof. All such Work shall be at no additional cost to
the Authority except to the extent that the Authority is responsible for such costs as provided
in Section 19. The Contractor shall also have full responsibility for rebuilding, repairing and
restoring all other property at the Site whether owned by the Contractor, the Authority or any
other Person. Effective as of the Revenue Operations Date, the Authority shall be considered
to have accepted maintenance liability for all elements of the Project that are complete as of
such date (there are no remaining Punch List items for those elements of the Work). All
remaining elements of the Project shall be considered accepted for maintenance purposes as
of the Final Acceptance Date.
17.7.1.2 At all times prior to the Revenue Operations Date, the Contractor shall protect
existing structures, equipment and vegetation (collectively “Existing Improvements”) within
and adjacent to the Worksite and shall exercise due caution to avoid damage to such Existing
Improvements. Unless otherwise provided, the Contractor shall repair or replace all Existing
Improvements damaged or removed by the Contractor. Repairs and replacements shall be at
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least equal to Existing Improvements and shall match them in finish and dimension. All
costs for protecting, removing and restoring Existing Improvements shall be the sole expense
of the Contractor. The Contractor shall maintain in a growing condition all plantings,
seedlings and sods furnished under the Contract Documents and shall protect new tree
growth and other vegetative growth against injury, replacing all dead plants requiring
replacement during such period.
17.7.1.3 The Contractor shall supply security and drainage and erect any temporary
structures as necessary to protect the Work from damage.
17.7.2 Extension of Maintenance and Repair Obligation
During the period beginning on the Revenue Operations Date and ending at Final
Acceptance, the Authority may require the Contractor to continue to have responsibility for
maintaining, rebuilding, repairing, restoring and replacing Work accepted by the Authority,
and shall do so pursuant to a Change Order under Section 19. If the Contractor fails or
refuses to make timely repairs during such period after issuance of a Change Order, the
Authority may make the repairs and will issue a deductive Change Order in an amount not to
exceed the portion of the original Change Order covering the Work.
17.8 Governmental Approvals 17.8.1 Licenses and Permits
Prior to beginning any construction activities in the field for any portion of the Project, the
Contractor shall furnish the Authority with fully executed copies of all Governmental
Approvals (other than the Governmental Approvals obtained by the Authority) required for
such portion of the Project.
Upon request, the Contractor shall submit to the Authority’s Project Manager photocopies of
any or all permits or licenses required of the Contractor or its subcontractors (at all levels,
including labor only) for construction of the Work.
If another party and/or contractor commence Work on the site, the Contractor shall make a
good faith effort to verify that such party and/or contractor has the necessary permits to Work
on the site.
17.8.2 Issuance to Authority
If any Governmental Approval required to be obtained by the Contractor must formally be
issued in the name of the Authority, the Contractor shall undertake all efforts to obtain such
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approvals subject to the Authority’s reasonable cooperation with the Contractor, including
execution and delivery of appropriate applications and other documentation in a form
accepted by the Authority. The Contractor shall assist the Authority in obtaining the
approvals and any amendments thereto, including providing information requested by the
Authority, and participating in meetings regarding such approvals.
17.8.3 Maintenance of Governmental Approvals
The Contractor shall undertake all actions necessary to maintain in full force and effect all
Governmental Approvals, including performance of all environmental mitigation measures
required by the Contract Documents or by Law, except to the extent that responsibility for
performance of such measures is expressly assigned to the Authority or any other person.
17.9 Environmental Compliance 17.9.1 Inclusion in Subcontracts
The Contractor shall include all the requirements of Section 17.9 in every Subcontract that is
more than one hundred thousand dollars ($100,000), and shall take such action as the
Authority’s Authorized Representative directs to enforce these requirements.
17.9.2 Compliance with Environmental Laws
17.9.2.1 The Contractor shall comply with all applicable standards, orders, and
requirements issued under any and all Environmental Laws, including those related to
Hazardous Substances; and all interpretations, guidelines, clarifications, mitigation measures,
and any other requirements of Governmental Entities having jurisdiction related to such
Laws.
17.9.2.2 The Contractor shall comply with all rules, regulations, and ordinances of the
SCAQMD that apply to any Work performed pursuant to the Contract Documents. The
Contractor, Subcontractors, and Suppliers shall submit evidence to the Authority that the
governing air quality control criteria and requirements are being met.
17.9.2.3 The Contractor shall comply with the applicable requirements of the
SCAQMD governing solvents, including but not limited to the solvent portions of paints,
thinners, curing compounds, and liquid asphalt used on the Contract. Containers of paints,
thinner, curing compound, or liquid asphalt shall be labeled to indicate that the contents fully
comply with said requirements.
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17.9.2.4 The Contractor shall comply with all California Laws regarding pollution
controls in purchasing and leasing new motor vehicles with Contract funds.
17.9.2.5 The Contractor shall not burn any Goods that it disposes.
17.9.3 Environmental Protection Agency (EPA) Regulation
The Contractor shall comply with all applicable regulations (40 CFR Part 15) of the
Environmental Protection Agency (EPA). The Contractor shall not use any facility in the
performance of the Contract that is listed on the EPA List of Violating Facilities, unless and
until the EPA eliminates such name of such facility from such listing. The Contractor shall
promptly notify the Authority of the receipt of any communication from the EPA (or any
successor agency) indicating that a facility to be used by the Contractor is under
consideration for listing on the EPA List of Violating Facilities. The Contractor shall also
report violations to the Authority, to the FTA, and to the EPA Assistant Administrator for
Enforcement.
17.9.4 Energy Conservation
In addition to all other Contractual requirements, the Contractor shall comply with all
mandatory standards and policies relating to energy efficiency contained in the California
energy conservation plan issued in compliance with the Energy Policy and Conservation Act
(42 U.S.C. §6321 et. seq.).
18.0 INVOICING AND PAYMENT PROVISIONS 18.1 Design Payments The Authority shall compensate the Contractor for its costs incurred, which are allowable
under this Contract, to perform the Design Work, up to the amount of the Design Allowance.
The Contractor shall submit Invoices to the Authority and maintain auditable records and be
paid pursuant to Section 18.1.1 hereof.
18.1.1 Design Progress Payment Invoicing
(a) Invoices shall be prepared in a form acceptable to the Authority and shall
correlate with the related Monthly Progress Report. An acceptable Invoice shall be
accompanied by a certified statement, signed by an authorized officer of the Contractor, and
similar in form to the Certification for Request for Payment (Appendix 2), that the Invoice is
a true and correct statement of those Reimbursable Costs incurred by the Contractor and that
Subcontractors and Suppliers have been paid from the previous Progress Payments.
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(b) Upon receipt of the acceptable Invoice and Monthly Progress Report, the
Authority shall make payment to the Contractor within thirty (30) days from the date of
receipt of an acceptable Invoice. If the Authority determines that an Invoice does not comply
with the above requirements, the Contractor shall be notified of any defects.
(c) The Authority reserves the right to withhold payments in the event of material
non-compliance with the Contract Documents.
18.1.2 Design Fee Payment Invoicing
The Contractor shall submit a separate Invoice for the Design Fee. The Authority, based on
specific percentages of the Work, will make payments to the Contractor for the Design Fee.
Percentages will be determined for each pay period (month) by dividing the actual dollars
expended for Design Service costs for the month by the total budgeted dollars for the Design
Allowance. In the event of an Underrun in the Design Allowance, the balance of the Design
Fee will be paid in the final pay period (month).
18.2 Professional Services Payments The Authority shall compensate the Contractor for its costs incurred, which are allowable
under this Contract, to perform the Professional Services Work, up to the amount of the
Professional Services Allowance. The Contractor shall submit Invoices to the Authority and
maintain auditable records and be paid pursuant to Section 18.2.1 hereof.
18.2.1 Professional Services Progress Payment Invoicing
(a) Invoices shall be prepared in a form acceptable to the Authority and shall
correlate with the related Monthly Progress Report. An acceptable Invoice shall be
accompanied by a certified statement, signed by an authorized officer of the Contractor, and
similar in form to the Certification for Request for Payment (Appendix 2A), that the Invoice
is a true and correct statement of those Reimbursable Costs incurred by the Contractor and
that Subcontractors and Suppliers have been paid from the previous Progress Payments.
(b) The Authority shall make payment to the Contractor within thirty (30) days
from the date of receipt of an acceptable Invoice. If the Authority determines that an Invoice
does not comply with the above requirements, the Contractor shall be notified of any defects.
(c) The Authority reserves the right to withhold payments in the event of material
non-compliance with the Contract Documents.
18.2.2 Professional Services Fee Payment Invoicing
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The Contractor shall submit the Invoice for the Professional Services Fee along with the
Invoice for the Professional Services. The Authority, based on specific percentages of the
Work, will make payments to the Contractor for the Professional Services Fee. Percentages
will be determined for each pay period (month) by dividing the actual dollars expended for
Professional Services Labor costs for the month by the total budgeted dollars for the
Professional Services Allowance. In the event of an Underrun in the Professional Services
Allowance, the balance of the Professional Services Fee will be paid in the final pay period
(month).
18.3 Insurance Payments The Authority shall compensate the Contractor for the costs of insurance obtained by the
Contractor to meet the requirements of Section 22.2 of this Design-Build Contract. The total
compensation for insurance shall not exceed the sum of (a) the amount of the Contractor’s
insurance cost proposal submitted in response to the RFP (see Appendix 10), which shall be
treated as a Lump Sum Fixed Price for the insurance coverages associated with the Design
Services phase of the Project plus (b) the cost of insurance coverages for the Construction
phase of the Project (excluding Professional Liability), which will be negotiated by the
Authority and the Contractor under Section 8.8 and which must cover the Project from the
issuance of the first NTP for Construction. The Contractor shall submit Invoices to the
Authority and be paid pursuant to Section 18.3.1 hereof.
18.3.1 Insurance Payment Invoicing
(a) Invoices for insurance shall be prepared in a form acceptable to the Authority and
shall be submitted by the Contractor as follows: (1) for the insurance coverages required for
the Design Work, within thirty (30) days after the NTP for the Design; and (2) for the
insurance coverages required for the Construction Work, within thirty (30) days after the
issuance of the first NTP for the Construction Work. The negotiated premiums for the
Construction phase of the Project will be paid in five (5) installments with the first payment
to be made within thirty (30) days after receipt of the invoice referenced in clause (2) above,
and subsequent payments to be made in four (4) equal installments annually. An acceptable
invoice shall be accompanied by a certified statement, signed by an authorized officer of the
Contractor, that the invoice is fully consistent with the Contractor’s insurance cost proposal
submitted in response to the RFP.
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(b) The Authority shall make payment to the Contractor within thirty (30) days from
the date of receipt of an acceptable Invoice. If the Authority determines that an Invoice does
not comply with the above requirements, the Contractor shall be notified of any defects.
(c) The Authority reserves the right to withhold payments in the event of material
non-compliance with the Contract Documents.
18.4 Construction Progress Payments (Refer to Section 01310 of General Requirements)
18.4.1 Schedule of Values
(Refer to Section 01310 of Scope of Work and General Requirements)
The Contractor shall develop and submit a Schedule of Values based on the LSFP to the
Authority within 30 days after the commencement date stated in the NTP for each
construction package. The Schedule of Values is subject to review and acceptance by the
Authority.
18.4.2 Construction Costs
Payment to the Contractor for Construction Work will be made by the Authority on the basis
of Progress Payments relating to the completion of specific elements of the Scope of Work,
in accordance with the Schedule of Values agreed upon by the Authority and the Contractor.
18.4.3 Construction Fee
Payments to the Contractor of the Construction Fee will be made by the Authority based on
the completion of specific percentages of the Work, in accordance with Section 01310
(Critical Path Method Schedule and Cost/Schedule Integration System) of the General
Requirements. In the event the LSFP or sum of all LSFP packages is less than the
Construction Allowance, the balance of the Construction Fee will be paid in the Final
Payment.
18.5 Invoicing Instructions The Contractor’s Invoice shall include, at a minimum, the following:
(a) Reference to the Authority Contract Number, as well as the Authority
Project, to which the Invoice applies.
(b) The Contractor’s Invoice Number, Invoice Date, as well as the contract
Payment number the invoice represents; for example, Contractor’s submittal of its first
invoice is payment number 1, its second invoice submittal is payment number 2, and so on.
Any Contractor re-submittal/revision to a submitted invoice shall have a letter suffix (a, b, c,
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etc.) added to the payment number, signifying the invoice revision; for example, Contractor’s
first re-submittal of its first invoice shall be designated as payment number “1a”.
(c) The itemized and total amount being invoiced (in U.S. Dollars), less the
amount of all contractual retention and deductions applicable for the invoiced amount (in
U.S. Dollars), and the resulting total net payment due.
(d) The time period during which the Work was performed and for which the
invoice is submitted.
(e) Reference to the Contractor’s Taxpayer ID Number.
18.6 Application for Construction Progress Payment 18.6.1 The Contractor’s Application for Construction Progress Payment (hereinafter
“Application”) shall contain:
(a) The Contractor’s ORIGINAL Invoice and two (2) COPIES, submitted in
accordance with the provisions set forth in Section 18.6.2;
(b) A description of the Work completed;
(c) Conditional and unconditional waivers executed by the Subcontractors as
described in the Section 18.13 herein;
(d) Release of Stop Notice from Subcontractors;
(e) Any other documentation the Authority requires to process the Progress
Payment;
(f) The Contractor’s signature and certification that the Work has been performed
in accordance with the Contract Documents, and;
(g) Signature of the Authority’s Authorized Representative acknowledging that
the Work described in the Application has been done in accordance with the Contract
Documents.
18.6.2 The Contractor’s Applications for Progress Payment (i.e., Invoices) shall be
submitted in and delivered or mailed to the Authority as follows:
1. One (1) ORIGINAL and two (2) COPIES to:
Exposition Metro Line Construction Authority
Attn: Richard D. Thorpe
One Gateway Plaza
Exposition Metro Line Construction Authority Contract No.1-06
Mid-City/Exposition Light Rail Transit Project March 17, 2006 LRT Design-Build 64 Conformed Design-Build Contract
Mail Stop: 99-17-5
Los Angeles, CA 90012
REF: Invoice No. [Contractor’s Invoice Number]
Project: Mid-City/Exposition Light Rail Transit Project
Contract No.: 1-06
2. One (1) COPY to:
Exposition Metro Line Construction Authority
Attn: Contract Administrator
One Gateway Plaza
Mail Stop: 99-17-5
Los Angeles, CA 90012
REF: Invoice No. [Contractor’s Invoice Number]
Project: Mid-City/Exposition Light Rail Transit Project
Contract No.1-06:
18.7 Terms of Payment 18.7.1 The Authority will make Construction Progress Payments within thirty (30) Days after receipt of an undisputed and properly submitted Application. If the Authority fails to
make any approved Progress Payment within such time, it shall pay interest to the Contractor
equivalent to the legal rate set forth in subdivision (a) of §685.010 of the California Code of
Civil Procedure. Upon receipt of an Application, the Authority shall:
(a) Review the Application to determine if it is complete and meets contractual
requirements.
(b) Return any Application that is not complete or does not meet contractual
requirements as soon as practicable, but not later than seven (7) Days after receipt by the
Authority. The Authority shall set forth in writing the reason(s) why the Application does not
meet contractual requirements.
18.7.2 The number of days available to the Authority to make a Progress Payment without
incurring interest shall be reduced by the number of days by which it exceeds the seven (7)
day return requirement set forth above.
18.7.3 No Progress Payments shall be made for Work not performed in accordance with the
Contract Documents.
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18.7.4 Except for Final Payment, an Application shall not be submitted unless the value of
the Work is greater than five thousand U.S. Dollars ($5,000).
18.8 Payment for Goods Not Incorporated into the Work The Authority, at its discretion, may authorize payment for Goods not yet incorporated into
the Work, subject to the following conditions:
(a) Goods shall be delivered to the Worksite or delivered to the Contractor and
promptly placed in appropriate storage within Los Angeles County or other location, as
approved by the Authority.
(b) Prior to inclusion of such Goods in any Application, the Contractor shall
submit certified invoices for such Goods to the Authority. The Authority may allow only
such portion of the amount represented by these invoices that, in its opinion, does not exceed
the reasonable cost of such Goods.
(c) If Goods are stored outside Los Angeles County, the Contractor shall pay all
personal and property taxes that are levied against the Authority by any state or subdivision
thereof on account of the storage of such Goods.
(d) The Authority will permit the Contractor to contest, at its own expense, the
validity of any such tax levied against the Authority in appropriate legal proceedings.
(e) In the event of any judgment or decree by the court against the Contractor
and/or the Authority, the Contractor shall pay it together with any penalty and any other costs
relating thereto. All such Goods so accepted shall become the property of the Authority.
(f) Payments made for Goods included in an Application that are subsequently
lost, damaged, or unsatisfactory shall be deducted from succeeding Applications.
18.9 Title Title to portions of the Work for which Progress Payments or other payments are made shall
pass to the Authority as set forth in Design-Build Contract Section 24.1, entitled Passage of
Title.
18.10 Retention on Construction Progress Payments The Authority shall retain from each Construction Progress Payment ten percent (10%) of the
Construction Progress Payment as part of the security for the fulfillment of the Contract
Documents and completion of the Work by the Contractor. However, after fifty percent
(50%) of the Work has been completed, the Authority may elect to not make further
retentions from the remaining Progress Payments if it determines, in its sole discretion, that
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progress on the Work is satisfactory, except that the amount of the retention withheld shall
not at any time thereafter be less than five percent (5%) of the LSFP, as adjusted by Change
Orders. However, if the Authority determines that the Work or progress of the Work is
unsatisfactory, Authority may reinstate, continue or increase retentions in amounts necessary
to increase the total retention to an amount not to exceed ten percent (10%) of the LSFP.
Amounts retained by the Authority pursuant to this Section 18.10 shall be deposited in an
interest bearing account.
18.10.1 Substitution of Securities
18.10.1.1 To ensure performance under the Contract, the Contractor may, at its sole expense,
substitute securities equivalent to the retention withheld by the Authority. Such securities
shall be deposited with an escrow agent approved by the Authority, who shall then pay such
retention to the Contractor. Upon satisfactory completion of the Work, the securities shall be
returned to the Contractor.
18.10.1.2 The Contractor shall be the beneficial owner of any security substituted for monies
withheld and shall receive any accrued interest thereon. Securities eligible for investment
shall include those listed in Government Code §16430, bank or savings and loan certificates
of deposit, interest bearing demand deposit accounts, irrevocable standby letters of credit, or
any other security mutually agreed to by the Contractor and the Authority.
18.10.1.3 The Authority may request that any security still in escrow be revalued from time
to time, but not more often than monthly. Such revaluation will be made by an entity
designated by the Authority and approved by the Contractor. If such revaluation results in a
determination that such securities have a market value less than the amount of retention for
which they were substituted, then notwithstanding anything to the contrary contained herein,
the amount of the retention required under this Section shall be increased by such difference
in market value. Such increased retention will be withheld from the next Progress Payment
due the Contractor hereunder.
18.10.1.4 No substitution of securities (for retention withheld by the Authority) shall be
accepted until the escrow agreement, securities, and any other documents related to the
substitution are reviewed and accepted in writing by the Authority.
18.10.2 Payment of Escrow Account
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In lieu of substitution of securities as provided above, the Contractor may request and the
Authority shall make payment of retention earned directly to the escrow agent at the expense
of the Contractor. At the expense of the Contractor, the Contractor may direct the investment
of the payments into securities consistent with Government Code §16430 and the Contractor
shall receive the interest earned on the investments upon the same terms provided for in this
Section for securities deposited by the Contractor. Upon satisfactory completion of the Work,
the Contractor shall receive from the escrow agent all securities, interest and payments
received by the escrow agent from the Authority, pursuant to the terms of this Section. The
Contractor shall pay to each Subcontractor, no later than twenty (20) Days after receipt of the
payment, the respective amount of interest earned, net of costs attributed to retention
withheld from each Subcontractor, on the amount of retention withheld to ensure the
performance of the Subcontractor. The escrow agreement used by the escrow agent pursuant
to this Section shall be substantially similar to the form set forth in §22300 of the California
Public Contract Code.
18.10.3 Release of Retention
The Authority shall release the Retention to the Contractor 60 days following Final
Acceptance of the Work or 30 days following receipt of an invoice from the Contractor,
whichever is later, subject to any deductions from payments allowed under the Contract and
to the Authority’s right to withhold Retention after such date as provided in Public Contract
Code Section 7107.
18.11 Additional Deductions and Withholding 18.11.1 In addition to the Retention described above, the Authority may deduct from each
Construction Progress Payment any or all of the following:
(a) Liquidated Damages that have accrued as of the date of the Application for
Progress Payment;
(b) Deductions from previous Progress Payments already paid, due to Authority’s
discovery of Deficiencies in the Work;
(c) Sums expended by the Authority in performing any of the Contractor’s
obligations under the Contract that the Contractor has failed to perform, and;
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(d) Other sums that the Authority is entitled to recover from the Contractor under
the terms of the Contract, including without limitation insurance deductibles and
assessments.
18.11.2 The failure of the Authority to deduct any of the above-identified sums from a
Progress Payment shall not constitute a waiver of Authority’s right to such sums or to deduct
them from a subsequent Progress Payment.
18.11.3 In addition to the retention and deductions described above, if the Authority
determines that the Contractor has failed to comply with the DBE Program, the Authority
may withhold amounts from any invoice for Design, Professional Services, or Construction,
in the percentages specified and in accordance with the provisions of the DBE Contract
Compliance Manual. Any amounts so withheld from the Contractor shall be repaid by the
Authority when the Contractor demonstrates to the satisfaction of the Authority that it has
corrected the non-compliance. In the absence of such a demonstration, amounts withheld
shall be retained by the Authority.
18.12 Stop Notice 18.12.1 General
18.12.1.1 In addition to other amounts properly withheld under this Design-Build Contract,
the Authority shall retain from Construction Progress Payments otherwise due the Contractor
an amount equal to one hundred twenty-five percent (125%) of the amount claimed under
any Stop Notice under Civil Code §3179 et. seq. or other lien filed against the Contractor for
labor, materials, supplies, equipment, and any other thing of value claimed to have been
furnished to and/or incorporated into the Work; or for any other alleged contribution thereto.
18.12.1.2 In addition, and in accordance with Civil Code §3186, the Authority may also
satisfy its duty to withhold funds for stop notices by refusing to release funds held in escrow
pursuant to Public Contract Code §22300. However, the Authority may release such funds
upon receipt of a “Release of Stop Notice” executed by a stop notice claimant, a stop notice
bond, an order of a court of competent jurisdiction, or other evidence satisfactory to the
Authority that the Contractor has resolved such claim by settlement.
18.13 Payment to Subcontractors 18.13.1 Requirements
18.13.1.1 Pursuant to 49 Code of Federal Regulations (CFR) Part 26 and the California
Business and Professions Code §7108.5, the Contractor shall pay each Subcontractor under
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this Contract for satisfactory performance of its Work no later than ten (10) Days after
receipt of each Construction Progress Payment received from the Authority. The Contractor
shall pay to each Subcontractor all amounts it has retained from payments under the
Subcontract within ten (10) Days after the Subcontractor’s work is satisfactorily completed.
Such payments to Subcontractors shall be made pursuant to Sections 18.1, 18.2, 18.3 and
18.4.
18.13.2 Waiver and Release Forms
18.13.2.1 As a condition to Authority’s release of any Progress Payment, Contractor shall
furnish the Authority with:
(a) A duly executed “Conditional Waiver and Release” form from each
Subcontractor listed in the current Application, and;
(b) duly executed “Unconditional Waiver and Release” form from each
Subcontractor listed in the preceding Application.
18.13.2.2 The unconditional waiver(s) must state the amount that the Subcontractor has been
paid with respect to the Progress Payment most recently made to the Contractor. The
required waiver and release forms shall be those set forth in California Civil Code §3262,
clarified to confirm that they are not intended to release claims beyond the amount of the
Progress Payment made and do not cover unprocessed or unresolved claims. In the event the
Contractor fails to supply any of the foregoing waiver and release forms, the Authority may
retain the amount attributable to any such Subcontractor until the appropriate form is
received.
18.14 Payment of Taxes 18.14.1 The LSFP includes compensation for all taxes, duties, permit and other fees and/or
royalties imposed with respect to the Work, and any equipment, materials, labor or services
included therein.
18.14.2 The Contractor shall pay all federal, state, and local taxes, and duties applicable to
and assessable against any Work when due, including but not limited to retail sales and use,
transportation, export, import, business, and special taxes. Contractor shall maintain
auditable records, subject to Authority reviews, confirming that tax payments are current at
all times.
18.15 Final Payment 18.15.1 Application for Final Payment
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18.15.1.1 The Contractor shall prepare and submit an Application for Final Payment to the
Authority, including:
(a) The proposed total amount due the Contractor, segregated by items on the
Schedule of Values, Amendments, Change Orders, and other bases for payment;
(b) Deductions for prior Progress Payments;
(c) Amounts retained;
(d) An unconditional waiver and release for each Subcontractor;
(e) List of Claims the Contractor intends to file at that time or a statement that no
Claims will be filed;
(f) List of pending unsettled claims, stating claimed amounts;
(g) Written evidence of final inspection and acceptance by each Third Party
Agencies and Utilities of work performed by Contractor on facilities of Third Party Agency
and Utility arising out of performance of the Work;
(h) Written acknowledgement from each Third Party Agency and Utility that it
has received as-built drawings in a form acceptable to it describing the work performed by
the Contractor on the Third Party Agency and Utility’s facilities, and;
18.15.1.2 The Application for Final Payment shall include complete and legally effective
releases or waivers of liens and stop notices satisfactory to the Authority, arising out of or
filed in connection with the Work. Prior Progress Payments shall be subject to correction in
Authority’s review of the Application for Final Payment. Claims filed with the Application
for Final Payment must be otherwise timely under the Contract Documents and applicable
Law.
18.15.1.3 The Application for Final Payment shall include evidence that any non-compliance
with the DBE Program has been remedied to the satisfaction of the Authority. In the absence
of such evidence, any amounts withheld from prior invoices because of such non-compliance
shall be retained by the Authority and not paid to the Contractor.
18.15.1.4 Within a reasonable time, the Authority will review the Contractor’s Application
for Final Payment, and will forward changes or corrections to the Contractor. Within ten (10)
Days after receipt of recommended changes from the Authority, the Contractor will make the
changes, or list Claims that will be filed as a result of the changes, and shall submit the
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revised Application for Final Payment. Upon Acceptance by the Authority, the revised
Application for Final Payment will become the approved Application for Final Payment.
18.15.2 Final Payment
18.15.2.1 The Contractor’s Application for Final Payment (i.e., Final Invoice) shall be
marked FINAL and submitted to the Authority in accordance with this Section 18.15.
18.15.2.2 After Final Acceptance of the Work, Final Payment will be made as follows:
(a) If no Claims have been filed with the initial or any revised Application for
Final Payment, and no claims remain unsettled within thirty (30) Days after
Final Acceptance of the Work by the Authority, and agreements are reached on all issues
regarding the Application for Final Payment, the Authority, in exchange for an executed
release, satisfactory in form and substance to the Authority, will pay the entire sum found
due on the approved Application for Final Payment, including the amount, if any, allowed on
settled Claims.
(b) The release from the Contractor shall be from any and all Claims arising
under the Contract, except for Claims that with the concurrence of Authority are specifically
reserved, and shall release and waive all unreserved claims against the Authority and its
officers, directors, employees and Authorized Representatives. The release shall be
accompanied by a certification by the Contractor that:
1) It has resolved all Subcontractor, Supplier and other claims that are related to
the settled claims included in the Final Payment;
2) It has no reason to believe that any party has a valid Claim against the
Contractor or the Authority which has not been communicated in writing by the Contractor to
the Authority as of the date of the Certificate;
3) All warranties are in full force and effect, and;
4) The releases and the warranties shall survive final payment.
19.0 CHANGE ORDERS This Section 19 sets forth the requirements for obtaining all Change Orders under the
Contract Documents. The Authority is subject to constraints, which have resulted in strict
limitations on its ability to increase the LSFP or extend any Completion Deadline(s). The
LSFP constitutes full compensation for performance of all of the Work, subject only to those
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exceptions specified in this Section 19 or elsewhere specified in the Contract Documents.
The Contractor hereby waives the right to make any claim for a time extension or for any
monetary compensation in addition to the LSFP and other compensation specified in the
Contract for any reason whatever, except as specifically set forth in this Section 19. To the
extent that any other provision of this Contract expressly provides for issuance of a Change
Order with respect to any matter, such provision is hereby incorporated into this Section 19.
19.1 Circumstances Under Which Change Orders May Be Issued 19.1.1 Definition of and Requirements Relating to Change Orders
19.1.1.1 The term “Change Order” means a written amendment to the terms and
conditions of the Contract Documents issued in accordance with this Section 19. The
Authority may issue unilateral Change Orders as specified below in Section 19.2. The
Contractor may request Change Orders only pursuant to Section 19.3. A Change Order shall
not be effective for any purpose unless executed by the Authority, as specified herein.
Change Orders may be issued for the following purposes (or combination thereof):
(a) to modify the scope of the Work;
(b) to revise a Completion Deadline;
(c) to revise the LSFP or the Construction Price;
(d) to approve a material change in basic Project configuration; or
(e) to revise other terms and conditions of the Contract Documents.
Upon the Authority’s approval of the matters set forth in the Change Order form (whether it
is initiated by Authority or Contractor), Authority shall sign such Change Order form
indicating approval thereof. A Change Order may direct the Contractor to proceed with the
Work with the amount of any such adjustment to be determined in the future in accordance
with the terms of the Contract Documents.
19.1.1.2 The Authority may at any time issue a Directive Letter to the Contractor in the
event of any desired change in the Work or in the event of any dispute regarding the scope of
Contractor’s Work. The Directive Letter will describe the Work in question and will state
the basis for determining compensation, if any. The Contractor will proceed immediately
with the Work as directed, pending the execution of a formal Change Order (or, if the letter
states that the Work is within the original scope of the Work, the Contractor will proceed
with the Work as directed but shall have the right to submit the question of entitlement to a
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Change Order and the amount of allowable compensation and time to dispute resolution in
accordance with Section 20).
19.1.1.3 Before starting to work on any item that the Contractor considers to be outside
of the original scope of the Work, as a condition precedent to its right to receive additional
payment therefore or an extension of a Completion Deadline in connection with such Work,
the Contractor shall have received one of the following:
(a) Directive Letter from Authority stating that it is issued pursuant to
Section 19.1.1.2; or
(b) Change Order for such Work signed by Authority.
In the absence of such a Directive Letter or Change Order, the Contractor shall not be
entitled to payment for such extra Work.
19.1.1.4 The following changes in the Work require a Change Order even if they have
no net cost effect on the total Contract amount:
(a) Any material changes in basic Project configuration; and
(b) Any changes which would involve a modification of the Contract, the current
baseline schedule, the schedule of values, the contract milestones, and/or the
milestone descriptions.
19.1.2 Directive Letter as Condition Precedent to Claim that Authority-Directed
Change Has Occurred
A PCO (Proposed Change Order) Notice and subsequent Change Order request pursuant to
Section 19.3.2, or the receipt of a Directive Letter from the Authority shall be a condition
precedent to the Contractor’s right to make a Claim that an Authority-Directed Change has
occurred. The determination whether an Authority-Directed Change in fact occurred shall be
based on an analysis of the original Contract Document requirements and a determination
whether the Directive Letter in fact constituted a change in those requirements. However, a
Directive Letter is required in order for Contractor to have the right to receive compensation
for Work within its original scope (such as Remediation Work) for which additional
compensation for that Work is specifically allowed under this Section 19.
19.1.3 Right of Authority to Issue Change Orders
The Authority may, at any time and from time to time, without notice to any surety, authorize
and/or require changes in the Work within the general scope of the Contract Documents
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pursuant to a Change Order proposed by Contractor. All additions, deductions or changes to
the Work as directed by Change Orders shall be executed under the conditions of the original
Contract Documents.
19.2 Procedure for Issuance of Change Orders by Authority This Section 19.2 concerns Change Orders issued by Authority following a Notice of
Proposed Change and Change Orders unilaterally issued by Authority.
19.2.1 Notice of Proposed Change
19.2.1.1 If the Authority desires to issue an Authority-Directed Change or to evaluate
whether to initiate such a change, then the Authority may, at its discretion, issue a Notice of
Proposed Change. The Authority may at any time ask the Contractor to provide two
alternative Change Order Requests, one of which shall provide for a time extension and any
additional costs permitted hereunder and the other of which shall show an increase in the
LSFP.
19.2.1.2 Within five working days after the Contractor’s receipt of a Notice of
Proposed Change, the Authority and Contractor shall arrange an initial consultation (at no
charge to Authority) to define the proposed scope of work. Within ten days after completion
of the initial consultation, the Authority and Contractor shall consult concerning the
estimated cost and time impacts. The Contractor shall provide data regarding such matters as
requested by the Authority.
19.2.1.3 Within five working days after the initial consultation and provision of data as
described in Section 19.2.1.2, the Authority shall notify the Contractor whether the Authority
(a) wishes to issue a Change Order, (b) wishes to request the Contractor to prepare a Change
Order form as discussed at the meeting, (c) wishes to request the Contractor to modify the
work plan and prepare a Change Order form based on the modified plan, or (d) no longer
wishes to issue a Change Order.
19.2.1.4 If so requested, the Contractor shall, within 20 days after receipt of the
notification described in Section 19.2.1.3, prepare and submit to the Authority for review and
approval a Change Order form (in the format provided by the Authority) for the requested
change, complying with all applicable requirements of Section 19.4, incorporating and fully
reflecting all requests made by the Authority. If the Contractor determines that it cannot
meet the time allowed, the Contractor shall notify the Authority in writing of the Contractor’s
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proposed deadline for providing the Change Order form, which deadline shall be subject to
approval by the Authority. Development of the cost estimate and scope, including any
modifications thereto requested by the Authority, shall be made at the Contractor’s cost and
expense, except that costs of design and engineering work required for preparation of plans
or exhibits necessary to the Change Order form shall be included in the Change Order as
reimbursable items.
19.2.1.5 In the event that the parties agree that a change in the requirements relating to
the Work has occurred but disagree as to whether the change justifies additional
compensation or time or disagree as to the amount of any change to be made to the Contract
Price or extension of a Completion Deadline, the Authority may order the Contractor to
proceed with the performance of the Work in question notwithstanding such disagreement.
Such order may, at the Authority’s option, be in the form of: (a) an actual incurred cost
Change Order as provided in Section 19.7 or (b) a Directive Letter under Section 19.1.1.2.
19.2.2 Unilateral Change Orders for Authority-Directed Changes
The Authority may issue a Change Order for an Authority-Directed Change at any time,
regardless of whether it has issued a Notice of Proposed Change. Any such Change Order
shall state that the Contractor shall be entitled to compensation on an actual incurred cost
basis as provided in Section 19.7 for the additional Work required thereby.
19.3 Contractor-Initiated Change Orders 19.3.1 Eligible Changes
19.3.1.1 The Contractor may request a Change Order to extend a Completion Deadline
only for the following Excusable Delays changing the duration of a Critical Path:
(a) Authority-Caused Delays;
(b) Delays as specified in Section 17, to the extent provided therein;
(c) Certain delays relating to Utility Work or City Facility Work, as specified in
Section 17, to the extent provided therein; and
(d) Failure of a City, the Authority or Caltrans to provide responses for matters
for which a response is required within the time period specified in the Contract Data
Requirements List (“CDRL”), or if not specified in the CDRL, within the time period
specified in the Scope of Work.
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19.3.1.2 The Contractor may request a Change Order to increase the LSFP or the
Design Allowance (subject to certain limitations with respect to delay damages as specified
in Section 19.5.2, and subject to strict compliance with the requirements of this Section 19),
only for increased costs in the Work for the following Compensable Delays:
(a) For additional costs directly attributable to additional Work resulting from
Authority-Directed Changes;
(b) For additional costs directly attributable to Authority-Caused Delays;
(c) For additional costs directly attributable to the occurrence of Force Majeure
events, utility delays, and Differing Site Conditions, as specified in Section 17 to the extent
provided therein, which are not compensable by any insurance, required to be provided
hereunder, excluding delay damages except as permitted by Section 19.5.2;
(d) For additional costs directly attributable to additional Work resulting from
material changes to the basic Project configuration;
(e) For additional costs for which a total Contract amount increase is permitted
under Section 19.8;
The Authority’s Project Manager may issue clarifications, amplifications, and interpretations
of the Contract Documents without issuing a change order. If the Contractor believes the
clarifications, amplifications, and interpretations constitute an Authority-Directed Change,
the Contractor may request a change order in accordance with this Section 19.3.
19.3.1.3 Except for a delay in delivery by the Authority of Authority -furnished Goods
(which may constitute a Compensable Delay if it meets all other qualifying criteria), a
shortage of Goods shall not constitute a Compensable Delay.
19.3.1.4 If a delay arises out of more than one cause, to the extent that the Delay is
Excusable or Compensable, subject to all the requirements of this Section, the Contractor
will be entitled to one extension of Contract Time (and applicable compensation) for the
cumulative change to the Critical Path Schedule.
19.3.1.5 In the event that the Contractor requests a time extension, the Authority may
require the Contractor to provide two alternative Change Order requests, one of which shall
provide for a time extension and any additional costs permitted hereunder, and the other of
which shall show all Acceleration Costs associated with meeting the original completion
deadline, as well as any additional costs permitted hereunder.
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19.3.2 Conditions Precedent (Procedures for Contractor-Initiated Change Orders)
The following requirements constitute conditions precedent to Contractor’s entitlement to
request a Change Order in all circumstances except those involving a Notice of Proposed
Change. The Contractor agrees that the filing of Proposed Change Order (“PCO”) Notices
and subsequent filing of requests for Change Orders with the Authority pursuant to this
Section 19.3.2 are necessary in order to begin the administrative process for the resolution of
Contract disputes. The Contractor understands that it shall be forever barred from recovering
against the Authority as stated below if it fails to give notice of any act, or failure to act, by
the Authority or any of its representatives or the happening of any event, thing or occurrence
pursuant to a proper PCO Notice, and thereafter complies with the remaining requirements of
this Section 19.3.2.
19.3.2.1 The Contractor shall deliver to the Authority a PCO Notice stating that an
event or situation has occurred within the scope of Section 19.3.1.1 or 19.3.1.2 and shall state
which subsection thereof is applicable. The first notice shall be labeled “PCO No. 1” and
subsequent notices shall be numbered sequentially.
19.3.2.1.1 Each PCO Notice shall be delivered as promptly as possible after the
occurrence of such event or situation. In the event that any PCO Notice is delivered later
than ten days (unless an earlier deadline applies) after the Contractor first discovered (or
should have discovered in the exercise of reasonable prudence) the occurrence which is
described therein, the Contractor shall be deemed to have waived the right to collect any and
all costs incurred prior to the date of delivery of the written notice, and shall be deemed to
have waived the right to seek an extension of any Completion Deadline with respect to any
delay in any Critical Path which accrued prior to the date of delivery of the written notice.
Furthermore, in the event that any PCO Notice concerns any condition or material described
in Section 17.0 entitled Site Conditions, the Contractor shall be deemed to have waived the
right to collect any and all costs incurred in connection therewith to the extent that the
Authority is not afforded the opportunity to inspect such material or condition before it is
disturbed. The Contractor’s failure to provide a PCO Notice within 30 days after Contractor
first discovered (or should have discovered in the exercise of reasonable prudence) the
occurrence of a given event or situation shall preclude the Contractor from any relief, unless
the Contractor can show, based on a preponderance of the evidence, that (a) the Authority
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was not materially prejudiced by the lack of notice, or (b) the Authority had actual
knowledge, prior to the expiration of the 30-day period, of the event or situation and that the
Contractor believed it was entitled to a Change Order with respect thereto.
19.3.2.1.2 The PCO Notice shall: (a) state in detail the facts underlying the potential
claim, the reasons why the Contractor believes additional compensation or time will or may
be due and the date of occurrence, (b) state the name, title, and activity of each Authority
representative knowledgeable of the facts underlying the potential claim, (c) identify any
documents and the substance of any oral communication involved in the claimed change, (d)
state in detail the basis for a claim of necessary accelerated schedule performance, if
applicable, (e) state in detail the basis for a claim that the work is not required by the
Contract Documents, if applicable, (f) identify particular elements of Contract performance
for which additional compensation may be sought under this Section 19, (g) identify any
potential Critical Path impacts, and (h) provide an estimate of the time within which a
response to the notice is required to minimize cost, delay, or disruption of performance.
19.3.2.1.3 If the claim relates to a decision which the Contract Documents leave to the
discretion of a person or as to which the Contract Documents provided that such person’s
decision is final, the PCO Notice shall set out in detail all facts supporting the Contractor’s
contention that the decision constitutes a change in the Contract requirements or other
objection to the decision, including all facts supporting any contention that the decision was
capricious, arbitrary, unreasonable, not supported by the Contract Documents or not
supported by substantial evidence.
19.3.2.1.4 The written notification relating to Site Conditions described in Section 17
may also serve as a PCO Notice provided it meets the requirements for PCO Notices.
19.3.2.1.5 Within ten days after receipt of a PCO Notice, Authority may respond in writing
to Contractor to: (a) confirm that a change has occurred or (b) deny that a change has
occurred or (c) advise Contractor that the necessary information has not been submitted to
decide which of the above alternatives applies, and indicate the needed information and date
by which it is to be received for further review. Failure of Authority to respond shall not
affect Contractor’s obligation to provide a request for Change Order within the time periods
specified in Section 19.3.2.2.
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19.3.2.1.6 Any adjustments made to the Contract Documents shall not include increased
costs or time extensions for delay resulting from Contractor’s failure to provide requested
additional information under this Section 19.3.2.1.
19.3.2.2 The Contractor shall deliver all requests for Change Orders under this
Section 19.3 to Authority within 30 days after delivery of the PCO Notice, or such longer
period of time as may be necessary, provided that the Contractor shall have notified the
Authority in writing prior to expiration of such 30-day period how much additional time is
required. The Authority may require design and construction costs to be covered by separate
Change Order requests. If the Contractor fails to deliver a complete or incomplete request
for Change Order meeting the requirements of Section 19.3.2.3 within the appropriate time
period, the Contractor shall be required to provide a new PCO Notice before it may submit a
request for Change Order.
19.3.2.3 Each request for Change Order provided under Section 19.3.2.2 shall meet all
requirements set forth in Section 19.4; provided that if any such requirements cannot be met
due to the nature of the occurrence, the Contractor shall provide an incomplete Change Order
which fills in all information capable of being ascertained and which shall include a list of
those Change Order requirements which are not fulfilled together with an explanation
reasonably satisfactory to the Authority stating why such requirements cannot be met, shall
provide such information regarding projected impact on the Critical Path as is requested by
the Authority and in all events shall include sufficient detail to ascertain the basis for the
proposed Change Order and for any ascertainable amounts with respect thereto. The
Contractor shall furnish, when requested by the Authority, such further information and
details as may be required to determine the facts or contentions involved.
19.3.2.4 The Contractor shall give the Authority access to any and all of Contractor’s
books, records and other materials relating to the Work, and shall cause its Subcontractors to
do the same, so that the Authority can investigate the basis for such proposed request for
Change Order. The Contractor shall provide the Authority with a monthly update to each
outstanding incomplete request for Change Order, describing the status of all previously
unfulfilled requirements and stating any changes in projections previously delivered to the
Authority, time expenditures to date and time anticipated for completion of the activities for
which the time extension is claimed.
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19.3.2.5 The Authority may reject the Contractor’s claim at any point in the process.
Once a complete request for Change Order is provided, the Authority will respond within 21
days of delivery of the request. Although the Authority intends to review incomplete Change
Orders for the purposes described in Section 19.3.2.4, the Authority shall have no obligation
to review the back-up associated with any request for Change Order until a complete Change
Order is provided.
19.3.2.6 The Contractor acknowledges that, due to the limited availability of funds for
the Project, timely delivery of notification of such events and situations and requests for
Change Orders and updates thereto are of vital importance to the Authority. The Authority is
relying on the Contractor to evaluate promptly, upon the occurrence of any event or situation,
whether the event or situation will affect the Critical Path or affects costs and, if so, whether
the Contractor believes a time extension and/or LSFP increase is appropriate. If an event or
situation occurs which may affect the LSFP or the Critical Path, the Authority will evaluate
the situation and determine whether it wishes to make any changes to the definition of the
Project so as to bring it within the Authority’s funding and time restraints. The following
matters (among others) shall be considered in determining whether the Authority has been
prejudiced by the Contractor’s failure to provide notice in a timely fashion: the effect of the
delay on alternatives available to the Authority (that is, a comparison of alternatives which
are available at the time notice was actually given and alternatives which would have been
available had notice been given within ten days after occurrence of the event or when such
occurrence should have been discovered in the exercise of reasonable prudence) and the
impact of the delay on the Authority’s ability to obtain and review objective information
contemporaneously with the event.
19.3.2.7 Prior to submission by the Contractor of any request for a Change Order
which is based in whole or in part on any facts alleged in a submittal by any Subcontractor to
the Contractor, the Contractor shall have reviewed all such Subcontractor claims and
determined in good faith whether the claims are justified as to both entitlement and amount.
The Contractor’s request for a Change Order shall include only those items which the
Contractor has determined are so justified and which otherwise meet all requirements
hereunder for Contractor-initiated Change Orders. Each request for a Change Order
involving Subcontractor Work, and each update to an incomplete Change Order request
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involving such Work shall include a summary of the Contractor’s analysis of all
Subcontractor claims components and shall include a certification signed by the Contractor’s
Project Manager stating that the Contractor has reviewed and agrees with the Subcontractor’s
justification and has reviewed and verified the adequacy of any back-up documentation
included in the request. Any request for Change Order involving Subcontractor Work which
is not accompanied by such an analysis and certification shall be considered incomplete. In
making this certification, the Contractor shall be entitled to rely on a written certification
from the Subcontractor(s) that its claim is justified as to both entitlement and amount.
19.3.3 Submission of Request for Change Order
After satisfaction of all conditions precedent set forth above, the Contractor shall initiate each
request for a Change Order by submitting a Change Order form and supporting
documentation to the Authority for review. If the Contractor submits a request for Change
Order requesting an extension of any Completion Deadline as permitted by Section 19.3.1.1,
then the Contractor shall also provide an alternative Change Order including a Recovery
Schedule.
19.3.4 Performance of Disputed Work
In the event that the Authority refuses to issue a Change Order based on the Contractor’s
request, the Contractor shall nevertheless promptly perform all work as specified in an
appropriate Directive Letter, with the right to submit the issue of entitlement to a Change
Order to dispute resolution in accordance with Section 20.0. The Contractor shall maintain
and deliver to Authority, upon request, contemporaneous timesheets and materials records,
meeting the requirements of Section 19.7, for all work performed which Contractor believes
constitutes extra work (including non-construction work), until all disputes regarding
entitlement or cost of such work are resolved.
19.4 Contents of Change Orders 19.4.1 Form of Change Order
Each Change Order and request for Change Order shall be prepared using the appropriate
form provided by Authority, with any modifications necessary to meet the requirements of
Section 19.3.2.2, and shall meet all applicable requirements of this Section 19.
19.4.2 Scope of Work, Cost Estimate, Delay Analysis & Information Regarding Change
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19.4.2.1 The Contractor shall prepare a scope of work, cost estimate, delay analysis
and other information as required by this Section 19.4.2 for each Change Order, other than
Change Orders issued unilaterally by the Authority.
19.4.2.2 The scope of work shall describe in detail satisfactory to the Authority all
activities associated with the Change Order, including a description of additions, deletions
and modifications to the existing Contract requirements.
19.4.2.3 The cost estimate shall set out the estimated costs in such a way that a fair
evaluation can be made. It shall include a breakdown for labor, materials, equipment,
overhead (which includes all indirect costs) and profit, unless the Authority agrees otherwise.
The estimate shall include costs allowable under Section 19.5.2, if any. If the work is to be
performed by Subcontractors and if the work is sufficiently defined to obtain Subcontractor
quotes, the Contractor shall obtain quotes (with breakdowns showing cost of labor, materials,
equipment, overhead and profit) on the Subcontractor’s stationery and shall include such
quotes as back-up for the Contractor’s estimate. No mark-up shall be allowed in excess of
the amounts allowed under Section 19.7. The Contractor shall identify all conditions with
respect to prices or other aspects of the cost estimate, such as pricing contingent on firm
orders being made by a certain date or the occurrence or non-occurrence of an event.
19.4.2.4 If the Contractor claims that such event, situation or change affects the Critical
Path, it shall provide a delay analysis indicating all activities represented or affected by the
change, with activity numbers, durations, predecessor and successor activities, resources and
cost, with a narrative report, in form satisfactory to the Authority, which compares the
proposed new schedule to the current approved schedule.
19.4.2.5 The Contractor shall provide such other supporting documentation as may be
required by the Authority. The Contractor acknowledges and agrees that the Authority may
use the information contained in the Schedule of Values in evaluating the estimate.
19.4.3 Justification
For all requests for Change Orders initiated by the Contractor, the Change Order form shall
include an attachment containing a detailed narrative justification describing the
circumstances underlying the proposed change, identifying the specific provision(s) of
Section 19 which permit a Change Order to be issued, and describing the data and documents
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(including data and reports prepared pursuant to Section 19.7) which establish the necessity
and amount of such proposed change.
19.4.4 Contractor Representation
Each Change Order form shall contain a written representation by the Contractor that the
amount of time and/or compensation requested includes all known and anticipated impacts or
amounts, direct, indirect and consequential, which may be incurred as a result of the event or
matter giving rise to such proposed change.
19.5 Certain Limitations 19.5.1 Limitation on LSFP Increases
Any increase in the LSFP allowed pursuant to a Change Order shall exclude:
(a) costs caused by the breach of contract or fault or negligence, or act or failure
to act, of the Contractor, its employees, agents, officers or Subcontractors or any other
Persons for whom Contractor may be contractually or legally responsible;
(b) costs which could reasonably be avoided by the Contractor, including by
resequencing, reallocating or redeploying its forces to other portions of the Work or to other
activities unrelated to the Work (including in the equation any additional costs reasonably
incurred in connection with such reallocation or redeployment); and
(c) costs for any rejected Work which failed to meet the requirements of the
Contract Documents and any necessary remedial Work.
19.5.2 Limitation on Delay Damages
19.5.2.1 Delay damages shall be compensable hereunder only (a) for Change Orders
issued by the Authority as an alternative to allowing an extension of the Contract Time as
contemplated by Section 19.3.1.5, (b) for delays which qualify as Authority-Caused Delays
entitling the Contractor to an extension of a Completion Deadline and (c) for Force Majeure
events that result in a cumulative suspension of the Work for thirty or more consecutive days,
to the extent such suspension affects the Critical Path. Acceleration Costs shall be
compensable hereunder only with respect to Change Orders issued by the Authority as an
alternative to allowing an extension of the Contract Time as contemplated by
Section 19.3.1.5.
19.5.2.2 Delay damages shall be limited to direct costs directly attributable to the
delays described in Section 19.5.2.1 and mark-ups thereon in accordance with Section 19.7
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and extended overhead in accordance with Section 19.5.2.3. In addition, before the
Contractor may obtain any increase in the LSFP to compensate for extended overhead,
Acceleration Costs or other damages relating to delay, the Contractor shall have
demonstrated to the Authority’s satisfaction that (a) the change in the Work or other event or
situation which is the subject of the request for Change Order has caused or will result in an
identifiable and measurable disruption of the Work which impacted a Critical Path activity
(i.e. consumed all available Float and extended the Work required for Substantial
Completion, Punch List Completion or Final Acceptance (as applicable) beyond the
applicable Completion Deadline), (b) the delay or damage was not due to any breach of
contract or fault or negligence, or act or failure to act of the Contractor, its employees,
agents, officers or Subcontractors or any other Persons for whom Contractor may be
contractually or legally responsible, and could not reasonably have been avoided by the
Contractor, including by resequencing, reallocating or redeploying its forces to other portions
of the Work or other activities unrelated to the Work (subject to reimbursement for additional
costs reasonably incurred in connection with such reallocation or redeployment), (c) the
delay for which compensation is sought is not concurrent with any delay for which the
Contractor is responsible; and (d) the Contractor has suffered or will suffer actual costs due
to such delay, each of which costs shall be documented in a manner satisfactory to the
Authority.
19.5.2.3 In the event that the Contractor is entitled to extended overhead under this
Section 19.5.2, it will be applied at a negotiated rate per day.
19.5.3 Limitation on Time Extensions
Any extension of a Completion Deadline allowed hereunder shall exclude any delay to the
extent that it (a) did not impact the Critical Path, (b) was due to the fault or negligence, or act
or failure to act of the Contractor, its employees, agents, officers or Subcontractors or any
other Persons for whom the Contractor may be contractually or legally responsible, or (c)
could reasonably have been avoided by the Contractor, including by resequencing,
reallocating or redeploying its forces to other portions of the Work (provided that if the
request for extension involves an Authority-Caused Delay, the Authority shall have agreed, if
requested to do so, to reimburse the Contractor for any costs incurred, in resequencing,
reallocating or redeploying its forces). The Contractor shall be required to demonstrate to the
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Authority’s satisfaction that the change in the Work or other event or situation which is the
subject of the request for Change Order seeking a change in a Completion Deadline has
caused or will result in an identifiable and measurable disruption of the Work which has
impacted a Critical Path activity (i.e. consumed all available Float and extended the Work
required for Substantial Completion, Punch List Completion or Final Acceptance (as
applicable) beyond the applicable Completion Deadline).
19.5.4 Work Performed Without Direction
To the extent that Contractor undertakes any work that is outside of the original scope of the
Work, unless Contractor has received a Directive Letter to perform such work Contractor
shall be deemed to have performed such work voluntarily and shall not be entitled to a
Change Order in connection therewith. In addition, the Contractor may be required by the
Authority to remove or otherwise undo any such work, at its sole cost and expense.
19.6 Pricing of Change Orders The Authority and the Contractor (on its own behalf and on behalf of its Subcontractors)
shall endeavor to negotiate, in good faith, a reasonable cost for each Change Order other than
(a) unilateral Change Orders under Section 19.2.2; and (b) Change Orders for Remediation
Work under Section 19.10.4 which shall be based on competitive bids received from properly
licensed Subcontractors. In general, the price of a Change Order shall be a negotiated lump
sum price as provided below in this Section 19.6 or based on actual incurred cost records
pursuant to Section 19.7.
19.6.1 Contents
A negotiated Change Order shall specify scheduling requirements, time extensions, and all
costs of any nature arising out of the Work covered by the Change Order. Notwithstanding
the foregoing, the Contractor and the Authority may mutually agree to use a multiple-step
process involving issuance of a Change Order which includes an estimated construction cost
and which provides for a revised Change Order to be issued after a certain design level has
been reached, thus allowing a refinement and further definition of the estimated construction
cost.
19.6.2 Added Work
When the Change Order adds Work to Contractor’s scope, the increase in the LSFP shall be
negotiated based on estimated costs of labor, material and equipment, or shall be based on
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actual costs in accordance with Section 19.7. For negotiated Change Orders, mark-ups for
profit and overhead shall be consistent with Section 19.7, and risk associated with the Work
described in the Change Order shall be addressed through the assumptions contained therein
regarding the scope of such Work.
19.6.3 Deleted Work
When the Change Order deletes Work from the Contractor’s scope, the amount of the
reduction in the LSFP shall be based upon an estimate including a bill of material, a
breakdown of labor and equipment costs and overhead and profit that would have been
required for the deleted work. The amount of risk associated with such Work as of the date
of execution hereof by the Contractor shall be a factor in determining the mark-up for the
deduction. When a deduction is involved, documented cancellation and restocking charges
may be included in costs and subtracted from the price deduction.
19.6.4 Work Both Added and Deleted
When the Change Order includes both added and deleted Work, the Contractor shall prepare
a statement of the cost of labor, material and equipment for both added and deleted work. If
the cost of labor, material and equipment for the work added and deleted results in a:
(a) Net increase in cost, the change shall be treated as work added and the
provisions of Section 19.6.2 shall be used to determine mark-ups for overhead and profit.
Mark-ups for overhead and profit will be allowed only for the net increase in cost in order to
establish the amount to be added to the LSFP.
(b) Net decrease in cost, the change shall be treated as work deleted and the
provisions of Section 19.6.3 shall be used on the net decrease in cost in order to establish the
price deduct to the LSFP.
(c) Net change of zero, there will be no change in the LSFP.
19.7 Basis for Establishing Costs Associated with Change Orders 19.7.1 General
19.7.1.1 The amount payable for a Change Order is the sum of all eligible costs the
Authority determines are allowable, allocable and reasonable to perform the Work, and a
mark-up for overhead and reasonable profit as set forth herein.
19.7.1.2 Eligible costs shall only be those costs identified in Sections 19.7.1 through
19.7.6.
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19.7.2 Personnel Costs
The cost of personnel shall be separated into construction-related Work and non-
construction-related Work as described below.
19.7.2.1 Construction-related Work. The cost of labor for personnel performing
Construction Work, which is subject to prevailing wage requirements, whether provided by
the Contractor or a Subcontractor, will equal the sum of the following:
(a) Actual burdened wages (i.e. the base wage paid to the employee plus audited
employee fringe benefits); plus
(b) Actual direct costs paid to, or in behalf of, workers, including, subsistence and
travel allowances, health and welfare required by collective bargaining agreements, or other
employment contracts generally applicable to the classes of labor employed on the work.
No costs for supervision above the foreman level will be allowed.
19.7.2.2 Non-Construction-Related Work. The cost of labor for personnel performing
non-construction Work will equal the actual wages (i.e. the base wage paid to the employee
exclusive of any fringe benefits) of personnel for non-construction-related Work (that is,
design, Geotechnical investigations, surveying, permits, environmental, and similar aspects
of the Work), performed by employees of professional architect, engineer, or surveying firms
(or independent professional architects, engineers, or surveyors).
19.7.3 Material Costs
Material costs shall be the cost of all materials to be used in the performance of construction
Work including normal wastage allowance as per industry standards, subject to the
requirements set forth in this Section 19.7.3. The material prices shall be supported by valid
quotes/invoices from the Suppliers. The cost shall include sales taxes, freight and delivery
charges and any allowable discounts. The Authority reserves the right to approve materials
and sources of supply of materials to be furnished by the Contractor or Subcontractors, and
shall have the right to furnish such materials as it deems advisable. The price allowed for
materials shall be adjusted as follows:
(a) Affiliated Source of Supply. If the materials are obtained from a supply or
source owned in whole or in part by the Contractor or a Subcontractor, the cost of such
materials shall not exceed the lesser of the lowest price charged by the Contractor or such
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Subcontractor (as applicable) for similar materials furnished to other jobs or the current
wholesale price for such materials delivered to the Site.
(b) Excessive Cost. If the cost of such materials is excessive in the opinion of the
Authority, and the Contractor fails to document that such cost accurately reflects the price
actually paid by the Contractor, then the cost of such materials shall be deemed to be the
lowest current wholesale price at which such materials were available, in the quantities
needed and delivered to the Site.
(c) Evidence of Cost. If the Contractor or any Subcontractor (as applicable) does
not furnish satisfactory evidence of the cost of such materials from the actual supplier thereof
within 60 days after the date of delivery of the material, the Authority reserves the right to
establish the cost of such materials at the lowest current wholesale prices at which such
materials were available, in the quantities needed and delivered to the Site
19.7.4 Equipment
19.7.4.1 Basis of Payment. The Contractor will be paid for the use of the Contractor or
Subcontractor-owned or leased equipment, and for equipment rented by the Contractor or
any Subcontractor for actual use in construction of the Project. The hourly rates derived from
the publication specified in Section 19.7.4.2 shall be computed from equipment costs
currently in effect. The rates derived do not include costs for operating personnel.
19.7.4.2 Contractor-Owned or Leased Equipment. Payment for the use and operation
of equipment owned or leased by the Contractor or Subcontractors shall be made for all
construction and automotive equipment (except passenger carrying vehicles or pickup trucks
of less than 1-ton capacity, for which no payment will be made) required in the performance
of the changed Work. Such charges shall not include charges for any item of equipment or
tool with a new cost of $500.00 or less each, except that no cost will be allowed for computer
equipment or surveying equipment regardless of their new cost. The use and operation rates
shall be as set forth in the latest edition of the Rental Rate Blue Book for Construction
Equipment (Blue Book), published by Dataquest, Inc., San Jose, CA, which is in effect at the
time of commencement of the changed Work. Those rates shall be applied as follows:
(a) Use of the equipment shall be computed and charged as follows: The monthly
rental base rate for the equipment shall be multiplied by the shift rate adjustment factor and
the resulting product divided by 176 hours/month to yield the hourly use rate:
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Hourly Use Rate = (Monthly Rental Rate) x (Shift Adjustment Factor) 176 hours/month
(b) The hourly use rate for the equipment shall be multiplied by the actual number
of hours the equipment is used in the conduct of the changed Work;
(c) The application of weekly, daily, or hourly rates as set forth in the Blue Book
shall be excluded;
(d) The application of regional adjustment factors shall be excluded;
(e) Normal working conditions shall be assumed unless otherwise approved by
the Authority;
(f) Use of the equipment for second or third shifts shall be at 50% of the first shift
rate established in Section 19.7.4.2(a);
(g) Unless otherwise agreed, the costs of fuel, lubricants, tires, other expendables,
repair parts, service, and maintenance shall be charged at the Estimated Operating Cost/Hr.
set forth in the Blue Book;
(h) Operators will be paid for as specified under Section 19.7.1.1;
(i) Transportation costs to and from the Site for equipment shipped in specifically
to perform changed Work, if approved in advance by the Authority, will be paid separately.
No payment for transportation costs will be made if the equipment brought to the Site for
changed Work is also used on other Contract Work items;
(j) Equipment standby time, if approved by the Authority, will be paid for at 40%
of the applicable rental rate and shall not include any operating costs;
(k) If a rate is not published in the Blue Book, the Contractor shall furnish
appropriate cost information to the Authority to allow calculation of an appropriate rate
following the principles established in the Blue Book; and
(l) All equipment rates as set forth above shall be established and submitted to
the Authority for approval in writing before commencing any changed Work;
19.7.4.3 Outside Rental Equipment. If the Contractor or Subcontractor owned or
leased equipment is not available and equipment is rented from an outside source, payment
will be made on the basis of actual invoiced cost, less any discount allowed by the renting
source. Use of outside rental equipment at rates higher than the applicable Blue Book rate, as
computed above, will not be allowed unless approved in writing in advance by Authority.
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19.7.4.4 Equipment Condition and Suitability. All equipment shall be in good working
condition and suitable for the purpose for which the equipment is to be used.
19.7.4.5 Equipment Classification. Unless otherwise specified, manufacturer’s ratings
and manufacturer-approved modifications shall be used to classify equipment for the
determination of applicable rental rates. Equipment that has no direct power unit shall be
powered by a unit of at least the minimum rating recommended by the manufacturer of that
equipment
19.7.4.6 Time to be Paid. The time to be paid for use of equipment on the Site shall be
the time the equipment is in operation on the Actual Incurred Change Order Work being
performed. The time shall include the reasonable time required to move the equipment to
location of the actual incurred cost Change Order Work and return it to the original location
or to another location requiring no more time than that required to return it to its original
location. Moving time will not be paid for if the equipment is also used at the Site other than
for Actual Incurred Change Order Work. Loading and transporting costs will be allowed, in
lieu of moving time, when the equipment is moved by means other than its own power. No
payment for loading and transporting will be made if the equipment is also used at the Site
other than for Actual Incurred Change Order Work. Time will be computed in half and full
hours. In computing the time for use of equipment, less than 30 minutes shall be considered
one-half hour.
19.7.5 Permit Fees
The Contractor will be reimbursed for the cost of any additional permit fees payable as the
result of the change in the Work. Back-up documentation supporting each cost item for this
category shall be provided by the Contractor and approved by the Authority prior to any
payment authorization being granted.
19.7.6 Contractor’s Overhead and Profit
19.7.6.1 Mark-ups for Incurred-Cost Changed Work
If the direct cost of the Work is based in whole or in part on the Contractor’s actual incurred-
cost, the mark-ups (for overhead and profit) the Authority will pay to the Contractor on such
direct costs shall be subject to determination by the Authority, based upon actual overhead
rates and a reasonable profit, not to exceed the markups set forth in Section 19.7.6.2 below.
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19.7.6.2 Mark-ups for forward-priced Changed Work
If prior to commencement of performance of Changed Work, the Contractor and the
Authority agree on the amount of the direct costs of such Work, then the mark-ups (for
overhead and profit) the Authority will pay to the Contractor on such direct costs are:
(a) 20% for construction personnel costs per Section 19.7.1.1;
(b) 140% for non-construction personnel costs (plus the negotiated fee as per
Section 7.2.2 and Section 9.3.2;
(c) 10% for material costs per Section 19.7.2;
(d) 10% for equipment costs per Section 19.7.4;
(e) 0% for permit fees per Section 19.7.5;and
(f) 5% for subcontracted Work.
19.7.6.3 Application of the mark-ups in Section 19.7.6.2 is subject to the following:
(a) The mark-ups represent the full and complete price adjustment for all
overhead, small tools (i.e., those costing $500 or less), consumables (items which are
consumed in the performance of the Work which are not a part of the finished product), and
other indirect costs of the added or changed Work, as well as for profit thereon. The
Contractor’s mark-up percentages shall be considered to include, among other costs,
incidental job burdens, field, jobsite, and general home office expenses of all types (including
timekeepers, bookkeepers, and other general office help), supervisory expenses of all types
(excluding only direct supervision of force account work), and all other overhead, general
condition, and indirect costs and expenses.
(b) The mark-ups will be paid to the Contractor only for Work it performs; in the
case of Work that is subcontracted, the mark-up for Subcontract administration will be
allowed to the Contractor (or, at Contractor’s option, to a Subcontractor) and all other mark-
ups will be allowed to the Subcontractor who actually performs the Work.
(c) In the case of subcontracted Work, only one mark-up shall be allowed,
notwithstanding the actual number of intervening Subcontractors. This mark-up shall fully
compensate the Contractor for overhead and profit with respect to subcontracted Work. The
mark-up for subcontracted work will not apply to Work that is self-performed by any Major
Subcontractor that holds an equity interest in the Contractor.
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(d) No mark-up will be paid to the Contractor for any materials furnished by the
Authority or for any equipment use costs.
(e) Where the Contractor’s or any Subcontractor’s portion of a change involves
credit items, or the proposed change is a net deductive change, the Contractor shall include
all of Contractor’s and Subcontractor’s overhead and profits in computing the value of the
credit.
19.8 Changes in Basic Project Configuration The basic Project configuration is the information regarding the nature of the Project to be
constructed. Except as authorized by a Change Order, the Contractor shall not make any
material change in basic Project configuration. The following list establishes the standard for
determining whether a material change in the basic Project configuration has occurred (i.e.,
any lesser change or other change not included on the list shall not be considered material).
Authority-directed changes will be covered by change order whether they are within the
parameters of a material change or not.
A material change in the basic Project configuration is one that causes one of the
following circumstances:
(a) A change in the length or shift in the end points of a station and/or any lateral
shift in either edge of a station and or change in the number of stations;
(b) A change in the terminus of the Project (either or both) longitudinally;
(c) A change in the number of at-grade crossings;
(d) A change in the number of signal box units and/or any change in the location
of signal box units;
(e) A change in the number of tracks (pairs of rail) from that shown on the basic
Project configuration drawings;
(f) A change in the number of crossovers and/or any change in the location of
crossovers that affect operations or changes ROW requirements;
(g) A change in the horizontal clearance between tracks;
(h) A change in passing siding locations;
(i) A change that requires the Authority to acquire additional property;
(j) A change that increases the scope of environmental mitigation;
(k) A change that precludes the creation of a quiet zone operation; or
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(l) A change in grade crossing structures.
Notwithstanding the fact that the Contract Documents generally obligate the Contractor to
undertake all Work necessary to complete the Project without changes in the LSFP, this
Section 19.8 provides for a change in the LSFP to be made in conjunction with material
Project configuration changes. If any material Project configuration change increases or
decreases the cost of performing the Work, then the Authority will issue a change order to
adjust the LSFP (or Design Allowance if applicable) accordingly. Such change order may
include delay damages, at the Authority’s discretion. Furthermore, if the Contractor
commences any construction Work affected by the change after the Contractor knows or
should have known of the change but prior to delivery of appropriate notice of the change to
the Authority under Section 19.3.3, the change order shall allow the Authority a credit for the
cost of any unnecessary Work performed and/or shall exclude any additional costs associated
with redoing the Work already performed. The Change Order shall also account for any
offsets from change orders previously issued. Notwithstanding the foregoing, material
changes covered by this Section 19.8 may be ordered without any change in total Contract
amount or extension of time, where such amount or time change is not justified.
In the event that the Authority approves a material Project configuration change that reduces
the Contractor’s costs, the change order shall note the amount of cost decrease available for
future offsets.
If a Value Engineering Change Proposal (“VECP”) results in a material change in basic
Project configuration, any cost savings from such Value Engineering Change Proposal shall
be shared in accordance with Section 21.
In general, the Contractor may implement non-material changes in the basic Project
configuration without a change order, unless the change involves a circumstance for which a
change order is specifically required hereunder. The Contractor acknowledges and agrees
that constraints set forth in the environmental approvals and the Contract Documents, as well
as the site conditions and the ROW limits, will impact the Contractor’s ability to make non-
material changes in the basic Project configuration.
19.9 Changes Outside of Scope If any change in the Work directed by the Authority significantly changes the character of the
Work, whether the alterations or changes included in such direction are in themselves
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significant changes to the character of the Work or by affecting other Work cause such other
Work to become significantly different in character, an adjustment, excluding anticipated
profit, will be made to the LSFP. The basis for the adjustment shall be agreed upon prior to
performance of such Work. If a basis cannot be agreed upon, then an adjustment will be
made either for or against the Contractor in such amount as Authority may determine to be
fair and equitable (including reasonable profit if appropriate), subject to any subsequent
dispute resolution (if applicable) under Section 20.0. The term “significant change” as used
in this Section 19.9 shall be construed to apply only to circumstances involving a direction to
perform Work, which is not related to the Project.
19.10 Change Order Records Contractor shall maintain its records in such a manner as to provide a clear distinction
between the direct costs of Work for which it is entitled (or for which it believes it is entitled)
to an increase in the LSFP, Design or Professional Services Allowance and the costs of other
operations. The Contractor shall contemporaneously collect, record in writing, segregate and
preserve (a) separate daily work reports as described in Section 19.10.1, together with all
other data necessary to determine the costs of all Work which is the subject of a Change
Order or a requested Change Order, but specifically excluding any lump sum priced Change
Orders which have been executed by Authority, and (b) all data necessary to show the actual
impact (if any) of the change on each Critical Path with respect to all Work which is the
subject of a Change Order or a proposed Change Order, if the impact on the Preliminary
Schedule, approved Baseline Schedule or approved Working Schedule, as appropriate, is in
dispute. Such data shall be provided to the Authority and its authorized representatives as
directed by Authority, on forms approved by the Authority. The cost of furnishing such
reports is included in the Contractor’s predetermined overhead and profit mark-ups.
19.10.1 Daily Work Reports and Data Collection
The Contractor shall furnish the Authority completed Daily Work Reports for each day’s
Work relating to Change Orders, which is to be paid for on an actual incurred cost basis.
Daily time and material Work reports shall be detailed as follows:
(a) Name, classification, date, daily hours, total hours, rate, and extension for
each worker (including both construction and non-construction personnel) for whom
reimbursement is requested.
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(b) Designation, dates, daily hours, total hours, rental rate, and extension for each
unit of machinery and equipment.
(c) Quantities of materials, prices, and extensions.
(d) Transportation of materials.
(e) For construction labor, the cost of property damage, liability, and worker’s
compensation insurance premiums, unemployment insurance contributions, bonds, and social
security tax.
The reports shall also state the total costs to date for the actual incurred cost Change Order
Work.
19.10.2 Supplier’s Invoices
Valid copies of Supplier’s invoices shall substantiate materials charges relating to Change
Order Work. Such invoices shall be submitted with the daily time and material Work
reports, or if not available, they shall be submitted as soon as practicable with subsequent
daily time and material Work reports. If Supplier’s invoices not be submitted within 60 days
after the date of delivery of the materials, the Authority shall have the right to establish the
cost of such materials at the lowest current wholesale prices at which such materials are
available, in the quantities concerned, delivered to the location of Work, less any discounts
available.
19.10.3 Execution of Reports
All Daily Work Reports shall be signed by the Contractor’s Project Manager, and his or her
approved designee.
19.10.4 Adjustment
The Authority will compare its records with the completed daily time and material Work
reports furnished by the Contractor and make any necessary adjustments. When these daily
time and material Work reports are agreed upon and signed by both parties, such reports shall
become the basis of payment for the Work performed, but shall not preclude subsequent
adjustment based on a later audit. The Contractor’s cost records pertaining to Work paid for
on a time and material basis shall be open, during all regular business hours, to inspection or
audit by representatives of the Authority during the life of the Contract and for a period of
not less than five years after the Final Acceptance Date, and such records shall be retained by
the Contractor for that period. Where payment for materials or labor is based on the cost
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thereof to any Person other than the Contractor, the Contractor shall make every reasonable
effort to insure that the cost records of each such other person will be open to inspection and
audit by representatives of the Authority on the same terms and conditions as the cost records
of the Contractor. Payment for such costs may be deleted if the records of such third parties
are not made available to the Authority’s representatives. If an audit is to be commenced
more than 60 days after the Final Acceptance Date, the Contractor will be given a reasonable
notice of the time when such audit is to begin.
19.11 Disputes If the Authority and the Contractor agree that a request to increase the LSFP or extend any
Completion Deadline by the Contractor has merit, but are unable to agree as to the amount of
such price increase or time extension, the Authority agrees to mark up the Change Order
request provided by the Contractor to reduce the amount of the price increase or time
extension as deemed appropriate by the Authority, as the case may be, and to execute and
deliver the marked-up Change Order to the Contractor, within a reasonable period after
receipt of a request by the Contractor to do so, and thereafter to make payment and grant a
time extension based on such marked-up Change Order. The failure of the Authority and
Contractor to agree to any Change Order under this Section 19 shall be a dispute to be
resolved in accordance with Section 20.0. The Contractor’s Claim and any award by the
DRB shall be limited to the incremental costs incurred by the Contractor with respect to the
disputed matter (crediting Authority for any corresponding reduction in Contractor’s other
costs) and shall in no event exceed the amounts allowed by Section 19.7 with respect thereto.
Any award by the DRB may also include interest on the amount awarded, as determined by
the DRB. If awarded, interest shall accrue at the rate of interest stated in Code of Civil
Procedure section 685.010(a) during the period between the date that each invoice for the
Work in question would have been payable had the Contractor’s request for Change Order
been promptly granted, and the date that payment is actually made.
19.12 No Release or Waiver 19.12.1 An extension of time granted shall not release the Contractor’s Surety from its
obligations. Work shall continue and be carried on in accordance with all the provisions of
the Contract Documents and the Contract Documents shall be and shall remain in full force
and effect during the continuance and until the completion and Final Acceptance of the
Project unless formally suspended or terminated by the Authority in accordance with the
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terms hereof. Permitting the Contractor to finish the Work or any part thereof after the
applicable Completion Deadline, or the making of payments to the Contractor after such
date, shall not constitute a waiver of any of the Authority’s rights under the Contract
Documents.
19.12.2 Neither the grant of an extension of time beyond the date fixed for the
completion of any part of the Work, nor the performance and acceptance of any part of the
Work or materials specified by the Contract Documents after the Completion Deadline, shall
be deemed to be a waiver of the Authority’s right to abrogate or terminate the Contract for
abandonment or failure to complete within the extended time specified or to impose and
deduct damages as may be provided.
19.12.3 No course of conduct or dealings between the parties or express or implied
acceptance of alterations or additions to the Work, and no claim that the Authority has been
unjustly enriched shall be the basis for any claim, request for additional compensation or
change in the Contract Time. Further, Contractor shall undertake, at its risk, work included
in any request, order or other authorization issued by a person in excess of that person’s
authority as provided herein, or included in any oral request. Contractor shall be deemed to
have performed such work as a volunteer and at its sole cost.
19.13 Insurance Proceeds The Contractor shall be responsible for processing all claims, and shall not be entitled to
receive a Change Order for any costs which it could have recovered from an insurer.
19.14 Additional Requirements 19.14.1 The Contractor and its Subcontractors shall comply with all applicable state
and federal procedures with respect to the costs claimed under Sections 19.7, 19.8, 19.9 and
19.10 consistent with the following:
(a) Generally Accepted Accounting Principles (GAAP);
(b) Office of Management and Budget (OMB) Circular A-87, Cost Principles for
State and Local Governments; and
(c) 49 CFR, Part 18, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments.
19.14.2 The Contractor and its Subcontractors shall establish and maintain an
accounting system and records that properly accumulate and segregate incurred costs by line
item for the Change Orders authorized by this Section 19.
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19.14.3 Any costs incurred in conjunction with this Section 19 for which Contractor
has received payment that are determined by subsequent audit to be unallowable under OMB
Circular A-87, or 49 CFR, Part 18, shall be promptly repaid to the Authority by the
Contractor.
20.0 DISPUTE RESOLUTION The provisions of this Section shall apply to all Disputes arising out of the Work, subject to
certain exclusions as provided herein, that cannot be resolved through informal discussions
between the Parties. The Parties may at any time mutually agree to submit a Dispute to
mediation or arbitration as an alternative to the procedures provided herein, subject to the
requirements of Public Contract Code sections 20104 et seq. All Disputes shall be resolved
strictly in accordance with the Contract Documents and applicable law.
20.1 Introduction A disputes review board (the “DRB”) will be established to assist in the resolution of
Disputes arising out of the conduct of the Work that are covered by this Section 20.0. This
Section describes the purpose, procedure, function and key features of the DRB. The form of
the DRB Agreement, which will formalize the creation of the DRB, is attached hereto as
Appendix 4.
20.1.1 Function and Scope of DRB
(a) The DRB shall be responsible for considering Disputes regarding technical
issues of Design, Engineering and Construction between the Authority and the Contractor
arising out of the conduct of the Work, in an effort to avoid construction delay and litigation.
The DRB shall fairly and impartially consider Disputes referred to it, and shall provide
written recommendations to the Authority and the Contractor, to assist in and facilitate the
timely and equitable resolution of such Disputes.
(b) Technical issues include acceleration, acceptance, coordination, delays and
disruption, differing site conditions, inspection, payment, change cost estimating and pricing,
plans and specifications, punchlist, sequence of work, access, assessments, materials,
warranties, and interpretation of the provisions of the Contract Documents that define the
scope of the Work.
(c) The Authority or the Contractor agree to first make a good faith effort to
amicably and fairly settle their differences and not to indiscriminately assign such Disputes
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to the DRB. The Authority and the Contractor are encouraged to resolve potential Disputes
without resorting to this DRB resolution procedure.
(d) Disputes relating to commercial contract terms and conditions are excluded
from the jurisdiction of the DRB. This includes, but is not limited to:
1) Disputes regarding compliance with applicable Law, Contract Termination
(for Convenience or Default), or Liability and Indemnification.
2) Any decision (including failure to provide any approval) by the Authority
that the Contract Documents provide is in the sole discretion of the
Authority.
3) The amounts of any liquidated or stipulated payments set forth in the
Contract Documents, such as Assessments for Special Circumstances and
the daily Liquidated Damage amount. A Dispute of technical issues that
may result in Assessment or Liquidated Damage may be submitted to the
DRB.
4) Issues regarding DBE participation.
20.2 Continuance of Work During Dispute At all times during the course of the dispute resolution process, the Contractor shall continue
with the Work as directed, in a diligent manner and without delay, or shall conform to the
Authority’s decision or order, and shall be governed by all applicable provisions of the
Contract Documents. Records of the Work shall be kept in sufficient detail to enable
payment in accordance with applicable provisions in the Contract Documents, if the
Contractor is determined to be entitled to payment.
20.3 Membership The DRB will consist of (a) one member selected by the Authority; (b) one member selected
by Contractor, each of whom shall meet the requirements set forth in the following
provisions of this Section 20.3; and (c) a third member selected by the first two members,
who meets the requirements set forth in this Section 20.3 as well as the qualifications for an
arbitrator under Public Contract Code sections 10240 et seq. and implementing regulations.
The third member shall act as chair for all DRB proceedings and activities.
20.3.1 Experience of Members
All DRB members shall be experienced in the type of work involved in the Project and
experienced in the interpretation of contract documents. The goal in selecting the third
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member is to complement the experience of the first two, thus furnishing technical expertise,
which will facilitate the DRB’s operations. Minimum DRB member qualifications are at
least fifteen years experience in engineering and construction on major transportation, rail
transit, or public works projects valued at $100 million or more. Experience in design-build
method of project delivery is highly desirable.
20.3.2 Avoidance of Appearance of Conflict
It is imperative that DRB members show no partiality to either the Contractor or the
Authority, or have any conflict of interest.
20.3.2.1 No member shall be an Affiliate or otherwise have a financial interest in the Project
or in the outcome of any Dispute decided hereunder, except for the right to receive payment
for serving on the DRB.
20.3.2.2 No member shall currently be, or within two years of the selection date have been,
an officer, director or employee of, or have had financial ties to: (a) the Contractor, any Joint
Venture Member, any Affiliate or any Subcontractor or any Affiliate of a Subcontractor,
(b) the Authority or any agency represented on the Authority Board, or (c) any firm under
contract to the Contractor, any Joint Venture Partner, any Affiliate, any Subcontractor or any
affiliate of a Subcontractor, the Authority or any agency represented on the Authority’s or
Metro’s governing board; provided that eligibility shall not be affected by past fee-based
consulting services on other projects which are disclosed to all Parties.
20.3.2.3 No member shall have had substantial prior involvement in the Project or
relationship with any Party or Affiliate of a nature which could compromise his or her ability
to impartially resolve Disputes.
20.3.2.4 No member shall accept employment with Authority, any agency represented on the
Authority’s or Metro’s governing board, Contractor, any Joint Venture Member, any
Affiliate, any Subcontractor or any affiliate of a Subcontractor during the term of the Project,
and for so long thereafter as any obligations remain outstanding under the Contract
Documents, except as a member of other DRBs.
20.3.2.5 No member shall discuss employment with Authority, any agency represented on
the Authority’s or Metro’s governing board, Contractor, any Joint Venture Member, any
Affiliate, any Subcontractor or any affiliate of a Subcontractor or any consultants working on
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the Project during the term of the Project and for so long thereafter as any obligations remain
outstanding under the Contract Documents.
20.3.3 Submission of Disclosure Statements
Before their appointments are final, the first two prospective members shall submit complete
disclosure statements for the approval of both the Authority and the Contractor. Each
statement shall include a resume of experience, together with a declaration describing all
past, present and anticipated or planned future relationships to the Project and with all Parties
involved in the Project or the Work. Including disclosure of past or current professional or
close personal relationships with the Contractor, Subcontractor, Joint Venture Member,
Affiliate of a Subcontractor, any Affiliate, the Authority or its consultants working on the
Project, or with any key member of any such entity. The third DRB member shall supply
such a statement to the first two DRB members and to the Authority and Contractor prior to
approval of his or her appointment.
20.3.4 Selection Process
Upon selection of the first two members, the Authority and the Contractor shall negotiate a
three-party working agreement with each member. Immediately after execution of the
working agreements, the first two members shall commence selection of the third member.
The first two members shall ensure that the third member meets all of the criteria listed
above. The third member shall be selected within four weeks after the first two members are
notified to proceed with the selection. In the event of an impasse in selection of the third
member, that member shall be selected by mutual agreement of the Authority and the
Contractor. In so doing, the Parties may, but are not required to, consider the nominees
offered by the first two members. If the Authority and Contractor cannot agree in the
selection of the third member, then each Party may submit a list of up to five candidates to a
court of competent jurisdiction for judicial resolution of the selection of the third member.
20.3.5 Execution of Agreement
The Authority, Contractor, and all three members of the DRB shall execute the DRB
Agreement attached as Appendix 4, within four weeks after the selection of the third
member.
20.3.6 Reconstitution of the DRB
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The Authority and the Contractor shall each have the right to require appointment of a new
DRB to resolve future Disputes, which right may be exercised at any time by delivery of
notice to such effect to the other Party and to the DRB. In such event, a new DRB
Agreement, in the same form as Appendix 4 attached hereto, shall be executed establishing a
new DRB, and except as otherwise mutually agreed by the Authority and Contractor, the
work to be performed by the DRB shall be limited to Disputes submitted to the DRB before
delivery of the notice requiring appointment of a new DRB.
20.4 Operation 20.4.1 No Ex Parte Communications
The Parties are expressly prohibited from seeking any DRB member’s advice or consultation
or discussing with any DRB member any aspect of an existing or potential Claim or Dispute,
without the concurrent participation of the other Party to the dispute, unless the Parties
otherwise agree in writing.
20.4.2 Consultants to the DRB
At the request of the DRB and upon agreement of the Parties, additional experts may be
engaged to assist the DRB to investigate and analyze Disputes and Claims. The duties of the
experts shall be to provide independent advice and professional opinions, and otherwise
assist the DRB on issues related to their areas of expertise. Experts to the DRB shall meet
the same conflict-of-interest restrictions and disclosure requirements as the individual DRB
members. The Authority and the Contractor shall be jointly responsible for the cost of the
expert services, as provided in the DRB Three Party Agreement.
20.5 Procedures 20.5.1 Impartiality of DRB
The DRB shall fairly and impartially consider Disputes referred to it, and shall provide
written recommendations to the Authority and Contractor, to assist in the resolution of
Disputes submitted to the DRB in accordance herewith.
20.5.2 Hearings
20.5.2.1 Normally the hearing will be conducted at or near the Worksite. However, any
location that would be more convenient and still provide all required facilities and access to
necessary documentation is satisfactory. Private sessions of the DRB may be held at any
convenient location.
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20.5.2.2 When a Dispute is submitted to the DRB, the DRB, with input from the Contractor
and the Authority, shall first decide when and where to conduct the hearing.
20.5.2.3 Written documentation and arguments from both Parties shall be sent to each DRB
member and to the other party of the Dispute for study at least 7 days prior to the
commencement of the hearing. Each document shall indicate on its face that it is a
confidential settlement document.
20.5.2.4 The third member of the DRB will act as chairperson of the hearing. It is desirable
to keep the hearings as informal as possible except that the DRB shall be guided by Roberts
Rules of Order and may select which particular rules to follow in conducting hearings. Each
member will keep its own notes, and a formal transcript is not prepared, except that in special
cases when agreed to by both Parties, the DRB may allow preparation of a transcript by a
court reporter. Audio or video recordings are not permitted.
20.5.2.5 The Authority and Contractor shall have representatives at all hearings. The
Contractor will first discuss the Dispute, followed by the Authority. Each Party will then be
allowed a rebuttal, and successive rebuttals may be allowed if necessary to ensure that all
aspects are fully covered. The DRB members may ask questions, request clarification, or ask
for additional data. The Authority and Contractor shall both be provided full and adequate
opportunity to present all of their evidence, documentation, and testimony regarding all
issues before the DRB. The DRB shall not be bound by the rules of evidence, except for
those pertaining to privilege. During the hearings, no DRB member shall express any
opinion concerning the merit of any facet of the case. Large or complex Disputes may require
additional hearings in order to consider and fully understand all the evidence presented by
both Parties.
20.5.3 Recommendations of DRB
After the hearings are concluded, the DRB shall meet to formulate its recommendations. All
DRB deliberations shall be conducted in private, with all individual views kept strictly
confidential. The recommendations shall be based on the pertinent provisions of the Contract
Documents, applicable Law, information presented at the hearing, and the facts and
circumstances involved in the Dispute. Any recommendation of the DRB must be supported
by at least two members. The DRB shall make every effort to reach a unanimous
recommendation, but if this proves impossible, the dissenting member may prepare a
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dissenting report. The DRB’s recommendations, together with an explanation of its
reasoning, shall be submitted as a written report to both Parties within two weeks of
completion of the hearings. This time may be extended by mutual agreement of all Parties in
exceptionally difficult cases. If requested by either Party, the DRB shall meet with the
Authority and Contractor to provide additional clarification of its recommendation.
20.5.3.1 Within four weeks after receiving the DRB’s recommendations, or such other
time specified by the DRB, the Authority and Contractor shall respond to each other and to
the DRB in writing, signifying either acceptance or rejection of the DRB’s recommendations.
The failure of either Party to respond within the specified period shall be deemed an
acceptance of the DRB’s recommendations. If the Authority and Contractor are able to
resolve their dispute, the Authority will promptly process any required Contract changes.
20.5.3.2 If a Party rejects the DRB’s recommendations and gives timely notice of such
rejection pursuant to Section 20.5.3.1, it shall have the following options:
(a) Within four weeks after receiving the recommendations, the Party may appeal
the recommendations to the DRB. If such an appeal is made, then the six-month period
described in Section 20.5.3.2(c) shall not begin until 30 days after the DRB’s ruling
regarding the appeal. The DRB’s recommendations regarding a particular Dispute may be
appealed to the DRB only once.
(b) If the amount in controversy is less than or equal to $1,000,000, and either
Party appeals the recommendations to the DRB, then the DRB’s decision on the appeal shall
be final and binding on the Parties, subject only to being vacated on any of the grounds set
forth in Code of Civil Procedure section 1286.2. If the amount in controversy is less than or
equal to $1,000,000 and neither Party appeals the recommendations to the DRB, then the
DRB’s initial recommendations shall be final and binding on the Parties, subject only to
being vacated on any of the grounds set forth in Code of Civil Procedure section 1286.2.
(c) If the amount in controversy is greater than $1,000,000, either party may
(whether or not it has filed an appeal with the DRB) submit the Dispute to judicial resolution
by filing a complaint in a court of competent jurisdiction within six months following
issuance of the DRB recommendations. In such event, the DRB recommendations shall be
non-binding and the Parties shall be entitled to a trial de novo.
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(d) If the Dispute has not been submitted to judicial resolution by the filing of a
complaint in a court of competent jurisdiction within the required six-month period, then the
recommendations made by the DRB shall be final and binding on the Parties.
(e) If the amount in controversy is greater than $1,000,000 and the
recommendations of the DRB would require the Authority to pay or incur costs or expenses
greater than $1,000,000, the DRB recommendations shall not be binding on the Parties unless
the Authority accepts the DRB recommendations. If the Authority rejects or fails to accept
the DRB recommendations within 120 days, the Contractor may submit the Dispute to
judicial resolution by filing a complaint in a court of competent jurisdiction within six
months following issuance of the DRB recommendations. Failure of the Contractor to file a
complaint in a court of competent jurisdiction within six-months following issuance of the
DRB recommendations shall constitute a waiver of the Contractor’s claims and any further
administrative or judicial review shall be barred.
20.5.3.3 Notwithstanding anything to the contrary in this Section 20.5.3, as permitted
by Public Contract Code section 20104(a)(2), each Dispute where the amount in controversy
is equal to or less than $375,000, shall be heard and determined by an arbitrator or arbitrators
selected pursuant to Public Contract Code sections 10240 et seq. (the “State Arbitration
Act”), and in accordance with the procedures set forth in California Code of Regulations,
Title 1, Chapter 4, sections 1300 et seq. (the “Regulations”). The Authority and Contractor
agree to select the DRB to act as arbitrators under the State Arbitration Act for all such
Disputes, as permitted by Public Contract Code section 10240.3 and Section 1321(a) of the
Regulations; provided that the Parties may, in lieu of appointing the entire DRB, agree to
appoint the third member of the DRB as the single arbitrator. The Parties intend to comply
with the State Arbitration Act, and agree that the State Arbitration Act and Regulations shall
be applicable with respect to Disputes up to $375,000, except as otherwise provided herein.
For Disputes up to $375,000, the Parties agree that the final decision of the DRB (or third
member) shall not be subject to the requirements of Public Contract Code section 10240.8,
and that such decision shall be binding on the Parties, subject only to being vacated on any of
the grounds set forth in Code of Civil Procedure section 1286.2.
20.5.3.4 DRB Recommendations Admissible
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The DRB’s written recommendation shall be admissible as evidence in any litigation
concerning the same Dispute, but any evidence presented to the DRB, whether oral or
written, shall be admissible in accordance with the rules of evidence applicable. Findings of
fact by the DRB shall not be collateral estoppel in any other proceeding involving the same
issue, but final DRB decisions, which are binding pursuant to Section 20.5.2 hereunder shall
be res judicata.
20.6 Compensation The Authority and Contractor shall share equally the fees and expenses of all three members
of the DRB. The Authority shall prepare and mail minutes and shall provide administrative
services, such as conference facilities and secretarial services, and shall have the right to
require the Contractor to pay for half of the cost of these services. If the DRB desires special
services, such as legal advice, consulting services, accounting, data research, and the like,
both Parties must agree, and the costs will be shared by them as mutually agreed. The
Contractor shall pay the invoices of all DRB members after approval by both Parties. After
receipt of the Contractor’s paid invoice for DRB services, the Authority shall reimburse
Contractor 50% of such paid invoices within thirty (30) days.
20.7 Cooperation Time is of the essence and the Parties shall diligently cooperate with one another and the
DRB, and shall perform such acts as may be necessary to obtain a prompt and expeditious
resolution of the Dispute.
20.8 Provisional Remedies No Party shall be precluded from initiating a proceeding in a court of competent jurisdiction
for the purpose of obtaining any emergency or provisional remedy which may be necessary,
and which is not otherwise available under this Section 20, to protect its rights, including
temporary and preliminary injunctive relief, attachment, claim and delivery, receivership and
any extraordinary writ.
20.9 Continuing Performance Failure by the Authority to pay any amount in dispute shall not alleviate, diminish or modify
in any respect Contractor’s obligation to perform under the Contract Documents, including
Contractor’s obligation to achieve Final Acceptance of the Project in accordance with the
Contract Documents, and the Contractor shall not cease or slow down its performance under
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the Contract Documents on account of any such amount in dispute. Upon resolution of any
such dispute each Party shall promptly pay to the other any amount owing.
20.10 Participation in Other Proceedings The Contractor agrees that, at the Authority’s request, third parties, which are involved in the
design or construction of any part of the Project, may be joined as Parties in dispute
resolution proceedings under this Section 20. Also, if requested by the Authority, the
Contractor will allow itself to be joined as a participant in, and be bound by, any arbitration
or other proceeding that involves the Authority and any other participant in the design or
construction of any part of the Project. This provision is for the benefit of the Authority and
not for the benefit of any other party.
20.11 Standard of Review All Disputes are to be resolved strictly in accordance with the terms and conditions of the
Contract Documents. Any decision (including failure to provide any approval) by the
Authority that the Contract Documents provide is in the sole discretion of the Authority may
be only challenged on the basis that the decision was arbitrary or capricious. Other decisions
of the Authority shall be subject to review under a “reasonableness” standard.
21.0 VALUE ENGINEERING The Contractor is encouraged to submit Value Engineering Change Proposals (“VECPs”) for
the purpose of enabling the Contractor and the Authority to take advantage of potential cost
savings from changes in the requirements of the Contract Documents that do not adversely
impact essential characteristics of the Project. The Contractor is encouraged to submit
VECP’s whenever it identifies potential savings or improvement.
21.1 Description of VECPs A VECP is a proposal developed and documented by the Contractor which:
(a) Would modify or require a change in any of the requirements of, or
constraints set forth in the Contract Documents in order to be implemented; and
(b) Reduces the LSFP without impairing essential functions or characteristics of
the Work, including the meeting of requirements contained in all Governmental Rules, and
provided that it is not based solely upon a change in quantities.
21.2 Information to be Provided At a minimum, the Contractor shall submit the following information with each VECP:
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(a) Description of the existing Contract Document requirement(s) which are
involved in the proposed change;
(b) Description of the proposed change;
(c) Discussion of differences between existing requirement(s) and the proposed
change, together with advantages and disadvantages of each changed item;
(d) Itemization of the Contract Document requirements which must be changed if
the VECP is approved (e.g., drawing numbers and specifications);
(e) Justification for changes in function or characteristics of each item, and effect
of the change on the performance of the end item, as well as on the meeting of requirements
contained in the Contract Documents;
(f) Date or time by which a Change Order adopting the VECP must be issued by
the Authority in order to obtain the maximum cost reduction, noting any effect on the Current
Project Schedule;
(g) Cost estimate for existing Contract Document requirements, compared to the
Contractor’s cost estimate of the proposed changes; and
(h) Costs of development and implementation by the Contractor.
21.3 Review by the Authority The Contractor shall submit VECPs directly to the Authority. The Authority will process
proposals expeditiously, but shall not be liable for any delay in acting upon any proposal
submitted pursuant to this Section 21.3. The Contractor may withdraw all, or part, of any
VECP at any time prior to acceptance by the Authority. In all situations, each party shall
bear its own costs in connection with preparation and review of VECPs.
21.4 Acceptance of VECPs The Authority may approve, at its sole discretion, in whole or in part, by Change Order, any
VECP submitted. Designs for approved VECPs shall be prepared by the Contractor for
incorporation into the Contract Documents. Until a Change Order is issued on a VECP, the
Contractor shall remain obligated to perform in accordance with the Contract Documents.
The decision of the Authority as to rejection or acceptance of any VECP shall be final and
not subject to the dispute resolution provisions of this Section 20.
21.5 Contract Price Adjustment If the Authority accepts a VECP submitted by the Contractor pursuant to this Section, the
LSFP shall be adjusted in accordance with the following:
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(a) The term “estimated net savings” as used herein shall mean (1) the difference
between the cost of performing the Work according to the Contract Documents and the actual
cost to perform it according to the proposed change, less (2) the costs of studying and
preparing the VECP as proven by the Contractor and approved by the Authority in
accordance with the Change Order procedures set forth herein, less (3) any additional costs
incurred by the Authority resulting from the VECP. The Contractor’s profit shall not be
considered part of the cost.
(b) Except as specified herein, the Contractor is not entitled to share in either
collateral or future Contract savings. The term “collateral savings” means those measurable
net reductions in the Authority’s costs resulting from the VECP, including maintenance costs
and the cost of Authority furnished equipment. The term “future Contract savings” shall
mean reductions in the cost of performance of future construction contracts for essentially the
same item resulting from a VECP submitted by the Contractor.
(c) The LSFP shall be reduced by an amount equal to 50% of estimated net
savings, provided that the Contractor’s Construction Fee shall not be reduced by application
of the VECP.
(e) In a case where the Contractor proposes that an adjustment be made to the
planned acquisition of real property or to the area which has been environmentally cleared
for the Project in order to result in an overall cost savings to the Project (such as a proposal
that additional real property be purchased in order to save on the cost of structures, or a
proposal which would enable a reduction in the real property required to be obtained by the
Authority hereunder by incurring additional construction costs): the VECP shall compare
(1) the incremental reduction in costs (such as for not designing and building a wall), and
(2) the costs involved in adjusting the real property limits or environmental clearances
(which shall be based on the Contractor’s additional costs, such as for providing real property
acquisition support services (including profit) plus the Authority’s additional costs, including
costs of personnel as well as out-of-pocket costs such as the price of the additional real
property), or shall compare (1) the incremental reduction in costs (if any) for not acquiring
the unnecessary real property, and (2) the additional construction costs to be incurred. The
estimated net savings shall be shared 50-50 between the Authority and the Contractor. In the
event the Contractor nevertheless wishes to propose such a VECP, the Contractor shall
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provide a separate notification to the Authority describing the proposed impact concurrently
with delivery of the VECP to the Authority.
The Contractor’s share of any VECP cost savings shall be payable at such time as payments
would have been made for the Work which is the subject of the VECP had the VECP not
been implemented.
22.0 BONDING, INSURANCE AND INDEMNIFICATION 22.1 Payment and Performance Bonds 22.1.1 Obligation to Provide Performance and Payment Bonds
The Contractor shall provide to Authority and maintain at all times during the term of this
Contract, adequate security for performance of the Work, as described in this Section (or
other assurance satisfactory to Authority in its sole discretion). Each bond required
hereunder shall be provided by a Surety rated in the top two categories by two nationally
recognized rating agencies or receiving an A.M. Best Co. “Best’s Rating” of A- or better and
Class VIII or better, or as otherwise approved by the Authority.
22.1.2 Performance Bond
The Contractor shall provide the Authority with a Performance Bond guaranteeing due and
punctual performance of all Contractor’s obligations required to be performed hereunder
following the date of issuance of the NTP for the first construction package, in the amount of
100% of the Construction Allowance. If the Contractor commences a package or element of
the Work pursuant to a limited NTP, Contractor may provide an initial Performance Bond
equal to 100% of the construction dollar amount of that package or element. The
Performance Bond shall remain in full force and effect until the expiration of the Warranty
Term under Section 25.2. Notwithstanding any other provision of this Section, performance
by a Surety of any of the obligations of the Contractor shall not relieve the Contractor of any
of its obligations hereunder. The Performance Bond form is included in Appendix 7.
22.1.3 Payment Bond
The Contractor shall provide the Authority with a Payment Bond in an amount equal to
100% of the Construction Allowance. If the Contractor commences a package or element of
the Work pursuant to a limited NTP, the Payment Bond required shall be equal to 100% of
the Construction dollar amount of that package or element. Such bond shall remain in full
force and effect until (a) the Contractor has obtained unconditional releases of liens and stop
notices from all subcontractors that filed a preliminary notice of claim against the bond; or
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(b) the expiration of the statutory period for subcontractors to file a claim against the bond.
The Payment (Material and Labor) Bond form is included in Appendix 8.
22.1.4 Adjustments to Bond Amount
The Authority reserves the right to adjust the required amount of the Performance Bond and
Payment Bond under this Section 22.1.2 in the event that the Total LSFP is less or greater
than the Construction Allowance. The Authority also reserves the right to adjust the required
amount of the Performance Bond if the FTA approves an alternative bonding amount or
performance security structure.
22.2 Insurance Requirements For purposes of the Insurance Proposal Price, coverages are to be priced in the following
manner:
A. Design and Professional Services
Workers’ Compensation and Commercial Auto is included in the multiplier for Design and
Professional Services.
B. Professional Liability Insurance
Professional Liability Insurance will be a lump sum fixed price, as specified in the
Contractor’s proposal, with the coverage beginning at NTP.
C. Commercial General Liability
Commercial General Liability prior to the implementation of the CCIP will be a lump sum
fixed price, as specified in the Contractor’s proposal.
D. Additional Insurance Coverages
Additional insurance coverages required during the Construction phase of the Project will be
negotiated as non-construction allowances.
All of the following limits, with the exception of coverage cited in 22.2.1, shall apply solely
to this Project and the Contractor shall be responsible for providing insurance for all
subcontractors on the project. The Contractor’s insurance requirements under this Section
22.2 must also extend to cover any work performed by another party under Contract with the
Authority following a failure to agree on the LSFP for a particular package of the Work,
provided that such other party will be deemed to be a subcontractor for insurance purposes.
As noted in this 22.2, all insurance coverages, except Commercial Automobile Liability, are
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to be included in the Contractor Controlled Insurance Program (CCIP), which is required to
be in place prior to the first NTP for Construction, unless the Authority determines otherwise.
In addition, Commercial General Liability and Professional Liability cited in 22.2.1 are to be
issued on a stand alone basis during the Design phase of the Project. It is the responsibility of
the Contractor to secure, monitor, and maintain throughout the Project, current certificates of
insurance for all Subcontractors.
22.2.1 Insurance Requirements for Design Services – CCIP Not Required
22.2.1.1 Contractor and Subcontractor Insurance
All insurance coverages required by the following provisions of this Section must be
provided at the Contractor’s expense during the period of performance of the Design Work.
The Contractor shall furnish acceptable certificates of insurance for those required coverages
to the Authority within twenty (20) days after Notice of Award, in accordance with the
timing requirements in Section 5.1, and prior to commencement of any Design Work. The
Contractor shall indemnify the Authority and Metro for any liability or damages that the
Authority or Metro may incur due to Contractor’s failure to purchase or maintain any
required insurance.
22.2.1.2 Required Coverage and Policies
For the Design Work, the Contractor shall maintain insurance of the types and in the amounts
described below:
A. Standard Commercial Automobile Liability Insurance
Commercial Business Automobile Liability Policy covering all owned, hired and
non-owned automobiles, trucks and trailers, with coverage limits not less than
$1,000,000 Combined Single Limit each for Bodily Injury and Property Damage for
Contractor and Subcontractors Coverage will apply both at and away from the
Worksite. The premiums for Commercial Automobile coverage are included in the
cost multiplier associated with Design and Professional Services activities for the
Project. After construction begins, Automobile Liability coverage is included in the
Construction Allowance.
B. Workers’ Compensation and Employer’s Liability Insurance
Part One – Workers’ Compensation
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Worker’s Compensation with statutory limits are required by law, including Maritime
coverage, if appropriate. Coverage will apply both at and away from the worksite.
The premiums for Workers’ Compensation coverage are included in the cost
multiplier associated with Design and Professional Services activities for the Project.
Workers’ Compensation premiums for the Construction Work are included in the
Construction Allowance.
Part Two – Employer’s Liability Insurance
For all occurrences the limits of liability shall be:
Bodily Injury by Accident, each accident $1,000,000
Bodily Injury by Disease, each employee $1,000,000
Bodily Injury by Disease, policy limit $1,000,000
C. Commercial General Liability Insurance
Commercial General Liability Insurance written on the most recent edition of an ISO
“Occurrence” form (or substitute form providing equivalent coverage) covering all
Work done by or on behalf of the Contractor and providing insurance for bodily
injury, wrongful death, personal injury, broad form property damage, contractual
liability with respect to liability assumed by the Contractor by the Contract
Documents, products/completed operations, premises operations, underground hazard
coverage (commonly referred to as “U” coverage), explosion hazard coverage
(commonly referred to as “X” coverage) if the Work involves blasting, and collapse
hazard coverage (commonly referred to as “C” coverage) if the Work may cause
structural damage due to excavation, burrowing, tunneling, caisson work, or
underpinning, and with limits of liability not less than:
The limits of liability shall be:
Each Occurrence Limit $2,000,000
Personal Advertising Injury Limit $2,000,000
Product/Completed Operations Aggregate Limit $4,000,000
General Aggregate Limit $4,000,000
(other than Products/Completed Operations)
Except with respect to bodily injury and property damage included within the
products and completed operations hazards, the aggregate limit shall apply separately
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to Work required of the Contractor by the Contract Documents. The Contractor shall
maintain the products and completed operations coverage for a period of at least then
(10) years following substantial completion of the Work. The Contractor shall
maintain such insurance through the expiration of the warranties. If commercial
general liability insurance or other form with a general aggregate limit and products
and completed operations aggregate limit is used, then the aggregate limits shall
apply separately to the Work, or the Contractor may obtain separate insurance to
provide the required limit, which shall not be subject to depletion because of claims
arising out of any other project or activity of the Contractor; any such excess
insurance shall be at least as broad as the Contractor’s primary insurance. The
Contractor shall be the named insured; additional insureds are identified in Section
22.2.3.2.
Offsite Insurance coverage, not provided by the CCIP, shall be maintained by the
Contractors and Subcontractors through its own policies, or project specific policies,
and shall include language that affords coverage for any work emanating from the
Project and related facilities. All certificates of insurance for Subcontractors or off-
site coverage shall be maintained by the Contractor.
D. Professional Liability Insurance – Must Cover all Professional Services:
The Contractor shall provide professional liability or errors and omissions coverage
with project specific limits of no less than $20 million per claim, with a general
aggregate limit of no less than $20 million per claim and aggregate which shall cover
claims resulting from professional errors and omissions of Contractor and any of its
Subcontractors/Subconsultants in connection with the Work provided such claims
arise during the period commencing upon the preparation of the construction
documents and ending ten (10) years from policy inception. Such insurance shall be
in form acceptable to the Authority. Such insurance shall be written to cover all costs
of correcting defects and deficiencies (including unapproved deviations) arising from
the professional liability or errors and omissions of Contractor and the Subcontractors
providing design, engineering or other professional services, at all tiers, shall be
written on a project-specific basis. The insurance policy shall include an
endorsement providing the Authority and Metro vicarious liability coverage. Such
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insurance shall be excess to liability insurance required hereunder as respects third
party bodily injury and property damage claims. The policy shall not contain any
provision or exclusion the effect of which would be to prevent, bar, or otherwise
preclude the Authority or Metro from making a claim against the policy. If no single
policy can be procured to provide the coverages listed, multiple policies may be
procured to satisfy these requirements. This provision shall not be construed to
require the professional liability policy to cover construction management services
except to the extent that such services are eligible for coverage under standard
insurance terms and conditions.
22.2.2 Insurance Requirements For Construction Work
22.2.2.1 Contractor and Subcontractor Insurance
In addition to the insurance required under Section 22.2, all insurance coverages required by
the following provisions of this Section must be provided at the Contractor’s expense during
the period of performance of the Construction Work. The coverages, excluding Commercial
Automobile Liability, are to be included in a Contractor Controlled Insurance Program
(CCIP). The Contractor shall provide certificates of insurance for those required coverages
as soon as practicable after agreement on the Construction Price but in any event prior to the
issuance of a NTP for Construction or any package or element thereof. The Contractor shall
indemnify the Authority for any liability or damages that the Authority may incur due to the
Contractor’s failure to purchase or maintain any required insurance.
22.2.2.2 Required Coverage and Policies
A. Standard Commercial Automobile Liability Insurance
Commercial Business Automobile Liability Policy covering all owned, hired and
non-owned automobiles, trucks and trailers, with coverage limits not less than
$1,000,000 Combined Single Limit each for Bodily Injury and Property Damage for
Contractor and Subcontractors. The premiums for Commercial Automobile Liability
coverage are included in the cost multiplier associated with Design and Professional
Services activities for the Project. After Construction begins, Automobile Liability
coverage is included in the Construction Allowance.
B. Workers’ Compensation and Employer’s Liability Insurance
Part One – Workers’ Compensation
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Worker’s Compensation with statutory limits are required by law, including Maritime
coverage, if appropriate. Coverage will apply both at and away from the worksite.
The premiums for Workers’ Compensation coverage are included in the cost
multiplier associated with the Design and Professional Services activities for the
Project. Workers’ Compensation premiums for the Construction Work are included
in the Construction Allowance.
Part Two – Employer’s Liability Insurance
For all occurrences the limits of liability shall be:
Bodily Injury by Accident, each accident $1,000,000
Bodily Injury by Disease, each employee $1,000,000
Bodily Injury by Disease, policy limit $1,000,000
C. Commercial General Liability Insurance
Commercial General Liability Insurance written on the most recent edition of an ISO
“Occurrence” form (or substitute form providing equivalent coverage) covering all
Work done by or on behalf of the Contractor and providing insurance for bodily
injury, wrongful death, personal injury, broad form property damage, contractual
liability with respect to liability assumed by the Contractor by the Contract
Documents, products/completed operations, premises operations, underground hazard
coverage (commonly referred to as “U” coverage), explosion hazard coverage
(commonly referred to as “X” coverage) if the Work involves blasting, and collapse
hazard coverage (commonly referred to as “C” coverage) if the Work may cause
structural damage due to excavation, burrowing, tunneling, caisson work, or
underpinning, and with limits of liability not less than:
The limits of liability shall be:
Each Occurrence Limit $2,000,000
Personal Advertising Injury Limit $2,000,000
Product/Completed Operations Aggregate Limit $4,000,000
General Aggregate Limit $4,000,000
(other than Products/Completed Operations)
Except with respect to bodily injury and property damage included within the
products and completed operations hazards, the aggregate limit shall apply separately
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to Work required of the Contractor by the Contract Documents. The Contractor shall
maintain the products and completed operations coverage for a period of at least then
(10) years following completion of the Work. The Contractor shall maintain such
insurance through the expiration of the warranties. If commercial general liability
insurance or other form with a general aggregate limit and products and completed
operations aggregate limit is used, then the aggregate limits shall apply separately to
the Work, or the Contractor may obtain separate insurance to provide the required
limit, which shall not be subject to depletion because of claims arising out of any
other project or activity of the Contractor; any such excess insurance shall be at least
as broad as the Contractor’s primary insurance. The Contractor shall be the named
insured; additional insureds are identified in Section 22.2.3.2.
Offsite Insurance coverage, not provided by the CCIP, shall be maintained by the
Contractors and Subcontractors through its own policies or project specific policies,
and shall include language that affords coverage for any work emanating from the
Project and related facilities. All certificates of insurance for Subcontractors or off-
site coverage shall be maintained by the Contractor.
D. Railroad Protective Liability Insurance
If Work is to be performed requiring the excavation of soil or use of heavy machinery
within fifty (50) feet of railroad tracks or upon a railroad right-of-way, or as required
by the applicable railroad, the form of coverage shall be acceptable to the Authority
and the applicable railroad, and the limits of liability of such coverage shall be
acceptable to the applicable railroad. Such policy shall name the Authority on the
declaration page with respect to its interest in the specific job. Removal of the
railroad exclusion in the CGL policy forms by endorsement (CG24 17) can satisfy
this coverage requirement.
E. Watercraft and Aircraft Liability Insurance
Aviation and/or Watercraft Insurance in form and with limits of liability and from an
insuring entity satisfactory to the Authority. The operator of any watercraft or aircraft
of any kind must maintain liability naming the Authority and the Contractor and/or
subcontractor an additional insured.
22.2.2.3 Additional Insurance (required upon CCIP implementation)
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A. Umbrella/Excess Liability Insurance
Umbrella/Excess insurance is to be structured to include the lines of coverage shown
below on a following-form basis:
Commercial General Liability
Railroad Protective (unless added to GL policy by endorsement CG 24 17)
Watercraft and Aircraft Liability Insurance (if needed)
For all occurrences the limits of liability shall be:
Each Occurrence Limit $100,000,000
Annual General Aggregate Limit $100,000,000
B. Contractor’s Pollution Liability Insurance
With a total combined limit of liability of no less than $25 million per occurrence and
$25 million in the aggregate.
C. Environmental Impairment Liability Site Coverage Insurance
To the extent Contractor or Subcontractor will be working on the site and could
potentially discover significant quantities of Hazardous Substances on the Premises or
within the Project, a policy of Environmental Impairment Liability Site Coverage
insurance covering environmental risks, including the clean-up and remediation of
unexpected Hazardous Substances from the Project, with a coverage limit of not less
than $25 Million Dollars ($25,000,000) on a claims made or reported basis/policy
form. The term of the policy shall be no less than a 10-year period from the inception
of insurance coverage. If Hazardous Substances are removed from the Premises and
transported to an off-site disposal site, then the coverage required to be carried under
this Section shall be endorsed to include Non-Owned Disposal Site Coverage in form
reasonably acceptable to the Authority. The Contractor is responsible for the full
amount of loss associated covered by insurance and related deductibles,
notwithstanding the Force Majeure provisions in Section 17.4.
D. Builder’s Risk Insurance
In the amount of the Lump Sum Fixed Price (and thereafter adjusted pursuant to any
Change Orders issued with respect to the Work) or the full replacement value of the
Work, or $175 million, whichever is less. The Builder’s Risk insurance shall cover
the interests of the Authority, the Contractor, and subcontractor of every tier covering
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“all risk” perils, issued on ALS 67 or equivalent form, including earthquake and
flood, and insuring against the perils of fire and extended coverage and physical loss
or damages including, without duplication of coverage, theft, vandalism, and
malicious mischief, at limits and sub-limits set forth below. Coverage shall include
off-site storage and transit as specified below, shall include coverage for machinery
during testing, and shall be in a form acceptable to the Authority. The coverage shall
also provide for (1) coverage for any ensuing loss from faulty workmanship,
nonconforming Work materials, omission or deficiency in design or specifications;
(2) coverage for removal of debris and insuring the buildings, structures, machinery,
equipment, facilities, fixtures and all other properties constituting a part of the Work;
and (3) coverage with sub-limits sufficient to insure the full replacement value of any
property or equipment stored either on or off the Site. The Contractor is responsible
for the full amount of loss associated with the total insured value and sub-limits
associated with the project, including related deductibles, notwithstanding the Force
Majeure provisions in Section 17.4.
Builder’s Risk Sublimits of Liability:
$25,000,000 any one Occurrence as respects Land Movement, including earthquake
$25,000,000 any one Occurrence as respects Water Damage
$10,000,000 any one Occurrence as respects Demolition and Debris Removal
$10,000,000 any one Occurrence as respects insured Property during Transit
$10,000,000 any one Occurrence as respects insured Property stored Off-site
$2,500,000 any one Occurrence as respects Plans, Blueprints, Specifications, Books,
Records and/or Data Media
20% of the amount of loss subject to a maximum of $5,000,000 any one
Occurrence for Expending Expenses
$100,000 any one Occurrence as respects Trees, Grass, Shrubbery and Plants
The Contractor and each of its Subcontractors of any tier, shall be solely responsible
for any loss or damage to its or their personal property including, without limitations,
property created or provided under the Contract Documents, its or their tools and
equipment, mobile construction equipment, scaffolding, and temporary structures,
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whether owned, used, leased or rented by Contractor or any of its Subcontractors.
Contractor or any of its Subcontractors may, at its or their option, purchase, maintain
and pay for insurance or self-insure such equipment and property, and any deductible
in relation thereto shall be its or their sole responsibility. Any insurance, including
self-insurance, shall be Contractor’s or any of its Subcontractor’s sole source of
recovery in the event of a loss.
If the Authority desires to use a portion of the Project after Substantial Completion
thereof and before Final Acceptance, such use shall not commence until the insurance
companies providing property insurance have agreed by endorsement to the insurance
policies that the property insurance shall not lapse or be cancelled with respect to that
portion of the Project not being used by the Authority on account of such partial use.
The consent of the Contractor and of the insurance companies to such use shall not be
unreasonably withheld. The Contractor shall not be required to maintain property
insurance for any portion of the Project for which Substantial Completion and transfer
of control to the Authority have occurred.
E. Property Insurance
The Contractors and its Subcontractors must provide their own insurance for owned,
leased, rented, and borrowed equipment, whether such equipment is located at a
Worksite or “in transit”. The Contractor and its subcontractors are solely responsible
for any loss or damage to their personal property including, without limitation,
property or materials created or provided under the Contract until installed at the
Worksite, Contractor tools and equipment, scaffolding and temporary structures.
F. Contractor’s Insurance
The Contractor’s insurance shall not be suspended, voided, cancelled by either party,
reduced in coverage or in limits except after thirty (30) days prior written notice to
the Authority by certified mail, return receipt requested. The Contractor shall
promptly deliver to the Authority a certificate of insurance policy, endorsements, and
riders including any exclusions with respect to each renewal policy, as necessary to
demonstrate the maintenance of the required insurance coverages for the terms
specified herein. Such certificates shall be delivered to the Authority not less than 30
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days prior to the expiration date of any policy and shall bear a notation evidencing
payment of the premium therefore.
22.2.3 General Requirements Applicable To All Insurance
22.2.3.1 Contractor’s Failure to Procure
The Contractor’s failure to procure or maintain the insurance required by this Section during
the entire term of the Work shall constitute a material breach of contract. In the event of
such a breach, the Authority may exercise all available rights and remedies hereunder,
including the right to immediately suspend or terminate the contract or, at its discretion,
procure or renew such insurance to protect the Authority and Metro and pay any and all
premiums in connection therewith, and withhold or recover all monies so paid from the
Contractor.
22.2.3.2 Additional Insured Endorsement
Each policy, except for Workers Compensation and Professional Liability, shall name
Authority and its parent, subsidiaries, members, directors, and affiliated companies,
including without limitation, Metro, the City of Los Angeles, the County of Los Angeles,
Caltrans, and their respective officers, agents, shareholders, and employees as additional
insureds. The additional insured endorsement for all policies shall state that the coverage
provided to the additional insureds is primary and non-contributing with respect to any other
insurance available to the additional insureds. The Endorsement shall include language that
affords coverage for any work emanating from the Project and related facilities. The
endorsement shall also contain a provision that the Authority, Metro and each other
additional insured shall be notified by the insurer(s), in writing, at least 30 days prior to any
cancellation, non-renewal, or material change adversely affecting the interest of the
Authority, Metro or such other additional insured.
22.2.3.3 Waiver of Subrogation
The Contractor hereby waives all rights of recovery under subrogation because of deductible
clauses, inadequacy of limits of any insurance policy, limitations or exclusions of coverage,
or any other reason against the Authority and its parent, subsidiaries, members, directors, and
affiliated companies, including without limitation, the Authority, Metro, the City of Los
Angeles, the County of Los Angeles, Caltrans, and their respective officers, agents,
shareholders, and employees, and any other contractor or subcontractor performing Work or
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rendering services on behalf of the Authority in connection with the planning, development
and construction of the Project.
The Workers Compensation and Employer’s Liability policies shall include a waiver of
subrogation.
22.2.3.4 Additional Insurance
The Contractor shall, by mutual agreement with the Authority and at the Authority’s cost,
provide any additional insurance as may be required by the Authority. The Contractor shall
provide certificates of insurance evidencing any such additional insurance coverage.
22.2.3.5 Deductibles
The Contractor shall be solely responsible for all deductibles and self-assured retentions
hereunder. Any deductibles or self-insured retentions greater than $100,000 for all lines of
coverage except, $250,000 for flood or 5% of total insured value for earthquake must be
declared to and approved by the Authority.
22.2.3.6 Delivery of Policies
The Authority may, in its discretion, require the Contractor to provide actual copies of the
policy of any insurance that is required under this Section 22.2. The Contractor shall supply
any policy required by the Authority or Metro within 10 days after the Authority’s request.
In the event that the Contractor has not received the policy, a signed Binder of Insurance
detailing coverage and deductibles will suffice until the policy is received.
22.2.3.7 Reinsurance
When a Contractor has utilized a fronting company to place insurance (as in the use of a
Captive), the Insurer is reinsured under reinsurance treaties (insert identification numbers
used for the treaties) issued by (identify each reinsurer.) Each such Reinsurer has consented
to the following terms being made part of Insurer’s policy and these terms are also part of the
reinsurance agreements between the Insurer and each of the Reinsures:
(a) The Insurer hereby declares itself the trustee of the reinsurance identified
above for the benefit of each Insured under this policy and covenants to hold all rights and
benefits under each such reinsurance contract in trust for each Insured under this policy.
Consistent with the foregoing, each Reinsurer is aware that the Insurer has constituted itself
as a trustee of all reinsurance for the Insureds under this policy and that this reinsurance is
payable to the Insurer as a trustee for each of the Insureds.
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(b) In the event of the insolvency of the Insurer, each Reinsurer shall be
responsible directly to each Insured under this policy as beneficiary of the reinsurance
contract on the basis of liability of the Insurer without diminution because of the insolvency
of the Insurer.
22.2.3.8 Unavailability of Required Coverages
If, at the time of negotiations of the LSFP for the insurance coverages required for the
Construction Work pursuant to Section 8.8, the Contractor documents and demonstrates to
the reasonable satisfaction of the Authority that a specific coverage (or component of
coverage) required under Section 22.2.2 is commercially unavailable at that time, then the
Authority will consider alternative insurance packages and programs that provide risk
coverage comparable to that required under this Section. To demonstrate that a specific
coverage (or component of coverage) is “commercially unavailable”, the Contractor must
document, by providing a letter from Contractor’s insurance broker or agency, that the
Contractor has sought to obtain that coverage (or component of coverage) from insurance
carriers and that the coverage (or component of coverage) either is not currently offered or
that it cannot be provided at a commercially reasonable price. Such letter shall include the
names of the insurance carriers and appropriate detail regarding their unwillingness to
provide coverage and/or premium indications.
22.3 Indemnification And Liability 22.3.1 Indemnification by Contractor
22.3.1.1 Subject to Section 22.3.1.3, the Contractor shall release, defend, indemnify
and hold harmless the Authority, MTA, City and County of Los Angeles, Program Manager,
Program Management Oversight Consultant and their successors and assigns and their
shareholders, officers, directors, agents and employees (collectively referred to in this
Section 22.3.1 as the “Indemnified Parties”) from and against any and all claims, causes of
action, suits, legal or administrative proceedings, costs, damages, losses, liabilities and
response costs, including any injury to or death of persons or damage to or loss of property,
and including reasonable attorneys’ and expert witness fees and costs incurred in connection
with the enforcement of this indemnity, arising out of, relating to or resulting from any of the
following:
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(a) The breach or alleged breach of the Contract by the Contractor, its employees,
agents, officers or Subcontractors or any other Persons performing any of the Work for
whom Contractor may be contractually or legally responsible;
(b) The failure or alleged failure by the Contractor or its employees, agents,
officers or Subcontractors or any other Persons for whom the Contractor may be
contractually or legally responsible, to comply with any applicable Environmental Laws or
Governmental Rules (including Governmental Rules regarding handling, generation,
treatment, storage, transportation and disposal of Hazardous Waste) in performing the Work;
(c) Any alleged patent or copyright infringement or other allegedly improper
appropriation or use of trade secrets, patents, proprietary information, know-how, copyright
rights or inventions in performance of the Work, or arising out of any use in connection with
the Project of methods, processes, designs, information, or other items furnished or
communicated to the Authority or another Indemnified Party pursuant to the Contract
Documents; provided that this indemnity shall not apply to any infringement resulting from
Authority’s failure to comply with specific written instructions regarding use provided to
Authority by Contractor;
(d) The alleged negligent act or omission or willful misconduct of Contractor, its
employees, agents, officers or Subcontractors or any other persons performing any of the
Work for whom the Contractor may be contractually or legally responsible;
(e) Any and all claims by any governmental or taxing authority claiming taxes
based on gross receipts, purchases or sales, the use of any property or income of the
Contractor or any of its Subcontractors or any of their respective agents, officers or
employees with respect to any payment for the Work made to or earned by the Contractor or
any of its Subcontractors or any of their respective agents, officers or employees under the
Contract Documents;
(f) Any and all stop notices and/or Liens filed in connection with the Work,
including all expenses and attorneys’ fees incurred in discharging any stop notice or Lien,
provided that Authority is not in default in payments owing to the Contractor with respect to
such Work;
(g) Any release or threatened release of a Hazardous Substance (1) which was
brought onto the Site by the Contractor or its employees, agents, officers or Subcontractors or
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any other Persons for whom the Contractor may be contractually or legally responsible, or
(2) which was negligently removed or handled by any such persons, regardless of the source,
origin or method of deposit of such Hazardous Substance;
(h) The claim or assertion by any contractor of inconvenience, disruption, delay
or loss caused by interference by the Contractor (or its employees, agents, officers or
Subcontractors or any other persons for whom the Contractor may be contractually or legally
responsible) with or hindering the progress or completion of work being performed by other
contractors as described in Scope of Work and General Requirements Section 01100 Part 1.6,
or failure of the Contractor or its employees, agents, officers or Subcontractors or any other
persons for whom the Contractor may be contractually or legally responsible to cooperate
reasonably with other contractors in accordance therewith; and
(i) The performance of, or failure to perform, the Contractor’s obligations under
any Utility Cooperative Agreement (or any agreement entered into between the Contractor
and any Third Party pursuant to a Utility Cooperative Agreement), by the Contractor, its
employees, agents, officers or Subcontractors or any other persons for whom the Contractor
may be contractually or legally responsible; any dispute between the Contractor and a Third
Party as to whether work relating to a Relocation/Rearrangement constitutes a Betterment;
and/or any other act or omission by the Contractor, its employees, agents, officers or
Subcontractors or any other persons for whom the Contractor may be contractually or legally
responsible, for which the Authority is liable to indemnify a Third Party pursuant to the
provisions of the Authority’s Utility Cooperative Agreement with such Third Party.
22.3.1.2 Subject to Section 22.3.1.3, the Contractor shall release, defend, indemnify
and hold harmless the Indemnified Parties from and against any and all claims, damages,
losses, liabilities and costs, including reasonable attorneys’ fees, arising out of, relating to or
resulting from errors, omissions, inconsistencies or other defects in the Design Documents
furnished by Contractor, regardless of whether such errors, omissions, inconsistencies or
defects were also included in the Baseline Requirements or Reference Documents. The
Contractor agrees that, because the Baseline Requirements and Reference Documents are
subject to review and modification by the Contractor, such documents shall not be deemed
“design furnished” by Authority or any of the other Indemnified Parties, as the term “design
furnished” is used in Civil Code Section 2782 and Section 22.3.1.3.3. The Contractor hereby
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waives the benefit (if any) of Civil Code Section 2782 and agrees that this Section 22.3.1.2
constitutes an agreement governed by Civil Code section 2782.5.
22.3.1.3 The following restrictions shall apply to the indemnities set forth in
Sections 22.3.1.1 and 22.3.1.2:
(a) The Contractor’s indemnity obligation shall not extend to any loss,
damage or cost to the extent that such loss, damage or cost was caused by the negligence or
willful misconduct of such Indemnified Party or its agents, servants or independent
contractors who are directly responsible to such Indemnified Party (in other words, a
comparative negligence standard shall apply).
(b) Except as permitted by Civil Code sections 2782.1, 2782.2 and 2782.5, such
indemnities shall not inure to the benefit of an Indemnified Party so as to impose liability on
Contractor for the active negligence of Authority, or to relieve Authority of liability for such
active negligence.
(c) Such indemnities shall not be construed to affect any extension of statutes of
limitations otherwise applicable to causes of action for breach of contract held by Authority
against Contractor.
(d) In claims by an employee of the Contractor, a Subcontractor, anyone directly
or indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under this Section 22.3.1 shall not be limited by a limitation on
the amount or type of damages, compensation or benefits payable by or for Contractor or a
Subcontractor under workers’ compensation, disability benefit or other employee benefits
laws.
(e) The Contractor hereby acknowledges and agrees that it is the Contractor’s
obligation to cause the Project to be designed and to construct the Project in accordance with
the Contract Documents and that the indemnified parties described above are fully entitled to
rely on the Contractor’s performance of such obligation. The Contractor further agrees that
any review and/or approval by Authority and/or others hereunder shall not relieve the
Contractor of any of its obligations under the Contract Documents or in any way diminish its
liability for performance of such obligations or its obligations to provide indemnities
hereunder.
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(f) The Contractor is specifically advised that the Master Cooperative
Agreements with Third Parties include certain agreements by the Authority to indemnify,
defend and hold harmless the Third Parties. The Contractor’s obligations under this Section
22.3.1 shall automatically apply to require it to release, indemnify, defend and hold harmless
the Third Parties, in addition to the Indemnified Parties, with respect to all such matters to the
extent that such matters fall within the scope of the indemnities made by the Contractor as set
forth in Sections 22.3.1.1 and 22.3.1.2.
22.3.1.4 The requirement to provide an indemnity for breach of contract set forth in
Section 22.3.1.1(a) is intended to provide protection to the Indemnified Parties with respect
to third party claims associated with such breach. It is not intended to provide the Authority
with an alternative cause of action for damages incurred directly by the Authority with
respect to such breach.
22.3.2 Indemnification by Authority
22.3.2.1 It is recognized that the Authority may assert that certain third persons or
parties may rightfully bear the ultimate legal responsibility for any and all Hazardous
Substances, which may currently be present on the Site. It is further recognized that certain
state and federal statutes provide that individuals and firms may be held liable for damages
and claims related to Hazardous Substances under such doctrines as joint and several liability
and/or strict liability. It is not the intention of the parties that Contractor be exposed to any
such liability arising solely out of (a) pre-existing Site contamination, whether known or
unknown, except as otherwise provided in Section 22.3.1.1(g), (b) the non-negligent
performance by Contractor, its employees, agents, officers or Subcontractors or any other
Persons for whom Contractor may be contractually or legally responsible, in the handling of
Hazardous Wastes and Substances, and/or (c) the activities of any persons not described in
subsection (b) above, including the Authority. Accordingly, for the purposes of the Contract
Documents only, the Authority shall reimburse the Contractor for Remediation Work
(through payment of the LSFP, as it may be increased by Change Order pursuant to
Section 19), and otherwise indemnify, defend and save Contractor harmless from, any and all
claims, damages, losses, liabilities and costs, including attorneys’ fees, arising out of, or in
connection with, bodily injury (including death) to persons, damage to property, or
environmental removal or response costs arising out of the presence, release, or threatened
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release of Hazardous Substances on or from the Site, irrespective of whether such substances
were generated or introduced on the Site before or after execution of the Contract and
irrespective of whether Authority was aware of, or directly involved in, the generation or
introduction of such materials. However, the Authority shall have no obligation to indemnify
and save the Contractor harmless those conditions for which Contractor has agreed to be
responsible as described in Section 22.3.1.1(g), including matters falling within the scope of
the indemnities made by the Contractor in Section 22.3.1.1 and 22.3.1.2.
22.3.2.2 Except for Hazardous Substances for which the Contractor is responsible as
described in Section 17, without contradiction of any assertion by the Authority of third party
liability, and for purposes of the Contract Documents only, (a) Contractor shall not be
required to execute any hazardous waste manifests as a “generator”, and (b) Hazardous
Substances encountered in the performance of the Work shall be disposed of, if at all,
utilizing an EPA Identification Number or other appropriate legal device obtained by, and
carried in the name of, Authority or another Person designated by Authority.
22.3.2.3 In the event the Authority terminates the Contract for convenience and the
Authority elects to accept assignment of any Subcontract under Section 27.7 the Authority
shall indemnify, defend and save Contractor harmless from any and all claims, damages,
losses, liabilities and costs, including attorneys’ fees, arising out of the breach or alleged
breach of the Subcontract by the Authority occurring after the effective date of such
assignment.
22.3.3 No Effect on Other Rights
The foregoing obligations shall not be construed to negate, abridge, or reduce other rights or
obligations, which would otherwise exist in favor of a party indemnified hereunder.
22.3.4 CERCLA Agreement
Without limiting their generality, the indemnities set forth in Sections 22.3.1.1(g) and 22.3.2
are intended to operate as agreements pursuant to Section 107(e) of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9607(e), and
Health and Safety Code section 25364, to insure, protect, hold harmless and indemnify the
indemnified parties.
22.3.5 Exclusion of Consequential Damages
22.3.5.1 Liability Excluded.
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In no event shall either Party be liable to the other Party for any “consequential damages”
arising out of performance of the Work or implementation of the Contract Documents (or
failure to perform hereunder), and each Party hereby releases the other from such liability.
The term “consequential damages” means those special, indirect, or incidental damages
which flow naturally and inevitably from an action or failure to act, such as fare revenue
losses, loss of use, cost of capital, debt service, loss of profit on related contracts,
administrative costs, extended overhead, claims of taxpayers and other indirect damage. The
foregoing shall apply to limit liability under actions brought under any theory of law,
including actions in tort (including negligence) as well as in contract. The foregoing release
of liability by the Authority shall extend to Subcontractors provided that the originally
executed Subcontract for such Subcontractor includes a similar release of liability in favor of
the Authority.
22.3.5.2 Exceptions to Exclusion:
The exclusion of consequential damages (set forth in Section 22.3.5.1 above) shall not
exclude or affect:
(a) The Contractor’s obligation to pay Liquidated Damages in accordance with
Section 2.5 or Section 23.3;
(b) Any liability for gross negligence, fraud, intentional misconduct, or criminal
acts;
(c) Any liability respecting indemnification for third party claims;
(d) Any liability for any type of damage or loss, to the extent such loss or damage
is covered by insurance required hereunder, or, if greater, to the extent such loss or damage is
covered by the actual amount of insurance Contractor carries under project specific policies
applicable to the Project and the Work, regardless of whether required to be carried
hereunder, whichever is greater;
(e) The Authority’s obligation to pay Delay Compensation as provided in Section
19.
22.3.6 Limitation of Liability
The Contractor’s liability to the Authority for damages arising out of performance of the
Contract (or failure to perform hereunder) shall be limited to the sum of (a) all costs
reasonably incurred by the Authority or any party acting on the Authority’s behalf in
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completing or correcting the Work or having the Work completed or corrected by another
person, whether incurred through enforcement of the Performance Bond, re-procurement, or
other means; plus (b) the amount of fifteen percent (15%) of the total LSFP (which amount
shall specifically include any Liquidated Damages paid under Section 2.5 or Section 23.3, as
well as any payment made to or for the benefit of an Indemnified Party pursuant to Section
22.3.1). However, this limitation shall specifically exclude those matters described in Section
22.3.5.2 (b) and 22.3.5.2 (d). The foregoing shall apply to limit liability under actions
brought under any theory of law, including actions in tort (including negligence) as well as in
contract.
22.3.7 Notification
Each party agrees to notify the other promptly upon receipt of any third-party claim for
which the other party is entitled to indemnity hereunder.
22.3.8 Guaranty
Fluor Corporation, which is the parent company of Fluor Enterprises, has executed and
delivered a guaranty of the Contractor’s obligations under the Contract Documents in
accordance with that to the Authority concurrently with the execution of this Contract. Such
guaranty assures performance of Contractor’s obligations hereunder and shall be maintained
in full force and effect throughout the duration of this Contract.
23.0 PROJECT COMPLETION 23.1 Time of Essence; Notice to Proceed Time is of the essence in the performance and completion of the Work. The Contractor shall
begin performance of the Work as directed in the Design and Construction Notices to
Proceed. An unexcused failure of the Contractor to achieve completion of the Work in
accordance with the approved schedule is a material breach and constitutes the grounds for
default under Section 27. The Contractor shall have no right to payment for any Work it
performs, unless and until a Notice to Proceed is issued.
23.2 Completion Deadlines 23.2.1 Substantial Completion Deadline
The Contractor shall achieve Substantial Completion on or before February 1, 2010. The
deadline for Substantial Completion, as it may be extended hereunder, is referred to as the
“Substantial Completion Deadline.”
23.2.2 Work Performed After Substantial Completion
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Following Substantial Completion, the Contractor shall be responsible for obtaining any
required Trackway/Right of Way access permits and shall comply with all applicable
requirements of the Authority’s Operating Rules and Procedures that govern the area on and
immediately adjacent to the Right of Way. All Work in such area shall be conducted at the
direction of the Authority and at the dates and times approved by the Authority. The
Contractor shall bear all costs associated with the performance of such Work.
23.2.3 No Time Extensions
Except as otherwise specifically provided in this Design-Build Contract, the Authority shall
have no obligation to extend any Completion Deadline, and the Contractor shall not be
relieved, for any reason, of its obligation to achieve Substantial Completion, Punch List
Completion and Final Acceptance.
23.3 Liquidated Damages As the result of late completion of the Project, the Authority will suffer damages, which
cannot be quantified as of the date of execution hereof. Therefore, and the Authority has
stipulated an amount to be paid by the Contractor in the event of its failure to achieve
Substantial Completion by the Substantial Completion Deadline. The parties intend for the
Liquidated Damages set forth herein to constitute liquidated damages as such term is used in
Government Code section 53069.85 to the extent said statute may apply, and to constitute
stipulated damages to the extent that said statute is not applicable. The Liquidated Damages
are intended to compensate the Authority for the Contractor’s failure to meet the Substantial
Completion Deadline, and shall not excuse the Contractor from liability from any other
breach of the requirements of the Contract Documents, including any failure of the Work to
conform to applicable requirements.
23.3.1 Amount of Liquidated Damages
In the event that the Contractor fails to achieve Substantial Completion by the Substantial
Completion Deadline, subject to the limitation on liability set forth in Section 22.3.6, The
Contractor agrees to pay the Authority Liquidated Damages in the amount of $ 28,075 for
each day of delay, starting on the Substantial Completion Deadline and ending on the date
Substantial Completion is achieved, provided that in no event shall Liquidated Damages be
assessed under this Section 23.3 in excess of $10 million in the aggregate.
23.3.2 Reasonableness of Liquidated Damages
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The liquidated damages in Section 23.3.1 have been set based on an evaluation by the
Authority of the damages to Authority and the public caused by late completion, including
additional administrative costs. The amount of liquidated damages is impossible to ascertain
as of the date of execution hereof and the Authority has estimated the Liquidated Damages in
order to fix the Contractor’s costs and to avoid later disputes over which items are properly
chargeable to the Contractor. Any Liquidated Damages payable in accordance with this
Section 23.3 are in the nature of liquidated damages and not a penalty, and the Contractor
agrees that the sums specified are in the nature of liquidated damages and not a penalty and
are reasonable in light of the anticipated or actual harm caused by the breach, the difficulties
of the proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an
adequate remedy. Liquidated Damages may be owed as the result of a Damage Event, even
though no Event of Default has occurred.
23.3.3 Payment Terms for Liquidated Damages
Liquidated Damages, to the extent not paid as provided in Section 18, shall be payable by the
Contractor to the Authority within ten days after the Contractor’s receipt of an invoice
therefore from the Authority.
23.3.4 Waiver
Permitting or requiring the Contractor to continue and finish the Work or any part thereof
after a Completion Deadline shall not act as a waiver of the Authority’s right to receive
Liquidated Damages hereunder or of any other rights or remedies otherwise available to the
Authority.
23.4 Suspension 23.4.1 Suspensions for Convenience
The Authority may, at any time and for any reason, order the Contractor to suspend all or any
part of the Work required under the Contract Documents for the period of time that the
Authority deems appropriate. The Contractor shall promptly recommence the Work upon
receipt of written notice from the Authority directing the Contractor to resume work. Any
such suspension, which results in a delay to the Critical Path, shall be considered an
Authority-Caused Delay. Adjustments of the Contract Price, Schedule of Values and
approved Baseline Schedule or Working Schedule, as appropriate, shall be available for any
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such Authority-Caused Delay, subject to the Contractor’s compliance with the terms and
conditions set forth in Section 19.
23.4.2 Suspensions for Cause
The Authority has the authority by written order to suspend the Work without prior notice,
wholly or in part, for Contractor’s failure to:
(a) Correct conditions unsafe for the Project personnel or general public;
(b) Perform construction quality control strictly in accordance with the approved
Quality Control Program, as determined by the Authority;
(c) Perform Work in accordance with the Contract Documents; or
(d) Perform Work in accordance with orders of the Authority.
Any such suspension shall not be grounds for additional compensation or an extension of the
Contract Time.
23.4.3 Responsibilities of Contractor During Suspension Periods
During any period that Work is suspended, the Contractor shall;
(a) Continue to be responsible for the Work,
(b) Prevent damage or injury to the Project,
(c) Provide for drainage,
(d) Erect necessary temporary structures, signs or other facilities required to
maintain the Project
(e) Maintain in a growing condition all newly established plantings, seedlings and
sods furnished under the Contract Documents, and
(f) Protect new tree growth and other vegetative growth against injury, replacing
all dead plants requiring replacement during the suspension period.
23.5 Delay in Issuance of Notice to Proceed The Authority anticipates that it will issue NTP for Design concurrently with or shortly after
execution and delivery of the Contract. At the Authority’s discretion, the Authority may
issue a limited NTP authorizing the Contractor to perform certain Design Work described
therein. If a limited NTP is delayed beyond April 1, 2006, or if Authority issues a limited
NTP on or before March 1, 2006 and a full NTP for Design is delayed beyond 120 days
thereafter, such delay shall constitute an Authority-Caused Delay.
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24.0 AUTHORITY ACCEPTANCE 24.1 Passage of Title The Contractor warrants that it owns, or will own, and has, or will have, good and marketable
title to all materials, equipment, tools, and supplies furnished, or to be furnished, by it and its
Subcontractors that become part of the Project or are purchased for the Authority for the
operation, maintenance or repair, free and clear of all Liens. Title to all of such materials,
equipment, tools, and supplies which have been delivered to the Site shall pass to the
Authority, free and clear of all Liens, upon the earlier of incorporation into the Project, or
payment by the Authority to the Contractor of invoiced amounts pertaining thereto.
Notwithstanding any such passage of title, the Contractor shall retain sole care, custody and
control of such materials, equipment, tools, and supplies and shall exercise due care with
respect thereto, as part of the Work, until the Final Acceptance Date or until the Contractor is
removed from the Project.
24.2 Substantial Completion 24.2.1 The Contractor shall deliver an Application for Substantial Completion to Authority
when all of the following have occurred:
(a) The Contractor has completed all Work (except for Punch List items, final
cleanup and other items included in the requirements for Final Acceptance);
(b) The Contractor has ensured that all Work has been performed in accordance
with the requirements of the Contract Documents;
(c) The Contractor has ensured that the Project may be used without damage to
the Project or any other property on or off the Site, and without injury to any Person;
(d) The Contractor has complied with all Review, Verification and Acceptance
requirements, in accordance with the Contract Documents, including the submittal and
Authority acceptance of all test reports;
(e) The Contractor has successfully completed the Training Program set forth in
Scope of Work and General Requirements Section entitled, Demonstration and Training;
(f) The Authority has received and accepted all System and Facility Safety
Certifications as described in Performance Specifications Section entitled, Safety
Certifications;
(g) The Authority has received and accepted all Design Documents, Record
Documents, As-Built Schedule, Operations and Maintenance Plans and Manuals, right-of-
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way record maps, surveys, test data and other deliverables required under the Contract
Documents; and
(h) The Contractor has delivered to the Authority any special tools purchased by
the Contractor (as provided in the Contract Documents) and the Contractor has purchased all
replacement spare parts and delivered them to the Authority free and clear of Liens.
24.2.2 Upon receipt of Contractor’s Application for Substantial Completion, the Authority
shall conduct such inspections, surveys and/or testing as the Authority deems desirable. If
such inspections, surveys and/or tests disclose that any Work does not meet the requirements
of the Contract Documents, the Authority will promptly advise the Contractor as to any
errors, omissions, deviations, defects or deficiencies in the Work necessary to be corrected as
a condition to Substantial Completion. Upon correction of the errors, omissions, deviations,
defects or deficiencies identified as a prerequisite to Substantial Completion, the Contractor
shall provide written notification to the Authority and the Authority shall conduct another
round of inspections, surveys and/or tests. This procedure shall be repeated until the
Authority finds that all prerequisites to Substantial Completion have been met.
24.2.3 Substantial Completion of the Project shall be deemed to have occurred when:
(a) The Authority determines that all requirements of Section 24.2.1 have been
satisfied;
(b) The Authority determines that all errors, omissions, deviations, defects and
deficiencies identified as prerequisites to Substantial Completion have been corrected;
(c) The Authority and Contractor have agreed to a Punch List of items remaining
to be completed or corrected prior to Final Acceptance.
(d) The Authority determines that the Contractor has demonstrated that the
Contract requirements for passenger operation have been met during System Performance
Demonstration, including the requirement for System Service Availability and submittal by
Contractor and acceptance by Authority of the System Performance Demonstration Report,
in accordance with Scope of Work and Acceptance – System Performance Demonstration.
24.2.4 The Authority will issue a Certificate of Substantial Completion to the Contractor at
such time as the Authority determines that Substantial Completion has occurred, under the
standards and criteria set forth in Section 24.2.3.
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24.3 Punch List Completion The term “Punch List Completion” means all Punch List items shall have been completed.
After Substantial Completion, the Authority will allow the Contractor reasonable access to
the Worksite to complete the items on the Punch List. At the time the Authority determines
all such items have been completed, the Authority shall notify the Contractor that it has
satisfied Punch List Completion.
24.4 Final Acceptance 24.4.1 On or before Final Acceptance, Contractor shall perform any Work which was
waived for purposes of Substantial Completion and shall satisfy all of its other obligations
under the Contract Documents, including ensuring that the Project has been completed and
all components have been properly inspected and tested. Final Acceptance of the Project
shall be deemed to have occurred when all of the following have occurred:
(a) All requirements for Substantial Completion and Punch List Completion have
been fully satisfied;
(b) The Contractor has delivered to the Authority a certification representing that
there are no outstanding claims of the Contractor or claims, Liens or stop notices of any
Subcontractor or laborer with respect to the Work, other than any previously submitted
unresolved claims of the Contractor and any claims, Liens or stop notices of a Subcontractor
or laborer being contested by the Contractor (in which event the certification shall include a
list of all such matters with such detail as is requested by the Authority and, with respect to
all Subcontractor and laborer claims, Liens and stop notices, shall include a representation by
the Contractor that it is diligently and in good faith contesting such matters by appropriate
legal proceedings which shall operate to prevent the enforcement or collection of the same).
For purposes of such certification, the term “claim” shall include all matters or facts which
may give rise to a claim;
(c) All of the Contractor’s obligations under the Contract Documents (other than
obligations which by their nature are required to be performed after Final Acceptance) shall
have been satisfied in full or waived in writing by the Authority; and
(d) The Contractor has delivered to the Authority a Notice of Completion for the
Project in recordable form and meeting all statutory requirements.
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24.4.2 The Authority will issue a Certificate of Final Acceptance to the Contractor at such
time as the Authority determines that Final Acceptance has occurred, under the standards and
criteria set forth in Section 24.4.1.
24.4.3 Final Acceptance will not prevent the Authority from correcting any measurement,
estimate or certificate made before or after completion of the Work, nor shall it prevent the
Authority from recovering from the Contractor, its Surety(ies), or other provider of
performance security or any combination of the foregoing, overpayment sustained for failure
of the Contractor to fulfill the obligations under the Contract Documents. The occurrence of
the Final Acceptance Date shall not relieve the Contractor from any of its continuing
obligations hereunder.
24.4.4 Final Acceptance shall be final and conclusive except for (a) defects not readily
ascertainable by the Authority; (b) actual or constructive fraud; (c) gross mistakes amounting
to fraud; (d) other errors which the Contractor knew or should have known about; and (e) the
Authority’s rights under any warranty or guarantee. The Authority may revoke Final
Acceptance at any time prior to the issuance of the final payment by the Authority upon the
Authority’s discovery of such defects, mistakes, fraud, or errors in the Work.
24.5 Assignment of Causes of Action 24.5.1 The Contractor 's attention is directed to the following requirements in Public
Contract Code 7103.5 and Government Code Sections 4553 and 4554, which shall be
applicable to the Contractor and Subcontractors:
"In entering into a public works contract or a subcontract to supply goods,
services, or materials pursuant to a public works contract, The Contractor or
Subcontractor offers and agrees to assign to the awarding body all rights, title, and
interest in and to all causes of action it may have under Section 4 of the Clayton
Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing
with Section 16700) of Part 2 of Division 7 of the Business and Professions
Code), arising from purchases of goods, services, or materials pursuant to the
public works contract or the subcontract. This assignment shall be made and
become effective at the time the awarding body tenders final payment to the
Contractor without further acknowledgment by the parties.”
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"If an awarding body or public purchasing body receives, either through judgment
or settlement, a monetary recovery for a cause of action assigned under this
chapter, the assignor shall be entitled to receive reimbursement for actual legal
costs incurred and may, upon demand, recover from the public body any portion
of the recovery, including treble damages, attributable to overcharges that were
paid by the assignor but were not paid by the public body as part of the bid price,
less the expenses incurred in obtaining that portion of the recovery.”
"Upon demand in writing by the assignor, the assignee shall, within one year from
such demand, reassign the cause of action assigned under this part if the assignor has
been or may have been injured by the violation of law for which the cause of action
arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to
file a court action for the cause of action."
24.5.2 The Contractor hereby offers and agrees to assign to the Authority all rights, title, and
interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.
Code Section 15), arising from purchases of goods, services or materials pursuant to the
Contractor Documents or any Subcontract. This assignment shall be made and become
effective at the time the Authority tenders final payment to the Contractor, without further
acknowledgment by the parties.
25.0 WARRANTIES 25.1 Representations, Warranties And Covenants of Contractor 25.1.1 The Contractor has, and throughout the term of the Contract and performance of the
Work shall maintain, all required authority, license status, professional ability, skills and
capacity to perform Contractor’s obligations hereunder and shall perform them in accordance
with the requirements contained in the Contract Documents.
25.1.2 The Contractor shall comply with the provisions of Section 3700 of the Labor Code
which require every employer to be insured against liability for workers’ compensation or to
undertake self-insurance in accordance with the provisions of that Code, and the Contractor
will comply with such provisions before commencing the Work under the Contract
Documents and at all times during the term hereof, whether by provision of its own insurance
or self-insurance or through participation in the Contractor Controlled/Maintained Insurance
Program (“CCIP”).
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25.1.3 The Contractor shall at all times schedule and direct its Work to provide an orderly
progression of the Work to achieve Substantial Completion, Punch List Completion and
Final Acceptance in accordance with the approved Baseline Schedule, as appropriate,
including furnishing such employees, materials, facilities and equipment and working such
hours, including extra shifts, overtime operations, Sundays and holidays as may be necessary
to achieve such goal, all at the Contractor’s own cost except as otherwise specifically
provided in Section 19.
25.2 Overall Warranty The Contractor warrants that:
(a) All design Work, based on the Contract Documents, shall conform to all
professional architectural and engineering principles generally accepted as standards of the
industry in the State of California, and that the Work shall be constructible as designed.
(b) The Work shall be free of material Deficiencies, shall be fit for use for the
intended function, and shall meet all of the requirements of the Contract.
(c) The Goods furnished shall be new and of a quality that meets all of the
requirements of the Contract.
25.3 Warranty Term The Warranties shall commence at Substantial Completion and shall remain in effect until
one year after the Final Acceptance Date, subject to extension pursuant to Section 25.6. The
foregoing shall not, however, be deemed to entitle the Authority to require the Contractor to
correct any patent deficiencies beyond the limitations period stated in Code of Civil
Procedure Section 337.1. If the Authority determines that any of the Work has not met the
standards set forth in Section 25.2 at any time within the Warranty period, then the
Contractor shall correct such Work as specified below. The Authority and the Contractor
shall conduct a walkthrough of the Site at the end of each year during the Warranty period
and shall produce a punch list of those items requiring Warranty Work.
25.4 Remedy Within seven days of receipt by the Contractor of notice from the Authority specifying a
failure to meet the standards set forth in Section 25.2, the Contractor and the Authority shall
mutually agree when and how the Contractor shall remedy such violation; provided,
however, that in case of an emergency requiring immediate curative action, the Contractor
shall implement such action as it deems necessary and shall notify Authority of the urgency
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of a decision on a remedy. The Contractor and the Authority shall agree on such remedy
immediately upon notice by or to the Authority of such emergency. If the Contractor does
not use its best efforts to proceed to effectuate such remedy within the agreed time, or should
the Contractor and the Authority fail to reach such an agreement within such seven-day
period (or immediately, in the case of emergency conditions), the Authority, after notice to
the Contractor, shall have the right to perform (or have performed by third parties) the
necessary remedy, and the costs thereof shall be borne by the Contractor.
25.5 Permits and Costs The Contractor shall be responsible for complying with Section 23.2.2 in connection with
Warranty Work. The Contractor shall bear all costs of Warranty Work, including additional
testing and inspections, and shall reimburse the Authority or pay the Authority’s expenses
made necessary thereby within 10 days after the Contractor’s receipt of invoices therefore.
25.6 Warranty on Corrected Deficiencies
The Warranties shall apply to all Work re-done or replaced pursuant to the terms of the
Contract Documents. In the event any Work is re-done or replaced, the Warranty for such
Work shall extend to the later of one year after acceptance of the re-done or replaced Work
by Authority in accordance with the Contract Documents or the expiration of the Warranty
term, provided that the Warranty for re-done or replaced Work shall not extend beyond one
year after the expiration of the original Warranty term.
25.7 Subcontractor Warranties 25.7.1 Warranty Requirements
The Contractor shall obtain from all Subcontractors, and cause to be extended or transferred
to the Authority, appropriate representations, warranties, guarantees and obligations with
respect to design, materials, workmanship, equipment, tools and supplies furnished by such
Subcontractors. All representations, warranties, guarantees and obligations of Subcontractors
shall be written so as to survive all Authority and Contractor inspections, tests and approvals,
and shall run directly to and be enforceable by the Contractor and/or the Authority and their
respective successors and assigns. The Contractor hereby assigns to the Authority all of
Contractor’s rights and interest in all extended warranties for periods exceeding the
applicable warranty period which are received by the Contractor from any of its
Subcontractors.
25.7.2 Enforcement
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Upon receipt from Authority of notice of a failure of any of the Work to satisfy any
Subcontractor warranty, representation, guarantee or obligation, the Contractor shall be
responsible for enforcing or performing any such representation, warranty, guaranty or
obligation. The Authority’s rights under this Section 25.7.2 shall commence at the time such
representation, warranty, guaranty or obligation is furnished and shall continue until the
expiration of the Contractor’s relevant warranty (including extensions for redone Work).
Until such expiration, the cost of any equipment, material, labor (including re-engineering) or
shipping shall be the responsibility of the Contractor if such cost is covered by such a
warranty and the Contractor shall be required to replace or repair defective equipment,
material or workmanship furnished by Subcontractors.
25.8 Warranty Beneficiaries In addition to benefiting the Authority and its successors and assigns, the Warranties and
Subcontractor warranties provided under this Section 25 (including Warranties on Corrected
Deficiencies) shall inure to the benefit of, and shall be directly enforceable by, Settler,
Trustee and/or City, to the extent required under the MTA Agreement or the City Agreement.
25.9 Damages for Breach of Warranty The Contractor shall be liable for actual damages resulting from any breach of an express or
implied warranty or any defect in the Work. The obligation relating to breach of expressed or
implied warranty is subject to the limitation of liability described in Section 22.3.6.
25.10 Disputes Any disagreement between the Authority and the Contractor relating to this Section 25 shall
be subject to the dispute resolution provisions contained in Section 20, provided that the
Contractor shall proceed as directed by the Authority pending resolution of the dispute.
26.0 PARTNERING 26.1 Intent The Authority encourages partnering among the Authority, Contractor, and its
Subcontractors. The partnering process is intended to draw on the strengths of each
organization to help identify and achieve reciprocal goals, including achieving completion of
the Work on time, within budget and in accordance with its intended purpose. A primary
consideration of partnering is the prompt and equitable resolution of issues affecting the
conduct of the Work under the Contract Documents and the rights and responsibilities of the
respective parties.
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26.2 Participation and Responsibilities This partnering will be bilateral and participation will be voluntary but is strongly
encouraged by the Authority. Any cost associated with this partnering will be agreed to by
both parties and will be shared equally, except that the Contractor and the Authority will each
be responsible for the salaries, travel and subsistence costs of its own attendees.
26.3 Workshops Within 30 days of the Notice to Proceed for Design, the Contractor and the Authority will
mutually select a third-party facilitator to conduct the team building workshop for Contractor
and Authority personnel. The initial workshop should be held within 60 days of Notice to
Proceed. The workshop is expected to last approximately one day and will be held in close
proximity to the Authority’s offices. The Contractor’s and the Major Subcontractors’ key
staff as well as the Authority’s key staff responsible for the management and administration
of the Contract Documents should attend the workshop. During the initial workshop, a
program for the continuation and maintenance of the partnering initiative will be developed
for use through the duration of the Project.
Follow-up workshops may be held periodically throughout the duration of the Contract as
agreed by Contractor and Authority. The partnering sessions will focus on how to work
together to smoothly process payments, change orders, requests for information, delay
requests, substitutions and other typical interactions and interfaces between Contractor,
Authority and consultants. The sessions are meant to establish channels of communication to
maximize productivity of everyone working on the Project and minimize conflict.
26.4 Rights of Parties Either party may withdraw from partnering upon written notice to the other. However, no
claim or dispute settled or change approved through partnering shall be revived. The
establishment of a partnering charter will not change the legal relationship of the parties to
the Contract nor relieve either party from any of the terms of the Contract Documents.
27.0 DEFAULT; SUSPENSION OF WORK; TERMINATION 27.1 Default of Contractor 27.1.1 The Contractor shall be in default of the Contract upon the occurrence of any one or
more of the following events or conditions:
(a) The Contractor fails promptly to begin the Work under the Contract
Documents;
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(b) The Contractor fails to perform the Work in accordance with the Contract
Documents;
(c) The Contractor discontinues the prosecution of the Work (exclusive of work
stoppage (1) due to termination by the Authority, or (2) due to and during the continuance of
a Force Majeure event or suspension by the Authority);
(d) The Contractor fails to resume performance of Work which has been
suspended or stopped, within a reasonable time after receipt of notice from the Authority to
do so or (if applicable) after cessation of the event preventing performance;
(e) The Contractor becomes insolvent, or generally does not pay its debts as they
become due, or admits in writing its inability to pay its debts or makes an assignment for the
benefit of creditors;
(f) Insolvency, receivership, reorganization or bankruptcy proceedings have been
commenced by or against the Contractor;
(g) Any representation or warranty made by the Contractor in the Contract
Documents or any certificate, schedule, instrument or other document delivered by the
Contractor pursuant to the Contract Documents was false or materially misleading when
made;
(h) The Contractor breaches any agreement, representation or warranty contained
in the Contract Documents;
(i) The Contractor has assigned or transferred the Contract Documents or any
right or interest herein, except as expressly permitted under Section 28.4;
(j) The Contractor fails to discharge or obtain a stay of any final judgment(s) or
order for the payment of money against it in excess of $100,000 in the aggregate arising out
of the prosecution of the Work (provided that for purposes hereof posting of a bond in the
amount of 125% of such judgment or order shall be deemed an effective stay);
(k) The Contractor has failed, absent a valid dispute, to make payment when due
for labor, equipment or materials in accordance with its agreements with Subcontractors and
applicable law, or has failed to comply with any Governmental Rule or failed reasonably to
comply with the instructions of the Authority consistent with the Contract Documents.
27.1.2 The Contractor and its Surety under the Performance Bond shall be entitled to 15
days notice and opportunity to cure a breach (other than a breach described in (e), (f), or (g)
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of Section 27.1.1 or any breach which by its nature cannot be cured), provided that the
Contractor or the Surety commences such cure within such 15-day period and thereafter
diligently prosecutes such cure to completion. If such breach is capable of cure but by its
nature cannot be cured within 15 days, the Authority shall allow such additional period of
time as may be reasonably necessary to cure the breach. In the case of emergency, the
Authority shall have the right to shorten the cure period by so notifying the Contractor and
Surety.
27.2 Event of Default; Remedies 27.2.1 If any breach described in Section 27.1.1 is not subject to cure or is not cured within
the period (if any) specified in Section 27.1.2, the Authority may declare that an “Event of
Default” has occurred and notify the Contractor to discontinue the Work. The declaration of
an Event of Default shall be in writing and given to the Contractor and Surety. The Surety
shall have 30 days from the date of receipt of such notification to notify the Authority
whether it intends to assume responsibility for the Work. In addition to all other rights and
remedies provided by law or equity and such rights and remedies as are otherwise available
under the Contract Documents and the Performance Bond, the Authority may appropriate
any or all materials and equipment on the Site as may be suitable and acceptable and may
direct the Surety to complete the Work or may enter into an agreement for the completion of
the Work according to the terms and provisions of the Contract Documents with another
contractor or the Surety, or use such other methods as may be required for the completion of
the Work, including completion of the Work by the Authority.
27.2.2 If an Event of Default has occurred,
(a) The Contractor and Surety shall be liable to Authority (in addition to any
other damages under the Contract Documents other than those costs intended to be covered
by Liquidated Damages payable hereunder) for all costs reasonably incurred by the Authority
or any party acting on the Authority’s behalf in completing the Work or having the Work
completed by another Person; and
(b) The Authority shall be entitled to withhold all or any portion of further
payments to the Contractor until the Final Acceptance Date or the date on which the
Authority otherwise accepts the Project as complete or determines that it will not proceed
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with completion, at which time the Authority will determine whether the Contractor is
entitled to further payments.
27.2.3 Promptly following the Final Acceptance Date or the date on which the Authority
otherwise accepts the Project as complete or determines that it will not proceed with
completion, the total cost of all completed Work shall be determined, and the Authority shall
notify the Contractor and its Surety in writing of the amount, if any, that the Contractor and
its Surety shall pay the Authority or that the Authority shall pay the Contractor or its Surety
with respect thereto. All costs and charges incurred by the Authority, including attorneys’
fees and costs, together with the cost of completing the Work under the Contract Documents,
will be deducted from any moneys due or which may become due to the Contractor or its
Surety. If such expense exceeds the sum which would have been payable under the Contract
Documents, then the Contractor and its Surety shall be liable and shall pay to the Authority
the amount of such excess. If the Surety fails to pay such amount immediately upon the
Authority’s demand, then the Authority shall be entitled to collect interest from the Surety on
the amounts the Authority is required to pay in excess of the remaining balance of the
Contract Price. The interest rate, which the Surety shall pay, shall be 2% in excess of the
reference rate charged by Bank of America from time to time for prime commercial loans of
90-day maturities. The interest rate shall accrue on all amounts the Authority has had to pay
in excess of the remaining balance of the Contract Price from the date of the Authority
payment.
27.2.4 If the Contractor is adjudged a bankrupt or makes a general assignment for the benefit
of creditors, or if a receiver is appointed for the benefit of its creditors, or if a receiver is
appointed on account of the Contractor’s insolvency, such actions could impair or frustrate
the Contractor’s performance of the Work. Accordingly, it is agreed that upon the
occurrence of any such event, the Authority shall be entitled to request of the Contractor, or
its successor in interest, adequate assurance of future performance in accordance with the
terms and conditions hereof. Failure to comply with such request within five days of
delivery of the request shall entitle the Authority to terminate the Contract for default, and to
the accompanying rights set forth in this Section 27. Pending receipt of adequate assurance
of performance and actual performance in accordance therewith, the Authority shall be
entitled to proceed with the Work with its own forces or with other contractors on a time and
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material or other appropriate basis, the cost of which will be backcharged against the
Contractor and deducted from the Lump Sum Fixed Price.
27.2.5 In lieu of the provisions of this Section 27.2 for terminating the Contractor and
completing the Work for proper cause, the Authority may pay the Contractor for the parts
already completed according the Contract Documents and may treat the parts remaining
undone as if they had never been included or contemplated as part of the Work. No claim
under this provision will be allowed the Contractor for prospective profits on Work
uncompleted by the Contractor.
27.3 Failure to Comply Caused by Damage Event 27.3.1 An “Event of Default” described in Section 27.1.1(c)(2) shall specifically exclude the
Contractor’s falling behind on a Critical Path if caused solely by an event or events beyond
the Contractor’s control, which event was not due to an act or omission of the Contractor,
and which delay could not have been avoided by due diligence and use of reasonable efforts
by the Contractor (referred to herein as a “Damage Event,” with the understanding that the
term “Damage Event” does not apply in cases where the delay to the Critical Path is resolved
by extension of the applicable Completion Deadline under Section 19). The Contractor shall
promptly notify the Authority of any occurrence of a Damage Event.
27.3.2 If the Contractor falls behind on a Critical Path solely as the result of a Damage
Event, the Authority shall not be entitled to terminate the Contract or exercise any of the
remedies described in Section 27.2 for such failure of the Contractor to perform, except as
follows: if the Contractor fails to perform or delays the performance of any Work as the
result of a Damage Event, then the Authority shall have the right (but not the obligation) to
cause third parties perform such Work, and in such event the reasonable cost of such Work
shall be deducted from the Lump Sum Fixed Price. Furthermore, occurrence of a Damage
Event shall not excuse the Contractor from its obligation to implement a Recovery Schedule
or from its obligation to pay Liquidated Damages for failure to meet the Substantial
Completion Deadline.
27.4 Failure by Authority to Make Undisputed Payment The Contractor shall have the right to stop Work in the event of failure by the Authority to
make an undisputed payment due hereunder, but the Contractor shall not have the right to
terminate the Contract. Such work stoppage shall be considered a suspension for
convenience under Section 23.4.
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27.5 Termination for Convenience The Authority may terminate the Contract and the performance of the Work by the
Contractor in whole or, from time to time, in part, if the Authority determines, in its sole
discretion, that a termination is in the Authority’s best interest.
27.6 Notice of Termination for Convenience The Authority shall notify the Contractor of its decision to terminate for convenience by
delivering to the Contractor a written Notice of Termination or Notice of Partial Termination
specifying the extent of termination and its effective date. Termination (or partial
termination) of the Contract shall not relieve the Surety of its obligation for any just claims
arising out of the Work performed.
27.7 Contractor’s Responsibilities after Receipt of Notice of Termination After receipt of a Notice of Termination for convenience, and except as directed by the
Authority, the Contractor shall immediately proceed as follows, regardless of any delay in
determining or adjusting any amounts due under this Section 27:
(a) Stop Work as specified in the notice;
(b) Place no further Subcontracts or orders for materials, services or facilities
relating to the Work terminated, except as necessary for mitigation of damages;
(c) Unless instructed otherwise by the Authority, terminate all Subcontracts to the
extent they relate to the Work terminated;
(d) Assign to the Authority in the manner, at the times, and to the extent directed
by the Authority, all of the right, title, and interest of the Contractor under the Subcontracts
so terminated, in which case the Authority will have the right, in its sole discretion, to accept
performance, settle or pay any or all claims arising out of the termination of each such
Subcontract;
(e) Settle outstanding liabilities and claims arising out of such termination of
Subcontracts, with, to the extent required by the Authority, the approval or ratification of the
Authority, which approval or ratification shall be final;
(f) Transfer title to and deliver to the Authority, as directed by the Authority (1)
all Work in process, completed Work, supplies and other material produced or acquired for
the Work terminated, and (2) the Design Documents, Construction Documents and all other
completed or partially completed drawings (including plans, elevations, sections, details and
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diagrams), specifications, records, samples, information and other property which would
have been required to be furnished to the Authority if the Work had been completed;
(g) Complete performance in accordance with the Contract Documents of all
Work not terminated;
(h) Take all action which may be necessary, or the Authority may direct, for the
protection and preservation of the property related to the Contract Documents which is in the
possession of the Contractor and in which the Authority has or may acquire an interest; and
(i) As authorized by the Authority, use its best efforts to sell at reasonable prices
any property of the types referred to in Subsection (f) above; provided, however, the
Contractor (1) is not required to extend credit to any purchaser, and (2) may acquire such
property under the conditions prescribed and at prices approved by the Authority. The
Contractor shall apply the proceeds of any such sale or disposition to reduce any amounts
owed by the Authority under the Contract Documents, or if no amount is owing, the
Contractor shall apply such proceeds as directed by the Authority.
27.8 Inventory The Contractor shall submit to the Authority a list of termination inventory not previously
disposed of and excluding items authorized for disposition by the Authority, upon receipt of
a request therefore from the Authority. Within 45 days of the Authority’s receipt of the list,
the Contractor shall deliver such inventory to the Authority and the Authority shall accept
title to such inventory as appropriate.
27.9 Settlement Proposal After termination under this Section 27, the Contractor shall submit a final termination
settlement proposal to the Authority in the form and with the certification prescribed by the
Authority. The Contractor shall submit the proposal promptly, but no later than 60 days from
the effective date of termination unless the Authority has agreed in writing to allow such an
extension. If the Contractor fails to submit the proposal within the time allowed, the
Authority may determine, on the basis of information available to the Authority, the amount,
if any, due the Contractor because of the termination and shall pay the Contractor the amount
so determined.
27.10 Agreement as to Amount of Termination Settlement Any negotiated settlement under Section 27.9 may include an allowance for profit solely on
the Work that has been completed as of the effective date of termination. The negotiated
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settlement shall not include compensation for risks assumed by the Contractor hereunder or
for contingencies included in the Lump Sum Fixed Price, except to the extent of the
Contractor’s actual expenses relating to such risks and contingencies. Such agreed amount or
amounts, exclusive of any extra costs caused solely by the termination, shall not exceed the
total Lump Sum Fixed Price as reduced by the price of Work terminated. Upon
determination of the settlement amount, the Contract will be amended accordingly, and the
Contractor will be paid the agreed amount as described in this Section 27.10.
27.11 No Agreement as to Amount of Claim 27.11.1 In the event of failure of the Contractor and the Authority to agree upon the
whole amount to be paid to the Contractor by reason of the termination of Work pursuant to
this Section 27, the Authority will pay Contractor the sum of the following amounts
(exclusive of interest charges which shall be paid based on the Contractor’s actual cost) for
Work performed prior to the effective date of the termination, as such amounts are
determined by the Authority, and without duplication of any items or of any amounts agreed
upon in accordance with Section 27.9:
(a) The Contractor’s actual reasonable out-of-pocket cost (including costs of
construction equipment only to the extent allowed by Section 19) for all Work performed,
including reasonable overhead and interest and loan fees on amounts expended by the
Contractor, and accounting for any refunds payable to the Contractor with respect to
insurance premiums, deposits, cancellations or similar items, as established to the Authority’s
satisfaction;
(b) A sum, as profit on subsection (a) above, determined by the Authority to be
fair and reasonable; provided, however, if it appears the Contractor would have sustained a
loss on the entire Work had it been completed, no profit shall be included or allowed under
this Section 27.11.1(b) and an appropriate adjustment shall be made by reducing the amount
of the settlement to reflect the indicated rate of loss;
(c) The cost of settling and paying claims arising out of the termination of Work
under Subcontracts as provided in Section 27.7(e), exclusive of the amounts paid or payable
on account of supplies or materials delivered or services furnished by the Subcontractor prior
to the effective date of the termination, which amounts shall be included in the cost on
account of which payment is made under subsection (a) above; and
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(d) The reasonable out-of-pocket cost (including reasonable overhead) of the
preservation and protection of property incurred pursuant to Section 27.7(h) and any other
reasonable out-of-pocket cost (including overhead) incidental to termination of Work under
the Contract, including expense incidental to the determination of the amount due to the
Contractor as the result of the termination of Work.
27.11.2 The total amount to be paid to the Contractor, exclusive of costs described in
Sections 27.11.1(c) and (d), may not exceed the total Lump Sum Fixed Price less the amount
of payments previously made. Furthermore, in the event any refund is payable with respect
to insurance premiums, deposits or similar items which were previously passed through to
the Authority by the Contractor, such refund shall be paid directly to the Authority or
otherwise credited to the Authority. The Contractor shall not be entitled to any compensation
in excess of the value of the Work performed (determined as provided in Section 27.11.1)
plus any extra costs caused solely by the termination. The amount set forth in the Proposal by
the Contractor for the Work terminated shall be a factor to be analyzed in determining the
value of the Work terminated. Upon determination of the amount of the termination
payment, the Contract shall be amended to reflect the agreed termination payment, and the
Contractor shall be paid the agreed amount. Except for normal spoilage, and except to the
extent the Authority will have otherwise expressly assumed the risk of loss, there will be
excluded from the amounts payable to the Contractor under Section 27.11.1 or this
Section 27.11.2 the fair value, as determined by the Authority, of property which is
destroyed, lost, stolen, or damaged so as to become undeliverable to the Authority, or to a
buyer pursuant to Section 27.7(i).
27.11.3 If any termination hereunder is partial, the Authority shall determine whether
the scope of Work has changed sufficiently so as to make an adjustment in the Lump Sum
Fixed Price for the remainder of the Work as appropriate. The amount of any such
adjustment as may be agreed upon shall be set forth in a Change Order under Section 19
hereof.
27.12 Reduction in Amount of Claim The amount otherwise due the Contractor under this Section 27 shall be reduced by (a) the
amount of any claim which the Authority may have against the Contractor in connection with
performance of the Work, and (b) the agreed price for, or the proceeds of sale of, materials,
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supplies or other things acquired by the Contractor or sold, pursuant to the provisions of this
Section 27 and not otherwise recovered by or credited to the Authority. In the event the
Authority determines an offset hereunder was wrongfully made, the Authority will make the
payment owed within 30 days thereafter.
27.13 Partial Payment Pending a final agreement or determination as to the amount to which the Contractor is
entitled under this Section 27 for a termination or partial termination for convenience, the
Authority may, from time to time, under such terms and conditions as it may prescribe, and
in its sole discretion, make partial payments on account against amounts owed by it to the
Contractor in connection with the terminated portion of the Work, whenever in the opinion of
the Authority the aggregate of such payments shall be less than or equal to the amount to
which the Contractor will be entitled under this Section 27. If the total of such payments is
in excess of the amount finally agreed or determined to be due under this Section 27, such
excess shall be payable by the Contractor to the Authority within 30 days after demand. Any
amounts owing from the Authority to the Contractor under this Section 27 shall be paid
within a reasonable period of time after a final agreement or determination is made as to the
amount owing.
27.14 Inclusion in Subcontracts The Contractor shall insert in all Subcontracts a requirement that the Subcontractor shall stop
Work on the date and to the extent specified in a Notice of Termination from the Authority
and shall require Subcontractors to insert the same provision in each Subcontract at all tiers.
Immediately upon the Contractor’s receipt of any Notice of Termination issued by the
Authority, the Contractor shall communicate such notice to all affected Subcontractors.
27.15 Limitation on Amounts Payable to Subcontractors For the purposes of Sections 27.10 and 27.11, upon termination under Section 27.7(c) of
Work under any Subcontract which would have entitled the Subcontractor to gross proceeds
of $100,000 or more had it not been terminated, the Contractor will not be entitled to
reimbursement for that portion of the termination settlement with any such Subcontractor
which constitutes anticipatory or unearned profit on Work not performed, or which constitute
consequential damages on account of the termination or partial termination.
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27.16 No Consequential Damages or Unearned Profits to Contractor Under no circumstances shall the Contractor be entitled to anticipatory or unearned profits or
consequential or other damages as a result of a termination or partial termination under this
Section 27. The payment to the Contractor determined in accordance with this Section 27
constitutes the Contractor’s sole and exclusive remedy for a termination under this
Section 27.
27.17 No Waiver Notwithstanding anything to the contrary in the Contract Documents, a termination under
this Section 27 shall not waive any right or claim to damages which the Authority may have
and the Authority may pursue any cause of action which it may have at law or in equity or
under the Contract.
27.18 Dispute Resolution The failure of the parties to agree on amounts due under this Section 27 shall be a dispute to
be resolved in accordance with Section 20.
27.19 Allowability of Costs All costs claimed by the Contractor under this Section 27 shall, at a minimum, be allowable,
allocable and reasonable in accordance with the cost principles and procedures of Part 31 of
the Federal Acquisition Regulation and Office of Management and Budget (OMB) Circular
A-87, Cost Principles for State and Local Governments.
27.20 Suspension of Work In the event of any suspension of the Work by the Authority for more than 180 days, the
Contractor shall have the right to consider the Contract to have been terminated for
convenience under this Section 27. The Contractor shall notify the Authority of such
election by delivering to the Authority a written notice of termination due to such suspension,
specifying its effective date. Upon delivery by the Contractor to the Authority of a notice of
termination due to suspension, the provisions of this Section 27 shall apply.
27.21 Termination Due to Non-Appropriation of Funds 27.21.1 The Authority, its officers and its employees are not bound by the terms
hereof or obligated to make any payment hereunder for Work performed in any fiscal year
beyond the amount, if any, available to and budgeted by the Authority. The Contractor is not
obligated to perform Work, and correspondingly is not entitled to any compensation for
Work performed, in any fiscal year beyond the amount, if any, available to and budgeted by
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the Authority. The foregoing shall allow the Contractor to stop its performance of any Work
that is the subject of a dispute regarding entitlement to payment or amount payable, if the
Contractor reasonably determines that the total compensation payable for undisputed Work
to be performed during the fiscal year, plus the amount in dispute, would exceed the annual
limit described above. The Contractor shall consult with the Authority as soon as it
determines that a stoppage may occur, to allow the Authority the opportunity to seek
additional funding and avoid the stoppage.
27.21.2 In the event that the Authority fails to make an appropriation resulting in
stoppage of Work, the Contractor agrees to resume performance of the Work without any
modification to the terms and conditions hereof, provided that an appropriation (or other
required funding) is approved within 60 days after the start of the fiscal year in question. The
Contractor is responsible for maintaining all Contractor-provided insurance and bonds during
this 60-day period. Any such Work stoppage shall be considered a suspension for
convenience under Section 23.4.1. If funds are not appropriated or otherwise provided
before expiration of such 60-day period, the Contract shall be terminated. Any such
termination shall be considered a termination for convenience under Section 27.
Notwithstanding anything to the contrary contained in this Section 27, if the Contract is
terminated due to non-appropriation of funds, the Contractor shall be entitled to
compensation only for Work performed in the fiscal year in which funds were appropriated
up to the amount appropriated therefore, and shall not be entitled to any damages or other
payment in connection with the termination.
28.0 MISCELLANEOUS 28.1 Amendments These provisions may only be amended by a written instrument duly executed by the parties
or their respective successors or assigns.
28.2 Waiver Either party’s waiver of any breach or failure to enforce any of the terms, covenants,
conditions or other provisions of the Contract Documents at any time shall not in any way
limit or waive that party’s right thereafter to enforce or compel strict compliance with every
term, covenant, condition or other provision, any course of dealing or custom of the trade
notwithstanding. Furthermore, if the parties make and implement any interpretation of the
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Contract Documents without documenting such interpretation by an instrument in writing
signed by both parties, such interpretation and implementation thereof will not be binding in
the event of any future disputes.
28.3 Independent Contractor The Contractor is an independent contractor, and nothing contained in the Contract
Documents shall be construed as creating or constituting any relationship with the Authority
other than that of an independent contractor. In no event shall the relationship between the
Authority and the Contractor be construed as creating any relationship whatsoever between
the Authority and the Contractor’s employees. Neither the Contractor nor any of its
employees is or shall be deemed to be an employee of the Authority. Except as otherwise
specified in the Contract Documents, the Contractor has sole authority and responsibility to
employ, discharge and otherwise control its employees and has complete and sole
responsibility as a principal for its agents, for all Subcontractors and for all other Persons that
the Contractor or any Subcontractor hires to perform or assist in performing the Work.
28.4 Successors and Assigns The Contract Documents shall be binding upon and inure to the benefit of the Authority and
the Contractor and their permitted successors, assigns and legal representatives.
28.4.1 The Authority may not assign all or part of its right, title and interest in and to the
Contract, including rights with respect to the Payment and Performance Bonds, to any Person
without the prior written approval of the Contractor.
28.4.2 The Contractor may not delegate any of its duties hereunder, except to Subcontractors
as expressly otherwise permitted in the Contract Documents. The Contractor’s assignment or
delegation of any of its Work under the Contract Documents shall be ineffective to relieve
the Contractor of its responsibility for the Work assigned or delegated, unless the Authority
has granted prior written approval to such relief from responsibility. The Contractor may
assign its rights to receive payment under the Contract Documents. Any assignment of
money shall be subject to all proper set-offs and withholdings in favor of the Authority and to
all deductions provided for in this Design-Build Contract. If the Contractor is in default, all
money withheld, whether assigned or not, shall be subject to being used by the Authority for
completion of the Work.
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28.5 Designation of Representatives; Cooperation with Representatives 28.5.1 The Authority and the Contractor shall each designate an individual or individuals
who shall be authorized to make decisions and bind the parties on matters relating to the
Contract Documents. Such designations may be changed by a subsequent writing delivered
to the other party in accordance with Section 28.12. The parties may also designate technical
representatives who shall be authorized to investigate and report on matters relating to the
construction of the Project and negotiate on behalf of each of the parties but who do not have
authority to bind the Authority or the Contractor.
28.5.2 The Contractor shall cooperate with the Authority and all representatives of the
Authority designated as described above.
28.6 Gratuities and Conflicts of Interest 28.6.1 The Contractor shall not permit any member, officer, or employee of the Authority to
have any financial interest in the Contract prohibited by Sections 1090, et seq., and 87100, et
seq., of the Government Code. In addition, the Contractor or its employees shall not enter
into any contract involving services or property with a person or business prohibited from
transacting such business with the Authority, pursuant to Sections 1090, et seq., and 87100,
et seq., of the Government Code. Unless an explicit statement to the contrary accompanies
the Contractor’s Proposal Documents, the Contractor affirms that no Authority member,
officer, or employee of the Authority has any interest (whether contractual, non-contractual,
financial, or otherwise) in this transaction or in the business of the Contractor. If any such
interest becomes known to the Contractor at any time, the Contractor shall submit a full and
complete written disclosure of such information to the Authority, even if such interest would
not be considered a conflict under Sections 1090, et seq., and 87100, et seq., of the
Government Code.
28.6.2 Neither the Contractor nor any of its employees, agents and representatives shall offer
or give to an officer, official or employee of the Authority gifts, entertainment, payments,
loans or gratuities. The Authority may, by written notice to the Contractor, cancel the
Contract, or terminate the Contract for default if it is found that gratuities (in the form of
gifts, entertainment, or otherwise) were offered or given by the Contractor, or any agent of
the Contractor, to any Board member, officer, agent and/or employee of the Authority.
28.6.3 Employment by the Contractor of personnel on the payroll of the Authority is not
permitted in the performance of the Contract, even though such employment may be outside
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the Authority employee’s regular working hours or on Saturdays, Sundays, holidays or
vacation time; further, employment by the Contractor of personnel who have been on the
Authority’s payroll within one year prior to the date of Contract award, where such
employment is caused by and/or dependent upon the Contractor securing this or a related
Contract with the Authority, is also prohibited.
28.6.4 The rights and remedies of the Authority specified in this Section 28.6 are not
exclusive and are in addition to any other rights and remedies allowed by law.
28.7 Survival The dispute resolution provisions contained in Section 20, and all other provisions which by
their inherent character should survive termination of the Contract and/or Final Acceptance,
shall survive the termination of the Contract and the date on which Final Acceptance occurs.
28.8. Limitation on Third Party Beneficiaries It is not intended by any of the provisions of the Contract Documents to create any third
party beneficiary hereunder, other than the Trustee or Settlor, or to authorize anyone not a
party hereto to maintain a suit for personal injury or property damage pursuant to the terms or
provisions hereof. The duties, obligations and responsibilities of the parties to the Contract
Documents with respect to such third parties shall remain as imposed by law. The Contract
Documents shall not be construed to create a contractual relationship of any kind between
Authority and a Subcontractor or any other person except the Contractor.
28.9 Personal Liability of Authority Employees The Authority’s authorized representatives are acting solely as agents and representatives of
the Authority when carrying out the provisions of or exercising the power or authority
granted to them under the Contract. They shall not be liable either personally or as
employees of the Authority for actions in their ordinary course of employment. No agent,
consultant, board member, officer or authorized employee of the Authority shall be
personally responsible for any liability arising under the Contract Documents.
28.10 No Estoppel The Authority shall not, nor shall any officer thereof, be precluded or estopped by any return
or certificate made or given by any Authority representative or other officer, agent, or
employee of the Authority under any provisions of the Contract Documents at any time
(either before or after the final completion and acceptance of the Work and payment
therefore) at any time:
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(a) from showing the true and correct amount and character of the work done or
materials furnished by the Contractor or any subcontractor or other person engaged in the
performance of the Work;
(b) from showing that any such return or certificate is untrue and incorrect, or
improperly made in any particular; or that the work and materials, or any part thereof, do not
in fact conform to the Contract Documents, or
(c) from demanding and recovering from the Contractor such damages as it may
sustain by reason of Contractor’s failure to comply with the Contract Documents.
28.11 Governing Law and Venue The Contract Documents shall be governed by and construed in accordance with the law of
the State of California. The venue of any proceeding for the litigation and/or resolution of
any dispute under the Contract Documents shall be the County of Los Angeles, California.
28.12 Notices and Communications 28.12.1 Notices under the Contract Documents shall be in writing and delivered personally,
or sent by certified mail, return receipt requested, or sent by a recognized overnight mail or
courier service, with delivery receipt requested, or sent by facsimile communication followed
by a hard copy and with receipt confirmed by telephone, to the following addresses (or to
such other address as may from time to time be specified in writing by such person):
All correspondence with Contractor shall be sent to the Project Manager or as otherwise
directed by the Project Manager. The address for such communications shall be:
FCI / Fluor / Parsons, a joint venture 15701 Heron Avenue La Mirada, California 90638
In addition, copies of all notices to proceed and suspension, termination and default notices
shall be delivered to the following persons:
FCI / Fluor / Parsons, a joint venture Ray Hughes, Project Manager 15701 Heron Avenue La Mirada, California 90638
All communications to the Authority shall be marked with Authority’s contract identification
number and shall be delivered as directed by Authority’s Chief Executive Officer.
28.12.2 Notices shall be deemed received when actually received in the office of the
addressee (or by the addressee if personally delivered) or when delivery is refused, as shown
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on the receipt of the U. S. Postal Service, private carrier or other person making the delivery.
Notwithstanding the foregoing, notices sent by facsimile after 4:00 p.m. Pacific Standard or
Daylight Time (as applicable) and all other notices received after 5:00 p.m. shall be deemed
received on the first business day following delivery (that is, in order for a fax to be deemed
received on the same day, at least the first page of the fax must have been received before
4:00 p.m.). Any technical or other communications pertaining to the Work shall be
conducted by the Project Manager and technical representatives designated by the Authority.
The Contractor’s representatives shall be available at all reasonable times for consultation.
Except as otherwise provided in Section 28.5.1, each party’s representative shall be
authorized to act on behalf of such party in matters concerning the Work.
28.12.3 The Contractor shall copy the Authority on all written correspondence pertaining to
the Work between the Contractor and any person other than the Contractor’s Subcontractors,
consultants and attorneys.
28.13 Further Assurances The Contractor shall promptly execute and deliver to the Authority all such instruments and
other documents and assurances as are reasonably requested by the Authority to further
evidence the obligations of the Contractor hereunder, including assurances regarding
assignments of Subcontractors.
28.14 Severability If any clause, provision, section or part of the Contract Documents is ruled invalid by a court
of competent jurisdiction, then the parties shall: (a) promptly meet and negotiate a substitute
for such clause, provision, section or part, which shall, to the greatest extent legally
permissible, effect the original intent of the parties, including an equitable adjustment to the
Contract Price to account for any change in the Work resulting from such invalidated portion;
and (b) if necessary or desirable, apply to the court which declared such invalidity for a
judicial construction of the invalidated portion to guide the negotiations. The invalidity or
unenforceability of any such clause, provision, section or part shall not affect the validity or
enforceability of the balance of the Contract Documents, which shall be construed and
enforced as if the Contract Documents did not contain such invalid or unenforceable clause,
provision, section or part.
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28.15 Headings The captions of the sections of the Contract Documents are for convenience only and shall
not be deemed part of the Contract Documents or considered in construing the Contract
Documents.
28.16 MTA Provisions The Contractor shall comply with the requirements set forth in Appendix 6 hereto. The
Contractor shall include a provision in each Subcontract requiring the Subcontractor to
comply with the requirements of Appendix 6 (Trust Agreement) hereto on the same terms as
does the Contractor and shall require that the Subcontractor insert the same provision in each
Subcontract at all tiers.
28.17 Entire Agreement The Contract Documents contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements, understandings, statements,
representations and negotiations between the parties with respect to its subject matter.
28.18 Patents and Copyrights The Contractor warrants that the materials, equipment, devices, or processes used on or
incorporated into the Work shall be delivered free of any rightful claim of any third party for
infringement of any patent or copyright. The Contractor shall defend or may settle, at its
expense, any suit or proceeding against the Authority or its representatives based on claimed
infringement that would result in a breach of this warranty. The Contractor shall pay all
damages and costs awarded therein due to such breach, unless a suit is brought concerning a
product or material specified for use by the Authority.
The Contractor shall bear all costs arising from the use of patented materials, equipment,
devices, or processes used on or incorporated into the Work. In case material, equipment,
devices, or processes are held to constitute an infringement and their use is enjoined, the
Contractor, at its expense, shall:
(a) secure for the Authority the right to continue using said materials, equipment,
devices, or processes by suspension of the injunction or by procuring a license or licenses;
(b) replace such materials, equipment, devices, or processes with non-infringing
materials, equipment, devices, or processes; or
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(c) modify them so they become noninfringing or remove the enjoined materials,
equipment, devices, or processes and refund the sum paid without prejudice to any other
rights of the Authority.
28.19 Attorney’s Fees In the event of litigation between the parties the prevailing party in any proceeding (including
appeals) shall be entitled to recover from the losing party reasonable costs and court costs,
including reasonable attorneys’ fees, expert witness fees and the reasonable cost of the
arbitrator or other dispute resolver, as determined by the person(s) resolving the dispute.
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IN WITNESS WHEREOF, the Contract has been executed as of the last date set forth next to
the signatures of the parties, below.
Date: __________, 2006 EXPOSITION METRO LINE CONSTRUCTION AUTHORITY By:
APPROVED AS TO FORM: Richard D. Thorpe, Chief Executive Officer Nossaman, Guthner, Knox & Elliott, LLP General Counsel By: ________________________
Date: __________, 2006 FCI/FLUOR/PARSONS, a joint venture
FCI Constructors, Inc., a California corporation
By: ____________________ Robert M. Schraeder, Attorney-in-Fact
Fluor Enterprises, a California corporation
By: ____________________ Terry Towle, Attorney-in-Fact
Parsons Transportation Group, an Illinois corporation
By: ____________________ Robert Bax, Attorney-in-Fact
Contractor's License No.: 870128\
Exposition Metro Line Construction Authority Contract No1-06 TABLE OF CONTENTS
Mid-City/Exposition Light Rail Transit Project March 17, 2006 Conformed Design-Build Contract i Appendices to General Provisions
APPENDICES APPENDIX 1 ABBREVIATIONS AND DEFINITIONS APPENDIX 2 DESIGN SERVICES CERTIFICATION FOR REQUEST FOR PAYMENT APPENDIX 2A PROFESSIONAL SERVICES CERTIFICATION FOR REQUEST FOR
PAYMENT APPENDIX 3 SUBCONTRACTOR / DBE SCHEDULE / FORMS APPENDIX 4 DISPUTES REVIEW BOARD AGREEMENT APPENDIX 5 DESIGNATION OF INITIAL REPRESENTATIVES APPENDIX 6 DRAFT MTA/AUTHORITY TRUST AGREEMENT PROVISIONS APPENDIX 7 PERFORMANCE BOND APPENDIX 8 PAYMENT (MATERIAL AND LABOR) BOND APPENDIX 9 PARCEL AVAILABILITY MATRIX APPENDIX 10 FORM PP – PROPOSAL PRICE
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
Mid-City/Exposition Light Rail Transit Project Appendix 1 March 17, 2006 Conformed Design-Build Contract Page 1 Appendices to General Provisions
As used in the Contract to which this Appendix is attached and in the Contract Documents described therein, the following abbreviations and terms shall have the meanings set forth below. References to Sections shall mean Sections of the Contract unless otherwise specified.
APPENDIX 1 ABBREVIATIONS AND DEFINITIONS
ABBREVIATIONS
AAN American Association of Nurserymen, Inc. AAR Association of American Railroads AASHTO American Association of State Highway and Transportation
Officials ACI American Concrete Institute ADA Americans with Disabilities Act ADU Aspects Display Unit AEIC Association of Edison Illuminating Companies AFI American Filter Institute AGC Association of General Contractors of America AGMA American Gear Manufacturers Association AI Asphalt Institute AIA American Institute of Architects AISC American Institute of Steel Construction AISC-SJI American Institute of Steel Construction - Steel Joist Institute AISI American Iron and Steel Institute AJCHN American Joint Committee on Horticulture Nomenclature AMCA Air Moving and Conditioning Association AMTRAK National Railroad Passenger Corporation ANSI American National Standards Institute (Formerly USASI, United
States of American Standards Institute, and ASA, American Standard Association)
APA American Plywood Association (Formerly Douglas Fir Plywood Association)
API American Petroleum Institute APTA American Public Transit Association ARA American Railway Association AREA American Railway Engineering Association AREMA American Railway Engineering and Maintenance of Way
Association ASA See ANSI ASNS American Standards for Nursery Stock ASCE American Society of Civil Engineers ASHRAE American Society of Heating, Refrigerating and Air Conditioning
Engineers
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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ASLA American Society of Landscape Architects ASME American Society of Mechanical Engineers ASQC American Society of Quality Control ASTM American Society for Testing and Materials ATMS Automated Traffic Management System ATS Administrative Telephone System ATSAC Automated Traffic Surveillance and Control System ATSF Atchison Topeka & Santa Fe Railroad (See BNSF) AWG American Wire Gauge AWPA American Wood Preservers' Association AWS American Welding Society AWWA American Water Works Association BAFO Best and Final Offer BDS Bridge Design Specifications BLS Bureau of Labor Statistics BNSF Burlington Northern & Santa Fe Railroad (formerly ATSF) BOCA Building Officials Conference of America CADD Computer-Aided Design and Drafting Cal-OSHA California Occupational Safety and Health Administration Caltrans State of California Department of Transportation CBD Curve Braking Distance CCC Central Control Console CCF Central Control Facility CCI Construction Cost Index CCIP Contractor Controlled Insurance Program CCO Central Control Operator CCR California Code of Regulations CCTV Closed Circuit Television CDRL Contract Data Requirements List CEO Chief Executive Officer CFR Code of Federal Regulations CNEL Community Noise Equivalent Level CPCC California Public Contract Code CPM Critical Path Method CPUC California Public Utilities Commission CRSI Concrete Reinforcing Steel Institute CSI Construction Specifications Institute CTC California Transportation Commission CWR Continuous Welded Rail D-B Design-Build dB Decibel DC Direct Current DTE Diagnostic and Test Equipment
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
Mid-City/Exposition Light Rail Transit Project Appendix 1 March 17, 2006 Conformed Design-Build Contract Page 3 Appendices to General Provisions
DUA Digital Voice Annunciation DWP Department of Water and Power of the City of Los Angeles EEI Edison Electric Institute EEO Equal Employment Opportunity EIA Electronic Industries Association EMC Electromagnetic Compatibility EMI Electromagnetic Interference EPA Environmental Protection Agency EPROM Erasable Programmable Read-Only Memory ETS Emergency Trip Stations FCC Federal Communications Commission FEMA Federal Emergency Management Agency FHWA Federal Highway Administration of the U.S. Department of
Transportation FLSC Fire/Life Safety Committee FMEA Failure Modes and Effects Analysis FMP Fire Management Panel FRA Federal Railroad Administration FRACA Failure Reporting, Analysis and Corrective Action FS Federal Specification FSS Federal Specifications and Standards, General Services
Administration FTA Federal Transit Administration GO General Order (pertaining to the CPUC) HVAC Heating, Ventilation & Air Conditioning IC Internal Combustion ICC Interstate Commerce Owner IEC International Electrotechnical Commission IEEE Institute of Electrical and Electronic Engineers IES Illuminating Engineering Society IMSA International Municipal Signal Association IOS Initial Operating Segment IPCEA Insulated Power Cable Engineers Association ISO International Standards Organization ITE Institute of Transportation Engineers JIC Joint Industrial Council JRG Joint Review Group LADOT City of Los Angeles Department of Transportation LCP Local Control Panel LED Light Emitting Diode LLRU Lowest Level Replaceable Unit LRT Light Rail Transit LRU Line Replaceable Unit
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
Mid-City/Exposition Light Rail Transit Project Appendix 1 March 17, 2006 Conformed Design-Build Contract Page 4 Appendices to General Provisions
LRV Light Rail Vehicle M&SF Maintenance and Storage Facility MBE Minority Business Enterprise MI&H Mobility Impaired and Handicapped MIL Military Specification MP Management Provisions MRTC Metro Rail Transit Consultants MTA Los Angeles County Metropolitan Transportation Authority MTBF Mean Time Between Failures MTTR Mean Time-to-Restore MUTCD Manual of Uniform Traffic Control Devices NBFU National Board of Fire Underwriters NBHA National Builders Hardware Association NBS National Bureau of Standards NCR Non Conformance Report NEC National Electrical Code NEMA National Electrical Manufacturers' Association NESC National Electric Safety Code NFPA National Fire Protection Association NIST National Institute of Standards and Technology NLMA National Lumber Manufacturers' Association NPDES National Pollutant Discharge Elimination Systems NPRD Non-electric Parts Reliability Data NRC Noise Reduction Coefficient NTP Notice to Proceed NVLAP National Voluntary Laboratory Accreditation Program OBE Other Business Enterprise OCIP Owner Controlled Insurance Program OCS Overhead Contact System O&M Operations and Maintenance O&SHA Operating & Support Hazard Analysis OEM Original Equipment Manufacturer OSHA Occupational Safety and Health Administration, and Occupational
Safety and Health Act of 1970, and amendments thereto; United States Department of Labor
PA Public Address PCA Portland Cement Association PCC Public Contract Code PCI Prestressed Concrete Institute PCO (Notice of) Proposed Change PDS Power Distribution System PDSR Project Development Status Report
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
Mid-City/Exposition Light Rail Transit Project Appendix 1 March 17, 2006 Conformed Design-Build Contract Page 5 Appendices to General Provisions
PGL Profile Grade Line PHA Preliminary Hazard Analysis PM Preventative Maintenance PMC Project Management Consultant PROM Program Read-Only Memory PUC Public Utilities Code PWP Pasadena Water and Power QA/QC Quality Assurance and Quality Control RAC Reliability Analysis Center RDT Reliability Demonstration Test RFI Radio Frequency Interference RFP Request for Proposals RFSC Request for Special Consideration RMA Rubber Manufacturer's Association RMS Root Mean Square RM&S Reliability, Maintainability and Safety ROD Revenue Operations Date ROM Read-Only Memory ROW Right-of-Way SAE Society of Automotive Engineers SAPP Systems Assurance Program Plan SBD Safe Braking Distance SCADA Supervisory Control and Data Acquisition SCAQMD South Coast Air Quality Management District SCAT Simple Catenary, Auto-Tensioned SCE Southern California Edison SCFT Simple Catenary, Fixed Termination SCIL Safety-Critical Items List SCPI Structural Clay Products Institute SCPM Safety-Critical Preventative Maintenance SCPP Safety Certification Program Plan SCR Safety Certification Report SDI Steel Door Institute SIMP Systems Interface Management Plan SMACNA Sheet Metal and Air Conditioning Contractors National Association,
Inc. SP or SPTC Southern Pacific Transportation Company SPD System Performance Demonstration SPI Society of the Plastics Industry SPN Standardized Plant Names SSPC Steel Structures Painting Council SSPP System Safety Program Plan
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
Mid-City/Exposition Light Rail Transit Project Appendix 1 March 17, 2006 Conformed Design-Build Contract Page 6 Appendices to General Provisions
SSPWC Standard Specifications for Public Works Construction SWFT Single Wire, Fixed Termination T/R Top of Rail TOR Top of Rail TP Technical Provisions TPOCR Traction Powered OCS Capacity Report TPPSR Traction Power Short-Circuit and Protection Settings Report TPSS Traction Power Substation TVM Ticket Vending Machine UBC Uniform Building Code of the International Conference of Building
Officials UFAS Uniform Federal Accessibility Standards UL Underwriters' Laboratories, Inc. UPRR Union Pacific Railroad UPS Uninterruptible Power Supply USAS United States of American Standards (See ANSI) USASI See ANSI U.S.C. United States Code USDOT United States Department of Transportation USSG United States Standard Gage (for uncoated sheets and thin plates) USSWG United States Steel Wire Gage VE Value Engineering VECP Value Engineering Change Proposals VDC Volts Direct Current VMS Variable Message Sign WBE Women Business Enterprise WCLA West Coast Lumbermen's Association WUTC Western Union Telegraph Company
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
Mid-City/Exposition Light Rail Transit Project Appendix 1 March 17, 2006 Conformed Design-Build Contract Page 7 Appendices to General Provisions
DEFINED TERMS
“Abandoned Utility Work” shall mean the work necessary to properly abandon and/or remove Utilities that are not in use as of the date the Contract is awarded.
“Acceleration Costs” shall mean those fully documented increased costs reasonably incurred by Contractor (that is, costs over and above what Contractor would otherwise have incurred) which are directly attributable to increasing the performance level of the Work in an attempt to complete necessary segments of the Work earlier than otherwise anticipated, such as for additional equipment, additional crews, lost productivity, overtime and shift premiums, increased supervision and any unexpected material, equipment or crew movement necessary for resequencing in connection with acceleration efforts. Profit, overhead and indirect costs in connection with acceleration efforts shall not exceed the limits set forth in Contract Section 19.
“Acceptance” shall mean a conditional determination by the Authority’s Authorized Representative of completion of the Work or any element thereof in accordance with the Contract, by issuance of a Certificate of Substantial Completion of the Work or any element thereof, as provided in the contract.
“Affiliate” shall mean (a) any Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, Contractor or any of its members, partners or shareholders holding a 10% or greater interest in Contractor; and (b) any Person for which 10% or more of the equity interest in such Person is held directly or indirectly, beneficially or of record by (i) Contractor, (ii) any of Contractor’s members, partners or 10% or greater shareholders or (iii) any Affiliate of Contractor under part (a) of this definition. For purposes of this definition the term "control" means the possession, directly or indirectly, of the power to cause the direction of the management of a Person, whether through voting securities, by contract, family relationship or otherwise.
"Alteration" shall mean a change or substitution in the form, character, or detail of the work done or to be done within the original scope of the Contract.
“Application for Final Payment” shall mean Contractor's written request for Final Payment of the Contract Price including reconciliation of all claims, changes or other proper adjustments to the Contract Documents, as described in Contract General Provisions Section 18.15.
"Approval" shall mean acceptance in writing by Authority, or Authority’s designated representative, as applicable. Authority’s approval of Design Documents for construction as described in the Scope of Work shall constitute approval of the design by the Authority for purposes of Government Code section 830.6, but shall not be deemed to relieve Contractor of liability for the design.
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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"Approved or Approved Type" shall mean design type material, procedure, or method given approval by Authority, or Authority’s designated representative, as applicable.
“As-Built” Drawings shall have the meaning set forth in the Scope of Work and General Requirements Section 1720.
“Authority” means the Exposition Metro Line Construction Authority, a public entity of the State of California, and includes any officer or employee authorized to act on behalf of the Authority by State Law or by action of its governing body.
“Authority-Caused Delay” shall mean delays, to the extent that they affect a Critical Path, arising from the following matters and no others: (a) a suspension order pursuant to Contract General Provisions Section 23.4, (b) Authority-Directed Changes, (c) failure or inability of Authority to provide access to the Right of Way as provided in Contract Section 3.3 (subject to Contractor’s obligations set forth therein), (d) failure or inability of Authority to provide responses to proposed schedules, plans, Design Documents and other submittals and matters for which response is required, within the time periods indicated in the Contract Documents, (e) uncovering, removing and restoring Work, to the extent provided in Scope of Work and General Requirements, (f) failure or inability of Authority to timely deliver the Authority-Furnished Materials, (g) delay in issuance of NTP or an interim NTP by the date established by the Authority, and (h) any improper action by Authority’s designated representative with binding authority as specified in General Provisions Contract Section 28.5 entitled, Designation of Representatives; Cooperation with Representatives, any improper action of the Program Manager pursuant to authority as specified in the Contract, or any improper failure to act by Authority within a reasonable time after delivery of notice by Contractor to Authority requesting such action , (i) any improper action of, or any improper failure to timely act by, any contractor under the Authority’s direct control; or (j) any failure or unsuitability of fare collection equipment or Vehicles furnished by the Authority. Any court order to suspend Work shall not be considered an Authority-Caused Delay (although it may qualify as a Force Majeure event) despite the fact that Authority may specifically direct Contractor to comply with the court order.
“Authority-Directed Change(s)” shall mean any change in the Work (including changes in the standards applicable to the Work), which the Authority has directed the Contractor to perform as described in Contract Section 19.
“Authority Furnished Materials” shall have the meaning set forth in Scope of Work Section entitled, Authority Furnished Materials and Equipment.
"Availability" shall mean the probability that a given system is operational or ready to be placed in operation.
"Baseline Drawings" shall mean the drawings set forth in Scope of Work.
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ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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"Baseline Requirements" or "Baseline Project Requirements" shall mean the Baseline Project Requirements as defined in General Requirements Section 01100.
“Baseline CPM Contract Schedule” shall have the meaning set forth in General Requirements Section 01310.
“Betterment” shall mean the upgrading of a Utility being Relocated that is not attributable to construction of the Project or is made solely for the benefit of and at the election of the Utility Owner. The primary aim of Betterment is to make the facility affected more useful, functional, durable, efficient, or of greater capacity. Betterment shall not include technological improvements, which are able to achieve greater usefulness, efficiency, durability or capacity at costs equal to or less than the cost of a “like-for-like” replacement or relocation. Notwithstanding the foregoing, for purposes of General Provisions Section entitled, Responsibility for Utility Relocations / Rearrangements and Changes in City Facility Work, the term “Betterment” shall have the meaning set forth in each City Agreement.
"Car" See Vehicle.
"Central Control Console" (CCC) shall mean the Central Control Operators' work station(s) within the Central Control Facility, consisting of displays and controls that permit all necessary interfaces with the communications subsystems.
"Central Control Facility" (CCF) shall mean a room within the M&SF in which the Central Control Operators perform their tasks and duties.
"Central Control Operator" (CCO) shall mean any operations staff member whose work area is the CCF and who uses communication and other equipment to interact with the System to achieve optimum System performance. CCO can refer to one or more such persons when describing actions or capabilities.
"Certificate of Final Acceptance" shall mean the formal written acknowledgment issued by Authority to Contractor that all Work has been fully completed in accordance with the Contract Documents.
"Certificate of Substantial Completion" shall mean the formal written acknowledgment issued by Authority to Contractor that the Project has attained Substantial Completion.
“Change Order” shall have the meaning set forth in Contract Section 19 of the General Provisions.
"Check-Redundant Characteristic" shall mean a system design characteristic involving cross-comparison of two or more sub-systems with a combined probability of failure low enough to ensure safe operation of the system.
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ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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“City” shall mean individually and/or collectively, as the context may require, the City of Los Angeles, the City of Culver City, Caltrans, and Los Angeles County excluding, in the context of Utility Work, DWP.
“City Agreements” shall mean, individually and/or collectively, as the context may require, the Draft City Agreements, as the same may be modified or amended from time to time by versions (executed or unexecuted) provided by Authority to Contractor and identified as such by Authority.
"City Facility" shall have the meaning set forth in each City Agreement.
"City Facility Work" shall mean the Work associated with Rearrangement of City Facilities, including the Work described in General Provisions Section entitled, Responsibility for Utility Relocations / Rearrangements and Changes in City Facility Work.
“City Project” shall have the meaning set forth in each City Agreement.
“City Utility” shall mean any Utility owned or operated by each City, excluding any Utilities owed or operated by DWP.
“Claim” shall mean a separate demand by Contractor for (a) a time extension which is disputed by Authority, or (b) payment of money or damages arising from work done by or on behalf of Contractor in connection with this Contract which is disputed by Authority. For purposes of determining the jurisdiction of the Disputes Board, arbitrator or referee, Claims and other disputes shall be valued based on the amount claimed exclusive of interest, costs and attorneys’ fees. The Disputes Board may require consolidation of related Claims if requested by either party, but consolidation of separate Claims shall not affect jurisdiction of the Disputes Board, arbitrator or referee with respect to each Claim. Except as specified in Contract General Provisions Section 20, all requests for time extensions and all disputes seeking equitable relief, such as but not limited to specific enforcement of any provision of the Contract Documents are deemed to have a value less than or equal to $1,000,000. A Claim will cease to be a Claim upon resolution thereof, including resolution by delivery of a Change Order or Contract amendment signed by all parties.
“Completion Deadline(s)” shall mean the Substantial Completion Deadline as set forth in General Provisions, Section 23.2.
“Compensable Delay” shall have the meaning set forth in Contract Section, General Provisions, Section 19.
“Concurrent Delay” shall mean if Contractor is delayed by any act or event that would otherwise be a Compensable Delay, but the Delay is concurrently caused by any Excusable (but not Compensable) Delay or any Inexcusable Delay, Contractor’s remedy shall be the same as for an Excusable Delay, and the Authority will, by Change Order or other
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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Modification, extend the Contract Time. Contractor will not be entitled to any change in the Total Contract Price or any other compensation. Delays will not be Concurrent to the extent that one Delay affects the Critical Path Schedule and the other Delay does not. In that event, the sole Delay will be the one that affects the Critical Path Schedule. The Change Order or other Modification extending Contract Time for a Concurrent Delay will be Contractor’s sole remedy arising out of the Concurrent Delay.
"Conduit" shall mean any conduit, casing, sleeve, hanger, attachment, or blockout for installation or protection of Utilities attached to or installed through structures, or installed under rail or roadway crossings, and any associated pull-ropes for Utility cables.
"Consist" shall mean one or more vehicles operating as a single unit.
“Construction Allowance” means the budget for the Construction Work (or for a specific package of the Work), as established and identified by the Authority in the RFP and General Provisions Section 15.0.
“Construction Contingency” means an amount to cover risks and unanticipated Project costs as specified in General Provisions Section 15.4.
“Construction Documents” shall mean all shop drawings, working drawings and samples necessary for construction of the Project in accordance with the Contract Documents.
“Construction Fee” shall mean the construction portion of the Proposal Price set forth in Appendix 10.
“Construction Price” means the price for the Construction Work negotiated by the Authority and the Contractor at or, near the completion of Design Services.
“Construction Work” or “Construction Scope” means the construction of stations, facilities, trackwork/line segments, civil elements, and systems; utilities relocation; project management; and supply of materials and equipment and all other tasks and activities necessary to build the Project and make it ready for revenue operations. The Scope of the Construction Work is set forth in the Scope of Work and General Requirements Sections.
“Contaminated Groundwater” shall mean extracted groundwater including contaminants above legally-permitted discharge levels so as to require treatment prior to re-use or disposal. Contaminated groundwater which may legally be re-used without treatment, including use for dust control, or which merely requires dilution prior to re-use or disposal, shall specifically be excluded from the term.
"Contract" shall mean, depending on the context, (a) the Design-Build Contract, or (b) collectively, the Contract Documents which establish the respective rights and obligations of Authority and Contractor.
"Contract Data Requirements List" shall mean the list set forth in Scope of Work
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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“Contract Documents” means the entire set of terms, conditions, requirements and directions which collectively constitute the obligations of the Contractor in the performance of the Work, including all exhibits, attachments, appendices, amendments thereto and all change orders issued. The order of precedence of the Contract Documents is set forth in Section 1.2 of these General Provisions.
“Contracting Plan” shall have the meaning set forth in Section 16 of these General Provisions.
“Contract Specifications” shall mean the specifications describing the Work that are developed by the Contractor.
“Contract Time” shall mean the Substantial Completion Deadline, with respect to the Work required to be completed as a condition to Substantial Completion and/or the Final Acceptance Deadline with respect to the Work required to be completed as a condition to Final Acceptance.
"Contractor" means the person identified as the Contractor or Design-Builder responsible for carrying out the Design Scope, the Professional Services Scope and the Construction Scope, in accordance with the Contract Documents. The terms “Contractor” and “Design-Builder” are interchangeable terms.
“Contractor Maintained Insurance (or CCIP)” shall have the meaning set forth in Contract General Provisions Section 22.2.
"Contractor's Utility Report" shall mean the list of Utilities likely to be impacted by the Project to be provided by Contractor with the Utility Sheet submittals, as more specifically provided in General Requirements Section 01180.
“Critical Path and Critical Path Schedule (CPM)” shall mean each critical path on the Preliminary Schedule, Baseline Schedule or Working Schedule, as appropriate, which ends on a Completion Deadline (i.e. the term shall apply only following consumption of all available Float). The lower case term "critical path" shall mean the activities and durations associated with the longest path(s) through the Preliminary Schedule, Baseline Schedule or Working Schedule, as appropriate. The Critical Path Schedule is the schedule developed by the Contractor for the performance of the Design Scope and the Construction Scope as described in General Requirements Section 01310.
“Damage Event” shall have the meaning set forth in Contract Section 19..
“Day or Days” shall mean calendar day, unless otherwise stated.
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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“DBE Program” means the program utilized by the Authority to implement the DBE requirements applicable to the award and administration of U.S. Department of Transportation contracts, as set forth in 49 CFR Part 26.
“Design-Build Contract” or “Negotiated Design-Build Contract” shall mean that certain Negotiated Design-Build Contract No. 1-06 executed by Authority and Contractor, as it may be amended from time to time.
“Design Allowance” means the budget for the Design Scope of Work, as established and identified by the Authority in the RFP and set forth-in Section 7.3 of the General Provisions.
“Design Documents” shall mean all drawings (including plans, elevations, sections, details and diagrams), specifications, reports, calculations, records and submittals necessary for design of the Project in accordance with the Contract Documents, following final review thereof by Authority and others as required by the Contract Documents.
“Design Fee” shall mean the design portion of the Proposal Price set forth in Appendix 10.
"Design Load" shall mean all applicable loads and forces or their related internal moments and forces used to proportion members. For "strength design," refers to loads multiplied by the appropriate load factors provided by the applicable codes. “Serviceability design" or "allowable stress" design refers to the loads without load factors.
“Design Services” shall have the meaning set forth in Scope of Work and General Requirements Section 01102.
“Design Submittals” shall mean the submittals described in Scope of Work for Phase 1 Design Services.
“Design Underrun” shall have the meaning set forth in Contract General Provisions Section 10.1.
“Design Work” or “Design Scope” means the Scope of Design Services the Contractor is required to perform and complete under the terms of these General Provisions and as set forth in Section 01102 of the General Requirements.
"Diagnostic Test Equipment" (DTE) shall mean preprogrammed automatic test sets used to check circuitry and subsystems, with built-in on-board memory storage, downloadable to a notebook PC. Provision of DTE shall be understood to include PC database and other software necessary to support analysis and reports of DTE data.
“Differing Site Conditions” shall have the meaning set forth in Contract General Provisions Section 17.
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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“Design Labor Costs” shall have the meaning set forth in Contract General Provisions Section 7.4.
“Design Overhead Costs” means the Design Labor Costs times a 2.4 multiplier. Design Overhead Costs shall also have the meaning set forth in Contract General Provisions Section 7.5.
“Directive Letter” shall mean a letter issued by Authority, or its duly authorized designee, directing Contractor to proceed with added, deleted or changed Work.
“Dispute” shall mean a disagreement between the parties as to the merits, amount or remedy arising out of an issue in controversy, including a disagreement regarding a Claim or asserted default.
“Disputes Board” shall have the meaning set forth in Contract Section 20.
“Disputes Board Agreement” shall mean the agreement among Authority, Contractor and the members of the Disputes Board as described in Contract General Provisions Section 20.
“Draft City Agreement” shall mean each draft Master Cooperative Agreement between Authority and each City, which is included in RFP Document.
“Drawings and Materials” means all maps, drawings, plans, profiles, cross-sections, specifications, and renderings (including the originals thereof) and all software and hardware, developed for the design and construction of the Project.
“DSDC” means Design support during Construction.
"Dwell" shall mean station dwell time, defined as the time during which a train is stopped in a station from wheel stop to wheel start.
“Engineer of Record” or “Designer of Record” means the corporation, partnership, sole proprietorship, or other business entity that is (A) an integrated part of the Design Build Team, (B) responsible for performing Design Work under the Contract Documents; (C) delivers signed and sealed Final Design documents to the Authority in accordance with the Contract Documents; and (D) retains full legal and professional responsibility for those design documents (and all materials included therein) throughout the performance of Construction Work and thereafter, notwithstanding the fact that the Construction Work (or a package or element thereof) is being performed by another firm or entity pursuant to Section 8.7 of the General Provisions. The terms “Engineer of Record” and “Designer of Record” are interchangeable terms.
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ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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"Environmental Approvals" shall mean the Governmental Approvals included in Contract Documents.
“Environmental Laws” shall mean all Governmental Rules now or hereafter in effect relating to the environment or to emissions, discharges, releases or threatened releases of Hazardous Substances into the environment including into the air, surface water or ground water or onto land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances or otherwise relating to the protection of public health, public welfare or the natural environment (including protection of nonhuman forms of life, land, surface water, groundwater and air), including Section 306 of the Clean Air Act (42 U.S.C. 1857(h)), Section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, Environmental Protection Agency Regulations (40 C.F.R. Part 15) and California Environmental Quality Act (CEQA).
"Equal" shall mean providing the same function, performance and reliability.
“Equity Member” or “Equity Participant” as used in the RFP means an entity that holds an ownership interest in the proposer.
“Event of Default” shall have the meaning set forth in Contract General Provisions Section 27.
“Excusable Delay” shall have the meaning set forth in Contract General Provisions Section 19.
"Fail-Safe Characteristic" shall mean a system built-in design characteristic, which permits, on occurrence of a failure, that the system remains safe.
"Failure" shall mean an inability to perform an intended function, but excluding the following:
(1) Consumable item, (2) Dependent failure, (3) Collision, accident, vandalism or negligence of the operator, (4) Incorrect or abusive use by the operation or maintenance personnel, or by
incorrect operation or maintenance procedures or practices by the operator or maintenance personnel,
(5) Passenger-induced failure.
"Failure Rate" shall mean the frequency of failure, expressed as failures per hour. Failure rate is the mathematical reciprocal of mean time between failures (MTBF).
“Final Acceptance” means the action of the Authority of accepting the Work and determining that all tasks and elements of the Work set forth in Contract General Provisions
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ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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Section 24.4 have been completed in a satisfactory manner and in compliance with all requirements of the Contract Documents..
“Final Acceptance Date” shall mean the date on which Final Acceptance occurs.
“Final Relocation Plans” shall mean the detailed designs to be prepared by Contractor or the Utility Owner, which upon approval, shall be used to construct a Relocation.
"Finish-out" shall mean all construction work in addition to the basic structure and shell to finish a building, or space completely so that it requires no additional work prior to use for its intended purpose, other than installation of specific Authority-Furnished Materials.
"Fixed Facilities" shall mean the civil works and stations, including the buildings, stations, improvements, fixtures, grading, drainage, track bed, sub-ballast, trackway structures, track-support structures, grade separations, landscaping and fencing and the maintenance and storage facility.
"Flexural Structural Frequency" shall mean the first vertical frequency of vibration of an unloaded elevated structure, based on the flexural stiffness and mass distribution of the superstructure.
“Float” shall generally mean the difference between early completion times and late completion times for activities as shown on the Project Schedule, and shall include any float contained within an activity as well as any period containing an artificial activity (that is, one which is not encompassed with the meaning of the work "Work").
“Force Majeure” shall have the meaning set forth in Contract General Provisions Section 17.4.
“Goods” shall mean equipment, material and other products incorporated into or required to perform the Work, or otherwise furnished by the Contractor in accordance with the Contract. Unless explicitly identified otherwise, Goods shall be furnished by the Contractor.
“Governmental Approval” shall mean any approval, authorization, certification, consent, decision, exemption, filing, lease, license, permit, registration or ruling, required by or with any Governmental Person in order to design and construct the Project.
“Governmental Person” shall mean any federal, state, local or foreign government and any political subdivision or any governmental, quasi-governmental, judicial, public or statutory instrumentality, administrative agency, authority, body or entity other than Authority.
“Governmental Rule” shall mean any statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement, directive, guideline, policy requirement or other governmental restriction or any similar form of decision or
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ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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determination by, or any interpretation or administration of any of the foregoing by, any Governmental Person, which is applicable to the Work or the Project, whether now or hereafter in effect.
"Guarantee" shall mean the document, if any, evidencing Guarantor’s guarantee of performance of the Contract, to be delivered concurrently with the executed Contract in the form attached to the RFP as Form G.
"Guarantor" shall mean an entity (if any) required, as a condition to shortlisting the Contractor, to guarantee performance of the Contract.
“Hazardous Substance” shall mean any (a) substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Sections 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the California Porter-Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as amended, (the above-cited California state statutes are hereinafter collectively referred to as the “State Toxic Substances Laws”) or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect, (b) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court, (c) petroleum or crude oil excluding de minimus amounts and excluding petroleum and petroleum products contained within regularly operated motor vehicles, and (d) asbestos or asbestos-containing materials in structures and or other improvements on or in the Site (other than mineral asbestos naturally occurring in the ground).
“Hazardous Waste” shall mean soils and other materials containing Hazardous Substances and which require special treatment, transport and disposal under uniform hazardous waste manifests.
Exposition Metro Line Construction Authority Contract No. 1-06 APPENDIX 1
ABBREVIATIONS AND DEFINITIONS FOR
MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT Design-Build Contract
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"Headway" shall mean the elapsed time between two consecutive trains traveling in the same direction on the same track passing an identical reference point.
"Headway, Operational" shall mean the planned (scheduled) headway or service interval for trains in normal service. The operational headway can be maintained reliably when there are no failures or external perturbations.
"Headway, Non-interference" shall mean the minimum headway at which trains can circulate throughout the System without having to stop or reduce speed due to trains ahead.
"Incidental Utility Work" shall mean all Abandoned Utility Work and the Work associated with all (a) Service Line Relocations, (b) Temporary Relocations, (c) Utility Appurtenance Adjustments, (d) purchases and installations of Conduits, (e) Protections in Place, and (f) resurfacing and restriping of streets (including sidewalks) made necessary by Relocation work (whether performed by Contractor or by Utility Owners).
“Indemnified Parties” shall have the meaning set forth in Contract Section 22.3.
"Inspection" shall mean the checking or testing for condition, performance, and safety of equipment against established standards.
"Interface" shall mean the points where two or more functional systems, subsystems, or structures come into physical or functional contact.
“Key Personnel” means the Project Manager, Design Manager, Construction Manager, Project Scheduler/Controls, Safety Manager and QA/QC Manager (or equivalent positions).
"KIP" shall mean a force equivalent to 1,000 pounds.
"Landmark Stations" shall mean unique stations in the system for which Contractor shall comply with the design as defined in the Baseline Requirements.
“Liens” shall mean any pledge, lien, security interest, mortgage, deed of trust or other charge or encumbrance of any kind, or any other type of preferential arrangement (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature of a security instrument and the filing of or agreement to file any financing statement or other instrument intended to perfect a security interest).
"Liner" (as in interior liner) shall mean the visible covering material for the walls, ceiling and other interior surface.
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ABBREVIATIONS AND DEFINITIONS FOR
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"Line Replaceable Unit" (LRU) shall mean an assembly designed for replacement from a wayside installation (first level maintenance) in order to return the wayside equipment to a serviceable state.
“Liquidated Damages” shall mean the damages payable by Contractor to Authority as specified in Contract Section 23.3.
"Load Factor" shall mean a factor by which the service load is multiplied to obtain the design load.
"Lowest Level Replaceable Unit" (LLRU) shall mean the smallest unit for line replacement, such as a component, circuit board, or assembly that would be replaced in effecting a repair of the System or subsystem in accordance with the Contractor's specific maintenance plan.
“Lump Sum Fixed Price” or “LSFP” means the sum of the Construction Price or Prices and the Construction Fee as described in General Provisions Section 8.5.
"Major Participant" shall mean each entity which has an equity interest in the Proposer or is a Primary Participant or a Major Subcontractor.
"Major Subcontractor" shall mean any Subcontractor responsible for (A) design services for a price that exceeds 5% of the Design Allowance; (B) professional services for a price that exceeds 5% of the Professional Services Allowance; or (C) construction services (including specialty fabrication and installation work) for a price that exceeds ½ of 1% (0.5%) of the Construction Allowance.
“Major Subcontract” means any Subcontract or combination of Subcontracts with a Major Subcontractor.
"Main or Trunkline Utility" shall mean a Utility, which is not a Service Line, and which relative to the particular system of which it is a part, (a) is a larger line serving as a main line to connecting tributary lines and (b) serves a larger area, all as reasonably determined by Authority. In so determining, reference may be made by Authority to definitions in the relevant manual or code of the applicable Utility Owner, if any.
"Maintenance and Storage Facility" (M&SF) shall mean an area including the Operations Department, a maintenance facility, repair shops, work bays and related amenities; a vehicle storage area of tracks and switches, and administrative offices related to and necessary in connection with such facilities.
"Manufacturer" shall mean the builder or producer supplying materials, equipment or apparatus for installation.
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ABBREVIATIONS AND DEFINITIONS FOR
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“Master Agreements” shall mean any of the following documents (including, unless otherwise specified, any modifications and amendments thereto):
(a) a City Agreement (in its most current form, whether executed or unexecuted), to the extent such agreement relates to the Relocation of Utilities owned or operated by a City; and
(b) any other agreement between Authority and a Utility Owner which establishes a general framework for the processing of Relocations, including any such agreement(s) entered into between Authority and the DWP.
A document is a “Master Agreement” if it meets the definition set forth herein, without regard to the name by which the document designates itself.
"Maximum Load Point" shall mean the link between adjacent stations with the heaviest passenger load by direction, expressed as passengers per hour per direction.
"Mean Time Between Failures" (MTBF) shall mean the average operating time between failures.
"Mean Time To Restore" (MTTR) shall mean the average time required to diagnose, repair or replace and ascertain that a unit of equipment of the System is ready to go back into service following its malfunction, and restart that unit on the System to full service. The MTTR does not include mobilization time and time to obtain the required items from stores.
"Minimum Operational Headway" shall mean the elapsed time between the passages of the lead edge of consecutive trains at a given point on the System (see Headway, Non-interference).
“Mitigation Monitoring Program” shall mean the document entitled Mitigation Monitoring Program, designated in the Contract Documents.
"Mobility Impaired and Handicapped" (MI&H) shall mean riders who have mobility-related limitations. Often referred to an "elderly" and "handicapped" in transportation literature.
"New Approval" shall mean any of the following:
(a) a new Governmental Approval of the same type as the Environmental Approvals; and
(b) a revision, modification, or amendment to one or more of the Environmental Approvals.
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ABBREVIATIONS AND DEFINITIONS FOR
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“Notice of Award” shall have the meaning set forth in the General Provisions Section 6.1.
“Notice of Proposed Change” shall mean a notice issued to Contractor by Authority specifying a proposed addition, deduction or change to the Contract Documents. A Notice of Proposed Change is not an order to incorporate revisions into the Work.
“Notice of Termination” and “Notice of Partial Termination” shall mean a notice issued by Authority to terminate this Contract and the performance of Work by Contractor, either in whole or in part, pursuant to Contract General Provisions Section 27.
“Notice to Proceed (NTP)” shall mean the written directive from Authority to the Contractor authorizing the Contractor to begin prosecution of a specific portion of the Work as specified therein.
"Operating Hours" shall mean the scheduled and actual number of hours during which the System provides service in an operating period.
"Operating Schedule" shall mean the specific scheme of vehicle/train operations scheduled on an hourly, daily, and weekly basis, in accordance with the Technical and Performance Specifications.
"Operating System" shall mean the vehicles, running surfaces, switches, other track equipment, power distribution, and other Signaling, communications, maintenance, and all other equipment associated with operating the trains.
"Overtravel Buffer" shall mean a device placed at any track terminus to provide a controlled deceleration should a train not stop before reaching the device.
“Payment Bond” shall mean the payment bond described in Contract General Provisions Section 22.1.
"PCO Notice" shall mean each notice delivered by Contractor to Authority as described in Contract General Provisions Section 19.
"Peak Period" shall mean the time-interval of greatest System patronage demand.
“Performance Bond” shall mean the performance bond described in Contract General Provisions Section 22.1.
“Person” shall mean any individual, corporation, company, voluntary association, partnership, trust, unincorporated organization or Governmental Person.
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“Preliminary Relocation Plans” shall mean the conceptual plans which Contractor or the Utility Owner shall prepare to show the consensus among Contractor, Authority and the Utility Owner as to the proposed design of a Relocation.
"Preliminary Schedule" shall mean the Preliminary Schedule included with the Proposal Documents.
"Primary Participant" shall mean each entity with primary responsibility for construction of the Project, 20% or more of the design work or subcontract portions in excess of three percent (3%) of the Proposal Price.
“Professional Services Allowance” means the budget for the Professional Services Scope of Work, as established and identified by the Authority in the RFP and set forth-in Section 9.4 of the General Provisions.
“Professional Services Fee” shall mean the professional services portion of the Proposal Price set forth in Appendix 10.
“Professional Services” or “Professional Services Work” shall have the meaning set forth in the General Provisions Section 9.0.
“Professional Services Labor Costs” shall have the meaning set forth in Contract General Provisions Section 9.5.
“Professional Services Overhead Costs” means the Professional Services Labor Costs times a 2.2 multiplier. Professional Services Overhead Costs shall also have the meaning set forth in Contract General Provisions Section 9.6.
“Professional Services Underrun” shall have the meaning set forth in Contract General Provisions Section 10.4.
“Program Management Oversight Consultant” shall mean Gannett Fleming Inc. or such other person designated in writing by Authority as its Program Management Oversight Consultant.
“Project” means the Mid-City/Exposition Light Rail Transit Project, as more specifically described in Summary Work Section 01100 of the Scope of Work and General Requirements, and all other work product to be provided by Contractor in accordance with the Contract Documents.
"Project Management Plan" shall mean the plan established by Contractor as specified in Scope of Work.
“Project Manager” shall have the meaning set forth in Contract General Provisions Section 2.5.1.
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"Proof" (used as a suffix) shall mean the device and contents are impervious to, or unharmed by the indicated materials, environment or other outside elements, as in splash proof or dust proof.
“Proposal Documents” shall mean those documents constituting Contractor’s proposal in response to the RFP, including any best and final offers or supplements to proposals as may have been requested by Authority.
“Proposal Due Date” shall have the meaning set forth in the RFP Document.
“Proposal Price” shall mean the amounts set forth in the Proposal Document Form TPP.
"Proposer" shall mean an individual, firm, partnership, corporation, joint venture, or limited liability company, which submits a Proposal for the Project.
“Protection in Place” or “Protect in Place” shall mean any activity undertaken to avoid damaging a Utility which does not involve removing or relocating that Utility, including staking the location of a Utility, avoidance of a Utility’s location by construction equipment, installing steel plating or concrete slabs, encasement in concrete, temporarily de-energizing power lines, and installing physical barriers. For example, temporarily lifting power lines without cutting them would be considered Protection in Place; whereas temporarily moving power lines to another location after cutting them would not be considered Protection in Place.
"Proven Design" shall mean, as used here, those technologies that have been successfully deployed in day-to-day service in rail transit applications in North America.
"Provide" shall mean design, construct, furnish, install, and test complete in place.
"Public and Business Impacts Mitigation Plan" shall mean the plan required to be provided under Scope of Work and General Requirements Section 01100.
"Public Information Plan" shall mean the plan required to be provided under Scope of Work and General Requirements Section 01100.
“Punch List” shall mean the list of Work with respect to the Project which remains to be completed after achievement of Substantial Completion of the Project, and shall generally be limited to minor incidental items of Work necessary to correct imperfections which have no adverse effect on the safety or operability of the Project but which must be completed as a condition of Punch List Completion.
"Punch List Completion" shall have the meaning set forth in Contract General Provisions Section 24.3.
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“Quality Control Program” shall mean the program described in General Requirements Section 01460.
“Rearrangement” shall have the meaning set forth in each City Agreement.
“Record Documents” shall mean all Project drawings, specifications and related documents to be provided by Contractor and as described in Scope of Work and General Requirements Section01720.
"Recovery Schedule" shall mean the schedule Contractor is required to provide under General Requirements Section 01310.
"Redundancy" shall mean a design approach in which more than one unit that can meet the required functionality is implemented. Redundancy has one of two objectives, to enable a function to be performed in the event of the failure of one unit, or to enable failure to be detected by comparing the outputs of two units. The second purpose is called "checked redundant" and enables a system to revert to a safe state in the event of failure.
“Reference Documents” shall mean the documents designated in the RFP as "Reference Documents."
"Reliability" shall mean the probability that a system, subsystem, component or part will perform satisfactorily when used under stated conditions for a stated period of time.
"Reliability Demonstration Test" shall have the meaning set forth in Performance Specifications Part 4 Section 22.9.
“Relocation” shall mean each removal, relocation, abandonment and/or Protection in Place (including provision of temporary facilities as necessary) of any and all Utilities that is necessary in order to accommodate or permit construction of the Project. Notwithstanding the foregoing, the term “Relocation” shall refer to City Utilities only when used in those provisions of the Contract Documents which are listed in Scope of Work and General Requirements Section 01180.
“Remediation Work” shall mean any Work for which a Hazardous Substance Removal Certification from the State of California Contractors Licensing Board is required.
“Request for Proposals (RFP)” shall mean Request for Proposals No. 1-06 regarding the Project issued by Authority, including all addenda and attachments thereto.
“Retainage” shall have the meaning set forth in Contract General Provisions Section 18.10.
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ABBREVIATIONS AND DEFINITIONS FOR
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“Revenue Operations Date” shall mean the date Metro commences revenue operations for the Project.
“RFP Documents” shall mean the documents issued as part of the RFP.
“Right of Way” shall mean the real property (which term is inclusive of all estates and interests in real property) which is necessary for ownership and operation of the Project. The term specifically excludes:
(a) the Utility Easements; and
(b) any temporary easements or other real property interests which Contractor deems necessary or advisable in connection with:
(i) Construction of the Project; and/or
(ii) Relocations.
The term ‘Right of Way’ is sometimes used to mean Project right of way and is sometimes used to mean rights of way for other facilities.
"Safety" shall mean freedom from those conditions that can cause death, injury, occupational illness, or damage to or loss of equipment.
“Safety Program” or "Safety and Health Plan" shall mean the safety and health plan established by Contractor as specified in General Requirements Sections 01545 and 01547.
"Schedule Adherence" shall mean the degree to which every vehicle leaves each station at the time stated in the operating schedule.
"Schedule of Values" shall have the meaning set forth in Scope of Work and General Requirements Section 01310.
"Scheduled Service" shall mean periods when the System is functioning in the selected Operating Mode, resulting in the planned number of trains operating in accordance with the Operations Plan, including time sequence of vehicle arrivals and departures resulting from planned number of vehicles following their planned routines.
"Scheduled Vehicle Cycles" (Trips) shall mean the number of vehicle round trips scheduled during an operating period.
“Scope of Work” shall mean the document entitled Scope of Work and General Requirements.
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"Service" shall mean the operation of the System under normal conditions with passengers.
"Serviceability Design" shall mean the performance design of trackway and other structures under service loads. Serviceability requirements to be considered include control of stress, fatigue, vibration, deformation, and cracking.
“Service Line” shall mean a Utility line, the function of which is to connect an individual service location (e.g., a single family residence or an industrial warehouse) to another Utility line which connects more than one such individual line to a larger system. The term “Service Line” also includes any Utility on public or private property that services structures located on such property.
"Service Load" shall mean live and dead loads as specified in these Technical Provisions without load factors.
“Settlor” shall mean MTA, in its capacity as settlor under the Trust.
"Shop" shall mean any facility designed for maintenance activities.
"Single Unit" shall mean a self-contained vehicle capable of running as a single vehicle.
“Site” shall mean those areas designated in writing by Authority for performance of Work and such additional areas as may, from time to time, be designated in writing by Authority for Contractor’s use in performance of the Work. The Site initially includes the area within the planned Right of Way. For purposes of indemnification, safety and security requirements and payment for use of equipment the term “Site” also includes any areas on which Relocation work is performed and any property being temporarily used by Contractor for storage of equipment and/or construction Work.
"Specifications" shall mean various specification documents as referenced in the Technical and Performance Provisions.
"Standard Vehicle" shall mean the maximum weight of the vehicle used for design. The empty vehicle weight (AWO), the fully loaded vehicle weight (AW2), and the crush-loaded vehicle weight (AW4) are defined in Technical Provisions. AW2 weight shall be used for fatigue load calculations, and AW4 weight shall be used for strength and stress calculations.
"Storage Facility" shall mean a facility containing a track network for receiving, dispatching, and storing vehicles or consists and work equipment.
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"Storage Track" shall mean a section of track used to store service-ready vehicles, trains prior to their dispatch into passenger-carrying service and any failed trains removed from service and awaiting transport to the M&SF.
"Strength Design" shall mean the adequate strength design of -trackway using load combinations, load factors and resistance factors.
"Subassembly" shall mean a collection of components used to perform a distinct function, usually in conjunction with other assemblies and components, as part of a larger subsystem or system. Subassemblies are usually replaceable as units, such as circuit boards, bearings, and valves.
“Subcontract” shall mean any subcontract to perform any part of the Work or provide any materials, equipment or supplies for any part of the Work between Contractor and a Subcontractor, or between any Subcontractor and its lower tier Subcontractor, at any tier.
“Subcontractor” shall mean any Person with whom Contractor has entered into any Subcontract, and any other Person with whom any Subcontractor has further subcontracted any part of the Work, at any tier.
“Substantial Completion” shall mean completion of all elements of the Project in accordance with the Contract Documents as described in Contract General Provisions Section 24.2.
“Substantial Completion Deadline” shall have the meaning set forth in Contract General Provisions Section 23.2.1.
"Substation (Traction Power)" shall mean a facility in which electrical power is received and converted to DC voltage of a lower level for distribution on the trackway.
"Successful Vehicle Cycles" (Trips) shall mean the number of vehicle cycles completed without interruption or delay due to a downtime event during one operating period. Unscheduled stoppages resulting from the causes listed, as exclusions shall not be counted.
"Supplier" shall mean any Person, other than employees of Contractor, not performing work at the Site, that supplies machinery, equipment, materials or systems to Contractor or any Subcontractor in connection with the performance of the Work. The term "Supplier" includes fabricators and material dealers.
“Surety” shall mean each properly licensed surety company approved by Authority which issued the Payment Bond and/or the Performance Bond.
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“System” shall mean the following elements of the Project: running surfaces, switches, other track equipment, power distribution, central control and other automatic train control, communications, maintenance and all other equipment associated with operating trains.
"System Integration" shall mean integration of all of the Systemwide Elements with each other and the integration of the Systemwide Elements with the Fixed Facilities.
"Systemwide Elements" shall mean the trackwork, traction power system including substations and the OCS, corrosion control, train control system, communications system and grade crossing equipment.
"System Equipment" shall mean the vehicles; running surface, fencing, emergency walkway, and other equipment; traction power distribution and back-up power equipment; train control equipment; grade crossing warning devices; communications equipment; signage; safety and security equipment; station platform; maintenance tools and equipment; spare parts; and other items required by this Contract.
“Technical Provisions” shall mean the documents designated in the RFP.
"Temporary Relocation" shall mean (a) any interim relocation of a Utility (i.e. the installation, removal and disposal of the interim facility) pending installation of the permanent facility in the same or a new location, and (b) any removal and reinstallation of a Utility in the same place without an interim relocation.
“Third Party” means a Government Entity, utility company, railroad or other entity that contracts with the Authority or Metro by means of a Cooperative Agreement, Utility Services Agreement or other similar agreement regarding the construction, reconstruction, rearrangement and/or improvement of facilities owned or controlled by the jurisdictional agency, to facilitate the Work of the Contractor.
"Time/Down" shall mean the time during which equipment is not capable of doing useful work because of maladjustment, malfunction, or maintenance in progress.
“Total Construction Price” means the sum of the LSFP.
"Trackway" shall mean that portion of the system’s rail line, which has been prepared to support the track and its appurtenant structures.
"Train" shall mean a single light rail vehicle or set of two or more vehicles coupled together and operated as a single unit, displaying a headlight to the front and taillight to the rear.
"Truck" shall mean a vehicle undercarriage assembly containing wheels and axles, motors, gearboxes, brakes, collectors, cable, piping, etc.
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“Trust” shall mean the trust established pursuant to the Trust Agreement.
“Trustee” shall mean Authority, in its capacity as trustee of the Trust, and not in its individual capacity.
“Utility” shall mean a public, private, cooperative, municipal and/or government line, facility or system (including all appurtenances thereto and including service lines) used for the carriage, transmission and/or distribution of cable television, electric power, telephone, telegraph, water, gas, oil, petroleum products, steam, chemicals, sewage, storm water, or any similar commodity. However, when used in the context of the removal, relocation and/or protection of facilities to accommodate the Project, the term “Utility” or “utility” specifically excludes (a) storm water facilities providing drainage for the property on which the Project is to be constructed and (b) traffic signals, street lights, and electrical systems serving existing improvements on such property.
“Utility Agreement” shall mean a Master Agreement and/or a Work Order, as the context may require, as the same may be modified or amended from time to time.
"Utility Appurtenance Adjustment" shall mean the adjustment of Utility appurtenances (e.g. manholes, valve boxes, and vaults) for line and grade upon completion of roadway work.
“Utility Easement” shall mean a permanent replacement easement and/or other interest in real property located outside of the Right of Way limits that is necessary for a Relocation / Rearrangement.
“Utility Owner” shall mean the owner or operator of any Utility (including both privately held and publicly held entities, cooperative utilities, municipalities and other governmental agencies).
"Utility Sheets" shall mean the utility layout plans to be included as part of the Design Submittals, as more particularly described in General Requirements Section 01180.
“Utility Work” shall mean the Work associated with Relocation of Utilities, including the Work described in General Requirements Section 01180. The term “Utility Work” shall include the Work relating to City Utilities only when used in those provisions of the Contract Documents, which are incorporated by reference into General Requirements Section 01180.
“Value Engineering Change Proposals (VECPs)” shall have the meaning set forth in General Provisions Section 21.1.
"Vehicle" shall mean a single rail passenger-carrying unit.
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"Vital" shall mean a term applied to a device or circuit which has known, predictable failure modes, such that no single failure creates a less restrictive state.
"Vital Component or Circuit" shall mean any device, circuit, or software module used to implement a vital function.
“Warranties” shall mean the warranties made by Contractor in Contract Section 25.
"Wayside" shall mean the portion of the System around the vehicle and excluding vehicles.
“Work” shall mean all of the administrative, design, engineering, Utility Relocation, procurement, legal, professional, manufacturing, supply, installation, construction, supervision, management, testing, verification, labor, materials, equipment, documentation and other duties and services to be furnished and provided by Contractor as required by the Contract Documents, including all efforts necessary or appropriate to achieve Final Acceptance of the Project except for those efforts which the Contract Documents specify will be performed by Authority or other Persons. In certain cases the term is also used to mean the products of the Work.
“Work Order” shall mean a work order or agreement, as the same may be amended from time to time, issued by Authority or between Authority and a Utility Owner or Governmental Person, authorizing and providing for the performance of specific work and or services and/or the purchase of materials and equipment relating, at least in part, to the Relocation of one or more Utilities owned or operated by such Utility Owner. A document is a “Work Order” if it meets the definition set forth herein, without regard to the name by which the document designates itself, and without regard to whether it is issued pursuant to the provisions of an applicable Master Agreement or independently of any Master Agreement.
"Working Days" shall mean those days during which Authority conducts regular business.
"Working Schedule" shall have the meaning set forth in General Requirements Section 01310.
Exposition Metro Line Construction Authority Contract No 1-06
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APPENDIX 2
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY
CONTRACT NO. 1-06
ENGINEERING DESIGN SERVICES MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
APPENDIX 2 DESIGN SERVICES CERTIFICATION FOR REQUEST FOR PAYMENT
This is certify that and to the best of my knowledge and belief: 1. I have reviewed the invoiced costs submitted herewith. All costs are current, accurate, and
complete. 2. All costs included in this invoice (identify contract and date) are allowable (identify cost
rates, period covered) in accordance with the requirements of the Contract to which they apply.
3. This invoice does not include any costs which are unallowable under applicable cost
principles of the Authority; and 4. All costs contained in this invoice are allocable to this contract, as they benefit both the
contract and the work, and can be distributed to them in reasonable proportion to the benefits received.
5. Payments to Subcontractors and Suppliers have been made from previous payments received
under Contract No.1-06, and timely payments will be made from the proceeds of the payment covered by this certification, in accordance with subcontract agreements.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on _____________________, 20__ at, _______________________, ____________________________ (Date) (City) (State) ______________________________ ______________________________ ____________________
(Typewritten or Printed Name) (Signature of Authorized Official) (Title)
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APPENDIX 2A
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY
CONTRACT NO. 1-06
PROFESSIONAL SERVICES MID-CITY/EXPOSITION LIGHT RAIL TRANSIT PROJECT
APPENDIX 2A PROFESSIONAL SERVICES CERTIFICATION FOR REQUEST FOR PAYMENT
This is certify that and to the best of my knowledge and belief: 1. I have reviewed the invoiced costs submitted herewith. All costs are current, accurate,
and complete. 2. All costs included in this invoice (identify contract and date) are allowable (identify cost
rates, period covered) in accordance with the requirements of the Contract to which they apply.
3. This invoice does not include any costs which are unallowable under applicable cost
principles of the Authority; and 4. All costs contained in this invoice are allocable to this contract, as they benefit both the
contract and the work, and can be distributed to them in reasonable proportion to the benefits received.
5. Payments to Subcontractors and Suppliers have been made from previous payments
received under Contract No.1-06, and timely payments will be made from the proceeds of the payment covered by this certification, in accordance with subcontract agreements.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on _____________________, 20__ at, _______________________, ____________________________ (Date) (City) (State) ______________________________ ______________________________ ____________________ (Typewritten or Printed Name) (Signature of Authorized Official) (Title)
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APPENDIX 3 SUBCONTRACTOR / DBE SCHEDULE / FORMS The following forms are required to be submitted by the Contractor at time of Proposal:
DESIGN AND PROFESSIONAL SERVICES PROPOSED LIST OF SUBCONTRACTORS AND SUPPLIERS This form captures information related to the Design and Professional Services work on the project.
CONSTRUCTION PROPOSED LIST OF SUBCONTRACTORS AND SUPPLIERS
This form captures information related to the Construction work on the project. These forms identify all businesses planned to participate in the contract resulting from
this procurement. The following information is captured in the forms: Name the participating business, provide the dollar value of their portion of the work, the percentage of the participating business’s price to the total contract price set by the prime contractor and state whether the participating business is a DBE.
The Authority recognizes that some of the information, including the identity of all subcontractors and/or suppliers along with subcontract amounts may not be known at the time of bid. For this reason, all known information at time of bid or proposal is to be provided on these forms to the best of the Contractor’s ability. Should the bidder/proposer find that the forms do not provide enough space to present the information, the bidder/proposer may prepare the information in a separate report using, for example, a spreadsheet or similar tool. It is required that the information be provided in a similar format as the forms provided herein.
Failure to provide completed forms may be cause for the Authority to determine the
bidder/proposer to be non-responsive.
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EXPO METRO LINE AUTHORITY FORMS
DESIGN AND PROFESSIONAL SERVICES
PROPOSED LIST OF SUBCONTRACTORS AND SUPPLIERS RFP Number: 1-06
Project Name: Mid-City/Exposition Light Rail Transit Project
Prime Contractor Proposal Price
Please name each firm A Prime
ContractorNext Tier?
$ Value Of Work
% Of Price
DBE? Yes/No
Prime
%
%
%
%
%
%
%
%
%
%
%
%
%
%
Value of Work (This Page, L1 thru L18)
%
Cumulative Value of Work, (Page 1 thru this Page)
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EXPO METRO LINE AUTHORITY FORMS
CONSTRUCTION
PROPOSED LIST OF SUBCONTRACTORS AND SUPPLIERS RFP Number: 1-06
Project Name: Mid-City/Exposition Light Rail Transit Project
Prime Contractor Proposal Price
Please name each firm A Prime
ContractorNext Tier?
$ Value Of Work
% Of Price
DBE? Yes/No
Prime
%
%
%
%
%
%
%
%
%
%
%
%
%
%
Value of Work (This Page, L1 thru L18)
%
Cumulative Value of Work, (Page 1 thru this Page)
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APPENDIX 4
APPENDIX 4 DISPUTES REVIEW BOARD AGREEMENT DRAFT
THIS DISPUTES REVIEW BOARD AGREEMENT ("Agreement") is made
and entered into this ____ day of __________, 200_, among the Exposition Metro Line Construction Authority, a public entity of the State of California (“Authority”), _________________ a _________________ ("Contractor"), and ______________________ (collectively, the "Board Members"), with reference to the following facts:
A. Authority and Contractor have entered into a contract pursuant to Authority’s Mid-City/Exposition Light Rail Transit Project, Negotiated Design-Build Contract (the "Negotiated Design-Build Contract"). Pursuant to the Negotiated Design-Build Contract, Contractor agreed to furnish the design for and to construct the Project.
B. The Negotiated Design-Build Contract provides for the establishment and operation of a Disputes Board (the "Board") to assist in resolving disputes and claims among Authority, Contractor and others in respect to the Project.
NOW, THEREFORE, in consideration of the terms, conditions, covenants and agreements contained herein, the parties hereto agree as follows:
1. ESTABLISHMENT OF BOARD 1.1 The Board shall begin operation upon execution of this Agreement by Authority,
Contractor and the first two Board Members, and shall terminate upon completion of all work required to be performed by the Board hereunder unless sooner terminated in accordance with this Agreement or applicable law. The Board shall initially consist of two members, one selected by Authority and one selected by Contractor. The first duty of the Board shall be to select its third member as provided in Section 20 of the Contract General Provisions. Section 20 of the General Provisions is incorporated by reference herein.
1.2 Each member of the Board represents, warrants and covenants on his/her behalf that he/she:
(a) Does not have an ownership interest in Authority or Contractor, or a financial interest in the Negotiated Design-Build Contract, the Project or the Mid-City/Exposition Light Rail Transit Project or in the outcome of any dispute decided hereunder, except for payment for serving on the Board;
(b) Has not been employed, and that his/her employer has not been employed, by either Authority or Contractor, or any entity that is a member of either Authority or Contractor, within two years prior to this Agreement, except for fee-based consulting services on other projects which are disclosed to all parties;
(c) Has not had substantial prior involvement in the Project or the Mid-City/Exposition Light Rail Transit Program or relationship with any party or affiliate thereof of a nature which could affect his/her ability to impartially resolve disputes and does not know of any reason why he/she cannot be impartial in rendering decisions;
(d) Shall not accept employment by Authority or Contractor during the term hereof and for as long thereafter as any obligations remain outstanding under the Contract Documents; and
(e) Shall not discuss employment, nor make any agreement regarding employment with Authority or Contractor or any member of Authority or Contractor during the
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term hereof and for as long thereafter as any obligations remain outstanding under the Contract Documents.
1.3 Prior to hearing the first Dispute, and thereafter upon request of Authority or Contractor from time to time, and at least annually, each Board Member shall provide Authority and Contractor a declaration under penalty of perjury affirming that such member meets the qualifications set forth in section 1.2 hereof, and agrees to be bound by the terms of the Contract Documents. Each Board Member shall promptly notify Authority and Contractor if any circumstances are likely to prevent a prompt and fair hearing and decision or if the member fails to meet such qualifications. Any Board Member failing at any time to meet such qualifications shall be removed from the Board.
2. BOARD ORGANIZATION AND RESPONSIBILITIES 2.1 The Board is organized in accordance with Section 20 of the Contract General
Provisions, for the purposes described therein. The Board is intended to fairly and impartially consider the Disputes under the Negotiated Design-Build Contract, Subcontracts thereunder and other contracts relating to the Project placed before it and to provide written decisions for resolution of such Disputes. The Board Members shall perform the services necessary to participate in the Board's actions in accordance with this Agreement.
2.2 The Board Members shall visit the Site prior to commencement of construction, and after commencement of construction shall visit the Site periodically to keep abreast of construction activities and to develop a familiarity with the work in progress, or as may be deemed desirable or necessary in the consideration of any claim or dispute. A special Site visit shall be scheduled at the request of either party or any Board Member; provided that all reasonable efforts shall be made to allow issues to be raised at the regularly scheduled Site visits except where a special visit is warranted due to special circumstances such as the need to observe Site conditions before they are disturbed. Representatives of Authority and Contractor shall have the right to accompany the Board on any such visit.
2.3 All Board Members are to act independently in the consideration of facts and conditions surrounding any Dispute. Seeking the Board Members' advice or consultation, ex parte, is expressly prohibited; provided, however, that either party may seek such advice or consultation from the entire Board, at a Board meeting, after first giving notice to all parties who might thereafter be parties before the Board in a Dispute involving that problem. A Board Member who has ex parte contact with a party or party representative shall be subject to removal from the Disputes Board for cause.
2.4 Board Members may withdraw from the Board upon delivery of written notice of withdrawal to Authority, Contractor and the other Board Members, which notice shall specify a withdrawal date at least 28 days following the date of delivery of the notice. Should the need arise to appoint a replacement Board Member, the replacement member shall be appointed in the same manner as provided by the Negotiated Design-Build Contract for appointment of the original member. The selection of a replacement Board Member shall begin promptly upon notification of the necessity for a replacement and shall be completed within 28 days thereafter. The change in Board membership shall be evidenced by the new member's signature on this Agreement.
2.5 The Board Members acknowledge that Authority and Contractor have the right to require appointment of a new disputes review board to resolve future Disputes, which right may be exercised at any time by delivery of notice to such effect to the other party and to the Board Members. In such event a new agreement in the same form as this agreement will be
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executed establishing the new board, and except as otherwise mutually agreed by Authority and Contractor, the work to be performed by the Board established under this Agreement shall be limited to Disputes submitted to the Board before delivery of the notice requiring appointment of a new Board.
2.6 The personal services of the Board Member are a condition to receiving payment hereunder. No Board Member shall assign any of his or her work pursuant to this Agreement without the prior written consent of both Authority and Contractor.
2.7 Each Board Member, in the performance of his or her duties on the Board, is acting as an independent contractor and not as an employee of either Authority or Contractor. No Board Member will be entitled to any employee benefits.
3. HEARINGS AND DECISIONS 3.1 Each Dispute under the Negotiated Design-Build Contract involving $375,000
or less shall be heard by the Board or, subject to approval of both parties, the third Board Member, acting in their/his/her capacity as arbitrator(s) under the State Arbitration Act and the Regulations, as they may be amended from time to time. Authority and Contractor shall stipulate that the Board members (or third member, as appropriate) be appointed as such arbitrator(s). The Board (or third member, as appropriate) has jurisdiction to determine whether the requirements of the Negotiated Design-Build Contract, the State Arbitration Act and the Regulations have been met. For the convenience of the Board Members, current pertinent provisions of the State Arbitration Act and statutes referenced therein and of the Regulations are attached hereto as Exhibits B and C. If the third member is appointed as the sole arbitrator, he or she shall consult with both of the other Board Members in making his or her decision.
3.2 Each Dispute involving more than $375,000 shall be heard by the Board as provided in Section 20 of the Contract General Provisions.
3.3 In general, the Board shall have the right to establish its own procedures and time limits, including the right to establish or to waive evidentiary rules and procedures, except for evidentiary rules pertaining to privilege.
3.4 Upon receipt by the Board of a notice of appeal, either from Contractor or Authority, the Board (or Board Member acting as arbitrator) shall convene a hearing to review and consider the matter as quickly as possible, taking into consideration the particular circumstances and the time required to prepare detailed documentation. Both Authority and Contractor are encouraged to provide exhibits, calculations, and any other pertinent material to the Board for review prior to the hearing. All such material shall concurrently be given to the other party.
3.5 The Board shall convene to consider questions presented to it and shall at the conclusion of each hearing either provide the Dispute Board Decision or advise the parties when the Dispute Board Decision will be forthcoming.
4. PROVISION OF DOCUMENTS TO BOARD 4.1 Contractor, with assistance of Authority, shall furnish to each Board Member
one copy of all documents it might have, other than those furnished by Authority, which are pertinent to the performance of the Negotiated Design-Build Contract and necessary to the Board’s work.
4.2 Authority shall furnish each Board Member one copy of all Contract Documents, all Design Documents (following preparation thereof by Contractor and approval
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thereof by Authority) and other documents pertinent to the performance of the Design-Build Contract and necessary to the Board's work.
4.3 Each Board Member agrees to execute and deliver a confidentiality agreement as described in Section 1.9.4 of the Contract General Provisions.
5. EXPENSES 5.1 Except as otherwise provided in article 6, payment for services rendered by each
Board Member and for their direct, non-salary expenses shall be calculated in accordance with the payment schedule for such Board Member agreed to among Authority, Contractor and the Board Member and shall be paid in accordance with Section 20 of the Contract General Provisions.
5.2 Invoices for payment for work completed shall be submitted no more often than once per month. Such invoices shall be in a format approved by Authority and accompanied by a general description of activities performed during this period. The value of work accomplished for payment shall be established from the billing rate and hours expended by the Board Member together with direct, non-salary expenses. Billings for expenses shall include an itemized listing supported by copies of the original bills, invoices, expense accounts and miscellaneous supporting data.
5.3 Each Board Member shall keep available for inspection, for a period of five years after final payment, the cost records and accounts pertaining to this Agreement.
6. DISPUTES INVOLVING OTHER PARTIES 6.1 The parties acknowledge that various third parties (including Subcontractors
and the Program Manager) have agreed or will agree that the jurisdiction of the Disputes Board shall extend to disputes affecting such third parties. In general, such disputes shall be heard by the three Board Members, appointed as described above, in accordance with the terms of the Negotiated Design-Build Contract, this Agreement and the contract between Authority and such third parties ("Such Other Contractors"). However, to the extent that the following rights are contractually provided to Such Other Contractors in their agreements with Authority, the parties agree that the membership of the Board may be modified with respect to disputes involving Such Other Contractors, as follows:
(a) Such Other Contractor may agree to use the existing Board with respect to the dispute. (This option shall be deemed selected (i) unless Such Other Contractor delivers written notice to the Board that it intends to select a qualified consultant/Board Member with respect to such dispute, which notice is delivered to the Board within seven days after delivery of written notice to Such Other Contractor describing the dispute and stating that Such Other Contractor is a necessary party to the dispute resolution procedure, or (ii) if Such Other Contractor fails to select a qualified consultant/Board Member, as described below, within seven days after delivery of notice of intent to select such person, or after notification of Authority’s or Contractor’s disapproval of the Board Member.)
(b) If Such Other Contractor elects not to use the existing Board as provided above, then:
(i) Such Other Contractor may select an advisor who shall act as a non-voting consultant to the Board with respect to the dispute; or
(ii) Such Other Contractor may select a fourth Board Member who shall have the right to participate in the selection of a fifth Board Member and to participate in the decision-making process hereunder with respect to such dispute; or
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(iii) With respect to disputes which do not involve the Contractor, Such Other Contractor shall have the right to appoint a Board Member who shall replace the Board Member appointed by the Contractor.
In selecting a non-voting consultant/Board Member, Such Other Contractor is encouraged to appoint the same individual for all disputes, so that such individual will have the opportunity to develop expertise and familiarity regarding the Project.
6.2 Any non-voting consultant or Board Member selected by Such Other Contractor shall be required to meet the qualifications for Board Members set forth herein and shall execute and agree to be bound by the terms of this Agreement as to disputes involving Such Other Contractor. In the event that option (ii) is selected, Such Other Contractor’s selection of the fourth Board Member shall be subject to Authority’s and Contractor’s approval, and the fifth Board Member shall be selected by a majority vote of the four Board Members. Disputes regarding appointment of such fifth Member shall be subject to the dispute resolution procedures set forth in Section 20 of the Contract General Provisions, and shall be decided by the original three Board Members.
6.3 Expenses of the Disputes Board payable by Such Other Contractor shall be as follows:
(a) In the event that option 6.1(a) is selected, Such Other Contractor shall share equally the costs and expenses for the Disputes Board in accordance with Section 20 of the Contract General Provisions; or
(b) In the event that option 6.1(b)(i), (ii) or (iii) is selected, Such Other Contractor shall be responsible for paying the costs and expenses for the consultant or for the Board Member which it appointed, as well as a proportionate share of the costs and expenses of the third and fifth members (subject to the right to be reimbursed for such costs and expenses as the prevailing party, as may be awarded in accordance with Section 20 of the Contract General Provisions) together with a proportionate share of any common costs allocable to the parties to a dispute under Section 20 of the Contract General Provisions. In determining the amount of any such payment or reimbursement of costs and expenses, the Board Members are specifically directed to consider the benefit accruing to Such Other Contractor resulting from the Board's expertise and familiarity with the Project and the expenditures previously incurred by Authority and Contractor to develop such expertise and familiarity.
6.4 The provisions set forth in this Section 6 shall supersede any provisions to the contrary contained in Section 20 of the Contract General Provisions.
7. MISCELLANEOUS 7.1 Capitalized terms used but not defined herein shall have the meanings set forth
in the Design-Build Contract. 7.2 (a) The parties intend for Section 20 and the other terms of this Agreement to
be complementary. Except as otherwise specifically provided herein, in the event of any conflict between this Agreement and said Section 20, Section 20 shall control.
(b) With respect to Claims and disputes up to $375,000 under the Contract, the parties intend for this Agreement and Section 20 of the Contract to be complementary with the terms of the Arbitration Act and Regulations. With respect to Disputes up to $375,000, in the event of any conflict between this Agreement and the terms of the Arbitration Act and Regulations, this Agreement shall control to the extent that the requirements of the Arbitration Act and Regulations are waivable; otherwise the Arbitration Act and Regulations shall control.
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7.3 Notices hereunder shall be sent as provided in Section 28.12 of the Contract General Provisions. The addresses for the Board Members are set forth on the signature pages hereof.
7.4 This Agreement shall be governed by and construed in accordance with the law of the State of California.
7.5 No Board member shall release any material or data prepared or received by the Board under this Agreement to any other person or agency. All press releases or information to be published in newspapers, magazines, or electronic media, shall be distributed only after first being authorized by Authority and Contractor.
7.6 The parties hereto mutually understand and agree that all Board Members, in the performance of their duties on the Board, are acting in the capacity of independent contractors and not as employees of Authority or Contractor. The Board Members shall have no personal or professional liability arising from the services provided under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BOARD MEMBERS ________________________________
Address:
___________________________________
Address:
__________________________
Address:
__________________________
CONTRACTOR By: __________________________
Title: __________________________
By: __________________________
Title: __________________________
AUTHORITY EXPOSITION METRO LINE CONSTRUCTION AUTHORITY
By:
Title: __________________________
APPROVED AS TO FORM: By:________________________ General Counsel
[Exhibits to be Provided Prior to Execution]
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APPENDIX 5 DESIGNATION OF INITIAL REPRESENTATIVES DRAFT
Authority Representatives: • Interim Chief Executive Officer (currently Richard D. Thorpe) • Additional representatives designated in writing by the Chief Executive Officer for
specific matters Contractor Representatives:
• Principal On-Site (currently Ray Hughes) • Additional representatives designated in writing by the Principal On-Site for specific
matters
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APPENDIX 6 DRAFT MTA/AUTHORITY TRUST AGREEMENT PROVISIONS [The following provisions are based on the
current draft of the Trust Agreement between
MTA and the Authority, and are subject to change]
The following terms are pass-through provisions required by the Trust Agreement. As used in this Appendix 6, “Contract,” “Contractor” and “Indemnified Parties” shall have the meanings set forth in Appendix 1. All other capitalized terms contained in this Appendix 6 shall have the meanings set forth in the Trust Agreement.
1. Contractor acknowledges and agrees:
(a) that Contractor’s obligations under Contract Section 22.3.1 shall automatically apply to require it to release, indemnify, defend and hold harmless the Trustee and the Settlor, in addition to the Indemnified Parties, with respect to all such matters to the extent that such matters fall within the scope of the indemnities made by Contractor as set forth in Contract Sections 22.3.1 and 22.3.2.
(b) that any Liens encumbering any of the Project Assets arising out of or in connection with the Contract shall be extinguished and of no further force and effect as to Project Assets upon the Phase 1 Project Assets Distribution Date;
(c) that the Payment and Performance Bonds shall name Trustee and Settlor as dual obligees thereof;
(d) that the Trustee shall have the right to promptly discharge (or cause to be discharged) any mechanic’s or materialman’s liens or claims of such lien, if any, filed or otherwise asserted against any of the Project Assets and all stop notices;
(e) that the Trustee and the Settlor as third-party beneficiaries of the Contract, shall have the right to enforce, and shall have the benefit of, any and all guaranties, warranties, bonds and the like contained or otherwise applicable to the Contract and any work undertaken or materials purchased pursuant thereto;
(f) that any occurrence or transaction which gives rise to a claim under the Contract shall also be deemed an occurrence or transaction for purposes of filing a claim pursuant to Section 900 et seq. of the California Government Code; and
(g) that no provision of the Contract shall toll, waive or modify the provisions of California Government Code Section 900 et seq.
2. Contractor acknowledges and agrees that the following provisions required by the Trust Agreement shall be a part of the Contract and binding on Contractor:
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At the request of the Authority, the MTA has previously provided to the Authority copies of certain preliminary design documents for the Project ("Existing Preliminary Design Documents") prepared by the MTA's design engineer (DMJM + Harris), which were not completed/signed/sealed by MTA’s design engineer and in all respects are preliminary in nature and should not be relied upon for any purpose whatsoever (including, the design and construction of the Project). Copies of the Existing Preliminary Design Documents may have been provided to you in connection with this Contract. Neither the Contractor nor any Subcontractor shall have no right to rely upon the Existing Preliminary Design Documents in any manner whatsoever (including, the design and construction of the Project). The Contractor represents, warrants and covenants that the Contractor will not rely upon the Existing Preliminary Design Documents in any manner whatsoever (including, the design and construction of the Project) and will do its own independent investigation of all matters related to this Contract and the Existing Preliminary Design Documents. The Contractor waives and releases the MTA and its design engineer (and each of their respective officers, directors, agents, contractors and employees) from any and all claims, liabilities, losses, damages, costs and expenses arising out of or in connection with the Existing Preliminary Design Documents. In connection with the release and waiver set forth in the preceding sentence:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
The MTA and its design engineer are each third party beneficiaries of the provisions of this paragraph and shall have the right to enforce the waiver and release contained in this paragraph against the Contractor.
The Contractor shall cause each Subcontract, at all tiers, to include the foregoing provision (revised as appropriate for inclusion in the Subcontract, but otherwise in substantially the form set forth above, and without any material changes therein).
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APPENDIX 7 PERFORMANCE BOND
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY
WHEREAS the Exposition Metro Line Construction Authority ("Authority") has awarded to ___________________________________ ("Principal"), a Design-Build Contract (hereafter called the “Contract”), which Contract is specifically incorporated by reference herein, for the design and construction of Mid-City Exposition Light Rail Transit Project, and WHEREAS Principal is required under the terms of the Contract to furnish a Bond for the faithful performance of the Contract; NOW, THEREFORE, we __________________________________________, as Principal, and __________________________________________________, ("Surety"), as Surety, are held and firmly bound unto the Authority in the sum of ____________________Dollars ($______________), this amount being not less than the total Construction Allowance in lawful money of the United States of America, for payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severably, firmly by these presents. In case suit is brought upon this Bond, Surety shall pay reasonable attorneys' fees to the Authority in an amount to be fixed by the court. The condition of this obligation is such that, if the hereby-bonded Principal or its heirs, executors, administrators, successors, assigns, or Subcontractors shall in all things stand to and abide by and well and truly keep and perform all the undertakings, terms, covenants, conditions, and agreements in the Contract and any alteration thereof, made as therein provided, all within the time and in the manner therein designated and in all respects according to their true intent and meaning, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect. Further, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents, or of the Work to be performed thereunder, shall in any way affect its obligations under this Bond, and it does hereby waive notice of any such change, extension of time, alteration, or modification of the contract documents or of the Work to be performed thereunder.
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IN WITNESS WHEREOF, three identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety named herein, on the _____________ day of _________________ 200__, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
By (Principal) By (Surety) By
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APPENDIX 8 PAYMENT (MATERIAL AND LABOR) BOND
EXPOSITION METRO LINE CONSTRUCTION AUTHORITY
CONTRACT NO. 1-06
PAYMENT (MATERIAL AND LABOR) BOND
WHEREAS Exposition Metro Line Construction Authority ("Authority") has awarded to __________________________________ ("Principal"), a Design-Build Contract (hereafter called the “Contract”), which Contract is specifically incorporated by reference herein, for the design and construction of Mid-City Exposition Light Rail Transit Project, and WHEREAS Principal is required under the terms of the Contract to furnish a Bond to secure the payment of claims of laborers, mechanics, material men, and other persons as provided by law; NOW, THEREFORE, we _____________________________, as Principal, and _________________________, ("Surety"), as Surety, are held and firmly bound unto the Authority in the sum of __________________ Dollars ($ _________________), this amount being not less than the total Contract Price in lawful money of the United States of America, for payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. In case suit is brought upon this Bond, Surety will pay reasonable attorneys' fees to the Authority and the plaintiff(s) in an amount to be fixed by the court. The condition of this obligation is such that, if the hereby-bonded Principal, or its heirs, executors, administrators, successors, or assigns, or Subcontractors shall fail to pay any of the persons named in Civil Code § 3181 or to pay amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or amounts due under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Principal or its Subcontractors pursuant to § 13020 of the Unemployment Insurance Code with respect to Work or labor performed under the Contract, then the Surety herein named shall pay for the same in an amount not exceeding the sum specified in this Bond; otherwise the above obligation shall be void. This Bond shall inure to the benefit of any of the persons named in Civil Code § 3181 as to give a right of action to such persons or their heirs, executor's, administrators, successors, or assigns in any suit brought upon this Bond. Further, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the contract documents, or of the Work to be performed thereunder, shall in any way affect its obligations on this Bond, and it does hereby waive notice
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March 17, 2006
Appendices to General Provisions
of such change, extension of time, alteration, or modification of the contract documents, or of the Work to be performed thereunder. IN WITNESS WHEREOF, three identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety named herein, on the ________ day of _______________, 200___, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
By (Principal) By (Surety) By
Exposition Metro Line Construction Authority Contract No 1-06
Mid-City/Exposition Light Rail Transit Project Conformed Design-Build Contract PARCEL AVAILABLITY MATRIX
Appendix 9 Page 49
March 17, 2006Appendices to General Provisions
APPENDIX 9 PARCEL AVAILABILITY MATRIX PROPERTY TAKES – AVAILABLE 480 CALENDAR DAYS FROM NTP NO PARCEL NO LOCATION AND OWNER
1 WE-616 Full take – street widening north of LaCienga (Harris) 2 MC-403 Full take – TPSS#6 @ Farmdale (Diacos) 3 MC-322 Full Take – TPSS #5 @ 9th Avenue (Held) 4 MC-249 Part-Take – TPSS#4 @ Arlington (City of LA) 5 MC-258 Full Take – TPSS #3 @ Normandie (Hines) 6 D-120 Full Take – TPSS#2 – Parking lot owned by USC 7 OM1 Division 11 Truck Parking Site 8 OM2 UNION PACIFIC Mid Day Storage Site STREET WIDENING (PART-TAKES) – AVAILABILE 480 CALENDAR DAYS FROM NTP.
NO PARCEL NO LOCATION AND OWNER
1 WE-606 Wesley Street in Culver City (City of Culver City) 2 MC-243 Cul de sac @ 3rd Street (Lemus) 3 MC-244 Cul de Sac @ 3rd Street (Optical) 4 MC-252 Signal Case @ Catalina (Wisconsin Gardens) 5 MC-256 Cul de Sac @ 3rd Street ( TBD) 6 MC-257 Cul de Sac @ 3rd Street (TBD) 7 MC-259 Arlington Street Widening (Hans, et. al) 8 MC-260 Arlington Street Widening (TBD) 9 MC-261 Vermont/Expo Street Widening (ARCO) 10 D114 Vermont Street Widening (USC) CALTRANS PARCELS – ENCROACHMENT PERMIT NO PARCEL NO LOCATION 1 D-160 Caltrans Slope on Jefferson Blvd ---- At the NTP Date 2 D-169 TPSS # 1 – Flower and 18th Street ---- September 30, 2007 LEASE TERMINATIONS ON ROW – 180 CALENDAR DAYS AFTER RECEIPT OF NOTICE FROM THE CONTRACTOR THAT ROW IS REQUIRED OUTDOOR ADVERTISING SIGNS – 180 CALENDAR DAYS AFTER RECEIPT OF NOTICE FROM THE CONTRACTOR THAT ROW IS REQUIRED
Exposition Metro Line Construction Authority Contract No 1-06
Mid-City/Exposition Light Rail Transit Project Conformed Design-Build Contract
Appendix 10 Page 50
March 17, 2006Appendices to General Provisions
APPENDIX 10 FORM PP – PROPOSAL PRICE
FORM PP - PROPOSAL PRICE DESIGN
Design Fee and Overhead above the 2.4 Multiplier, as described in Sections 7.2 and 7.3 of the General Provisions $ 5,550,000.00
PROFESSIONAL SERVICES
Professional Services Fee and
Overhead above the 2.2 Multiplier, as described in Section 9 of the General Provisions $ 12,187,000.00
CONSTRUCTION
Construction Home Office Overhead and Fee, as described in Section 15.2 of the General Provisions $ 27,450,000.00
INSURANCE
Proposed Cost of Professional Liability Insurance for the entire Project and Commercial General Liability insurance for the design phase only, as described in Section 22.2 of the General Provisions $ 7,320,000.00