HomeMy Public PortalAbout02 February 24, 2020 Western Riverside County Programs and ProjectsTime:
Date:
Location:
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
MEEING AGENDA
Western Riverside County Prog ra m s a nd
Projects Committee
1:30 p.m.
February 24, 2020
BOARD ROOM
County of Riverside Administration Center
4080 Lemon St, First Floor, Riverside CA 92501
C O M M ITT M E]VI BERS
Brian Berkson, Chair/Chris Barajas,
City of Jurupa Valley
Michael Vargas, Vice Chair/Rita Rogers, City of Perris
Wes Speake/Jim Steiner, City of Corona
Clint Lorimore/Todd Rigby, City of Eastvale
Bill Zimmerman/Dean Deines, City of Menifee
Yxstian Gutierrez/Carla Thornton, City of Moreno Valley
STAFF
Anne Mayer, Executive Director
John Standiford, Deputy Executive Director
AREAS OF RESPO N SI BI IJTY
Air Quality, Capital Projects, Communications and
Outreach Programs, Intermodal Programs, Motorist
Services, New Corridors, Regional Agencies/Regional
Planning, Regional Transportation Improvement Program
(RTIP), Specific Transit Projects, State Transportation
Improvement Program (STIP)
Scott Vinton/Christi White, City of Murrieta
Berwin Hanna/Ted Hoffman, City of Norco
Andrew Kotyuk/Russ Utz, City of San Jacinto
Ben J. Benoit/Joseph Morabito, City of Wildomar
Kevin Jeffries, County of Riverside, District I
Jeff Hewitt, County of Riverside, District V
Transportation Uniform Mitigation Fee (TUMF)
Program, and Provide Policy Direction on
Transportation Programs and Projects related to
Western Riverside County and other areas as may
be prescribed by the Commission.
Commentsare welcomed by the Commission. If you wish to provide commentsto the Commission,
please complete and submit a qpeakerCard to the Clerk of the Board.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
www.rctc.orq
AGENDA *
*Actions may be taken on any item listed on the agenda
1:30 p.m.
Monday, February 24, 2020
BOARD ROOM
County Administrative Center
4080 Lemon Street, First Floor
Riverside, California
In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72
hours prior to the meeting, which are public records relating to open session agenda items, will be available for
inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third
Floor, Riverside, CA, and on the Commission's website, www.rctc.orq.
In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, and the Federal
Transit Administration Title VI, please contact the Clerk of the Board at (951) 787-7141 if special assistance is
needed to participate in a Commission meeting, including accessibility and translation services. Assistance is
provided free of charge. Notification of at least 48 hours prior to the meeting time will assist staff in assuring
reasonable arrangements can be made to provide assistance at the meeting.
1. CALL TO ORDER
2. ROLL CALL
3. PLEDGE OF ALLEGIANCE
4. PUBLIC COMMENTS — Each individual speaker is limited to speak three (3) continuous minutes
or less. The Committee may, either at the direction of the Chair or by majority vote of the
Committee, waive this three minute time limitation. Depending on the number of items on the
Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of
each speaker to two (2) continuous minutes. Also, the Committee may terminate public
comments if such comments become repetitious. In addition, the maximum time for public
comment for any individual item or topic is thirty (30) minutes. Speakers may not yield their
time to others without the consent of the Chair. Any written documents to be distributed or
presented to the Committee shall be submitted to the Clerk of the Board. This policy applies
to Public Comments and comments on Agenda Items.
Under the Brown Act, the Board should not take action on or discuss matters raised during
public comment portion of the agenda which are not listed on the agenda. Board members
may refer such matters to staff for factual information or to be placed on the subsequent
agenda for consideration.
Western Riverside County Programs and Projects Committee
February 24, 2020
Page 2
5. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a
finding that there is a need to take immediate action on the item and that the item came to
the attention of the Committee subsequent to the posting of the agenda. An action adding an
item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the
Committee members present, adding an item to the agenda requires a unanimous vote.
Added items will be placed for discussion at the end of the agenda.)
6.
APPROVAL OF MINUTES — OCTOBER 28, 2019
7. AWARD OF: (1) DESIGN -BUILD CONTRACT; AND (2) AMENDMENT TO PROJECT AND
CONSTRUCTION MANAGEMENT SERVICES AGREEMENT FOR THE INTERSTATE 15/STATE
ROUTE 91 EXPRESS LANES CONNECTOR PROJECT
Page 1
Overview
This item is for the Committee to:
1) Award Agreement No. 19-31-074-00 to Myers -Rados, a Joint Venture (Myers -Rados
JV) as the design -build contractor to design and construct the Interstate 15/State
Route 91 Express Lanes Connector project (15/91 ELC) in the amount of $164,840,000,
plus a contingency amount of $10,487,000, for a total amount not to exceed
$175,327,000;
2) Approve Agreement No. 15-31-001-07, Amendment No. 7 to Agreement
No. 15-31-001-00, with Parsons Transportation Group (Parsons) to provide project and
construction management services for the proposed 15/91 ELC in the amount of
$14,825,000, plus a contingency amount of $1,482,000, for a total amount not to
exceed $16,307,000, and extend the term to June 30, 2024;
3) Authorize the Chair or the Executive Director, pursuant to legal counsel review, to
finalize and execute the agreements on behalf of the Commission;
4) Authorize the Executive Director or designee to approve contingency work up to the
total amounts as required for the project; and
5) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
February 24, 2020
Page 3
8. AWARD OF INTERSTATE 15/RAILROAD CANYON ROAD INTERCHANGE PROJECT
CONSTRUCTION AGREEMENT TO RIVERSIDE CONSTRUCTION COMPANY
Page 56
Overview
This item is for the Committee to:
1) Award Agreement No. 20-31-034-00 to Riverside Construction Company to construct
the Interstate 15/Railroad Canyon Road Interchange Project (Project), in the amount
of $27,698,589, plus a contingency amount of $2,769,859, for potential change orders
and supplemental work in the amount of $910,000 during construction, for a total
amount not to exceed $31,378,448;
2) Approve Agreement No. 20-31-046-00 with the Pechanga Band of Luiseno Indians
(Pechanga) for an amount not to exceed $100,000 for Native American monitoring
services during construction of the Project;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute the agreements on behalf of the Commission;
4) Authorize the Executive Director, or designee, to approve contingency work as may be
required for the Project; and
5) Forward to the Commission for final action.
9. AMENDMENT TO AGREEMENT WITH T.Y. LIN INTERNATIONAL FOR FINAL DESIGN SERVICES
RELATED TO THE MID COUNTY PARKWAY INTERSTATE 215/PLACENTIA AVENUE
INTERCHANGE IMPROVEMENT PROJECT AND AGREEMENT FOR CONSTRUCTION ZONE
ENFORCEMENT ENHANCEMENT PROGRAM SERVICES FOR THE PROJECT
Page 81
Overview
This item is for the Committee to:
1) Approve Agreement No. 16-31-066-04, Amendment No. 4 to Agreement
No. 16-31-066-00, with T.Y. Lin International (T.Y. Lin) to complete final design services
and prepare the Interstate 215/Placentia Avenue interchange improvement
(I-215/Placentia Avenue) project for advertising and award, in the amount of
$386,663, plus a contingency amount of $38,666, for an additional amount of
$425,329, and a total amount not to exceed $5,171,185;
2) Approve Agreement No. 20-31-051-00 with the California Highway Patrol (CHP) for
Construction Zone Enforcement Enhancement Program (COZEEP) services in an
amount not to exceed $279,900;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute the agreements on behalf of the Commission;
4) Authorize the Executive Director or designee to approve the use of the contingency
amount as may be required for the project; and
5) Forward to the Commission for final action.
Western Riverside County Programs and Projects Committee
February 24, 2020
Page 4
10. AMENDMENT TO AGREEMENT FOR CALIFORNIA HIGHWAY PATROL CONSTRUCTION ZONE
ENHANCEMENT ENFORCEMENT PROGRAM SERVICES DURING THE CONSTRUCTION OF THE
STATE ROUTE 60 TRUCK LANES PROJECT
Page 100
Overview
This item is for the Committee to:
1) Approve Agreement No. 19-31-038-01, Amendment No. 1 to Agreement
No. 19-31-038-00, with the California Highway Patrol (CHP) for Construction Zone
Enhanced Enforcement Program (COZEEP) services during the construction of the
State Route 60 Truck Lanes project (Project) in the amount of $350,000, plus a
contingency amount of $100,000, for an additional amount of $450,000, and a total
amount not to exceed $1,490,070;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission;
3) Authorize the Executive Director, or designee, to approve contingency work as may be
required for the agreement; and
4) Forward to the Commission for final action.
11. ELECTION OF OFFICERS FOR THE WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS
COMMITTEE
Page 104
Overview
This item is for the Western Riverside County Programs and Projects Committee to conduct
an election of officers for 2020 — Chair and Vice Chair.
12. COMMISSIONERS / STAFF REPORT
Overview
This item provides the opportunity for the Commissioners and staff to report on attended and
upcoming meeting/conferences and issues related to Commission activities.
13. ADJOURNMENT
The next Western Riverside County Programs and Projects Committee meeting is scheduled
to be held at 1:30 p.m., Monday, March 23, 2020, Board Chambers, First Floor, County
Administrative Center, 4080 Lemon Street, Riverside.
AGENDA ITEM 6
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, October 28, 2019
MINUTES
1. CALL TO ORDER/ ROLL CALL
The meeting of the Western Riverside County Programs and Projects Committee was
called to order by Chair Brian Berkson at 1:35 p.m., in the Board Room at the County of
Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California,
92501.
2. ROLL CALL
Members/Alternates Present
Victoria Baca
Ben Benoit
Brian Berkson
Berwin Hanna
Kevin Jeffries
Andrew Kotyuk
Clint Lorimore
Jim Steiner
Bill Zimmerman
Members Absent
Jeff Hewitt
Michael Vargas
Scott Vinton
3. PLEDGE OF ALLEGIANCE
At this time, Commissioner Kevin Jeffries led the Western Riverside County Programs and
Projects Committee in a flag salute.
4. PUBLIC COMMENTS
There were no requests to speak.
5. ADDITIONS/REVISIONS
There were no additions or revisions at this time.
RCTC WRC Programs and Projects Committee Minutes
October 28, 2019
Page 2
6. APPROVAL OF MINUTES — SEPTEMBER 23, 2019
M/S/C (Baca/Zimmerman) to approve the minutes as submitted.
7. AGREEMENT FOR BACK OFFICE SYSTEM AND CUSTOMER SERVICE CENTER OPERATIONS
FOR THE 91 EXPRESS LANES IN ORANGE AND RIVERSIDE COUNTIES
Jennifer Crosson, Toll Operations Manager, presented the scope of the agreement for
back office system and customer service center operations for the 91 Express Lanes in
Orange and Riverside Counties.
Jennifer Crosson clarified the contingency amount and reasoning for Commissioner Kevin
Jeffries.
In response to Chair Berkson's question on whether OCTA approved the same agreement
and contingency as well, Ms. Crosson explained that on November 11 it will be taken to
OCTA's board and on November 13 the item will be presented to the RCTC Commission
to be informed of the outcome.
Matthew Wallace, Procurement Manager, explained that it is RCTC's practice to take the
contract with the extension options all at once to be approved by the Commission and to
allow staff to exercise those options based on contractor performance.
Anne Mayer, Executive Director, added that not all contracts have option years but when
they do the Commission negotiates the cost of the option years up front and presents it
to the Commission so the Commission has full disclosure of the entire amount.
In response to Commissioner Clint Lorimore's question regarding the contingency
amount, Ms. Crosson explained the steps staff took to arrive at the contingency amount.
M/S/C (Baca/Zimmerman) to:
1) Award Agreement No. 19-31-059-00 among the Orange County
Transportation Authority (OCTA), Riverside County Transportation
Commission (RCTC), and Cofiroute USA, LLC (Cofiroute) to provide back -
office system (BOS) and customer service center (CSC) operations
services for the 91 Express Lanes (91EL) in Orange and Riverside Counties
in an amount of $88,591,344, plus a contingency amount of $4,429,567,
for a total amount not to exceed $93,020,911;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreement on behalf of the Commission;
3) Authorize the Executive Director or designee to approve the use of the
contingency amount as may be required by the project;
4) Authorize the payment of pass -through items in an amount not to exceed
$10.5 million; and
RCTC WRC Programs and Projects Committee Minutes
October 28, 2019
Page 3
5) Forward to the Commission for final action.
No: Jeffries
At this time, Commissioner Kevin Jeffries left the meeting.
8. AGREEMENT FOR EXPRESS LANES CONSULTING SERVICES
Jennifer Crosson, Toll Operations Manager, presented the scope of the agreement for
express lanes consulting services.
M/S/C (Benoit/Baca) to:
1) Award Agreement No. 20-31-001-00 to HNTB Corporation for express
lanes consulting services for a five-year term, plus two one-year options
to extend the agreement, in an amount of $10 million, plus a contingency
amount of $500,000, for a total amount not to exceed of $10.5 million;
2) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreement, including option years, on behalf of
the Commission;
3) Authorize the Executive Director or designee to approve the use of the
contingency amount as may be required for these services; and
4) Forward to the Commission for final action.
9. FRAMEWORK FOR IMPLEMENTATION OF THE STATE ROUTES 241/91 EXPRESS LANES
CONNECTOR
Anne Mayer, Executive Director, presented the details of the framework for
implementation of the 241/91 Express Lanes Connector.
Commissioner Steiner commented on all the work that has been put into the corridor.
Ms. Mayer clarified for Commissioner Bill Zimmerman that both sequences were
intentionally numbered 3 and that the projects are not interrelated.
Commissioner Lorimore asked if the Commission's primary concerns have been
addressed.
Ms. Mayer responded the primary concerns were addressed and the current projects will
not be impacted by the new projects and this is a positive solution for the corridor.
Chair Berkson commented on the sequencing of the project.
M/S/C (Baca/Benoit) to:
RCTC WRC Programs and Projects Committee Minutes
October 28, 2019
Page 4
1) Approve the State Routes 241/91 Express Lanes Connector term sheet as
a framework for future agreements, contingent on all parties agreeing
to the term sheet;
2) Direct staff to work with agencies to prepare associated agreements for
each respective governing board's consideration, consistent with the
terms included in this report; and
3) Forward to the Commission for final action.
10. PACHAPPA UNDERPASS CONSTRUCTION CONTRACT AWARD AND AMENDMENT FOR
CONSTRUCTION SUPPORT SERVICES
Bryce Johnston, Capital Projects Manager, presented the details of the Pachappa
Underpass agreement and the amendment for construction support services.
M/S/C (Benoit/Baca) to:
1) Award Agreement No. 19-31-094-00 to SEMA Construction, Inc. (SEMA)
to construct the Pachappa Underpass project (Project), in the amount
of $8,237,419, plus a contingency amount of $862,581 for potential
change orders and supplemental work during construction, for a total
not to exceed contract authorization of $9.1 million;
2) Waive informalities and minor irregularities in the SEMA bid;
3) Approve Agreement No. 16-31-051-04, Amendment No. 4 to Agreement
No. 16-31-051-00, with Jacobs Project Management Company (Jacobs) to
provide construction management (CM), materials testing, and
construction surveying services for the Project, for an additional amount
of $1,245,509, and a total amount not to exceed $3,245,509;
4) Authorize the Executive Director, or designee, to approve contingency
work as may be required for the Project;
5) Authorize the Chair or the Executive Director, pursuant to legal counsel
review, to execute the agreements on behalf of the Commission; and
6) Forward to the Commission for final action.
11. AGREEMENTS WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR STATE
FUNDING AND SENATE BILL 1 FUNDING FOR THE OPERATION OF THE FREEWAY SERVICE
PATROL PROGRAM IN RIVERSIDE COUNTY
Brian Cunanan, Commuter and Motorist Assistance Manager, presented the scopes of the
agreements with Caltrans for state funding and Senate Bill 1 funding for the operation of
the FSP program in Riverside County.
M/S/C (Benoit/Baca) to:
1) Approve Agreement No. 20-45-013-00 with the California Department of
Transportation (Caltrans) to provide state funding for FY 2019/20 for the
RCTC WRC Programs and Projects Committee Minutes
October 28, 2019
Page 5
operation of the Riverside County Freeway Service Patrol (FSP) program
in an amount not to exceed $1,702,145;
2) Approve Agreement No. 20-45-016-00 with Caltrans to provide Senate
Bill (SB) 1 funding for FY 2019/20 for the operation of the Riverside
County FSP program in an amount not to exceed $1,464,524;
3) Authorize the Chair or Executive Director, pursuant to legal counsel
review, to execute the agreements on behalf of the Commission; and
4) Forward to the Commission for action.
12. COMMISSIONERS / STAFF REPORT
12A. Chair Berkson announced the First Annual Jurupa Valley "Community of
Communities" Fall Parade on November 2 at 9 a.m.
13. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned at 2:34 p.m.
Respectfully submitted,
Lisa Mobley
Clerk of the Board
AGENDA ITEM 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
February 24, 2020
TO:
Western Riverside County Programs and Projects Committee
FROM:
David Thomas, Toll Project Manager
THROUGH:
Michael Blomquist, Toll Program Director
SUBJECT:
Award of: (1) Design -Build Contract; and (2) Amendment to Project and
Construction Management Services Agreement for the Interstate 15/State
Route 91 Express Lanes Connector Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 19-31-074-00 to Myers -Rados, a Joint Venture (Myers -Rados JV)
as the design -build contractor to design and construct the Interstate 15/State Route 91
Express Lanes Connector project (15/91 ELC) in the amount of $164,840,000, plus a
contingency amount of $10,487,000, for a total amount not to exceed $175,327,000;
2) Approve Agreement No. 15-31-001-07, Amendment No. 7 to Agreement
No. 15-31-001-00, with Parsons Transportation Group (Parsons) to provide project and
construction management services for the proposed 15/91 ELC in the amount of
$14,825,000, plus a contingency amount of $1,482,000, for a total amount not to
exceed $16,307,000, and extend the term to June 30, 2024;
3) Authorize the Chair or the Executive Director, pursuant to legal counsel review, to
finalize and execute the agreements on behalf of the Commission;
4) Authorize the Executive Director or designee to approve contingency work up to the
total amounts as required for the project; and
5) Forward to the Commission for final action.
BACKGROUND INFORMATION:
In April 2017 Governor Brown signed Senate Bill 132 (SB 132), which appropriated $427 million
to the Riverside County Transportation Efficiency Corridor (RCTEC) for five projects. SB 132
allocated $180 million to the 15/91 ELC. The 15/91 ELC will provide a tolled express lanes
connector between the existing 91 Express Lanes and the future 15 Express Lanes to the north
of SR-91 (Figure 1: Vicinity Map).
SB 132 also statutorily created a task force to develop recommendations to accelerate project
delivery of the RCTEC projects. On June 27, 2017, Governor Brown signed budget trailer bill
Assembly Bill 115 (AB 115) through which the Commission received additional project delivery
authority to ensure cost-effective and timely delivery of the 15/91 ELC.
Agenda Item 7
1
At its October 2017 meeting, the Commission approved an overall procurement strategy for the
15/91 ELC to secure all the services, design and construction needed to deliver the project. The
approved strategy consisted of a series of contract amendments, as permitted by AB 115, to
existing 91 Project and 1-15 Express Lanes Project (1-15 ELP) contracts with engineering
companies, contractors, toll vendors, legal, and financial advisors.
1-151SR-91 Express tapes Gonnactor
PruiEct Limits
Figure 1: 15/ 1 Express Lanes Connector Project Vicinity Map
The 15/91 ELC involves adding:
1) A single -lane tolled express lane connector from the eastbound RCTC 91 Express Lanes
to the future northbound 15 Express lanes that would extend in the median of 1-15 to
the Hidden Valley Road interchange; and
2) A single -lane tolled express lane connector from the future southbound 15 Express
Lanes that would extend from the median of 1-15 at the Hidden Valley Road
interchange and would connect to the westbound RCTC 91 Express Lanes.
In addition, operational improvements are proposed along eastbound SR-91 by extending
the eastbound RCTC 91 Express Lane to approximately 0.5 mile east of the 15/91 interchange
and widening SR-91 to accommodate extending the outside eastbound general purpose lane
from the SR-91 bridge over Arlington Channel to east of Promenade Avenue. A detailed map
of the 15/91 ELC is provided as Attachment 1.
In April 2018, staff initiated negotiations with Skanska-Ames, a Joint Venture (Skanska-Ames
JV), the 1-15 ELP design -build (DB) contractor, to amend the 1-15 ELP contract to include the
15/91 ELC work. In November 2018, staff and the 1-15 ELP DB contractor were unable to
Agenda Item 7
2
reach an agreement on a negotiated price for the 15/91 ELC. To advance the 15/91 ELC work
while the new procurement was underway, the 1-15 ELP DB contract was amended to
include specific advance engineering design and construction work to accommodate the
15/91 ELC and eliminate throw -away work. The same approach was taken with the 1-15 ELP
Toll System Provider (TSP) so that the installed 1-15 ELP tolling system and software could
accommodate the 15/91 ELC upon opening.
The Commission has also executed several amendments with existing firms working on the
1-15 ELP to provide support services during the development of the 15/91 ELC. These
services include work in the following major areas: environmental studies and approvals,
preliminary engineering, legal support, contract document preparation, procurement
assistance and construction management.
DISCUSSION:
Design -Build Procurement
Selection Process
The DB contractor for the 15/91 ELC was procured using a competitive procurement method to
obtain the best -value for the Commission. The competitive procurement method considers and
evaluates the proposal price and the proposal's technical elements.
The DB contractor was selected using a two-step procurement process, as allowed by federal
regulations and Public Contract Code 6820 (Design -Build Law). The first step consisted of
shortlisting the proposers based on a request for qualifications (RFQ). The second step
consisted of the receipt and evaluation of price and technical proposals in response to the
request for proposals (RFP). As allowed by the Design -Build Law, the recommended award is
based upon a determination using criteria established in the RFP.
The RFP included an upset limit, which identified the Commission's maximum price expectation
to the proposers. The upset limit of $142 million was initially developed by an independent
engineer's estimate for the 15/91 ELC based upon the understanding of market conditions at
the time of the estimate's development and further increased due to feedback from proposer
one-on-one meetings. Depending on the price proposals received, the selection process
utilizing the upset limit had three possible selection outcomes:
1. One proposal price under the upset limit: If only one proposer had a price less than the
upset limit, were technically compliant with all other RFP requirements and were
responsive and passed all pass/fail criteria, the technical evaluations are not performed
and the award could be made to that proposer.
Agenda Item
3
2. More than one proposal price is under the upset limit: If more than one proposer had a
price less than the upset limit, were technically compliant with all other RFP
requirements and were responsive and passed all pass/fail criteria, the technical
evaluations are performed on the proposals under the upset limit, and selection is made
on the basis of price and technical scoring as set forth in the RFP.
3. All proposal prices are over the upset limit: If no proposer had a price less than the
upset limit, the Commission reserved the right to waive the upset limit requirement and
award the contract to the proposer with lowest proposal price that was technically
compliant with all other RFP requirements and was responsive and passed all pass/fail
criteria.
Request for Qualifications
On February 4, 2019, staff issued a letter to the industry announcing the upcoming release of a
RFQ for the 15/91 ELC. The Commission conducted numerous meetings with interested
companies to garner their input about the 15/91 ELC prior to the release of the RFQ. On March
4, 2019, staff issued the DB RFQ No. 19-31-001-00 and received seven statements of
qualifications (SOQs) in response to the RFQ. A selection team of staff, Caltrans and the city of
Corona supported by procurement management consultants reviewed the SOQs and
performed a comprehensive evaluation. On May 6, 2019 the Commission announced the
shortlisting of the following four design -build teams:
1. Flatiron West, Inc.
2. Guy F. Atkinson Construction, LLC., dba Guy F. Atkinson
3. MCM Construction, Inc.
4. Myers -Rados, a Joint Venture
Request for Proposals
The four short-listed proposers were issued an RFP. Several one-on-one meetings were held
with each proposer to get input from the proposers relative to risk allocation, and commercial
terms. A total of four Addenda were issued responding to questions received and issues posed
by the short-listed proposers.
Two proposers submitted proposals that were reviewed and evaluated by a pass/fail and
responsiveness committee for responsiveness to the RFP requirements and satisfaction of the
pass/fail criteria set forth in the RFP. Upon determination by the technical evaluation
committee that both proposals were responsive and passed the pass/fail criteria, staff opened
and reviewed the proposers' form containing the contract upset limit indication. Staff
confirmed that both proposers were above the established upset limit of $142 million.
Pursuant to the RFP, in the event that all proposers' price proposals were above the upset limit,
a scored technical evaluation would not proceed and the Commission reserved the right to
Agenda Item
4
award the contract to the team that had the lowest proposal price that was technically
compliant with all other RFP requirements, was responsive, and passed all pass/fail criteria.
Both proposals were determined by the evaluation committees to be technically compliant with
all RFP requirements and responsive and passing all pass/fail criteria.
Proposal Price
The two price proposals are as follows:
Proposer
Price Proposal
Myers -Rados, a Joint Venture
$164,840,000
Flatiron West, Inc.
$187,298,643
Staff recommends award to the proposer that was technically compliant with all RFP
requirements and was responsive and passed all pass/fail criteria — Myers -Rados, a Joint
Venture.
Project and Construction Management Services
In April 2015, the Commission awarded an agreement with Parsons to provide project and
construction management services for the 1-15 ELP. Project and construction management
services for this design -build project includes procurement services, project financing support,
toll system and operations planning, engineering, design review/oversight, construction
management/oversight, agency agreement support, and other necessary services.
On July 10, 2018 the Commission approved an amendment to the Parsons agreement to add
additional project and construction management services for the 15/91 ELC. The scope of work
included support to staff in its efforts to negotiate with the 1-15 ELP DB contractor to amend the
1-15 ELP contract to include the 15/91 ELC work, as well as continuing the 1-15 ELP construction
management/oversight for the 15/91 ELC.
As noted above, an agreement with the 1-15 ELP DB contractor on a negotiated price for the
15/91 ELC was not reached, and a new procurement was initiated to hire a 15/91 ELC DB
contractor. Staff recommends an amendment to the Parsons contract, in an amount of
$14,825,000 to secure additional project and construction management resources and services
for the anticipated duration of the 15/91 ELC.
Agenda Item
5
Total Project Cost
The following is a breakdown of the major cost categories for the 15/91 ELC:
Project Cost Table
Cost Category
Cost
Project and Construction Management Preliminary
Engineering/Environmental
$ 2,070,000
Project and Construction Management and Legal Services for Design-
Build Procurement
9,329,000
Project and Construction Management and Legal Services for Design-
Build Phase
24,293,000
Toll Services Provider
12,308,000
Skanska-Ames JV Design -Build Amendments
25,962,000
Myers -Rados JV Design -Build Contract
164,840,000
Caltrans Oversight
7,166,000
Agency
7,831,000
Contingency
16,530,000
Total:
$ 270,329,000
The current estimated capital cost of the 15/91 ELC is $270.329 million. At its January 2019
workshop, the Commission committed to fund the remaining balance with surplus toll revenue
from the RCTC 91 Express Lanes. Based on current estimates (see Project Cost Table above),
this requires a total allocation from surplus toll revenue of $90.329 million.
STAFF RECOMMENDATION:
Staff recommends approval of Agreement No. 19-31-074-00 with Myers -Rados JV as the DB
contractor to design and construct the 15/91 ELC in the amount of $164,840,000, plus a
contingency amount of $10,487,000, for a total amount of $175,327,000. Further, staff
recommends approval of Agreement No. 15-31-001-07, Amendment No. 7 to Agreement No.
15-31-001-00, with Parsons to provide project and construction management services for the
15/91 ELC, extend the contract term to June 30, 2024, and increase the not to exceed amount
by $14,825,000, plus a contingency amount of $1,482,000, for a total amount not to exceed
$16,307,000. Staff also recommends authorization for the Chair or Executive Director, pursuant
to legal counsel review, to finalize and execute these agreements on behalf of the Commission
and authorization for the Executive Director or designee to approve contingency work up to the
total not to exceed amounts as required for the 15/91 ELC.
Agenda Item
6
Financial Information
In Fiscal Year Budget:
Yes
Year:
FY 2019/20
Amount:
$ 10,000,000
N/A
FY 2020/21+
$181,634,000
SB 132 Funds and 91 Express Lanes
No
Source of Funds:
Surplus Toll Revenue
Budget Adjustment:
N/A
003039 81603 00000 0000
605 31
81601 $175,327,000
GL/Project Accounting No.:
003039 81601 00000 0000
605 31
81601 $16,307,000
Fiscal Procedures Approved:
\JolAkorif
Date:
02/13/2020
Attachments:
1) Detailed Vicinity Map for the 15/91 Express Lanes Connector
2) Draft Contract No. 19-31-074-00 between the Commission and Myers -Rados, a Joint
Venture (Available on the website)
3) Draft Agreement No. 15-31-001-07, Amendment No. 7 between the Commission and
Parsons Transportation Group
Agenda Item
7
=15 R =91 EXPRESS LAN
SECQ '. St
END CONSTRUCTION
1-15 PM 43.4
CCO 6 / CCO 10
EXPRESS LANES
CONNECTOR PROJECT
BEGIN CONSTRUCTION
SR-91 PM 6.6
8
n Go
rrr�r,
rrrr,0r
ATTACHMENT 1
S CONNECTOR
NORTH
APPROXIMATELY 9 MILES WEST OF THE 15/91 JUNCTION
END CONSTRUCTION
SR-91 PM 8.1
LEGEND
EXPRESS LANES CONNECTOR PROJECT
CCO 6/CCO 10
PROPOSED RE -STRIPING
COUNTY LINE
SR-91 CIP APE
VTMS VARIABLE TOLL MESSAGE SIGN
Sensitive ATTACHMENT 2
EXPRESS LANES CONNECTOR
RIVERSIDE COUNTY
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
REQUEST FOR PROPOSALS (RFP No. 19-31-074-00)
TO DESIGN AND BUILD THE
I-15/SR-91 EXPRESS LANES CONNECTOR (ELC)
THROUGH A
DESIGN -BUILD CONTRACT
VOLUME II: CONTRACT
DRAFT EXECUTION COPY: February 12, 2020
EXECUTED:
Min MEE
Riverside County Transportation Commission
[INSERT DATE]
4080 Lemon Street, 3' Floor
Riverside, CA 92501
www.rctc.org
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
TABLE OF CONTENTS
Design -Build Contract
Page
SECTION 1 CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT 3
1.1 Certain Definitions 3
1.2. Order of Precedence 3
1.3. Reference Documents 4
1.4. No Liability Arising From RCTC Actions 5
1.5. Integration of Department Standard Specifications into Contract 6
1.6. Interpretation of Contract 6
1.7. Project Standards and Specifications 8
1.8. Standard for Approvals 8
1,9, Incorporation of ATCs 8
1,10, Federal Requirements 9
SECTION 2 REPRESENTATIONS, WARRANTIES AND COVENANTS 10
2.1. DB Contractor Representations, Warranties and Covenants 10
2,2, RCTC Representations, Warranties and Covenants 13
SECTION 3 OBLIGATIONS OF DB CONTRACTOR; DESIGN REQUIREMENTS 14
3.1 Project Management Plan 14
3.2. Deviations 15
3.3. Performance as Directed 16
3.4. General Obligations of DB Contractor 16
3.5. Coordination and Cooperation 17
SECTION 4 INFORMATION SUPPLIED TO DB CONTRACTOR; SUBMITTALS,
DESIGN REQUIREMENTS AND DISCLAIMER; ROLES OF PCM, DEPARTMENT,
FHWA 19
4.1. Submittals 19
4.2. Responsibility for Design 22
4.3. Design Professional Licensing Requirements 24
4.4. Role of PCM 25
4.5. Role of Department and FHWA 25
4.6. Role of OCTA 26
4.7. Role of Other Local Agencies 26
4.8. Toll Services Provider 26
4,9. ELP DB Contractor 26
4,10, 91 Express Lanes Operator 26
SECTION 5 NOTICES TO PROCEED 27
5.1. NTP1 27
5.2. NTP2 27
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project i Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 6 TIME WITHIN WHICH PROJECT SHALL BE COMPLETED, PROJECT
SCHEDULE AND PROGRESS 29
6.1. Time of Essence 29
6.2. Scheduling of Design, Construction and Payment 29
6.3. Conditions to Design Work Review and Payment 30
6.4. Conditions to Commencement of Construction 31
6.5. Recovery Schedule 33
SECTION 7 CONTROL OF WORK 34
7.1. Control of Work 34
7.2, Safety 34
7.3. Oversight, Inspection and Testing 34
7.4. Obligation to Uncover Finished Work 35
SECTION 8 ACCESS TO SITE; UTILITIES; ENVIRONMENTAL MITIGATION;
HAZARDOUS MATERIALS; APPROVALS; COOPERATION WITH LOCAL
AGENCIES 38
8.1. Access to Site 38
8.2. Access to Temescal Wash 44
8.3. Utility Relocations 45
8,4, Accuracy of RCTC-Supplied Information Concerning Existing Utilities 48
8,5, Utility Enhancements 50
8.6. Failure of Utility Owners to Cooperate 52
8.7. Avoiding Relocations and Minimizing RCTC Costs 53
8.8. Process to Follow Upon Discovery of Certain Site Conditions 54
8,9, Hazardous Materials Management 55
8.10, Environmental Compliance, Mitigation, and Approval Requirements 58
8.11, Approvals 59
8.12. Cooperation with Local Agencies 61
SECTION 9 SUBCONTRACTORS AND LABOR 63
9.1. Subcontracts 63
9.2. Equal Employment Opportunity 67
9.3. Labor Code Requirements 68
9,4. Prevailing Wages 69
9.5, Key Personnel; Qualifications of Employees 69
9.6. Key Personnel Liquidated Damages 70
SECTION 10 PERFORMANCE AND PAYMENT BONDS; GUARANTY 72
10.1. Provision of Bonds 72
10.2. No Relief of Liability 74
1 0.3. Guaranty 74
SECTION 11 INSURANCE 75
11.1. General Insurance Provisions 75
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project ii Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 12 SITE SECURITY; MAINTENANCE AND REPAIR; TITLE 81
12.1, Site Security 81
12.2, Obligation to Maintain and Repair 81
12.3, Title 83
SECTION 13 WARRANTIES AND NONCONFORMANCES DURING THE WARRANTY
PERIOD 84
13.1. DB Contractor Warranties 84
13.2. Subcontractor Warranties 85
13,3, No Limitation of Liability 86
13.4. Damages for Breach of Warranty and Other Rights at Law / Equity 86
SECTION 14 PAYMENT FOR SERVICES 87
14,1, Contract Price 87
14.2. Invoicing and Payment 88
14.3. Deductions, Exclusions and Limitations on Payment 91
14.4. Final Payment 96
14.5, Payment for Subsequent Claims 98
14.6. Payments Not Acceptance of Work 98
14.7. Payment to Subcontractors 98
14,8, Payment of "Claims" under Public Contract Code section 9204 99
14.9, Disputes 99
SECTION 15 GENERAL PROVISIONS APPLYING TO CHANGES IN THE WORK 100
15,1, Mitigation 100
15,2, Deductions/Reductions for Relevant Events 100
15.3. Sole Entitlement 100
15.4. Notifications; Delay in Notification 101
SECTION 16 CHANGES IN THE WORK 103
16.1. Change Order and Directive Letters 103
16.2. Right of RCTC to Issue Change Orders and Directive Letters 103
16.3, Issuance of Directive Letter 103
16.4, RCTC-Directed Change Orders 104
16.5, DB Contractor -Initiated Change Orders for Eligible Change 106
16.6. Change Order Entitlement for Delay Events 108
16.7. Change Order Entitlement for Compensable Events 109
16,8, Change Order Entitlement for Force Majeure Events 110
16.9, Change Order Pricing 110
16.10. Time and Materials Change Orders 111
16.11. Basic Configuration Changes 113
16.12. Main or Trunkline Utilities 113
16.13. Differing Site Conditions 115
16.14. Changes in Project Standards 115
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project iii Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
16.15. Hazardous Materials Management 116
16.16. Pavement Adjustment 117
16.17. Errors in As -Built Reference Document Information 118
16.18. Change Order Records 118
16.19. Daily Work Reports and Data Collection 119
16.20. Supplier's Invoices 119
16.21. Execution of Reports 119
16.22. Disputes 120
16.23. Work Performed Without Direction or Authority 120
16.24. Changes Not Requiring Change Order 120
16.25. No Release or Waiver; Course of Dealings 120
SECTION 17 VALUE ENGINEERING 122
17.1. General 122
17.2. Value Engineering Recommendation 122
17.3. Information to be Provided 122
17,4, Review by RCTC 123
17.5. Approval of VECPs 123
17.6. Contract Price Adjustment 124
17.7. Use of VECPs by RCTC 125
17,8, Public Records Act Exclusion 125
SECTION 18 SUSPENSION 126
18,1, Suspensions for Convenience 126
18,2, Suspensions for Cause 126
18.3. Department Suspensions 127
18.4. Responsibilities of DB Contractor during Suspension Periods 127
SECTION 19 TERMINATION FOR CONVENIENCE 128
19.1. Notice of Termination for Convenience 128
19.2. Transition Plan 128
19.3, DB Contractor's Responsibilities after Receipt of Notice of Termination 128
19.4, Acceptance 130
19.5. Payment for Termination for Convenience 130
19.6. Settlement Proposal 131
19.7. Amount of Negotiated Termination Settlement 132
19,8, No Agreement as to Amount of Termination Settlement for Work 132
19,9, Conditions to Payment; Reduction in Amount of Claim 132
19.10. Payment upon Termination 133
19.11. Termination Based on Delay in or Failure to Issue NTP1 133
19.12. Termination Based on Delay in or Failure to Issue NTP2 133
19.13. No Waiver; Release 133
19.14. Dispute Resolution 134
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project iv Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
19.15. Allowability of Costs 134
SECTION 20 DEFAULT 135
20.1. Default of DB Contractor 135
20.2. Remedies 137
20.3. Right to Stop Work for Failure by RCTC to Make Undisputed Payment 140
20.4. Event of Default Due Solely to DB Contractor's Failure to Achieve Completion
Deadlines 140
SECTION 21 LIQUIDATED DAMAGES 141
21.1 Liquidated Damages for Delay in Completion 141
21.2. Lane Closure Charges for Lane Closures on General Purpose Lanes, 91
Express Lanes and 15 Express Lanes 141
21.3. Liquidated Damages for Failure to Comply with Requests for Lane Closures
of General Purpose Lanes 143
21.4. Liquidated Damages for DB Contractor's Failure to Timely Cancel BNSF
Flagging Services 143
21.5. Liquidated Damages for Unavailability of Key Personnel 143
21.6. Pavement Adjustments; Liquidated Damages for Net Negative Pavement
Adjustments 143
21.7. Acknowledgements Regarding Liquidated Damages, Lane Closure Charges
and Flagging Charges 144
21.8. Payment; Offset; Reduction; Waiver; Non -Exclusive Remedy 145
21.9. Liquidated Damages for Failure to Comply with Time Limitation for SR-91
Eastbound Lane Closure 145
SECTION 22 LIMITATION OF DB CONTRACTOR'S LIABILITY 147
22.1. Limitation of Liability 147
22.2. Consequential Damages 147
SECTION 23 INDEMNIFICATION 149
23.1. Indemnifications by DB Contractor 149
23.2. Defense and Indemnification Procedures 151
23.3. Responsibility of RCTC for Certain Hazardous Materials 154
23.4. No Effect on Other Rights 154
23.5. CERCLA Agreement 154
23.6. Notification of Third Party Claim 154
SECTION 24 PARTNERING AND DISPUTE RESOLUTION 155
24.1. Partnering; Informal Process and mediation for Resolution of Claims 155
24.2. Commencement of Dispute Resolution Process 156
24.3. Disputes Review Board 159
24.4. Resolution of Disputes Exceeding $375,000 by Disputes Review Board 162
24.5. Resolution of Disputes Exceeding $375,000 by Judicial Reference 163
24.6. Resolution of Disputes Involving $375,000 or Less by Arbitration 165
24.7. Cooperation 165
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project v Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
24.8. Costs 165
24,9, Provisional Remedies 166
24.10. Continuing Performance 166
24.11. Participation in Proceedings; Joinder 166
24.12. Effect on Surety and Guarantor 166
24.13. Emergency Dispute Resolution 166
24.14. Time Limitation 167
24.15. Timely Payment of Undisputed Amounts of any Claim 167
SECTION 25 ACCEPTANCE 168
25,1, Coordination of Work with ELP DB Contractor 168
25.2, Coordination of work with Pavement Rehabilitation Project 169
25.3. Coordination of Work with TSP 170
25.4. Notification of Substantial Completion 171
25.5. Punch List 172
25,6, Project Completion 172
25.7, Final Acceptance 173
25.8. Opening Sections of Project to Traffic 174
25.9. Expiration of Plant Establishment Period 175
SECTION 26 DOCUMENTS AND RECORDS 176
26.1. Escrowed Proposal Documents 176
26.2. Review of EPDs 176
26.3. Proprietary Information 177
26.4, Format and Contents of EPDs 177
26.5. Subcontractor Pricing Documents 178
26.6. Financial Reporting Requirements 178
26.7. Maintenance of, Access to and Audit of Records 180
26,8, Public Records Act 182
26.9, Ownership of Documents 183
26.10. Intellectual Property 183
SECTION 27 MISCELLANEOUS PROVISIONS 186
27.1. Amendments 186
27.2, Waiver 186
27.3. Independent Contractor 186
27.4. Successors and Assigns 187
27.5, Designation of Representatives; Cooperation with Representatives 188
27.6, Gratuities and Conflicts of Interest 188
27.7, Survival 189
27.8. Limitation on Third Party Beneficiaries 189
27,9. Tort Liability, Personal Liability of RCTC Employees 189
27.10. Governing Law; Venue 190
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project vi Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
27.11. Notices and Communications 190
27.12. Taxes 192
27,13, Further Assurances 192
27.14. Severability 192
27.15. Headings 192
27.16. Entire Agreement 192
27.17. Counterparts 192
27.18. Costs 192
SECTION 28 SIGNATURE WARRANTY 194
28.1. Signature Warranty 194
ADDENDUM 196
EXHIBIT 1 ABBREVIATIONS AND DEFINITIONS 1
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project vii Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
LIST OF EXHIBITS
Exhibit 1 Abbreviations and Definitions
Exhibit 2 Contract Particulars
Exhibit 3 Modified Standard Specifications
(Replacing Sections 1 through 9 of Department's Standard Specifications)
Exhibit 4 Preliminary Baseline Schedule
Exhibit 5 Reserved
Exhibit 6 Listed Subcontractors
Exhibit 7 Subcontractor Identification Form
Exhibit 8 Bonds
8-A Form of Performance Bond
8-B Form of Payment Bond
8-C Form of Warranty Bond
Exhibit 9 Invoice and Invoice Certificate
9-A Invoice
9-B Invoice Certificate
Exhibit 10 NTP1 and NTP2 Payment Schedules
10-A NTP1 Payment Schedule
10-B NTP2 Payment Schedule
Exhibit 11 Disputes Review Board Agreement
Exhibit 12 Insurance Policy Requirements
Exhibit 13 Proposal Commitments and ATCs
13-A DB Contractor's Proposal Commitments
13-B ATCs
Exhibit 14 Federal Requirements
Exhibit 15 Form of Guaranty
Exhibit 16 Labor Code Requirements
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project viii Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Exhibit 17 OCTA-Related Work
Exhibit 18 Form of DB Contractor Request for Change Order
Exhibit 19 GP Lane Closure Charges
Exhibit 20 15 EL Closure Charges
Exhibit 21 91 EL Closure Charges
Exhibit 22 ELC Lane Closure Charges
Exhibit 23 Public Contract Code Section 9204
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project ix Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
DESIGN -BUILD CONTRACT
I-15/SR-91 EXPRESS LANES CONNECTOR (ELC)
RECITALS
This Design -Build Contract ("Contract") is entered into between the Riverside County
Transportation Commission, a public entity of the State of California ("RCTC"), and Myers -Rados,
A Joint Venture ("DB Contractor"). This Contract is effective as of the date of its execution by
both Parties (the "Effective Date"), with reference to the definitions contained in Exhibit 1
(Abbreviations and Definitions) and the following facts:
A. RCTC, in cooperation with Department, wishes to (1) develop a new south to
west/east to north Express Lanes connector between 15 Express Lanes and 91 Express Lanes,
(2) widen eastbound SR-91 to accommodate extension of the General Purpose Lane #4 from the
SR-91 bridge over Arlington Channel to "A" Line Station 435+25 east of South Promenade Avenue
bridge, and (3) extend the SR-91 eastbound Express Lane to approximately '/2-mile east of the
I-15/SR-91 interchange, including ancillary improvements along the 15 Express Lanes and 91
Express Lanes, otherwise known as the 15/91 Express Lanes Connector Project (the "Project").
B. Under this Contract, DB Contractor shall design and build the civil infrastructure for
the Project.
C. The Project is authorized pursuant to Public Contract Code section 6820 et seq.,
which authorizes regional transportation agencies, in cooperation with Department, to award design -
build contracts for highway, bridge, or tunnel projects under the Transportation Design -Build
Program. Contracts authorized under this program are awarded on the basis of the lowest
responsible bid or best value, as determined by the regional transportation agency.
D. The Project is authorized in accordance with RCTC's authority to use state-owned
ROW granted by the State of California, acting by and through Department, under a Cooperative
Agreement (District Agreement No. 08-1526), dated May 31, 2016 (as amended, the "Department
Cooperative Agreement") and a Toll Facilities Agreement (RCTC Agreement No 17-31-002-00).
RCTC also entered into a Reimbursement Agreement with OCTA (RCTC Agreement No 19-31-
067000), dated August 7, 2019 (as amended, the "OCTA Agreement").
E. On July 10, 2019, RCTC's Commission authorized RCTC staff to issue a Request for
Proposals (as subsequently amended by addenda, the "RFP") to four shortlisted proposers to design
and build the Project, select and negotiate this Contract with the apparent best value proposer, and
make a recommendation to RCTC's Commission to award this Contract.
F. On July 10, 2019, RCTC issued the RFP to the short-listed proposers. On November
22, 2019, RCTC received two Proposals in response to the RFP.
G. An RFP evaluation committee determined that DB Contractor was the proposer
which best met the selection criteria contained in the RFP and that the Proposal was the one which
provided the best value to RCTC.
H. On (NTD: Update once complete] [March 11], 2020, RCTC's Commission accepted
the recommendation of the Executive Director of RCTC and the RFP evaluation committee to award
this Contract to DB Contractor.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 1 Draft Execution Copy: January 7, 2019
56800642.v38
Sensitive
The Parties intend for this Contract to be a lump sum design -build contract obligating
DB Contractor to perform all Work necessary to achieve the Completion Milestones by the
Completion Deadlines, and for the Contract Price, subject only to certain specified limited exceptions.
DB Contractor has agreed in this Contract to assume such responsibilities and risks and has
reflected the assumption of such responsibilities and risks in the Contract Price.
J. Following completion and acceptance of the Project by RCTC and Department, the
Project will become part of the state highway system and Department will own all real property
located within the ROW, subject to the rights of RCTC to operate and maintain the Toll Facilities for
a period of 50 years after the ELP Revenue Service Commencement Date.
NOW, THEREFORE, in consideration of the sums to be paid to DB Contractor by RCTC, the
foregoing premises and the covenants and agreements in this Contract, the Parties agree as
follows:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 2 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 1
CONTRACT COMPONENTS;
INTERPRETATION OF CONTRACT
1.1. Certain Definitions
Unless the context otherwise requires, capitalized terms, terms used in the Department Standard
Specifications, and abbreviations used in this Contract have the meanings given in Exhibit 1
(Abbreviations and Definitions).
1.2. Order of Precedence
1.2.1. Subject to Sections 1.2.2 through 1.2.5, in the event of any irreconcilable
conflict, ambiguity or inconsistency between or among any of the provisions of this Contract, the
following order of precedence, from highest to lowest, applies:
(a) For design and other non -construction Work:
(i) Change Orders and Contract amendments;
(ii) Section 1 through Section 27, including all Exhibits, Schedules,
and attachments to this Contract (excluding the Modified Standard Specifications (Exhibit 3) and
Proposal Commitments (Exhibit 13-A));
(iii) Technical Provisions (excluding TP Attachments);
(iv) All TP Attachments (excluding the Project Standards);
(v) The Modified Standard Specifications (Exhibit 3);
(vi) Project Standards; and
(vii) Proposal Commitments (Exhibit 13-A).
(b) Without limiting Section 1.2.2, for construction -related Work, the same
order of precedence shall apply, except that the Final Design Documents shall also be considered
part of this Contract and shall be included as a new Section 1.2.1(a)(viii) in the order of
precedence subject to the following:
(i) Specifications have precedence over plans; and
(ii) Any other Deviations contained in the Final Design Documents
take priority over conflicting requirements of other parts of this Contract.
1.2.2. Except as set out in Sections 1.5.2 and 1.10, any provisions of this Contract
that establish a higher standard, quality, quantum or method of performance shall take
precedence over provisions establishing a lower standard, quality, quantum or method of
performance regardless of the order of precedence set out in Section 1.2.1(a), as determined by
RCTC in its sole discretion.
1.2.3. Except as otherwise expressly provided in this Contract, where this Contract
cites any Reference Document to define requirements of this Contract, the cited portion of the
applicable Reference Document shall (a) be deemed incorporated into this Contract to the extent
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 3 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
it is so cited, and (b) have the same order of priority as the part of this Contract where the citation
is made.
1.2.4. Notwithstanding the order of precedence set out in Section 1.2.1(a), to the
extent that any Proposal Commitment expressly specifies that it supersedes specific provisions
of this Contract, that Proposal Commitment shall take precedence over the applicable Contract
provisions. Incorporation into this Contract of any part of the Proposal (including the Proposal
Commitments) shall not (a) limit, modify, or alter RCTC's right to review and approve any
Submittal included in the Proposal, or submitted to RCTC after the Proposal (including any Project
Schedule), or (b) be deemed as acceptance or approval of any part of the Proposal by RCTC.
1.2.5. DB Contractor shall not take advantage of or benefit from any apparent or
actual Error, conflict or ambiguity in this Contract. If DB Contractor becomes aware that any
matters with respect to the Work are not sufficiently detailed, described or explained in this
Contract, or if DB Contractor becomes aware of any Error or any conflict or ambiguity between or
among the documents forming this Contract, DB Contractor shall promptly provide Notice to
RCTC, including the item DB Contractor considers should apply based on the applicable rules in
this Section 1.2. If (a) the Error, conflict or ambiguity cannot be reconciled by applying the
applicable rules in this Contract or (b) the Parties disagree about (i) which rule applies and/or (ii)
the results of the application of such applicable rule(s), then RCTC will determine, in its good faith
discretion, which of the conflicting items is to apply and provide Notice to DB Contractor before
DB Contractor proceeds with the applicable aspect of the Work.
1.3. Reference Documents
1.3.1. Subject to Section 1.2.3 and DB Contractor's rights under Section 16,
DB Contractor acknowledges and agrees that:
(a) The Reference Documents are provided without any representation or
warranty by or recourse to RCTC, all of which representations and warranties are disclaimed in
their entirety;
(b) DB Contractor may not rely on the Reference Documents (including
any information, reports or studies about site conditions, geotechnical conditions, Utilities or
structures and bridge design (including the Project Schematics), and any interpretations,
extrapolations, analyses and recommendations contained in such documents) as presenting a
feasible, complete, accurate, viable or desirable technical, design, engineering, construction,
system, deployment, integration, operations or maintenance solution or other direction, means or
methods for complying with the requirements of this Contract;
(c) The Reference Documents may include interpretations, extrapolations,
analyses and recommendations about data, design solutions, technical issues and solutions and
construction means and methods, and such interpretations, extrapolations, analyses and
recommendations are (i) preliminary in nature and, in many cases, obsolete, (ii) not intended to
express the views or preferences of RCTC or any other Governmental Entity, or represent any
statement of approval or acceptance thereof by RCTC or any other Governmental Entity, and (iii)
not intended to form the basis of DB Contractor's design solutions, technical solutions, or
construction means and methods;
(d) Neither RCTC nor Department are liable for any Losses suffered by any
DB-Related Entity in connection with the Reference Documents, including any DB-Related
Entity's reliance on the Reference Documents;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 4 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(e) To the extent any DB-Related Entity or anyone on any DB-Related
Entity's behalf uses the Reference Documents in any way, such use is made on the basis that
DB Contractor, not RCTC, has approved, and is liable for, the use of the Reference Documents;
(f) DB Contractor is capable of conducting and obligated under this
Contract to conduct any and all studies, analyses and investigations as it deems advisable to
verify or supplement the Reference Documents; and
(g) Use of the Reference Documents is entirely at DB Contractor's own risk
and at its own discretion.
1.4. No Liability Arising From RCTC Actions
1.4.1. DB Contractor acknowledges and agrees that RCTC's and Department's rights
under this Contract to review, comment on, approve, disapprove, monitor, inspect, test, accept,
or carry out any other act of RCTC or Department in connection with any Submittal, the Project,
or the Work exist solely for the benefit and protection of RCTC or Department (as applicable).
1.4.2. Except as expressly set out in this Contract, RCTC and Department owe no
duty of care to DB Contractor to:
(a) Review, comment on, approve, disapprove, monitor, inspect, test,
accept or carry out any other act or omission of RCTC in connection with any Submittal, the
Project or the Work; or
(b) Inspect or review the Work for Nonconformances.
1.4.3. Failure of RCTC or Department to review, comment on, approve, disapprove,
monitor, inspect, test, accept or carry out any other act or omission of RCTC or Department in
connection with any Submittal or the Project, or to inspect or review the Work shall not:
(a) Relieve DB Contractor from, or alter or affect, its liabilities, obligations
or responsibilities, whether under this Contract or otherwise at law, including obligations to
perform the Work in accordance with the Contract, or any of its General Warranty or indemnity
obligations;
(b) Prejudice RCTC's or Department's rights against DB Contractor,
whether under this Contract or Governmental Rules;
(c) Be deemed or construed as any kind of representation or warranty,
express or implied, by RCTC or Department, or be relied upon by DB Contractor in determining
whether DB Contractor has satisfied the requirements of this Contract;
(d) Be asserted against RCTC or Department by DB Contractor as a
defense, legal or equitable, to DB Contractor's obligation to satisfy the requirements of this
Contract; or
(e) Preclude or estop RCTC from asserting or showing that the Work or
materials do not comply with this Contract or recovering from DB Contractor and its Guarantors
or Surety(ies) such damages as RCTC may sustain in connection with DB Contractor's failure to
comply or to have complied with this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 5 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
1.4.4. Notwithstanding the provisions of Sections 1.4.1 through 1.4.3, DB Contractor
may rely on Notices that RCTC gives under this Contract for purposes of confirming RCTC's
approval or consent to an event or matter, but without prejudice to any of RCTC's other rights and
remedies under the Contract.
1.4.5. RCTC shall use reasonable endeavours to notify DB Contractor if RCTC or
Department intend not to review, comment on, approve, disapprove, monitor, inspect, test, accept
or carry out any other act or omission of RCTC or Department in connection with any Submittal,
the Project or the Work.
1.5. Integration of Department Standard Specifications into Contract
1.5.1. The Parties acknowledge and agree that the Department Standard
Specifications dated 2018, published by Department, incorporated by reference into the Technical
Provisions, with the exception of Sections 1 through 9 of the Department Standard Specifications
which are replaced with the Modified Standard Specifications in Exhibit 3, subject to certain
additional modifications as specified in TP Section 1.4 and otherwise in this Contract. The term
"Department Standard Specifications" as used in this Contract shall refer to the Standard
Specifications, as so modified, and include the Modified Standard Specifications contained in
Exhibit 3. The Technical Provisions also require compliance with other Department Documents.
1.5.2. If any question arises regarding whether any provision of the Department
Documents is applicable to this Contract or how to apply such provision, RCTC's interpretation
regarding such matter shall control, subject to Department concurrence.
1.6. Interpretation of Contract
1.6.1. Unless the context otherwise requires, in this Contract:
(a) Words in the singular number include the plural number and vice versa;
(b) A reference to a Section is a reference to the Section in the body of the
Contract, Exhibit, Schedule or Attachment in which the reference appears;
(c) Words denoting any gender include all genders;
(d) The terms "hereby," "hereof," "herein," "under this Contract" and any
similar terms refer to this Contract;
(e) References to days are references to calendar days, provided that if
the date to perform falls on a non -Business Day, such act or notice may be timely performed on
the next Business Day. Notwithstanding the foregoing, requirements contained in this Contract
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 -Business Day, shall be performed as
specified, even though the date in question may fall on a non -Business Day;
(f) A reference to time is a reference to Pacific Time;
(g) The words "include", "includes" and including" will be read as if followed
by the words "without limitation";
(h) The meaning of "or" will be that of the inclusive "or", that is meaning
one, some, or all of a number of possibilities;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 6 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(i) A reference to any legislation (including any orders, regulations, by-
laws, ordinances, orders, codes of practice or instruments made under the relevant legislation) or
a provision within it includes any legislation or provision which amends, extends, consolidates or
replaces such legislation or provision;
(j) References to Codes are to the codified laws of the State;
(k) A reference to any Governmental Entity includes a reference to any
successor to such Governmental Entity or any organization or entity or organizations or entities
which has or have taken over the functions or responsibilities of such Governmental Entity;
(I) A reference to any Person includes each of their legal representatives,
trustees, executors, administrators, successors and permitted substitutes and assigns, including
any Person taking part by way of novation;
(m) A reference to a right includes any benefit, remedy, discretion, authority
or power associated with such right;
(n) A reference to an agreement, document, standard, principle or other
instrument includes a reference to that agreement, document, standard, principle or instrument
as amended, supplemented, substituted, novated or assigned;
(o) A reference to "$" is to United States Dollars;
(p) On plans, working drawings, and standard plans, calculated
dimensions take precedence over scaled dimensions;
(q) The use of the word "remedy" or any form of it in this Contract means
that the event to be remedied must be cured or its effects overcome;
(r) In the event of any irreconcilable conflict, ambiguity, inconsistency or
dispute regarding the interpretation of this Contract, it shall not be interpreted or construed against
the Person which prepared it and, instead, other rules of interpretation and construction shall
apply;
(s) Subject to Section 1.8 or as otherwise expressly provided in this
Contract, the term "may", when used in the context of a power or right exercisable by RCTC or
RCTC's Representative, means that RCTC or RCTC's Representative can exercise that right or
power in its sole and unfettered discretion and RCTC or RCTC's Representative has no obligation
to DB Contractor to do so;
(t) If this Contract requires calculation of an amount payable to a Party,
there must be no double counting in calculating that amount such that the Party would receive
more than the amount owed or payable; and
(u) RCTC's interim or final answers to the questions posed during the
Proposal process for this Contract do not form part of this Contract and are not relevant in
interpreting this Contract, except to the extent RCTC believes the Contract is ambiguous, in which
case such interim or final answers may be used to clarify such ambiguous provisions.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 7 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
1.7. Project Standards and Specifications
1.7.1. Except as otherwise specified in this Contract or directed by RCTC, material
and workmanship specified by the number, symbol or title of any standard established by
reference to a described manual or publication affecting any portion of the Work shall comply with
the latest edition or revision thereof and amendments and supplements as at the Project
Standards Setting Date.
1.7.2. In interpreting Project Standards, the following apply:
(a) References to the project owner shall mean RCTC;
(b) References to an "engineer" or "Engineer" in which the engineer or
Engineer determines compliance with the Project Standard(s) may mean DB Contractor's Quality
Manager or similar representative or it may mean an RCTC or Department representative,
depending on the context, as determined by RCTC, in its good faith discretion;
(c) References to "plan(s)" shall mean the Final Design Documents; and
(d) Cross-references to measurement and payment provisions contained
in the Project Standards shall be deemed to refer to the measurement and payment provisions in
this Contract.
1.8. Standard for Approvals
In all cases where approvals or consents are required to be provided by RCTC or DB Contractor
under the Contract, such approvals or consents shall not be withheld unreasonably except in
cases where a different standard (such as sole discretion or good faith discretion) is specified or,
pursuant to Section 1.6.1(s) (with respect to "may" and sole discretion), deemed to specify a
different standard. In cases where RCTC's sole discretion is specified, the decision shall not be
subject to dispute resolution or other legal challenge under the Contract.
1.9. Incorporation of ATCs
1.9.1. Subject to Section 8.11.3(b)(ii), Section 1.9.5 and as otherwise expressly
provided in this Contract, if any ATC requires additional Governmental Approvals, analysis,
assessment, approvals, permits or findings prior to implementation, Section 8.11.3(b) shall apply
to such Governmental Approvals, analysis, assessment, approvals, permits or findings (as if each
were a Governmental Approval).
1.9.2. DB Contractor shall satisfy all conditions in Exhibit 13-B (ATCs) prior
implementing the ATC.
1.9.3. If DB Contractor does not obtain the Governmental Approvals as contemplated
by Section 1.9.1 or is unable to comply with Section 1.9.2, or fails in any other way to implement
the ATC:
(a) DB Contractor shall promptly provide Notice of such event to RCTC's
Representative;
(b) This Contract is deemed to be amended to delete the relevant
amendments set out in Exhibit 13-B (ATCs) with respect to the applicable ATC;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 8 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(c) DB Contractor shall comply with the corresponding baseline
requirements specified in this Contract (unmodified by the ATC) and shall not be entitled to any
increase in the Contract Price, extension of the Completion Deadlines or any other Change Order;
1.9.4. DB Contractor may incorporate ATCs contained in proposals submitted by
unsuccessful proposers with RCTC's prior consent and such ATCs may be incorporated through
the RCTC-Directed Change Notice process under Section 16.4 of this Contract.
1.9,5. RCTC will act as the liaison for additional RCTC-Provided Approvals required
as a result of any ATC and the direct costs of labor in the direct employ of RCTC shall be RCTC's
expense.
1.10. Federal Requirements
The Work is subject to certain federal statutes, rules and regulations, including the requirements
in Exhibit 14 (Federal Requirements). DB Contractor shall comply and require its Subcontractors
to comply with all applicable federal requirements, including those requirements in Exhibit 14. In
the event of any conflict, ambiguity or inconsistency between any applicable federal requirements
and the other requirements of this Contract, the federal requirements shall prevail.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 9 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. DB Contractor Representations, Warranties and Covenants
DB Contractor represents, warrants and covenants that:
2.1.1. DB 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.
2.1.2. DB Contractor is composed of Myers & Sons Construction, LLC and Steven P.
Rados, Inc.. DB Contractor and each member of DB Contractor is duly qualified to do business,
and is in good standing, in the State, and shall remain in good standing throughout the term of
this Contract and for as long thereafter as any obligations remain outstanding under this Contract.
2.1.3. As of the Effective Date, DB Contractor has full power, right and authority to
execute and deliver this Contract, and to perform all of DB Contractor's obligations provided for
under this Contract.
2.1.4. Each person executing this Contract on behalf of DB Contractor has been duly
authorized to execute and deliver this Contract on behalf of DB Contractor.
2.1.5. This Contract to which DB Contractor is (or will be) a Party has been (or will
be) duly executed and delivered by DB Contractor.
2.1.6. DB Contractor has evaluated the Planned ROW Limits and other constraints
affecting design and construction of the Project and has reasonable grounds to believe, and does
believe, that the Project can be designed and built within such constraints.
2.1.7. DB Contractor has evaluated the feasibility of performing the Work so as to
achieve the Completion Milestones by the Completion Deadlines and for the Contract Price,
accounting for constraints affecting the Project, and has reasonable grounds to believe and does
believe such performance is feasible and practicable.
2.1.8. DB Contractor has, prior to submitting the Proposal and in accordance with
Good Industry Practice, reviewed this Contract and the Reference Documents and has brought
to RCTC's attention any Errors, conflicts and ambiguities in the Contract and the Reference
Documents.
2.1.9. As of the Effective Date, DB Contractor conducted a Reasonable Investigation
of the Site, and DB Contractor is familiar with and has satisfied itself as to the character of the
Site, including quality and quantity of surface and subsurface materials or obstacles to be
encountered at the Site (including the presence of Utilities, Hazardous Materials, Contaminated
Groundwater, archaeological, paleontological, biological, cultural, and other protected resources,
and threatened or endangered species affecting the Site or surrounding locations) insofar as this
information was reasonably ascertainable through DB Contractor's Reasonable Investigation and
that such Reasonable Investigation constituted the basis for establishing its Contract Price.
2.1.10. Failure by DB Contractor to acquaint itself with the available Site information
will not relieve DB Contractor from responsibility for the difficulty or cost of successfully performing
the Work. DB Contractor further acknowledges and agrees that changes in conditions at the Site
may occur after the Effective Date, and that DB Contractor's entitlement to any Change Order in
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 10 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
connection therewith shall be only as permitted under Section 16. Before commencing any Work
on a portion of the Site, DB Contractor shall verify all governing dimensions at the relevant portion
of the Site, and shall examine all adjoining work which may affect its Work. DB Contractor shall
ensure that the Design Documents and Construction Documents accurately depict all governing
and adjoining dimensions and conditions.
2.1.11. DB Contractor has familiarized itself with the requirements of all applicable
Governmental Rules and the conditions of all required Governmental Approvals prior to entering
into this Contract. Except as specifically permitted under Section 16, DB Contractor shall and
shall cause its Subcontractors to comply with all such rules and conditions without any increase
in the Contract Price 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 this Contract. DB
Contractor has no reason to believe that any Governmental Approval required to be obtained by
DB Contractor will not be granted in due course in a timely fashion and thereafter remain in effect
so as to enable the Work to proceed in accordance with this Contract.
2.1.12. All Work provided by DB Contractor throughout the term of the Contract shall
be performed by or under the supervision of Persons who hold all necessary and valid licenses,
certifications, registration, permits or approvals to perform the Work in the State, 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 this Contract, and who
shall assume responsibility for the accuracy and completeness of the Design Documents,
Construction Documents, and other documents prepared or checked by them (as applicable). Any
Subcontractor that performs environmental remediation work shall, to the extent required by
Governmental Rules, have a Hazardous Substance Removal Certification from the State of
California Contractors State License Board.
2.1.13. The award of this Contract by RCTC to DB Contractor was based, in part, on
the qualifications and experience of the personnel listed in the Proposal and DB Contractor's
commitment that such individuals would be available to undertake and perform the Work and that
such individuals are available for and will fulfill the roles identified for them in the Proposal in
connection with the Work.
2.1.14. Execution, delivery and performance of this Contract have been duly
authorized by all necessary action of DB Contractor, DB Contractor's members and any
Guarantor, and will not result in breach or default under DB Contractor's organizational
documents, any indenture, loan or credit agreement, or any other material agreement or
instrument to which DB Contractor, any of DB Contractor's members, or any Guarantor is a party,
or by which their properties and assets may be bound or affected.
2.1.15. This Contract constitutes the legal, valid and binding obligation of
DB Contractor and, if applicable, each member of DB Contractor, in accordance with the terms of
this Contract, subject only to applicable bankruptcy, insolvency, and similar Governmental Rule
that affect the enforceability of the rights of creditors generally, and the general principles of
equity. The Guarantees, if any, constitute the legal, valid, and binding obligation of the
Guarantors, enforceable in accordance with the terms of the Guarantees, subject only to
applicable bankruptcy, insolvency, and similar laws that affect the enforceability of the rights of
creditors generally, and the general principles of equity.
2.1.16. There is no action, suit, proceeding, investigation, or litigation pending and
served on DB Contractor that challenges (a) DB Contractor's authority to execute, deliver or
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 11 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
perform, or the validity or enforceability of, this Contract, (b) DB Contractor's assets, properties
or operations, as they relate to the Project, or (c) the authority of DB Contractor's official to
execute this Contract; and DB Contractor has disclosed to RCTC any pending and un-served or
threatened action, suit, proceeding, investigation or litigation with respect to such matters that DB
Contractor is aware of or should be aware of after reasonable inquiry and investigation.
2.1.17. DB Contractor agrees to avoid organizational conflicts of interest. For
purposes of this Contract, an organizational conflict of interest exists if, due to its other activities,
relationships, or contracts, a consultant to RCTC is unable to render impartial assistance or advice
to RCTC, or the consultant's objectivity in providing services to RCTC is or might be otherwise
impaired. For purposes of the Proposal, organizational conflicts of interest also included any
matters that resulted in DB Contractor obtaining an unfair competitive advantage in connection
with the procurement of this Contract. As of the Proposal Date, to the extent DB Contractor was
actually aware, DB Contractor provided Notice to RCTC of all organizational conflicts of interest
involving DB Contractor and DB-Related Entities. Between the Proposal Date and the Effective
Date, DB Contractor has not obtained knowledge of any additional organizational conflict of
interest, and there have been no organizational changes to DB Contractor or Subcontractors
identified in its Proposal not approved by Notice to DB Contractor.
2.1.18. DB Contractor is aware of the provisions of Labor Code section 3700 that
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 DB Contractor shall comply
with such provisions before commencing performance of the Work, and at all times during the
term of this Contract, whether by providing its own insurance or self-insurance in accordance with
the provisions of that Code.
2.1.19. In connection with this Contract, DB Contractor has not committed or caused,
and will not commit or cause, a violation of: (a) Government Code sections 1090 through 1099,
84308, or 87100 through 87105; or (b) California Code of Regulations sections 18438.1 through
18438.8.
2.1.20. DB Contractor is not presently debarred, suspended, proposed for debarment,
declared ineligible or voluntarily excluded by any federal or State department or agency.
2.1.21. DB Contractor has not, in the past three years, been convicted of or had a civil
judgment rendered against it for (a) commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (e.g., federal, state or local) transaction or
public contract, (b) violation of federal or state antitrust statutes, or (c) commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property.
2.1.22. DB Contractor is not presently indicted for or otherwise criminally or civilly
charged by a Governmental Entity with commission of any of the offenses enumerated in Section
2.1.21;
2.1.23. DB Contractor has not, in the past three years, had one or more public
transactions (federal, state or local) terminated for cause or default.
2.1.24. DB Contractor has not received any communication or notice (written or oral),
whether from a Governmental Entity, employee, citizens group or any other Person, that alleges
DB Contractor is not in full compliance with all Governmental Rules and Governmental Approvals
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 12 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
in connection with the Project and, to the knowledge of DB Contractor, there are no circumstances
that may prevent or interfere with full compliance in the future.
2.1,25. DB Contractor (a) is not in violation of: (i) any applicable United States anti -
money laundering laws, including those contained in the Bank Secrecy Act and the regulations
promulgated thereunder; (ii) any applicable economic sanction laws administered by Office of
Foreign Assets Control of the United States Department of the Treasury ("OFAC") or by the United
States Department of State; or (iii) any applicable United States anti -drug trafficking, anti-
terrorism, or anti -corruption laws, civil or criminal, and (b) is not a Person: (i) that is charged with,
or has reason to believe that he, she or it is under investigation for, any violation of any such laws;
(ii) that has been convicted of any violation of, has been subject to civil penalties pursuant to, or
had any of its property seized or forfeited under any such laws; (iii) that is named on the list of
"Special Designated Nationals or Blocked Persons" maintained by OFAC (or any successor
United States government office or list), or any similar list maintained by the United States
Department of State (or any successor United States government office or list); (iv) with whom
any United States Person, any entity organized under the laws of the United States or its
constituent states or territories, or any entity, regardless of where organized, having its principal
place of business within the United States or any of its territories, is prohibited from transacting
business of the type contemplated by any applicable Governmental Rule; (v) that is owned,
controlled by, or affiliated with any Person identified in Sections 2.1.25(b)(i), 2.1.25(b)(ii),
2.1.25(b)(iii) or 2.1.25(b)(iv); or (vi) that is in violation of any obligation to maintain appropriate
internal controls as required by the governing laws of the jurisdiction of such Person as are
necessary to ensure compliance with the economic sanctions, laundering and anti -corruption laws
of the United States and the jurisdiction where the Person resides, is domiciled or has its principal
place of business.
2.2. RCTC Representations, Warranties and Covenants
RCTC represents, warrants and covenants that:
2.2.1. As of the Effective Date, RCTC has full power, right and authority to execute,
deliver and perform this Contract and to perform all of RCTC's obligations provided for under this
Contract;
2.2.2. Each person executing this Contract on behalf of RCTC has been duly
authorized to execute and deliver this Contract on behalf of RCTC; and
2.2.3. This Contract has been (or will be) duly executed and delivered by RCTC.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 13 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 3
OBLIGATIONS OF DB CONTRACTOR; DESIGN REQUIREMENTS
3.1. Project Management Plan
3.1.1. DB Contractor is responsible for all Quality Validation and Quality Control
activities necessary to manage the Work. DB Contractor shall perform all aspects of Quality
Validation and Quality Control for the Project in accordance with the RCTC-approved Project
Management Plan, this Contract, Governmental Approvals, Governmental Rules and Good
Industry Practice.
3.1.2. DB Contractor shall prepare and submit to RCTC the Project Management
Plan and any updates to it, for RCTC's approval in its good faith discretion, in accordance with
the procedures, and within the time periods described in Section 4 and TP Section 2.1, and the
schedule in TP Attachment 2-1.
3.1.3. RCTC may propose and DB Contractor shall implement any change to the
Project Management Plan required (a) to comply with the requirements of TP Section 2.1, (b) to
comply with this Contract, Governmental Approvals, Governmental Rules, and Good Industry
Practice, or (c) to reflect a change in working practice to be implemented by DB Contractor.
3.1.4. If any part or other documentation of the Project Management Plan refers to,
relies on or incorporates any manual, plan, procedure or like document, then all such referenced
or incorporated materials shall be submitted to RCTC for approval in its good faith discretion when
the relevant part or other documentation of the Project Management Plan or change, addition or
revision to the Project Management Plan is submitted to RCTC.
3.1.5. DB Contractor shall carry out internal audits of the Project Management Plan
at the times prescribed in the Quality Management Plan and shall provide full details of such
audits to RCTC.
3.1.6. DB Contractor shall ensure that, the DQVM shall, irrespective of his or her
other responsibilities, have express authority to establish and maintain the design elements of the
Project Management Plan and report directly to RCTC on the performance of the Project
Management Plan with respect to those elements.
3.1.7. DB Contractor shall ensure that the CQVM shall, irrespective of his or her other
responsibilities, have express authority to establish and maintain the construction elements of the
Project Management Plan and report directly to RCTC on the performance of the Project
Management Plan with respect to those elements.
3.1.8. The construction quality validation laboratory shall not be owned at any time
during the term of the Contract by DB Contractor or any subsidiary or affiliate of DB Contractor or
DB Contractor's design Subcontractors unless agreed to by Notice from RCTC, in RCTC's sole
discretion.
3.1.9. DB Contractor shall not terminate any agreement with the construction quality
validation laboratory that may affect the Work, or permit or suffer any substitution or replacement
of the construction quality validation laboratory, except with RCTC's prior written approval, in its
reasonable discretion.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 14 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
3.2. Deviations
3.2.1. DB Contractor may provide Notice to RCTC seeking approval of Deviations
regarding the design or construction of the Project. Where DB Contractor requests a Deviation
as part of the submittal of a component plan of the Project Management Plan or Design
Document, DB Contractor shall specifically identify and label the proposed Deviation. RCTC may
consider Deviations requested by DB Contractor.
3.2.2. DB Contractor shall bear the burden of persuading RCTC that the Deviation
sought is consistent with Governmental Approvals, Governmental Rules and Good Industry
Practice, achieves RCTC's applicable safety standards and criteria and, but for the specific
item(s) expressly included in the Deviation, is otherwise in accordance with this Contract.
3.2.3. No Deviation shall be deemed approved or be effective unless stated in a
signed Notice by RCTC's Representative. RCTC's failure to provide Notice of a Deviation within
14 days after DB Contractor's Notice shall be deemed a disapproval of such application.
3.2.4. RCTC's affirmative approval Notice of any part of the Project Management
Plan shall constitute:
(a) Approval of any Deviations expressly identified and labeled as
Deviations in the Project Management Plan, unless RCTC takes exception to any such Deviation
in which case the identified Deviation is not approved (and DB Contractor shall deliver revisions
to such part of the Project Management Plan for RCTC approval in accordance with Section 4);
and
(b) Disapproval of any Deviations not expressly identified and labeled as
Deviations in the Project Management Plan.
3.2.5. Except as set out in TP Sections 1.4 and 10 and subject to Section 3.2.6, DB
Contractor may use the approved nonstandard features in TP Attachment 10-1 without requesting
a new Deviation or obtaining approval of the nonstandard features.
3.2.6. DB Contractor shall request a Deviation and follow the processes for
Deviations in TP Sections 1.4 and 10.3.2 for those approved nonstandard features in TP
Attachment 10-1 where:
(a) The justification or basis under which the nonstandard features was
approved by Department has been changed or otherwise modified as a result of DB Contractor's
design or utilization of the nonstandard feature, as determined by RCTC and/or Department, in
their respective sole discretion;
(b) The submittal by or on behalf of RCTC upon which the nonstandard
feature was approved by Department is no longer accurate or no longer reflects the Project design
and impacts as a result of DB Contractor's design or utilization of the nonstandard feature, as
determined by RCTC and Department, in their respective sole discretion; or
(c) DB Contractor's utilization of the nonstandard feature differs in any way
from that which was approved by Department (including as it relates to the location, length, station
position or impact of the nonstandard feature), unless (i) RCTC and Department, in their
respective sole discretion, determine such difference is not material; and (ii) DB Contractor may
utilize such nonstandard feature in the express manner indicated in DB Contractor's design.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 15 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
3.2.7. DB Contractor shall provide Notice and plan sheets to RCTC and Department
which expressly describe and identify any eliminations, changes, improvements, differences or
deviations in DB Contractor's proposed use of any nonstandard feature approved by Department
and listed in TP Attachment 10-1.
3.2.8. Use of any nonstandard features listed in TP Attachment 10-1 is entirely at DB
Contractor's own risk and discretion. DB Contractor assumes sole responsibility and risk for the
use of such nonstandard features, including for any Errors in the nonstandard features.
3.3. Performance as Directed
At all times during the term of this Contract, including during the course of any Dispute, DB
Contractor shall: (a) perform the Work as directed by RCTC, in a diligent manner and without
delay; (b) abide by RCTC's decisions or orders in accordance with this Contract; and (c) comply
with all applicable provisions of this Contract.
3.4. General Obligations of DB Contractor
3.4.1. DB Contractor shall, and shall cause its Subcontractors to:
(a) Comply with the terms of the General Warranty;
(b) Perform the Work in accordance with:
(i) The Project Management Plan;
(ii) The Basic Configuration, except as otherwise approved by
Notice from RCTC, in its sole discretion;
(iii) All Governmental Rules (including Environmental Laws, the
Labor Code, the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), including
any amendments, and the federal requirements in Exhibit 14), Governmental Approvals and
Project Standards;
(iv) Supplier warranties in the case of equipment;
(v) The RCTC-approved Final Design Documents and
Construction Documents;
(vi) Good Industry Practice; and
(vii) Otherwise in accordance with this Contract, in each case taking
into account the Planned ROW Limits and other constraints affecting the Project; and
(c) Perform the Work so as to ensure:
(i) The Construction Work meets each of the purposes and
requirements set out in the Contract;
Contract; and
(ii) The Design Work meets each of the requirements set out in the
(iii) The Work is free of Deviations unless approved by RCTC; and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 16 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(d) Timely submit all Submittals by the applicable times in this Contract,
including TP Section 3, and all such Submittals shall be accurate and complete as required under
this Contract.
3.4.2. DB Contractor shall:
(a) Use the design Subcontractor(s) identified in Exhibit 2 (Contract
Particulars) to perform the design services required by this Contract or other Subcontractors
approved by Notice from RCTC. RCTC's approval shall not be withheld where RCTC determined,
in its reasonable discretion, that such firm has the demonstrated competence and professional
qualifications necessary for the satisfactory performance of the required design services, and that
the key personnel at such firm have sufficient experience with Department and other requirements
applicable to the Project;
(b) Not shift design Work from any Major Subcontractor or Listed
Subcontractor to another without the prior written approval of RCTC, in its good faith discretion,
except that DB Contractor may shift non -material amounts of design Work to the extent consistent
with Applicable Law where such shift does not eliminate a Major Subcontractor or Listed
Subcontractor;
(c) Provide and maintain field offices as described in TP Section 2.2 for the
exclusive use of RCTC and its consultants for the Project, as well as for Department and other
third parties as directed by RCTC; and
(d) Ensure labor harmony on the Site during all stages of the Project,
including taking appropriate steps to prevent strikes, walkouts, work stoppages, work slowdowns,
work curtailments, cessations or interruptions of production due to labor disputes or other labor -
related matters.
3.4.3. Except as otherwise expressly provided in this Contract, DB Contractor:
(a) Accepts all risks, responsibilities, obligations and liabilities in
connection with delivering the Work consistent with this Contract; and
(b) Is not entitled to make any Claim against RCTC for any Losses in
connection with the Project, Work or this Contract other than as expressly provided in Section 16.
3.5. Coordination and Cooperation
3.5.1. DB Contractor shall perform the Work so as not to:
(a) Enter upon, disturb or use any property of any Person except with the
express permission of, and in compliance with all requirements of, the owner or holder of such
property;
(b) Damage, close or obstruct any Utility installation, highway, road or
other property unless and until all applicable Governmental Approvals have been obtained; or
(c) Disrupt or otherwise interfere with the operation of any Utility,
improvement or structure unless otherwise specifically authorized by this Contract, an applicable
Governmental Rule or any Governmental Approval.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 17 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
3.5.2. DB Contractor acknowledges and agrees that:
(a) Other RCTC Contractors might be working at, near or otherwise be
present on or near the Site during performance of the Work;
(b) The work of Other RCTC Contractors might interfere with DB
Contractor's use of certain facilities on or near the Site; and
(c) DB-Related Entities, including DB Contractor, shall fully cooperate and
be solely responsible for coordinating the Work with Other RCTC Contractors and shall schedule
and sequence the Work as reasonably necessary to accommodate the work of Other RCTC
Contractors.
3.5.3. DB Contractor shall cooperate and coordinate with:
(a) RCTC and Other RCTC Contractors in connection with the ongoing
operation, maintenance, renewal, and replacement of the 15 Express Lanes, the 91 Express
Lanes, this Project and other obligations under this Contract; and
(b) RCTC, Other RCTC Contractors, Department, FHWA and other
Governmental Entities with jurisdiction over the Work in performing oversight and conducting
inspections during the performance of the Work and other matters relating to the 15 Express
Lanes, the 91 Express Lanes and this Project.
3.5.4. DB Contractor shall cause Subcontractors to cooperate and provide such
information as is necessary or requested by RCTC to assist or facilitate the submission by RCTC
of any documentation, reports or analysis required by the State, FHWA and/or any other
Governmental Entity with jurisdiction over the Project.
3.5.5. Additional requirements for DB Contractor to coordinate the Work with TSP,
ELP DB Contractor, 91 Express Lanes Operator and the Pavement Contractor are included in
Section 25.1 through Section 25.3.
3.5.6. If RCTC awards or performs other, separate contracts or projects that affect
the Work, DB Contractor shall perform and coordinate the Work so as to not unreasonably
interfere with the progress or completion of the work performed under such contracts or as part
of such projects.
3.5.7. Except as set out in Section 3.5.8 or as expressly provided under the this
Contract, if DB Contractor asserts that a contractor of Department, Local Agencies or BNSF has
caused damage to the Work or has hindered or interfered with the progress or completion of the
Work, then except as expressly set forth in the Contract, DB Contractor's sole remedy under this
Contract shall be to seek recourse against the respective contractor.
3.5.8. DB Contractor may submit disputes between itself and contractors of
Department, Local Agencies or BNSF for resolution under Section 24 so long as: (a) the
contractor and the contractor's sureties agree to submit the dispute to the Disputes Review Board;
and (b) the proceeding is conducted at no cost to RCTC.
3.5.9. DB Contractor shall have no right to compensation, time extension, or
otherwise make any Claim against RCTC for the actions or omissions of any contractor retained,
or work performed, by Department, BNSF, or other Local Agencies or any Utility Owner except
as expressly provided in this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 18 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 4
INFORMATION SUPPLIED TO DB CONTRACTOR; SUBMITTALS, DESIGN
REQUIREMENTS AND DISCLAIMER; ROLES OF PCM, DEPARTMENT, FHWA
4.1. Submittals
4.1.1. General
(a) This Section 4 describes the terms and procedures that govern
DB Contractor's Submittals to RCTC pursuant to this Contract (including the Project Management
Plan, Project Schedule, Design Documents and Construction Documents, among others). In the
event of any irreconcilable conflict between the provisions of this Section 4 and other provisions
of this Contract or the Project Management Plan concerning submission, review and approval
procedures for Submittals, this Section 4 shall control, except to the extent that the conflicting
provision expressly states that it supersedes this Section 4.
(b) Where DB Contractor is required to make a Submittal to RCTC under
this Contract, DB Contractor shall deliver such Submittal to the individual or organization, if any,
appointed by RCTC to act on its behalf.
(c) Where DB Contractor is required to obtain an action (e.g., review,
comment, approval) from Department, FHWA or BNSF in connection with a Submittal under this
Contract, DB Contractor shall timely make the corresponding Submittal to RCTC for RCTC to
review and distribute to Department, FHWA or BNSF, as applicable, in accordance with TP
Section 3.2.2. In the case of all other third parties, DB Contractor shall make the Submittal directly
to the third party in accordance with TP Section 3.2.2. DB Contractor shall coordinate with all
third parties to determine and comply with their applicable requirements such that third -party
action in connection with Submittals does not cause delay to the Project Schedule.
(d) DB Contractor shall provide RCTC with copies of all correspondence,
communications, submittals or notices to, by or between DB Contractor and Department, FHWA,
other Governmental Entities, Utility Owners, BNSF, Other RCTC Contractors, property owners,
insurers and other third parties with an interest arising out of or relating to the Work.
4.1.2. Time Periods
(a) Except as otherwise provided below, whenever RCTC and/or
Department are entitled to review and comment on, to affirmatively approve, or take other action
with respect to a Submittal, RCTC and/or Department will have the following time periods to
provide DB Contractor the applicable review, comment, approval or other action after the date
RCTC and/or Department, as applicable, receive an accurate and complete Submittal:
(i) For NTP1 Submittals, the time period indicated in TP
Section 3.2.2;
(ii) For Design Documents, Construction Documents, and
Requests for Information, the time periods indicated in TP Section 3.2.2; and
(iii) For all other Submittals, the time periods expressly indicated for
the applicable Submittal in this Contract or, if no specific time period is indicated, ten Business
Days after receipt by RCTC or Department (as applicable).
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 19 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(b) DB Contractor acknowledges that this Contract, including TP Section
3.2.2, includes certain limitations on the number, type, sequencing, bundling and packaging of
Submittals DB Contractor may submit to RCTC and/or Department at any one time and during
any particular period.
(c) All time periods for RCTC and/or Department to act shall be extended
by the period of any delay caused, in whole or in part, by (i) the acts or omission of any DB-
Related Entity or any DB Contractor Fault, and (ii) any Delay Event (other than those described
in clauses (b), (c), (e), and of the definition of "Delay Event").
(d) RCTC shall endeavor to reasonably accommodate Notices from
DB Contractor for expedited action on specific Submittals, within the reasonable and practical
limitations on availability of RCTC personnel appropriate for acting on the types of Submittal in
question, so long as DB Contractor sets forth in its request specific, abnormal or exigent
circumstances demonstrating the need for expedited action. Such accommodation, if undertaken,
may result in extension of the time period for review, response and/or approval of other
Submittals. This provision shall not apply, however, during any time described in Section 4.1.2(c).
(e) Whenever RCTC and/or Department are required to affirmatively
approve a Submittal or other matter under this Contract, and RCTC and/or Department, as
applicable, deliver no approval, disapproval, consent, denial, determination, decision or other
action within the applicable time period under this Section 4.1.2, then DB Contractor shall deliver
to RCTC and/or Department, as applicable, a Notice stating the date within which RCTC and/or
Department was to have decided or acted. Any delay from and after such Notice shall constitute
an RCTC-Caused Delay (for RCTC failure to decide or act where the standard is a "reasonable"
standard) for which DB Contractor may be entitled to relief under Section 16.
4.1.3. RCTC and Department Approvals
(a) If the Submittal is one where this Contract indicates approval, consent,
determination, acceptance, decision or other action (including a failure to act which constitutes a
disapproval) is required from RCTC and/or Department in its sole or good faith discretion, then
RCTC's and/or Departments' lack of approval, consent, determination, acceptance, decision or
other action within the applicable time period under Section 4.1.2 will be deemed disapproval. If
the approval, consent, determination, acceptance, decision or other action is subject to the sole
discretion of RCTC and/or Department (as applicable), then its approval, consent, determination,
decision or other action (including a failure to act which constitutes a disapproval) shall be subject
to Section 1.8.
(b) Whenever this Contract indicates that a Submittal or other matter is
subject to RCTC's and/or Department's approval, consent, determination, acceptance, decision
or other action and the standard is a reasonable standard, RCTC's and/or Department's
exception, objection, rejection, disapproval or other action (including a failure to act which
constitutes a disapproval) under this Section 4 shall be deemed reasonable, valid and binding if
based on any of the following grounds or other grounds set forth elsewhere in this Contract:
(i) The Submittal or subject provision fails to comply, or is
inconsistent, with any applicable covenant, condition, requirement, standard, term or provision of
this Contract;
(ii) The Submittal or subject provision is not to a standard equal to
or better than Good Industry Practice;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 20 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iii) DB Contractor has not provided all content or information
required or reasonably requested in respect of the Submittal or subject provisions thereof, in
which case DB Contractor may resubmit the Submittal with the required content or information;
(iv) Adoption of the Submittal or subject provision, or of any
proposed course of action under such Submittal, would result in a conflict with or violation of any
Applicable Law or Governmental Approval; or
(v) In the case of a Submittal that is to be delivered to a
Governmental Entity as a proposed Governmental Approval, or in order to obtain, modify, amend,
supplement, renew, extend, waive or carry out a Governmental Approval, it proposes
commitments, requirements, actions, terms or conditions that are (i) inconsistent with this
Contract, Applicable Law, the requirements of Good Industry Practice, or RCTC and/or
Department practices for public -private contracting, or (ii) not usual and customary arrangements
that RCTC and/or Department offers or accepts for addressing similar circumstances affecting its
projects (except if usual and customary for RCTC and/or Department regarding its projects
delivered via public -private contracting).
4.1.4. RCTC and/or Department Review and Comment
Whenever this Contract indicates that a Submittal or other matter is subject to RCTC and/or
Department's review, comment, review and comment, disapproval or similar action not entailing
a prior approval and RCTC and/or Department delivers no comments, exceptions, objections,
rejections or disapprovals within the applicable time period under Section 4.1.2, then DB
Contractor may proceed thereafter at its election and risk, without prejudice to RCTC and/or
Department's rights to later object or disapprove in accordance with Section 4.1.3. No such failure
or delay by RCTC and/or Department in delivering comments, exceptions, objections, rejections
or disapprovals within the applicable time period under Section 4.1.2 shall constitute an RCTC-
Caused Delay, or Delay Event or other basis for any Claim. When used in this Contract, the
phrase "completion of the review and comment process" or similar terminology means either (a)
RCTC and/or Department has reviewed, provided comments, exceptions, objections, rejections
or disapprovals, and all the same have been fully resolved, or (b) the applicable time period has
passed without RCTC and/or Department providing any comments, exceptions, objections,
rejections or disapprovals.
4.1.5. Submittals Not Subject to Prior Review, Comment or Approval
Whenever this Contract indicates that DB Contractor is to deliver a Submittal to RCTC and/or
Department but expresses no requirement for RCTC and/or Department review, comment,
disapproval, prior approval or other action, then DB Contractor is under no obligation to provide
RCTC and/or Department any period of time to review the Submittal or obtain approval of it before
proceeding with further Project Work, and RCTC and/or Department may at any time review,
comment on, take exception to, object to, reject or disapprove the Submittal in accordance with
Section 4.1.6(a). No failure or delay by RCTC and/or Department in delivering comments,
exceptions, objections, rejections or disapprovals with respect to any such Submittal shall
constitute an RCTC-Caused Delay or Department -Caused Delay or be the basis of a Change
Order, Delay Event or other basis for any Claim.
4.1.6. Resolution of RCTC and/or Department Comments and Objections
(a) DB Contractor acknowledges that RCTC and/or Department may
provide comments, exceptions, disapprovals and objections which reflect concerns regarding
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 21 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
interpretation or preferences of the commenter or which otherwise do not directly relate to grounds
in Section 4.1.5. DB Contractor shall undertake reasonable efforts to accommodate or otherwise
resolve any such comments, exceptions, disapprovals or objections through the review processes
described in this Section 4.1.6.
(b) DB Contractor shall respond in writing to all of RCTC's and/or
Department's comments, exceptions, disapprovals and objections to a Submittal and, except as
provided below, make modifications to the Submittal as necessary to fully reflect and resolve all
such comments, exceptions, disapprovals and objections, in accordance with the review
processes in TP Section 3.2.2.5. However, if the Submittal is not governed by Section 4.1.2, DB
Contractor is not obligated to incorporate any comments or resolve exceptions, disapprovals or
objections that (a) are not on any of the grounds in Section 4.1.2 (and not on any other grounds
set forth elsewhere in this Contract), (b) are otherwise not reasonable with respect to subject
matter or length, and (c) would result in a delay to a Critical Path matter in the Project Schedule,
or in costs associated with additional work or delay, except pursuant to a Change. If, however,
DB Contractor does not accommodate or otherwise resolve any comment, exception, disapproval
or objection, DB Contractor shall deliver to RCTC and/or Department within a reasonable time
period, not to exceed 14 Business Days after receipt of RCTC and/or Department's comments,
exceptions, disapprovals or objections, an explanation why modifications based on such
comment, exception, disapproval or objection are not required. The explanation must include the
facts, analyses and reasons that support the conclusion.
(c) The foregoing does not obligate DB Contractor to incorporate any
comments or resolve exceptions, disapprovals and objections that would render the Submittal
erroneous, defective or less than Good Industry Practice, except pursuant to an RCTC-Directed
Change.
(d) If DB Contractor fails to notify RCTC within the time period in Section
4.1.6(b), RCTC may deliver to DB Contractor a Notice stating the date by which DB Contractor
was to have addressed RCTC's and/or Department's comments and that if DB Contractor does
not address those comments within five days after receipt of this Notice, then that failure will
constitute DB Contractor's agreement to make all changes necessary to accommodate and
resolve the comment or objection and full acceptance of all responsibility for such changes without
right to an RCTC-Directed Change, Delay Event or other basis for any Claim, including any Claim
that RCTC and/or Department assumes design or other liability.
(e) After RCTC receives DB Contractor's explanation as to why the
modifications are not required as provided in Sections 4.1.6(a) through 4.6.1(d), if RCTC and/or
Department is not satisfied with DB Contractor's explanation the Parties shall attempt in good
faith to resolve the dispute. If they are unable to resolve the Dispute, either Party may request
dispute resolution in accordance with Section 24; provided that if RCTC elects to issue a Directive
Letter with respect to the matter in Dispute, DB Contractor shall proceed in accordance with
RCTC's Directive Letter while retaining any Claim as to the matter in dispute.
4.2. Responsibility for Design
4.2.1. DB Contractor Responsibility
DB Contractor acknowledges and agrees that:
(a) It has full responsibility and liability for the design of the Project and that
DB Contractor will provide the design of the Project, regardless of the fact that aspects of the
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 22 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Project Schematics have been provided to DB Contractor prior to the date of execution of the
Contract, as a preliminary basis for DB Contractor's design.
(b) Except to the extent expressly provided in this Contract, DB Contractor
is not entitled to rely on (i) the Project Schematics, except as expressly specified in
Section 4.2.2(b), (ii) the other Reference Documents, or (iii) any other documents or information
provided by or on behalf of RCTC.
(c) DB Contractor shall be responsible for any Errors in the Project
Schematics through the design and/or construction process without any increase in the Contract
Price, extension of a Completion Deadline or any other relief, subject only to the right to a Change
Order with respect to any Necessary Basic Configuration Changes to the extent permitted by
Section 16.
(d) RCTC's liability for Errors in the Project Schematics, Geometric
Approval Drawings or Planned ROW Limits (as applicable) is limited to its obligations relating to
Necessary Basic Configuration Changes and provision of access to parcels within the RCTC-
Provided Property, and is subject to the requirements and limitations of Section 16.
(e) Except for Necessary Basic Configuration Changes to the extent
permitted by Section 16, DB Contractor's warranties and indemnities under this Contract cover
Errors in the Project even though they may be related to, result from, or arise out of Errors in the
Project Schematics.
(f) DB Contractor shall verify all calculations and quantity takeoffs
contained in the Technical Provisions or otherwise provided by RCTC without any increase in the
Contract Price, extension of a Completion Deadline or any other relief.
4.2,2, Project Schematics
(a) DB Contractor acknowledges and agrees that:
(i) The Project Schematics have been previously reviewed by
Department;
(ii) If DB Contractor wishes to deviate from the concepts contained
in the Project Schematics, it must provide Notice of such proposed deviations to RCTC and
Department together with justification for the modification; and
(iii) Constraints in this Contract, including Planned ROW Limits,
RCTC's schedule for acquisition of property within the Planned ROW Limits, conditions, and
RCTC's schedule for acquisition of the RCTC-Provided Approvals, draft BNSF Construction &
Maintenance Agreement as described in TP Section 8 and TP Attachment 8-1, and Site
conditions, will impact DB Contractor's ability to revise the concepts contained in the Project
Schematics.
(b) DB Contractor may rely on the Planned ROW Limits identified in the
Project Schematics, and may obtain a Change Order for Necessary Basic Configuration Changes.
4.2.3. Design Review Process and Compliance with Final Design Documents
(a) DB Contractor shall:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 23 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(i) Prepare, sign, seal and provide Design Documents and
Construction Documents to RCTC, Department and other third parties, as applicable, for
appropriate action in accordance with this Contract, including TP Section 3;
(ii) Obtain Department and RCTC approval for any Deviation from
Project Standards, including design exceptions from applicable Department requirements, as
specified in TP Section 10.3.2;
(iii) Obtain RCTC and Department approval of Release for
Construction Packages and Final Design Documents in accordance with TP Section 3.2.2.5.
Approval by RCTC and Department of Release For Construction Packages and Final Design
Documents, as described in TP Section 3.2.2.5, shall constitute approval of the design in advance
of construction by RCTC and Department for purposes of Government Code section 830.6, and
shall not relieve DB Contractor of liability for the design;
(iv) Provide Notice to RCTC within the earlier of 14 days (i) after
receipt of any comments, the incorporation of which DB Contractor believes would adversely
affect the Design Documents, Construction Documents, the Work, the Project Schedule or any
other part of this Contract; or (ii) the date on which it should have, in the exercise of reasonable
diligence or in the performance of its obligations under this Contract, been aware that such
comments would adversely affect the Design Documents, Construction Documents, the Work,
the Project Schedule or any other part of this Contract. Failure of DB Contractor to Notify RCTC
shall not relieve DB Contractor of its full responsibility and liability for the design of the Project
under this Section 4.2;
(v) Respond to the comments and make modifications to the
Design Documents and Construction Documents based on the comments in accordance with TP
Section 3.2, including specifically TP Section 3.2.2.5. DB Contractor acknowledges that
comments may be provided that reflect concerns regarding operability or preferences of the
commenter or that otherwise do not directly relate to specific requirements of this Contract.
DB Contractor shall undertake reasonable efforts to accommodate or otherwise resolve any such
comments through the review processes described in TP Section 3.2.2, provided that DB
Contractor shall not be required to incorporate any comments regarding operability or preferences
that would result in a significant disruption to its schedule or a significant increase in its costs,
except pursuant to an RCTC-Directed Change; and
(vi) Coordinate design reviews by, and obtain all required design
approvals and other action required under this Contract from, Governmental Entities, BNSF, and
Utility Owners in connection with the Work in accordance with TP Section 3.2.2 and TP
Attachment 3-2.
(b) The Final Design Documents may be changed only with prior written
approval of RCTC and Department.
4.3. Design Professional Licensing Requirements
RCTC does not intend to contract for, pay for or receive any professional services that violate any
professional licensing or registration laws. By execution of this Contract, DB Contractor
acknowledges that RCTC has no such intent. It is the intent of the Parties that DB Contractor is
fully responsible for furnishing and providing the professional services of the Project itself or
through Subcontracts with licensed/registered professional service firm(s) as provided in this
Contract. Any references in this Contract to DB Contractor's responsibilities or obligations to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 24 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
"perform" the professional services portions of the Work shall be deemed to mean that DB
Contractor shall "furnish" the professional services for the Project. The terms and provisions of
this Section 4.3 shall control and supersede every other provision of this Contract.
4.4. Role of PCM
4.4.1. Project and Construction Manager is responsible for oversight of all Work on
RCTC's behalf. PCM shall coordinate comments from RCTC to DB Contractor with respect to
the Work, and shall be the primary liaison between RCTC and DB Contractor. PCM will perform
the function of the "Department Engineer" under the Department Standard Specifications.
4.4.2. DB Contractor shall deliver all Design Documents, Construction Documents,
other Submittals and other documents required to be submitted to RCTC pursuant to Section 4.1
to PCM.
4.4.3. PCM has certain responsibilities with respect to environmental mitigation
requirements, as specified in TP Section 6.3.2 and TP Attachment 6-1.
4.4.4. RCTC may retain other consultants to provide services to RCTC relating to the
Project. DB Contractor shall fully cooperate with PCM and RCTC's other consultants in the
exercise of their respective duties and responsibilities in connection with the Project.
4.4.5. PCM is not authorized to:
(a) Direct or suspend the performance of the Work, unless continued
performance of Work will endanger the health, welfare, or safety of the public or any Project
worker, or will damage or endanger Environmentally Sensitive Areas;
(b) Approve Deviations from Contract requirements;
(c) Approve changes in or Deviations from the approved Design
Documents;
(d) Approve performance by DB Contractor of extra Work or changed
Work;
(e) Waive any Contract requirements or provisions
(f) Issue Directive Letters; or
(g) Approve Change Orders, VECPs or Contract amendments.
4.5. Role of Department and FHWA
4.5.1. DB Contractor acknowledges and agrees that Department and FHWA will have
certain review and approval rights with respect to the Project (including rights to approve the
Project design and certain Change Orders), as well as the right to provide certain oversight and
technical services with respect to the Project.
4.5.2. DB Contractor shall fully cooperate with Department and FHWA in the exercise
of their respective duties and responsibilities in connection with the Project. DB Contractor shall
comply with all applicable terms, requirements and conditions of the Department Cooperative
Agreement and OCTA Agreement expressly set out in this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 25 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
4.6. Role of OCTA
DB Contractor acknowledges and agrees that OCTA will have certain approval, review and
compensation rights with respect to the Project. DB Contractor shall fully cooperate with OCTA
in the exercise of its duties and responsibilities in connection with the Project. Without limiting
the foregoing, DB Contractor shall comply with all applicable terms, requirements and conditions
set forth in this Contract, including Section 21.1, Exhibit 17 (OCTA-Related Work), Exhibit 21 (91
EL Closure Charges) and TP Section 18.3.3.3, in connection with OCTA-Related Work.
4.7. Role of Other Local Agencies
DB Contractor acknowledges and agrees that, in addition to OCTA, other Local Agencies will
have certain approval, review, and other rights with respect to the Project. DB Contractor shall
comply with applicable terms, requirements, and conditions in the Technical Provisions with
respect to cooperation with Local Agencies.
4.8. Toll Services Provider
DB Contractor shall:
(a) If requested by RCTC, (i) review and comment on submissions TSP
makes to RCTC as part of the TSP Work or inspect any work RCTC is required to inspect under
the TSP Contract, and (ii) provide written comments to RCTC, in the form requested by RCTC,
no later than two Business Days before RCTC is required to respond to the applicable submission
or inspection under the contract between RCTC and TSP, or if such contract provides no
applicable response time, ten Business Days after RCTC makes the request, provided RCTC
allows DB Contractor a minimum of three Business Days to respond; and
(b) Before submitting to RCTC any Release for Construction Package that
includes design elements for the TCS Infrastructure, obtain from TSP the TSP Ready for
Construction Certification for such design elements in accordance with TP Section 19.2.2.
4.9. ELP DB Contractor
DB Contractor shall, if requested by RCTC, (i) review and comment on submissions ELP DB
Contractor makes to RCTC as part of the ELP or inspect any work RCTC is required to inspect
under the ELP DB Contract, and (ii) provide written comments to RCTC, in the form requested by
RCTC, no later than two Business Days before RCTC is required to respond to the applicable
submission or inspection under the contract between RCTC and ELP DB Contractor, or if such
contract provides no applicable response time, ten Business Days after RCTC makes the request.
4.10. 91 Express Lanes Operator
DB Contractor shall, if requested by RCTC, (i) review and comment on submissions 91 Express
Lanes Operator makes to RCTC as part of the 91 Express Lanes Operator Work or inspect any
work RCTC is required to inspect under the 91 Express Lanes Operator Contract, and (ii) provide
written comments to RCTC, in the form requested by RCTC, no later than two Business Days
before RCTC is required to respond to the applicable submission or inspection under the contract
between RCTC and 91 Express Lanes Operator, or if such contract provides no applicable
response time, ten Business Days after RCTC makes the request.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 26 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 5
NOTICES TO PROCEED
5.1. NTP1
5.1.1. DB Contractor shall not proceed with the Work until directed by RCTC through
issuance of NTP1. DB Contractor acknowledges and agrees that:
(a) RCTC has no obligation to issue NTP1; and
(b) Unless and until NTP1 is issued, RCTC has no liability to DB Contractor
under this Contract.
5.1.2. Subject to Section 5.1.3, RCTC anticipates issuing NTP1 concurrently with the
execution and delivery of this Contract.
5.1.3.
been satisfied:
of the ITP);
RCTC shall not issue NTP1 until the following requirements for the Work have
(a) Satisfaction of all conditions to award in the ITP (including Section 6.1
(b) DB Contractor has delivered to RCTC the NTP1 Performance Bond
and the NTP1 Payment Bond, each executed by the issuing Eligible Surety;
(c) DB Contractor has delivered to RCTC the Guaranty of DB Contractor's
obligations in accordance with this Contract, executed by Guarantor in the form of Exhibit 15;
(d) DB Contractor has provided to RCTC the insurance policies,
certificates of insurance, riders to its existing insurance policies or other evidence reasonably
required by RCTC to confirm the existence of all the insurance coverages required for the NTP1
Work in accordance with Section 11; and
(e) DB Contractor has provided to RCTC any other documents, things or
assurances required by this Contract as a condition of NTP1.
5.1.4. Issuance of NTP1 authorizes DB Contractor to perform the NTP1 Work, so
long as DB Contractor obtains the applicable approvals and permits described in TP
Sections 1.1.3 and 9.4.3.
5.1.5. RCTC will pay DB Contractor for NTP1 Work prior to NTP2 in accordance with
Section 14.1.2(a), Section 14.2.1 and Exhibit 10-A (NTP1 Payment Schedule).
5.1.6. DB Contractor's rights and remedies arising from a delay in issuance of NTP1
are in Section 19.11.
5.2. NTP2
5.2.1. DB Contractor acknowledges and agrees that unless and until NTP2 is issued,
RCTC has no liability to DB Contractor under this Contract, except with respect to the NTP1 Work
and any other work for which payment is authorized in accordance with Section 5.1.5, where
NTP1 has been issued.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 27 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
5.2.2.
conditions:
Schedule;
RCTC shall issue NTP2 within 10 Business Days of satisfaction of the following
(a) DB Contractor has submitted to RCTC a draft of the full Baseline
(b) DB Contractor has submitted and RCTC has approved all Submittals,
including the Post Award Baseline Schedule, designated "Approved Prior to Issuance of NTP2"
in TP Section 1.1.3, Table 1-2;
(c) DB Contractor has submitted to RCTC a draft of the Utility Strip Map;
(d) DB Contractor has submitted to RCTC a draft of the As -Built Verification
Map;
(e) DB Contractor has delivered to RCTC the NTP2 Performance Bond
and NTP2 Payment Bond;
(f) The Guaranty of DB Contractor's obligations in accordance with this
Contract in the form of Exhibit 15 (Form of Guaranty) remains in full force and effect;
(g) RCTC has approved, in writing, any changes in Key Personnel, in
accordance with Section 9.5.1;
(h) DB Contractor has provided to RCTC the insurance policies,
certificates of insurance, riders to its existing insurance policies, or other evidence reasonably
required by RCTC to confirm the existence of all the insurance coverages required for the NTP2
Work in accordance with Section 11;
(I) DB Contractor has provided RCTC office space available for
occupancy at the Co -Located Office, in accordance with TP Section 2.2.1; and
(j) DB Contractor has provided to RCTC any other documents or
assurances required by this Contract as a condition of NTP2.
5.2.3. Issuance of NTP2 authorizes DB Contractor to perform all other Work and
activities for the Project.
5.2.4. DB Contractor's rights and remedies arising from a delay in issuance of NTP2
are provided in Sections 14.1.2 and 19.12.
5.2.5. RCTC will pay DB Contractor for NTP2 Work in accordance with Section 6.2.3.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 28 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 6
TIME WITHIN WHICH PROJECT SHALL BE COMPLETED,
PROJECT SCHEDULE AND PROGRESS
6.1. Time of Essence
6.1.1. DB Contractor acknowledges that achieving the Completion Milestones by the
relevant Completion Deadlines is of the essence of this Contract.
6,1.2. Except as otherwise specifically provided in Section 15 and Section 16, and
subject to any constraints on Work under this Contract (including applicable Governmental Rules),
DB Contractor shall:
(a) Perform the Work in accordance with this Contract so as to achieve
each Completion Milestone by the applicable Completion Deadline and in accordance with the
Project Schedule; and
(b) Provide such employees, materials, facilities and equipment, and work
such hours, extra shifts, overtime operations, Sundays, and holidays as necessary to achieve
each Completion Milestone by the applicable Completion Deadline.
6.2. Scheduling of Design, Construction and Payment
6.2.1. Project Schedule
(a) DB Contractor shall undertake and complete the NTP1 Work in
accordance with the Preliminary Baseline Schedule.
(b) DB Contractor shall undertake and complete the Work between NTP2
and the earlier of (i) 180 days after NTP2, and (ii) RCTC's approval of the final Baseline Schedule
in accordance with the Post Award Baseline Schedule, which DB Contractor shall submit to RCTC
for review and approval within 14 days after issuance of NTP1.
(c) DB Contractor shall undertake and complete the remaining Work
(i.e., Work commencing after RCTC's approval of the Baseline Schedule) in accordance with the
Baseline Schedule.
(i) DB Contractor shall submit to RCTC a draft of the Baseline
Schedule for review and comment within 60 days after issuance of NTP1.
(ii) DB Contractor shall submit to RCTC the proposed final Baseline
Schedule for RCTC review and approval no later than 60 days after NTP2. DB Contractor
acknowledges and agrees that: (1) if DB Contractor fails to obtain RCTC's approval of the final
Baseline Schedule within 60 days after NTP2, RCTC may withhold up to 25% from each progress
payment until RCTC approves the Baseline Schedule; and (2) if DB Contractor fails to obtain
RCTC's approval of the final Baseline Schedule within 180 days of NTP2, RCTC may withhold up
to 50% from each progress payment until RCTC approves the Baseline Schedule.
(d) The Parties shall use the then -applicable Project Schedule to plan and
monitor the progress of the Work, and as the basis to determine the amount of monthly progress
payments owing from RCTC to DB Contractor.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 29 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(e) RCTC has no obligation to accept a Project Schedule that sets forth
Completion Deadlines that differ from the Preliminary Baseline Schedule, Post Award Baseline
Schedule, or previously -approved Baseline Schedule (as applicable), as those durations may be
extended pursuant to Section 16; provided, however, that, if RCTC accepts a Project Schedule
with Completion Deadlines forecasted earlier than the previously -approved Project, then the
difference between the forecasted early Completion Deadline and the specified Completion
Deadline shall be considered Float.
(f) If DB Contractor plans to achieve any Completion Milestone prior to the
scheduled Completion Deadline, RCTC shall not be responsible for any delays or compensation
related to delays, however caused, that affect DB Contractor's planned early completion.
(g)
RCTC's acceptance of a Project Schedule shall not:
(i) Imply RCTC's acceptance of any particular construction
methods, or relieve DB Contractor from its responsibility to provide sufficient materials, equipment
and labor to guarantee completion of the Project (or any portion thereof) in accordance with this
Contract;
(ii) Attest to the validity of assumptions, activities, relationships,
sequences, resource allocations or any other aspect of the applicable Project Schedule;
(iii) Imply that DB Contractor is entitled to any Change Order
extending a Completion Deadline or adjusting the Contract Price; or
(iv) Modify this Contract.
(h) DB Contractor's failure to include any element of Work required by the
Contract in the applicable Project Schedule shall not relieve DB Contractor's responsibility to
perform that element of Work.
6.2.2. Float
(a) All Float contained in the Project Schedule, or generated after RCTC's
approval of the Baseline Schedule, shall be a Project resource available to either Party or both
Parties, as needed, to absorb delays caused by any event and to achieve schedule milestones,
interim completion dates and/or Completion Deadlines.
(b) All Float shall be shown as such in the Project Schedule and on each
applicable schedule path. RCTC shall consider DB Contractor's identification of (or failure to
identify) Float on the Project Schedule in determining whether to approve the Project Schedule.
Once identified, DB Contractor shall monitor, account for and maintain Float in accordance with
CPM.
6.2.3. Payment
Following issuance of NTP2, RCTC shall pay DB Contractor on the basis of DB
Contractor's progress of the Work.
6.3. Conditions to Design Work Review and Payment
6.3.1. Except as set out in Sections 5.1.4 and 5.1.5, RCTC shall have no obligation
to commence its review of, or pay DB Contractor for, any Design Documents until RCTC
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 30 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(a) issues NTP2, and (b) receives and approves: (i) the Quality Management Plan (general
requirements and professional services); and (ii) the Submittal Schedule.
6.3.2. RCTC may reject without review or payment any Design Documents
DB Contractor submits to RCTC before all the conditions in Section 6.3.1 are satisfied. All time
periods available under this Contract for RCTC to review and, as applicable approve any Design
Document submitted before the date all such conditions are satisfied shall begin to run on that
date, and shall be subject to TP Section 3.2.2.7.
6.4. Conditions to Commencement of Construction
6.4.1. Construction Work Generally
(a) Except with the prior written approval of RCTC, which RCTC may
provide, DB Contractor shall not start construction of any portion of the Project (or recommence
construction following any suspension) unless:
(i) RCTC has delivered NTP2 to DB Contractor;
(ii) RCTC and, as applicable, Department have approved the
Submittals in TP Section 1.1.3, Table 1-2, including the proposed final Baseline Schedule;
(iii) RCTC and Department have approved the Transportation
Management Plan in accordance with TP Section 18.3.1;
(iv) All requirements of the Construction Quality Management Plan,
which are a condition to commencement of construction, have been met;
(v) DB Contractor has obtained and delivered to RCTC in fully
executed, required form, all approvals from RCTC and any Governmental Approvals necessary
for construction of the applicable portion of the Project required by the Project Management Plan
and this Contract;
(vi) DB Contractor has complied with and performed all conditions
of Governmental Approvals which are a prerequisite to commencement of the applicable portion
of the Project;
(vii) RCTC and Department have approved all Release for
Construction Packages and Construction Documents for the applicable portion of the Project;
(viii) The Performance Bond and Payment Bond required under
Sections 10.1.1 and 10.1.2, respectively, have been obtained and such Bonds remain in full force
and effect;
(ix) All insurance policies required to be delivered to RCTC under
this Contract prior to commencement of construction have been received and approved by RCTC
and shall remain in full force and effect;
(x) The Guarantees, if any, required under Section 10.3 have been
obtained and delivered to RCTC and are in full force and effect;
(xi) All necessary rights of access acceptable to RCTC, in its good
faith discretion, for construction of the applicable portion of the Project have been obtained, and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 31 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
all previous owners or occupants of such portion of RCTC-Provided Property have been
relocated;
(xii) All pre -construction environmental surveys and mitigation have
been completed as required by the Governmental Approvals or otherwise under this Contract for
the area(s) proposed for construction, and DB Contractor has performed all other survey work
and delivered all notices required by this Contract to be delivered prior to commencement of
construction on such portion of the Project;
(xiii) All representations and warranties of DB Contractor in
Section 2.1 remain true and correct in all material respects;
(xiv) There exists no uncured Event of Default for which DB
Contractor has received Notice from RCTC; and
(xv) DB Contractor has provided to RCTC at least ten Business
Days' advance Notice of the date DB Contractor determines it will satisfy the conditions in this
Section 6.4.1.
(b) As used in this Section 6.4.1, the term "construction" specifically
excludes potholing and geotechnical investigations incidental to design Work, mobilization, Site
security and establishment of work yard(s) and storage sites.
6.4.2. As -Built Verification Map
DB Contractor shall submit to RCTC the final As -Built Verification Map for review and
approval within 180 days after NTP1 ("As -Built Verification Map Deadline").
6.4.3. DB Utility Work
(a) DB Contractor shall submit to RCTC the final Utility Strip Map for review
and approval within 180 days after NTP1 ("Utility Strip Map Deadline").
(b) DB Contractor shall not commence or permit commencement of
construction of any Relocation or Incidental Utility Work until:
(i) RCTC issues NTP2;
(ii) RCTC approves the final Utility Strip Map; and
(iii) All the conditions in Section 6.4.1 that are applicable to the
Relocation or Incidental Utility Work (reading such provisions as if they referred to the applicable
Relocation or Incidental Utility Work) have been satisfied.
(c) With respect to Relocations only, DB Contractor shall not commence
or permit commencement of construction of any Relocation until:
(i) Except as otherwise provided in Section 8.6.5, the Relocation
is contemplated by an executed Utility Agreement;
(ii) The review and comment process has been completed or
RCTC's approval has been obtained, as applicable, for the Utility Plans covering the Relocation;
and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 32 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iii) Any other required approvals have been obtained for the Utility
Plans covering the Relocation.
6.5. Recovery Schedule
6.5.1. If at any time, the Work on any Critical Path or near critical item is delayed for
a period that exceeds the lesser of (a) 30 days in the aggregate, and (b) that number of days in
the aggregate equal to 5% of the days remaining until a Completion Deadline (including delays
for which DB Contractor is entitled to submit a Claim for a time extension subject to complying
with Section 16), then DB Contractor shall prepare and submit to RCTC for review and approval
a Recovery Schedule within ten Business Days after DB Contractor first becomes aware of such
delay or otherwise at the request of RCTC.
6.5.2. Within ten Business Days after receipt of a Recovery Schedule, RCTC shall
notify DB Contractor whether the Recovery Schedule is approved or rejected. Within five
Business Days after RCTC's rejection of a Recovery Schedule, DB Contractor shall resubmit a
revised Recovery Schedule incorporating RCTC's comments.
6.5.3. Within five Business Days after RCTC's approval of a Recovery Schedule, DB
Contractor shall incorporate and fully include such Recovery Schedule into the Project Schedule,
and perform the Work so as to achieve the Recovery Schedule.
6.5.4. If DB Contractor fails to provide RCTC with an acceptable Recovery Schedule,
and the reason for the Recovery Schedule being required does not relate to an event for which
DB Contractor is entitled to submit a Claim for a time extension subject to complying with Section
16, within 30 days after DB Contractor's receipt of Notice to do so, RCTC may withhold up to 10%
from each progress payment owing to DB Contractor thereafter until DB Contractor prepares and
RCTC reviews and approves the Recovery Schedule. Any failure or delay in DB Contractor's
submittal or RCTC's approval of a Recovery Schedule shall not result in any compensation, time
extension or otherwise entitle DB Contractor to any Claim under this Contract.
6.5.5. The requirement to submit a Recovery Schedule shall not preclude the need
for, or delay the submittal of, regular monthly updates of the Project Schedule during the period
when a Recovery Schedule is being prepared and submitted by DB Contractor and reviewed and
approved by RCTC.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 33 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 7
CONTROL OF WORK
7.1. Control of Work
DB Contractor shall be solely responsible for and have control over the construction means and
methods, techniques, sequences, procedures, and Site safety.
7.2. Safety
7.2.1. DB Contractor shall:
(a) Take all reasonable precautions and be solely responsible for the
safety of, and provide protection to prevent damage, injury, or loss to, all Persons on the Site or
who would reasonably be expected to be affected by the Work, including Persons performing
Work, employees of RCTC and its consultants, employees of Department and FHWA, visitors to
the Site and members of the public who may be affected by the Work;
(b) Comply with all safety requirements of this Contract, the RCTC-
approved Health and Safety Plan, and all such requirements under applicable Governmental
Rules and Government Approvals (as applicable); and
(c) Undertake the Work in a manner that will minimize the effect on
surrounding property and the public to the maximum extent practicable.
7.2.2. If, in the sole discretion of RCTC, PCM or Department, any conditions or
activities may present an imminent danger that could result in serious injury, death, material
property damage or material loss of revenues, RCTC may direct DB Contractor to stop the
affected portion of the Work immediately and not to recommence the Work until the practices or
conditions are corrected to the satisfaction of RCTC, PCM and Department.
7.2.3. If the Work or any portion of it is suspended by RCTC, PCM, Department or
any other Governmental Entity because of an unsafe condition, such suspension shall be treated
in accordance with Section 18.2.1(a).
7.3. Oversight, Inspection and Testing
7.3.1. DB Contractor shall perform the inspection, sampling, testing, Quality Control
and Quality Validation necessary to comply with this Contract.
7.3.2. DB Contractor shall at all times permit RCTC, Department, PCM, FHWA and
their authorized representatives safe, free and unrestricted access to the Work and the Site to the
extent necessary or advisable (as determined by each of such entities) to: (i) comply with FHWA
or other applicable federal agency requirements; (ii) carry out Department's inspection and other
rights under the Department Cooperative Agreement and California Streets and Highways Code
section 91.2; and (iii) verify DB Contractor's compliance with this Contract and Project
Management Plan.
7.3.3. RCTC shall perform activities under this Section 7.3 in compliance with DB
Contractor's reasonable safety procedures and in a manner intended to minimize interference
with the Project.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 34 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
7.3.4. If this Contract or any Governmental Rule requires any portion of the Project
or the Site to be inspected, tested or approved by RCTC or Department, DB Contractor shall give
RCTC timely Notice of its readiness to continue the Work, pending satisfaction of any such
inspection, test or approval, so RCTC and, if applicable, Department may observe or make such
inspection, testing or approval. DB Contractor shall not proceed with any such inspection, test or
approval until RCTC or Department, as applicable, have observed or made such inspection, test
or approval or provided Notice waiving their respective rights to inspect, test or approve.
7.3.5. DB Contractor shall provide to RCTC all test results and reports one Business
Day after DB Contractor receives them. Where the inspection, test or approval does not meet the
requirements of this Contract or Governmental Rules, DB Contractor shall provide further Notice
to RCTC of such fact and re -perform the inspection, test or approval in accordance with this
Contract as if it were the original inspection, test or approval.
7.3.6. When any Utility Owner is to accept or pay for a portion of the cost of the Work,
its respective representatives have the right to oversee, inspect and test such Work.
7.3.7. DB Contractor shall cause its representatives to be available at all reasonable
times for consultation with RCTC and Department.
7.3.8. Without limiting the foregoing, DB Contractor shall afford RCTC, PCM,
Department, FHWA, and their respective authorized representatives: (a) safe and unrestricted
access to the Project at all times, (b) safe access during normal business hours to DB Contractor's
Project offices and operations buildings and (c) unrestricted access to data related to the Project,
subject to Section 26.7. Without limiting the foregoing, DB Contractor shall deliver to RCTC upon
request accurate and complete books, records, data and information regarding the Project and
the Relocation Work, in the format required by the Technical Provisions.
7,3.9. Nothing in this Contract shall preclude, and DB Contractor shall not interfere
with, any review or oversight of Submittals or of Work that FHWA or any other applicable federal
agency may desire to conduct.
7.3.10. DB Contractor shall bear all of its costs of such inspections, tests or approvals
unless otherwise provided in this Contract.
7.4. Obligation to Uncover Finished Work
7.4.1. Before covering any part of the Work, DB Contractor shall provide Notice to
RCTC and Department, and offer RCTC, Department, PCM and any other Persons designated
by RCTC a full and adequate opportunity to inspect and test such part of the Work before it is
covered.
7.4.2. At all times before Final Acceptance, DB Contractor shall remove or uncover
such portions of the finished or covered construction Work as directed by RCTC or Department
for inspection and/or testing by RCTC, Department, PCM and any other Persons designated by
RCTC.
7.4.3. If, after inspection and/or testing under Section 7.3.2 or 7.3.3, the Work
exposed or examined is found to not be in accordance with this Contract:
(a) DB Contractor shall rebuild, repair or replace the Work to the standard
required by this Contract; and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 35 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(b) Recovery of any delay to any Critical Path occasioned by such
examination shall be at DB Contractor's cost and DB Contractor is not entitled to any Claim in
connection with the inspection and/or testing.
7.4.4. If DB Contractor fails to provide Notice in accordance with Section 7.4.1 to
allow RCTC, Department, PCM and any other Persons designated by RCTC a full and adequate
opportunity to inspect and test any Work done or materials used may be ordered uncovered,
removed, repaired, restored or replaced by RCTC at DB Contractor's cost and without an
entitlement to a Claim, even if the Work proves to be in compliance with the Contract after
uncovering.
7.4.5. Progress Meetings
DB Contractor shall arrange and conduct regular meetings with RCTC, and other Persons
as provided in TP Section 2.5.4 and otherwise designated by RCTC, at least weekly during the
course of the Work. In addition, RCTC and DB Contractor, through their respective
Representatives, shall meet from time to time at the other Party's request to discuss and resolve
matters relating to the Work or Project. DB Contractor shall schedule all meetings with RCTC at
a date, time, and place reasonably convenient to both Parties and, except in the case of urgency,
shall provide RCTC with Notice and a meeting agenda at least three Business Days in advance
of each meeting.
7.4.6. Nonconformances and Correction of Work
(a) At any time prior to Project Completion and within a reasonable period
after RCTC has Actual Knowledge of any Nonconformance, RCTC may give DB Contractor
Notice of any Nonconformance.
(b) If RCTC fails to provide Notice in accordance with Section 7.4.6(a),
such failure shall not constitute a waiver of RCTC's rights. DB Contractor shall not, however, be
responsible for any increase in Cost directly and solely resulting from RCTC's failure to provide
timely Notice of the Nonconformance, unless DB Contractor had Actual Knowledge of, or should
have been aware of, in the exercise of reasonable diligence or in the performance of its obligations
under this Contract, such Nonconformance.
(c) If DB Contractor has Actual Knowledge of any Nonconformance or has
received Notice from RCTC under Section 7.4.6(a), DB Contractor shall:
(i) Promptly, and within five Business Days, provide Notice to
RCTC of such Nonconformance;
(ii) Subject to Section 7.4.6(c)(iii), remedy such Nonconformance
and any damage to the TSP Work, ELP Work or property of third parties to the extent caused by
such Nonconformance within ten Business Days of having Actual Knowledge;
(iii) If DB Contractor considers it is not possible to remedy the
Nonconformance within ten Business Days of having Actual Knowledge or receipt of Notice: (1)
commence efforts to remedy such Nonconformance within ten Business Days of having Actual
Knowledge or receipt of Notice; (2) submit a written plan to RCTC for approval, in its good faith
discretion, identifying DB Contractor's process for remedying the Nonconformance and the
proposed timeframe for remedying the Nonconformance within ten Business Days of having
Actual Knowledge or receipt of Notice; and (3) if such plan is approved by RCTC, remedy the
Nonconformance within the time period for remedy approved in such plan;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 36 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iv) Take all action necessary to prevent similar Nonconformances
from occurring in the future; and
(v) Perform such tests as RCTC may require to remedy a
Nonconformance.
(d) If DB Contractor has received Notice from RCTC under
Section 7.4.6(a), failure of DB Contractor to provide timely Notice to RCTC in accordance with
Section 7.4.6(c)(i) shall be treated as DB Contractor's acknowledgement that the
Nonconformance exists and shall preclude DB Contractor from disputing the existence of such
Nonconformance.
7.4.7. Failure to Remedy Nonconformances
(a) RCTC may remedy any Nonconformance, and may deduct the Cost of
doing so (plus an administrative charge equal to 10% of the Cost) from moneys due to DB
Contractor or may obtain reimbursement from DB Contractor for that Cost (plus an administrative
charge equal to 10% of the Cost), if DB Contractor fails to comply with its obligations under
Section 7.4.6(c)(ii) or 7.4.6(c)(iii) (as applicable).
(b) RCTC's right to remedy Nonconformances shall be in addition to all
other rights and remedies provided under this Contract or by applicable Governmental Rules, and
shall not relieve DB Contractor of any of its responsibilities under this Contract.
7.4.8. Agreement to Accept Nonconformances
(a) If RCTC agrees (subject to Department's prior written consent) to
accept any Nonconformance without requiring it to be fully remedied, RCTC shall be entitled to
reimbursement of an amount equal to the greater of: (i) the amount deemed appropriate by RCTC
and Department to provide compensation for future revenue impacts and maintenance and/or
other Costs relating to the Nonconformance; or (ii) 100% of DB Contractor's cost savings
associated with its failure to perform the Work in accordance with Contract requirements.
(b) Without limiting Section 14.3.2, such reimbursement shall be payable
to RCTC within ten Business Days after DB Contractor's receipt of an invoice from RCTC
identifying the amounts owing.
(c) DB Contractor acknowledges and agrees that RCTC and Department
shall each have sole discretion regarding acceptance or rejection of Nonconformances and the
amount payable in connection with such Work; provided, however, that the foregoing does not
preclude DB Contractor from disputing whether or not a Nonconformance has occurred.
Payment, reimbursement or deduction of the amounts owing to RCTC under this Section 7.4.8
shall be a condition precedent to the acceptance of the applicable Nonconformances.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 37 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 8
ACCESS TO SITE; UTILITIES;
ENVIRONMENTAL MITIGATION; HAZARDOUS MATERIALS; APPROVALS;
COOPERATION WITH LOCAL AGENCIES
8.1. Access to Site
8.1.1. Planned ROW Limits
In the event of any changes in ROW requirements in connection with any RCTC-Directed
Change or Necessary Basic Configuration Change, the Planned ROW Limits shall be deemed
modified to incorporate the change.
8.1.2. Access to RCTC-Provided Property
(a) Subject to Section 8.1.2(b), RCTC shall:
(i) Provide access to each RCTC-Provided Property parcel on or
before the latest date construction is scheduled to start on such parcel in the Project Schedule;
(ii) In the case of TCEs included in RCTC-Provided Property,
provide DB Contractor access to each TCE for the applicable time specified in TP Attachment 9-
1. If DB Contractor requires use of any TCE beyond such specified time, then TP Section 9.4.4
shall apply; and
(iii) In the case of Utility Easements (if any) RCTC is required to
provide under any Utility Agreement, provide DB Contractor access to such Utility Easement(s)
by the time(s) specified in the applicable Utility Agreement.
(b) RCTC is not required to provide access to, and construction shall not
be scheduled to commence on, RCTC-Provided Property earlier than the applicable date in TP
Section 9.4 and TP Attachment 9-1.
(c) DB Contractor shall obtain and maintain encroachment permits and
other permits and rights of entry to gain access to areas of RCTC-Provided Property within the
jurisdictions of Local Agencies (excluding Department) and BNSF.
(d) RCTC shall obtain encroachment permits to gain access to areas of
RCTC-Provided Property within the jurisdiction of Department, and DB Contractor shall obtain
and maintain any corresponding encroachment permit riders or rights of entry required to perform
the Work.
(e) DB Contractor shall pay all permit fees and comply with all permit
requirements in connection with RCTC-Provided Property, including obtaining necessary
approvals of plans and specifications.
(f) The Department Cooperative Agreement provides certain terms and
conditions relating to the encroachment permit process applicable to Existing Department ROW.
DB Contractor shall remain informed of and comply with any access restrictions in any documents
granting access to any Project ROW (including the Department Cooperative Agreement).
(g) Access to the ELP Project Site is subject to Section 25.1 and TP
Section 9.4 and access to the Pavement Contractor ROW is subject to Section 25.2.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 38 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(h) RCTC shall provide Notice to DB Contractor within ten Business Days
after it becomes apparent to RCTC that RCTC will not be able to obtain any particular parcel(s)
included in the RCTC-Provided Property, and shall provide a Directive Letter or Change Order
requiring DB Contractor to take action as necessary to accommodate the change.
(i) Concurrently with preparation and review of the Baseline Schedule,
DB Contractor and RCTC shall: (i) discuss ROW access requirements associated with the
scheduled activities; (ii) identify and agree which parcels are on a Critical Path; and (iii) agree
latest dates, to be included in the Baseline Schedule, for scheduled activities associated with
provision of access as specified in TP Section 9 (including TP Section 9.4 and TP Attachment 9-
1). The Baseline Schedule shall provide commercially reasonable workarounds, re -sequencing,
and redeployments to progress the Project based on the scheduled access date for each parcel,
and minimize dependence on the acquisition process.
(j) Within ten Business Days after RCTC determines that it will be unable
to provide access to a particular parcel or parcels of RCTC-Provided Property by the date set out
in TP Attachment 9-1, RCTC shall provide Notice to DB Contractor regarding the revised
projected date for delivery of access. DB Contractor shall fully cooperate with RCTC to work
around, re -sequence, and redeploy around such parcel until access can be provided, including
rescheduling Work so as to avoid any delay to the overall Project.
(k) Without limiting the requirements of Section 15 or Section 16, within ten
Business Days after DB Contractor is advised of a projected delay, DB Contractor shall provide
RCTC with Notice (i) specifying the Project Schedule activity number, late finish date, and current
total Float associated with the parcel in question, and (ii) advising RCTC of any potential impacts
to a Critical Path and potential costs that may be incurred as the result of a delay.
(1) Various agreements that RCTC has entered into, or will enter into, with
respect to the 1-15 Express Lanes and the SR-91 Express Lanes provide, or will provide, that the
TSP and the SR 91 Express Lanes operator shall have access to the Project ROW for purposes
of sporadic operations and maintenance activities. DB Contractor shall remain informed of and
comply with any documents granting the TSP and the 91 Express Lanes operator the right to
access the Project ROW, subject to DB Contractor's right to additional time for completion and
compensation in case of a Compensable Event resulting from such access to the Planned ROW
Limits taken by the TSP or SR 91 Express Lanes operator.
8.1.3. Additional Properties
(a) In addition to provision of access to the RCTC-Provided Property,
RCTC will provide access to certain other parcels provided DB Contractor provides Notice and
can demonstrate to RCTC's reasonable satisfaction (after consultation with Department), that:
(i) the property is required for permanent improvements for the Project or for Relocations being
constructed by the Utility Owners; and (ii) acquisition of the property is otherwise consistent with
applicable Governmental Rules and Governmental Approvals; and (iii) DB Contractor has
complied with TP Section 9.4.2 ("Additional Properties"). RCTC has no obligation to acquire
temporary interests in property (other than those included in the RCTC-Provided Property), but
may agree to do so following receipt of request from DB Contractor.
(b) The process for acquisitions of Additional Properties by RCTC is set
out in TP Section 9.4.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 39 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(c) The process for scheduling provision of access in Section 8.1.2 shall
apply to Additional Properties as if the Additional Properties were RCTC-Provided Properties,
except that (i) RCTC shall provide DB Contractor with Notice of the minimum time necessary for
provision of access upon its approval of the acquisition, and (ii) delay in acquisition is not
considered an RCTC-Caused Delay except to the extent that the delay was directly attributable
to negligent actions affirmatively taken by RCTC.
(d) Except as set out in Section 8.1.3(f), DB Contractor shall pay directly
all Costs in connection with acquiring Additional Properties, including:
(i)
The cost of acquisition services and document preparation;
(ii) The cost of condemnation proceedings required by RCTC and
Department, including private attorneys' fees and expert witness fees, and all fees and expenses
for exhibits, transcripts, photos and other documents and materials production;
(iii) The purchase prices, court awards or judgments in connection
with the acquisition of all Additional Properties (to be paid by DB Contractor at the time of closing
or final award, as applicable);
(iv) The cost of permitting;
(v) Closing costs associated with parcel purchases;
(vi) Relocation assistance payments and costs;
(vii) The cost for separate property survey(s) in addition to the
Planned ROW Limits survey(s); and
(viii) The cost of all claims for good will, severance damages or
inverse condemnation in connection with the acquisition of the Additional Properties.
(e) All Costs described in Section 8.1.3(d) shall be determined in
accordance with the California Relocation Assistance Law (Government Code section 7260 et
seq.), the Uniform Act, and RCTC and Department policies. If RCTC incurs any such Costs on
DB Contractor's behalf, RCTC may submit invoices for such Costs to DB Contractor, in which
case DB Contractor shall pay the invoices prior to delinquency. If RCTC pays any such Costs on
DB Contractor's behalf, and without limiting Section 14.3.2, DB Contractor shall reimburse RCTC
within ten Business Days of RCTC's submittal to DB Contractor of an invoice for such RCTC
Costs.
(f) Notwithstanding the foregoing: (i) for additional real property
associated with a VECP, the costs of obtaining the additional real property shall be considered in
determining the Contract Price adjustment under Section 17; (ii) DB Contractor is not responsible
for costs of acquisition for any Utility Easement unless required because of a change to the Project
design proposed by DB Contractor; and (iii) DB Contractor is not responsible for costs of or delays
resulting from acquisition of additional real property required in connection with any RCTC-
Directed Change or Necessary Basic Configuration Change. Any cost savings resulting from the
acquisition of Additional Properties (including by avoiding use of retaining walls or other
engineering modifications) shall be subject to the "value engineering" provisions in Section 17.
(g) Except as set out in Section 8.1.3(f), in the event that the acquisition of
Additional Properties necessitates any Governmental Approvals, DB Contractor shall: (i) be solely
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 40 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
responsible for the cost and schedule impact of any related review, analysis, assessment,
approvals, permits and findings; (ii) be solely responsible for the risk that any Governmental
Approvals are not (1) granted, issued, approved or obtained or (2) timely granted, issued,
approved or obtained; and (iii) not be entitled to any increase in the Contract Price or extension
of the Completion Deadlines as a result of any delay, inability or cost associated with the
Governmental Approvals related to such Additional Properties.
(h) Except as expressly provided otherwise in this Contract, DB Contractor
is not entitled to any increase in the Contract Price or any extension of a Completion Deadline
pursuant to Section 16 or otherwise entitled to make a Claim as a result of (i) Site conditions
associated with any Additional Properties (including those relating to Hazardous Materials,
Differing Site Conditions or Utilities); (ii) any delay, liability or cost associated with the acquisition
of any Additional Properties, including Additional Properties required to implement any ATCs.
(i) DB Contractor shall support any requests for acquisition of Additional
Properties with such information as may be reasonably required by RCTC, including all
information required by TP Section 9.4.2. In all cases, RCTC's obligation to provide such access
is subject to the following conditions: (i) if requested by RCTC, DB Contractor's providing an
analysis regarding alternative courses of action; (ii) RCTC's agreement (after consultation with
Department) that the property acquisition is in the best interest of the Project; (iii) DB Contractor's
providing such evidence as RCTC may require to enable issuance of a determination of necessity;
and (iv) if required, issuance of a determination of necessity by RCTC's Commission.
8,1.4. Acquisition of Temporary Interests by DB Contractor
(a) DB Contractor shall acquire all temporary interests in property (if any)
that DB Contractor determines are necessary, desirable, or advisable to complete the Project,
other than temporary interests included in RCTC-Provided Property. Temporary interests may
include construction easements or rights to use property for borrow pits and storage, as well as
any property needed for any temporary utility facilities being constructed by DB Contractor. DB
Contractor shall pay the purchase price for all such property interests directly.
(b) If the property is within the limits of the RCTC-Provided Property or is
intended to be used for permanent improvements, or if DB Contractor intends to request that
RCTC acquire such property, DB Contractor shall not negotiate with the property owner(s), except
in compliance with the California Relocation Assistance Law (Cal. Gov. Code section 7260 et
seq.), the Uniform Act, and 23 CFR Part 710.
(c) Additional requirements regarding early access to properties subject to
temporary rights or interests are provided in TP Section 9.
(d) RCTC has no obligations or responsibilities with respect to the
acquisition, maintenance, or disposition of such temporary rights or interests or the condition of
such rights or interests, and is not obligated to use its powers of eminent domain in connection
therewith.
(e) DB Contractor shall comply with all applicable Governmental Approvals
and Governmental Rules in acquiring and maintaining or disposing of any such property rights or
interests. DB Contractor shall cause the documentation of any such property interest to contain
the grantor's express acknowledgment that RCTC has no liability or obligations with respect
thereto.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 41 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(f) If a temporary interest in property is sought by DB Contractor for any
property that is owned or otherwise possessed or occupied by a Person with whom RCTC has
acquired or is acquiring RCTC-Provided Property or if DB Contractor requires use of any TCE
beyond the applicable time specified in TP Attachment 9-1:
(i) DB Contractor shall not attempt to secure such Temporary
Interest;
(ii) RCTC shall, if such acquisition is, in RCTC's determination,
consistent with Governmental Rules and Governmental Approvals, reasonably attempt to secure
access through the applicable property owner;
(iii) RCTC makes no representations or guaranty that RCTC shall
be able to secure such interests or access; and
(iv) DB Contractor shall be solely responsible for the cost and
schedule impact of any acquisition, including any inability to acquire such interests.
8.1.5. Avoidance of Additional Permanent Acquisitions
DB Contractor shall use its best efforts to avoid additional permanent acquisitions. To the
extent reasonably possible, DB Contractor shall use retaining walls or make other engineering
adjustments as an alternative to acquiring Additional Properties.
8.1.6. Conveyance Documents
DB Contractor shall prepare all documents necessary to evidence any easements or
conveyance of other real property interests relating to the Project to be granted by RCTC to Utility
Owners and other Persons; except that RCTC shall prepare legal descriptions and grant
documentation for any transfers of real property and/or interests therein by RCTC to Department.
8.1.7. Access to BNSF Property
(a) RCTC has delivered to DB Contractor the final BNSF Construction &
Maintenance Agreement(s) to be entered into by and among BNSF, RCTC and Department.
(b) Upon execution thereof, RCTC shall deliver to DB Contractor the final
BNSF Construction & Maintenance Agreement(s) to be entered into by and among BNSF, RCTC
and Department.
(c) DB Contractor shall comply with the requirements that apply to the
Work in the final BNSF Construction & Maintenance Agreement(s). Such requirements include
DB Contractor's obligation to (i) enter into the "Agreement Between BNSF Railway Company and
the Contractor" (which shall be attached to the BNSF Construction & Maintenance Agreement(s)
as Exhibit C-1), and (ii) comply with the "Contractor Requirements," including requirements
regarding scheduling and use of BNSF flagging services, which shall be attached to said
agreement as Exhibit C. A sample copy of the Contractor Requirements is provided in TP
Attachment 8-1 (Railroad Agreement Term Sheet). DB Contractor shall use the provisions and
information in TP Attachment 8-1 relevant to the Work as a basis to plan the related Work prior to
execution of the final BNSF Construction and Maintenance Agreement(s).
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 42 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(d) DB Contractor shall be liable for and pay to RCTC $3,200.00 per
consecutive 12 hour period or part thereof for BNSF flagging services during the periods and
subject to the conditions identified in TP Section 8.4.2 ("Flagging Charges").
(e) DB Contractor shall provide Notice to RCTC requesting BNSF flagging
services at least 30 days before the date and time flagging services are required. For costs in
connection with BNSF flaggers required at all other times beyond the periods specified in Section
8.1.7(c) or where so specified in the BNSF Construction & Maintenance Agreement,
DB Contractor shall pay, at RCTC's option, BNSF or RCTC, for BNSF's expenses relating to Work
under this Contract that the BNSF Construction & Maintenance Agreements state are payable by
RCTC, within the time specified in the BNSF Construction & Maintenance Agreements.
(f) If BNSF flagging services are scheduled and DB Contractor wishes to
reschedule or cancel the services, then DB Contractor shall provide applicable Notice to RCTC
at least 72 hours in advance of the originally scheduled date and time or shall otherwise be subject
to Liquidated Damages under Section 21.4.
(g) Notwithstanding anything to the contrary contained in the BNSF
Construction & Maintenance Agreement(s), DB Contractor shall maintain the structures described
in the BNSF Construction & Maintenance Agreements until it is relieved of maintenance liability
in accordance with Section 12.2.
(h) If DB Contractor considers that there are changes in the BNSF
Construction & Maintenance Agreement(s) that would constitute an Eligible Change, DB
Contractor shall provide a DB Contractor Change Request pursuant to Section 16 within 30 days
of receipt of RCTC's final agreement(s). DB Contractor shall assist and fully cooperate with RCTC
in obtaining and amending the BNSF Construction & Maintenance Agreement(s), including
providing complete Permit Submittal Packages and other information requested by RCTC and
participating in meetings regarding such agreement(s) and related approvals.
(i) DB Contractor shall enter into any agreements with Governmental
Entities or others, and obtain and maintain any Governmental Approvals from such Governmental
Entities or others that are necessary to comply with the requirements of TP Section 8 or that
otherwise apply to the Work, except for those items expressly described in this Section 8.1.7 or
Section 8.11 as being the responsibility of RCTC.
8.1.8. Available Properties for Temporary Work
(a) In addition to providing access to the RCTC-Provided Property, RCTC
will provide access to Available Properties subject to the terms of this Section 8.1.8 for the
performance of temporary Work (e.g., office trailers).
(b) Subject to Sections 8.1.8(c) and (d), DB Contractor shall provide Notice
to RCTC prior to NTP2 as to (i) which Available Properties DB Contractor requires RCTC to
provide access to for the performance of temporary Work ("DB Contractor Available
Properties"); (ii) the duration of access for such DB Contractor Available Properties, which may
not commence prior to February 1, 2021 or extend beyond one year following Substantial
Completion; and (iii) the proposed usage for such access to DB Contractor Available Properties.
(c) RCTC shall provide access to DB Contractor Available Properties on
or before the latest date temporary Work is scheduled to start on such parcel in the Project
Schedule; provided such date is no earlier than February 1, 2021. RCTC is not obligated to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 43 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
provide access to Available Properties that are not specified in DB Contractor's Notice under
Section 8.1.8(b).
(d) DB Contractor shall comply with all obligations with respect to
encroachment permits, as set out in the License Agreement with respect to each of the DB
Contractor Available Properties.
(e) DB Contractor shall enter into a License Agreement with RCTC with
respect to each of the DB Contractor Available Properties prior to being granted access to such
property.
(f) DB Contractor shall comply with TP Section 9.4.2, as if DB Contractor
Available Properties were Additional Properties.
(g) DB Contractor shall obtain all Government Approvals, pay all
Government Approvals fees and comply with all Government Approvals requirements in
connection with DB Contractor Available Properties, including obtaining necessary approvals of
plans and specifications.
(h) DB Contractor shall pay directly all Costs in connection with access to
and use of DB Contractor Available Properties.
(i) Subject to Section 8.1.8(j), notwithstanding any contrary provision of
this Contract, DB Contractor is not entitled to any increase in the Contract Price or any extension
of a Completion Deadline pursuant to Section 16 or otherwise entitled to make a Claim as a result
of (i) Site conditions associated with any DB Contractor Available Properties (including those
relating to Hazardous Materials, Differing Site Conditions or Utilities); (ii) any delay, liability or cost
associated with the acquisition of any DB Contractor Available Properties.
(j) DB Contractor shall not be responsible for the cost of the removal,
disposal and/or remediation of Known or Suspected Hazardous Materials on DB Contractor
Available Properties.
(k) DB Contractor, at its own cost and risk, shall be solely liable and
responsible for Hazardous Materials Management of any Hazardous Materials that any DB-
Related Entity brings on to or uses at or near DB Contractor Available Properties.
8.2. Access to Temescal Wash
DB Contractor shall not access the Temescal Wash and surrounding areas shown in TP
Attachment 1-1 until DB Contractor:
(a) Provides to RCTC, and receives RCTC's approval of, the Permit
Submittal Packages for the Major Approvals described in TP Section 6.3.5.1;
(b) Provides other information to RCTC, and participates in meetings as
requested by RCTC, in order for DB Contractor to obtain in RCTC's name the Major Approvals
described in TP Section 6.3.5.1; and
(c) Obtains the Major Approvals described in TP Section 6.3.5.1, and any
other Governmental Approvals from Governmental Entities and/or other third parties, including
the City of Corona encroachment permit and Riverside County Flood Control District permit,
necessary for DB Contractor to comply with the requirements of TP Section 6, or that otherwise
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 44 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
apply to the Work to be performed in the Temescal Wash and surrounding areas shown in TP
Attachment 1-1.
8.3. Utility Relocations
8.3.1. Scope of DB Utility Work
(a) Sections 8.3 through 8.7 describe DB Contractor's responsibilities with
respect to DB Utility Work, and how the risks associated with DB Utility Work are allocated
between RCTC and DB Contractor. TP Section 7 further describes the scope of Work with respect
to DB Utility Work.
(b) DB Contractor shall perform (and the scope of the DB Utility Work
includes) all Relocations and Incidental Utility Work necessary to complete the Project, except
Relocations under Section 8.3.3, and any other efforts expressly identified as "work by others" in
the Utility Information or that this Section 8 or TP Section 7 specifically identifies as the
responsibility of Utility Owners or RCTC, or otherwise specifically excludes from the DB Utility
Work.
(c) The DB Utility Work includes all Work associated with Relocation of
Utilities and Incidental Utility Work, including:
(i) The Work described in Sections 8.3 through 8.7 and TP Section
7;
(ii) Any Betterments added to the scope of the DB Utility Work
(iii) Any Work to be performed by DB Contractor pursuant to
Section 8.1 with regard to acquisition of Utility Easements; and
pursuant to Section 8.5.1;
(iv) Any efforts expressly identified as "work by others" (including
Utility Owners and RCTC) in the Utility Maps or Utility Agreements that this Section 8 or TP
Section 7 expressly identifies as the responsibility of DB Contractor.
(d) Reserved.
(e) The DB Utility Work does not include:
(i) Drafting or negotiating Utility Agreements with Utility Owners
(except that DB Contractor shall fully cooperate and provide assistance to RCTC with preparing
and finalizing Utility Agreements and preparing and issuing any Notices to Owner, as specified in
TP Section 7);
(ii) Except as set out in Section 8.3.1(c)(iv), any efforts expressly
identified as "work by others" (including Utility Owners and RCTC) in the Utility Maps or Utility
Agreements;
(iii) Billing for and collecting payments due from Utility Owners
(except that DB Contractor shall fully cooperate with RCTC, assist in the preparation of estimates
and invoices, and provide supporting documentation, as specified in Section 14.2.2 and in TP
Section 7);
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 45 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iv) Reimbursing Utility Owners for costs they incur in connection
with Relocations (except that this foregoing exclusion shall not limit DB Contractor's obligations
to reimburse RCTC for certain payments to Utility Owners, to indemnify, defend and hold
harmless RCTC and/or Utility Owners with respect to certain matters, and to repair damage to
Utilities caused by any DB-Related Entity, all as specified in this Contract);
(v) Obtaining access to or rights or interests in property for the
benefit of Utility Owners (except that DB Contractor shall perform any duties and bear any costs
that are DB Contractor's responsibility pursuant to Section 8.1 and/or TP Section 9, and DB
Contractor shall at all times accommodate work by, and cooperate with, Utility Owners in
performing each party's obligations and exercising each party's rights under the applicable Utility
Agreements); and
(vi) Relocations under Section 8.3.3.
(f) Relocations may be necessary upon discovery of the following
conditions: (i) a physical conflict exists between the Project and a Utility (including their respective
construction, operation, maintenance, or use); and/or (ii) a conflict exists between the Project, as
designed, and a Utility based on the applicable Utility Standards, Governmental Approvals, and/or
Governmental Rules (even though there is no physical conflict). The limits of Relocation of
existing Utilities extend as far as necessary to accommodate or permit construction of the Project
in accordance with the foregoing, whether inside or outside the Planned ROW Limits. DB
Contractor shall ensure that all Relocations are compatible, interface properly, and do not conflict
with the Project.
(g) Certain Utilities being Relocated are also being modified to provide
service to the Project (i.e., they are "New Utilities"). This Section 8.3 and all other provisions of
this Contract pertaining to Relocations apply to such New Utilities. Any New Utilities that do not
also involve Relocation Work, however, are not subject to provisions in the Contract pertaining to
Relocations. The scope of DB Contractor's responsibilities relating to the New Utilities is
addressed in TP Sections 15.3.3.1 and 21.3.7.
8.3.2. Agreements with Utility Owners
(a) If any Utilities are identified after the Setting Date as requiring
Relocation, RCTC will prepare, negotiate and enter into additional Utility Agreements with the
applicable Utility Owners setting out the details for the applicable Relocation(s).
(b) DB Contractor shall provide such assistance as RCTC shall reasonably
require, as provided in TP Section 7 with respect to any subsequently entered Utility Agreement.
DB Contractor shall not be a party to any Utility Agreement and shall have no authority to enter
into Utility Agreements on RCTC's behalf.
(c) Subject only to DB Contactor's entitlement, if any, to a Change Order
under Section 16.12, DB Contractor shall:
(i) Comply with the terms and conditions of all Utility Agreements;
and
(ii) Timely perform DB Contractor's obligations under each Utility
Agreement together with any of RCTC's obligations under each Utility Agreement that are
delegated to DB Contractor under this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 46 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(d) If applicable, and in accordance with TP Section 7.2.4, RCTC shall
issue FD Notices to Owner and Construction Notices to Owner for any Relocations to be
performed by Utility Owners, except as otherwise provided in TP Section 7.2.6. DB Contractor
shall not issue or negotiate FD Notices to Owner or Construction Notices to Owner, but shall
provide such assistance as RCTC shall reasonably require, including attendance at meetings,
preparation of such designs, reports, documentation, and information as RCTC may require for
RCTC's meetings with the Utility Owners, and preparation of exhibits.
8.3.3. Responsibility for Relocations
(a) For any known, unknown or misidentified Utility that requires
Relocation, the corresponding Utility Owner will be responsible for design, construction and/or
materials procurement, in accordance with TP Section 7.2.6 and as otherwise provided under the
applicable Utility Agreement.
(b) For purposes of this Section 8.3.3 and TP Section 7.2.6, references to
responsibility for design and construction of Relocations includes all tasks customarily associated
with a Relocation; except that DB Contractor shall coordinate with Utility Owners as necessary in
order to accomplish the Relocations in compliance with the requirements of this Contract.
8.3.4. Incidental Utility Work
(a) DB Contractor shall provide all designs for Incidental Utility Work it
performs, unless a Utility Owner provides such designs under the applicable Utility Agreement.
(b) DB Contractor shall not be required to provide a credit or reimburse
RCTC on account of any Incidental Utility Work performed by a Utility Owner, even if RCTC is
required to reimburse the Utility Owner for such work.
8.3.5. Work Not Assigned to DB Contractor in a Utility Agreement
(a) RCTC may issue a Directive Letter or Change Order requiring DB
Contractor to perform Relocation Work regardless of whether the Work is covered under a Utility
Agreement, and regardless of the assignment of responsibility for such Work under the applicable
Utility Agreement or this Contract. In such case, Relocation Work shall be treated as if a Utility
Agreement has been executed that requires DB Contractor to perform the Work in question. If
the Utility Owner objects to such direction to proceed, then Section 8.6 shall apply.
(b) DB Contractor shall ensure that the Project Schedule includes sufficient
time for all required Relocations (without regard to whether a Relocation is performed by DB
Contractor or by the affected Utility Owner or its contractors). Accordingly, any reallocation of
responsibility for Relocation work between DB Contractor and a Utility Owner shall not entitle DB
Contractor to any compensation, time extension or otherwise make any Claim under this Contract.
8.3.6. Bonds and Insurance Increase or Change for DB Utility Work
(a) Utility Owners whose Relocations are included in the DB Utility Work
may, upon request, require DB Contractor to:
(i) Add the Utility Owner as an additional obligee to the Payment
Bonds and Performance Bonds, to the extent of the amount of the applicable DB Utility Work;
provided that the Payment Bonds and Performance Bonds continue to cover the full amounts
required by RCTC, with no riders that reduce RCTC's potential of recovery; or
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 47 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) Provide separate bonds satisfactory to the Utility Owners to
cover such DB Utility Work.
(b) DB Contractor shall procure from and provide all information necessary
for the bonds required under Section 8.3.6(a) to the surety(ies) providing such bonds.
(c) DB Contractor shall include the cost (or the allocable cost, as
applicable) of any applicable bond premiums in all cost estimates it provides for DB Utility Work.
(d) Without limiting the requirements of Section 11, DB Contractor shall
comply with all insurance requirements established in the applicable Utility Agreement(s). Such
insurance shall be provided by naming the applicable Utility Owner as an additional insured on
the insurance provided by DB Contractor and any Subcontractor pursuant to Section 11, to the
extent it satisfies the requirements of the Utility Agreement(s).
8.4. Accuracy of RCTC-Supplied Information Concerning Existing Utilities
8.4.1. Main or Trunkline Utilities
RCTC's and DB Contractor's entitlements to Change Orders for certain inaccuracies in
the Utility Information regarding Main or Trunkline Utilities are described in Section 16.12
8.4.2. All Other Utilities
(1) DB Contractor acknowledges that:
(b) Except as expressly provided in Section 16.12 with respect to Main or
Trunkline Utilities, any information with respect to Utilities (including their existence, location,
ownership, occupancy rights, type, material, status, usage or any other characteristic including
the Proposed Dispositions for any Utilities or how the Proposed Dispositions will be accomplished)
provided in the Utility Information, or elsewhere in the Reference Documents or this Contract, is
for informational purposes only, is preliminary, has not been verified and shall not be relied upon
by DB Contractor;
(c) The information with respect to Utilities described in Section 8.4.2(b)
does not identify most Service Lines at the Site and may not identify all non -Service Line Utilities
at the Site. DB Contractor shall verify all information with respect to Utilities included in the Utility
Information, and elsewhere in the Reference Documents or this Contract, and shall perform its
own investigations as provided in TP Section 7.3.2; and
(d) DB Contractor is not entitled to any adjustment to the Contract Price
(either up or down) or an extension of any Completion Deadlines on account of any inaccuracies
in the Utility Information, other Reference Documents or this Contract, with respect to any Utility
(including its existence, location, ownership, type, material, status, usage and/or any other
characteristic), unless otherwise expressly allowed pursuant to Section 16.12.
8.4.3. Acknowledgements and Waivers
(a) The Parties specifically intend to delegate to DB Contractor the
obligation to perform all responsibilities with respect to identification of Utilities, and to allocate to
DB Contractor all risk of increased costs and time of the Work resulting from having to repair,
remove, relocate, or Protect in Place any Utilities not identified or misidentified in the Utility
Information, other Reference Documents, and this Contract, except as otherwise provided in
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 48 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Section 16.12 with respect to Main or Trunkline Utilities. DB Contractor acknowledges and agrees
that the provisions of Section 16.12 satisfy RCTC's obligations pursuant to Government Code
section 4215.
(b) DB Contractor acknowledges and agrees that:
(i) If the Parties' delegation to DB Contractor of the obligation
described in Section 8.4.3(a) is deemed ineffective, RCTC shall be entitled to a credit against the
Contract Price equal to the actual costs incurred by RCTC to cause performance of the obligations
and satisfaction of the liabilities from which DB Contractor is thereby relieved; and
(ii) The acknowledgements, waivers and agreements in
Section 8.4.3(a) extend to and include any rights that DB Contractor might otherwise claim under
Chapters 11-4.3 and 11-2.4 of RCTC's ROW Policies and Procedures Manual.
8.4.4. DB Contractor's Failure to Timely and Accurately Identify Utilities
If any Utility potentially requiring Protection in Place or Relocation is not identified fully and
accurately in the final Utility Strip Map that DB Contractor submits to RCTC in accordance with
Section 6.4.3(a), then DB Contractor shall (i) reimburse RCTC for the increase (if any) in the
amount that RCTC owes to the Utility Owner for such Protection in Place or Relocation (including
with respect to the acquisition of Utility Easements) that could have been avoided if the Utility had
been fully and accurately identified (and the actual field conditions addressed) in the final Utility
Strip Map; and (ii) DB Contractor shall also bear the schedule impact of such Protection in Place
or Relocation and shall not be entitled to any compensation, extension of time of otherwise make
a Claim under this Contract. Without limiting Section 14.3.2, DB Contractor shall pay any amount
under this Section 8.4.4 to RCTC within ten Business Days after receipt of RCTC's invoice
therefor, or, in RCTC's discretion, RCTC may deduct the amount of reimbursement due from the
payment (or payments, if necessary) next due to DB Contractor under this Contract.
8.4.5. Changes by DB Contractor
(a) For purposes of this Section 8.4.5, a Project design change that
impacts Relocations is a change in Project plans that requires Relocation of a Utility that was not
listed on the Preliminary Utility Matrix.
(b) DB Contractor acknowledges and agrees that:
(i) Through the design and construction of the Project, DB
Contractor may have opportunities to reduce the costs of certain portions of the Work, which may
increase the costs of certain other portions of the Work or of Relocation work to be performed by
Utility Owners;
(ii) In considering such opportunities, DB Contractor shall consider
the impact of Project design changes on Relocations with the overall goal of minimizing the
necessity for Relocations to the extent practicable, in compliance with Section 8.7; and
(iii) Except for cost increases or decreases resulting from
Necessary Basic Configuration Changes or RCTC-Directed Changes in Project design affecting
Relocation work, and notwithstanding any other contrary provision of this Contract, the following
rules shall apply with respect to Project design changes during the course of the Project which
either reduce the nature or extent of or eliminate any Relocation, or result in unanticipated
Relocations or an increase in the nature, extent, or costs of anticipated Relocations:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 49 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(1) DB Contractor is not entitled to extension of any
Completion Deadline on account of delays resulting from any such Project design changes
(including delays in acquisition of Utility Easements by RCTC or Utility Owners or delays in
performing any Relocations);
(2) DB Contractor is not entitled to any increase in the
Contract Price for any additional costs DB Contractor incurs as a result of such Project design
changes (including additional costs of DB Utility Work, the costs of any additional Work on other
aspects of the Project undertaken in order to facilitate the avoidance or minimization of
Relocations, and increased costs resulting from any Site conditions associated with Utility
Easements made necessary by such design changes);
(3) If RCTC incurs any additional costs as a result of such
design changes (including any increases in reimbursement for Utility Easement acquisition costs
or other amounts owed by RCTC to Utility Owners, e.g. for work which is unusable or which must
be redone), then without limiting Section 14.3.2, DB Contractor shall reimburse RCTC for such
costs within ten days after receipt of RCTC's invoice for such work; and
(4) RCTC is not entitled to a credit on account of reductions
in the cost of the Work due to any such avoided or minimized Relocations.
(c) This Section 8.4.5 shall not apply to any changes in design made to
accommodate any change in Utility Standards or Change in Law.
8.5. Utility Enhancements
8.5.1. Betterments
Betterments shall be addressed as provided in this Section 8.5.1 and in TP Section
7.2.7.4.
(a) Notwithstanding any other provision of this Section 8.5.1, DB
Contractor cannot claim a Betterment for any work initially included in the Work as described in
the Contract, including any Utility Agreement.
(b) Any Utility Owner may request that RCTC permit DB Contractor to
perform Betterments as part of the DB Utility Work, at the Utility Owner's expense. RCTC may
approve or deny a Utility Owner's request for a Betterment. DB Contractor shall provide RCTC
with such information, analyses and certificates as may be requested by RCTC in connection with
the possible addition of a Betterment to the DB Utility Work.
(c) If RCTC approves any such Betterment request, DB Contractor shall
be required to perform such work, with the right to receive additional payment and, if allowed
pursuant to Section 8.5.1(e), an extension of any affected Completion Deadline. Work performed
pursuant to such Betterment request shall be performed on a time and materials basis in
accordance with Section 16.10 unless RCTC, the Utility Owner and DB Contractor agree upon a
lump sum price or other pricing method for such additional Betterment work.
(d) A Betterment approved by RCTC will be added to the scope of the Work
by execution of an agreement between RCTC and the Utility Owner providing for performance of
such work as a Betterment. In such event, RCTC agrees to issue a Change Order increasing the
Contract Price on account of any Betterment added to the Work pursuant to this Section 8.5.1.
The amount of any such Change Order shall be a direct pass -through of the price determined in
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 50 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
accordance with Section 8.5.1(c) as set forth in the applicable agreement between RCTC and the
Utility Owner (with no additional mark-ups, profit or overhead) or, if no such price has been
negotiated, an amount determined in accordance with Section 16.10. DB Contractor shall not be
entitled to any compensation, time extension or any other Claim for a Betterment, unless the work
in question (i) has been approved by RCTC (including the amount of any compensation and extent
of any time extension) and identified as a Betterment in the applicable agreement, and (ii) was
not initially included in the Work. DB Contractor shall not accept any payment directly from the
Utility Owner for any Betterment initially included in or added to the Work. Any change in the
scope of Work pursuant to this Section 8.5.1 shall not be considered an RCTC-Directed Change.
(e) If the addition of an approved Betterment to the Work causes delay to
a Critical Path, then DB Contractor shall be entitled to an extension of any affected Completion
Deadline, but only if DB Contractor complies with the requirements stated in this Section 8.5.1(e)
and Section 16. If DB Contractor anticipates that a proposed Betterment would cause delay to a
Critical Path, DB Contractor shall submit an Eligible Change Notice to RCTC in accordance with
Section 16.5.1; provided, however, that such Eligible Change Notice shall be delivered to RCTC
concurrently with DB Contractor's submittal to RCTC of Utility Plans providing for such Betterment
(in lieu of the deadline specified for delivery of an Eligible Change Notice in Section 16.5.1(a)). If
DB Contractor delivers to RCTC more than one version of Utility Plans providing for such a
Betterment, DB Contractor shall include an Eligible Change Notice with each version.
Notwithstanding any contrary provision of the Contract, if DB Contractor fails to timely provide a
notice required by this Section 8.5.1(e), DB Contractor shall be deemed to have irrevocably
waived and forfeited any Claim or right to a time extension or additional compensation, and shall
be precluded from any relief on account of any delay caused by such Betterment, regardless of
(a) any contrary provision of this Contract, (b) Actual Knowledge on the part of RCTC and (c) any
alleged lack of prejudice to RCTC from late notice.
(f) If DB Contractor's Work with regard to any Betterment previously added
to the Work (pursuant to this Section 8.5.1) is reduced or eliminated, then RCTC shall be entitled
to a deductive Change Order equal to the full amount added to the Contract Price pursuant to
Section 8.5.1(d)) if an added Betterment is being deleted entirely; otherwise, RCTC shall be
entitled to a deductive Change Order determined in accordance with Section 16.9.4.
(g) DB Contractor shall promptly provide Notice to RCTC of any requests
or requirements by Utility Owners that DB Contractor considers to be Betterments, and shall keep
RCTC informed as to the status of discussions with Utility Owners concerning such requests and
requirements. If DB Contractor and the Utility Owner disagree as to whether a particular Utility
Owner request or requirement is a Betterment, DB Contractor shall notify RCTC and the
provisions of this Section 8.5 shall apply.
(h) Except as otherwise provided in this Section 8.5.1, any Change Order
requested by DB Contractor to extend a Completion Deadline or increase the Contract Price on
account of a Betterment shall be addressed in accordance with the requirements and procedures
set forth in Section 16.
(i) Except as otherwise provided in this Section 8 or in TP Section 7, all
the terms and conditions of the Contract which apply to the DB Contractor Utility Work shall apply
to any Betterment initially included in the Work or added to the Work pursuant to this Section
8.5.1.
8.5.2. Utility Owner Projects
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 51 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(a) If requested by a Utility Owner, DB Contractor may design and/or
construct any Utility Owner Project meeting the requirements of Section 8.5.2(b); however, DB
Contractor shall perform any such work pursuant to a separate contract between DB Contractor
and the Utility Owner, outside of the Contract and the Work, and without any right to a Change
Order or impact on any Completion Deadline or on the Contract Price.
(b) DB Contractor shall not proceed with any Utility Owner Project that is
incompatible with the Project or cannot be performed within the constraints of the applicable
Governmental Rules, the Governmental Approvals and this Contract, including the Completion
Deadlines and the Contract Price, in each case, as determined by RCTC, in its sole discretion.
DB Contractor shall provide RCTC with such information, analyses and certificates as RCTC_may
request in order to determine compliance with this Section 8.5.2.
8.6. Failure of Utility Owners to Cooperate
8.6.1. DB Contractor shall make diligent efforts to obtain the cooperation of each
Utility Owner as necessary for the Project.
8.6.2. DB Contractor shall provide Notice to RCTC immediately if:
(a) DB Contractor reasonably believes for any reason that any Utility
Owner would not undertake or permit a Relocation in a manner consistent with the timely
completion of the Project or in accordance with the applicable Utility Agreement, Governmental
Rules, the Governmental Approvals, or this Contract;
(b) DB Contractor becomes aware that a Utility Owner is not cooperating
in providing needed work, reviews, comments, or approvals; or
(c) Any other dispute arises between DB Contractor and any Utility Owner
with respect to the Project, including any dispute as to whether a particular Utility Owner request
or requirement is a Betterment.
8.6.3. After giving Notice in accordance with Section 8.6.2, DB Contractor shall:
(a) Continue to diligently pursue the Utility Owner's cooperation or to
otherwise resolve the dispute, and may request RCTC's assistance for such purposes;
(b) Include in any request for assistance evidence satisfactory to RCTC
showing that DB Contractor has made diligent efforts to obtain the Utility Owner's cooperation or
to otherwise resolve the dispute, but that such efforts have not succeeded; and
(c) Provide RCTC with such evidence and information as RCTC requests
regarding the Utility Owner's failure to cooperate and the effect of any resulting delay on the
Project Schedule.
8.6.4. Following RCTC's receipt of satisfactory evidence and information under
Section 8.6.3(c), RCTC shall take such reasonable steps as DB Contractor may request to obtain
the cooperation of the Utility Owner or resolve the dispute and DB Contractor shall comply with
Section 8.11.1(a)(iii); except that RCTC is not obligated to take legal action against an
uncooperative Utility Owner unless RCTC elects to do so in its sole discretion.
8.6.5. If a Utility Owner fails to complete work for which it is responsible on or before
the deadline established in the applicable Utility Agreement(s), or if RCTC reasonably determines
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 52 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
that the Utility Owner will be unable to timely complete such work, then RCTC may, if permitted
by applicable Governmental Rules or the applicable Utility Agreement(s), terminate the Utility
Owner's performance of such work and either direct DB Contractor to perform such work or cause
it to be performed by another contractor. If RCTC directs DB Contractor to perform work pursuant
to this Section 8.6.5, then the provisions of Section 8.3.5 shall apply.
8.6.6. Monitoring and Notification
DB Contractor shall verify progress of each Utility Owner's work and provide Notice to
RCTC when DB Contractor believes that any Utility Owner will not meet a deadline determined
pursuant to Section 8.6.5. DB Contractor shall provide Notice to RCTC within two Business Days
after discovery of such potential delay.
8.7. Avoiding Relocations and Minimizing RCTC Costs
8.7.1. DB Contractor shall use its best efforts to minimize costs to Utility Owners that
will be subject to reimbursement by RCTC (provided that DB Contractor has Actual Knowledge
of RCTC's reimbursement obligation or has been advised of such reimbursement obligation,
whether by receipt of Utility Agreements providing for same, or by other notice from RCTC), to
the extent practical and allowable pursuant to this Contract.
8.7.2. Subject to Section 8.7.1, DB Contractor shall consider the location of Utilities
and the potential impact of Relocations in developing and finalizing the design of the Project, with
the goal of minimizing Relocations to the extent practical and allowable pursuant to this Contract.
8.7.3. DB Contractor shall reimburse RCTC for any costs RCTC incurs as a result of
DB Contractor's failure to comply with the requirements of this Section 8.7 (including with respect
to the acquisition of Utility Easements). Without limiting the generality of the foregoing, DB
Contractor shall reimburse RCTC for any payments RCTC makes to Utility Owners in
reimbursement for Relocations (whether temporary or permanent) not necessary for the Project
but undertaken merely for DB Contractor's convenience. Without limiting Section 14.3.2, all
reimbursement amounts required pursuant to this Section 8.7 (plus an administrative charge
equal to 10% of the amount) shall be due within ten days after DB Contractor receives RCTC's
request for reimbursement.
8.7.4. DB Contractor shall use best efforts to avoid multiple Relocations or
Protections in Place of the same Utility, whether by the Utility Owner or by DB Contractor.
Accordingly, after a Utility has been Relocated or Protected in Place once in order to
accommodate the Project, DB Contractor shall be responsible for all costs incurred by any of DB
Contractor, the Utility Owner or RCTC in order to subsequently Relocate or Protect in Place such
Utility to accommodate the Project. If the Utility Owner performs such subsequent Relocation or
Protection in Place at RCTC's expense, then DB Contractor shall reimburse RCTC for all amounts
paid by RCTC to such Utility Owner in reimbursement for such subsequent Relocation or
Protection in Place. If DB Contractor performs such subsequent Relocation or Protection in Place,
then DB Contractor shall not receive any extension of any Completion Deadline or increase in the
Contract Price on account of the performance of such subsequent Relocation or Protection in
Place.
8.7.5. DB Contractor shall provide documentation satisfactory to RCTC showing that
the required analysis was performed and an appropriate determination made regarding the need
for any Relocation, and shall also bear the burden of proving that the amount of any additional
costs or time incurred by DB Contractor are both necessary and reasonable.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 53 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
8.7.6. Coordination Costs
DB Contractor is not entitled to any increase in the Contract Price for any costs of
coordinating with Utility Owners.
8.7.7. Cost Liability; Reimbursement by Utility Owners
DB Contractor may not collect reimbursement from Utility Owners for DB Utility Work.
Subject to DB Contractor's right to obtain an increase in the Contract Price for certain Work in
accordance with this Section 8, all DB Utility Work is included in the Contract Price, regardless of
whether RCTC or the Utility Owner has Cost Liability for such DB Utility Work. Accordingly, the
determination of Cost Liability for a Relocation (as between the Utility Owner and RCTC), and/or
RCTC's collection of reimbursement from any Utility Owner, shall not constitute grounds for any
change in the Contract Price (either up or down) or extension of time.
8.7.8. Voluntary Action by DB Contractor
If DB Contractor elects to make payments to Utility Owners or to undertake any other
efforts which are not required by the terms of this Contract, DB Contractor is not entitled to any
compensation, time extension or any other Claim unless DB Contractor has received a Directive
Letter or Change Order to do so. DB Contractor shall promptly notify RCTC of the terms of any
such arrangements and provide RCTC with copies of all related correspondence and agreements.
8.7.9. RCTC's Utility Easement Acquisition Costs
If, due to a circumstance entitling DB Contractor to a Change Order for increased costs
pursuant to any of Sections 8.3 through 8.7 or Section 16, RCTC incurs additional costs in
acquisition of a Utility Easement which DB Contractor is otherwise required to reimburse pursuant
to Section 8.1.3(d), then DB Contractor is not required to reimburse RCTC for such additional
costs, notwithstanding the provisions of Section 8.1.3(d).
8.8. Process to Follow Upon Discovery of Certain Site Conditions
8.8.1. Notification to RCTC
(a) If DB Contractor discovers or becomes aware of within the Site (1) any
material that DB Contractor believes may contain Hazardous Materials required to be removed
or treated in accordance with this Contract or applicable Governmental Rules, (2) any Differing
Site Conditions, or (3) any other protected resources that may affect the Work, DB Contractor
shall immediately:
(i) Notify RCTC by telephone or in person, to be followed
immediately by Notice, with a copy of the Notice provided directly to Department (if it relates to
Hazardous Materials); and
(ii) Except where DB Contractor is required to take immediate
action under this Contract or applicable Governmental Rules, stop Work in and secure the area
unless the materials are Known or Suspected Hazardous Materials in which case Section 8.9 will
apply.
(b) DB Contractor's Notice under Section 8.8.1(a)(i) shall:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 54 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(i) Specify the nature of the discovery, including, if possible,
whether the potential Hazardous Material is HM-1 or HM-2;
(ii) Specify whether the Hazardous Material is located within
Existing Department ROW; and
(iii) Advise RCTC of any obligation to notify Governmental Entities
under applicable Governmental Rules and Governmental Approvals.
(c) Except where DB Contractor is required to take immediate action under
this Contract or applicable Governmental Rules, RCTC and Department shall have three
Business Days after RCTC receives Notice to inspect the area and consult with DB Contractor
about the recommended approach before any other action is taken that would inhibit RCTC's or
Department's ability to ascertain the nature and extent of the discovery.
8.8.2. RCTC Response
(a) Upon receipt of Notice under Section 8.8.1(a)(i), RCTC will:
(i) View the location and conduct such further investigation as
RCTC deems appropriate; and
(ii) Use reasonable efforts to provide Notice to DB Contractor within
three Business Days of receiving Notice under Section 8.8.1(a)(i) whether Work should be
resumed, whether further investigation is required, whether additional action is required to be
undertaken by DB Contractor, or whether in RCTC's opinion the situation falls within the scope of
Section 8.9.3.
(b) If Hazardous Materials or Contaminated Groundwater is involved,
RCTC's Notice under Section 8.8.2(a)(ii) shall describe the type of remediation measures, if any,
that DB Contractor is to undertake with respect to such Hazardous Materials or Contaminated
Groundwater.
(c) If any Governmental Approval or this Contract specifies a procedure to
be followed that differs from the procedure in this Contract, DB Contractor shall follow the
procedure in the Governmental Approval or this Contract in lieu of the procedure in Section 8.8.1.
(d) RCTC may require DB Contractor to recommence Work in the area at
any time, even though an investigation may still be ongoing. DB Contractor shall promptly
recommence Work in the area upon Notice from RCTC to do so. Upon recommencing Work, DB
Contractor shall follow all applicable procedures contained in this Contract and all other
Governmental Rules with respect to such Work, consistent with RCTC's determination or
preliminary determination regarding the nature of the material or condition and the basis upon
which DB Contractor may recommence Work.
8.9. Hazardous Materials Management
8.9.1. Procedures and Compensation for Hazardous Materials Management
(a) Except for Hazardous Materials Management with respect to HM-1
undertaken by Department under Section 8.9.3, DB Contractor shall test, manage, treat, handle,
store, remediate, remove, transport (where applicable), document and dispose of all Hazardous
Materials, including Contaminated Groundwater, and perform all other aspects of Hazardous
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 55 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Materials Management as appropriate, in accordance with Governmental Rules, Governmental
Approvals, the approved plans required to be provided under TP Section 6.3, and all provisions
of this Contract.
(b) Where the discovery relates to quantities of Hazardous Materials that
trigger any reporting, investigation, remediation, other response action requirements under any
Environmental Law not covered by Section 8.9.3, develop and obtain RCTC's approval of a plan
to undertake Hazardous Materials Management, which plan shall provide for reasonable steps,
including design modifications and/or construction techniques, to avoid excavation, dewatering or
other active, intrusive management in areas where Hazardous Materials are encountered.
(c) Where excavation or dewatering is unavoidable, DB Contractor shall
use appropriately trained personnel and shall select the most cost-effective approach to
Hazardous Materials Management, unless otherwise directed by RCTC. Wherever feasible and
consistent with applicable Governmental Rules, contaminated soil and groundwater shall not be
disposed off -Site.
(d) DB Contractor shall: (i) comply with all Governmental Rules and
Governmental Approvals applicable to Hazardous Materials brought onto the Site by any DB-
Related Entity; (ii) test, contain, store, manage, transport and dispose of all such Hazardous
Materials in accordance with this Contract and all Governmental Rules and Governmental
Approvals; and (iii) pay all penalties, expenses (including attorneys' fees and costs), costs, suits,
judgments, claims, actions, damages (including damages to natural resources, property or
Persons), delays and liability arising in connection with such Hazardous Materials.
8.9.2. Hazardous Materials Generator
(a) Subject to Section 8.9.2(b), as between DB Contractor and RCTC,
RCTC shall be considered the generator and assume generator responsibility for (i) existing
Hazardous Materials located within the RCTC-Provided Property as of the date of issuance of
NTP1; and (ii) any spill of Hazardous Material by a third party that falls within clause (i), sub -
clause (iv) of the definition of Delay Event.
(b) Section 8.9.2(a) does not alter or modify DB Contractor's obligation to
undertake all Hazardous Materials Management, specifically including the hazardous waste
management responsibilities found at 40 CFR Part 261, but excluding Hazardous Materials
Management undertaken by Department under Section 8.9.3. DB Contractor may list RCTC as
the "generator" under applicable Governmental Rules of materials covered under Section 8.9.2(a)
on all manifests and other waste tracking records.
(c) DB Contractor shall propose to RCTC the destination facility to which
existing or third party -generated Hazardous Materials will be transported. RCTC shall exercise
reasonable discretion regarding selection of such destination facilities.
(d) This Section 8.9.2 does not preclude or limit any rights or remedies that
RCTC may have against any Governmental Entity or other third parties, including prior owners,
lessees, licensees and occupants of properties on or under which Hazardous Materials exist
under Sections 8.9.2(a)(i) or 8.9.2(a)(ii). Notwithstanding the foregoing, DB Contractor (and not
RCTC) shall be considered the generator and assume generator responsibility for performing the
obligations and all Costs associated with any Release(s) of Hazardous Materials for which DB
Contractor is responsible under Section 23.1.1(g).
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 56 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
8.9.3. HM-1 in Existing Department ROW
(a) Pursuant to the terms of the Department Cooperative Agreement,
Department is responsible for Hazardous Materials Management of HM-1 discovered within the
Existing Department ROW excluding any costs of testing to determine whether such material is
HM-1 which shall be borne by DB Contractor under this Contract. If HM-1 is discovered within
the Existing Department ROW, Department may either (i) undertake the Hazardous Materials
Management with Department forces or contractors or (ii) delegate the Hazardous Materials
Management investigation work to RCTC, to be undertaken by DB Contractor in which case
Section 8.8.2 will apply as if RCTC had received a Notice from DB Contractor under Section
8.8.1(a)(i).
(b) Upon receipt of the Notice under Section 8.8.1(a)(i), Department or its
representative has three Business Days to investigate and commence Hazardous Materials
Management of any HM-1 located within the Existing Department ROW. Upon commencement
of the applicable Hazardous Materials Management, Department has an additional seven days to
complete such Hazardous Materials Management.
(c) During the period of Department's investigation and Hazardous
Materials Management of any HM-1 discovered within the Existing Department ROW, DB
Contractor shall fully cooperate with RCTC to work around and re -sequence and redeploy around
the area, including rescheduling Work so as to avoid any delay to the overall Project.
8.9.4. Environmental Approvals Relating to Hazardous Materials
DB Contractor shall obtain, maintain and comply with all Governmental Approvals relating
to Hazardous Materials Management performed by DB Contractor, including federal and State
surface water and groundwater discharge permits, permits for recycling or reuse of Hazardous
Materials, and Governmental Approvals governing the preparation of waste profiles, waste
manifests and bills of lading. DB Contractor shall coordinate with RCTC on obtaining appropriate
signatures.
8.9.5. Public Contract Code Section 7104
DB Contractor acknowledges and agrees that, as a result of its agreement to undertake
the risk of and responsibility for differences in site conditions from those which may have been
anticipated by DB Contractor, and except to the extent that a Change Order is allowed under
Section 16, information regarding site conditions included in the Technical Provisions, Project
Schematics and other Reference Documents (including any information, reports, or studies about
site conditions, geotechnical conditions, Utilities or structure and bridge design, and any
interpretations, extrapolations, analyses and recommendations contained in the Reference
Documents) shall not be considered "indicated" therein as such term is used in Public Contract
Code section 7104. To the maximum extent permitted by law, DB Contractor knowingly,
unconditionally, irrevocably and specifically waives each and every right and benefit of Public
Contract Code section 7104 to the extent that it may be inconsistent with any provision of this
Contract, including the provisions in Section 16. DB Contractor acknowledges and agrees that
this waiver and the risk allocations in this Contract are material consideration for RCTC to award
this Contract to DB Contractor and to enter into this Contract. The foregoing shall in no way affect
DB Contractor's rights to an increase in the Contract Price and/or extension of a Completion
Deadline as and to the extent provided in Section 16.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 57 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
8.10. Environmental Compliance, Mitigation, and Approval Requirements
8.10.1. Environmental Compliance
DB Contractor shall:
(a) Comply with all Environmental Laws in performance of the Work, and
with all other conditions and requirements of this Contract and Governmental Approvals issued
under such Environmental Laws, whether obtained by RCTC or DB Contractor, including the
requirements in the RCTC-Provided Approvals and TP Section 6;
(b) Perform or cause to be performed all environmental mitigation
measures required under this Contract, the Environmental Approvals, and other Governmental
Approvals that apply to the Work, and shall comply with all other conditions, and requirements
thereof; and
(c) Abide by and comply with the commitments contained in subsequent
re-evaluations, re -validations, and modifications of Environmental Approvals.
8.10.2. DB Contractor shall reimburse RCTC for RCTC's costs of technical studies and
documentation, including biological and cultural resource studies, prepared in connection with
any such environmental re-evaluations, re -validations, and new or modified Environmental
Approvals, other Governmental Approvals and any other approvals, authorizations and consents
required for the Work, unless such items are due to a Necessary Basic Configuration Change
pursuant to Section 16.
8.10.3. Performance of Mitigation Measures
(a) DB Contractor shall perform all environmental mitigation measures
(which term shall be deemed to include all requirements of the RCTC-Provided Approvals and
similar Governmental Approvals and the New Approvals which Section 8.11 provides are
DB Contractor's responsibility, regardless of whether such requirements would be considered to
fall within a strict definition of the term) for the Project, excluding only those which are expressly
specified as RCTC's responsibility in TP Attachment 6-1 and this Section 8.10.
(b) DB Contractor shall monitor the progress of performance of
environmental mitigation measures and provide periodic reports to RCTC as required by the
Environmental Management Plan, the requirements in TP Attachment 6-1 that are specified as
being the responsibility of DB Contractor, and TP Section 6.
(c) DB Contractor acknowledges and agrees that the Environmental
Management Plan may be updated from time to time to account for any revisions in mitigation
requirements. Whenever a New Approval is obtained which changes the existing environmental
mitigation requirements or adds new environmental mitigation requirements, the Environmental
Management Plan will be revised to include such amendments or new requirements, and DB
Contractor shall comply with the revised plan from and after the date it receives the revised plan.
(d) No Change Order shall be allowed in connection with any update or
revision to the Environmental Management Plan except that (a) Change Orders shall be issued
for additional Work resulting from New Approvals which are RCTC's responsibility as specified in
Section 8.11.3(a), and (b) if DB Contractor believes that any revision represents an RCTC-
Directed Change, it may seek a Change Order on that basis in accordance with the requirements
of, and subject to the limitations in Section 15 and Section 16.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 58 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
8.11. Approvals
8.11.1. Governmental Approvals and Third Party Agreements
(a) DB Contractor shall:
(i) Obtain and pay the cost of obtaining all Governmental
Approvals required in connection with the Project (except to the extent RCTC has expressly
agreed to be responsible under Section 8.10 or with respect to RCTC-Provided Approvals);
(ii) Comply with all conditions imposed by and undertake all actions
required by and all actions necessary to maintain in full force and effect all Governmental
Approvals, except to the extent that this Contract expressly assigns responsibility for performance
of such actions to another Person;
(iii) Provide such assistance as is reasonably requested by RCTC
in dealing with any Governmental Entity or Utility Owner and/or in prosecuting and defending
lawsuits in any and all matters relating to the Project. Such cooperation shall include DB
Contractor's staff and consultants acting as witnesses in such lawsuits and proceedings and
providing testimony, information, reports, graphs, photos, plans, renderings, and similar materials
to RCTC's counsel, executing declarations, attending meetings and hearings. RCTC shall remit
to DB Contractor any amounts collected on DB Contractor's behalf as a result of any such action
or proceeding. This provision is not intended to require DB Contractor to provide legal services
for the benefit of RCTC and any assistance provided by RCTC shall not relieve DB Contractor of
its sole and primary responsibility for the satisfactory compliance with its obligations under this
Contract;
(iv) Prior to submitting to a Governmental Entity any application for
a Governmental Approval (or any proposed modification, renewal, extension or waiver of a
Governmental Approval or provision thereof), DB Contractor shall submit the same, together with
any supporting environmental or technical studies, data and analyses, to RCTC. RCTC may
approve any application for a proposed modification, renewal, extension or waiver of an RCTC-
Provided Approval. All other applications for Governmental Approvals shall be subject to RCTC's
review and comment; and
(v) Promptly provide RCTC and Department with copies of all
Governmental Approvals and any other permit, license, consent, authorization, approval or similar
document issued to DB Contractor by, or agreement entered into between DB Contractor and any
Governmental Entity, Utility Owner, BNSF, property owner or other third party relating to the
Project.
(b) If DB Contractor wishes to pursue Additional Properties, or any other
Deviation from any Governmental Approvals, including RCTC-Provided Approvals, DB Contractor
shall first comply with, and obtain and maintain, as applicable, any consent, approval or waiver
required pursuant to, then -existing agreements between RCTC and other Governmental Entities.
(c) Upon DB Contractor's request, RCTC will reasonably cooperate with
DB Contractor in providing DB Contractor with copies of the applicable agreements between
RCTC and other Governmental Entities.
(d) If any Governmental Approvals required to be obtained by DB
Contractor (including Major Approvals) must formally be issued in the name of RCTC, DB
Contractor shall undertake all efforts to obtain and maintain such approvals subject to RCTC's
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 59 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
reasonable cooperation with DB Contractor, at DB Contractor's expense (except in connection
with Governmental Approvals required solely due to an RCTC-Directed Change), including
execution and delivery of appropriate applications and other documentation in form approved by
RCTC. DB Contractor shall assist RCTC in obtaining any Governmental Approvals which RCTC
may be obligated to obtain, including providing information requested by RCTC and participating
in meetings regarding such approvals.
(e) In the event that RCTC, Department or FHWA must act as the lead
agency and directly coordinate with a Governmental Entity in connection with obtaining
Governmental Approvals which are the responsibility of DB Contractor, DB Contractor shall
provide all necessary support to facilitate the approval, mitigation or compliance process. Such
support shall include conducting necessary field investigations, surveys, and preparation of any
required reports, documents and applications.
(f) DB Contractor shall not enter into any agreement with any
Governmental Entity, Utility Owner, BNSF, property owner or other third party having regulatory
jurisdiction over any aspect of the Project or having any property interest affected by the Project
that in any way purports to obligate RCTC or Department, or states or implies that RCTC or
Department has an obligation, to the third party to carry out any installation, design, construction,
maintenance, repair, operation, control, supervision, regulation or other activity after the expiration
or termination of this Contract, unless RCTC otherwise approves such agreement by Notice, in
its sole discretion. DB Contractor has no power or authority to act as an agent or representative
of RCTC or Department or to enter into any such agreement with a third party in the name or on
behalf of RCTC or Department.
8.11.2. RCTC-Provided Approvals
(a) The RCTC-Provided Approvals that RCTC has obtained as of the
Proposal Date are included in the Reference Documents, but do not form part of this Contract.
DB Contractor shall comply with applicable requirements and conditions of those RCTC-Provided
Approvals in TP Sections 2.5.2 and 6.3 and TP Attachment 6-1.
(b) Where RCTC or Department acts as a regulatory authority or permitting
entity:
(i) Section 4.1.2(e) does not apply, and nothing in this context shall
be considered an RCTC-Caused Delay; and
(ii) RCTC or Department is not obligated to: (A) exercise its legal
rights in order to avoid or eliminate the requirement to obtain any Governmental Approvals; or (B)
automatically grant Governmental Approvals for which it is the authorizing entity and will apply its
usual procedures and criteria in considering applications from DB Contractor for such
Governmental Approvals.
8.11.3. New Approvals
(a) New Approvals To Be Obtained at RCTC's Expense
(i) RCTC shall obtain any New Approvals necessitated by an
RCTC-Directed Change, Force Majeure Event, or Necessary Basic Configuration Change. DB
Contractor shall provide support services to RCTC with respect to obtaining any such New
Approval.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 60 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) Any Change Order covering a New Approval necessitated by
an RCTC-Directed Change, Force Majeure Event or Necessary Basic Configuration Change shall
include compensation to DB Contractor for any material changes in the Work (including
performance of material additional mitigation measures but excluding performance of such
support services) resulting from such New Approvals, as well as any time extension necessitated
by such New Approvals, subject to the limitations contained in Section 15 and Section 16.
(b) Other Governmental Approvals To Be Obtained at DB Contractor's
Expense
(i) Subject to Sections 8.11.3(b)(ii) and 8.11.3(b)(iii), if any
Governmental Approval (including any New Approval) becomes necessary for any reason other
than those specified in Section 8.11.3(a), DB Contractor shall: (1) be solely responsible for the
risk that any such Governmental Approvals are not (or are not timely) granted, issued, approved
or obtained as well as for any litigation arising in connection therewith; and (2) not be entitled to
any increase in the Contract Price or extension of the Completion Deadlines as a result of any
delay or cost associated with such Governmental Approvals.
(ii) RCTC shall be the implementing agency for any New Approvals
under applicable Governmental Rules with the exception of the California Water Resources
Control Board Clean Water Act - Section 402 Permit.
(iii) If DB Contractor wishes to adopt any design or construction
approach that would require a New Approval, DB Contractor shall consult with RCTC (and with
Department if the RCTC-Provided Approval is in Department's name). DB Contractor shall not
implement any such approach unless concurrence of RCTC (and Department) has first been
obtained and arrangements have been made to reimburse RCTC and Department for the costs
of the proposed change.
(iv) If any New Approval is associated with a VECP, the costs of
obtaining and complying with the terms of the New Approval shall be considered in determining
the Contract Price adjustment under Section 17.
8.11.4. Environmental Compliance by DB Contractor for Off -Site Activities
If DB Contractor chooses to add or select any ground or resource disturbing features such
as material (gravel, borrow, disposal or re -use) sites, equipment staging sites, office sites, water
lines, holding ponds, Hazardous Materials and/or non -Hazardous Materials staging areas, etc.,
for which a new Governmental Approval is required, DB Contractor shall, at is cost and risk, obtain
and provide to RCTC such Governmental Approvals before commencing any construction activity
within the feature(s).
8.11.5. Major Approvals
DB Contractor shall obtain and maintain all Major Approvals, even though such approvals
must formally be issued in RCTC's name.
8.12. Cooperation with Local Agencies
8.12.1. Compliance with Local Agency Requirements
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 61 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
DB Contractor shall comply with all Local Agency terms, requirements and conditions
applicable to the Work, including payment of all plan review and construction inspection costs
charged by Local Agencies relating to the Work.
8.12.2. Bonds and Insurance
Upon request by RCTC, DB Contractor shall: (a) provide additional obligee riders to the
Payment Bonds and Performance Bonds in favor of Local Agencies; and (b) provide certificates
naming Local Agencies as additional insureds to the insurance policies required to be provided
under Section 11.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 62 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 9
SUBCONTRACTORS AND LABOR
9.1. Subcontracts
9.1.1. General
(a) DB Contractor is responsible for:
(i) The engagement and management of each Subcontract;
(ii) All Work performed by its Subcontractors;
(iii) Proper supervision and coordination of the Work performed by
its Subcontractors so as to ensure that all Work is in accordance with this Contract; and
(iv) The actions, errors, omissions, negligence, willful misconduct,
or breach of applicable Governmental Rules or contract by any DB-Related Entity or
Subcontractor, as though DB Contractor directly employed all such Persons.
(b) DB Contractor may not materially amend or terminate any Major
Subcontract or amend the scope of a Listed Subcontractor without the prior written consent of
RCTC, in its sole discretion except that DB Contractor may terminate a Major Subcontract in the
event of material default by the Major Subcontractor, provided that DB Contractor has provided
Notice of such intended termination to RCTC in advance of the termination. Where an
amendment includes a material addition to the scope of work under a Subcontract with a Listed
Subcontractor, RCTC may require such work to be the subject of a new procurement by DB
Contractor under Section 9.1.2. RCTC shall respond to such Notice within 10 Busines Days.
(c) No Subcontractor may start any Work until after RCTC receives a copy
of its Subcontract, a copy of such Subcontractor's valid California Contractor License, and any
insurance documents required under Section 11.
9.1.2. Procurement of New Subcontracts
The following procedures shall apply to procurement of Subcontracts under this Contract
by DB Contractor for construction Work (including Subcontractors for fabrication and installation
of a portion of the Work), excluding Subcontracts with Listed Subcontractors and Affiliates.
(a) DB Contractor shall (i) provide public notice of the availability of work
to be subcontracted in accordance with the publication requirements applicable to the competitive
bidding process of RCTC; and (ii) provide a fixed date and time on which the subcontracted work
will be awarded.
(b) DB Contractor shall use a competitive process that complies with the
provisions of Public Contract Code section 6826. Prior to soliciting any proposals or bids for
Subcontracts, DB Contractor shall submit to RCTC for its review and approval a reasonable
procedure for the conduct of the procurement and approval process applicable to Subcontracts.
(c) DB Contractor shall promptly provide Notice to RCTC identifying each
Subcontractor selected and, upon RCTC's request, provide the solicitation and evaluation
materials and results.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 63 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(d) If any Subcontractor is an Affiliate, DB Contractor shall require such
Affiliate to follow the procedures under this Section 9.1.2 in connection with lower tier
Subcontracts for construction Work and shall comply with Section 9.1.5.
9.1.3. Substitution of Subcontractors
DB Contractor may not make any substitution of any Listed Subcontractor or
Subcontractor selected pursuant to Section 9.1.2 except in accordance with the provisions of the
Subletting and Subcontracting Fair Practices Act, Public Contract Code section 4100 et seq.
9.1.4. Subcontract Requirements
(a) Each Subcontract shall:
(i) Include express requirements that: (1) RCTC and Department
are third party beneficiaries of the Subcontract, and shall each have the independent right to
enforce all of the terms of the Subcontract for their own benefit; (2) all guarantees and warranties,
express or implied, shall inure to the benefit of RCTC and Department, and their respective
successors and assigns; (3) the rights of DB Contractor under such instrument are assigned to
RCTC contingent only upon delivery of Notice from RCTC following default by DB Contractor or
termination or expiration of this Contract, allowing RCTC to assume the benefit of DB Contractor's
rights with liability only for those remaining obligations of DB Contractor accruing after the date of
assumption by RCTC; and (4) the Subcontractor shall recognize and attorn to RCTC upon receipt
of Notice from RCTC that RCTC has exercised its rights under this Contract, without necessity
for consent or approval from DB Contractor or to determine whether RCTC validly exercised its
rights, and DB Contractor's covenant to waive and release any claim or cause of action against
the Subcontractor in connection with its recognition and attornment in reliance on any such Notice;
(ii) Not impose upon RCTC or Department any obligation or
liability;
(iii) Not create any contractual relationship between RCTC or
Department and the applicable Subcontractor;
(iv) Include the following provision:
Nothing contained herein shall be deemed to create any privity of
contract between or among the Riverside County Transportation
Commission (RCTC), the California Department of Transportation
(Department) and the Subcontractor, nor does it create any duties,
obligations, or liabilities on the part of RCTC or Department to the
Subcontractor except those allowed under California law. In the
event of any claim or dispute arising under the Subcontract and/or
DB Contractor's Contract with RCTC, the Subcontractor shall look
only to DB Contractor for any payment, redress, relief, or other
satisfaction. The Subcontractor hereby waives any claim or cause
of action against RCTC or Department arising out of the
Subcontract or otherwise arising in connection with the
Subcontractor's Work;
(v) Set forth a standard of professional responsibility or standard
for commercial practice (as applicable) equal to or better than the requirements of this Contract
and Good Industry Practice for work of similar scope and scale and contain certification by the
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 64 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Subcontractor that the Subcontractor is experienced in and qualified to do, and knowledgeable
about, the subcontracted Work;
(vi) Require the Subcontractor to carry out its applicable scope of
work in accordance with this Contract, applicable Governmental Approvals, and Governmental
Rules, and to be joined in any dispute resolution proceeding pursuant to Section 24 if RCTC
determines such joinder is reasonably necessary to resolve the Dispute;
(vii) Set forth effective procedures for claims and change orders,
which procedures are consistent with the Change Order process in this Contract;
(viii) Set forth warranties, guaranties, and liability provisions of the
contracting party in accordance with Good Industry Practice for work of similar scope and scale;
(ix) Include the following: (1) requirement to maintain usual and
customary Books and Records for the type and scope of operations of business in which the
Subcontractor is engaged (e.g., constructor, equipment supplier, designer, service provider); (2)
provision permitting audits to be conducted by DB Contractor, RCTC, Department, and FHWA;
(3) provision that Subcontractor warrants the completeness and accuracy of all information the
Subcontractors or its agents provide in connection with Section 26.7; (4) requirement to provide
progress reports to DB Contractor appropriate for the type of work it is performing sufficient to
enable DB Contractor to provide the reports it is required to provide RCTC under this Contract;
(5) requirement for the Subcontractor to maintain all appropriate licenses and for any
Subcontractor performing construction Work to be registered and maintain registration to perform
public work pursuant to Labor Code section 1725.5 and to notify of any labor dispute that may
delay performance under this Contract, requiring each Subcontractor to give notice and
information to the next higher tier Subcontractor (or to DB Contractor, if it is a direct Subcontract;
(6) provision prohibiting assignment of the Subcontract by the Subcontractor without DB
Contractor's prior written consent; (7) provisions implementing the requirements of Section 26.5,
and (8) copies of Labor Code sections 1771, 1775, 1776, 1777.5, 1813, and 1815; For Major
Subcontracts: (i) be terminable only for cause, unless RCTC exercises a Termination for
Convenience under this Contract pursuant to Section 19.1, in which case DB Contractor may
terminate the Subcontractor for convenience in accordance with Section 9.1.4(a)(xi); (ii) include
an indemnity from the Subcontractor in favor of DB Contractor and the Indemnified Parties against
any and all Losses in connection with any negligent act error, or omission, gross negligence,
fraud, recklessness, willful misconduct, or breach of Governmental Approvals, violation of
Governmental Rules, or breach of contract by the Subcontractor or any of its officers, employees,
agents or representatives; provided, however, that such Subcontractor indemnities shall not inure
to the benefit of an Indemnified Party so as to impose liability on the Subcontractor for the active
negligence of RCTC, or to relieve RCTC of liability for such active negligence; and (iii) include a
covenant, expressly stated to survive termination of the Major Subcontract, to promptly execute
and deliver to RCTC a new contract between the Subcontractor and RCTC on the same terms
and conditions as the Major Subcontract, in the event: (A) the Major Subcontract is rejected by
DB Contractor in bankruptcy or otherwise wrongfully terminated by DB Contractor or (B) RCTC
delivers Notice for such new contract following termination or expiration of this Contract;
(x) Expressly require that, upon Notice from DB Contractor after
RCTC's request, the Subcontractor participate in meetings between DB Contractor and RCTC
concerning matters pertaining to the Subcontract or its work. Nothing in this Section 9.1.4(a)(x)
shall limit the authority of RCTC to give such direction or take such action which, in its opinion, is
necessary to remove an immediate and present threat to the safety of life, property or revenues;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 65 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(xi) Include the right of DB Contractor to terminate the Subcontract
in whole or in part upon any Termination for Convenience of this Contract without liability of
DB Contractor or RCTC for the Subcontractor's lost profits, consequential, or other damages, or
business opportunity;
(xii) Expressly provide that all Liens, claims, and charges of the
Subcontractor and its Subcontractors at any time shall not attach to any interest of RCTC or
Department in the Project or the Project ROW;
(xiii) Include the prompt payment requirements in Section 14.7.1 and
require the Subcontractor to make payments to sub -subcontractors and Suppliers in a similar
manner;
(xiv) Include provisions consistent with Public Contract Code section
9204(d)(5), which provides that a Subcontractor may request in writing, either on its own behalf
or on behalf of a lower tier Subcontractor, that DB Contractor present a claim for work which was
performed by the Subcontractor or by a lower tier Subcontractor on behalf of the Subcontractor.
In such event the Subcontractor must furnish reasonable documentation to support the claim.
Within 45 days of receipt of this written request, DB Contractor is required to notify the
Subcontractor in writing as to whether DB Contractor presented the claim to RCTC and, if DB
Contractor did not present the claim, provide the Subcontractor with a statement of the reasons
for not having done so; and
(xv) Be consistent in all other respects with the terms and conditions
of this Contract to the extent such terms and conditions are applicable to the scope of work of
such Subcontractors, and include all other provisions required by this Contract.
(b) The amount of retainage to be withheld under Subcontracts shall not
exceed the amount withheld by RCTC pursuant to Section 14.3.1.
(c) RCTC is not bound by any Subcontract, and no Subcontract shall
include a provision purporting to bind it.
(d) Within ten Business Days after issuance of NTP2, DB Contractor shall
complete and provide to RCTC a schedule listing its current Subcontractors, in the form of
Exhibit 7 (Subcontractor Identification Form). DB Contractor shall provide an updated schedule
monthly throughout performance of the Work.
(e) DB Contractor shall allow RCTC access to all Subcontracts and records
regarding Subcontracts and shall deliver to RCTC, within ten Business Days after execution, true
and complete copies of all Major Subcontracts, and within ten Business Days after receipt of a
request from RCTC, true and complete copies of all other Subcontracts as may be requested. At
DB Contractor's option, copies of the pages of the Subcontracts delivered to RCTC may be
redacted to remove pricing information; provided, however, that in such event a full copy of the
Subcontract shall be added to the EPDs maintained under Section 26.1.
(f) RCTC may review the form of subcontract used by DB Contractor for
the Project and require modifications to such form to conform to the requirements in this Contract.
9.1.5. Subcontracts with Affiliates
(a) DB Contractor may have Work and services performed by Affiliates
only under the following terms and conditions:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 66 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(i) DB Contractor shall execute a written Subcontract with the
Affiliate which complies with all requirements for Subcontracts under this Contract;
(ii) The terms and conditions of the Subcontract (including pricing
and scheduling) shall be no less favorable to DB Contractor than those that DB Contractor could
reasonably obtain in an arm's length, competitively procured transaction with an unaffiliated
Subcontractor. DB Contractor shall bear the burden of proving that the same are no less favorable
to DB Contractor; and
(iii) No Affiliate shall be engaged to perform any Work which this
Contract or the Project Management Plan requires be performed by an independent or unaffiliated
party. No Affiliate shall be engaged to perform any Work which would be inconsistent with Good
Industry Practice or other Contract requirements.
(b) Before entering into or amending any Subcontract with an Affiliate, DB
Contractor shall submit a true and complete copy of the proposed Subcontract to RCTC for review
and comment. RCTC has 20 Business Days after receipt to deliver its comments to DB
Contractor.
(c) DB Contractor shall make no payments to Affiliates for Work in advance
of provision of such Work, except for reasonable mobilization payments or other payments
consistent with arm's length, competitive transactions of similar scope.
9.1.6. Other Requirements
(a) Pursuant to section 6109 of the Public Contract Code, no Subcontractor
shall perform Work if that Subcontractor is ineligible to perform work on public works projects
pursuant to section 1777.1 or 1777.7 of the Labor Code.
(b) DB Contractor shall comply with all other subcontracting requirements
in Section 7 of the Modified Standard Specifications (Exhibit 3).
9.2. Equal Employment Opportunity
9.2.1. DB Contractor shall not, and shall cause the Subcontractors to not,
discriminate on the basis of race, color, national origin or sex in the selection of Subcontractors
and the performance of the Work under this Contract. Failure by DB Contractor to carry out these
requirements is a material breach of this Contract, which may result in the termination of this
Contract or such other remedy as RCTC deems appropriate (subject to DB Contractor's rights to
notice and opportunity to cure in this Contract).
9.2.2. DB Contractor shall include Section 9.2.1 in every Subcontract (including
purchase orders and in every subcontract of any DB-Related Entity for the Work), and shall
require that they be included in all Subcontracts at lower tiers, so that such provisions will be
binding upon each Subcontractor.
9.2.3. DB Contractor confirms that DB Contractor has an equal employment
opportunity policy ensuring equal employment opportunity without regard to race, color, national
origin, sex, age, religion or handicap; and that DB Contractor maintains no employee facilities
segregated on the basis of race, color, religion or national origin. DB Contractor shall comply with
all applicable Governmental Rules relating to equal employment opportunity and
nondiscrimination, including those in Section 7-1.01A of the Modified Standard Specifications
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 67 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(Exhibit 3), and in Exhibits 14 (Federal Requirements) and 16 (Labor Code Requirements), and
shall require its Subcontractors to comply with such provisions.
9.3. Labor Code Requirements
9.3.1. DB Contractor shall comply and cause its Subcontractor to comply with the
provisions of the Labor Code and implementing regulations, including requirements with respect
to prevailing wages, and employment and training of apprentices, as described in Exhibit 16
(Labor Code Requirements).
9.3.2. DB Contractor shall comply with the applicable provisions of the Labor Code
and implementing regulations relating to labor nondiscrimination, and with the applicable federal
requirements, including those in Exhibits 2 (Contract Particulars), 14 (Federal Requirements) and
16 (Labor Code Requirements).
9.3.3. The California Department of Industrial Relations (DIR) is responsible for
monitoring and enforcing prevailing wage requirements of applicable labor laws to insure that all
contractors working on the Project are in compliance with State (Division 2, Part 7, Chapter 1 of
the Labor Code) prevailing wage statutes and regulations. Accordingly, the Project is subject to
the requirements of DIR's compliance monitoring and enforcement program in Title 8, Chapter 8,
Subchapter 4.5 of the California Code of Regulations, which include, among other requirements,
the obligation to provide payroll records directly to the DIR Labor Commissioner.
9.3.4. Refer to Section 7-1.02K(3) of the Modified Standard Specifications (Exhibit 3)
and Exhibit 16 (Labor Code Requirements) for certain information regarding a number of labor
compliance requirements applicable to the Contract under Labor Code section 1776. The labor
compliance requirements do not constitute an exhaustive list, and that additional labor compliance
requirements may apply to the Project under other Governmental Rules.
9.3.5. DB Contractor shall post a notice at the Site containing the following language:
"This public works project is subject to monitoring and investigative
activities by the Division of Labor Standards Enforcement (DLSE),
Department of Industrial Relations, State of California. This Notice
is intended to provide information to all workers employed in the
execution of the contract for public work and to all contractors and
other persons having access to the job site to ensure compliance
with and enforcement of prevailing wage laws on public works
projects.
The prevailing wage laws require that all workers be paid at least
the minimum hourly wage as determined by the Director of
Industrial Relations for the specific classification (or type of work)
performed by workers on the Project. These rates are listed on a
separate job site posting of minimum prevailing rates required to be
maintained by the public entity which awarded the public works
contract. Complaints concerning nonpayment of the required
minimum wage rates to workers on this Project may be filed with
the office of the DLSE.
Complaints should be filed in writing immediately upon discovery of
any violations of the prevailing wage laws due to the short period of
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 68 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
time following the completion of the Project that the CMU may take
legal action against those responsible.
Complaints should contain details about the violations alleged (for
example, wrong rate paid, not all hours paid, overtime rate not paid
for hours worked in excess of 8 hours per day or 40 per week, etc.)
as well as the name of the employer, the public entity which
awarded the public works contract, and the location and name of
the Project.
For general information concerning the prevailing wage laws and
how to file a complaint concerning any violation of these prevailing
wage laws, you may contact any DLSE office. Complaint forms are
also available at the Department of Industrial Relations website
found at www.dir.ca.gov/dlse/PublicWorks.html."
9.3.6. Whenever DB Contractor has knowledge that any actual or potential labor
dispute may delay its performance under this Contract, DB Contractor shall immediately Notify
and submit all relevant information to RCTC.
9.4. Prevailing Wages
9.4.1. DB Contractor shall comply and cause its Subcontractors to comply with all
applicable requirements of Division 2, Part 7, Chapter 1 of the Labor Code, including those in
Exhibits 2 (Contract Particulars) and 16 (Labor Code Requirements).
9.4.2. If it is found that a DB Contractor employee or a Subcontractor has been or is
being paid a rate of wages less than the rate of wages required by this Contract to be paid, RCTC
may declare a DB Contractor Default under Section 20.1.1(q).
9.5. Key Personnel; Qualifications of Employees
9.5.1. DB Contractor shall:
(a) Appoint or procure the engagement of the Key Personnel in the
positions stated in Exhibit 2 (Contract Particulars);
(b) Not change, or permit any change in, Key Personnel without the prior
written consent of RCTC;
(c) Provide Notice to RCTC of any proposed changes in any Key
Personnel;
(d) Provide phone, e-mail addresses and mobile telephone numbers for all
Key Personnel. RCTC requires the ability to contact the following Key Personnel 24 hours per
day, seven days per week:
(i) Project Manager;
(ii) Construction Manager;
(iii) Design Manager;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 69 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iv) Structures Design Manager; and
(v) Traffic Manager;
(e) Ensure the Key Personnel are available for the time commitment
specified in TP Section 2.6.1. RCTC may require a 100% time commitment per position from any
Key Personnel if RCTC, in its good faith discretion, determines that such personnel are not
devoting sufficient time to the prosecution and performance of the Work; and
(f) Ensure that all Persons performing the Work:
(i) Have the skill and experience and any licenses required to
perform the Work assigned to them; and
(ii) Are available for the Work and shall maintain active involvement
in the prosecution and performance of the Work.
9.5.2. RCTC may review the qualifications and character of each individual to be
appointed to a Key Personnel position (including personnel employed by Subcontractors) and
may approve or disapprove use of such individual in such position prior to the commencement of
any Work by such individual or at any time during the prosecution of the Work.
9.5.3. If RCTC determines, in its good faith discretion, that any Person (a) is not
performing the Work in a proper, safe and skillful manner or is detrimental to the Work; (b) poses
a potential health, safety or security threat to RCTC's customers, RCTC Parties or assets; (c)
does not meet the minimum performance requirements of the Work; or (d) is not qualified to fulfill
the responsibilities of his or her appointed Key Personnel position, then upon Notice from RCTC,
DB Contractor or its Subcontractor shall promptly remove such Person and shall not re-employ
them on the Project without the prior written approval of RCTC, which RCTC may grant or
withhold.
9.6. Key Personnel Liquidated Damages
9.6.1. If an individual filling a Key Personnel role is not available for, or actively
involved in, the performance of the Work as required in TP Section 2.6.1, as determined by RCTC
in its good faith discretion, then:
(a) DB Contractor acknowledges that RCTC and the Project will suffer
significant and substantial damages and that it is impracticable and extremely difficult to ascertain
and determine the actual damages which would accrue to RCTC in such event; and
(b) DB Contractor agrees to pay RCTC a liquidated amount as follows, for
each position held by such individual, as deemed compensation to RCTC for such damages:
POSITION
LIQUIDATED
AMOUNT
Project Manager
$150,000
Construction Manager
$100,000
Design Manager
$50,000
Structures Design Manager
$50,000
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project
56800642.v38
70
Draft Execution Copy: February 12, 2020
Sensitive
9.6.2. A further liquidated amount in accordance with Section 9.6.1 for the positions
listed above or in the amount of $20,000 for any other Key Personnel will be payable from DB
Contractor to RCTC for each 6 month period where any Key personnel position is vacant or not
being fulfilled in accordance with this Contract as determined by RCTC.
9.6.3. DB Contractor is not liable for Liquidated Damages under Section 9.6.1 if: (a)
DB Contractor removes or replaces such personnel at the direction of RCTC; (b) such individual
is unavailable due to death, retirement, injury or no longer being employed by the applicable DB-
Related Entity (provided that moving to an affiliated company or a Subcontractor is not considered
grounds for avoiding Liquidated Damages); or (c) such individual is unavailable due to RCTC's
failure to issue NTP1 within 210 days of the Proposal Date for a reason other than the acts or
omissions or any DB-Related Entity, or any DB Contractor Fault; provided DB Contractor promptly
proposes to RCTC a replacement for such personnel for review and approval within 15 Business
Days of unavailability, in the case of Sections 9.6.3(a) or 9.6.3(b) or 15 Business Days from the
issuance of NTP1, in the case of Section 9.6.3(c).
9.6.4. Upon approval of any Key Personnel replacement under Section 9.6.3, the new
individual shall be considered a Key Personnel for all purposes under this Contract, including
Section 9.6.1.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 71 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 10
PERFORMANCE AND PAYMENT BONDS; GUARANTY
10.1. Provision of Bonds
DB Contractor shall provide RCTC with Bonds securing DB Contractor's obligations under this
Contract, each in the amount specified in Exhibit 2 (Contract Particulars), and shall maintain such
bonds in full force and effect as described below.
10.1.1. Performance Bond
(a) As a condition precedent to issuance of NTP1, DB Contractor shall
provide RCTC a performance bond in the initial amount specified in Exhibit 2 (Contract
Particulars) (the "NTP1 Performance Bond Amount"), including a multiple obligee rider in favor
of Department, and in the form of Exhibit 8-A (the "NTP1 Performance Bond").
(b) As condition precedent to issuance of NTP2: (i) the amount of the NTP1
Performance Bond shall increase to the amount specified in Exhibit 2 (the "NTP2 Performance
Bond Amount"), in accordance with the rider included in Exhibit 8-A effecting such increase; or
(ii) DB Contractor shall provide a new performance bond in the same form as Exhibit 8-A (with
such modifications as RCTC may accept, in its sole discretion), including a multiple obligee rider
in favor of Department, in an amount equal to the NTP2 Performance Bond Amount.
(c) RCTC will release the NTP2 Performance Bond upon Final Acceptance
so long as the following conditions have been met: (i) DB Contractor is not in default under this
Contract and no event has occurred which, with the passage of time or the giving of notice, would
constitute a default under this Contract; and (ii) RCTC has received the Warranty Bond in
accordance with Section 10.1.3.
10.1.2. Payment Bond
(a) As a condition precedent to issuance of NTP1, DB Contractor shall
provide RCTC a payment bond in the amount specified in Exhibit 2 (Contract Particulars) (the
"NTP1 Payment Bond Amount"), including a multiple obligee rider in favor of Department, and
in the form of Exhibit 8-B (the "NTP1 Payment Bond").
(b) As a condition to issuance of NTP2: (i) the amount of the NTP1
Payment Bond shall increase to the amount specified in Exhibit 2 (the "NTP2 Payment Bond
Amount"), in accordance with the rider included in Exhibit 8-B effecting such increase; or (ii) DB
Contractor shall provide a new payment bond in the same form as Exhibit 8-B (with such
modifications as RCTC may accept, in its sole discretion), including a multiple obligee rider in
favor of Department, in an amount equal to the NTP2 Payment Bond Amount.
(c) DB Contractor shall maintain the NTP2 Payment Bond in full force and
effect until: (i) DB Contractor has delivered to RCTC (1) evidence, satisfactory to RCTC, that all
Persons eligible to file a Claim against the Payment Bond have been fully paid, and
(2) unconditional releases of Liens and stop payment notices from all Subcontractors who filed a
preliminary notice of a claim against the NTP2 Payment Bond; or (ii) expiration of the statutory
period for Subcontractors to file a claim against the NTP2 Payment Bond.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 72 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
10.1.3. Warranty Bond
(a) Subject to Sections 10.1.1(c) and 10.1.2(c), upon Final Acceptance, DB
Contractor may obtain a release of the Performance Bond and Payment Bond if DB Contractor
provides to RCTC and maintains a warranty bond in the form of Exhibit 8-C, or such other security
as RCTC may approve, that guarantees performance of Work required to be performed during
the period following Final Acceptance, including Warranty Work and Plant Establishment Work,
and which shall also constitute a payment bond guaranteeing payment to Persons performing
such Work (the "Warranty Bond"). The Warranty Bond, if used, shall include a multiple obligee
rider, in form and substance consistent with that in Exhibit 8-C, in favor of Department, Utility
Owners and Local Agencies (as applicable).
(b) If used, the Warranty Bond shall be in an amount specified in Exhibit 2
(Contract Particulars) ("Warranty Bond Amount"). RCTC will release the Warranty Bond upon
the later of expiration of the Warranty Period or Plant Establishment Period, provided the following
conditions have been met:
(i) DB Contractor is not in default under this Contract and no event
has occurred that, with the passage of time or the giving of Notice, would constitute a default
under this Contract;
(ii) RCTC receives (1) evidence satisfactory to RCTC that all
Persons eligible to file a Claim against the Warranty Bond have been fully paid, and
(2) unconditional releases of Liens and stop payment notices from all Subcontractors, if any, that
filed preliminary notice of a claim against the Warranty Bond;
(iii) The statutory period for Subcontractors to file a Claim against
the Warranty Bond has expired and no claims have been filed; and
(iv) As of the end of the Warranty Period, DB Contractor has
assigned and transferred to RCTC all unexpired warranties on equipment, materials or otherwise
relating to the Work.
10.1.4. Eligible Surety; Replacement Bonds; Increase in Bonds
(a) Each Bond required under this Contract shall be issued by an Eligible
Surety authorized to do business in the State and listed on United States Department of the
Treasury's Listing or Approved Sureties or otherwise approved by RCTC in its sole discretion.
(b) If any Bond previously provided becomes ineffective, or if the Eligible
Surety that provided the Bond no longer meets the requirements of this Contract, DB Contractor
shall provide a replacement Bond in the same form issued by an Eligible Surety. DB Contractor
shall provide Notice to RCTC promptly following such Bond being rendered ineffective or when
such Bond's surety is no longer an Eligible Surety, in no case later than two Business Days
thereafter.
(c) If the Contract Price is increased in connection with a Change Order,
RCTC may require a corresponding proportionate increase in the amount of any Bond, a new
Bond, or alternative security to cover the Change Order Work.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 73 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
10.2. No Relief of Liability
Notwithstanding any other provision of this Contract, performance by a Surety or Guarantor of
any of the obligations of DB Contractor shall not relieve DB Contractor of any of its obligations
under this Contract.
10.3. Guaranty
(a) The Guarantor shall provide and maintain the guaranty, in the form of
Exhibit 15, in full force and effect throughout the term of this Contract.
(b) DB Contractor shall periodically report to RCTC regarding the financial
capacity of the Guarantor as required in Section 26.6.2(b). If, at any point during the course of
this Contract, the Guarantor's financial capacity is materially negatively affected, as determined
by RCTC in its good faith discretion, RCTC may require, and DB Contractor provide, one or more
additional guarantees so that the combined financial capacity of the Guarantor and the additional
guarantors provides equivalent security to RCTC as the guaranty provided as of the Effective
Date. Each such guaranty shall be substantially in the form provided in Exhibit 15, together with
appropriate evidence of authorization, execution, delivery and validity of such guarantee.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 74 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 11
INSURANCE
DB Contractor shall purchase and continuously maintain in full force and effect the insurance
coverages specified in this Section 11 and Exhibit 12 (Insurance Policy Requirements). Coverage
shall be maintained from and after the Effective Date through the expiration of the Warranty
Period, or such longer or shorter time as may be specifically provided in this Section 11 or Exhibit
12.
11.1. General Insurance Provisions
11.1.1. Commencement of Work
DB Contractor and its Subcontractors shall not commence Work under this Contract or
any applicable Subcontract until DB Contractor or the applicable Subcontractor: (a) obtains the
insurance coverage required under this Section 11 and Exhibit 12 for the applicable Work;
(b) provides RCTC with evidence that the required insurance, as specified under Section 11.1.8,
is in effect for the applicable Work; and (c) RCTC approves such insurance. RCTC has no duty
to pay or perform under this Contract until such evidence of insurance, in compliance with all
requirements of this Section 11, has been provided.
11.1.2. Non Limitation of Insurance Requirements
(a) The Parties acknowledge and agree that:
(i) the insurance coverage provided and limits required under this
Contract are minimum requirements and are not intended to limit DB Contractor's indemnification
obligations under Section 23, nor do the indemnity obligations limit the rights of the Indemnified
Parties to the coverage afforded by their insured status;
(ii) requirements of specific coverage features or limits contained
in this Section 11 and Exhibit 12 are not intended as a limitation on coverage, limits, or other
requirements, or a waiver of any coverage normally provided by insurance;
(iii) specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or insured to be
all inclusive, or to the exclusion of other coverage, or a waiver of any type; and
(iv) all insurance coverage and limits provided by DB Contractor, or
by third parties pursuant to DB Contractor's obligations under this Contact, and, in each case,
available or applicable to this Contract are intended to apply to the full extent of the insurance
policies, and nothing contained in this Contract limits, or shall be deemed to limit, the application
of such insurance coverage.
(b) With the exception of any insurance required by a railroad, liability
insurance coverage shall not be limited to the specific location designated as the Site, except that
if DB Contractor arranges project -specific general liability, excess liability, or workers'
compensation coverage, limitations of coverage to the Site will be permitted subject to RCTC
approval and use of the broadest available site -specific endorsements. No liability policy shall
contain any provision or definition that would serve to eliminate so-called "third -party -over action"
claims, including any exclusion for bodily injury to an employee of the insured or of any
Subcontractor.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 75 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
11.1.3. No Recourse
There shall be no recourse against RCTC or Department for payment of premiums,
deductibles, or other amounts with respect to the insurance DB Contractor is required to provide
under this Contract, except for deductibles payable by RCTC as specified in this Contract.
11.1.4. Changes in Insurance Requirements
RCTC shall provide Notice to DB Contractor of any changes in the requirements to
insurance DB Contractor is required to provide under this Contract. Subject to Section 11.1.10(c),
any additional cost from such change shall be paid by RCTC and any reduction in cost shall
reduce the Contract Price pursuant to a Change Order.
11.1.5. Premiums, Deductibles and Self -Insured Retentions
(a) DB Contractor shall pay all insurance premiums required under this
Section 11.
(b) DB Contractor acknowledges and agrees that for each Claim made
against insurance policies provided under this Contract, with respect to all matters for which DB
Contractor is responsible under this Contract, DB Contractor shall be solely responsible for all
deductibles, self -insured retentions, and loss amounts in excess of the coverage limits provided.
(c) Any self -insured retentions maintained by DB Contractor over
$500,000 must be declared to and approved by RCTC; except that (i) self -insured retentions for
professional liability insurance shall be governed by Section 6 of Exhibit 12, and (ii) self -insured
retentions for commercial general liability insurance shall be governed by Section 1(d) of
Exhibit 12.
(d) In the event RCTC determines, in its good faith discretion, that
conditions exist that could result in substantial financial peril to DB Contractor, RCTC may, in its
good faith discretion, require DB Contractor to post collateral to RCTC guaranteeing payment of
losses and related investigations, claims administration, and defense expenses or require DB
Contractor to reduce the amount of self -insured retentions under the policies.
11.1.6. Required Endorsements or Policy Provisions
All insurance policies that DB Contractor is required to provide under this Contract shall
contain provisions or be endorsed to comply with the following requirements:
(a) Each of the Indemnified Parties, either through endorsement or policy
provision, shall be an insured under DB Contractor's and Subcontractors' commercial general
liability, automobile liability, umbrella or excess liability, pollution liability, and builder's risk
insurance policies. Insured status for Indemnified Parties under any commercial general liability
policy shall be as specified in Section 1(a) of Exhibit 12. Insured status for Indemnified Parties
under any builder's risk insurance policies shall be as specified in Section 7 of Exhibit 12.
(b) For Claims covered by the insurance required under this Contract, said
insurance coverage shall be primary insurance with respect to the insureds, additional insureds,
and their respective members, directors, officers, employees, agents, and consultants. Any
insurance or self-insurance beyond that required in this Contract that is maintained by an
Indemnified Party, their directors, officers, employees, agents, or consultants shall be excess of
such insurance required by this Contract and shall not contribute with it.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 76 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(c) The insurance shall apply separately to each insured and additional
insured against whom a claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
(d) Each insurance policy required under this Contract shall be endorsed
to state that coverage shall not be canceled or non -renewed except after providing to RCTC
30 days' prior Notice (or ten days' prior Notice in the case of cancellation for non-payment of
premium), and such endorsement shall not include any limitation of liability of the insurer for failure
to provide such Notice.
(e) Each policy shall provide coverage on an "occurrence" basis and not a
"claims made" basis (with the exception of professional liability), and no policy issued on an
occurrence basis shall have any sunset clause requiring reporting within a specified period of
time, except as specified for pollution liability policies in Section 4(e) of Exhibit 12.
11.1.7. Waivers
RCTC and DB Contractor waive all rights against each other, against each other's agents
and employees, and their respective members, directors, officers, employees, agents, and
consultants for any Third Party Claims to the extent covered by insurance obtained pursuant to
this Section 11 and Exhibit 12, except such rights as they may have to the proceeds of such
insurance. DB Contractor shall include similar waivers in all Subcontracts. Workers'
compensation policies must be endorsed to waive the insurer's right of subrogation for the parties
identified above. All other policies, except professional liability, shall waive any right of
subrogation by endorsement, or by policy provision that would allow the insured to waive its right
of recovery against the Indemnified Parties and their respective members, directors, officers,
employees, agents and consultants "before loss."
11.1.8. Verification of Coverage
(a) DB Contractor Policies
DB Contractor shall:
(i) Prior to its commencement of the applicable Work, cause each
Subcontractor to provide certificates of insurance and amendatory endorsements effecting
coverage required by this Section 11 and Exhibit 12 and maintain such evidence until the fifth
anniversary of the expiration of the last Warranty Period, at which time DB Contractor shall
forward to RCTC all collected evidence of insurance relating to the Project, or copies thereof; and
(ii) Permit, and cause each Subcontractor to permit, RCTC to
inspect any insurance policies that have not been delivered to RCTC; except that this requirement
shall not apply to the corporate or practice professional liability insurance policies of design
Subcontractors.
(b) Renewal Policies
DB Contractor shall promptly deliver to RCTC evidence of insurance
with respect to each renewal policy, as necessary to demonstrate the maintenance of the required
insurance coverages for the terms specified in this Contract. Such evidence shall be delivered to
RCTC not less than 15 Business Days prior to the expiration date of any policy, or such shorter
period as approved in advance by RCTC.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 77 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
11.1.9. Review of Coverage
(a) RCTC may at any time to review the coverage, form, and amount of
insurance required under this Section 11 and Exhibit 12, and may require DB Contractor to make
changes in such insurance reasonably sufficient in coverage, form, and amount to provide
adequate protection against the kind and extent of risk that exists at that time.
(b) RCTC may change the insurance coverages and limits required under
this Section 11 and Exhibit 12 by Notice to DB Contractor, whereupon DB Contractor shall, within
60 days of such Notice date, procure the additional and/or modified insurance coverages. Upon
such change, and except as provided in Section 11.1.10, any additional Cost from such change
shall be paid by RCTC and any reduction in Cost shall reduce the Contract Price pursuant to a
Change Order.
11.1.10. Commercial Unavailability of Required Coverages
(a) If, through no fault of DB Contractor, any of the coverages required in
this Section 11 or Exhibit 12 (or any of the required terms of such coverages, including policy
limits) become unavailable or are available only with commercially unreasonable premiums,
RCTC will consider in good faith alternative insurance packages and programs that DB Contractor
proposes, with the goal of reaching agreement on a package that provides coverage equivalent
to that specified in this Contract.
(b) DB Contractor shall demonstrate to RCTC's satisfaction that
DB Contractor used diligent efforts in the global insurance markets to place the required insurance
coverages, and shall advise RCTC of the specific results of those efforts.
(c) DB Contractor shall not be entitled to any increase in the Contract Price
for increased Costs resulting from the unavailability of coverage and the requirement to provide
acceptable alternatives. RCTC, however, may receive a reduction in the Contract Price if it
accepts alternative policies that provides less than equivalent coverage, with the amount of such
reduction to be determined by extrapolation using the insurance quotes included in the Escrowed
Proposal Documents (or based on other evidence of insurance premiums as of the Proposal Date
if the Escrowed Proposal Documents do not provide adequate information).
11.1.11. Notice of Prosecution of Claims
Responsibility for Notice and prosecution of Claims shall be in accordance with the
following provisions:
(a) To the extent permitted by applicable Governmental Rules, RCTC may
submit RCTC's Claims and tenders of defense and indemnity under applicable insurance policies.
Unless otherwise directed by RCTC by Notice with respect to RCTC's insurance Claims, DB
Contractor shall report and process all potential claims by RCTC or DB Contractor against the
insurance policies. DB Contractor agrees to report timely to the insurer(s) under such policies
any and all matters that may give rise to an insurance Claim by DB Contractor or RCTC, and to
promptly and diligently pursue such insurance Claims in accordance with the Claims procedures
specified in such policies, whether for defense or indemnity or both. DB Contractor shall enforce
all legal rights against the insurer under the applicable insurance policies and applicable
Governmental Rules in order to collect thereon, including pursuing necessary litigation and
enforcement of judgments.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 78 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(b) DB Contractor shall immediately provide Notice to RCTC, and
thereafter keep RCTC fully informed, of any incident, Claim, or other matter of which
DB Contractor becomes aware that involves or could conceivably involve an Indemnified Party
as a defendant. DB Contractor shall cooperate with RCTC and shall require its liability insurers
to agree in writing to work with RCTC to assure compliance with all requirements of the California
Government Claims Acts, Government Code sections 910, 911, 912, 913, and 945, regarding
timely response to claims.
(c) RCTC shall promptly provide Notice to DB Contractor of RCTC's
incidents, potential Claims against RCTC, and matters of which RCTC is actually aware and that
may give rise to an RCTC insurance claim, or to a right of defense and indemnification under
Section 23.1. Delivery of any such Notice will constitute a tender of RCTC's defense of the Claim
to DB Contractor and the insurer under any applicable insurance policies, subject to RCTC's
rights to control its own defense to the extent provided in Section 23.2 or by applicable
Governmental Rules. RCTC shall cooperate with DB Contractor as necessary for DB Contractor
to fulfill its duties under this Contract, including providing DB Contractor a copy of all written
materials RCTC receives asserting a claim against RCTC that is subject to defense by an insurer
under an insurance policy or by DB Contractor under Section 23.1.
(d) If an insurer providing any of the insurance policies required under this
Section 11 becomes the subject of bankruptcy proceedings, becomes insolvent, or is the subject
of an order or directive given by any Governmental Entity, including the State, limiting the insurer's
business activities, DB Contractor shall promptly secure alternative coverage that complies with
the insurance requirements in this Section 11, so as to avoid any lapse in insurance coverage.
11.1.12. DB Contractor's Failure to Comply
(a) If DB Contractor or any Subcontractor fails to provide and maintain
insurance as required in this Contract, then RCTC may purchase such insurance or suspend
DB Contractor's right to proceed with the Work until proper evidence of insurance is provided.
(b) Any amounts paid by RCTC pursuant to Section 11.1.12(a) (plus an
administrative charge equal to 10% of the cost) shall, at RCTC's sole option, be deducted from
amounts payable to DB Contractor, or reimbursed by DB Contractor upon demand. Nothing in
this Contract shall preclude RCTC from exercising its rights and remedies under Section 20 as a
result of the failure of DB Contractor or any Subcontractor to satisfy the obligations of this
Section 11 and Exhibit 12.
(c) If on account of DB Contractor's failure to comply with the provisions of
this Section 11 or Exhibit 12, RCTC is adjudged to be responsible for all or any portion of a
judgment, loss, or settlement (through admission or stipulation by DB Contractor or court decision)
that would have been covered by insurance but for non-compliance with this Section 11 or Exhibit
12, then any loss or damage RCTC sustains by reason thereof shall be borne by DB Contractor,
and DB Contractor shall immediately pay the same to RCTC, upon receipt of Notice and evidence
of such loss or damage.
(d) DB Contractor acknowledges and agrees that any actual or alleged
failure on the part of RCTC to inform DB Contractor of non-compliance with any requirement
imposes no additional obligations on RCTC nor does it waive any rights under this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 79 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
11.1.13. Subcontractor Insurance Requirements
(a) DB Contractor shall cause each Subcontractor to provide insurance
that complies with the requirements for DB Contractor -provided insurance in this Section 11 and
Exhibit 12 in circumstances where Subcontractor acts or omissions are not covered by
DB Contractor -provided insurance.
(b) Except as otherwise specified in this Section 11 or Exhibit 12,
DB Contractor has sole responsibility for determining the limits of coverage required to be
obtained by Subcontractors, which determination shall be made in accordance with reasonable
and prudent business practices.
(c) DB Contractor shall cause each such Subcontractor to include the
Indemnified Parties as additional insureds under such Subcontractor's general liability and excess
liability insurance policies.
(d) If requested by RCTC, DB Contractor shall promptly provide certificates
of insurance evidencing coverage for each Subcontractor. RCTC may contact the Subcontractors
directly in order to verify the above coverage. DB Contractor's determination of such insurance
shall not be interpreted as relieving DB Contractor or its insurer of any liability otherwise imposed
on DB Contractor or its insurers under this Contract.
11.1.14. Coverage to be Provided by DB Contractor During Warranty Period and
Plant Establishment Period
During the period from Project Completion and through the expirations of the Warranty
Period and Plant Establishment Period, DB Contractor shall continue to comply with insurance
requirements, which shall be the same as required during the period after issuance of NTP1 and
prior to issuance of NTP2, as specified in Sections 1 through 6 of Exhibit 12.
11.1.15. Disclaimer
(a) DB Contractor and each Subcontractor shall ensure that their insurance
programs fit their particular needs, and it is their responsibility to arrange for and secure any
insurance coverage they deem advisable, whether or not specified in this Contract, and to fulfill
their defense and indemnity obligations as specified under this Contract.
(b) RCTC makes no representation or warranty that the coverage, limits of
liability, or other terms specified for the insurance policies required under this Section 11 or Exhibit
12 are adequate to protect DB Contractor against its undertakings under this Contract or its liability
to any third party, nor shall the existence of any such terms preclude RCTC from taking any
actions as are available to it under this Contract or otherwise at law.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 80 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 12
SITE SECURITY; MAINTENANCE AND REPAIR; TITLE
12.1. Site Security
DB Contractor shall provide appropriate security for the Site, and shall take all reasonable
precautions and provide protection to prevent damage, injury, vandalism, theft and loss to the
Work, equipment and materials used to perform the Work, real property within the Site (including
all RCTC-Provided Property, Available Properties and Additional Properties) and other property
at or on the Site, whether owned, or under exercise of other real property rights, by DB Contractor,
RCTC, Department or any other third party.
12.2. Obligation to Maintain and Repair
12.2.1. Maintenance and Repair Liability
(a) Subject to DB Contractor's relief from maintenance responsibilities
under Section 12.2.3, DB Contractor shall:
(i) Perform Maintenance Work and Extra Maintenance Work within
the RCTC-Provided Property, in accordance with and during the time periods in TP Section 21.4;
(ii) Maintain and, as applicable, rebuild, repair, or replace Work
(including Design Documents, Construction Documents, materials, equipment, supplies, and
maintenance equipment purchased for permanent installation in, or for use during construction
of, the Project, and regardless of whether RCTC has title thereto) that is injured or damaged from
NTP1 until the Revenue Service Commencement Date for Work comprising the TCS
Infrastructure, and from NTP1 until Final Acceptance for all other Work;
(iii) Maintain and protect existing landscaping (including existing
trees, shrubs, lawns, and other plantings), replacement plantings, and irrigation systems within
the Site in accordance with and during the time periods in TP Section 20.4; and
(iv) Subject to DB Contractor's entitlement to additional
compensation or extension of time for Extra Maintenance Work, maintain and, as applicable,
rebuild, repair, or replace all other property (including structures, Utilities, curbs, walks, drives,
trees, shrubs, lawns, and landscaping) at or on the Site or affected by DB Contractor's activities,
whether owned by DB Contractor, RCTC, Department, or any other third party from the Effective
Date until Final Acceptance as provided in TP Section 21.4.5, Table 21-1.
(b) DB Contractor shall provide suitable drainage of the roadway and erect
temporary structures where necessary to protect the Work, and equipment and materials used to
perform the Work, from damage and loss. If any element of the Work is damaged, DB Contractor
shall rebuild, repair, or replace the damaged element to the condition this Contract requires for
initial construction of the element.
(c) DB Contractor shall provide guards, protection and covering as
necessary to protect third -party owned real property (including RCTC-Provided Property,
Available Property and Additional Property) and other property within, on, or adjacent to the Site,
and affected in connection with the Work but excluding the TCS Infrastructure. If any such third -
party owned real or other property is damaged (whether caused by a DB-Related Entity or arising
out of the Work) DB Contractor shall immediately provide Notice to the affected third party and to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 81 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
RCTC and, subject to Section 12.2.1(d), rebuild, repair, or replace, as applicable, the damaged
property to its condition before the damage.
(d) Where a Governmental Rule or preexisting agreement between the
third -party property owner and either RCTC or DB Contractor requires a different standard for
rebuilding or replacing damaged property, DB Contractor shall rebuild, repair, or replace the
damaged property to such different standard. If, however, the third -party property owner elects
to rebuild or repair the damaged property with its own forces, DB Contractor shall pay such party
to perform that work.
(e) If DB Contractor fails to comply with the requirements of
Section 12.2.1(c) through 12.2.1(d), RCTC may take action under Section 7.4.7 as if the work
was a Nonconformance.
(f) If ordered by RCTC, DB Contractor shall properly store materials that
have been partially paid for by RCTC. Storage by DB Contractor shall be on behalf of RCTC;
RCTC shall at all times be entitled to the possession of the materials; and DB Contractor shall
promptly return the materials to the Site when requested by RCTC. DB Contractor shall not
dispose of any of the materials so stored except with RCTC's prior, written consent.
12.2.2. Use of Insurance Proceeds
(a) If insurance proceeds with respect to any loss or damage are paid to
RCTC under any insurance policies required to be provided under this Contract, then RCTC shall
arrange for such proceeds to be paid to DB Contractor as rebuild, repair or replacement work is
performed by DB Contractor to the extent that RCTC has not previously paid for such rebuild,
repair or replacement work.
(b) Release of proceeds to DB Contractor under Section 12.2.2(a) is not a
condition precedent to DB Contractor performing such repair, rebuild or replacement work or an
indication that such rebuild, repair or replacement work has been approved and accepted by
RCTC, and DB Contractor shall remain obligated to pay deductibles and self -insured retentions
as specified in Section 11.
12.2.3. Relief from Maintenance Liability
(a) Effective as of the Revenue Service Commencement Date,
DB Contractor shall be relieved of maintenance liability for the TCS Infrastructure and all other
elements of the Project that comprise the Toll Facilities and which are then placed in full
operations and service, which decision shall be subject to RCTC's good faith discretion.
(b) All remaining elements of the Work (except for Plant Establishment
Work) and remaining portions of the RCTC-Provided Property shall be considered accepted for
maintenance purposes, and relief from maintenance responsibility for DB Contractor shall occur,
as of the Final Acceptance Date.
(c) Upon expiration of the Plant Establishment Period, DB Contractor shall
be relieved of responsibility for Plant Establishment Work.
(d) Notwithstanding the foregoing, all elements of the Work and portions of
the RCTC-Provided Property that will be owned by Persons other than RCTC or Department
(such as Utility facilities or Local Agencies) will be considered accepted for maintenance purposes
only as of the date of acceptance of maintenance responsibilities by such Persons.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 82 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
12.2.4. Extension of Maintenance and Repair Obligation
RCTC may require DB Contractor to continue to maintain, rebuild, repair or replace Work
accepted by RCTC by way of a Change Order or Directive Letter under Section 16.4. Any RCTC-
Directed Change extending DB Contractor's obligations to maintain, rebuild, repair and replace
Work shall include a requirement to provide performance security separate from the Bonds
described in Section 10.1 and extensions of certain insurance coverages described in Section 11
and Exhibit 12 (Insurance Policy Requirements). Notwithstanding the RCTC-Directed Change,
DB Contractor shall be entitled to release of each Performance Bond and Payment Bond in
accordance with the terms of those instruments and Section 10.1, provided that (a) DB Contractor
has otherwise satisfied all conditions to the release of the Payment Bond and Performance Bond
but for the addition of the extended maintenance, rebuild, repair and replacement obligations
directed by RCTC, and (b) DB Contractor has provided separate performance security for the
extended maintenance, rebuild, repair and replacement obligations in form, amount and
substance satisfactory to RCTC and such security will remain in effect after the release of the
Payment Bond and Performance Bond.
12.3. Title
(a) DB Contractor warrants that it owns, or will own, and has, or will have,
good and marketable title to all materials, equipment, tools and supplies provided, or to be
provided, by it and its Subcontractors that become part of the Project or are purchased for RCTC
for the operation, maintenance, rebuild, repair or replacement thereof, free and clear of all Liens.
(b) Title to all such materials, equipment, tools and supplies delivered to
the Site shall pass to RCTC, free and clear of all Liens, upon the sooner of (i) incorporation into
the Project, (ii) payment by RCTC to DB Contractor of invoiced amounts pertaining to such
materials, equipment, tools and supplies; and (iii) acceptance by RCTC.
(c) Notwithstanding any such passage of title, DB Contractor shall retain
sole care, custody and control of, and risk of loss with respect to, such materials, equipment, tools
and supplies and shall exercise due care with respect thereto until Final Acceptance or until DB
Contractor is removed from the Project.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 83 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 13
WARRANTIES AND NONCONFORMANCES DURING THE WARRANTY PERIOD
13.1. DB Contractor Warranties
13.1.1. General Warranty
DB Contractor warrants that:
(a) All Design Work furnished under this Contract shall conform to Good
Industry Practice and shall comply with the applicable requirements of this Contract;
(b) The Project and the Work shall be free of Nonconformances;
(c) Materials furnished by or on behalf of any DB-Related Entity under this
Contract shall be of good quality and shall be new when installed;
(d) Equipment furnished by or on behalf of any DB-Related Entity shall be
of modern design and in good working condition;
(e) The Work shall be free of Deviations that do not constitute RCTC
approved Deviations;
(f)
Contract; and
The Work shall meet all of the requirements and warranties of this
(g) The Construction Work shall be fit for use for the purposes and
requirements set out in this Contract.
13.1.2. Warranty Period
(a) Subject to Sections 13.1.2(b) and 13.1.2(c), the original Warranty
Period during which each element of the Project shall meet the General Warranty is as follows:
(i) For each element of the Project, except elements that will be
owned by Persons other than RCTC and/or Department (e.g., Utility Owners and Local Agencies),
the Warranty Period commences upon Project Completion and ends two years after the Project
Completion Date; and
(ii) For each element of the Project that will be owned by Persons
other than RCTC and/or Department (e.g., Utility Owners and Local Agencies), the Warranty
Period commences upon acceptance of the element by the Person that will own such element
and ends two years after such acceptance, or, in the case of Relocations, for such longer term
required by the applicable Utility Agreement(s).
(b) For each element of the Project subject to Warranty Work, the Warranty
Period for that element shall extend beyond the original Warranty Period, if necessary, to provide
at least a two-year Warranty Period after acceptance of the Warranty Work; except that no
Warranty Period shall exceed three years after the Project Completion Date.
(c) If this Contract is terminated for any reason prior to Substantial
Completion, then a two-year Warranty Period shall apply to the elements of the Project completed
or provided in accordance with the requirements of this Contract on or prior to such termination.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 84 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
For such elements, the Warranty Period shall commence upon the Termination Date and end two
years after the Termination Date.
(d) At the completion of the Warranty Period, DB Contractor shall assign
and transfer to RCTC all unexpired warranties on equipment, materials or otherwise relating to
the Work.
13.1.3. Nonconformances during the Warranty Period; Warranty Work
(a) If RCTC determines within the applicable Warranty Period that any of
the Work does not meet the General Warranty, then, subject to Section 7.4.8, DB Contractor shall
perform the Warranty Work necessary to remedy such Work as specified in Section 13.1.3(b),
even if performance of such Warranty Work extends beyond the applicable Warranty Period.
(b) To the extent applicable, the provisions in Sections 7.4.6 through 7.4.8
regarding notice and remedy of Nonconformances prior to Project Completion, shall apply to
Warranty Work, except that if DB Contractor fails to remedy Nonconformances in accordance with
Section 7.4.7, RCTC may, without limiting its rights under Section 14.3.2, make a claim under any
Bond, or draw on any certificate of deposit, letter of credit, or other security provided by DB
Contractor pursuant to this Contract to satisfy such amounts.
(c) RCTC and DB Contractor shall conduct a walkthrough of the Site prior
to expiration of the applicable Warranty Period and produce a punch list of Nonconformances that
require Warranty Work.
13.2. Subcontractor Warranties
13.2.1. Warranty Requirements
(a) Without in any way derogating the General Warranty and DB
Contractor's own representations and warranties and other obligations with respect to the Work,
DB Contractor shall obtain from all Subcontractors for periods at least coterminous with the
Warranty Period and cause to be extended to RCTC and Department, appropriate
representations, warranties, guarantees and obligations with respect to design, materials,
workmanship, equipment, tools and supplies provided by such Subcontractors to comply with this
Section 13.
(b) Subject to Section 13.2.1(c), DB Contractor shall cause Subcontractor
warranties to be extended and enforceable by:
(i) RCTC and Department and any other parties for whom Work is
being performed or equipment, tools, supplies or software is being supplied by such
Subcontractor; and
(ii) Local Agencies and Utility Owners, with respect to those
portions of the Work owned or controlled by each such Person, respectively provided such
enforcement shall not exceed, RCTC and Department's applicable rights under this
Section 13.2.1(b).
(c) Section 13.2.1(b) shall not apply to standard, pre -specified
manufacturer warranties of mass -marketed materials, products (including software products),
equipment or supplies where the warranty cannot be extended to RCTC using commercially
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 85 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
reasonable efforts. RCTC agrees to forebear from exercising remedies under any such warranty
so long as DB Contractor is diligently pursuing remedies thereunder.
(d) All representations, warranties, guarantees and obligations of
Subcontractors (i) shall be written so as to survive all RCTC and Department inspections, tests
and approvals under this Contract, and (ii) shall run directly to and be enforceable by DB
Contractor, Department and/or RCTC and their respective successors and assigns.
(e) DB Contractor assigns to RCTC and Department all of DB Contractor's
rights and interest in all extended warranties DB Contractor receives from any of its
Subcontractors for periods exceeding the applicable Warranty Period. To the extent that any
Subcontractor warranty would be voided by reason of DB Contractor's negligence or failure to
comply with this Contract in incorporating material or equipment into the Work, DB Contractor
shall remedy such Nonconformance to preserve such Subcontractor warranty.
(f) Except with respect to extended warranties under Section 13.2.1(e)
after expiration of the Warranty Period, if RCTC or Department provides Notice of a failure of any
of the Work to satisfy any Subcontractor warranty, representation, guarantee, or obligation, DB
Contractor shall enforce or perform any such representation, warranty, guaranty, or obligation for
the duration of the applicable warranty (including correcting any Nonconformances).
13.3. No Limitation of Liability
(a) The General Warranty and Subcontractor warranties are in addition to
all rights and remedies available under this Contract or applicable law or in equity, and, subject
to the limitation on punitive, indirect, incidental, or consequential damages in Section 22.2.1, shall
not relieve DB Contractor of any liability or responsibility imposed by this Contract or applicable
law with respect to the Work, including liability for design defects, latent construction defects, strict
liability, breach, negligence, willful misconduct or fraud.
(b) The fact that RCTC may not have discovered any Nonconformance
prior to Final Acceptance shall not constitute an acceptance of such Nonconformances.
13.4. Damages for Breach of Warranty and Other Rights at Law / Equity
Subject to Section 22, RCTC and Department may pursue any remedies available at law or in
equity against DB Contractor and the DB-Related Entities for (a) Nonconformances, including
design defects and latent construction defects; and (b) breach of an express or implied warranty,
Subcontractor warranty or the General Warranty, including the cost of performance of such
obligations by others.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 86 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 14
PAYMENT FOR SERVICES
14.1. Contract Price
14.1.1. Fixed Price
Except as set out in Section 14.1.2, and as otherwise expressly provided in Section 16:
(a) The complete compensation payable by RCTC to DB Contractor under
this Contract is the Contract Price; and
(b) The Contract Price shall not be modified.
14.1.2. NTP1 Work; Delay in Issuance of NTP2
(a) Subject to Section 19, DB Contractor acknowledges and agrees that
the amount of funds available to pay for Work performed prior to issuance of NTP2 is limited to:
(i) $1,400,000 for performance of NTP1 Submittals, to be paid in
accordance with the NTP1 Payment Schedule; plus
(ii) $3,500,000 for performance of NTP Design and Geotechnical
Work, to be paid in accordance with the NTP1 Payment Schedule; plus
(iii) $4,700,000 for mobilization (including NTP1 Mobilization Work)
to be paid in accordance with Section 14.3.5(a)(i); plus
(iv) Premiums for bonds and insurance associated with NTP1 Work
to be paid accordance with Section 14.3.6.
(b) RCTC has no obligation to make any payments to DB Contractor in
excess of the amounts specified under Section 14.1.2(a), until such time (if any) as NTP2 is
issued.
(c) If NTP1 has not been issued by 210 days after the Proposal Date and
such delay is not caused in whole or in part by any act or omission of any DB-Related Entity or
any DB Contractor Fault, then the Contract Price (less any amounts previously earned or paid)
shall be adjusted based on the change in the three-year rolling average of the monthly ENR
Los Angeles Construction Cost Index (CCI), by adding or subtracting the product of the following
from the Contract Price:
D = (Contract Price (less any amounts previously earned or paid))
* ([A-B]/B)
where:
"D" is the adjustment amount;
"A" is the average of the ENR Los Angeles CCI published during
the 36-month period preceding the date of issuance of NTP1
(i.e., the amount determined by taking the average of the index
most recently published as of the date of the NTP1, the index most
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 87 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
recently published as of the date one month prior to that date, etc.);
and
"B" is the average of the ENR Los Angeles CCI published during
the 36-month period preceding the date that is NTP1 plus 210 days.
For example, if the Proposal Date was November 20, 2019, the date for commencement of
escalation would be August 16, 2020. Assuming (a) the as -proposed Contract Price (less any
amounts previously earned or paid) is $100,000,000, (b) NTP1 is issued on November 1, 2020,
(c) the average monthly ENR Los Angeles CCI for the 36-month period ending August 16, 2020
was 7500, and (d) the average monthly ENR Los Angeles CCI published for the 36-month period
ending November 1, 2020 was 7875, then the price adjustment amount would be:
D = $100,000,000 x (([7875-7500]/7500)) = $5,000,000
Accordingly, the Contract Price of $100,000,000 would be increased to $105,000,000 as a result
of the delay in issuance of NTP1.
(d) Any Contract Price increase under this Section 14.1.2 shall be
amortized proportionally over all Work at issue, and shall be evidenced by a Change Order
accompanied by a revised Project Schedule and otherwise in accordance with Section 16.
14.2. Invoicing and Payment
The Contract Price shall be invoiced and paid in accordance with the following process.
14.2.1. NTP1 Work
RCTC will pay DB Contractor for NTP 1 Work no more often than once monthly after NTP
1 and only based on the following:
(a) For NTP 1 Submittals in the NTP1 Payment Schedule (Exhibit 10-A),
RCTC will pay DB Contractor the amounts in the corresponding line items for Submittals in the
NTP1 Payment Schedule (Exhibit 10-A) subject to complete submission to and approval by RCTC
of the Submittals for which DB Contractor is requesting payment;
(b) For NTP1 Mobilization Work, RCTC will pay DB Contractor in
accordance with Section 14.3.5(a)(i); and
(c) For bond and insurance premiums for NTP1 Work, RCTC will pay DB
Contractor in accordance with Section 14.3.6(a)(i).
14.2.2. Draft Invoice and Progress Meeting
(a) On or before the 25th day of each month following the issuance of NTP1,
DB Contractor shall deliver to RCTC a draft invoice for that month ("Draft Invoice"), or other
RCTC-approved form, including:
(i) The portion of the Contract Price allocable to the Work actually
performed by DB Contractor in accordance with this Contract during the month, and due in
accordance with the most recent Monthly Progress Schedule, as of the date of the most recent
Progress Meeting;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 88 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) The Monthly Progress Report described in TP Section 2.5.3;
(iii) An Invoice Certificate certified by DB Contractor, signed and
sealed by DB Contractor's Representative, with no additions or deletions other than those
approved by RCTC;
(iv) In the case of amounts to be paid on a unit price basis, invoices,
receipts or other evidence establishing the number of units delivered;
(v) In the case of amounts invoiced for Time and Materials Work,
all supporting documentation described in Section 16.10;
(vi) The amounts paid to Subcontractors (including Suppliers) from
the payments made by RCTC to DB Contractor with respect to the prior month's invoice;
(vii) Affidavits of payment and unconditional waivers of Liens and
claims, in the applicable forms required under Civil Code sections 8132 and 8138, executed by
DB Contractor and each Subcontractor with respect to all amounts paid in the prior month's
invoice;
(viii) In the case of invoices that cover Utility Work, documentation
as required by TP Section 7.2.7.2. Such invoices shall also separately identify the total amount
due for (a) Utility Betterments, and (b) any other Work for which the Utility Owner has Cost
Liability;
(ix) Subcontractor payment releases in the form required in Civil
Code sections 8132 through 8138;
(x) Documentation showing that materials being invoiced meet or
exceed the applicable requirements of the Quality Management Plan (e.g., sampling/testing
frequency, Buy America Certification, etc.);
(xi) Any other Submittals that this Contract require to be included
with invoice packages;
(xii) Any amounts otherwise payable in accordance with this
(xiii) All materials, reports, schedules, certifications and other
submittals identified in TP Sections 2.5.3 and 4.3.3; and
Contract;
(xiv) Any supporting documentation reasonably requested by RCTC
to enable RCTC to fully and accurately determine (without needing to refer to any other
documentation or information) the amounts payable by RCTC to DB Contractor.
(b) Each Progress Meeting shall be attended by DB Contractor and RCTC
and/or its consultants and may also be attended by Department.
(c) At each Progress Meeting, DB Contractor's and RCTC's
Representatives shall:
(i)
Ascertain the progress of the Work;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 89 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) Review the Draft Invoice reflecting the value of Work completed
as of the date of the Progress Meeting based on:
(1) Completed and approved Submittals for NTP1 Work;
(2) Quantities and unit prices for unit priced Work;
(3) Time and materials for Time and Materials Work; and
(4) For all other Work, based on the percentage completion
of Project Schedule activities and the values distributed to such activities; and
(iii) Sign the Draft Invoice, indicating the portions of it that have
been approved and the proposed total payment amount, which shall be the approved value of the
Work then completed, based on the factors in Section 14.2.2(c)(ii), less Retainage and progress
payments previously made.
(d) If DB Contractor fails to submit the Monthly Progress Report by the time
required under Section 14.2.2(a), RCTC may, in addition to any other withholdings, withhold up
to 5% from each progress payment until RCTC receives the Monthly Progress Report.
14.2.3. Delivery of Invoice
(a) Within seven days after each Progress Meeting, DB Contractor shall
submit to RCTC five copies of an updated Invoice. Each Invoice shall be based upon the Draft
Invoice signed under Section 14.2.2(c)(iii) and may not include any amounts not approved by
RCTC in the Progress Meeting reviewing the Draft Invoice, except for modifications as appropriate
to account for unit priced, and for Time and Materials Work completed during the remainder of
the Month.
(b) DB Contractor acknowledges that RCTC will obtain funding for portions
of the Work from various sources, and agrees to segregate billings for all such Work in a format
reasonably requested by RCTC and with detail and information as reasonably requested by
RCTC.
(c) Within ten Business Days after RCTC's receipt of the Invoice, RCTC:
(i) Will review the Invoice for consistency with the Draft Invoice
signed under Section 14.2.2(c)(iii) and compliance with this Contract;
(ii) Shall Notify DB Contractor of the amount approved for payment
and specify the reason for disapproval of any remaining amounts in the Invoice; and
(iii) DB Contractor may include any disapproved amounts under
Section 14.2.3(c)(iii) in the next month's Draft Invoice and Invoice (as applicable) after correction
of the deficiencies noted by RCTC (all such disapproved amounts shall be deemed in dispute
unless otherwise agreed).
14.2.4. Payment by RCTC
(a) Within 30 days after RCTC's receipt of a complete Invoice or
Application for Final Payment in accordance with Section 14.4, RCTC shall pay DB Contractor
the amount of the invoice or Application for Final Payment approved for payment less any
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 90 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
applicable Retainage and less any amounts that RCTC is otherwise entitled to withhold or deduct
under this Contract.
(b) For Work authorized by NTP1, RCTC has no obligation to pay
DB Contractor any amount that would result in: (i) payment for any activity or Submittal prior to its
completion and approval by RCTC, as provided in Section 14.2.1; or (ii) aggregate payments for
Work authorized by NTP1 that exceed the maximum limit specified in Section 14.1.2(a).
(c) For Work authorized by NTP2, RCTC has no obligation to pay DB
Contractor any amount that:
(i) Results in payment for any activity in excess of the value of the
activity times the completion percentage of such activity (for non -unit priced Work);
(ii) Was not approved by RCTC under Section 14.2.3(c); or
(iii) Results in aggregate payments under this Contract in excess of
the overall completion percentage for the Project multiplied by the Contract Price (for non -unit
priced Work), plus amounts allowed by Change Orders.
14.3. Deductions, Exclusions and Limitations on Payment
14.3.1. Retainage
(a) RCTC shall withhold funds ("Retainage") from each payment to be
made to DB Contractor under Section 14.2.4 until DB Contractor achieves Substantial
Completion, and thereafter shall cease withholding Retainage from future payments other than
payment for Plant Establishment Work. The Retainage shall be an amount equal to 5% of the
payment amount.
(b) Except as otherwise provided in Section 14.3.1(c), no portion of the
Retainage shall be released until the following conditions have been met:
(i) All Liquidated Damages, Lane Closure Charges and Flagging
Charges have been paid to RCTC in accordance with this Contract;
(ii) DB Contractor has established to RCTC's satisfaction that
Liquidated Damages, Lane Closure Charges and Flagging Charges are not anticipated to be
owing to RCTC;
(iii) DB Contractor has provided Notice requesting release or
Retainage;
(iv) No Event of Default has occurred or remains uncured, and no
event has occurred that, with the passage of time or the giving of notice, would constitute an Event
of Default; and
(v) Release or Retainage has been approved in writing by each
Surety.
(c) RCTC shall release Retainage withheld for Work completed by any
Subcontractor, once per fiscal quarter upon receipt of a quarterly application from DB Contractor
(i) stating the Subcontractor has satisfactorily completed all Work required to be performed under
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 91 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
its Subcontract, (ii) stating the amount withheld by DB Contractor under the Subcontract, and (iii)
providing all backup information and stop payment notice and Lien releases as may be required
by RCTC.
(d) Within seven days after receipt of payment of Retainage from RCTC to
DB Contractor for completed subcontracted Work, DB Contractor shall pay to the applicable
Subcontractor (i.e., the Subcontractor that completed the subcontracted Work) all moneys
withheld as retention from the Subcontractor, even if Work to be performed by DB Contractor or
other Subcontractors is not completed and has not been accepted. DB Contractor must show
good cause and obtain RCTC's prior written consent for any delay or postponement in payment
of retainage over 30 days.
(e) Subject to Section 14.3.1(f), RCTC shall release:
(i) 50% of the Retainage less the total amount of prior releases
(bringing the total withholding to 50% of the value of the total Retainage) 30 days after Substantial
Completion;
(ii) An additional portion of Retainage 30 days after Project
Completion to bring the total withholding to 25% of the value of the total Retainage; and
(iii) All remaining Retainage on the date that Final Payment is due
under the Contract other than payment for Plant Establishment Work and 150% of estimated
amounts to pay:
(f) The amounts to be released under Section 14.3.1(e) shall be reduced
by 150% of the sum of (i) any amounts which RCTC is required to retain under Public Contract
Code section 9203, (ii) amounts applied to the payment of Losses incurred by RCTC for which
DB Contractor is responsible, (iii) amounts that ROTC deems advisable, in its good faith
discretion, to retain to cover any existing or threatened claims, Liens and stop payment notices
from Subcontractors, Suppliers, laborers, Utility Owners, BNSF or other third parties relating to
the Project, (iv) the estimated cost, as determined by RCTC, in its good faith discretion, of
remedying any Nonconformances or otherwise remedying any breach of contract or Event of
Default by DB Contractor, (v) amounts RCTC is required to retain under applicable federal law,
including 26 U.S.C. § 3402, and (vi) any Liquidated Damages, Lane Closure Charges or Flagging
Charges.
(g) Final payment of Retainage not applied as a result of Section 14.3.1(f)
shall be made upon DB Contractor's showing, to RCTC's satisfaction, that all such matters have
been resolved, and DB Contractor shall deliver to RCTC a certificate representing that there are
no outstanding Claims of DB Contractor or any Claims, Liens or stop payment notices of any
Subcontractor, Supplier, laborer, Utility Owner or other third party with respect to the Work.
(h) RCTC shall release payment for Plant Establishment Work in
accordance with Section 14.3.8.
(i) DB Contractor may substitute securities or a letter of credit for the
Retainage pursuant to the procedures contained in Public Contract Code section 22300. No such
substitution shall be accepted until: (i) RCTC approves such securities or letter of credit as
qualifying substitutes; (ii) the value of such securities has been established to RCTC's
satisfaction; (iii) the Parties have entered into an escrow agreement (if the securities are to be
held in escrow) in form substantially similar to that contained in Public Contract Code
section 22300; (iv) and all documentation necessary for assignment of the securities to RCTC or
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 92 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
to the escrow agent, as appropriate, has been delivered in form and substance satisfactory to
RCTC. If DB Contractor has substituted securities for any of the Retainage, then RCTC may
request that such securities be revalued from time to time, but not more often than monthly. Such
revaluation would be made by the Person designated by RCTC and approved by DB Contractor.
If such revaluation results in a determination that such securities have a market value less than
the amount of Retainage for which they were substituted, then, notwithstanding anything to the
contrary contained in this Contract, the amount of the Retainage required under this Contract shall
be increased by such difference in market value. Such increased Retainage shall be withheld
from the next progress payment due to DB Contractor under this Contract.
14.3.2. Withholding of Payment
Notwithstanding any other provision of this Contract and in addition to the deductions
provided for under Section 14.3.1, RCTC may deduct from any payment owing under this
Contract:
(a) Any debt, charge, payment, reimbursement or other moneys due from
DB Contractor to RCTC, whether under this Contract, under applicable Governmental Rules or in
equity, including Liquidated Damages, Lane Closure Charges or Flagging Charges, that have
accrued as of the date of the Invoice or Application for Final Payment, or that are anticipated to
accrue based on the Completion Deadlines shown in the Project Schedule;
(b) Any Claim that RCTC or others as specified below may have against
DB Contractor including;
(i) Failure of DB Contractor to make payments of undisputed
amounts to a Subcontractor when such payments are due under the Subcontract, which failure is
not cured by DB Contractor; and
(ii) Third Party Claims for which DB Contractor is responsible under
this Contract;
(c) If a notice to stop payment is filed with RCTC, due to DB Contractor's
failure to pay for labor or materials used in the Work, money due for such labor or materials, plus
the 25% prescribed by law, will be withheld from payment to DB Contractor. In accordance with
Civil Code section 9364, RCTC may accept a bond by a corporate surety in lieu of withholding
payment;
(d) Any sums expended by or owing to RCTC as a result of DB Contractor's
failure to maintain the As -Built Documents;
(e) Any sums expended by RCTC in performing any of DB Contractor's
obligations under this Contract that DB Contractor has failed to perform or that RCTC may elect
to undertake itself plus an administrative charge equal to 10% of such costs;
(f)
removes Work;
Any sums for a Change Order that decreases, omits, deletes or
(g) Any sums for Nonconformances that are not timely remedied by DB
Contractor pursuant to the terms of this Contract; and
(h) All legally required sums for, but not limited to stop notices, labor and
tax Liens, including any fines or penalties RCTC or Department incurs because of the failure or
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 93 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
alleged failure by any DB-Related Entity to comply with the Governmental Approvals or
Governmental Rules (including any Environmental Laws).
The failure by RCTC to deduct any of these sums from any payment shall not constitute
a waiver of RCTC's rights (i) to such sums or (ii) with respect to any breach or default related
thereto. When the reasons for deducting, offsetting or withholding payment are removed, RCTC
shall pay DB Contractor for amounts previously deducted as part of the next monthly payment.
14.3.3. Interest
(a) Any amounts that DB Contractor owes to RCTC under this Contract
shall earn interest from the date such amounts are due to RCTC at the lesser rate of (i) 10% per
annum, and (ii) the maximum rate allowable under applicable Governmental Rules.
(b) Except with respect to Claims under Section 24, if payment of any
undisputed amount from RCTC to DB Contractor is made after the 30th day following the proper
submission of an undisputed and properly complete Invoice, then the payment shall include
interest on the amount owing, at the rate in Code of Civil Procedure section 685.010(a), from the
30th day after the payment was due until the date of payment.
(c) Interest shall not accrue on Retainage or monies withheld pursuant to
stop notices or the final payment.
14.3,4, Unincorporated Materials
RCTC will not pay for materials not yet incorporated in the Work unless the following
conditions are met:
(a) Material shall be delivered to the Site, or delivered to DB Contractor
and promptly stored by DB Contractor in bonded storage at a location approved by RCTC, in its
reasonable discretion. DB Contractor shall submit certified bills for such materials with the
Invoice, as a condition to payment for such materials. RCTC shall allow and pay only such portion
of the amount represented by these bills as in its opinion is consistent with the reasonable cost of
such materials. If such materials are stored at any site not approved by ROTC, DB Contractor
shall accept responsibility for and pay all personal and property taxes that may be levied against
RCTC by any state or subdivision thereof on account of such storage of such material. RCTC
will permit DB Contractor, in good faith, to contest the validity of any such tax levied against RCTC
in appropriate proceedings and in the event of any judgment or decree of a court, DB Contractor
agrees to pay same together with any penalty or other costs, relating thereto.
(b) DB Contractor shall promptly execute, acknowledge and deliver to
RCTC proper bills of sale or other instruments in writing in a form acceptable to RCTC conveying
and assuring to RCTC title to such material included in any Invoice, free and clear of all Liens, as
and when title passes under Section 12.3 for any materials delivered to Site. DB Contractor shall
conspicuously mark such material as the property of RCTC, shall not permit such materials to
become commingled with non-RCTC-owned property and shall take such other steps, if any, as
RCTC may require or regard as necessary to vest title to such material in RCTC free and clear of
Liens.
(c) Material included in an Invoice but which is subsequently lost, damaged
or unsatisfactory shall be deducted from succeeding Invoices.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 94 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(d) Payment for material provided and delivered as indicated in this
Section 14.3.4 will not exceed the amount paid by DB Contractor as evidenced by a bill of sale
supported by the paid Invoice. RCTC shall withhold Retainage from such payment as specified
in Section 14.3.1.
14.3.5. Payment for Mobilization
(a) RCTC shall pay DB Contractor for mobilization an amount equal to the
amount set out in Exhibit 2 (Contract Particulars), not to exceed $14.8 million. This amount shall
be fixed and paid in installments as follows:
(i) The first $4.7 million for NTP1 Mobilization Work shall be paid
in three consecutive monthly installments of equal amounts, commencing with RCTC's first
payment to DB Contractor after issuance of NTP1;
(ii) The second payment shall be made after issuance of NTP2 in
an amount not to exceed $3 million, payable when 5% of the Contract Price is earned on items
other than mobilization;
(iii) The third payment shall be made after issuance of NTP2 in an
amount not to exceed $2.5 million, payable when 7.5% of the Contract Price is earned on items
other than mobilization; and
(iv) The fourth payment shall be made after issuance of NTP2 in an
amount not to exceed $1.1 million, payable when 10% of the Contract Price is earned on items
other than mobilization.
14.3.6. Payment for Bond and Insurance Premiums
(a) RCTC shall reimburse DB Contractor for bond and insurance premiums
set forth in the Proposal. Any additional bond and insurance premiums with respect to Work
performed under a Change Order (whether it is a reduction or increase) will be paid on the basis
of the amount actually paid, without markup and not to exceed the amount set out in Exhibit 2
(Contract Particulars). DB Contractor shall invoice such pass -through amounts as follows:
(i) For the portion of the Contract Price allocated to bond and
insurance premiums for NTP1 Work, no earlier than the first Invoice following NTP1;
(ii) For the portion of the Contract Price allocated to bond and
insurance premiums for NTP2 Work, no earlier than the first Invoice following NTP2; and
(iii) Except for any Work performed with respect to a Change Order,
any excess portion of the insurance premiums actually paid, without markup shall be payable
following Substantial Completion provided such amounts do not exceed the amount set out in
Exhibit 2 (Contract Particulars).
14.3.7. Payment for As -Built Documents
DB Contractor shall not be entitled to payment for the last $824,200 until As -Built
Documents have been delivered to RCTC and approved by RCTC.
14.3.8. Payment for Plant Establishment Work
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 95 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
RCTC shall retain from payment to DB Contractor an amount equal to $200,000 until the
end of the Plant Establishment Period and RCTC's receipt of a certification from DB Contractor
representing that there are no outstanding Claims of DB Contractor or any claims, Liens or stop
payment notices of any Subcontractor, Supplier, laborer or third party with respect to the Plant
Establishment Work.
14.3.9. Payment for Equipment
RCTC shall not pay for direct costs of equipment. Costs of equipment, whether new, used,
or rented, and to the extent not included in the mobilization payments under Section 14.3.5, shall
be allocated to and paid for as part of the activities with which the equipment is associated, in a
manner which is consistent with the requirements of Section 16.10.3.
14.3.10. DB Contractor Payment for Department furnished materials
DB Contractor shall pay RCTC for all Department furnished materials in accordance with
Section 6-1.02 of the Modified Standard Specifications.
14.4. Final Payment
14.4.1. Final Payment for all Work, other than Plant Establishment Work, shall not
become due to DB Contractor under this Contract until DB Contractor submits to RCTC the
Application for Final Payment showing the proposed total amount due to DB Contractor, including
Retainage. The Application for Final Payment shall include:
(a) All requirements for Invoices under Section 14.2.2;
(b) A list of all outstanding or pending DB Contractor Change Requests
and all existing or threatened claims, Liens and stop payment notices by Subcontractors, Utility
Owners, BNSF, or other third parties relating to the Project, including any notices filed or to be
filed with the Affidavit of Final Acceptance, stating the amount at issue associated with each such
notice;
(c) Complete and legally effective releases or waivers of Liens and stop
payment notices, in the applicable forms required under Civil Code sections 8132 through 8138,
from all Persons legally eligible to file Liens and stop payment notices in connection with the Work;
except that, as applicable, DB Contractor may provide release bonds, or other security acceptable
to RCTC, in amounts equal to 125% of amounts claimed in any stop payment notices filed in
connection with the Project;
(d) Consent of any Guarantors and Surety(ies) to the Final Payment;
(e) An executed release from DB Contractor for any Claims that arise in
connection with the Work that survives the Final Payment, including an express and unconditional
waiver and release sufficient to waive any rights and benefits DB Contractor may have pursuant
to section 1542 of the Civil Code, which shall release and waive any Claims against the
Indemnified Parties, excluding only those matters identified in any Change Notices listed as
outstanding in the Application for Final Payment and any Claims for unpaid amounts owing under
this Contract relating to Plant Establishment Work and Warranty Work. The release shall be
accompanied by an affidavit from DB Contractor certifying that:
(i) All Work has been performed in accordance with this Contract;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 96 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) It has resolved any Claims made by Subcontractors, Utility
Owners, BNSF and others against DB Contractor or the Project;
(iii) It has no reason to believe that any Person has a valid Claim
against DB Contractor or the Project which DB Contractor has not provided Notice of to RCTC as
of the date of the certificate; and
(iv) All guarantees, the General Warranty and Subcontractor
warranties are in full force and effect.
(f) Bills of sale or other instruments of title transfer or assignment with
respect to Intellectual Property (excluding Proprietary Intellectual Property), as requested by
RCTC, free and clear of liens, claims and encumbrances;
(g) Affidavits of prevailing wages paid, signed and submitted by DB
Contractor and each Subcontractor required to submit such an affidavit under Labor Code
section 1775(b)(4) in the form required under Governmental Rules or Project Standards;
(h) Assignment to RCTC of all right, title and interest in and to all claims
and causes of action it might have under section 4 of the Clayton Act (15 U.S.C. § 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, equipment,
hardware, software or materials in accordance with this Contract or any Subcontract; and
(i) Such other supporting documentation to enable RCTC to fully an
accurately determine (without needing to refer to any other documentation or information) the
amounts payable by RCTC to DB Contractor, including any information reasonably requested by
RCTC.
14.4.2. DB Contractor Change Requests filed concurrently with the Application for
Final Payment must otherwise be timely and meet all requirements under Section 16 and are
subject to Section 15.
14.4.3. If the Application for Final Payment lists any existing or threatened Claims,
Liens and stop payment notices of Subcontractors, Suppliers, laborers, Utility Owners, BNSF or
other third parties against DB Contractor, RCTC or the Project, or if any is thereafter filed, RCTC
may withhold from payment such amount as RCTC deems advisable to cover any amounts owing
or which may become owing to RCTC by DB Contractor, including costs to complete or remediate
uncompleted Work or Nonconformances, and 125% of the amount of any existing or threatened
Claims, Liens and stop payment notices of Subcontractors, Suppliers, laborers, Utility Owners,
BNSF and other third parties against DB Contractor, RCTC or the Project.
14.4.4. RCTC will review DB Contractor's proposed Application for Final Payment as
if it were an Invoice under Section 14.2.3 except that any changes or corrections, including
deductions described in Section 14.3.2 or 14.4.3, will be forwarded to DB Contractor for correction
within 20 Business Days. Any changes or corrections made pursuant to this Section 14.4.4 will
be reflected in an updated monthly payment schedule showing the net amount owed to DB
Contractor by month.
14.4.5. DB Contractor's acceptance of Final Payment for the Work shall constitute a
waiver of all Claims by DB Contractor, known or unknown, suspected or unsuspected, except
those previously made in writing and identified as unsettled at the time of submission of the
Application for Final Payment for the Work and Claims which DB Contractor may be entitled to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 97 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
assert against RCTC with respect to indemnities under this Contract or with respect to RCTC's
breach of obligations under this Contract to be performed after Final Payment.
14.5. Payment for Subsequent Claims
Except as set out in Section 14.4.5, if, after Final Payment is made, it is determined through the
informal or formal Claims or dispute resolution processes in this Contract, that either Party is
entitled to payment from the other Party with respect to Claims that (a) were identified as being
unsettled in the release and waivers of Claims required in Section 14.4.1(b), (b) DB Contractor
may be entitled to assert against RCTC with respect to indemnities under this Contract or with
respect to RCTC's breach of obligations under this Contract that may occur after the Final
Payment, or (c) RCTC may be entitled to assert against DB Contractor with respect to
DB Contractor's continuing obligations under this Contract, such Party shall pay the amounts
determined to be owing to the other Party within ten Business Days after such determination.
14.6. Payments Not Acceptance of Work
14.6.1. Any payment of moneys under Section 14.2.4 is not (a) evidence of the value
of Work, (b) evidence that the Work has been satisfactorily carried out in accordance with this
Contract, (c) an admission of liability by RCTC, (d) an approval by RCTC of DB Contractor's
performance or compliance with this Contract, (e) an acknowledgement that RCTC has inspected
or accepted the Work or (f) a waiver of any Claim or right that RCTC may then or thereafter have,
including among others, warranty and indemnity rights.
14.6.2. All payments made by RCTC shall be subject to correction or adjustment in
subsequent progress reviews and payments.
14.7. Payment to Subcontractors
14.7.1. Upon receipt of payment from RCTC, DB Contractor shall pay each
Subcontractor within seven days of receipt of payment from RCTC, out of the amount paid to DB
Contractor on account of such Subcontractor's portion of the Work, the amount to which such
Subcontractor is entitled, less any retainage provided for in the Subcontract.
14.7.2. Any breach of the prompt payment requirements in Section 14.7.1 shall subject
DB Contractor to the penalties, sanctions and other remedies specified in Business and
Professions Code section 7108.5, and may result in the application of appropriate administrative
sanctions, including RCTC's right to withhold two percent of the Invoice amount due to DB
Contractor as a penalty for every month that full payment is not made to a Subcontractor. This
requirement shall not be construed to limit or impair any contractual, administrative, judicial or
equitable remedies otherwise available to DB Contractor or any Subcontractor against each other
in the event of a dispute involving late payment or nonpayment by DB Contractor or deficient
Subcontract performance or noncompliance by a Subcontractor.
14.7.3. RCTC has no obligation to pay or to see to the payment of money to a
Subcontractor, except as may otherwise be required by applicable Governmental Rules. Within
five Business Days after submission of any Notice of Claim (including any Relevant Event Notice)
or other similar notification under this Contract, in each case, that is based in whole or in part on
a request by a Subcontractor for a price increase or time extension under its Subcontract, DB
Contractor shall review and analyze the claim, determine in good faith and certify that it is justified
under the Subcontract and that DB Contractor is justified in making its request for an increase in
compensation and/or time extension. Each such Notice of Claim (or similar notification) involving
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 98 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Subcontractor work shall include a summary of DB Contractor's analysis of the claim. Any Notice
of Claim (or similar notification) under this Section 14.7.3 shall be considered incomplete if it
involves Subcontractor work and is not accompanied by such analysis and certification.
14.8. Payment of "Claims" under Public Contract Code section 9204
The Parties acknowledge that Public Contract Code section 9204 requires RCTC to make
payments to DB Contractor with respect to any portion of a "claim" as that term is defined in Public
Contract Code section 9204, which RCTC identifies as undisputed. If any such payments are
made, future Invoices shall account for such payments in a manner acceptable to RCTC. A copy
of Public Contract Code section 9204 is attached as Exhibit 23.
14.9. Disputes
Failure by RCTC to pay any amount in dispute shall not alleviate, diminish or modify in any respect
DB Contractor's obligation to perform the Work in accordance with this Contract, and DB
Contractor shall not cease or slow down its performance under this Contract on account of any
such amount in dispute. Any Dispute regarding payment shall be resolved in accordance with
Section 24. DB Contractor shall proceed as directed by RCTC pending resolution of the Dispute.
Upon resolution of any such Dispute, each Party shall promptly pay to the other any amount
owing.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 99 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 15
GENERAL PROVISIONS APPLYING TO CHANGES IN THE WORK
15.1. Mitigation
15.1.1. If an event occurs for which DB Contractor considers it is entitled to claim an
extension of time, compensation, relief from performance of its obligations under this Contract or
other relief under this Contract (a "Relevant Event"), DB Contractor shall, and shall require DB-
Related Entities to use and continue to use commercially reasonable efforts to:
(a) Eliminate or mitigate the Losses, schedule impacts, and other adverse
consequences of the Relevant Event on performance of the Work by re -sequencing, reallocating,
and/or redeploying forces to other Work, as appropriate;
(b) Except as expressly provided in this Contract, continue to perform and
remain liable and responsible for its obligations under this Contract notwithstanding the Relevant
Event; and
(c) Resume performance of Work affected by the Relevant Event as soon
as practicable and in all events promptly after the cessation or mitigation of the Relevant Event.
15.1.2. To the extent that DB Contractor does not comply with its obligations under
this Section 15.1, then DB Contractor's entitlement to claim an extension of time, compensation,
or relief from performance of its obligations, or other relief under this Contract with respect to the
Relevant Event will be reduced or eliminated to the extent of such failure.
15.2. Deductions/Reductions for Relevant Events
15.2.1. The compensation payable, extension of time granted, or other relief provided
to DB Contractor in connection with an applicable Relevant Event shall be reduced:
(a) By any amount any DB-Related Entities recovers under any insurance
policy required under this Contract, or otherwise maintained by DB-Related Entities, or would
have recovered if the DB-Related Entity had complied with the requirements of this Contract in
respect of any insurance policy required under this Contract, which amount, for greater certainty,
will not include any excess or deductibles or any amount over the maximum amount insured under
any such insurance policy;
(b) Subject to Section 16.6.2(b), in the case of an extension of time, by the
amount of time avoided or otherwise reduced as a result of the Relevant Event;
(c) By the amount of any Costs avoided or otherwise reduced as a result
of the Relevant Event; or
(d) To the extent the Relevant Event arises out of, relates to, or was caused
or contributed to by any act or omission of any DB-Related Entity or DB Contractor Fault.
15.3. Sole Entitlement
DB Contractor acknowledges and agrees that:
(a) The Contract Price constitutes full compensation for performance of the
Work; and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 100 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(b) DB Contractor's sole right to claim an extension of time, additional
compensation, relief from performance of its obligations, or other relief under this Contract or to
otherwise make any Claim for any Losses in connection with any Change or Relevant Event is as
set out in Section 15, Section 16 and Section 17.
15.4. Notifications; Delay in Notification
15.4.1. If DB Contractor submits to RCTC any Notice or any required information with
respect to a Relevant Event ("Relevant Event Notice") after the due date under this Contract for
the applicable Relevant Event, then DB Contractor shall be deemed to have expressly waived:
(a) The right to collect any Costs, in connection with the Relevant Event,
that DB Contractor incurs prior to the delivery date of the Relevant Event Notice; and
(b) The right to an extension of any Completion Deadline for a Critical Path
delay in connection with the Relevant Event, which accrued prior to the delivery date of the
Relevant Event Notice.
15.4.2. If DB Contractor fails to provide a Relevant Event Notice within the earlier of:
(a) the timeframe expressly stated within this Contract with respect to the specific Relevant Event;
or (b) 20 Business Days after the earlier of (i) obtaining Actual Knowledge of a Relevant Event;
or (ii) the date on which it should have, in the exercise of reasonable diligence or in the
performance of its obligations under this Contract, been aware of the Relevant Event,
DB Contractor shall not be entitled to any relief, and waives all relief, in connection with that
Relevant Event, unless DB Contractor proves to RCTC, based on clear and convincing evidence,
that:
(a) RCTC was not materially prejudiced by the lack of the Relevant Event
Notice; or
(b) RCTC's Representative had Actual Knowledge of the Relevant Event
prior to the due date for the Relevant Event Notice.
15.4.3. DB Contractor may be entitled to relief under this Contract for such Relevant
Event, subject to application of Section 15.4.1 and the other applicable provisions of this Contract.
15.4.4. The following matters (among others) shall be considered in determining
whether RCTC has been prejudiced by DB Contractor's failure to provide a timely Relevant Event
Notice:
(a) The effect of the delay on alternatives available to RCTC (that is, a
comparison of alternatives available at the time Notice was actually given and alternatives that
would have been available if Notice were given within the applicable time frame in
Section 15.4.2); and
(b) The impact of the delay on RCTC's ability to obtain and review objective
information contemporaneously with the applicable Relevant Event.
15.4.5. DB Contractor's failure to provide a Relevant Event Notice within
(a) 15 Business Days of the timeframe expressly stated within this Contract with respect to the
specific Relevant Event; or (b) 30 Business Days after the earlier of (i) obtaining Actual Knowledge
of a Relevant Event; or (ii) the date on which it should have, in the exercise of reasonable diligence
or in the performance of its obligations under this Contract, been aware of the Relevant Event
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 101 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
shall preclude DB Contractor from any relief due to the occurrence of the Relevant Event,
including the right to receive payment for any Costs, receive a Change Order or make any Claim
for any Losses or Costs in connection with the Relevant Event.
15.4.6. DB CONTRACTOR HEREBY EXPRESSLY WAIVES ALL RIGHTS TO
ASSERT ANY AND ALL CLAIMS BASED ON ANY CHANGE IN THE WORK, DELAY,
SUSPENSION OR ACCELERATION (INCLUDING ANY CONSTRUCTIVE CHANGE IN THE
WORK, DELAY, SUSPENSION OR ACCELERATION) FOR WHICH DB CONTRACTOR
FAILED TO PROVIDE PROPER AND TIMELY NOTICE OR FAILED TO PROVIDE A TIMELY
DB CONTRACTOR CHANGE REQUEST, AND AGREES THAT IT SHALL BE ENTITLED TO NO
COMPENSATION OR DAMAGES OR TIME EXTENSION WHATSOEVER IN CONNECTION
WITH THE WORK EXCEPT TO THE EXTENT THAT THE CONTRACT EXPRESSLY
SPECIFIES THAT DB CONTRACTOR IS ENTITLED TO A CHANGE ORDER OR OTHER
COMPENSATION, DAMAGES OR TIME EXTENSION.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 102 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 16
CHANGES IN THE WORK
16.1. Change Order and Directive Letters
Subject to Section 15, this Section 16 sets forth the requirements for obtaining Change Orders
and Directive Letters.
To the extent that any other provision of this Contract expressly provides for a Change Order or
Directive Letter to be issued, such provision is incorporated into and subject to Section 15 and
this Section 16.
16.2. Right of RCTC to Issue Change Orders and Directive Letters
16.2.1. RCTC may, at any time and for any reason, without notice to any Surety or
Guarantor, authorize and/or require a change within the general scope of this Contract pursuant
to a Change Order or Directive Letter.
16.2.2. DB Contractor shall have no obligation to perform any material change outside
the general scope of this Contract, except on terms mutually acceptable to RCTC and DB
Contractor.
16.2.3. For the purpose of Sections 16.2.1 and 16.2.2:
(a) Any direction to perform Work shall not be considered a Change and
shall be considered within the general scope of this Contract if the direction is related in whole or
in part, or directly or indirectly, to the Project; or
(b) Any direction to delete or modify the Work shall be considered within
the general scope unless, as a result the change, this Contract would no longer be considered a
contract to design and build the Project of the nature described in the RFP.
16.3. Issuance of Directive Letter
16.3.1. RCTC may, at any time and for any reason, issue a Directive Letter to
DB Contractor with respect to a change or in the event of any Dispute regarding the scope of
Work.
16.3.2. Any Directive Letter shall state that it is issued under this Section 16.3 and
provide a written detailed description of the change, and the proposed basis for compensation or
reduction in compensation, if any.
16.3.3. Directive Letters shall be effective upon issuance by RCTC. If RCTC issues a
Directive Letter, DB Contractor shall proceed immediately to implement the change in accordance
with the Directive Letter, pending execution of a formal Change Order in the event of a Change.
If, however, the Directive Letter states that the directed Work is within DB Contractor's original
scope of Work and does not constitute a Change, DB Contractor shall proceed with the Work as
directed, but may advise RCTC that it considers the directed Work to constitute a Change and
request that RCTC issue a Change Order under Section 16.4.
16.3.4. In RCTC's sole discretion, a Directive Letter may also be considered a Notice
by RCTC pursuant to Section 16.4.2(b)(ii), requiring DB Contractor to provide a Change
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 103 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Response to RCTC, provided the DB Contractor is provided Notice in the Directive Letter to such
effect by RCTC.
16.4. RCTC-Directed Change Orders
16.4.1. Change Notice
If RCTC desires to evaluate whether to initiate an RCTC-Directed Change, then RCTC
may issue a Change Notice setting out the details of the proposed Change.
16.4.2. Change Notice Consultations
(a) Within seven days after delivery of RCTC's Change Notice, or such
shorter period as the Parties mutually agree depending upon the complexity of the proposed
Change, the Parties shall consult to define the proposed scope of the Change. Within five
Business Days after the initial consultation, or such longer period as the Parties mutually agree,
the Parties shall consult concerning the estimated cost and time impacts, if any, to complete the
Change Work. DB Contractor shall provide data regarding such matters as requested by RCTC.
(b) Within five Business Days after the second consultation and provision
of any data regarding matters RCTC requests, RCTC shall notify DB Contractor whether RCTC:
(i) Wishes to issue a Change Order or Directive Letter;
(ii) Wishes to request DB Contractor to provide a full Change
Response;
(iii) Wishes to request DB Contractor to prepare a modified work
plan for the Change and a full Change Response based on the modified work plan; or
(iv) No longer wishes to issue a Change Order.
16.4.3. Change Response
(a) If so requested by RCTC, within ten Business Days after receiving
Notice under Section 16.4.2(b)(ii), or such longer period as the Parties mutually agree, DB
Contractor shall prepare and deliver to RCTC, for RCTC's review and approval, a Change
Response that includes:
(i) A detailed written evaluation of and justification for the proposed
Change, including all activities associated with the Change and the specific provision(s) of this
Contract which permit a Change Order, including data and documents supporting such
evaluation;
(ii) A statement and detailed breakdown of the estimated increase
or decrease (as applicable) to the Contract Price and adjustments to any applicable budget within
or component of the Contract Price required as a result of the Change including all data and
reports required under Section 16.17 and Section 16.18) to support such estimate;
(iii) A breakdown for labor, materials, equipment and permitted
markups for overhead and profit;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 104 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iv) If the Work will be performed by Subcontractors and if the work
is sufficiently defined to obtain Subcontractor quotes, DB Contractor shall obtain and provide
quotes (with breakdowns showing cost of labor, materials, equipment, and markups for overhead
and profit) on the Subcontractor's stationery, and shall include such quotes as back-up for DB
Contractor's estimate. No markup shall be allowed in excess of the amounts allowed under
Section 16.10;
(v) If DB Contractor believes the Change affects a Critical Path, it
shall provide an impacted delay analysis indicating all activities represented or affected by the
Change, with activity numbers, durations, predecessor, and successor activities, resources and
cost, and with a narrative report, in form satisfactory to RCTC, which compares the proposed new
schedule to the Project Schedule or details of any Acceleration Costs. RCTC may at any time
require DB Contractor to provide two alternative Cost and Schedule Proposals: alternative A,
which shall provide for a time extension and any additional costs permitted under this Contract;
and alternative B, which shall show all Acceleration Costs associated with meeting the original
Completion Deadlines. If it is not feasible to recover any original Completion Deadline or if DB
Contractor believes that the costs associated with such a recovery are prohibitive, then DB
Contractor shall recommend a date to be shown in the alternative B Change Response;
(vi) A certification under penalty of perjury according to the laws of
the State, in form acceptable to RCTC, executed by DB Contractor and stating that (1) the amount
of time and/or compensation requested is justified as to entitlement and amount, (2) 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 proposed Change,
and (3) the cost and pricing data forming the basis for the Change Order is complete, accurate
and current, with specific reference to the California False Claims Act (Government Code section
12650 et seq.) and the U.S. False Claims Act (31 U.S.C. § 3729 et seq.);
(vii) A schedule for completing the Change including any estimated
adjustments to the Completion Deadlines;
(viii) DB Contractor's proposed plan to mitigate the impacts of the
Change and a reasonably detailed breakdown of the expected actual Costs, if any, of such
mitigation; and
(ix) Any other information reasonably requested by RCTC.
(b) If it is not practicable, due to the nature and/or timing of the event giving
rise to a proposed Change Order, for DB Contractor to provide a complete Change Response
within the time in Section 16.4.3(a), DB Contractor shall provide an incomplete Change Response
that includes all information capable of being ascertained together with a list of those Change
Response requirements that are not fulfilled, and an explanation reasonably satisfactory to RCTC
stating why such requirements cannot be met. DB Contractor shall bear the burden of proving
that providing the Change Response within the time in Section 16.4.3(a) was not practicable.
(c) DB Contractor shall bear the cost of developing the Change Response,
including any modifications requested by RCTC, except that actual and reasonable costs of
design and engineering work required for preparation of plans or exhibits necessary to the
Change Response, as pre -authorized by RCTC, may be included in the Change Order as
reimbursable items. If the Change Order is approved, such actual and reasonable design and
engineering costs will be included within the Change Order.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 105 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
16.4.4. Change Order Determination
(a) Within 20 Business Days after receipt of DB Contractor's Change
Response, RCTC shall provide Notice of RCTC's intent to proceed or not to proceed with the
Change. If RCTC elects to proceed with the Change and accepts DB Contractor's Change
Response, and any proposed adjustments to this Contract, DB Contractor shall prepare a Change
Order for execution. If RCTC elects to proceed with the Change Order but does not accept the
Change Response in total, RCTC shall either: (i) negotiate and agree to a Change Order with DB
Contractor; (ii) issue a Time and Materials Change Order, as provided in Section 16.10 for the
Change; or (iii) issue a Directive Letter for the Change.
(b) Subject to receipt of any required approvals from Department and
FHWA, if RCTC issues or agrees to a Change Order with DB Contractor in accordance with
Section 16.4.4(a), RCTC and DB Contractor shall execute a Change Order form with respect to
the Change.
(c) Upon receipt of a Change Order under Section 16.4.4(b), DB
Contractor shall implement the Change in accordance with the Change Order.
16.4.5. Notwithstanding the process in this Section 16.4, the Parties may agree to use
a multiple -step process involving issuance of a Change Order which includes an estimated cost
and which provides for a revised Change Order to be issued after a certain design level has been
reached, to allow refinement and further definition of the estimated cost.
16.5. DB Contractor -Initiated Change Orders for Eligible Change
16.5.1. Notice Requirements and DB Contractor Change Requests
(a) DB Contractor shall give RCTC a Notice as soon as possible and within
ten Business Days after DB Contractor had Actual Knowledge of or should have known of an
Eligible Change.
(b) DB Contractor shall, within 20 Business Days after its Notice under
Section 16.5.1(a) or such longer period of time as may be allowed in writing by RCTC, provide a
DB Contractor Change Request which shall:
(i) Be labeled and numbered sequentially (for example the first
DB Contractor Change Request shall be labeled "DB Contractor Change Request No. 1");
(ii) Include, all information required to be submitted by DB
Contractor in a Change Response as if the Eligible Change was a Change with respect to which
RCTC issued a Change Notice;
(iii) In the case of an Eligible Change that is a Delay Event for which
DB Contractor seeks relief under Section 16.6, provide a time impact and delay analysis indicating
all activities represented or affected by the Change, with activity numbers, durations, predecessor
and successor activities, resources and cost; and include a narrative report in form satisfactory to
RCTC that compares the proposed new schedule to the Project Schedule and, if RCTC issues
direction under Section 16.5.1(e), provides details of any Acceleration Costs;
(iv} State the name, title, and activity of each PCM personnel and
RCTC representative with Actual Knowledge of the Eligible Change;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 106 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(v) Identify any documents and the substance of any oral
communication involved in the facts underlying the Eligible Change;
(vi) Provide an estimate of the time within which a response from
RCTC to the DB Contractor Change Request is required to minimize cost, delay or disruption of
performance; and
(vii) If the DB Contractor Change Request relates to a decision that
this Contract leaves to the discretion of a Person or as to which this Contract provides that such
Person's decision is final, the DB Contractor Change Request shall set out in detail all facts
supporting DB Contractor's objection to the decision, including all facts supporting any contention
that the decision was capricious or arbitrary or is not supported by substantial evidence.
(c) DB Contractor's Notice of an Eligible Change under Section 16.5.1(a)
may also serve as a DB Contractor Change Request provided it meets the requirements for a DB
Contractor Change Request under Section 16.5.1(b).
(d) Any adjustments made to the Contract shall not include increased
Costs or time extensions for delay resulting from DB Contractor's failure to timely provide
requested additional information under this Section 16.5.1.
(e) If DB Contractor requests a time extension as part of a DB Contractor
Change Request, then RCTC may require DB Contractor to provide two alternative Requests for
Change Order, one of which shall provide for a time extension and any additional Costs permitted
under this Contract, and the other of which shall show all Acceleration Costs associated with
meeting the original Completion Deadlines, as well as any additional Costs permitted under this
Contract. If it is not feasible to recover any original Completion Deadline or if DB Contractor
believes that the costs associated with such a recovery are prohibitive, then DB Contractor shall
recommend a date to be shown in the alternative DB Contractor Change Request.
16.5.2. Incomplete Requests for Change Order
(a) If it is not practicable, due to the nature and/or timing of the event giving
rise to an Eligible Change, for DB Contractor to provide a complete DB Contractor Change
Request meeting all of the requirements of Section 16.5.1, DB Contractor shall provide an
incomplete DB Contractor Change Request that includes:
(i)
All information capable of being ascertained;
(ii) A list of those DB Contractor Change Request requirements
which are not fulfilled, and an explanation reasonably satisfactory to RCTC stating why such
requirements cannot be met;
(iii) Such information regarding projected impact of the Relevant
Event on a Critical Path and Completion Deadlines as is requested by RCTC; and
(iv) Sufficient detail to ascertain the basis for the proposed Change
Order and for any Contract Price increase associated therewith, to the extent such amount is then
ascertainable.
(b) DB Contractor shall furnish, when requested by RCTC or its designee,
such further information and details as may be required to determine the facts or contentions
involved. DB Contractor shall give RCTC and its designees access to any and all of DB
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 107 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Contractor's books, records, and other materials relating to the Work, and shall cause its
Subcontractors to do the same, so that RCTC and its designees can investigate the basis for such
proposed Change Order.
(c) Once a complete DB Contractor Change Request is provided, RCTC
shall, within a period not to exceed 45 days, provide DB Contractor with a written statement
identifying what portion of the DB Contractor Change Request is disputed and what portion is
undisputed.
(d) RCTC may reject the DB Contractor Change Request at any point in
the process for any reason. Once a complete DB Contractor Change Request is provided,
RCTC's failure to respond within 45 days of delivery of the request shall be deemed a rejection
of such DB Contractor Change Request. In any such case, either Party may request dispute
resolution in accordance with Section 24.
16.5.3. Review of Subcontractor Claims
(a) Prior to submission by DB Contractor of any DB Contractor Change
Request that is based in whole or in part on a request by a Subcontractor to DB Contractor for a
price increase or time extension under its Subcontract, DB Contractor shall have: (i) reviewed and
analyzed all Claims by the Subcontractor that constitute the basis for the DB Contractor Change
Request; and (ii) determined in good faith that each such claim has sufficient justification under
this Contract to warrant DB Contractor requesting an increase in the Contract Price and/or change
in Completion Deadlines in the amounts specified in the DB Contractor Change Request. DB
Contractor shall certify in its DB Contractor Change Request that it has completed such review
and that the Claim has justification under this Contract.
(b) Each DB Contractor Change Request involving Subcontractor Work,
and each update to an incomplete DB Contractor Change Request involving such Work, shall
include a summary of DB Contractor's analysis of all Subcontractor claims components and shall
include a certification signed by DB Contractor's Representative stating that DB Contractor has:
(i) investigated the basis for the Subcontractor's claims and believes there is sufficient justification
under this Contract as to entitlement and the amount of money and/or time requested; (ii)
reviewed and verified the adequacy of all back-up documentation to be placed in escrow pursuant
to Section 26.5; and (iii) no reason to believe and does not believe that the factual basis for the
Subcontractor's claim is falsely represented. Any DB Contractor Change Request involving
Subcontractor Work which is not accompanied by such analysis and certification shall be
considered incomplete.
16.6. Change Order Entitlement for Delay Events
16.6.1. Subject to Section 15 and Section 16.6.2, and so long as DB Contractor
complies with the applicable Notice requirements in this Section 16, in the case of a Delay Event
that causes or will result in an identifiable and measurable disruption of the Project that impacts
an activity on the Critical Path (i.e., consumes all available Float and extends the time required to
achieve a Completion Milestone beyond the applicable Completion Deadline), DB Contractor shall
be entitled to a Change Order that provides for:
(a) Either (i) an adjustment to the applicable Completion Deadline (based
on critical path method analysis) to the extent of the actual delay caused by the Delay Event, or
(ii) Acceleration Costs, but only if RCTC elects to order acceleration under Section 16.5.1(e), in
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 108 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
which case the Change Order shall not provide for an adjustment in the applicable Completion
Deadline;
(b) Subject to Sections 16.6.2(a), 16.6.2(b) and 16.6.2(c), delay and
disruption damages for events only within clauses (a), (b), (c), (e), (f) or (h) of the definition of
RCTC-Caused Delays;
(c) Subject to Sections 16.6.2(a), 16.6.2(b) and 16.6.2(c), delay and
disruption damages for events only within clauses (d) and (g) of the definition of RCTC-Caused
Delays and within clauses (d), (g), (h), (j) and (I) of the definition of Delay Event, subject to the
following thresholds:
Delay and disruption damages as a
result of specified Delay Events
RCTC liability to DB Contractor for
delay and disruption damages as a
result of specified Delay Events
Up to and including 60 days of delay
No liability for delay and disruption
damages
Greater than 60 days of delay
$5,000 per day (regardless of the
number of concurrent Delay Events)
; and
(d) Compensation for idle time of equipment, but only if (i) the Delay Event
results from unidentified or misidentified Main or Trunkline Utilities, to the extent set out in
Section 16.12.1(a), and (ii) DB Contractor is also entitled to extension of a Completion Deadline
under Section 16.6.1(a).
16.6.2. DB Contractor's entitlement to a Change Order under Section 16.6.1 is subject
to the following limitations:
(a) Delay and disruption damages shall be limited to (i) direct costs solely
and directly attributable to the delays described in Section 16.6.1(a) and markups on such direct
costs in accordance with Section 16.10, and (ii) any additional field office and jobsite overhead
costs that DB Contractor incurs solely and directly attributable to such delays and subject to
Section 9-1.11 of the Modified Standard Specifications (Exhibit 3);
(b) DB Contractor shall not be entitled to an extension of a Completion
Deadline or delay or disruption damages under Section 16.6.1 if the Delay Event is concurrent
with any other unrelated delay to a Critical Path for which any DB-Related Entity is responsible
under this Contract.
(c) Delay and disruption damages for the event within clause (j) of the
definition of Delay Event shall be limited to negligent acts or omissions of any Other RCTC
Contractor, which materially and adversely directly affects DB Contractor's obligations under this
Contract.
16.7. Change Order Entitlement for Compensable Events
Subject to Section 15 and DB Contractor complying with this Section 16, where RCTC issues a
Change Order as a result of a Change or a Compensable Event that changes the scope of the
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 109 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Work, DB Contractor (or RCTC, in the case of a deductive change) shall be entitled to an
adjustment of the Contract Price as provided in Sections 16.8 through 16.21 (as applicable).
16.8. Change Order Entitlement for Force Majeure Events
16.8.1. Subject to Section 15 and DB Contractor complying with this Section 16, if
Work or the Project is wholly or substantially destroyed or damaged by:
(a) A Force Majeure Event which is not insured against and is not required
to be insured against in accordance with this Agreement; and
(b) RCTC requires DB Contractor to repair, replace or rebuild the Work or
the Project,
the Parties will use reasonable efforts to negotiate and agree on how the Work or the Project will
be repaired, replaced or rebuilt in accordance with this Section 16.
16.8.2. The Parties' attempts to negotiate shall not limit RCTC's right to issue a
Directive Letter or terminate the Contract in accordance with this Contract.
16.9. Change Order Pricing
16.9.1. General Pricing
Except as expressly provided otherwise in this Sections 16.9 through 16.24, the price of a Change
Order issued under this Section 16 shall be a negotiated lump sum price or unit prices as provided
below. The lump sum price or unit prices shall be based on the original allocations of the Contract
Price to comparable activities, whenever possible. If reference to price allocations is inappropriate
(as determined by RCTC) and if requested by RCTC, negotiation for lump sum or unit price
Change Orders shall be on an Open Book Basis and may be based on the pricing contained in
Escrowed Proposal Documents as well as competitive Subcontractors' bid prices.
16.9.2. Detailed Cost Proposal
DB Contractor may be required to submit to RCTC a detailed cost proposal identifying all
categories of costs set out in Section 16.10: (a) showing all impacts on the Contract from Work
additions, deletions, and modifications shown in the Change Order being priced; and (b) setting
out the proposed costs in such a way that a fair evaluation can be made. DB Contractor shall
identify all conditions with respect to prices or other aspects of the cost proposal, such as pricing
contingent on firm orders being made by a certain date or the occurrence or nonoccurrence of an
event.
16.9.3. Added Work
When a Change Order adds Work to DB Contractor's scope, the increase in the Contract
Price shall be negotiated based on: (a) estimated costs of labor, material, and equipment; (b) unit
prices in accordance with Section 16.9.6; or (c) actual costs in accordance with Section 16.10.
For negotiated Change Orders, markups for profit and overhead shall be consistent with
Section 16.10.3.
16.9.4. Deleted Work
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 110 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
When a Change Order deletes Work from DB Contractor's scope, the amount of the
reduction in the Contract Price shall be based upon applicable documentation in the EPDs,
including a bill of material, a breakdown of labor, material, and equipment costs, and overhead
and profit associated with the deleted Work. The current estimated amount of risk associated
with such Work shall be a factor in determining the markup for the deduction. When a deduction
is involved, documented cancellation and restocking charges may be included in costs and
subtracted from the price deduction.
16.9.5. Change Order Both Adding and Deleting Work
When the Change Order includes both added and deleted Work, DB 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 16.9.3 shall be used to determine markups for overhead and profit.
Markups 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 Contract Price;
(b) Net decrease in cost, the change shall be treated as Work deleted and
the provisions of Section 16.9.4 shall be used on the net decrease in cost in order to establish the
amount deducted from the Contract Price; or
(c) Net change of zero, there will be no change in the Contract Price.
16.9.6. Unit Priced Change Orders
Measurement of unit -priced quantities will be in accordance with Section 9-1.02 of the
Department Standard Specifications. Unit prices shall be deemed to include all costs for labor,
material, overhead and profit, and are not subject to change regardless of any change in the
estimated quantities. Unit -priced Change Orders shall initially include an estimated increase in
the Contract Price based on estimated quantities. Upon final determination of the quantities,
RCTC will issue a modified Change Order setting forth the final adjustment to the Contract Price.
DB Contractor shall keep detailed records of the quantities for unit priced Work, and shall submit
supporting documentation of such quantities with its Invoices.
16.10. Time and Materials Change Orders
16.10.1. Issuance
RCTC may issue a Time and Materials Change Order. The Time and Materials Change
Order shall instruct DB Contractor to perform the Work, indicating expressly the intention to treat
the items as changes in the Work, and setting forth the kind, character, and limits of the Work as
far as they can be ascertained, the terms under which changes to the Contract Price will be
determined and the estimated total change in the Contract Price. Upon final determination of the
allowable costs, RCTC shall issue a modified Change Order setting forth the final adjustment to
the Contract Price.
16.10.2. Pricing and Payment
(a) Time and Materials Change Orders shall be issued in accordance with
Section 9-1.04 of the Modified Standard Specifications (Exhibit 3). DB Contractor shall comply
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 111 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
with all recordkeeping and other obligations in Section 9-1.04D(6) of the Modified Standard
Specifications (Exhibit 3).
(b) Payments for Time and Materials Work shall be invoiced with the
regular monthly Invoice, based on the extra work reports provided by DB Contractor for each
period. Costs evidenced by daily extra work reports provided less than five Business Days prior
to preparation of the Invoice shall be included in the subsequent month's Invoice.
16.10.3. Overhead Items
The following items are considered overhead costs and are included in the Change Order
markups in Section 9-1.04 of the Modified Standard Specifications (Exhibit 3):
(a) Additional salary and expenses of executive officers, supervising
officers or supervising employees;
(b) DB Contractor's superintendent (general foreman);
(c) Clerical or stenographic employees;
(d) Charges for minor equipment, such as small tools, including shovels,
picks, axes, saws, bars, sledges, lanterns, jacks, cables, pails, wrenches, etc., consumables, and
other miscellaneous supplies and services;
whatsoever;
excluded); and
(e) Any and all field and home office overhead and operating expenses
(f) Subsistence and travel expenses for personnel (craft personnel
(g) All additional bond and insurance premiums.
With respect to non -construction related labor costs, overhead is covered by the labor surcharge
which shall constitute full compensation for all profit, overhead, and all state and federal payroll,
unemployment and other taxes, insurance, fringe benefits and all other payments made to, or on
behalf of, the workers, in excess of actual wages, as well as for profit and overhead, and includes
accessories such as computer assisted drafting and design (CADD) systems, software and
computers, facsimile machines, scanners, plotters, etc.
16.10.4. Change Order Data
(a) DB Contractor shall collect, record in writing, segregate and preserve:
(a) all data necessary to determine the Costs described in this Section 16.10 with respect to all
Work that is the subject of a Change Order, a Change Response or a DB Contractor Change
Request (excluding negotiated lump sum Change Orders previously executed and delivered),
specifically including costs associated with design Work as well as DB Contractor's costs for
DB Utility Work, and (b) all data, documents and analyses necessary to show the actual impact
(if any) on the Critical Path, the Project Schedule, and applicable Completion Deadlines with
respect to all Work which is the subject of a Change Order or a proposed Change Order. Such
data shall be provided to RCTC and any RCTC representative reviewing any Claim or Dispute
regarding compensation for such Work or time extension immediately upon their request or
demand. DB Contractor waives the right to obtain compensation or time extension for any Work
for which cost or schedule data is required to be maintained and provided under this Contract, if
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 112 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
DB Contractor fails to maintain and timely provide to RCTC cost or schedule data, documents
and analyses meeting the requirements of this Contract.
(b) DB Contractor shall maintain its records in such a manner as to provide
a clear distinction between: (i) the direct Cost of Work for which it is entitled (or for which it believes
it is entitled) to an increase in the Contract Price; and (ii) the Costs of other operations.
DB Contractor shall provide daily, on forms approved by RCTC, reports of all costs described in
Section 16.10.4(b)(i). The reports shall itemize all Costs for labor, materials, and equipment rental
and give a total of costs through the date of the report. For workers, the reports shall include
hours worked, rates of pay, names and classifications. For equipment, the reports shall include
size, type, identification number, rental rate and actual working hours of operation. All such
records and reports shall be made immediately available to RCTC upon its request.
DB Contractor cost accounting records, payroll reports, paid invoices, and other actual cost
records shall be provided to RCTC upon request to support hourly labor rates and other submitted
costs included in the daily cost reports.
(c) All reports prepared under this Section 16.10 shall be signed by DB
Contractor and certified as true, accurate and complete. RCTC will compare its records with DB
Contractor's reports, make the necessary adjustments and compile the costs of Work completed
under a Time and Materials Change Order. When such reports are agreed upon and signed by
both Parties, they will become the basis of payment. If the Parties cannot agree on the data
contained in the reports then only the amounts agreed to by RCTC will be processed for payment
and DB Contractor and DB Contractor may submit the amount of such price deduction to dispute
resolution in accordance with Section 24.
16.11. Basic Configuration Changes
16.11.1. If DB Contractor commences construction Work affected by a Necessary Basic
Configuration Change prior to delivery of an appropriate DB Contractor Change Request in
accordance with Section 16.5, the Change Order shall allow RCTC a credit for the cost of any
unnecessary Work performed and/or shall exclude any additional costs associated with redoing
the Work already performed.
16.11.2. DB Contractor shall be responsible for any cost increases and/or delays that
affect the duration of a Critical Path or Completion Deadline resulting from changes in
requirements and obligations of DB Contractor relating to the Project due to Errors in the Project
Schematics other than those which require a Necessary Basic Configuration Change.
16.11.3. If a VECP results in a change in Basic Configuration, any cost savings from
such VECP shall be shared in accordance with Section 17.6.
16.11.4. DB Contractor shall not make any change in the Basic Configuration, except
as approved by RCTC and authorized in accordance with this Section 16.
16.12. Main or Trunkline Utilities
16.12.1. Inaccuracy Resulting in Additional Costs or Time
(a) If, prior to the 180-day period in which the Utility Strip Map must be
approved by RCTC, any Main or Trunkline Utility that is located within the Planned ROW Limits
and requires Relocation is:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 113 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(i)
"unidentified"); or
Not identified at all in the Utility Information (i.e., is
(ii) Not identified in the Utility Information with "reasonable
accuracy," as defined in Section 16.12.2 (i.e., is "misidentified"),
then DB Contractor shall be entitled to a Change Order that increases the Contract Price to
compensate DB Contractor for any increase in DB Contractor's costs to perform the Work directly
attributable to such lacking or inaccurate information, subject to the limitations in Section
16.12.1(c). The amount of such Change Order shall be determined in accordance with Section
16.9.3.
(b) If any Main or Trunkline Utility is discovered after the 180-day period
in which the Utility Strip Map must be approved by RCTC, and such Main or Trunkline Utility was
not identified (i.e., is "unidentified"); in the Utility Information or the Utility Strip Map, then DB
Contractor shall be entitled to a Change Order that increases the Contract Price to compensate
DB Contractor for any increase in DB Contractor's direct costs to perform the Work directly
attributable to such lacking or inaccurate information, subject to the limitations in Section
16.12.1(c). The amount of such Change Order shall be determined in accordance with Section
16.9.3.
(c) DB Contractor shall not be entitled to any increase in the Contract Price
or extension of time for any of the following:
(i) Increased costs of the Work or time attributable to unidentified
or misidentified Utilities, to the extent that the existence of the Utility was known to DB Contractor
as of the Setting Date or could have been inferred from a Reasonable Investigation or the
presence of other facilities, such as buildings, meters, junction boxes, manholes, or identifying
markers, visible during a surface inspection of the area conducted prior to the Setting Date;
(ii) Non -Dig Alert Mapped Utilities; and
(iii) Except as provided in Section 16.12.1(b) for unidentified
Utilities, increased costs of the Work or time attributable to misidentified or unidentified Utilities,
to the extent such costs could have been avoided if DB Contractor had fully and accurately
identified the Utility and addressed the actual field conditions in the Utility Strip Map;
(iv) Delay and disruption damages or extensions of time, except
that DB Contractor shall be entitled to compensation for idle time of equipment in Section 16.6.1(d)
on account of such delay.
16.12.2. "Reasonable Accuracy" Defined
(a) For purposes of this Section 16.12, a Main or Trunkline Utility is not
identified with "reasonable accuracy" only if:
(i) The Utility's actual centerline location is located more than five
feet distant from the horizontal centerline location indicated therefor in the Utility Information
(without regard to vertical location);
(ii) The Utility Information shows the Utility as abandoned (i.e.,
nonexistent except "on paper", or existent but no longer active) when in fact the Utility exists and
is active, or the Utility Information shows the Utility as active when in fact the Utility is abandoned;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 114 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(iii) The Utility has an actual nominal diameter (excluding casings
and any other appurtenances) greater than 12 inches, and its actual nominal diameter is either
greater than or less than the outside diameter shown in the Utility Information by 25% or more of
the diameter shown in the Utility Information; or
(iv) The encasement material or encasement status of the Utility
differs materially from what is shown in the Utility Strip Map.
(b) Any other inaccuracies in the Utility Information have no impact on
"reasonable accuracy" and shall not result in a determination that the Utility was not identified with
"reasonable accuracy." If there is any discrepancy between any of the components of the Utility
Information (e.g., Preliminary Utility Matrix and Utility Maps contain conflicting information), only
the most accurate information shall be relevant for purposes of this Section 16.12.
16.13. Differing Site Conditions
16.13.1. DB Contractor shall bear the burden of proving that a Differing Site Condition
exists and that DB Contractor could not have reasonably worked around the Differing Site
Condition so as to avoid additional cost.
16.13.2. Each DB Contractor Change Request relating to a Differing Site Condition shall
be accompanied by a statement signed by a qualified professional including all relevant
assumptions made by DB Contractor with respect to the condition at the relevant portion of the
Site, justifying the basis for such assumptions, explaining exactly how the existing conditions differ
from those assumptions, and stating the efforts DB Contractor took to find alternative design or
construction solutions to eliminate or minimize the problem and the associated costs. If the
request is based on clause (a) of the definition of Differing Site Condition, the statement shall also
include detailed information regarding the alleged Error in the Boring Data provided by RCTC
forming the basis for the request, and shall explain how DB Contractor's assumptions would have
changed had the Boring Data been accurate.
16.13.3. No additional compensation, time extension or other Claim will be allowed in
connection with any Work stoppage in affected areas during periods within which DB Contractor
prepares the DB Change Order Request under this Section 16.13.
16.14. Changes in Project Standards
(a) If a change to a Project Standard occurs after the Setting Date,
DB Contractor shall give Notice to RCTC of such change within 20 Business Days of the change.
If, after such Notice, RCTC directs DB Contractor to comply with the changed Project Standard
(rather than with the Project Standard applicable at the Setting Date), then DB Contactor shall
comply with the Project Standard as changed. To the extent such compliance directly and
materially impacts the Work and would not have otherwise been taken into account by compliance
with Good Industry Practice, DB Contractor shall be entitled to a Change Order, subject to
Section 15 and compliance with this Section 16.
(b) If RCTC directs DB Contractor not to comply with the changed Project
Standard (which direction may only be given where DB Contractor is not otherwise legally obliged
to comply with the changed Project Standard), then DB Contractor shall continue to comply with
the Project Standard applicable at the Setting Date without entitlement to a Change Order.
(c) This Section 16.14 shall not apply to Changes in Law.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 115 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
1 6,15. Hazardous Materials Management
Subject to the limitations in this Section 16.15 and Section 15, DB Contractor shall be entitled to
a Change Order for certain costs of Hazardous Materials Management for Compensable Events
that fall within clause (g) of the definition of Delay Event:
(a) Any Costs payable under this Section 16.15 shall be limited to Costs of
Work performed pursuant to the approved plans required to be provided under TP Section 6.3,
excluding markup for overhead and profit;
(b) No Contract Price increase or time extension shall be allowed with
respect to:
(i) Removal, disposal and/or remediation of (A) asbestos or
asbestos -containing materials (other than mineral asbestos naturally occurring in the ground) on
or in the Site, removed in accordance with TP Sections 6.3 and 6.4 and the approved
Environmental Management Plan, or (B) any other materials not falling within the definition of
Hazardous Waste that are encountered during or in connection with the demolition of buildings,
fixtures or other improvements on any parcels within the Site;
(ii) Release(s) of Hazardous Materials or threatened Release(s) of
Hazardous Materials for which DB Contractor is responsible under Section 23.1.1(g);
(iii) Less than "material quantities" (e.g., quantities that trigger a
reporting requirement as defined in Section 8.9.1) of Hazardous Materials;
(iv) Any Hazardous Materials that could have been avoided by
reasonable design modifications or construction techniques; or
(v) Any Hazardous Materials on or affecting property outside of the
RCTC-Provided Property, except that compensation will be allowed for environmental
remediation work on such property to the extent that it is legally required to be taken with
Hazardous Materials Management required within the RCTC-Provided Property;
(c) The amount of the Change Order for Hazardous Materials
Management shall either be a negotiated amount acceptable to the Parties, or an amount
determined in accordance with Section 16.10 and this Section 16.15 for the work in question;
(d) DB Contractor shall be deemed to have waived the right to collect any
and all costs incurred in connection with any Hazardous Materials Management and any right to
obtain an extension of a Completion Deadline if RCTC and Department are not provided Notice
of the discovery of Hazardous Materials delivered under Section 8.8.1(a), and afforded the
opportunity to inspect sites containing Hazardous Materials before any action is taken which
would inhibit the ability of RCTC or Department to ascertain, based on a Site inspection, the
nature and extent of the materials. In the event of an emergency involving Hazardous Materials,
DB Contractor may take such limited actions as are required by Governmental Rules without
advance notice to RCTC and Department, but shall provide Notice immediately thereafter (which
in no event shall be more than two hours after the incident by phone and 24 hours after the
incident by Notice);
(e) In cases involving reimbursement for Hazardous Materials
Management under this Section 16.15, allowable costs shall be limited to the incremental direct
costs but excluding both delay and disruption damages and markup for overhead and profit
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 116 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(except to the extent any delay qualifies as an RCTC-Caused Delay under clause (g) of the
definition of that term in Exhibit 1 (Abbreviations and Definitions), in which case delay and
disruption damages calculated in accordance with Section 16.6.2(a) shall be allowed) incurred
after completion of the testing process to determine whether Hazardous Materials are present,
associated with the Hazardous Materials at issue (deducting any avoided costs such as the cost
of disposal that would have been incurred had Hazardous Materials not been present).
Investigating and characterizing Hazardous Materials are included in the Work and in the Contract
Price and DB Contractor is not entitled to additional compensation therefor. DB Contractor shall
take all reasonable steps to minimize any such costs. Compensation shall be allowed only to the
extent that DB Contractor demonstrates to RCTC's satisfaction that (i) the Hazardous Materials
Management could not have been avoided by reasonable design modifications or construction
techniques, and (ii) DB Contractor's plan for the Hazardous Materials Management represents
the approach which is most beneficial to the Project and the public. DB Contractor shall provide
RCTC with such information, analyses and certificates as may be requested by RCTC in order to
enable a determination regarding eligibility for payment;
(f) If DB Contractor encounters Hazardous Materials within the RCTC-
Provided Property which, due to no act or omission of any DB-Related Entity or any DB Contractor
Fault, results in delays to a Critical Path, then RCTC shall bear the risk of such delay (excluding
those conditions for which DB Contractor has agreed to be responsible as described in
Section 23.1.1(g)), and subject to the limitations in this Section 16.15;
(g) Section 16.15(f) shall not apply to any delays associated with
Department's investigation and Hazardous Materials Management of HM-1 located within the
Existing Department ROW, which delays shall be treated as an RCTC-Caused Delays under this
Contract; and
(h) Notwithstanding any contrary provision of this Contract, DB Contractor
has no right to receive (a) any compensation for delay and disruption damages (except to the
extent any delay qualifies as a RCTC-Caused Delay under clause (g) of the definition of that term
in Exhibit 1 (Abbreviations and Definitions), in which case delay and disruption damages
calculated in accordance with Section 16.6.2(a) shall be allowed) or markup for overhead and
profit related to Hazardous Materials Management, (b) any compensation for any Hazardous
Materials Management resulting from a situation described in Section 23.1.1(g), or (c) any
compensation, time extension or otherwise make any Claim in connection with any work stoppage
in affected areas during the investigation periods described in Sections 8.8.1, 8.8.2, or 8.9.3. DB
Contractor shall also not be entitled to receive any compensation, time extension or otherwise
make any Claim for (1) immaterial quantities of Hazardous Materials, (2) any Hazardous Materials
that could have been avoided by reasonable design modifications or construction techniques, (3)
any costs that could have been avoided, (4) Hazardous Materials on any Available Properties or
any Additional Properties, temporary real property interests or other property of DB Contractor,
or (5) any Hazardous Materials encountered during or in connection with the demolition of
buildings, fixtures or other improvements on any parcels within the Site. Such limitations shall
apply to all Change Orders related to Hazardous Materials Management.
16.16. Pavement Adjustment
Subject to the limitations in Section 15 and this Section 16, the amount payable by RCTC to DB
Contractor for any Change Order issued with respect to an event falling within clause (d) of the
definition of Compensable Event shall not be greater than 100% of the positive Pavement
Adjustment calculated under Section 21.6.4. DB Contractor shall not otherwise be entitled to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 117 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
receive any compensation, time extension or otherwise make any Claim with respect to any
pavement adjustment falling within clause (d) of the definition of Compensable Event.
16.17. Errors in As -Built Reference Document Information
(a) Where a material error exists at the Setting Date in:
(i) information within the bridge as -built plans contained in the
Reference Documents that directly specifies the bridge type, number and type of girders,
foundation type and barrier type, of the existing bridges;
(ii) information within the retaining wall as -built plans contained in
the Reference Documents that directly specifies retaining wall type, foundation type, barrier and
railing type, of the existing retaining walls; and
(iii) information within other as -built plans contained in the
Reference Documents that directly specifies existing lane -widths, shoulder widths, structural
sections, barrier type and approximate barrier locations, approximate location and type of
drainage facilities, approximate location of existing overhead signs,
(together the "As -Built Reference Document Information"),
then DB Contractor shall be entitled to a Change Order that provides for an extension of time and
increases the Contract Price to compensate DB Contractor for any material increase in
DB Contractor's costs to perform the Work directly attributable to such errors, subject to the
limitations specified in Section 16.17(b). The amount of such Change Order shall be determined
in accordance with Section 16.9.3.
(b) DB Contractor shall not be entitled to any increase in the Contract Price
or extension of time under Section 16.17(a) for any of the following:
(i) Increased costs of the Work or time attributable to errors in As -
Built Reference Document Information, to the extent that the existence of the error was known to
DB Contractor as of the Setting Date or could have been inferred from a Reasonable Investigation
conducted prior to the Proposal Due Date; and
(ii) Increased costs of the Work or time attributable to errors in As -
Built Reference Document Information, to the extent such costs could have been avoided if DB
Contractor had fully and accurately identified the relevant structures and addressed the actual as -
built conditions in the As -Built Verification Maps as required by TP Section 17.3.2.
16.18. Change Order Records
DB 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 Contract Price and the costs of other operations. DB Contractor shall collect, record in
writing, segregate and preserve: (a) separate daily occurrence logs as required under TP
Section 5.4.2.6 and Section 9-1.04(D)(6) of the Modified Standard Specifications (Exhibit 3),
together with all other data necessary to determine the costs of all Work which is the subject of a
Directive Letter, Change Order or a requested Change Order, specifically including costs
associated with design Work as well as Relocations; and (b) all data necessary to show the actual
impact (if any) of the change on each Critical Path and Completion Deadline with respect to all
Work which is the subject of a Directive Letter, Change Order or a proposed Change Order. Such
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 118 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
data shall be provided to the Disputes Review Board (if a Change Order or requested Change
Order is under dispute), RCTC and its representatives as directed by RCTC, on forms approved
by RCTC.
16.19. Daily Work Reports and Data Collection
DB Contractor shall provide RCTC completed daily work reports for each day's Work which is to
be paid for on a time and material basis. The 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;
(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; and
(e) The total costs to date for the Work performed under the Time and
Materials Change Order.
16.20. Supplier's Invoices
Materials charges shall be substantiated by valid copies of Supplier's invoices. Such invoices
shall be submitted with the daily time and material Work reports, or if not available, they shall be
submitted with subsequent daily time and material Work reports. Should said Supplier's invoices
not be submitted within 60 days after the date of delivery of the materials, RCTC may 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.
16.21. Execution of Reports
RCTC will compare its records with the completed daily time and material Work reports provided
by DB Contractor and make any necessary adjustments. When these daily time and material
Work reports are agreed upon and signed by both Parties, said reports shall become the basis of
payment for the Work performed, but shall not preclude subsequent adjustment based on a later
audit. DB Contractor's cost records pertaining to Change Order Work paid for on a time and
material basis shall be open, during all regular business hours, to inspection or audit by
representatives of RCTC during the term of the Contract and for a period of not less than five
years after the Final Acceptance Date, and DB Contractor shall retain such records for that period.
Where payment for materials or labor is based on the cost thereof to any Person other than DB
Contractor, DB 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 RCTC on the
same terms and conditions as the cost records of DB Contractor. Payment for such costs may
be deleted if the records of such third parties are not made available to RCTC's representatives.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 119 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
1 6.22. Disputes
The failure of RCTC and DB Contractor to agree to any Change Order under this Section 16
(including agreement as to the amount of compensation allowed under a Time and Materials
Change Order and the disputed amount of the increase in the Contract Price and/or extension of
a Completion Deadline in connection with a Change Order as described above) shall be a Dispute
to be resolved pursuant to Section 24.
Except as otherwise specified in the Change Order, execution of a Change Order by both Parties
shall be deemed accord and satisfaction of all claims by DB Contractor of any nature arising from
or relating to the Work covered by the Change Order and DB Contractor shall be deemed to have
expressly released, waived, and disclaimed any right to receive compensation, time extension or
make any Claim related thereto. DB Contractor's Claim and any award by the dispute resolver
shall be limited to the incremental costs incurred by DB Contractor with respect to the disputed
matter (crediting RCTC for any corresponding reduction in DB Contractor's other costs) and shall
in no event exceed the amounts allowed by Section 16.10 with respect thereto.
16.23. Work Performed Without Direction or Authority
If DB Contractor undertakes any work or efforts: (a) outside of the scope of the Work; (b) upon
any request, order, or other authorization issued by a Person in excess of that Person's authority
as provided in this Contract, (c) included in any oral request or directive or (d) unrelated to the
Project, DB Contractor shall be deemed to have undertaken such efforts voluntarily, at its sole
cost and risk, and shall not be entitled to a Change unless DB Contractor has received a Directive
Letter or Change Order signed by RCTC. In addition, RCTC may require DB Contractor to remove
or otherwise undo the results of any such work efforts without any entitlement to a Claim.
16.24. Changes Not Requiring Change Order
Subject to Section 16.11, Deviations from standards specified in this Contract which have a
neutral net cost effect and do not affect a Critical Path or Completion Deadline shall not require a
Change Order provided such Deviations are approved by RCTC and Department pursuant to TP
Section 1.4. Any other change in the requirements of this Contract shall require either a Directive
Letter, a Change Order or an executed amendment to this Contract.
16.25. No Release or Waiver; Course of Dealings
16.25.1. The grant of an extension of time beyond the date fixed for the completion of
any part of the Work, the performance and acceptance of any part of the Work or materials
specified by the Contract after a Completion Deadline, and making of payments to DB Contractor
after a Completion Deadline shall not, in any case:
(a) Be deemed to be a waiver by RCTC of any of its rights and remedies
under this Contract, at law or in equity, including its right to terminate the Contract for
abandonment or failure to complete within the time specified (as it may have been extended) or
to impose and deduct damages as may be provided; or
(b) Release DB Contractor's Surety(ies) or any Guarantor from its
obligations and Work shall continue and be carried on in accordance with all the provisions of this
Contract and this Contract shall be and shall remain in full force and effect unless formally
suspended or terminated by RCTC in accordance with the terms of this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 120 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
16.25.2. No Claim, Change Order or DB Contractor Change Request shall be based on
any course of conduct or dealings between the Parties, any express or implied acceptance of
alterations or additions to the Work, or any claim that RCTC has been unjustly enriched.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 121 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 17
VALUE ENGINEERING
17.1. General
17.1.1. This Section 17 sets forth the requirements applicable to preparation, review
and approval of value engineering recommendations ("Value Engineering Change Proposals"
or "VECPs") for the purpose of enabling DB Contractor and RCTC to take advantage of potential
cost savings or provide potential improvements to the Work through changes in the requirements
relating to the Work.
17.1.2. DB Contractor is encouraged to submit VECPs whenever it identifies potential
savings or improvements for the Project. RCTC may also request DB Contractor to develop and
submit a specific VECP ("RCTC-Initiated VECP"). DB Contractor may refuse to consider such
RCTC-Initiated VECP; provided, however, that nothing in this Contract is intended to alter RCTC's
right to issue RCTC-Directed Changes in accordance with Section 16.
17.2. Value Engineering Recommendation
A VECP is a proposal developed and documented by DB Contractor which:
17.2.1. Would modify or require a change in any of the commitments, requirements of
or constraints in this Contract in order to be implemented; and
17.2.2. Reduces the Contract Price without impairing essential functions or
characteristics of the Project (including the meeting of requirements contained in all Governmental
Approvals) including service life, economy of operation, ease of maintenance, desirability and
safety, and provided that it is not based solely upon a change in quantities, performance or
reliability or a relaxation of the requirements contained in this Contract.
17.3. Information to be Provided
17.3.1. At a minimum, the following information shall be submitted by DB Contractor
with each VECP:
(a) A statement that the submission is a VECP, and a narrative description
of the proposed change;
(b) Description of the existing requirements of this Contract which are
involved in the proposed change;
(c) Discussion of differences between existing requirements in this
Contract and the proposed change, together with advantages and disadvantages of each
changed item;
(d) Itemization of the requirements of this Contract which must be changed
if the VECP is approved (e.g., document sections, drawing numbers and specifications);
(e) A complete cost analysis including: (i) DB Contractor's cost estimate
for performing the subject Work in accordance with this Contract compared to DB Contractor's
cost estimate for performing the subject Work in accordance with the proposed changes, (ii) an
estimate of additional costs that will be incurred by RCTC, including estimated impact on future
maintenance costs; and (iii) costs of development and implementation of the VECP by DB
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 122 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Contractor. The cost of any additional Governmental Approvals, rights of way or easements and
other costs or impacts to the Project, shall be included in the cost analysis;
(f) 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 this Contract, including environmental compliance and requirements contained in
Governmental Approvals;
(g) If available, a description of any previous use or tests of the VECP and
the conditions and results; and
(h) Date or time by which a Change Order adopting the VECP must be
issued in order to obtain the maximum cost reduction, noting any effect on the Project Schedule.
17.3.2. Any additional information requested by RCTC shall be provided in a timely
manner. Additional information could include results of field investigations and surveys, design
computations and field change sheets.
17.4. Review by RCTC
17.4.1. DB Contractor shall submit VECPs directly to PCM for transmittal to RCTC.
Each VECP shall be prepared in a form acceptable to RCTC, and shall meet all applicable
requirements of this Section 17. RCTC will determine whether a VECP qualifies for consideration
and evaluation. VECPs that require excessive time or costs for review, evaluation or
investigations, or that are not consistent with RCTC's design policies and basic design criteria
may be rejected without evaluation.
17.4.2. DB Contractor has no Claim for any additional costs or delays resulting from
the rejection of a VECP initiated by DB Contractor, including VECP development costs, loss of
anticipated profits or increased material or labor costs. RCTC will consider only proven features
that have been employed under similar conditions or projects acceptable to RCTC. RCTC is not
liable for any delay in acting upon any proposal submitted pursuant to this Section 17. DB
Contractor may withdraw all or part of any VECP at any time prior to approval by RCTC. Subject
to Section 17.6, in all other situations each Party shall bear its own costs in connection with
preparation and review of VECPs. Notwithstanding anything in this Contract to the contrary,
RCTC will not consider any VECP with estimated net savings less than $50,000.
17.5. Approval of VECPs
17.5.1. RCTC may approve or reject, in whole or in part, by Change Order, any VECP
submitted. Designs for approved VECPs shall be prepared by DB Contractor for incorporation
into the Design Documents. Until a Change Order is issued based on a VECP, DB Contractor
shall remain obligated to perform in accordance with the Project Design Documents and this
Contract.
17.5.2. The following provisions shall apply to any Dispute between RCTC and DB
Contractor regarding DB Contractor's performance of Work that RCTC believes should have
properly been submitted as a VECP:
(a) DB Contractor agrees that, within 30 days following a request from
RCTC for a VECP with regard to any such Work, DB Contractor shall deliver a VECP to RCTC
meeting the requirements of this Section 17, but may specify that the VECP is delivered under
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 123 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
protest. In such case, either Party may submit the question of DB Contractor's entitlement to
proceed without an approved VECP to dispute resolution;
(b) If a determination is ultimately made that DB Contractor is not entitled
to proceed without an approved VECP, RCTC may receive a credit against the Contract Price as
provided in Section 17.6; and
(c) If a determination is ultimately made that DB Contractor is entitled to
proceed without an approved VECP, the VECP shall be deemed withdrawn and have no effect.
If DB Contractor fails to deliver a complete VECP within the foregoing deadline, RCTC may submit
the issue to dispute resolution at any time. In such event, if the dispute resolution proceeding
ultimately results in a determination that DB Contractor was not entitled to perform such Work
without a prior approved VECP, RCTC may receive a credit against the Contract Price equal to
100% of DB Contractor's cost savings, plus profit, rather than 50% of estimated net savings as
provided in Section 17.6.
17.5.3. Unless DB Contractor has received written approval from RCTC to proceed
with VECP work pending approval of a VECP, DB Contractor shall not proceed with such work
until the VECP is approved. Furthermore, if DB Contractor proceeds with any work that might
have been the basis for a VECP price increase based on savings in RCTC's right of way costs,
without first submitting a VECP, DB Contractor shall be deemed to have performed such work
voluntarily, at its sole cost and risk and shall not have the right to later submit a VECP under this
Contract.
17.6. Contract Price Adjustment
If RCTC accepts a VECP submitted by DB Contractor pursuant to this Section 17, the Contract
Price shall be adjusted in accordance with the following.
17.6.1. The term "estimated net savings" as used in this Contract shall mean (a) the
difference between the cost of performing the Work according to this Contract and the actual cost
to perform it according to the proposed change, less (b) the reasonable costs of studying and
preparing the VECP as proven by DB Contractor and approved by RCTC in accordance with the
Change Order procedures in this Contract, less (c) any additional costs incurred or to be incurred
by RCTC resulting from the VECP, including the cost of RCTC's review of the VECP and
implementation and maintenance costs associated therewith. DB Contractor's profit is not
considered part of the cost.
17.6.2. Except as specified in Section 17.6.4, DB Contractor is not entitled to share in
either collateral or future contract savings. The term "collateral savings" means additional
revenues that may arise as a result of the VECP and those measurable net reductions in RCTC's
costs resulting from the VECP, including operations and maintenance costs and cost of RCTC-
provided property. 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 DB Contractor.
17.6.3. Subject to Sections 17.6.4 and 17.6.5, the Contract Price shall be reduced by
an amount equal to the sum of (a) 100% of any additional costs incurred by RCTC resulting from
the VECP plus (b) 50% of estimated net savings; provided, however, that DB Contractor's profit
shall not be reduced by application of the VECP.
17.6.4. In a case where DB Contractor proposes that an adjustment be made to the
planned acquisition of real property in order to result in an overall cost savings to the Project (such
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 124 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
as a proposal that additional real property be purchased outside of the Planned ROW Limits in
order to save on construction costs, or a proposal which would enable a reduction in the real
property required to be obtained by RCTC under this Contract by incurring additional construction
costs), the VECP shall compare (a) the incremental reduction in costs (such as for not designing
and building a wall), and (b) the costs involved in adjusting the real property limits or
Environmental Approvals (which shall be based on DB Contractor's additional costs, such as for
providing real property acquisition support services (including profit) plus RCTC's additional costs,
including costs of personnel as well as out-of-pocket costs such as the price of the additional real
property), or (as appropriate) shall compare (y) the incremental reduction in costs (if any) for not
acquiring the unnecessary real property, and (z) the additional construction costs to be incurred.
The estimated net savings shall be shared 50-50 between RCTC and DB Contractor.
Reimbursements for Relocation expenses owed to Utility Owners shall be addressed in
calculating estimated net savings to be shared between RCTC and DB Contractor. DB Contractor
shall include in its VECP an analysis of any impacts on Utility Owners for consideration by RCTC.
If DB Contractor wishes to propose such a VECP, DB Contractor shall provide a separate
notification to RCTC describing the proposed impact concurrently with delivery of the VECP to
RCTC.
17.6.5. DB 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.
17.6.6. A VECP is not required for any changes to the concepts in the Project
Schematics approved by RCTC and Department as specified in Section 4.2.2, or for any
Deviations from Project Standards allowed by RCTC and Department as specified in TP Section
1.4, except for changes based on concepts submitted by other proposers, or changes that also
entail a modification of commitments contained in the Proposal or requirements of or constraints
in this Contract.
17.7. Use of VECPs by RCTC
All approved or disapproved VECPs will become the property of RCTC, and shall contain no
restrictions imposed by DB Contractor on their use or disclosure, except as permitted in
Section 17.8 below. Notwithstanding any restrictions pursuant to Section 17.8, RCTC may use,
duplicate and disclose in whole or in part any data necessary for the utilization of the VECP on
any other or subsequent projects without any obligation to DB Contractor. This provision is not
intended to deny rights provided by law with respect to patented materials or processes.
17.8. Public Records Act Exclusion
If DB Contractor proposes any VECP that incorporates intellectual property or other proprietary
information developed prior to award of the Contract, or developed by DB Contractor after award
of the Contract (provided that DB Contractor establishes to RCTC's satisfaction that it was
developed apart from, and in isolation from, the Contract), DB Contractor may identify such data
and information included in the VECP as "trade secret" or "confidential," as such terms are used
in the Public Records Act, in which event the provisions of Section 26.8.3 shall apply.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 125 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 18
SUSPENSION
18.1. Suspensions for Convenience
18.1.1. RCTC may, at any time and for any reason, by Notice, order DB Contractor to
suspend all or any part of the Work for its convenience, for the period of time RCTC deems
appropriate.
18.1.2. DB Contractor shall promptly comply with any Notice under Section 18.1.1.
18.1.3. DB Contractor shall promptly recommence the Work upon receipt of Notice
from RCTC directing DB Contractor to resume Work.
18.2. Suspensions for Cause
18.2.1. RCTC may, by Notice to DB Contractor, order DB Contractor to suspend the
whole or any part of the Work for DB Contractor or any Subcontractors failure to:
(a) Correct conditions unsafe for the Project personnel, RCTC personnel,
Other RCTC Contractor personnel or the general public;
(b) Comply with any Governmental Approval, Governmental Rule or this
Contract;
(c) Carry out orders or directions of RCTC in accordance with this Contract,
Change Orders or Directive Letters;
(d) Comply with requirements to develop and implement the Quality
Management Plan;
(e) Remove any Person as required under Section 9.5.3 or if DB
Contractor or its Subcontractor fails to ensure employment of an alternative skilled and
experienced Person;
(f) Provide proof of required insurance coverage as provided in
Section 11;
(g) Reopen lanes closed to public traffic as part of a Permitted Lane
Closures by the times specified in the approved closure requests in TP Section 18.3.3;
(h) Comply with environmental requirements;
(i) Pay in full when due undisputed amounts owing to RCTC under this
Contract; or
(j) Remove from the Work and dismiss from the Project any Subcontractor
that is determined disqualified, suspended, debarred or otherwise excluded from bidding,
proposing or contracting with a federal or a State department or agency.
18.2.2. DB Contractor shall promptly comply with any Notice under Section 18.2.1 to
suspend the Work in whole or in part.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 126 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
18.2.3. DB Contractor shall promptly recommence the suspended Work upon receipt
of Notice from RCTC directing DB Contractor to resume the Work.
18.2.4. RCTC has no liability to DB Contractor and DB Contractor is not entitled to
make any Claim in connection with any suspension under Section 18.2.1.
18.2.5. If RCTC orders suspension of any Work under Section 18.2.1, but it is finally
determined under the dispute resolution procedures of this Contract that such grounds did not
exist, it shall be treated as a suspension for RCTC's convenience under Section 18.1.
18.3. Department Suspensions
18.3.1. DB Contractor acknowledges that Department has the authority to issue an
order suspending Work wholly or in part and to take appropriate action when public safety is
jeopardized as authorized under Streets and Highways Code section 91.2(b) and otherwise in
accordance with the Department Cooperative Agreement. DB Contractor shall promptly comply
with any such written suspension order. DB Contractor shall promptly recommence the Work upon
receipt of Notice from Department directing DB Contractor to resume the suspended Work.
Neither RCTC nor Department shall have any liability to DB Contractor related to such suspension
and DB Contractor shall have no right to Claim in connection with any such suspension.
18.4. Responsibilities of DB Contractor during Suspension Periods
Where the Work is suspended in whole or in part:
18.4.1. DB Contractor remains responsible for the Work and shall prevent damage,
loss or injury to the Project, provide for drainage and shall erect necessary temporary structures,
signs or other facilities required to maintain the Project;
18.4.2. DB Contractor shall maintain in a growing condition all newly established
plantings, seedings and soddings provided under this Contract, and shall protect new tree growth
and other vegetative growth against injury, replacing all dead plants requiring replacement during
the suspension period; and
18.4.3. DB Contractor shall continue other Work not subject to the suspension.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 127 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 19
TERMINATION FOR CONVENIENCE
19.1. Notice of Termination for Convenience
19.1.1. RCTC may, at any time after NTP2, terminate this Contract in whole or in part,
at its convenience, by Notice to DB Contractor specifying the extent of termination and its effective
date ("Notice of Termination for Convenience").
19.1.2. Termination (or partial termination) of this Contract shall not relieve any Surety
or Guarantor of its obligation for any Claims arising out of the Work performed.
19.1.3. DB Contractor acknowledges and agrees that unless and until NTP2 is issued,
RCTC has no liability to DB Contractor for a Termination for Convenience under this Contract,
except as provided under Sections 19.11 and 19.12.
19.2. Transition Plan
19.2.1. Within three days after receipt of a Notice of Termination for Convenience, DB
Contractor shall meet and confer with RCTC to develop an interim transition plan for the orderly
transition of the terminated Work, demobilization and transfer of the Project to RCTC.
19.2.2. The Parties shall use diligent efforts to:
(a) Complete preparation of the interim transition plan within 15 days after
DB Contractor receives Notice of Termination for Convenience; and
(b) Complete preparation of a final transition plan within 30 days after DB
Contractor receives Notice of Termination for Convenience.
19.2.3. The transition plan shall be in form and substance acceptable to RCTC in its
good faith discretion and shall include and be consistent with the other provisions and procedures
in Section 19.3.
19.3. DB Contractor's Responsibilities after Receipt of Notice of Termination
After receipt of a Notice of Termination for Convenience, and except as otherwise directed by
RCTC, DB Contractor shall immediately proceed with the following obligations, regardless of any
delay in determining or adjusting any amounts due under this Section 19 or acceptance of the
transition plan:
(a) Stop Work as specified in the Notice of Termination for Convenience;
(b) Notify all affected Subcontractors that this Contract is being terminated,
and that such Subcontractors stop performance under their Subcontracts (including orders for
materials, services or facilities), unless otherwise authorized by Notice from RCTC;
(c) Place no further (i) Subcontracts (including orders for materials,
services. equipment or facilities) or (ii) orders for Department furnished materials pursuant to
Section 6-1.02 of the Modified Standard Specifications (Exhibit 3), except as necessary to
complete the continued portion of the Work, if any, or for mitigation of damages;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 128 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(d) Unless instructed otherwise by RCTC, terminate all Subcontracts to the
extent they relate to the Work terminated;
(e) To the extent directed by RCTC, execute and deliver to RCTC written
assignments, in form and substance acceptable to RCTC, acting reasonably, of all of
DB Contractor's right, title, and interest in and to (i) Subcontracts that relate to the terminated
Work, provided that RCTC assumes by Notice all of DB Contractor's obligations thereunder that
arise after the effective date of the termination, and (ii) all warranties (excluding those that DB
Contractor is unable to secure assignment of despite performing its obligations under Section
13.2.1(c)), claims, and causes of action held by DB Contractor against Subcontractors and other
third parties in connection with the terminated Work, to the extent such Work is adversely affected
by any Subcontractor or other third party breach of warranty, contract or other legal obligation;
(f) Subject to the prior written approval of RCTC, settle all outstanding
Claims and all termination settlement proposals arising from termination of Subcontracts;
(g) No later than 30 days from the effective Termination Date, unless
extended by Notice from RCTC responding to any request from DB Contractor within this 30-day
period, provide RCTC with an inventory list of all materials and equipment previously produced,
purchased or ordered from (i) Suppliers and (ii) Department (for Department furnished materials
as described in Section 6-1.02 of the Modified Standard Specifications (Exhibit 3) for use in the
Work but not yet used in the Work, including its storage location, as well as any documentation
or other property required to be delivered under this Contract that is either in the process of
development or previously completed but not yet delivered to RCTC, and such other information
as RCTC may request; and transfer title and deliver to RCTC through bills of sale or other
documents of title, as directed by RCTC, (1) the 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 diagrams), specifications, records, samples, information
and other property that would have been required to be provided to RCTC if the Work had been
completed;
(h) Complete performance in accordance with this Contract of all Work not
terminated;
(i) Take all action that may be necessary, or that RCTC may direct, for the
safety, protection and preservation of: (i) the public, including public and private vehicular
movement, (ii) the Work; (iii) the property and facilities of Department and Local Agencies; and
(iv) equipment, machinery, materials and property related to the Project that is in the possession,
care, custody or control of DB Contractor and in which RCTC has or may acquire an interest;
(j) As authorized by Notice from RCTC, use its best efforts to sell at
reasonable prices any property of the types referred to in Section 19.3(g); except that DB
Contractor (i) shall not be required to extend credit to any purchaser, and (ii) may acquire the
property under the conditions prescribed and at prices approved by RCTC. The proceeds of any
transfer or disposition will be applied to reduce any payments to be made by RCTC under this
Contract or paid in any other manner directed by RCTC;
(k) If requested by RCTC, withdraw from the portions of the Site
designated by RCTC and remove such materials, equipment, tools and instruments used by, and
any debris or waste materials generated by, DB Contractor and any Subcontractor in the
performance of the Work as RCTC may direct; and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 129 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(I)
19.4. Acceptance
Take other actions directed by RCTC.
19.4.1. DB Contractor shall remain responsible for damage and loss to materials after
issuance of the Notice of Termination for Convenience, except as follows:
(a) DB Contractor's responsibility for damage to materials for which partial
payment has been made, as provided in this Contract, shall terminate when RCTC's
Representative certifies that those materials have been stored in the manner and at the locations
directed by RCTC; and
(b) DB Contractor's responsibility for damage to materials purchased by
RCTC after the issuance of the Notice of Termination for Convenience shall terminate when
RCTC takes title and delivery of those materials.
19.4.2. When RCTC's Representative determines that DB Contractor has completed
the Work directed to be completed prior to termination and such other work as may have been
ordered to secure the Project for termination, RCTC's Representative will recommend that RCTC
formally accept such Work, and immediately upon and after RCTC's acceptance, DB Contractor
shall not be required to perform any further work thereon (except for such work that otherwise
would have been required with respect to the terminated Work after Final Acceptance) and shall
be relieved of maintenance responsibility for such terminated Work after RCTC formally accepts
such Work.
19.5. Payment for Termination for Convenience
19.5.1. If RCTC terminates this Contract for convenience under Section 19.1,
DB Contractor shall be entitled to payment of the following amounts (collectively, the
"Termination for Convenience Amount").
(a) DB Contractor's documented Costs, without profit, and including
equipment costs only to the extent permitted by Section 16.10.3, for all Work performed, including
mobilization, demobilization, and work done to secure the Project for termination, including
reasonable overhead and accounting for any refunds payable with respect to insurance
premiums, deposits, or similar items, as established to RCTC's satisfaction. In determining the
reasonable Cost, deductions will be made for the Cost of materials to be retained by
DB Contractor, amounts realized by the sale of materials, and for other appropriate credits against
the cost of the Work. Deductions will also be made, when the Contract is terminated as the result
of a Force Majeure Event, for the cost of materials damaged by the "occurrence." When, in the
opinion of RCTC's Representative, the Cost of a contract item of Work is excessively high due to
costs incurred to remedy or replace Nonconformances, the reasonable Cost to be allowed will be
the estimated reasonable Cost of performing that Work in compliance with the requirements of
this Contract.
(b) As profit on Section 19.5.1(a), a sum determined by RCTC to be fair
and reasonable; except that if it appears DB Contractor would have sustained a loss on the entire
Contract had it been completed, no profit shall be included or allowed under this Section 19.5.1(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 19.3(f), excluding the amounts paid or payable
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 130 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
on account of supplies or materials delivered or services provided by the Subcontractor prior to
the effective date of the Notice of Termination for Convenience, which amounts shall be included
in the Cost on account of which payment is made under Section 19.5.1(a).
(d) The reasonable out-of-pocket cost (including reasonable overhead) of
the preservation and protection of property incurred pursuant to Section 19.3(i) and any other
reasonable out-of-pocket cost (including overhead) incidental to termination of Work under this
Contract, including the reasonable cost to DB Contractor of handling material returned to a
Supplier, delivered to RCTC or otherwise disposed of as directed by RCTC, and including a
reasonable allowance for DB Contractor's administrative costs in determining the amount payable
due to termination of the Contract.
19.5.2. DB Contractor acknowledges and agrees that the Termination for Convenience
Amount shall not exceed:
(a) The value of the terminated Work performed plus its settlement costs,
and that items such as lost or anticipated profits, unabsorbed overhead, opportunity costs, and
consequential damages shall not be recoverable in the Termination for Convenience Amount; or
(b) The total Contract Price less the amount of payments previously made
and the Contract Price of Work not terminated.
19.5.3. The Termination for Convenience Amount excludes the fair value, as
determined by RCTC, of equipment, machinery, and materials that are destroyed, lost, stolen or
damaged so as to become undeliverable to RCTC.
19.5.4. Upon determination of the Termination for Convenience Amount, this Contract
shall be amended to reflect the terminated Work and the agreed termination payment, DB
Contractor shall be paid the agreed amount, and the Contract Price shall be reduced to reflect
the reduced scope of the Work.
19.5.5. If a partial termination occurs, DB Contractor may file a proposal with RCTC
for an equitable adjustment of the Contract Price for the continued portion of this Contract. Any
proposal by DB Contractor for an equitable adjustment under this Section 19.5.5 shall be
requested within 90 days from the Termination Date unless extended by Notice from RCTC. The
amount of any such adjustment as may be agreed upon shall be set forth in an amendment to
this Contract.
19.6. Settlement Proposal
No later than 90 days from the Notice of Termination for Convenience, DB Contractor shall submit
a final termination settlement proposal (including the proposed Termination for Convenience
Amount) in a form reasonably acceptable to RCTC and with such certifications requested by
RCTC. DB Contractor's termination settlement proposal shall be reviewed by RCTC and acted
upon, returned with comments, or rejected. If RCTC returns the termination settlement proposal
with comments, DB Contractor shall address such comments and resubmit the termination
settlement proposal within 30 days after receiving RCTC's comments. If DB Contractor fails to
submit the proposal within the time allowed, RCTC may determine the Termination for
Convenience Amount and DB Contractor shall be bound by RCTC's determination.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 131 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
19.7. Amount of Negotiated Termination Settlement
19.7.1. DB Contractor and RCTC may agree upon the Termination for Convenience
Amount, as provided and subject to the limitations in Section 19.5, by reason of any Termination
for Convenience. Such negotiated settlement shall be documented in a settlement agreement,
executed and delivered by the Parties, and subject to Section 19.5.1(b) may include a reasonable
allowance for profit solely on Work that has been completed as of the Termination Date and
subsequently inspected and accepted by RCTC.
19.7.2. Upon determination of the settlement amount, this Contract will be amended
accordingly, and DB Contractor will, subject to Section 19.9 and following execution of such
settlement agreement, be paid the agreed amount as described in this Section 19.7. RCTC's
execution and delivery of any settlement agreement shall not affect any of its rights under this
Contract with respect to completed Work, relieve DB Contractor from its obligations under this
Contract, including the General Warranty, or affect the right and obligations of RCTC or DB
Contractor under any Bond and/or Guaranty as to such completed or non -terminated Work.
19.8. No Agreement as to Amount of Termination Settlement for Work
If DB Contractor and RCTC fail to agree upon any amount payable to DB Contractor because of
RCTC's termination of this Contract for convenience, RCTC shall pay to DB Contractor the
Termination for Convenience Amount described in Section 19.5.1 (excluding interest charges and
any amounts deducted pursuant to Section 19.9) as calculated by RCTC (and without duplication
of any items or of any amounts agreed upon in accordance with Sections 19.5 and 19.7) within
30 days after RCTC's calculation of the Termination for Convenience Amount described in
Section 19.5.1.
19.9. Conditions to Payment; Reduction in Amount of Claim
19.9.1. As a condition to its obligation to pay DB Contractor amounts due under this
Section 19, but not as a condition to termination, DB Contractor shall provide RCTC the following:
(a) A list of all outstanding or pending DB Contractor Change Requests
and all existing or threatened claims, Liens, and stop payment notices by Subcontractors, Utility
Owners, BNSF or other third parties relating to the Project;
(b) Complete and legally effective releases or waivers of Liens and stop
payment notices satisfactory to RCTC, from all Persons legally eligible to file Liens and stop
payment notices in connection with the Work;
(c) Consent of any Guarantors and Surety(ies);
(d) Executed release(s) meeting the requirements of Sections 14.4.1(e)
and 19.13.3 and otherwise satisfactory in form and content to RCTC;
(e) An affidavit from DB Contractor meeting the requirements of
Section 14.4.1(e); and
(f)
Such other documentation as RCTC may reasonably require.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 132 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
19.10. Payment upon Termination
19.10.1. Subject to Sections 14.3.2, 19.8 and 19.9, RCTC shall pay the Termination for
Convenience Amount within 30 days after receipt of an Invoice from DB Contractor. If DB
Contractor and RCTC fail to agree upon the Termination for Convenience Amount under Section
19.8, RCTC shall pay the Termination for Convenience Amount within 30 days after RCTC's
calculation as to the Termination for Convenience Amount described in Section 19.5.1.
19.10.2. RCTC may from time to time, under such terms and conditions as it may
prescribe and in its good faith discretion, make partial payments on account against Costs
incurred by DB Contractor in connection with the terminated portion of this Contract, whenever in
the opinion of RCTC the aggregate of such payments shall be within the amount to which
DB Contractor will be entitled under this Contract. If the total of such payments is in excess of
the Termination for Convenience Amount, such excess shall be payable by DB Contractor to
RCTC upon demand together with interest at the rate of the lesser of: (a) 10% per annum; and
(b) the maximum rate allowable under applicable Governmental Rules.
19.11. Termination Based on Delay in or Failure to Issue NTP1
If NTP1 has not been issued within 210 days after the Proposal Date, and this delay is not caused
by an act or failure to act by any DB-Related Entity or any DB Contractor Fault, DB Contractor
shall have the right to terminate this Contract. This right shall be exercised by delivery of Notice
of termination to RCTC. In such event, RCTC's sole liability to DB Contractor shall be to pay DB
Contractor $250,000 (i.e., the amount equal to the stipend payment provided to unsuccessful
proposers under the RFP).
19.12. Termination Based on Delay in or Failure to Issue NTP2
RCTC may, at any time after issuance of NTP1 and for any reason, elect not to issue NTP2 and
terminate this Contract and the performance of the Work by DB Contractor by Notice to DB
Contractor. In such event, RCTC's sole liability to DB Contractor is to pay DB Contractor (a) any
unpaid amounts due for Work performed pursuant to NTP1 in accordance with Section 14.2.1;
plus (b) all additional Costs for performing Work up to the date of termination only if the delay in
issuing NTP2 is not caused in whole or in part by any act or omission of any DB-Related Entity or
any DB Contractor Fault.
19.13. No Waiver; Release
19.13.1. The payment to DB Contractor determined in accordance with this Section 19
constitutes DB Contractor's exclusive remedy for a termination hereunder.
19.13.2. Notwithstanding any other provision of this Contract, a termination under this
Section 19 shall not waive any Claim that RCTC may have under this Contract. Accordingly,
RCTC may pursue any such Claim against DB Contractor.
19.13.3. RCTC's payment to DB Contractor of the amounts provided under this
Section 19 shall constitute full and final satisfaction of, and upon payment RCTC shall be forever
released and discharged from, any and all Claims or Losses, known or unknown, suspected or
unsuspected, that DB Contractor may have against RCTC in connection with the terminated
Work. Concurrently with such payment, DB Contractor shall execute and deliver to RCTC all
such releases and discharges RCTC reasonably requires to confirm the foregoing (which releases
shall include an express and unconditional waiver and release sufficient, in RCTC's good faith
discretion, to waive any rights and benefits DB Contractor may have pursuant to Civil Code
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 133 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
section 1542), but no such written release and discharge shall be necessary to give effect to the
foregoing satisfaction and release.
19.14. Dispute Resolution
The failure of the Parties to agree on amounts due under this Section 19 shall be a Dispute to be
resolved in accordance with Section 24.
19.15. Allowability of Costs
All Costs claimed by DB Contractor under this Section 19 shall be allowable, allocable, and
reasonable in accordance with the cost principles and procedures of 48 CFR Part 31.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 134 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 20
DEFAULT
20.1. Default of DB Contractor
20.1.1. Events and Conditions Constituting DB Contractor Default
DB Contractor shall be in default under this Contract upon the occurrence of any one or more of
the following events or conditions (each a "DB Contractor Default"):
(a) DB Contractor fails to: (i) promptly begin the Work under this Contract
following issuance of any Notice to Proceed; or (ii) resume performance of Work that has been
suspended or stopped within a reasonable time after receipt of Notice from RCTC to do so or (if
applicable) after cessation of the event preventing performance;
(b) DB Contractor fails to perform the Work in accordance with this
Contract, including DB Contractor's failure to comply with applicable standards in this Contract
with respect to the Work, and refusing to remedy Nonconformances;
(c) DB Contractor suspends, ceases, stops or abandons the Work, or fails
to continuously and diligently prosecute the Work excluding Work stoppages due to:
(i) termination by RCTC; (ii) the occurrence and continuance of a Force Majeure Event or
suspension by RCTC; or (iii) RCTC's failure to make undisputed payments to DB Contractor, in
accordance with Section 20.3;
(d) DB Contractor fails to obtain, provide or maintain in full force and effect
any insurance, Bonds, guarantees or other performance security as and when required under this
Contract and for the benefit of relevant parties, or fails to comply with any requirement of this
Contract pertaining to the amount, terms, or coverage of the same;
(e) DB Contractor fails to provide RCTC with the NTP2 Performance Bond
and NTP2 Payment Bond within 15 days of receiving Notice from RCTC of RCTC's intent to close
its financing for the Project, and in no event later than three weeks prior to close of financing;
(f) DB Contractor makes or attempts to make, or suffers a voluntary or
involuntary assignment or transfer of this Contract or any right or interest in this Contract, except
as expressly permitted under Section 27.4;
(g) DB Contractor fails, 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 fails to comply with any Governmental Rule or reasonably comply with the
instructions of RCTC consistent with this Contract;
(h) DB Contractor fails to make payment when due to RCTC of any
amounts owing to RCTC under this Contract, including Liquidated Damages, Lane Closure
Charges or Flagging Charges;
(i) DB Contractor fails to timely observe or perform, or fails to cause to be
timely observed or performed, any other agreement or covenant that DB Contractor is required to
perform under this Contract;
(j) Any Guarantor revokes or attempts to revoke its obligations under its
Guaranty, or otherwise takes the position that such instrument is no longer in full force and effect;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 135 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(k) Issuance of any final judgment holding DB Contractor or any of its
equity members liable for an amount in excess of $100,000 based on a finding of intentional or
reckless misconduct or violation of a state or federal false claims act;
(I) Any representation or warranty made by DB Contractor or any
Guarantor in this Contract (including the Proposer Questionnaire included in the Proposal, and
the questionnaire included in the Statement of Qualifications) or any certificate, schedule,
instrument or other document delivered by DB Contractor pursuant to this Contract was false or
materially misleading when made;
(m) DB Contractor commences a voluntary case seeking liquidation,
reorganization or other relief with respect to DB Contractor or DB Contractor's debts under any
U.S. or foreign bankruptcy, insolvency or other similar Governmental Rule; seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of its, or any
substantial part of its, assets; becomes insolvent, or generally does not pay its debts as they
become due; provides notice of its inability to pay its debts; makes an assignment for the benefit
of creditors; or takes any action to authorize any of the foregoing;
(n) An involuntary case is commenced against DB Contractor seeking
liquidation, reorganization, dissolution, winding up, a composition or arrangement with creditors,
a readjustment of debts or other relief with respect to such DB Contractor or DB Contractor's
debts under any U.S. or foreign bankruptcy, insolvency or other similar Governmental Rule;
seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its assets; seeking the issuance of a writ of attachment, execution, or
similar process; or seeking like relief, and such involuntary case shall not be contested by it in
good faith or shall remain undismissed and unstayed for a period of 60 days;
(o) In any voluntary or involuntary case seeking liquidation, reorganization
or other relief with respect to DB Contractor or its debts under any U.S. or foreign bankruptcy,
insolvency or other similar Governmental Rule, this Contract, is rejected, including a rejection
under 11 U.S.C. section 365 or any successor statute;
(p) Any voluntary or involuntary case or other act or event described in
Sections 20.1.1(m) through (o) shall occur (and in the case of an involuntary case shall not be
contested in good faith or shall remain undismissed and unstayed for a period of 60 days) with
respect to (i) any member, partner or joint venture member of DB Contractor (unless said Person
has fully met all financial obligations owing to DB Contractor investment and payments or
transfers of money or property previously made to or for the benefit of DB Contractor are not
subject to sections 544, 547, 548 or 550 of the Bankruptcy Code or any similar applicable state
or federal Governmental Rule respecting the avoidance or recovery of preferences or fraudulent
transfers, including any applicable enactment of the Uniform Fraudulent Transfer Act), (ii) any
member, partner or joint venture member of DB Contractor for whom transfer of ownership or
management authority would constitute a prohibited assignment under Section 27.4 or
impermissible Change of Control, or (iii) any Guarantor of DB Contractor obligations to RCTC
under this Contract, unless another Guarantor of the same obligations then exists, is solvent, is
not and has not been the debtor in any such voluntary or involuntary case, has not repudiated its
guaranty and is not in breach of its guaranty; and
(q) After any rights of appeal have been exhausted, DB Contractor, any
Affiliate or any Subcontractor (i) is determined disqualified, suspended or debarred, or otherwise
excluded from bidding, proposing or contracting with a federal or a State department or agency,
or (ii) has not dismissed any Subcontractor whose work is not substantially complete and who is
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 136 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
determined disqualified, suspended or debarred, or otherwise excluded from bidding, or
proposing or contracting with a federal or a State department or agency.
20.1.2. Notice and Opportunity to Cure
(a) Except with respect to the DB Contractor Defaults described in
Sections 20.1.1(c), csll, Pa), and Section 20.1.1(j) through (q), DB Contractor and Surety
shall be entitled to 15 days' Notice and opportunity to cure any DB Contractor Default before an
Event of Default is declared.
(b) No notice and opportunity to cure is required for any DB Contractor
Default that by its nature cannot be cured. Failure to provide notice to Surety or any Guarantor
shall not preclude RCTC from exercising its remedies against DB Contractor.
(c) If a DB Contractor Default (other than the DB Contractor Defaults
described in Sections 20.1.1(c), (d), (e), (h),and through (q)) is capable of cure but, by its
nature, cannot be cured within 15 days, as determined by RCTC, such additional period of time
shall be allowed as may be reasonably necessary to cure the DB Contractor Default, so long as
DB Contractor commences such cure within such 15-day period and thereafter diligently
prosecutes such cure to completion; except that, in no event shall such cure period exceed
60 days in total.
(d) In the event of a DB Contractor Default under Section 20.1.1(d), (e) or
(h), DB Contractor shall be entitled to seven days' Notice and opportunity to cure.
(e) DB Contractor acknowledges and agrees that the DB Contractor
Defaults described in Sections 20.1.1(c), (f), and (j) through (q) are not curable and no notice or
cure period shall apply; except that, if a DB Contractor Default under Section 20.1.1(m) or Section
20.1.1(n) arises due solely to the specified acts or events of a Guarantor, then DB Contractor
shall have an opportunity to cure such DB Contractor Default, within two Business Days after the
occurrence thereof (without any requirement of notice from RCTC), by providing RCTC with
alternative security, which security must be in a form satisfactory to RCTC, in its sole discretion.
(f) Notwithstanding the foregoing, RCTC may, without Notice and without
awaiting lapse of the period to cure any DB Contractor Default, in the event of existence of a
condition on or affecting the Project which RCTC believes poses an immediate and imminent
danger to revenues or public health or safety, rectify the dangerous condition at DB Contractor's
cost, and so long as RCTC undertakes such action in good faith, even if under a mistaken belief
in the occurrence of such DB Contractor Default, such action shall not expose RCTC to any
liability to DB Contractor and shall not entitle DB Contractor to any other remedy, it being
acknowledged that RCTC has a paramount public interest in providing and maintaining safe public
use of and access to the Project. RCTC's good faith determination of the existence of such
danger shall be deemed conclusive in the absence of clear and convincing evidence to the
contrary.
20.2. Remedies
20.2.1. If any DB Contractor Default is not subject to cure or is not cured within the
applicable cure period (if any) specified in Section 20.1.2, RCTC may provide Notice to
DB Contractor that an "Event of Default" has occurred. In addition to all other rights and remedies
provided by law or in equity, and such rights and remedies as are otherwise available under this
Contract, the Performance Bond, the Warranty Bond and/or the Guaranty, if an Event of Default
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 137 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
occurs, then RCTC may without further notice and without waiving or releasing DB Contractor
from any obligations, and DB Contractor shall have the following obligations (as applicable):
(a) RCTC may terminate this Contract in whole or part, including
DB Contractor's rights of entry upon the Site and possession, control and operation of the Project,
in which case, the provisions of Sections 19.3 and 19.4 shall apply;
(b) If and as directed by RCTC, DB Contractor shall discontinue the Work,
withdraw from the Site, and shall remove materials, equipment, tools, and instruments used by,
and any debris or waste materials generated by, any DB-Related Entity in the performance of the
Work;
(c) DB Contractor shall deliver to RCTC possession of any or all Design
Documents, Construction Documents, and all other completed or partially completed drawings
(including plans, elevations, sections, details and diagrams), specifications, records, information,
schedules, samples, shop drawings, electronic files and other documents and facilities related to
the Project that RCTC deems necessary to complete the Work;
(d) DB Contractor shall confirm the assignment to RCTC of the
Subcontracts requested by RCTC, and DB Contractor shall terminate all other Subcontracts;
(e) RCTC may deduct from any amounts payable by RCTC to
DB Contractor such amounts payable by DB Contractor to RCTC, including: (i) the aggregate of
reimbursements owing; (ii) Liquidated Damages; (iii) Lane Closure Charges; (iv) Flagging
Charges; (v) 125% of the amounts RCTC deems advisable to cover any existing or threatened
claims, Liens, and stop payment notices of Subcontractors, laborers, or other Persons; (vi)
amounts of any Losses or Third Party Claims that have accrued; (vii) the cost to complete or
remediate uncompleted Work or Nonconformances, plus an administrative charge equal to 10%
of such costs; and (viii) other damages or amounts that RCTC has determined are or may be
payable to RCTC under this Contract;
(f) RCTC may pay such amounts and/or perform such act as may then be
required from DB Contractor under this Contract or Subcontracts;
(g) RCTC 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 Project or may
enter into an agreement to complete the Project according to the terms and provisions hereof with
another contractor or the Surety, or use such other methods as may be required to complete the
Project, including completion of the Project by RCTC; and/or
(h) If RCTC exercises any right to perform any obligations of DB
Contractor, in the exercise of such right RCTC may: (i) perform or attempt to perform, or cause to
be performed, such work; (ii) spend such sums as RCTC deems necessary and reasonable to
employ and pay such architects, engineers, consultants and contractors, and obtain materials
and equipment as may be required to complete such work; (iii) execute all applications,
certificates and other documents as may be required to complete the work; (iv) modify or terminate
any contractual arrangements; (v) take any other actions that RCTC may consider necessary to
complete the Work; and (vi) prosecute and defend any action or proceeding incident to the Work.
20.2.2. If an Event of Default occurs, DB Contractor, any Guarantor and Surety shall
be jointly and severally liable to RCTC for all Losses incurred by RCTC or any party acting on
RCTC's behalf to complete the Work, or to have the Work completed by another Person (including
any re -procurement costs, throw -away costs for unused portions of the completed Work, and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 138 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
increased financing costs). Upon occurrence of an Event of Default and for so long as the Event
of Default continues, RCTC may withhold all or any portion of further payments to DB Contractor
until the Final Acceptance Date or the date on which RCTC otherwise accepts the Project as
complete or determines that it will not proceed with completion, at which time RCTC will determine
whether DB Contractor is entitled to further payments. Promptly following the Final Acceptance
Date or the date on which RCTC 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
RCTC shall provide Notice to DB Contractor, Surety and each Guarantor of the amount, if any,
that DB Contractor, each Guarantor, and the Surety shall pay RCTC or RCTC shall pay DB
Contractor or its Surety with respect thereto. RCTC will deduct, from any moneys due or which
will become due DB Contractor or its Surety, all costs and charges incurred by RCTC, including
attorneys', accountants' and expert witness fees and costs; together with: (a) the cost of
completing the Work (which shall include all Plant Establishment Work) under this Contract
together with an administrative charge of 10% of such costs; (b) any reimbursements owing to
RCTC; (c) any Liquidated Damages, Lane Closure Charges and Flagging Charges; (d) 125% of
the amounts RCTC deems advisable to cover any existing or threatened claims, Liens and stop
payment notices of Subcontractors, laborers or other Persons; (e) the amounts of any Losses or
Third Party Claims that have accrued; and (f) other damages or amounts that RCTC has
determined are or may be payable to RCTC under this Contract. If such expense exceeds the
sum which would have been payable under the Contract, then DB Contractor, each Guarantor
and its Surety(ies) shall be liable and shall pay to RCTC the amount of such excess. If any
Guarantor or the Surety fails to pay such amount immediately upon RCTC's demand, then RCTC
may collect interest from the Surety and/or such Guarantors on the amounts DB Contractor is
required to pay in excess of the remaining balance of the Contract Price. The interest rate which
the Surety and/or such Guarantors shall pay shall be the lesser of (i) 10% per annum or (ii) the
maximum rate allowable under applicable Governmental Rules. The interest rate shall accrue on
all amounts RCTC has had to pay in excess of the remaining balance of the Contract Price from
the date of RCTC payment.
20.2.3. DB Contractor acknowledges that if a DB Contractor Default under
Section 20.1.1(m) through 20.1.1(p) occurs, such event could impair or frustrate DB Contractor's
performance of the Work. Accordingly, DB Contractor agrees that upon the occurrence of any
such DB Contractor Default, RCTC may request of DB 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 ten days of delivery of the request shall entitle RCTC
to terminate the Contract and to the accompanying rights set forth above. Pending receipt of
adequate assurance of performance and actual performance in accordance therewith, RCTC may
proceed with the Work with its own forces or with other contractors on a time and material or other
appropriate basis, the cost of which (plus an administrative charge of 10% of such cost) will be
credited against and deducted from RCTC's payment obligations under this Contract. The
foregoing shall be in addition to all other rights and remedies provided by law or equity and such
rights and remedies as are otherwise available under this Contract, the Performance Bond and
the Guaranty.
20.2.4. In lieu of the provisions of this Section 20.2 for terminating the Contract and
completing the Work, RCTC may pay DB Contractor for the Work already done according to the
provisions of this Contract (including RCTC's right to deduct certain amounts therefrom) and may
treat the Work remaining undone as if they had never been included or contemplated by this
Contract. No claim under this provision will be allowed for prospective profits on, or any other
compensation relating to, Work uncompleted by DB Contractor.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 139 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
20.2.5. In the event that the Contract is terminated for grounds which are later
determined not to justify a termination for default, such termination shall be deemed to constitute
a termination for convenience pursuant to Section 19.
20.2.6. The exercise or beginning of the exercise by RCTC of any one or more rights
or remedies under this Section 20.2 shall not preclude the simultaneous or later exercise by
RCTC of any or all other such rights or remedies, each of which shall be cumulative.
20.2,7. DB Contractor, each Guarantor and Surety shall not be relieved of liability for
continuing Liquidated Damages, Lane Closure Charges or Flagging Charges on account of a DB
Contractor Default by DB Contractor under this Contract or by RCTC's declaration of an Event of
Default, or by actions taken by RCTC under this Section 20.2.
20.2.8. In the event RCTC suffers Losses as a result of any act or omission of any DB-
Related Entity or any DB Contractor Fault, then, subject to the limitation on liability contained in
Section 22, RCTC may recover such Losses from DB Contractor regardless of whether the
breach or failure that gives rise to the damages ripens into an Event of Default.
20.2.9. RCTC's remedies associated with any false statement contained in the
Proposer Questionnaire included in the Proposal or the questionnaire included in the Statement
of Qualifications shall include the right to rescind the Contract.
20.3. Right to Stop Work for Failure by RCTC to Make Undisputed Payment
DB Contractor may stop Work if RCTC fails to make an undisputed payment due under this
Contract within 30 days after receipt of Notice of nonpayment. Any such Work stoppage shall be
considered a suspension for convenience under Section 17. DB Contractor shall not have the
right to terminate the Contract for default as the result of any failure by RCTC to make an
undisputed payment due under this Contract. However, if such nonpayment continues for more
than 180 days, upon Notice from DB Contractor to RCTC, DB Contractor may declare a
Termination for Convenience under Section 19 by delivering to RCTC a Notice of termination
specifying its effective date. Upon such termination, the Parties' rights and obligations shall be
as provided in Section 19.
20.4. Event of Default Due Solely to DB Contractor's Failure to Achieve Completion
Deadlines
20.4,1, If an Event of Default consists solely of DB Contractor's failure to achieve
Substantial Completion, Project Completion, or Final Acceptance by the applicable Completion
Deadline, RCTC's sole monetary remedy for such Event of Default shall be the right to assess
Liquidated Damages under Section 21.1; provided, however, that: (a) such Event of Default does
not delay Substantial Completion, Project Completion, or Final Acceptance beyond 180-days of
the applicable Completion Deadline; and (b) DB Contractor continues to diligently perform the
Work despite such Event of Default. Nothing in this Section 20.4 shall prejudice any other rights
or remedies that RCTC may have due to any other Event of Default during such 180-day period.
20.4.2. If any Completion Milestone has not occurred within 180-days of the applicable
Completion Deadline, RCTC may: (a) terminate this Contract; (b) continue to assess Liquidated
Damages subject only to the limitations in Section 21.1; and/or (c) exercise any other right or
remedy under this Contract, at law or in equity.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 140 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 21
LIQUIDATED DAMAGES
21.1. Liquidated Damages for Delay in Completion
21.1.1. DB Contractor shall be liable for and pay to RCTC Liquidated Damages with
respect to any failure to achieve a Completion Milestone by the applicable Completion Deadline.
This liability shall apply to DB Contractor whether a cure period remains available to DB
Contractor or a cure occurs. The amounts of Liquidated Damages under this Section 21.1 are as
follows:
(a) $30,000 for each day Substantial Completion is delayed beyond the
Substantial Completion Deadline, not to exceed 365 days;
(b) $10,000 for each day Project Completion is delayed beyond the Project
Completion Deadline, not to exceed 365 days; and
(c) $10,000 for each day Final Acceptance is delayed beyond the Final
Acceptance Deadline, not to exceed 365 days.
21.1.2. The Liquidated Damages under this Section 21.1 shall commence on the
applicable Completion Deadline, and shall continue to accrue until the date of the applicable
Completion Deadline, or until termination of this Contract. Such Liquidated Damages shall
constitute RCTC's sole right to monetary damages for Completion Deadline delay.
21.1.3. The application of Liquidated Damages under this Section 21.1, shall not: (a)
liquidate DB Contractor's liability under the indemnification provisions of Section 23, even though
Third Party Claims against Indemnified Parties may arise out of the same event, breach, or failure
that gives rise to the Liquidated Damages; or (b) limit RCTC's rights to terminate this Contract
under Section 19 or Section 20.
21.2. Lane Closure Charges for Lane Closures on General Purpose Lanes, 91 Express
Lanes and 15 Express Lanes
21.2.1. DB Contractor shall perform the Work in a manner that will reasonably
minimize impacts to the operations of the GP Lanes, 15 Express Lanes and the 91 Express Lanes,
including minimizing Lane Closures.
21.2.2. For Lane Closures between NTP1 and the end of the Warranty Period (or as
otherwise expressly stated in Exhibits 19-22), DB Contractor shall be liable for and pay the
following fees and/or charges to RCTC. Numbered "Segments" referenced below are as shown
in TP Attachment 18-3:
(a) Permitted GP Lane Closures at the locations and during the periods
identified in TP Attachment 18-1, shall be at no charge to DB Contractor, so long as the Lane
Closure complies with the requirements for Lane Closures in this Contract. Where a Permitted
GP Lane Closure goes beyond or outside the duration approved by RCTC or does not comply
with the requirements for Lane Closures in this Contract, it is an Unpermitted GP Lane Closure
and Section 21.2.2(b) shall apply.
(b) For an Unpermitted GP Lane Closure, DB Contractor shall pay GP
Lane Closure Charges for each affected GP Lane as set forth in Exhibit 19 (GP Lane Closure
Charges).
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 141 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(c) For Permitted 15 EL Closures of Segment 1 Northbound, Segment 2
Northbound, Segment 1 Southbound, and Segment 2 Southbound, DB Contractor shall pay 15
EL Closure Charges for each affected EL Segment as set forth in Exhibit 20 — Chart 20-1.
(d) For Permitted 15 EL Closures of Segment 3 Northbound, Segment 4
Northbound, Segment 3 Southbound, and Segment 4 Southbound, DB Contractor shall pay 15
EL Closure Charges for each affected EL Segment as set forth in Exhibit 20 — Chart 20-2.
(e) For Unpermitted 15 EL Closures of Segment 1 Northbound, Segment
2 Northbound, Segment 1 Southbound, and Segment 2 Southbound, DB Contractor shall pay 15
EL Closure Charges for each affected EL Segment as set forth in Exhibit 20 — Chart 20-3.
(f) For Unpermitted 15 EL Closures of Segment 3 Northbound, Segment
4 Northbound, Segment 3 Southbound, and Segment 4 Southbound, DB Contractor shall pay 15
EL Closure Charges for each affected EL Segment as set forth in Exhibit 20 — Chart 20-4.
(g) For a Permitted 91 RCTC Westbound EL Closure, DB Contractor shall
pay 91 EL Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-1.
(h) For a Permitted 91 RCTC Eastbound EL Closure, DB Contractor shall
pay 91 EL Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-2.
(i) For an Unpermitted 91 RCTC EL Closure, DB Contractor shall pay 91
EL Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-3.
(j) For a Permitted 91 OCTA EL Closure, DB Contractor shall pay 91 EL
Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-4.
(k) For an Unpermitted 91 OCTA EL Closure, DB Contractor shall pay 91
EL Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-5.
(I) For a Permitted ELC Lane Closure, DB Contractor shall pay ELC Lane
Closure Charges for each affected EL as set forth in Exhibit 22 — Chart 22-1.
(m) For an Unpermitted ELC Lane Closure, DB Contractor shall pay ELC
Lane Closure Charges for each affected EL as set forth in Exhibit 22 — Chart 22-2.
21.2.3. DB Contractor shall pay the Lane Closure Charges owing under this Contract
to RCTC as and when provided in TP Sections 18.3.3.1 and 18.3.3.2, as applicable.
21.2.4. Without limiting Section 21.7, if DB Contractor fails to timely make any timely
payment of Lane Closure Charges, then:
(a) RCTC may prohibit DB Contractor from pursuing or implementing any
further Permitted Lane Closures, until such past due payments are made; and
(b) DB Contractor shall not be entitled to any compensation, time extension
or otherwise make any Claim arising out of any inability to pursue or implement such Permitted
Lane Closures.
21.2.5. When RCTC permits or requires DB Contractor to proceed with a Permitted
Lane Closure after DB Contractor has failed to timely pay Lane Closure Charges, as provided in
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 142 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
this Contract, this shall not waive RCTC's or OCTA's right to receive damages under this Contract
or any rights or remedies otherwise available to RCTC or OCTA, as applicable.
21.3. Liquidated Damages for Failure to Comply with Requests for Lane Closures of
General Purpose Lanes
DB Contractor shall be subject to Liquidated Damages under this Section 21.3 for failure to comply
with requests for GP Lane Closures (including failure to timely cancel). Subject to the monthly
threshold in TP Section 18.3.3.1.1, the amount of Liquidated Damages owing from DB Contractor
to RCTC for each failure shall be $5,000. These Liquidated Damages are in addition to any fees
or costs associated with the Construction Zone Enhanced Enforcement Program ("COZEEP"),
which DB Contractor shall reimburse RCTC for in accordance with TP Section 18.4.1.2.
21.4. Liquidated Damages for DB Contractor's Failure to Timely Cancel BNSF Flagging
Services
Subject to the monthly aggregate thresholds in TP Section 8.4.2, DB Contractor shall be subject
to Liquidated Damages under this Section 21.4 in the amount of $20,000, in each instance, if
DB Contractor (a) fails to utilize BNSF flagging services its requests under Section 8.1.7(e)
(including in the manner for which such flagging services were requested), or (b) fails to provide
RCTC advance Notice canceling the requested flagging services at least 72 hours before the date
and time the requested flagging services are scheduled to commence.
21.5. Liquidated Damages for Unavailability of Key Personnel
DB Contractor shall be subject to Liquidated Damages for unavailability of Key Personnel to work
on the Project, in accordance with Section 9.6.
21.6. Pavement Adjustments; Liquidated Damages for Net Negative Pavement
Adjustments
21.6.1. Construction of new pavement for the Project shall comply with all Contract
requirements, including TP Section 11 and Department Standard Specifications.
21.6.2. Subject to DB Contractor's obligations with respect to performance of
Corrective Measures under TP Section 11.4, if, at either Package 2 Turnover, Package 3
Turnover or Substantial Completion, any 0.10-mile segment of new pavement within the Project
(as applicable) has an MRI measured value of less than 85.0, RCTC will calculate the sum total
of each 0.10-mile segment's Pavement Adjustment (i.e., pavement deductions or credits against
pavement deductions) in accordance with the following table (each, a "Pavement Adjustment"):
MRI
Measured
Value
< 45.0
Pavement Adjustment Per 0.10-Mile Segment of the Project (as applicable)
DB Contractor credit of $1500 against any pavement deduction
45.1
— 55.0
DB Contractor credit $1000 against any pavement deduction
55.1
— 65.0
No adjustment
65.1
— 75.0
DB Contractor to pay RCTC $3500 as a pavement deduction
75.1
— 85.0
DB Contractor to pay RCTC $5000 as a pavement deduction
Riverside County Transportation Commission
Express Lanes Connector Project
Design -Build Contract
143 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
MRI
Measured
Value
> 85.0
Pavement Adjustment Per 0.10-Mile Segment of the Project (as applicable)
DB Contractor shall perform Corrective Measures in accordance with TP Section 11.4.
21.6.3. Subject to Section 21.6.4, where a Pavement Adjustment results in a net
negative Pavement Adjustment, DB Contractor shall pay RCTC such amount as Liquidated
Damages in accordance with Section 21.7.
21.6.4. Where a Pavement Adjustment results in a net positive Pavement
Adjustment, such net positive Pavement Adjustment will constitute a Compensable Event,
entitling DB Contractor to additional compensation in an amount no greater than 100% of the
positive Pavement Adjustment.
21.6.5. For illustrative purposes only, as examples:
If Package 2 there are eight 0.10-mile segments with MRI measurements < 45.0,
three 0.10-mile segments with MRI measurements between 65.1 and 75.0, and
two 0.1-mile segments with MRI measurements between 75.1-85.0, the net
negative Pavement Adjustment would be -$8,500, and DB Contractor shall pay
RCTC $8,500 calculated as follows:
8 x ($1,500) — 3 x ($3,500)) — 2 x ($5,000) = -$8,500.
If, in the above example, for Package 2, there was a net positive Pavement
Adjustment of $3,000, then DB Contractor would not owe any Pavement
Adjustment to RCTC for Package 2. However, the $3,000 for Package 2 would
offset a net negative Pavement Adjustment owing for Substantial Completion up
to $3,000. Accordingly, if, consistent with the above example for Package 2, there
is a net negative Pavement Adjustment of -$8,500, DB Contractor shall pay RCTC
$5,000 calculated as follows at Substantial Completion:
-$8,500 + $3,000 =-$5,000
21.7. Acknowledgements Regarding Liquidated Damages, Lane Closure Charges and
Flagging Charges
21.7.1. The Parties acknowledge and agree that if DB Contractor fails to comply with
certain obligations under this Contract, DB Contractor shall be liable to RCTC or OCTA, as
applicable, for liquidated damages. Liquidated damages (collectively, "Liquidated Damages"),
Lane Closure Charges and Flagging Charges shall apply and be payable in accordance with
Sections 21.1, 21.2, 21.3, 21.4, 21.5 21.6 and 21.9.
21.7.2. The Parties acknowledge and agree:
(a) That RCTC or OCTA, as applicable, shall incur damages that are
incapable of accurate measurement, because of, among other things the unique nature of the
Project and the unavailability of a substitute for it. Such damages include loss of use, enjoyment
and benefit of the Project, the 91 Express Lanes and connecting RCTC transportation facilities
by the general public, injury to the credibility and reputation of RCTC's and OCTA's transportation
improvement program with policy makers and with the general public who depend on and expect
availability of service on the Project, 15 Express Lanes and 91 Express Lanes, which injury to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 144 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
credibility and reputation may directly result in loss of ridership on the Project, 15 Express Lanes
and 91 Express Lanes, and additional costs of administering this Contract (including engineering,
legal, accounting, overhead and other administrative costs);
(b) To fix the Liquidated Damages, Lane Closure Charges and Flagging
Charges payable by DB Contractor to RCTC or OCTA (as applicable) in the event of the
Liquidated Damages Events, Lane Closure Charges and Flagging Charges (as applicable) and
avoid later Disputes over what amounts of damages are properly chargeable to DB Contractor for
such Liquidated Damages Events given the difficulties of the proof of loss, and the inconvenience
or infeasibility of otherwise obtaining an adequate remedy;
(c) That the Liquidated Damages, Lane Closure Charges and Flagging
Charges are reasonable and represent good faith estimates and evaluations by the Parties as to
the actual, potential damages or harm RCTC or OCTA (as applicable) would incur as a result of
the applicable Liquidated Damages Event, Lane Closure Charges or Flagging Charges (as
applicable);
(d) That the Parties intend for the Liquidated Damages in Section 21.1 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; and
(e) The Liquidated Damages, Lane Closure Charges and Flagging
Charges (as applicable) do not constitute a penalty.
21.8. Payment; Offset; Reduction; Waiver; Non -Exclusive Remedy
21.8.1. Except for the Liquidated Damages set out in Section 21.2.3, DB Contractor
shall pay any Liquidated Damages, Lane Closure Charges and Flagging Charges owing, within
ten Business Days after DB Contractor's receipt of RCTC's invoice or demand therefor.
21.8.2. RCTC may deduct and offset any unpaid Liquidated Damages, Lane Closure
Charges and Flagging Charges from any amounts owed by RCTC to DB Contractor, including
any Retainage which may be payable by RCTC to DB Contractor pursuant to Section 14.3.1.
RCTC also may draw on any bond, certificate of deposit, letter of credit or other security provided
by DB Contractor pursuant to this Contract to satisfy Liquidated Damages, Lane Closure Charges
and Flagging Charges not paid when due.
21.8.3. Permitting or requiring DB Contractor to continue and finish the Work or any
part thereof after a Completion Deadline as applicable shall not act as a waiver of RCTC's right
to receive Liquidated Damages, Lane Closure Charges and Flagging Charges under this Contract
or any rights or remedies otherwise available to RCTC.
21.8.4. Subject to Section 20.4, RCTC's right to, and imposition of, Liquidated
Damages, Lane Closure Charges and Flagging Charges are in addition, and without prejudice, to
any other rights and remedies available to RCTC under this Contract, at law or in equity respecting
the breach, failure to perform or DB Contractor Default, except for recovery of the monetary
damage that the Liquidated Damages, Lane Closure Charges and Flagging Charges are intended
to compensate.
21.9. Liquidated Damages for Failure to Comply with Time Limitation for SR-91
Eastbound Lane Closure
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 145 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(a) DB Contractor's closure of the eastbound SR-91 GP number 4 lane in
compliance with the requirements specified in TP Section 18.3.3.1.2 shall be a Permitted Lane
Closure for a period of not more than 396 consecutive days. If such Permitted Lane Closure goes
beyond 396 days or does not comply with the requirements for Lane Closures in this Contract, it
shall be an Unpermitted Lane Closure for each day of closure in excess of 396 days, and each
day in noncompliance with the requirements specified in TP Section 18.3.3.1.2, in which case
Section 21.9(b) shall apply.
(b) For an Unpermitted Lane Closure of the eastbound SR-91 GP number
4 lane, DB Contractor shall be subject to Liquidated Damages under this Section 21.9 in the
amount of $5,000 per day of such Unpermitted Lane Closure.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 146 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 22
LIMITATION OF DB CONTRACTOR'S LIABILITY
22.1. Limitation of Liability
To the extent permitted by Governmental Rules, DB Contractor's liability under this Contract to
RCTC for all damages (including (i) actual, special or multiple damages; and (ii) indirect,
incidental, consequential or punitive damages for which DB Contractor is liable under Section
22.2) whether arising in contract, negligence or other tort, or any other theory of law shall not
exceed the sum of:
(a) All those costs reasonably incurred by RCTC or any party acting on
RCTC's behalf to complete or correct the Work, or to have the Work completed or corrected by
another Person, including costs as described in Section 24; plus
(b) An amount equal to $65,000,000 (which amount shall specifically
include any Liquidated Damages paid under Section 21.1 and without limiting Section 22.1(c), DB
Contractor's indemnities under Section 23 regarding third party suits, actions, proceedings,
judgments and claims); plus
(c) Any amounts paid or payable by or on behalf of DB Contractor which
are covered by insurance proceeds required to be carried under this Contract, or for which DB
Contractor was required to provide insurance if coverage is not in force; plus
(d) All Losses incurred by any Indemnified Party in connection with,
relating to or arising out of any illegal activities, fraud, recklessness, criminal conduct, gross
negligence, bad faith or intentional misconduct on the part of any DB-Related Entity; plus
(e) Losses arising out of DB Contractor Release of Hazardous Materials;
plus
(f)
(g)
Section 21.1).
Lane Closure Charges and Flagging Charges; and plus
Liquidated Damages (excluding Liquidated Damages under
22.2. Consequential Damages
22.2.1. Except as otherwise expressly specified in this Contract, including this
Section 22, to the extent permitted by applicable Governmental Rules, neither Party shall be liable
to the other for punitive, indirect, incidental or consequential damages, whether arising out of
breach of this Contract, tort (including negligence) or any other theory of liability, with the
understanding that lost toll revenues other than those covered by Liquidated Damages, Lane
Closure Charges or Flagging Charges payable under this Contract shall be considered as
consequential damages for purposes of this Section 22.2, and each Party releases the other Party
from any such liability.
22.2.2. The limitations on DB Contractor's liability under this Section 22.2 shall not
apply to or limit any right of recovery RCTC may have with respect to the following (and DB
Contractor agrees that it shall not assert the application of Section 22.2.1 against any such item,
obligation, liability or Losses):
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 147 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(a) Any amounts paid or payable by or on behalf of DB Contractor which
are covered by insurance proceeds required to be carried under this Contract, or for which DB
Contractor was required to provide insurance if coverage is not in force;
(b) Losses in connection with any illegal activities, fraud, recklessness,
criminal conduct, intentional misconduct, bad faith, or gross negligence on the part of any DB-
Related Entity;
(c) DB Contractor's indemnities under Section 23 or elsewhere in this
Contract;
(d) DB Contractor's obligation to pay Lane Closure Charges, Flagging
Charges or Liquidated Damages under this Contract; and
(e) Losses arising out of DB Contractor Release of Hazardous Materials.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 148 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 23
INDEMNIFICATION
23.1. Indemnifications by DB Contractor
23.1.1. Subject to Section 23.1.2, DB Contractor shall release, defend, indemnify and
hold harmless the Indemnified Parties from and against any and all Claims and Losses in
connection with the following (each an "Indemnified Claim"):
(a) The breach or alleged breach of this Contract by any DB-Related Entity;
(b) The failure or alleged failure by any DB-Related Entity to comply with
the Governmental Approvals or Governmental Rules (including any Environmental Laws);
(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 connection with the Project, this Contract and the Work and/or
the system of methods, processes, designs, information or other items provided or communicated
to RCTC or another Indemnified Party in accordance with this Contract; provided that if
infringement can be avoided by modification to the allegedly infringing article, RCTC agrees to
allow such modification unless the form, fit, or function of the allegedly infringing article or the
system is, in RCTC's sole determination, adversely affected; and further provided that this
indemnity shall not apply to any infringement to the extent directly and solely resulting from: (i)
RCTC's material failure to comply with a material specific prior written instruction regarding use
provided to RCTC by DB Contractor; (ii) compliance with written specifications prescribed by
RCTC with respect to which: (1) DB Contractor has complied in full; (2) the reason for the
infringement solely and directly arises out of RCTC's specifications; and (3) DB Contractor has
notified RCTC in writing in advance of potential infringement and RCTC has directed DB
Contractor to proceed and disregard the potential infringement; or (iii) material modifications to
the deliverables directed by RCTC and not made by a DB-Related Entity;
(d) The actual or alleged negligent act, error or omission, illegal activities,
fraud, recklessness, criminal conduct, intentional misconduct, bad faith or gross negligence or of
any DB-Related Entity or any DB Contractor Fault in or associated with performance of the Work
and/or this Contract;
(e) Any and all Claims by any Governmental Entity or taxing authority
claiming taxes based on gross receipts, purchases or sales, the use of any property or income of
any DB-Related Entity or any of their respective agents, officers or employees with respect to any
payment for the Work made to or earned by any DB-Related Entity;
(f) Any and all stop payment notices and/or Liens filed in connection with
the Work, including all reasonable expenses and attorneys', accountants' and expert witness fees
and costs incurred in discharging any stop payment notice or Lien and any other liability to
Subcontractors for failure to pay sums due for their work or services; provided that RCTC is not
in default in undisputed payments owing to DB Contractor with respect to such Work;
(g) Any DB Contractor Release of Hazardous Materials;
(h) To the extent of the negligence of any DB-Related Entity or failure to
comply with DB Contractor's obligations under Section 3 or Section 25; the claim or assertion by
Pavement Contractor or any other contractor (excluding Other RCTC Contractors) that any DB-
Related Entity (i) interfered with or hindered the progress or completion of work being performed
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 149 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
by such other contractor, so as to cause inconvenience disruption, delay, or loss, except where
the DB-Related Entity was not in any manner engaged in performance of the Work, or (ii) failed
to cooperate reasonably with other contractors in accordance therewith;
(i) DB Contractor's performance of, or failure to perform, the obligations
under any Utility Agreement or BNSF Construction & Maintenance Agreement(s) which are DB
Contractor's responsibility pursuant to this Contract, or any dispute between DB Contractor and
a Utility Owner as to whether work relating to a Relocation constitutes a Betterment;
(j) Any DB-Related Entity's breach of or failure to perform an obligation
that RCTC owes to a third Person, including Governmental Entities, Utility Owners, and BNSF,
under law or under any agreement between RCTC and a third Person, where (i) RCTC has
delegated performance of the obligation to DB Contractor under this Contract, or (ii) the acts or
omissions of any DB-Related Entity which render RCTC unable to perform an obligation that
RCTC owes to a third Person, including Governmental Entities, Utility Owners, and BNSF, under
any agreement between RCTC and a third Person, where the agreement was expressly disclosed
to DB Contractor;
(k) Inverse condemnation, trespass, nuisance, or similar taking of or harm
to real property by reason of (i) the failure of any DB-Related Entity to comply with Good Industry
Practices, requirements of this Contract, Project Management Plan or Governmental Approvals,
(ii) the fraud, criminal conduct, bad faith, intentional misconduct, recklessness or negligence of
any DB-Related Entity, or (iii) the actual physical entry onto or encroachment upon another's
property by any DB-Related Entity not permitted under this Contract;
(I) Any failure to pay any Liquidated Damages, Lane Closure Charges of
Flagging Charges under this Contract; and/or.
(m) Subject to Section 23.1.2, Errors in the Design Documents provided by
DB Contractor (including those pertaining to Relocations), regardless of whether such Errors were
also included in the Basic Configuration, Project Schematics, or other Reference Documents. DB
Contractor agrees that, because the concepts in the Basic Configuration, Project Schematics and
other Reference Documents are subject to review and modification by DB Contractor, (i) it is
appropriate for DB Contractor to assume liability for Errors in the completed Project even though
they may be related to Errors in the Basic Configuration, Project Schematics, and other Reference
Documents, and (ii) such documents shall not be deemed "design furnished" by RCTC or any of
the other Indemnified Parties, as the term "design furnished" is used in Civil Code section 2782
and as it pertains to Section 23.1.4(a). DB Contractor agrees to waive the benefit (if any) of Civil
Code section 2782 and agrees that this Section 23.1.1(m) constitutes an agreement governed by
Civil Code section 2782.5.
23,1.2. Subject to the releases and disclaimers under this Contract, DB Contractor's
indemnity under this Section 23 shall not extend to any Claim or Losses to the extent that such
Claim or Losses were directly caused by:
(a) Without limiting Section 23.1.4(a) the active negligence, gross
negligence, reckless or willful misconduct, bad faith or fraud of such Indemnified Party;
(b) RCTC's material breach of any of its obligations under this Contract; or
(c) An Indemnified Parties material violation of any applicable
Governmental Rules or Governmental Approvals.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 150 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
23.1.3. With respect to Claims by an employee of DB 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 23 shall not be limited by any limitations under
workers' compensation, disability benefit or other employee benefits laws, including limitations on
the amount or type of damages, compensation or benefits payable by or for DB Contractor or a
Subcontractor.
23.1.4. The following restrictions shall apply to the indemnities in Sections 23.1.1.
(a) 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
DB Contractor for the active negligence of RCTC, or to relieve RCTC of liability for such active
negligence.
(b) With respect to Work performed by a design professional as defined in
California Civil Code section 2782.8, such indemnities shall apply only to the extent permitted by
said section 2782.8.
(c) In Claims by an employee of DB 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 23 is not limited by a limitation on the amount or type
of damages, compensation or benefits payable by or for DB Contractor or a Subcontractor under
workers' compensation, disability benefit or other employee benefits laws.
(d) DB Contractor is advised that Utility Agreements and the BNSF
Construction & Maintenance Agreement(s) may include certain agreements by RCTC to
indemnify, defend and hold harmless the Utility Owners and BNSF with respect to certain matters.
DB Contractor's obligations under this Section 23 shall automatically apply to require DB
Contractor, subject to Section 23.1.2, to release, indemnify, defend and hold harmless the Utility
Owners, BNSF and their employees and agents, in addition to the Indemnified Parties, with
respect to all such matters. If any Utility Agreements or BNSF Construction & Maintenance
Agreement(s) contain provisions requiring RCTC's contractor(s) to indemnify, save and hold
harmless the Utility Owner with respect to any matters, then, subject to Section 23.1.2,
DB Contractor agrees to and shall perform and comply with such provisions of the Utility
Agreements for the benefit of the Utility Owners, their employees and agents.
(e) The requirement to provide an indemnity for breach or alleged breach
of this Contract as provided in Section 23.1.1(a) is intended to provide protection to RCTC with
respect to third -party claims associated with such breach or alleged breach. It is not intended to
provide RCTC with an alternative cause of action for damages incurred by RCTC with respect to
such breach or alleged breach.
23.2. Defense and Indemnification Procedures
23.2.1. If an Indemnified Party receives notice of a Claim or other item covered under
this Section 23, or otherwise has Actual Knowledge of an Indemnified Claim that it believes is
within the scope of the indemnities provided under this Section 23, then, as soon as practicable
after receipt of the Indemnified Claim, RCTC shall by Notice:
(a) Inform DB Contractor of the Indemnified Claim;
(b) Send to DB Contractor a copy of all written materials RCTC has
received asserting such Indemnified Claim; and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 151 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(c) Notify DB Contractor that if no insurer accepts defense of the
Indemnified Claim, the Indemnified Party will conduct its own defense unless DB Contractor
accepts the tender of the Indemnified Claim in accordance with Section 23.2.4.
23.2.2. As soon as practicable after DB Contractor receives Notice of an Indemnified
Claim or otherwise has Actual Knowledge of an Indemnified Claim, it shall tender the Indemnified
Claim by Notice to the insurers under all potentially applicable insurance policies. RCTC and
other Indemnified Parties also may tender such Indemnified Claims directly to such insurers.
23.2.3. If the insurer under any applicable insurance policy accepts the tender of
defense, RCTC and DB Contractor shall cooperate in the defense as required by the insurance
policy. If no insurer under potentially applicable insurance policies provides defense, then
Section 23.2.4 shall apply.
23.2.4. If the defense is tendered to DB Contractor, then within 30 days after receipt
of the tender, DB Contractor shall notify the Indemnified Party whether it has tendered the matter
to an insurer and (if not tendered to an insurer or if the insurer has rejected the tender) shall
deliver a Notice stating that DB Contractor:
(a) Accepts the tender of defense and confirms that the Indemnified Claim
is subject to full indemnification under this Contract without any "reservation of rights" to deny or
disclaim full indemnification thereafter;
(b) Accepts the tender of defense but with a "reservation of rights" in whole
or in part; or
(c) Rejects the tender of defense based on a determination that it is not
required to indemnify against the Indemnified Claim under the terms of this Contract.
23.2.5. If DB Contractor accepts the tender of defense under Section 23.2.40),
DB Contractor may select legal counsel for the Indemnified Party, subject to reasonable approval
by the Indemnified Party, and DB Contractor shall otherwise control the defense of such
Indemnified Claim, including settlement, and bear the fees and costs of defending and settling
such Indemnified Claim; except that RCTC has the right of prior approval of any settlement that
waives any defenses or rights of RCTC, increases RCTC's risk, including Project risk, or relates
to or may impact the Work or the design, construction, operations, maintenance, financing, or
revenues of the Project. During such defense:
(a) DB Contractor shall fully and regularly inform the Indemnified Party in
writing of the progress of the defense and of any settlement discussions; and
(b) The Indemnified Party shall fully cooperate in said defense, provide to
DB Contractor all materials and access to personnel that DB Contractor requests as necessary
for defense, preparation and trial, and which or who are under the control of or reasonably
available to the Indemnified Party, and use reasonable efforts to maintain the confidentiality of all
communications between it and DB Contractor concerning such defense.
23.2.6. If DB Contractor responds to the tender of defense as specified in
Section 23.2.4(b) or 23.2.4(c), the Indemnified Party may select its own legal counsel and
otherwise control the defense of such Indemnified Claim, including settlement.
23.2.7. Notwithstanding DB Contractor's acceptance of a tender of defense under
Section 23.2.4(a) or 23.2.4(b), the Indemnified Party may assume its own defense by delivering
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 152 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
to DB Contractor Notice of such election and the reasons therefore, if the Indemnified Party, at
the time it gives Notice of the Indemnified Claim or at any time thereafter, reasonably determines
that:
(a) A conflict exists between the Indemnified Party and DB Contractor
which prevents or potentially prevents DB Contractor from presenting a full and effective defense;
(b) DB Contractor is otherwise not providing an effective defense in
connection with the Indemnified Claim; or
(c) DB Contractor lacks the financial capacity to satisfy potential liability or
to provide an effective defense.
23.2.8. If the Indemnified Party is entitled to and elects to conduct its own defense of
an Indemnified Claim for which it is entitled to indemnification under this Contract, DB Contractor
shall reimburse on a current basis all reasonable Costs and expenses the Indemnified Party
incurs in investigating and defending. If the Indemnified Party is entitled to and elects to conduct
its own defense, then:
(a) In the case of a defense that otherwise would be conducted under
Section 23.2.4(a), the Indemnified Party may settle or compromise the Indemnified Claim with DB
Contractor's prior written consent, which shall not be unreasonably withheld or delayed;
(b) In the case of a defense that otherwise would be conducted under
Section 23.2.4(b), the Indemnified Party may settle or compromise the Indemnified Claim with DB
Contractor's prior written consent, which shall not be unreasonably withheld or delayed, or with
approval of the court or arbitrator following reasonable notice to DB Contractor and opportunity to
be heard and without prejudice to the Indemnified Party's rights to be indemnified by DB
Contractor; and
(c) In the case of a defense conducted under Section 23.2.4(c), the
Indemnified Party shall have the right to settle or compromise the Indemnified Claim without DB
Contractor's prior written consent and without prejudice to its rights to be indemnified by DB
Contractor.
23.2.9. A refusal of, or failure to accept, a tender of defense, as well as any Dispute
over whether an Indemnified Party that has assumed control of defense is entitled to do so under
Section 23.2.6 shall be resolved in accordance with Section 24, but the foregoing shall not
preclude an Indemnified Party from preserving its rights or defending the claim pending such
resolution.
23.2.10. The Parties acknowledge that while this Section 23 contemplates that
DB Contractor will have responsibility for certain Indemnified Claims, circumstances may arise
where the Parties may share liability with respect to such Indemnified Claims and liabilities. In
such cases, where either Party believes that an Indemnified Claim or liability may entail shared
responsibility, and that principles of comparative negligence and indemnity are applicable, the
Party shall confer with the other Party on management of the Indemnified Claim or liability in
question. If the Parties cannot agree on an approach to representation in the matter in question,
each Party shall arrange to represent itself and to bear its own costs in connection therewith
pending the outcome of the matter. Within 30 days after the final, non -appealable resolution of
the matter in question (whether by settlement, arbitration or by judicial proceedings), the Parties
shall adjust the costs of defense, including reimbursement of reasonable attorneys' fees, and
other litigation and defense costs, in accordance with the indemnification arrangements of this
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 153 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Section 23.2, and consistent with the outcome of such proceedings concerning the respective
liabilities of the Parties on the Indemnified Claim.
23.2.11. In determining responsibilities and obligations for defending Indemnified
Claims under to this Section 23.2, specific consideration shall be given to the following factors:
(a) The party performing the activity in question;
(b) The location of the activity and incident;
(c) Contractual arrangements then governing the performance of the
activity; and
(d) Allegations of respective fault contained in the Indemnified Claim.
23.3. Responsibility of RCTC for Certain Hazardous Materials
The Parties acknowledge and agree that:
23.3.1. RCTC may assert that certain third persons or parties may rightfully bear the
ultimate legal responsibility for any and all Hazardous Materials that may currently be present on
the Site; and
23.3.2. Certain State and federal statutes provide that individuals and firms may be
held liable for damages and claims related to Hazardous Materials under such doctrines as joint
and several liability and/or strict liability. It is not the intention of the Parties that DB Contractor
be exposed to any such liability to the extent arising out of (a) proper Hazardous Materials
Management activities in connection with pre-existing Site contamination, whether known or
unknown, and/or (b) the activities of any Persons other than DB-Related Entities.
23.4. No Effect on Other Rights
The obligations in Sections 23.1 through 23.3 shall not be construed to negate, abridge or reduce
other rights or obligations which would otherwise exist in favor of an Indemnified Party under this
Contract.
23.5. CERCLA Agreement
The indemnities in Section 23.1.1(g) are intended to operate as agreements pursuant to section
9607(e) of the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. § 9607(e), and Health and Safety Code section 25364, to defend, indemnify
and hold harmless the Indemnified Parties.
23.6. Notification of Third Party Claim
RCTC and DB Contractor shall each provide timely notification to the other party of the receipt of
any third party claim relating to this Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 154 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 24
PARTNERING AND DISPUTE RESOLUTION
24.1. Partnering; Informal Process and mediation for Resolution of Claims
The Parties acknowledge that Public Contract Code section 9204 applies to Claims (as
defined thereunder) made by DB Contractor or its Subcontractors under this Contract, and that
this Section 24, and as pertains to "claims" under Public Contract Code section 9204, complies
in substance and procedure with Public Contract Code section 9204. To the extent that any
provision in this Section 24 conflicts with Public Contract Code section 9204, solely with respect
to "claims" thereunder, the procedures in Public Contract Code section 9204 shall control.
24.1.1. Partnering
(a) RCTC encourages partnering among DB Contractor, its
Subcontractors, TSP, RCTC, PCM, Department, FHWA and other stakeholders. Partnering is
intended to identify potential problem areas early in the progress of the Project. The parties shall
commence partnering sessions to address and establish a process for resolving them in order to
prevent them from becoming Claims or Disputes. Early in the progress of the Project, specific
interface issues, definition of the scope of Work, division of responsibilities, communication
channels, and application of alternative resolution principles shall guide partnering sessions so
as to prevent problems from becoming Claims or Disputes. The issues addressed in subsequent
partnering sessions will be determined by the parties to the partnering sessions as needed.
(b) The facilitator for the partnering sessions will be the individual in
Exhibit 2 (Contract Particulars), or another facilitator acceptable to DB Contractor, TSP and
RCTC. The cost of the partnering facilitator shall be shared equally among DB Contractor, TSP
and RCTC. Partnering meetings shall be conducted at the offices of RCTC, PCM or at such
location as otherwise agreed upon by the parties to the partnering sessions. An initial partnering
session will be conducted with DB Contractor, TSP, RCTC, PCM, Department and FHWA as soon
as possible after the Effective Date, but no later than the first 90 days. Follow up partnering
sessions shall be held quarterly throughout the term of this Contract. Persons who must attend
partnering sessions include key personnel and senior management officials of the Parties and
Department.
(c) Pursuant to Evidence Code sections 1119 and 1152, and Federal Rule
of Evidence 408, and similar prohibitions, oral and written statements made during partnering
sessions and statements of the facilitator shall not be admissible or discoverable in any judicial
or other dispute resolution proceeding.
24.1.2. Informal Process and Mediation for Resolution of Claims
(a) Notwithstanding anything to the contrary in this Contract, DB Contractor
shall deliver to RCTC a Notice of any potential Claim under this Contract. For purposes of clarity
the Notice sent under this Section 24.1.2(a) is not (i) the Notice sent under Section 24.2.2(a),
which initiates this Contract's dispute resolution process at such point a potential or actual Claim
becomes a Dispute or (ii) the Notice sent under Section 16.5.1(a), which initiates this Contract's
DB Contractor -initiated Change Order process.
(b) RCTC will provide a written statement identifying what portion of any
Claim is disputed and what portion is undisputed, if any, within 45 days (or, if any determination
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 155 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
requires approval from RCTC's governing body, three days after the next duly publicly noticed
meeting of such governing body after such 45 day period).
(c) Without limiting any other provision of this Contract (e.g., relating to
timely filing of Relevant Event Notices or other Notices), if DB Contractor disputes RCTC's written
response (or deemed response) to any Notice of potential Claim delivered by DB Contractor to
RCTC under this Contract, DB Contractor may notify RCTC, within ten Business Days of receipt
of RCTC's written or deemed response, that it wishes to proceed with informal discussion of the
matter through partnering or through a separate informal process as contemplated by Public
Contract Code section 9204. If the notification regarding the dispute of RCTC's written response
involves a DB Contractor "claim" as that term is defined in Public Contract Code section 9204,
then DB Contractor shall identify, in writing that portion of the claim which is still in dispute and
shall deliver such request by registered mail or certified mail, return receipt requested. Upon
receipt of such notification, RCTC shall schedule a meet and confer conference within ten
Business Days.
(d) Within ten Business Days following the conclusion of the meet and
confer conference, if the Claim, or any portion of the Claim remains unresolved, RCTC shall
provide DB Contractor with a written statement identifying the portion of the Claim that remains
unresolved and the portion that is resolved.
(e) Failure of either party to request mediation under this Section 24.1.2(e)
within 10 Business Days shall be deemed acceptance by DB Contractor that the unresolved
portion of the Claim is resolved in RCTC's favor. Any unresolved portion of the Claim, as identified
by DB Contractor in writing to RCTC, may, on the request of either party, be submitted to
nonbinding mediation before the facilitator chosen by the Parties for the partnering sessions, with
both Parties sharing the associated costs equally, unless both Parties agree to proceed with
formal dispute resolution proceedings under this Contract without mediation. If mediation is
elected, the parties shall mutually agree to a mediator within ten Business Days after RCTC has
received the Notice identifying the unresolved portion of the Claim. If the Parties cannot agree
upon a mediator, then each Party shall select a mediator and those mediators shall select a
qualified neutral third party to mediate with regard to the unresolved portion of the Claim. Each
Party shall bear the fees and costs charged by its respective mediator in connection with the
selection of the neutral mediator. If mediation is unsuccessful, the parts of the Claim remaining
unresolved shall be subject to further dispute resolution as specified below.
(f) Unresolved Claims that become Disputes between the Parties that are
not governed by Public Contract Code section 9204 shall be presented to RCTC's Executive
Director (or other officer of RCTC with authority to make final decisions subject only to board
approval and any required third party approvals) for resolution under Section 24.2.4 below.
(g) Failure by RCTC to respond to a claim from DB Contractor within the
time periods described in this Section 24.1.2 (including failure to schedule a meet and confer
within the timeframe in Section 24.1.2(c)) or to otherwise meet the time requirements of Public
Contract Code section 9204 shall result in the Claim being deemed rejected in its entirety.
24.2. Commencement of Dispute Resolution Process
All Disputes between DB Contractor and RCTC that arise under this Contract shall be resolved in
accordance with this Section 24, except for those matters identified in Section 24.2.1. All
Disputes shall be decided strictly in accordance with the terms and conditions of this Contract and
general principles of contract law of the State. Before DB Contractor may submit any Dispute to
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 156 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
dispute resolution under Sections 24.4, 24.5, or 24.6, it must first obtain a final RCTC Decision in
accordance with this Section 24.2.
24.2.1. Matters not Eligible for Dispute Resolution
The dispute resolution procedures in this Section 24 shall not apply to the following:
(a) Any matters this Contract expressly states are final, binding, or not
subject to dispute resolution or are subject to the sole discretion of RCTC;
(b) Disputes regarding compliance with Governmental Rules, the rights of
RCTC to terminate this Contract, liability or indemnification;
(c) Any claim for injunctive relief;
(d) Any claim against an insurance company, including any Subcontractor
Dispute that is covered by insurance;
(e) Disputes regarding matters under the jurisdiction of Cal -OSHA;
(f) Reserved;
(g) Issues related to Subcontractor substitutions governed by Public
Contract Code section 4100 et seq.;
statute;
(h) Any claim for, or Dispute based on, remedies expressly created by
(i)
Any Dispute that is actionable only against a Surety;
(j) Any claim arising out of or relating to the Work where a third party is a
necessary or appropriate party (excluding any DB-Related Entity, TSP, the 91 Express Lanes
Operator, the ELP DB Contractor, Pavement Contractor, RCTC, PCM, Department, FHWA); and
(k) Any claim or dispute that does not arise under the Contract.
The Parties acknowledge and agree that the items above are not "claims" within the
meaning of Public Contract Code section 9204.
24.2.2. Request for Dispute Resolution
(a) DB Contractor may file with RCTC a Notice requesting dispute
resolution if DB Contractor objects to any decision, action, order, or position of RCTC. Such
Notice shall be filed within ten Business Days of the written decision, action, order, or position of
RCTC to which DB Contractor objects. Without limiting the foregoing restriction, in no event shall
any such Notice be filed later than ten Business Days after Project Completion (except to the
extent that the decision, action, order, or position relates to warranties or other post -Final
Acceptance obligations of DB Contractor). Notices given under this Section 24.2.2(a) regarding
Claims that are governed by (and defined under) Public Contract Code section 9204 shall conform
to the requirements of such Governmental Rule. Notices given under this Section 24.2.2(a) for
Disputes between the Parties that are not governed by Public Contract Code section 9204 shall
be deemed to be Notices given under Section 24.2.3(c) for executive level negotiation without
need to proceed to project level negotiation under Section 24.2.3.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 157 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(b) RCTC may initiate the dispute resolution process at any time by filing
with the Disputes Review Board and delivering to DB Contractor a Notice requesting dispute
resolution.
(c) Notices requesting dispute resolution, whether from DB Contractor or
RCTC, shall: (i) identify the issues in dispute; (ii) state the position of the requester; (iii) state the
dollar amount and/or duration of Critical Path and Completion Deadline impact or interference
involved in the Dispute; and (iv) state whether it is the position of the requester that the Dispute
must be resolved expeditiously and thus must be resolved in accordance with the provisions of
Section 24.13.
(d) Within ten Business Days of receipt of a Notice requesting dispute
resolution, RCTC may join, or require that DB Contractor join, such other parties as RCTC deems
necessary or appropriate for the full resolution of the dispute.
24.2.3. Project Level Negotiation
(a) Upon commencement of the dispute resolution process, except with
respect to Notices given under this Section 24.2.3(a) (seeking executive level negotiation under
Section 24.2.4), the Parties shall first attempt to resolve the Dispute between RCTC's
Representative and DB Contractor's Representative. The two Representatives shall meet and
attempt to resolve the Dispute in good faith within five Business Days after the date the Notice for
dispute resolution is received by the non -requesting Party. There shall be at least one meeting
to attempt such project level negotiation. The project level negotiation may be continued upon
the agreement of all Parties.
(b) Within ten Business Days following the conclusion of the project level
negotiation, RCTC will issue to DB Contractor a Notice of RCTC Decision; except that if no Notice
is issued, RCTC shall be deemed to have denied DB Contractor's objection and an RCTC
Decision to that effect shall be deemed received by DB Contractor at the end of such ten Business
Day period. A project level negotiation is deemed concluded if a session has ended for the day,
but the parties have not agreed within five Business Days to the date for a continuation of that
project level negotiation."
(c) Within ten Business Days following receipt (or deemed receipt) of an
RCTC Decision, DB Contractor may, by Notice to all other parties involved, request executive
level negotiation. If no such request is made, the initial RCTC Decision shall be deemed final and
binding.
24.2.4. Executive Level Negotiation
(a) RCTC's Executive Director and DB Contractor's Chief Executive Officer
(or other officer of either Party with authority to make final decisions subject only to board approval
and any required third party approvals) shall meet within ten Business Days after receipt of the
Notice (i) given under Section 24.2.2(a) for Disputes between the Parties that are not governed
by Public Contract Code section 9204, or (ii) given under Section 24.2.3(c), following
unsuccessful project level negotiation, requesting executive level negotiation, and attempt to
resolve the Dispute. There shall be at least one meeting between RCTC's Executive Director and
DB Contractor's Chief Executive Officer (or such other officer described above).
(b) If RCTC's Executive Director or DB Contractor's Chief Executive Officer
(or such other officer described above) is not in the United States during the time period he or she
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 158 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
needs to participate in any dispute resolution procedure, the person authorized to perform any or
all of such officer's duties during his or her absence may participate in said dispute resolution
procedure instead.
(c) RCTC will issue a final RCTC Decision to DB Contractor at RCTC's
own initiative, but in any event within five Business Days after the meeting between RCTC's
Executive Director and DB Contractor's Chief Executive Officer (or such other officer described
in Section 24.2.4(a)) (which meeting shall be no later than ten Business Days after receipt of DB
Contractor's Notice); except that if no Notice is issued, RCTC shall be deemed to have denied
DB Contractor's protest and a final RCTC Decision to that effect shall be deemed received by DB
Contractor at the end of such five Business Day period.
24.2.5. Effect of Final RCTC Decision
The final RCTC Decision shall be final and conclusive, subject to DB Contractor's right to
submit the issue to the Disputes Review Board, if DB Contractor does not accept the final RCTC
determination, for further dispute resolution under Section 24.4 or 24.6, as applicable, based on
the value of the Dispute, and in any event only after providing a Notice within ten Business Days
after receipt of the final RCTC Decision, stating in general terms the factual or legal objections,
or both, to the determination. DB Contractor's failure to object in writing within the above -specified
time limit shall constitute acceptance of the final RCTC Decision. Thereafter, either DB Contractor
(if DB Contractor objects to the final RCTC Decision in accordance with this Section 24.2.5), or
RCTC may seek a determination of the dispute by the dispute resolution procedure set forth
below.
24.3. Disputes Review Board
RCTC and DB Contractor shall select a Disputes Review Board to assist in resolution of
Disputes that: (a) arise prior to expiration of the Warranty Period; (b) are subject to the dispute
resolution process under this Section 24; and (c) the Parties attempted to but did not resolve
through project level and executive level negotiations. The Disputes Review Board will provide
special expertise to assist in and facilitate the resolution of such Disputes, and attempt to avoid
construction delays. The Disputes Review Board may also assist in resolution of Disputes
involving other parties. This Section 24.3 describes the purpose, procedure, functions, and key
features of the Disputes Review Board.
24.3.1. Membership
The Disputes Review Board shall consist of one member selected by RCTC, one member
selected by DB Contractor, and a third member selected by the first two members. Normally, the
third member will act as chairman for all Disputes Review Board activities. All members of the
Disputes Review Board shall be both experienced with the type of design and construction
involved in the Project, and experienced in the interpretation of contract documents. The third
member shall be a lawyer, licensed in the State and experienced with design and construction
disputes.
(a) The criteria and limitations for Disputes Review Board membership
shall be as follows:
(i) No member of the Disputes Review Board shall have an
ownership interest in any DB-Related Entity, Affiliate, or PCM, or any financial interest in this
Contract or the Project, except for payment for serving on the Disputes Review Board;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 159 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) Except for fee -based consulting services on other projects, no
member of the Disputes Review Board or member's employer has been employed by RCTC,
Department, any DB-Related Entity, Affiliate or PCM within a period of two years prior to the
Effective Date;
(iii) No member of the Disputes Review Board shall have had
substantial prior involvement in the Project or with RCTC, Department, any DB-Related Entity,
any Affiliate or PCM of a nature that could affect his/her ability to impartially resolve Disputes;
(iv) No member of the Disputes Review Board shall be employed
by RCTC, Department, any DB-Related Entity, any Affiliate or PCM during the term of the Contract
and for as long thereafter as any Dispute submitted to the Disputes Review Board remains
outstanding under this Contract, except as a member of other disputes boards; and
(v) During the term of the Contract and for as long thereafter as any
obligations remain outstanding under this Contract, no discussion or agreement shall be made
between any member of the Disputes Review Board and RCTC, Department, any DB-Related
Entity, any Affiliate or PCM regarding employment of a member of the Disputes Review Board.
(b) Within 30 days after the issuance of NTP1, each Party shall select its
member of the Disputes Review Board and enter into a three -party agreement between the
member, RCTC and DB Contractor with such member pursuant to which such person shall serve
on the Disputes Review Board. The first two members shall immediately commence selection of
a third member who shall meet all the criteria listed above. The third member shall be selected
within 30 days after both of the first two members have been selected, and shall enter into an
agreement with RCTC and DB Contractor negotiated by the first two members and agreed to by
RCTC and DB Contractor. All parties shall enter into an agreement in the form attached as Exhibit
11 (Disputes Review Board Agreement).
(c) Before their appointments are made, the first two prospective members
shall submit complete disclosure statements for approval by both RCTC and DB Contractor. Each
statement shall include a resume of experience, a disclosure of any circumstances likely to
prevent prompt hearings and decisions or to create any appearance of bias and a declaration
describing all past, present, anticipated, or planned future relationships to the Project and with all
parties involved in this Contract. The third member of the Disputes Review Board shall supply
such a statement to the first two members of the Disputes Review Board before his/her
appointment is finalized.
(d) Disputes about an appointment to the Disputes Review Board
(including Disputes resulting from an objection by either Party to any member on the grounds that
the qualifications in this Contract are not met and disputes resulting from the inability of the two
selected members to agree on a third member) shall be subject to judicial reference in accordance
with Section 24.5.
(e) Prior to hearing the first Dispute under this Contract, and upon request
by either Party thereafter, each member of the Disputes Review Board shall supply RCTC and
DB Contractor a declaration under penalty of perjury affirming that such member meets the above
qualifications and agrees to be bound by the terms of this Contract. If at any time a member of
the Disputes Review Board fails to meet such qualifications, such member shall be removed and
replaced in accordance with the procedures for appointment of members set forth above.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 160 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(f) Either Party may require that a new Disputes Review Board be
appointed to resolve future Disputes, which right shall be exercised by delivery of Notice to such
effect to the other Party. The procedures and requirements for appointment shall be identical with
those in this Section 24.3.1, except that the members selected by the Parties shall be selected
within 30 days after the date of delivery of the Notice requesting a new Disputes Review Board.
In such event, a new agreement, in the same form as Exhibit 11 (Disputes Review Board
Agreement), shall be executed establishing a new Disputes Review Board. Nothing shall prohibit
a Party from reappointing its then -current member. All Disputes submitted to the Disputes Review
Board after delivery of Notice requiring appointment of a new Disputes Review Board shall be
heard and decided by the new Disputes Review Board. All Disputes submitted prior to such date
shall be heard by the old Disputes Review Board unless the Parties agree otherwise.
(g) If a Party does not select its member for the new Disputes Review
Board within 30 days after the date of delivery of the Notice requesting a new Disputes Review
Board, the other Party may provide a Notice to cure to that Party. Upon receipt of the Notice, the
Party that did not make its selection will have 20 days to cure by selecting a member for the new
DRB. If the Party does not make the selection within the 20 day cure period, the noticing Party
may proceed in accordance with Section 24.5.
24.3.2. Operation
The Disputes Review Board shall adopt rules of procedure subject to approval by RCTC
and DB Contractor. The Parties may agree in writing to any new or different procedures and the
Disputes Review Board will follow such changes. The Disputes Review Board may schedule
regular meetings and visits to the Site. If the Parties consider it necessary or desirable, RCTC
will prepare minutes of all regular meetings and circulate them for comments, corrections, and/or
approval by all concerned. If a field inspection is undertaken, the Disputes Review Board shall
be accompanied by representatives of both RCTC and DB Contractor. Seeking the Disputes
Review Board member(s)' advice or consultation, ex parte, is expressly prohibited.
24.3.3. Procedure and Schedule for Dispute Resolution
(a) Disputes shall be considered as quickly as possible, taking into
consideration the particular circumstances and the time required to prepare detailed
documentation. All Disputes arising out of a single event, act, omission or set of circumstances
shall be considered a single Dispute. All Losses and Claims arising out of that event, act,
omission or set of circumstances shall be considered Losses and Claims under a single Dispute.
Accordingly, all such Disputes, Losses and Claims presented as a single Dispute shall be included
in the statement of the single Dispute within a reasonable time after the initial filing so that the
other Party will have ample time for discovery before the hearing date. Any disputes, Losses or
Claims not presented in such single Dispute within such reasonable time shall be deemed waived
by the Party bringing the Dispute.
(b) DB Contractor and RCTC shall each be afforded an opportunity to be
heard by the Disputes Review Board and to offer evidence. The Parties agree that discovery
shall be permitted to the full extent provided by Code of Civil Procedure sections 1283.05(a)
through (d). The Recommendation of the Disputes Review Board will be given in writing to both
RCTC and DB Contractor within ten Business Days of completion of the hearings, if possible.
(c) RCTC will promptly process any required Change Order or amendment
to this Contract based on: (i) an agreed upon resolution between RCTC and DB Contractor; (ii) a
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 161 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
binding Recommendation of the Disputes Review Board; or (iii) a final judgment or award entered
in accordance with Section 24.5 or 24.6.
24.3,4, Hearing and Recommendation
Each hearing before the Disputes Review Board shall be conducted at facilities provided
by RCTC. RCTC and DB Contractor may have representatives at all hearings. After the hearings
are concluded, the Disputes Review Board shall meet in private to formulate its Recommendation,
which shall be supported by two or more members. All deliberations of the Disputes Review
Board shall be conducted in private, with all individual views kept strictly confidential, except as
may be reflected in the Recommendation. The Recommendation shall be made in accordance
with such procedures as are approved by the Parties. The Disputes Review Board shall make
every effort to reach a unanimous Recommendation. If the Recommendation is not unanimous,
then the dissenting member may prepare a minority recommendation.
24.3.5.
Findings
Right to Litigate Disputes; Admissibility of Disputes Review Board
(a) RCTC and DB Contractor agree that submission of any unresolved
Dispute to project level and executive level negotiations, under Sections 24.2.3 and 24.2.4, and
the Disputes Review Board, under this Section 24.3, are conditions precedent to RCTC's or
DB Contractor's right to litigate such unresolved Dispute.
(b) Findings of fact by the Disputes Review Board will not be collateral
estoppel in any other proceeding involving the same issue, but final decisions that are binding in
accordance with Section 24.6 will be res judicata. The written findings and Recommendations of
the Disputes Review Board, together with its reasons, including any minority reports or dissenting
recommendations or opinions, and all submissions of the Parties shall not be admissible in any
subsequent arbitration, mediation, or litigation concerning the same Dispute or Claim. Any
settlement negotiations between the Parties during the Disputes Review Board process, whether
voluntary or at the direction of the Disputes Review Board, shall be considered confidential, and
no evidence of anything said, nor any admission made in such settlement negotiations, nor any
document prepared for the purpose of the settlement negotiations, shall be admissible in
evidence, nor shall disclosure of such evidence be compelled at a later date, unless such
evidence is otherwise admissible or subject to discovery, except that any settlement executed by
the Parties shall not be considered confidential and may be disclosed.
(c) RCTC and DB Contractor shall not call any individual who served as a
member of the Disputes Review Board as a witness in any litigation proceedings in connection
with this Contract.
24.4. Resolution of Disputes Exceeding $375,000 by Disputes Review Board
24.4.1. RCTC and DB Contractor may submit to the Disputes Resolution Board
Disputes that arise prior to the expiration of the applicable Warranty Period only when (a) project
level and executive level negotiations between the Parties are unsuccessful, and (b) the amount
in controversy exceeds $375,000.
24.4.2. Such Disputes submitted by DB Contractor to the Disputes Review Board must
be based on a final RCTC Decision, and must be submitted within 30 days of the date the RCTC
Decision became final. RCTC may submit such a Dispute to the Disputes Review Board at any
time.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 162 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
24.4.3. The Dispute shall be submitted to the Disputes Review Board by filing a
"complaint" in accordance with the procedures adopted by the Disputes Review Board, and
service upon the other Party in accordance with the requirements of the Code of Civil Procedure
that pertain to service of summons and complaint. Concurrently with service of the complaint
upon the other Party, the Party submitting the Dispute shall also deliver a copy of the complaint
to counsel for the other Party, if the other Party has been previously represented in such Dispute.
The complaint shall include a declaration executed by the Party submitting the Dispute, in the
following form:
I certify that the claim set forth herein is made in good faith, that the
supporting data is accurate and complete to the best of my
knowledge and belief, and that the amount and/or time requested
accurately reflects the [Contract schedule adjustment] [amount] for
which [RCTC] [DB Contractor] believes, at this time, [RCTC] [DB
Contractor] is liable.
By: [RCTC] / [DB Contractor]
[Person Responsible for Claim]
24.4.4. The term "Recommendation" means the written document issued by the
Disputes Review Board in connection with a Dispute, issued in accordance with the procedures
adopted by the Disputes Review Board, which states that it is the Disputes Review Board's final
recommendation for resolution of said Dispute. The Parties agree that all statutes of limitations
shall be tolled from the date of submission of a Dispute to the Disputes Review Board until the
date of receipt of the Recommendation.
24.4.5. Within 30 days after receiving the Recommendation, or such other time
specified by the Disputes Review Board, both RCTC and DB Contractor shall respond to each
other and to the Disputes Review Board by Notice, signifying either acceptance or rejection of the
Recommendation. Failure of either Party to respond within the specified period shall be deemed
an acceptance of the Recommendation, such that the duration of the limitations period(s) is
increased by the amount of time that the Dispute is tolled, and that no limitations period shall
expire while the statutes of limitations are tolled. If RCTC and DB Contractor are able to resolve
the Dispute based on the Recommendation, RCTC will promptly process any required Contract
changes.
24.4.6. If the Dispute remains unresolved during the 120 days following issuance of
the Recommendation, either Party may submit the Dispute to judicial reference under
Section 24.5 (no other methods of settlement shall be available). If the Dispute is not submitted
to judicial reference within such 120-day period, then the applicable Recommendation shall stand
as final and binding, and the Parties shall be deemed to have conclusively agreed to accept that
Recommendation.
24.5. Resolution of Disputes Exceeding $375,000 by Judicial Reference
RCTC and DB Contractor may submit Disputes to judicial reference only when: (a) the amount in
controversy exceeds $375,000; (b) project level and executive level negotiations between the
Parties are unsuccessful with respect to the Dispute; either (c)(i) the Disputes Review Board has
issued a Recommendation with respect to the Dispute or (c)(ii) a Party has failed to cure a failure
to select a member for a new Disputes Review Board after notice and an opportunity to cure
pursuant to Section 24.3.1(g); and (d) the Dispute is submitted to judicial reference within
timeframe in Section 24.4.6. All Disputes submitted to judicial reference shall be heard and
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 163 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
determined by a referee in accordance with Code of Civil Procedure section 638, subsection 1.
The venue of any proceeding under this Contract shall be in Riverside County, California, unless
changed by the judicial officer.
24.5.1. Filing of Complaint
Subject to the procedural requirements in this Section 24.5, the Party submitting a Dispute
to judicial reference shall file in court and serve on the other Party a complaint describing the
matters in dispute. Said complaint shall be filed no later than 120 days following issuance of the
applicable Recommendation by the Disputes Resolution Board. Service of the complaint shall be
as prescribed by law.
24.5.2. Procedure for Appointment
(a) At any time after service of the complaint, either Party may request the
designation of a referee to try the Dispute. Thereafter the Parties shall use their best efforts to
agree upon the selection of a referee.
(b) If the Parties are unable to agree upon a referee within ten Business
Days after a written request to do so by any Party, then either Party may petition the presiding
judge of the Superior Court to appoint a referee. The presiding judge shall have the power to
assign such request to such judge of the Riverside County, California, Superior Court as the
presiding judge deems appropriate.
(c) For the guidance of the judge making the appointment of such referee,
the Parties agree that the person so appointed shall be a lawyer, licensed in the State and
experienced in the subject matter of the Dispute, a court commissioner, or a retired judge.
24.5.3. Standards for Decision
(a) The provisions of Code of Civil Procedure sections 640, 642, 643, 644
and 645 shall be applicable to dispute resolution by a referee hereunder. In an effort to clarify
and amplify the provisions of Code of Civil Procedure sections 644 and 645, the Parties agree
that the referee shall decide issues of fact and law submitted by the Parties for decision in the
same manner as required for a trial by court as specified in Code of Civil Procedure sections
631.8 and 632, and California Rules of Court, Rule 3.1590. The right to trial by jury is waived by
both Parties.
(b) The referee shall try and decide the Dispute, and all pretrial matters,
including discovery, and shall proceed according to all of the substantive and procedural laws of
the State, unless the Parties stipulate to the contrary.
(c) When the referee has decided the Dispute, the referee shall also cause
the preparation of a judgment based on such decision. The judgment to be entered by the
Superior Court, based upon the decision of the referee, shall be appealable in the same manner
as if the judge signing the judgment had tried the case.
24.5.4. Agreement to Appoint Proposed Referee as Judge Pro Tem
The Parties recognize that the appointment of the proposed referee as a temporary judge
in accordance with Article VI, Section 21 of the California Constitution and California Rules of
Court, Rule 2.831, would be desirable and therefore agree that the proposed referee be appointed
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 164 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
as a temporary judge in accordance with Article VI, Section 21 of the California Constitution, in
the event of the filing of an action in the Superior Court to resolve any Dispute.
24.6. Resolution of Disputes Involving $375,000 or Less by Arbitration
24.6.1. RCTC and DB Contractor may submit to arbitration Disputes that arise prior to
the expiration of the applicable Warranty Period only when (a) project level and executive level
negotiations between the Parties are unsuccessful, and (b) the amount in controversy is equal to
or less than $375,000.
24.6.2. Disputes submitted by DB Contractor to arbitration under this Section 24.6
must be based on a final RCTC Decision, and a demand for arbitration must be submitted within
30 days after the date the RCTC Decision becomes final. RCTC may submit a demand for
arbitration under this Section 24.6 at any time.
24.6.3. As permitted by Public Contract Code section 20104(a)(2), each Dispute
involving $375,000 or less 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 in California Code of Regulations, title 1, sections 300 et seq.
(the "Regulations").
24.6.4. RCTC and DB Contractor agree to appoint the members of the Disputes
Review Board to act as arbitrators under the State Arbitration Act for all such Disputes, as
permitted by Public Contract Code section 10240.3 and section 321(a) of the Regulations; except
that the Parties may, in lieu of appointing the entire Disputes Review Board, agree to appoint the
neutral member of the Disputes Review Board as such arbitrator.
24.6.5. Discovery shall be permitted to the full extent provided by Code of Civil
Procedure sections 1283.05(a) through (d).
24.6.6. 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 in this Contract. Accordingly, for Disputes up to $375,000, the
Disputes Review Board will issue a final decision which will be binding in accordance with the
State Arbitration Act.
24.7. Cooperation
The Parties shall diligently cooperate with one another and with the person(s) appointed to resolve
Disputes, and shall perform such acts as may be necessary to obtain a prompt and expeditious
resolution of Disputes. If either Party refuses to diligently cooperate, and the other Party, after
first giving Notice of its intent to rely on the provisions of this Section 24.7, incurs additional
expenses or attorneys' fees solely as a result of such failure to diligently cooperate, then the
individual(s) resolving the Dispute may award such additional expenses and attorneys' fees to
the Party giving such Notice, even if such Party is not the prevailing Party in the Dispute.
24.8. Costs
The Parties shall share equally in all Costs for the Disputes Review Board and for resolution of
Disputes pursuant to the dispute resolution procedures under this Contract, including any costs
associated with a reference of a Dispute to a judicial referee in accordance with Section 24.5;
except that the Party against whom an award of additional attorneys' fees or expenses is made
in accordance with Section 24.7 shall make such payments to the other Party and is not entitled
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 165 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
to recover (or offset) the amount paid. If either Party refuses to pay its share of the costs of the
proceeding at the time required, then the other Party may do so, in which event that Party will be
entitled to recover (or offset) the amount advanced, with interest at the maximum rate permitted
by law, even if that Party is not the prevailing Party. The person(s) resolving the Dispute shall
include such costs in his/her/their judgment or award. Except as otherwise provided in
Section 24.7, each Party shall pay its own attorneys' fees and expert witness fees. If DB
Contractor is entitled to recover from RCTC costs and interest under this Section 24.8, and so
long as RCTC's portion of such costs is undisputed, then "interest at the maximum rate permitted
by law" means interest at the rate of 7% per annum, if such undisputed amount is not paid within
60 days after the undisputed amount is established by written statement to RCTC under this
Contract.
24.9. 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 24, to protect its rights, including temporary and
preliminary injunctive relief, attachment, claim and delivery, receivership and any extraordinary
writ.
24.10. Continuing Performance
During any dispute resolution proceedings, DB Contractor shall carry on its duties under this
Contract, and RCTC shall continue to make undisputed payments in accordance with this
Contract.
24.11. Participation in Proceedings; Joinder
DB Contractor agrees that: (a) at RCTC's request, DB Contractor shall take appropriate action to
join TSP or any third parties, including Subcontractors, involved in the design or construction of
any part of the Project as parties in dispute resolution proceedings under this Section 24; and (b)
DB Contractor will allow itself to be joined as a participant in any Dispute, arbitration or other
proceeding that involves RCTC and any other Person relating to the Project, including those
relating to TSP, and agrees to be bound by the procedures and decisions rendered in such
proceeding. This provision is for the benefit of RCTC and not for the benefit of any other party.
24.12. Effect on Surety and Guarantor
Decisions made in accordance with this Section 24 that are binding on DB Contractor shall also
be binding on the Surety under the Performance Bond and any Guarantor; except that, unless
the Surety or Guarantor, as applicable, is a party to such proceedings, such decisions shall not
affect any defenses that are special to the Surety or Guarantor, as applicable (i.e. defenses
available to the Surety or Guarantor, as applicable, which could not have been asserted by DB
Contractor in the underlying proceeding). In the event that the Surety or Guarantor, as applicable,
is a party to any proceedings, it may, and must, assert any such special defenses therein or else
such defenses are deemed waived.
24.13. Emergency Dispute Resolution
If a Dispute arises that must be resolved expeditiously in order to prevent serious damage to
revenues, person or property, or serious interference with a Critical Path, both Parties shall make
commercially reasonable efforts to resolve that Dispute quickly. In such case, if DB Contractor's
Representative and RCTC's Representative cannot reach a resolution of that Dispute within
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 166 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
24 hours, they must refer the Dispute to RCTC's Executive Director and DB Contractor's Chief
Executive Officer (or other officer with authority to make final decisions subject only to board
approval and any required third party approvals) for a meeting between RCTC's Executive
Director and DB Contractor's Chief Executive Officer to occur within the following 24 hours. Once
the urgent aspects of the Dispute have been resolved, the Parties may continue with the
remaining procedures for dispute resolution if necessary and to the extent applicable.
24.14. Time Limitation
DB Contractor acknowledges and agrees that RCTC is subject to substantial constraints that have
resulted in limitations on its ability to increase the Contract Price or extend a Completion Deadline.
DB Contractor acknowledges and agrees that, due to limitations on funding for the Project, prompt
resolution of Disputes is of vital importance to RCTC. DB Contractor agrees that the time
limitations stated in the Contract for the filing of Claims and/or complaints with the Disputes
Review Board are necessary and reasonable. DB Contractor expressly waives any longer statute
of limitations contained in any statute, including Government Code section 900 et seq. that would
otherwise be applicable, except as it relates to the matters in Section 24.2.1.
24.15. Timely Payment of Undisputed Amounts of any Claim
In accordance with Public Contract Code section 9204, RCTC shall conduct a reasonable review
of any Claim by DB Contractor subject to Public Contract Code section 9204 within 45 days (or,
if any determination requires approval from RCTC's governing body, in which case within three
days after the next duly publicly noticed meeting of such governing body after such 45 day period)
and pay DB Contractor within 60 days thereafter the undisputed portion of any Claim. RCTC shall
provide DB Contractor a written statement identifying what portion of any Claim is disputed and
what portion is undisputed, if any. RCTC may request additional evidence from DB Contractor to
aid RCTC in identifying the disputed and undisputed portions of any Claim. DB Contractor shall
provide such evidence promptly thereafter. RCTC will pay within 60 days after receipt of sufficient
evidence, in RCTC's discretion, further amounts of such Claim that RCTC identifies as
undisputed. The Parties may, by mutual agreement, extend these time periods. As part of any
dispute resolution proceeding in this Section 24, DB Contractor bears the burden of identifying
the disputed and undisputed portions of the Claim and providing reasonable documentation in
support thereof.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 167 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 25
ACCEPTANCE
25.1. Coordination of Work with ELP DB Contractor
25.1.1. General Requirements
DB Contractor acknowledges and agrees that:
(a) The Project physically interfaces with the ELP as described in TP
Section 2.5.1; and
(b) DB Contractor shall coordinate the performance of the Work with the
ELP in accordance with TP Section 18.4.6, and shall allow ELP DB Contractor to complete the
ELP in advance of the applicable portions of the Planned ROW Limits being made available in TP
Attachment 9-2.
25.1.2. Requirements for ELP Turnover
(a) RCTC shall give DB Contractor separate Notices:
(i) 120 days;
(ii) 60 days; and
(iii) 30 days,
prior to the date upon which it reasonably expects ELP Turnover to be
achieved.
25.1.3. Notice and Inspection of ELP Substantial Completion
(a) ELP Turnover shall not be effective until RCTC issues the applicable
Certificate of ELP Turnover in accordance with this Section 25.1.3.
(b) RCTC shall provide DB Contractor not less than ten Business Days'
prior Notice of the date ELP DB Contractor considers it will achieve ELP Turnover.
(c) During this ten Business Day period:
(i) DB Contractor, RCTC, and ELP DB Contractor shall meet and
confer on a regular and cooperative basis to exchange information, with the goal being orderly
and timely inspection of the work comprising ELP Turnover to determine whether ELP Turnover
has been achieved; and
(ii) ELP DB Contractor shall allow RCTC and DB Contractor access
to the portion of the Site comprising ELP Turnover, but neither RCTC nor DB Contractor shall
perform the applicable ELP Turnover inspection until ELP DB Contractor considers it has
achieved ELP Turnover, including ELP DB Contractor's own internal inspection and punch list,
and RCTC delivers Notice under Section 25.1.3(d).
(d) RCTC shall provide DB Contractor with a second Notice when ELP
DB Contractor determines it has achieved ELP Turnover.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 168 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(e) ELP DB Contractor shall allow DB Contractor and RCTC access to the
portion of the Site comprising the applicable ELP Turnover for up to an additional ten Business
Days after receipt of RCTC's second Notice indicating ELP DB Contractor has achieved ELP
Turnover. During this ten Business Days period: (i) RCTC and DB Contractor shall inspect the
Work comprising the applicable ELP Turnover and its components, and conduct such other
investigations as may be necessary to evaluate whether ELP DB Contractor achieved ELP
Turnover; and (ii) DB Contractor shall provide Notice to RCTC listing the Work which, in DB
Contractor's opinion, remains to be performed to achieve the ELP Turnover.
(f) No later than ten Business Days after DB Contractor receives RCTC's
second Notice described in Section 25.1.3(d), RCTC shall (i) issue a Certificate of ELP Turnover,
or (ii) provide Notice to ELP DB Contractor listing the Work which, in RCTC's opinion, remains to
be performed to achieve the ELP Turnover.
(g) If applicable, RCTC shall give Notice to DB Contractor when ELP
DB Contractor considers that the Work listed in a Notice issued by the RCTC under
Section 25.3.3(f) has been completed, and Sections 25.1.3(d) through 25.1.3(g) will apply to such
Notice in the same way as if it were the original Notice.
(h) If ELP DB Contractor performs repairs to elements of the Work
damaged after the applicable ELP Turnover, the repair Work shall be subject to inspection by
RCTC and DB Contractor, and acceptance by RCTC. Accordingly, the provisions in Sections
25.1.3(b) through 25.1.3(g) shall apply to the repair work as if it were part of the initial ELP
Turnover.
25.2. Coordination of work with Pavement Rehabilitation Project
25.2.1. General
DB Contractor acknowledges and agrees that:
(a) The Project physically interfaces with the Pavement Rehabilitation
Project as described in TP Section 18.4.7; and
(b) DB Contractor shall coordinate the performance of the Work with the
Pavement Rehabilitation Work in accordance with TP Section 18.4.7;
25.2.2. Requirements for Pavement Rehabilitation Project
(a) RCTC shall give DB Contractor separate Notices:
(i) 120 days;
(ii) 60 days; and
(iii) 30 days,
prior to the date upon which the Pavement Rehabilitation Project is anticipated to be
complete.
(b) RCTC shall give DB Contractor Notice on the actual date upon which
the Pavement Rehabilitation Project is complete (as certified by Department).
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 169 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(c) Subject to DB Contractor's entitlement to relief under clause (k) of the
definition of Force Majeure Event, DB Contractor shall allow the Pavement Contractor access to
the applicable portions of the Pavement Contractor ROW to complete the Pavement
Rehabilitation Project from the Effective Date until the date RCTC provides Notice to DB
Contractor that the Pavement Rehabilitation Project is complete under Section 25.2.2(b).
25.3. Coordination of Work with TSP
25.3.1. General Requirements
DB Contractor acknowledges and agrees that:
(a) The Project is comprised of three Packages as described in TP Section
19; and
(b) DB Contractor shall coordinate the performance of the Work with the
TSP Work in accordance with TP Section 19, and shall allow TSP to install such facilities
reasonably in advance of the Substantial Completion Deadline, as specified in this Section 25
and TP Section 19.
25.3.2. Notice Requirements for each Package Turnover
(a) In its Monthly Progress Reports and schedule updates, DB Contractor
shall provide updates as to the anticipated date for each Package Turnover.
(b) DB Contractor shall give the RCTC Representative and TSP separate
Notices:
(I) 120 days;
(ii) 60 days; and
(iii) 30 days,
prior to the date upon which it reasonably expects to achieve each Package
Turnover.
25.3.3. Conditions for Package Turnover; Inspection of Packages
(a) No Package Turnover shall be effective until RCTC issues the
applicable Certificate of Package Turnover in accordance with this Section 25.3.3.
(b) DB Contractor shall provide RCTC and TSP not less than ten Business
Days' prior Notice of the date DB Contractor determines it will achieve each Package Turnover.
(c) During this ten Business Day period:
(i) DB Contractor, RCTC, and TSP shall meet and confer on a
regular and cooperative basis to exchange information, with the goal being orderly and timely
inspection of the Work comprising the applicable Package Turnover to determine whether the
applicable Package Turnover has been achieved.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 170 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(ii) DB Contractor shall allow RCTC and TSP access to the portion
of the Site comprising the applicable Turnover Package, but neither RCTC nor TSP shall perform
the applicable Package Turnover inspection until DB Contractor considers it has achieved
Package Turnover, including DB Contractor's own internal inspection and punch list, and delivers
Notice under Section 25.3.3(d).
(d) DB Contractor shall provide RCTC with a second Notice when
DB Contractor determines it has achieved each Package Turnover.
(e) DB Contractor shall allow TSP and RCTC access to the portion of the
Site comprising the applicable Package Turnover for up to an additional ten Business Days after
receipt of DB Contractor's second Notice indicating it has achieved Package Turnover. During
this ten Business Days period RCTC and TSP shall inspect the Work comprising the applicable
Package Turnover and its components, and conduct such other investigations as may be
necessary to evaluate whether DB Contractor achieved Package Turnover.
(f) No later than ten Business Days after RCTC receives DB Contractor's
second Notice described in Section 25.3.3(d), RCTC shall (i) issue a Certificate of Package
Turnover, or (ii) provide Notice to DB Contractor listing the Work which, in RCTC's opinion,
remains to be performed to achieve the Package Turnover.
(g) If applicable, DB Contractor shall give Notice to RCTC when
DB Contractor considers that the Work listed in a Notice issued by the RCTC under
Section 25.3.3(f) has been completed, and Sections 25.3.3(d) through will apply to such Notice
in the same way as if it were the original Notice.
(h) If DB Contractor performs repairs to elements of the TCS Infrastructure
damaged after the applicable Package Turnover, the repair Work shall be subject to inspection
by RCTC and TSP, and acceptance by RCTC. Accordingly, Sections 25.3.3(b) through (q) shall
apply to the repair work as if it were part of the initial Package Turnover.
25.4. Notification of Substantial Completion
(a) DB Contractor shall provide RCTC with at least 30 Business Days' prior
Notice of the date DB Contractor determines it will achieve Substantial Completion. During this
30 Business Day period, DB Contractor and RCTC shall meet, confer, and exchange information
on a regular and cooperative basis with the goal being RCTC's orderly, timely inspection and
review of the Project, Final Design Documents, and Construction Documents, and RCTC's
issuance of a Certificate of Substantial Completion.
(b) During this 30 Business Day period, RCTC shall conduct an inspection
of the Project and its components, a review of the Final Design Documents and Construction
Documents and such other investigation as may be necessary to evaluate whether Substantial
Completion is achieved. To facilitate RCTC's inspection of the Project, DB Contractor shall
provide RCTC marked up copies of the Final Design Documents and Construction Documents to
reflect changes made to the Project during construction and reflect the Project's as -built condition
(e.g., draft As -Built Documents).
(c) DB Contractor shall provide RCTC a second Notice when
DB Contractor determines it has achieved Substantial Completion.
(d) RCTC will then conduct such inspections, surveys and/or testing as it
deems desirable. If such inspections, surveys and/or tests disclose that any of the Work does
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 171 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
not meet the requirements of this Contract, RCTC, after consultation with Department, will
promptly advise DB Contractor as to any Nonconformances in the Work necessary to be corrected
as a condition to Substantial Completion and as to any Nonconformances which may be corrected
as Punch List items. Upon correction of the Nonconformances identified as a prerequisite to
Substantial Completion, DB Contractor shall provide Notice to RCTC, and RCTC will conduct
additional inspections, surveys and/or testing as it deems desirable. This procedure shall be
repeated until RCTC finds that all prerequisites to Substantial Completion have been met.
(e) Within five Business Days after expiration of the 30 Business Day
period and RCTC's receipt of the second Notice described in Section 25.4(c), RCTC shall either:
(a) issue the Certificate of Substantial Completion or (b) provide Notice to DB Contractor setting
forth, why the Project has not reached Substantial Completion. If RCTC and DB Contractor
cannot agree as to the date of Substantial Completion, such Dispute shall be resolved in
accordance with Section 24.
25.5. Punch List
The Project Management Plan shall establish procedures and schedules for preparing a
Punch List and completing Punch List work for each Package Turnover and Substantial
Completion. Such procedures and schedules shall conform to the following provisions:
(a) For each Package Turnover and Substantial Completion, the schedule
for preparation of the Punch List either shall be consistent and coordinated with the inspections
regarding each Package Turnover and Substantial Completion, or shall follow such inspections.
(b) DB Contractor shall prepare and maintain the Punch List. DB
Contractor shall deliver to RCTC not less than five Business Days' prior Notice stating the date
when DB Contractor will commence Punch List field inspections and Punch List preparation.
RCTC may participate in the development of the Punch List. Each participant may add items to
the Punch List and none shall remove any item added by any other without the other's express
permission. If DB Contractor objects to the addition of an item by RCTC, the item shall be noted
as included under protest, and if the Parties thereafter are unable to reconcile the protest, the
Dispute shall be resolved according to the dispute resolution procedures in this Contract. DB
Contractor shall deliver to RCTC a true and complete copy of the Punch List, including
modifications, as soon as it is prepared.
(c) DB Contractor shall immediately commence work on the Punch List
items and diligently prosecute such work to completion, consistent with this Contract, within the
time period in the Project Management Plan and in any case by the Project Completion Deadline.
25.6. Project Completion
25.6.1. Project Completion
(a) DB Contractor shall provide Notice to RCTC when it considers it has
achieved Project Completion. Such Notice shall be accompanied by a certification from
DB Contractor's Construction Quality Validation Manager, in form and substance satisfactory to
RCTC, certifying conformity of the construction with the Design Documents.
(b) RCTC will issue a Certificate of Project Completion when it finds that
(i) all conditions for Project Completion have been satisfied, and (ii) all Nonconformances that are
prerequisites to Project Completion have been corrected.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 172 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
25.6.2. Recordation of Notice of Project Completion
DB Contractor is advised that recordation of a notice of completion meeting the
requirements of Civil Code section 8182, within 15 days after completion of all construction Work,
has the effect of reducing the period for filing of stop payment notices and claims against the
Payment Bond, under Civil Code sections 9356 and 9560. If DB Contractor wishes RCTC to
record a notice of completion, DB Contractor shall prepare such notice and deliver it to RCTC at
least ten Business Days prior to the scheduled date for completion of construction. The notice
shall: (a) identify RCTC as the Project owner as defined in Civil Code section 8188, (b) state that
RCTC has been granted certain rights with respect to the Project pursuant to the Department
Cooperative Agreement, (c) provide the names and addresses of the record owners of the
improvements constructed under this Contract (i.e., Department, Local Agencies and Utility
Owners), and (d) otherwise meet the requirements of Civil Code sections 8182 and 9200 et seq.
25.7. Final Acceptance
25.7.1. Conditions to Final Acceptance
(a) Promptly after Project Completion has occurred, DB Contractor shall
perform all Work, if any, that was deferred for purposes of Final Acceptance, and shall satisfy its
other obligations under this Contract (other than completion of the obligation for Plant
Establishment Work), so as to achieve Final Acceptance. When all of the foregoing have
occurred, DB Contractor shall provide an executed sworn Affidavit of Final Acceptance to RCTC
including the following statement:
To the best of DB Contractor's knowledge and belief, except for
Plant Establishment Work not yet performed, all Work under this
Contract has been completed in strict accordance with this
Contract, no lawful debts for labor or materials are outstanding and
no federal excise tax has been included in the Contract Price; all
requests for funds for undisputed work under this Contract,
including changes in the Work, and under all billings of whatsoever
nature are accurate, complete and final and no additional
compensation over and above the final payment will be requested
or is due under this Contract or under any adjustment issued
thereunder for said undisputed work; there are no outstanding
claims, Liens or stop payment notices relating to the Project or the
Work, including claims by Utility Owners, BNSF and Local
Agencies, there is no existing default of RCTC's obligations under
any Utility Agreement that are DB Contractor's responsibility
pursuant to this Contract, and no event has occurred which, with
the passing of time or giving of notice or both, would lead to a claim
relating to the Work or an event of default under any Utility
Agreement; and upon receipt of final payment, DB Contractor and
Subcontractors acknowledge that RCTC and any and all
employees of RCTC and their authorized representatives will
thereby be released, discharged and acquitted from any and all
claims or liability for additional sums on account of undisputed work
performed under this Contract.
(b) If DB Contractor is unable to provide the affidavit in the above form as
it relates to outstanding Claims, Liens or stop payment notices relating to the Project or the Work,
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 173 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
the affidavit shall certify that all such outstanding matters are in an attached list which shall
describe the outstanding matters in such detail as may be requested by RCTC. The affidavit shall
include a representation of DB Contractor that it is diligently and in good faith contesting all such
matters by appropriate legal proceedings and shall provide a status report regarding the same
including an estimate of the maximum payable with respect to each such matter. RCTC may
condition its acceptance of such affidavit in such form by requiring that DB Contractor post security
or take other actions which, in RCTC's discretion, will adequately protect RCTC and the Project
against such outstanding matters.
25.7.2. Inspection and Issuance of Certificate of Final Acceptance
(a) Upon receipt of Notice from DB Contractor that it has met all conditions
to Final Acceptance, RCTC and Department will perform the final inspection with the final As -Built
Documents in hand.
(b) Based on this final inspection RCTC will either issue a Certificate of
Final Acceptance or notify DB Contractor regarding any Work that remains to be performed. Final
Acceptance is subject to concurrence by Department.
(c) If RCTC fails to issue a Certificate of Final Acceptance, DB Contractor
shall promptly remedy the defective and/or uncompleted portions of the Work and shall give
RCTC a revised Affidavit of Final Acceptance with a new date based on when the defective and/or
uncompleted portions of the Work were corrected. The foregoing procedure shall apply
successively thereafter until RCTC has given DB Contractor an executed Certificate of Final
Acceptance.
25.7.3. No Relief from Liability
Final Acceptance will not prevent RCTC from correcting any measurement, estimate, or
certificate made before or after completion of the applicable Work, nor shall it prevent RCTC from
recovering from DB Contractor, any Guarantor, the Surety(ies), or other provider of performance
security or any combination of the foregoing, overpayment sustained for failure of DB Contractor
to fulfill the obligations under this Contract. A waiver on the part of RCTC of any breach of any
part of DB Contractor is not a waiver of any other or subsequent breach. Final Acceptance shall
not relieve DB Contractor from any of its continuing or surviving obligations under this Contract,
including Warranty obligations.
25.8. Opening Sections of Project to Traffic
25.8.1. Plan for Opening to Traffic
(a) The Project Schedule shall set forth DB Contractor's plan for
completing segments of the Project and opening them to traffic. RCTC may request that DB
Contractor expedite certain segments of the Project, and DB Contractor shall accommodate such
requests to the extent that it can do so in consideration of safety to the public and construction
personnel and without significant disruption to its schedule or a significant increase in its costs.
(b) Notwithstanding Section 25.8.1(a), if RCTC orders DB Contractor to
open portions of the Project to traffic which cannot be accommodated without significant
disruption to DB Contractor's schedule or a significant increase in DB Contractor's costs, such
direction shall be considered an RCTC-Directed Change provided that DB Contractor has
provided RCTC Notice and otherwise followed the process for RCTC-Directed Changes in
Section 16.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 174 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
25.8.2. Direction to Open Following DB Contractor Failure to Perform
If DB Contractor is delinquent in completing outside tie-in work, drainage structures or
other features of the Work, and is not compliant with the applicable traffic opening date(s) set
forth in the Project Schedule, RCTC may order all or a portion of the Project opened to traffic
notwithstanding such incomplete elements. DB Contractor shall then conduct the remainder of
the construction operations, minimizing obstruction to traffic. Except as provided in
Section 25.8.1, DB Contractor shall not receive any compensation, time or otherwise make any
Claim due to the schedule impacts attributable to the opening of the Project to traffic.
25.8.3. No Waiver
Opening of portions or segments of the Project prior to Final Acceptance does not
constitute acceptance of the Work, constitute Substantial Completion, Project Completion, or
Final Acceptance or waive any provisions of or any of RCTC's rights under this Contract.
25.9. Expiration of Plant Establishment Period
Expiration of the Plant Establishment Period shall be deemed to have occurred when
DB Contractor has fully satisfied the obligation for the Plant Establishment Work in accordance
with the requirements of TP Section 20.4.5.2, and is subject to concurrence by Department.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 175 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 26
DOCUMENTS AND RECORDS
26.1. Escrowed Proposal Documents
26.1.1. Prior to the Effective Date, DB Contractor and RCTC have delivered one copy
of all cost and pricing data used in preparation of its Proposal and the Contract Price (the
"Escrowed Proposal Documents" or "EPDs") and previously held by the Escrow Agent to a
jointly keyed and locked fireproof cabinet supplied by DB Contractor and located in the Co -
Located Office or another location acceptable to both Parties.
26.1.2. Concurrently with submission of any quotations or revisions to quotations
provided in connection with Contract amendments and concurrently with approval of each Change
Order, if appropriate, one copy of all cost and pricing data used in preparation of the quotation,
amendment or Change Order, as applicable, shall be added to the cabinet, to be held with the
other EPDs, and shall update the index and catalogue.
26.1.3. The EPDs shall comply with Section 26.4 and be maintained in accordance
with this Section 26.1 until the following have occurred: (a) 180 days have elapsed from Final
Acceptance or termination of the Work, as applicable; (b) all Claims and Disputes regarding this
Contract have been settled; and (c) Final Payment on the Contract has been made by RCTC and
accepted by DB Contractor.
26.2. Review of EPDs
26.2.1. Upon at least three days' Notice, DB Contractor and RCTC may jointly
examine, through one or more designated representatives all or any part of the EPDs during
RCTC's normal business hours. The Party undertaking an examination need not have or state a
specific reason to examine such material.
26.2.2. If RCTC determines that any EPDs are incomplete or missing, RCTC may
request that DB Contractor submit the supplementary information and DB Contractor shall provide
such supplementary information within five days of the request. The supplementary EPDs shall:
(a) Be date stamped and labeled to identify it as supplementary
information;
(b) Added to the EPDs along with an updated executed index and
catalogue of the full contents of the EPDs (which was originally developed as of the Effective
Date); and
(c) Include a written certification that (i) the supplementary information
constitutes true and complete EPDs in accordance with this Agreement, and (ii) an authorized
officer of DB Contractor has personally examined the contents of the supplementary information.
26.2.3. In connection with any negotiations, Disputes or Claims, RCTC may make and
retain copies of EPDs as it deems appropriate; provided, however, that RCTC has executed and
delivered to DB Contractor a confidentiality statement specifying that, to the extent consistent with
applicable law, all proprietary information contained in such documents will be kept confidential,
that copies of such documents will not be distributed to any third parties other than RCTC's
attorneys and experts, the Disputes Review Board and any judicial referee, arbitrator or court
considering a Dispute or Claim, and that all copies of such documents (other than those delivered
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 176 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
to dispute resolvers) will be either destroyed or returned to the depository (or to DB Contractor if
the EPDs have been returned to it) upon final resolution of the negotiations or Disputes or Claims.
26.2.4. Neither Party may add to or change the EPDs except as otherwise provided in
this Contract or with prior written approval of the other Party.
26.2.5. Either Party may introduce the EPDs into evidence in accordance with the
Dispute Resolution Procedures. The Parties shall promptly abide by any request from the court,
or other dispute resolver to assist in its deliberations.
26.3. Proprietary Information
The EPDs are the property of DB Contractor and shall be considered to be in DB Contractor's
possession, subject to RCTC's right to review and use the EPDs as provided in this Section 26.
RCTC acknowledges that DB Contractor may consider that the EPDs constitute trade secrets or
proprietary information. This acknowledgment is based upon RCTC's understanding that the
information contained in the EPDs is not known outside DB Contractor's business, is known only
to a limited extent and by a limited number of employees of DB Contractor, is safeguarded while
in DB Contractor's possession, and may be valuable to DB Contractor's construction strategies,
assumptions and intended means, methods and techniques of construction. RCTC further
acknowledges that DB Contractor expended money in developing the information included in the
EPDs and further acknowledges that it would be difficult for a competitor to replicate the
information contained therein. RCTC acknowledges that the EPDs are being made accessible to
RCTC only because it is an express prerequisite to award of the Contract.
26.4. Format and Contents of EPDs
26.4.1. The EPDs shall:
(a) Detail how the components of the Contract Price were determined and
shall be adequate to enable a complete understanding and interpretation of how DB Contractor
arrived at the Contract Price;
(b) Detail how the components of the Contract Price were determined and
shall be adequate to enable a complete understanding and interpretation of how DB Contractor
arrived at the Contract Price;
(c) In connection with quotations, Contract amendments and Change
Orders, clearly detail how the total price and individual components of that price were determined;
(d) Detail crews, equipment, materials, quantities, rates of production;
(e) Be divided into DB Contractor's usual cost categories such as direct
labor, repair labor, equipment ownership, rental and operation, expendable materials, permanent
materials and Subcontract costs as appropriate;
(f) Detail plant and equipment and indirect costs including identifying risk
contingencies, markup and other items to each direct cost item;
(g) Itemize the estimated costs of the Payment Bonds and Performance
Bonds and the insurance premiums for each coverage required to be provided by DB Contractor
under Section 11;
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 177 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(h) Include electronic media data files associated with all assumptions, risk
assumptions, detailed quantity takeoffs, progress calculations, quotes from Subcontractors and
Suppliers, quotes for insurance and bond premiums, memoranda, narratives and all other
information used by DB Contractor to arrive at the Contract Price or any amendment or Change
Order; and
(i) Be submitted in format as is used by DB Contractor to develop its
Proposal and Contract Price.
26.4.2. DB Contractor represents, warrants and agrees that the EPDs:
(a) Provided with the Proposal and this Contract were or will be personally
examined prior to delivery by an authorized officer of DB Contractor and meet the requirements
of Section 26.4.1;
(b) Constitute all of the information used in the preparation of its Proposal,
the Contract Price and pricing related to Contract amendments and Change Orders and agrees
that no other historical cost information will be considered in resolving Disputes or Claims; and
(c) Are not part of this Contract and that nothing in the EPDs shall change
or modify this Contract.
26.5. Subcontractor Pricing Documents
26.5.1. DB Contractor shall require the principal design Subcontractor (including any
joint venture) and each Major Subcontractor to:
(a) Submit to DB Contractor a copy of all cost and pricing data used in
determining its Subcontract price (or the price for Subcontract Work included in any Change Order
or Contract amendment), immediately prior to executing the Subcontract and each Change Order
and Subcontract amendment, to be deposited, accessed and maintained on terms substantially
similar to the EPDs under this Contract; and
(b) Provide a representation and warranty from the Subcontractor, for the
benefit of DB Contractor and RCTC, consistent with Section 26.4.2, replacing references to the
DB Contractor with principal design Subcontractor.
26.5.2. Each Subcontract that is not subject to the requirements in Section 26.5.1(a)
shall include a provision requiring the Subcontractor to preserve all cost and pricing data used in
establishing its Subcontract price and to provide such documentation to DB Contractor and/or
RCTC in connection with any claim made by such Subcontractor.
26.6. Financial Reporting Requirements
26.6.1. DB Contractor shall provide, or cause to be provided, to RCTC such
information, statements, financial and narrative reports, budgets and information required under
this Contract and as RCTC may otherwise reasonably request from time to time for any purpose
related to the Project or this Contract.
26.6.2. DB Contractor shall deliver to RCTC, at the times specified below, the following
financial statements, stated in United States Dollars and prepared in accordance with U.S. GAAP
as set forth in Section 26.6.2(b) for DB Contractor and each Guarantor:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 178 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(a) Within 60 days after the end of each fiscal year, duplicate copies of the
balance sheet and a consolidated statement of earnings of DB Contractor and each Guarantor
and its consolidated subsidiaries for such fiscal year, setting forth in comparative form the figures
for the previous fiscal year, all in reasonable detail and certified as complete and correct, subject
to changes resulting from year-end adjustments, by the chief financial officer of DB Contractor
and each Guarantor, respectively;
(b) Within 120 days after the end of each fiscal year, (i) any financial ratings
obtained, and (ii) duplicate copies of the financial statements (which shall include a balance sheet
and a consolidated statement of financial condition of DB Contractor and each Guarantor and
their respective consolidated subsidiaries at the end of such year, and statements of earnings,
changes in financial position of DB Contractor and each Guarantor and their respective
consolidated subsidiaries for such year, and all related notes to the financial statements, setting
forth in each case in comparative form the figures for the previous fiscal year), all in reasonable
detail and accompanied by an opinion thereon of an independent public accountant of recognized
national standing selected by DB Contractor and each Guarantor, as applicable, which opinion
shall state that such financial statements have been prepared in accordance with U.S. GAAP
consistently applied, and that the examination of such accountants in connection with such
financial statements has been made in accordance with generally accepted auditing standards,
and accordingly, included such tests of the accounting records and such other auditing
procedures as were considered necessary in the circumstances. If financial statements are
prepared in accordance with principles other than U.S. GAAP, a letter from the certified public
accountant of the applicable entity, discussing the areas of the financial statements that would be
affected by a conversion to U.S. GAAP is required and an estimate of changes required to
recalculate in accordance with U.S. GAAP. Provision of financial statements and information for
a parent company or other affiliate will not be sufficient to satisfy the requirement to provide
financial statements; and
(c) Upon request of RCTC for particular fiscal quarters, and without
request where documents are provided under Section 26.6.2(b), copies of all other financial
statements and information reported by DB Contractor and each Guarantor to its shareholders
generally and of all reports filed by DB Contractor and each Guarantor with the United States
Securities Exchange Commission under sections 13, 14 or 15(d) of the Securities Exchange Act,
to be provided to RCTC as soon as practicable after providing such information to the
shareholders of DB Contractor and each Guarantor, as applicable, or filing such reports with the
Securities and Exchange Commission, as the case may be.
26.6.3. DB Contractor shall cooperate and provide, and shall cause each Guarantor
and the Subcontractors to cooperate and provide, such information as determined necessary or
desirable by RCTC in connection with any Project funding or financing. Without limiting the
generality of the foregoing, DB Contractor shall provide such information deemed necessary or
desirable by RCTC for inclusion in RCTC's securities disclosure documents and in order to comply
with Securities and Exchange Commission Rule 15c2-12 regarding certain periodic information
and notice of material events as well as summary financial information detailing DB Contractor's
financial capacity to perform the Work. DB Contractor shall provide customary representations
and warranties to RCTC and the capital markets as to the correctness, completeness and
accuracy of any information provided.
26.6.4. All reports and information delivered by DB Contractor under Section 26.6.3
shall also be delivered electronically, to the extent electronic files exist, and be suitable for website
posting.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 179 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
26.7. Maintenance of, Access to and Audit of Records
26.7.1. Except for EPDs (which shall be maintained as set forth in Section 26.1), DB
Contractor shall maintain at its Project administration office in Riverside County, California a
complete set of all Books and Records, including copies of all original documents delivered to
RCTC and Department. DB Contractor shall notify RCTC where such records and documents
are kept.
26.7.2. DB Contractor shall keep and maintain all the documents required under
Section 26.7.1 in accordance with applicable provisions of this Contract and of the Project
Management Plan, and otherwise in accordance with Good Industry Practice until five years after
the Final Acceptance Date or the termination of this Contract (as applicable).
26.7.3. Notwithstanding Section 26.7.2, all Books and Records which relate to Claims
being processed or Disputes brought under the dispute resolution procedures of this Contract
shall be retained and made available until such Disputes and Claims have been finally resolved.
26.7.4. RCTC may:
(a) Review and audit DB Contractor, its Subcontractors and their
respective Books and Records as and when RCTC deems necessary from time to time:
(i) For the purposes of verifying compliance with this Contract, the
Governmental Approvals and applicable Governmental Rules; and
(ii) In connection with the issuance of Change Orders and Contract
amendments, the resolution of Disputes and Claims.
(b) Audit DB Contractor's Project Management Plan and compliance
therewith, including the right to inspect Work and/or activities and to verify the accuracy and
adequacy of the Project Management Plan and its component parts, plans and other
documentation.
26.7.5. DB Contractor agrees to grant to RCTC and its representatives and legal
counsel, Department, and FHWA the audit and inspection rights under Section 26.7.4 without
charge and allow such Persons such access to such Books and Records and the Work. RCTC
may conduct any such audit of Books and Records or inspection of the Work upon 48 hours' prior
Notice, or unannounced and without prior notice where there is good faith suspicion of fraud or
other criminal activity. The right of audit and inspection includes the right to make copies and
extracts and take notes.
26.7.6. Where the payment method for any Work is on a time and materials basis,
such examination and audit rights shall include all Books and Records 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 DB Contractor has been over credited under a previous
progress report or progress payment, that over credit will, at RCTC's sole option, be credited
against current progress reports or payments or reimbursed to RCTC by DB Contractor upon
demand therefor.
26.7.7. For cost and pricing data submitted in connection with pricing Change Orders
or Contract amendments, unless such pricing is based on adequate price competition (as
determined by RCTC), established catalog or market prices of commercial items sold in
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 180 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
substantial quantities to the public, or prices set by Governmental Rule, such Persons and their
representatives have the right to examine all Books and Records related to the negotiation of or
performance of Work under such Change Orders and Contract amendments for the purpose of
evaluating the accuracy, completeness and currency of the cost or pricing data submitted. The
right of examination shall extend to all documents deemed necessary by such Persons to permit
adequate evaluation of the cost or pricing data submitted, along with the computations and
projections used therein.
26.7.8. All Claims or Disputes filed against RCTC shall be subject to audit at any time
following the filing of the Claim or Dispute. The audit may be performed by employees of RCTC
or by an auditor under contract with RCTC. No notice is required before commencing any audit
before 45 Business Days after the Final Acceptance Date. Thereafter, RCTC shall provide 15
Business Day notice to DB Contractor, any Subcontractors or their respective agents before
commencing an audit of any Claim or Dispute. DB Contractor, Subcontractors or their agents
shall provide adequate facilities, acceptable to RCTC, for the audit during normal business hours.
DB Contractor, Subcontractors or their agents shall cooperate with the auditors. Failure of DB
Contractor, Subcontractors or their agents to maintain and retain sufficient Books and Records to
allow the auditors to verify all or a portion of the Claim or Dispute or to permit the auditor access
to the Books and Records of DB Contractor, Subcontractors or their agents shall constitute a
waiver of the Claim or Dispute and shall bar any recovery thereunder.
26.7.9. Full compliance by DB Contractor with the provisions of this Section 26.7 is a
contractual condition precedent to DB Contractor's right to seek relief under Section 24.
26.7.10. DB Contractor represents and warrants the completeness and accuracy of all
information (including Books and Records) it or its agents provide in connection with the audits
identified in this Contract, and shall cause all Subcontractors to warrant the completeness and
accuracy of all information (including Books and Records such Subcontractors or their agents
provide in connection with this Section 26.7.
26.7.11. DB Contractor's internal and third party quality and compliance auditing
responsibilities shall be set forth in the Project Management Plan, consistent with the audit
requirements in TP Sections 2.1, 5.2.3, 5.3.2, 5.4.2, and 5.4.3.
26.7.12. DB Contractor shall collect and preserve each of the following types of data in
written form contemporaneously during DB Contractor's performance of the Work, which shall be
in form approved by RCTC and in conformance with the requirements of the Department
Cooperative Agreement, and index filed in accordance with Section 5-102 "Organization of Project
Documents" of the Department Construction Manual:
(a) Monthly report of labor by classification of management, supervision,
engineering and other technical personnel used on the job;
(b) Daily labor and equipment reports from DB Contractor and each
Subcontractor for construction related activities;
(c) Quality Control documentation as required by TP Section 5;
(d) A daily occurrence log (in the form of a bound book with entries in ink)
for construction related activities which shall be maintained by DB Contractor's Representative or
his designee(s), in which shall be recorded daily in a narrative form all significant occurrences on
the Project, including permit problems, unusual weather, asserted Force Majeure Events, events
and conditions causing or threatening to cause delay or disruption or interference with the
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 181 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
progress of any of the Work, known injuries to person or property, a listing of each activity depicted
on the Project Schedule which is being actively prosecuted; notifications given and received, and
significant Project related meetings; and
(e) A daily record in the format required by Section 9-1.04D(6) of the
Modified Standard Specifications (Exhibit 3), recording all labor, materials and equipment
expenses which are being incurred by reason of any event, condition or circumstance which DB
Contractor believes is or may become the subject of a Claim against RCTC. Any initialed or
signed concurrence by PCM (or designees) will be for purposes of verifying physical labor,
material and equipment count rather than validating DB Contractor's Claims.
26.7.13. To the extent requested by RCTC, DB Contractor shall provide RCTC with
access to and a copy of each item described in Section 26.7.12 (provided, however, that the
provision of such information shall not constitute a Notice under Section 15.4.1).
26.7.14. Pursuant to Government Code section 8546.7, this Contract, and DB
Contractor and RCTC as the contracting parties, are subject to the examination and audit of the
California State Auditor, at the request of RCTC or as part of any audit of RCTC, for a period of
three years after the final payment under the Contract.
26.8. Public Records Act
26.8.1. DB Contractor acknowledges and agrees that all records, documents,
drawings, plans, specifications and other materials in RCTC's possession, including materials
submitted by DB Contractor, are subject to the provisions of the California Public Records Act
(Government Code section 6250 et seq.) (the "Public Records Act").
26.8.2. If DB Contractor believes information or materials submitted to RCTC
constitute trade secrets, proprietary information or other information that is not subject to or
excepted from disclosure under the Public Records Act, DB Contractor shall be solely responsible
for specifically and conspicuously designating that information by placing "CONFIDENTIAL" in the
center header of each such page affected, as it determines to be appropriate. Any specific
proprietary information, trade secrets or confidential commercial and financial information shall
be clearly identified as such, and shall be accompanied by a concise statement of reasons
supporting the claim. Nothing contained in this Section 26.8 shall modify or amend requirements
and obligations imposed on RCTC by the Public Records Act or other applicable Governmental
Rule, and the provisions of the Public Records Act or other Governmental Rules shall control in
the event of a conflict between the procedures described above and the applicable Governmental
Rules. DB Contractor is advised to contact legal counsel concerning such Governmental Rules
and its application to DB Contractor.
26.8.3. If RCTC receives a request for public disclosure of materials marked
"CONFIDENTIAL," RCTC will use reasonable efforts to provide Notice to DB Contractor of the
request and give DB Contractor an opportunity to assert, by Notice, a claimed exception under
the Public Records Act or other applicable Governmental Rules within the time period specified
in the notice issued by RCTC and allowed under the Public Records Act. Under no
circumstances, however, will RCTC be responsible or liable to DB Contractor or any other Person
for the disclosure of any such labeled materials, whether the disclosure is required by
Governmental Rules, or court order, or occurs through inadvertence, mistake or negligence on
the part of RCTC or its officers, employees, contractors or consultants.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 182 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
26.8.4. In the event of any proceeding or litigation concerning the disclosure of any
material submitted by DB Contractor to RCTC, RCTC's sole involvement will be as a stakeholder
retaining the material until otherwise ordered by a court or such other authority having jurisdiction
with respect to the material, and DB Contractor shall be fully responsible for otherwise prosecuting
or defending any action concerning the materials; provided, however, that RCTC reserves the
right, in its sole discretion, to intervene or participate in the litigation in such manner as it deems
necessary or desirable. Except in the case of RCTC's voluntary intervention or participation in
litigation, DB Contractor shall pay and reimburse RCTC within 30 days after receipt of written
demand and reasonable supporting documentation for all costs and fees, including attorneys' fees
and costs RCTC incurs in connection with any litigation, proceeding or request for disclosure.
26.9. Ownership of Documents
Subject to Sections 26.3 and 26.10, all data, sketches, charts, calculations, plans, specifications,
electronic files, correspondence, reports, analyses, studies and other documents and materials
created or collected under the terms of this Contract shall be considered "works made for hire"
for which RCTC owns the copyright. Design Documents shall become RCTC's property upon
preparation; Construction Documents shall become RCTC's property upon delivery to RCTC; and
other documents prepared or obtained by DB Contractor in connection with the performance of
its obligations under this Contract, including studies, manuals, As -Built Documents, technical and
other reports and the like, shall become the property of RCTC upon DB Contractor's preparation
or receipt thereof. Copies of all Design Documents and Construction Documents shall be
provided to RCTC upon preparation or receipt thereof by DB Contractor. DB Contractor shall
maintain all other documents described in this Section 26.9 in accordance with the requirements
of Section 26.7 and shall deliver copies to RCTC as required by this Contract or upon request if
not otherwise required to be delivered, with an indexed set delivered to RCTC as a condition to
Final Acceptance.
26.10. Intellectual Property
26.10.1. All Proprietary Intellectual Property, including with respect to Source Code and
Source Code Documentation, shall remain exclusively the property of DB Contractor or its
Affiliates or Subcontractors that supply the same, notwithstanding any delivery of copies to RCTC.
26.10.2. RCTC has and is hereby granted a nonexclusive, transferable, irrevocable,
royalty -free, fully paid up right and license to use, reproduce, modify, adapt and disclose, and
sublicense others to use, reproduce, modify, adapt and disclose, the Proprietary Intellectual
Property of DB Contractor, including with respect to Source Code and Source Code
Documentation, solely in connection with the Project and any interstate or state highway, tolled
or not tolled, owned and operated by RCTC or a State or regional Governmental Entity; provided
that RCTC may exercise such license only at the following times:
(a) From and after the expiration or earlier termination of this Contract for
any reason whatsoever; and
(b) During any time that a receiver is appointed for DB Contractor, or during
any time that there is pending a voluntarily or involuntary proceeding in bankruptcy in which DB
Contractor is the debtor, in which case RCTC may exercise such license only in connection with
the Project.
26.10.3. Notwithstanding the foregoing, DB Contractor shall have no liability or
responsibility to RCTC for Claims and Losses in connection with RCTC's use of DB Contractor's
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 183 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Proprietary Intellectual Property on any interstate or state highway, tolled or not tolled, owned and
operated by RCTC or a State or regional Governmental Entity other than the Project.
26.10.4. Subject to the license and rights granted to RCTC pursuant to Section 26.10.2,
RCTC shall not at any time sell any Proprietary Intellectual Property of DB Contractor or use,
reproduce, modify, adapt and disclose, or allow any party to use, reproduce, modify, adapt and
disclose, any such Proprietary Intellectual Property for any other purpose.
26.10.5. The right to transfer the license is limited to any Governmental Entity that
succeeds to the power and authority of RCTC generally or with respect to the Project.
26.10.6. The right to sublicense is limited to State or regional Governmental Entities that
own or operate an interstate or state highway or other road, tolled or not tolled, and to the lessees,
operators, contractors, subcontractors, employees, attorneys, consultants and agents that are
retained by or on behalf of RCTC or any such State or regional Governmental Entity in connection
with the Project or an interstate or another state highway or other road, tolled or non -tolled. All
such sublicenses shall be subject to Section 26.10.7.
26.10.7. Subject to Section 26.8, RCTC shall:
(a) Not disclose any Proprietary Intellectual Property of DB Contractor to
any Person other than authorized transferees and sublicensees who agree to be bound by any
confidentiality obligations of RCTC relating thereto; and
(b) Include, or where applicable require such State or regional
Governmental Entity to include, in the contract with the sublicensee its covenant to employ sound
business practices no less diligent than those used for its own confidential information, and no
less diligent than required by commercially reasonable standards of confidentiality, to protect all
Proprietary Intellectual Property of DB Contractor and other materials provided under the
sublicense against disclosure to third parties not in receipt of a sublicense, and to use the
sublicense only for the permitted purposes.
26.10.8. Notwithstanding any contrary provision of this Contract, in no event shall RCTC
or any of its directors, officers, employees, consultants or agents be liable to DB Contractor, any
Affiliate or any Subcontractor for any damages, including loss of profit, arising out of breach of
the duty of confidentiality in Section 26.10.7 if such breach is not the result of gross negligence
or intentional misconduct. DB Contractor irrevocably waives all claims to any such damages.
26.10.9. DB Contractor shall continue to have a full and complete right to use any and
all duplicates or other originals of its Proprietary Intellectual Property in any manner it chooses.
26.10.10. With respect to any Proprietary Intellectual Property, including with respect to
Source Code and Source Code Documentation, owned by a Person other than DB Contractor,
including any Affiliate, and other than RCTC or a Governmental Entity acting as a Subcontractor,
DB Contractor shall obtain from such owner, concurrently with the execution of any contract,
Subcontract or purchase order with such owner or with the first use or adaptation of the
Proprietary Intellectual Property in connection with the Project, both for DB Contractor and RCTC,
nonexclusive, transferable, irrevocable, fully paid up, royalty -free licenses to use, reproduce,
modify, adapt and disclose such Proprietary Intellectual Property solely in connection with the
Project and any state highway, tolled or not tolled, owned and operated by RCTC or a State or
regional Governmental Entity, of at least identical scope, purpose, duration and applicability as
the license granted under Section 26.10.2. The foregoing requirement shall not apply, however,
to mass -marketed software products (sometimes referred to as "shrink wrap software") owned by
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 184 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
such a Person where such a license cannot be extended to RCTC using commercially reasonable
efforts. The limitations on sale, transfer, sublicensing and disclosure by RCTC in
Sections 26.10.3 through 26.10.7 shall also apply to RCTC's licenses in such Proprietary
Intellectual Property.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 185 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 27
MISCELLANEOUS PROVISIONS
27.1. Amendments
Except to the extent expressly provided otherwise in this Contract, this Contract may be amended
only by a written instrument duly executed by the Parties or their respective successors or
assigns.
27.2. Waiver
27.2.1. No waiver of any term, covenant or condition of this Contract shall be valid
unless in writing and signed by the obligee Party.
27.2.2. The exercise by a Party of any right provided under this Contract shall not
waive or preclude any other or further exercise thereof or the exercise of any other right. No
waiver by any Party of any right under this Contract shall be deemed to be a waiver of any other
or subsequent right under this Contract. The consent by one Party to any act by the other Party
requiring such consent shall not create a course of conduct or be deemed to render unnecessary
the obtaining of consent to any subsequent act for which consent is required, regardless of
whether similar to the act for which consent is given.
27.2.3. Except as expressly provided otherwise in this Contract, no act, delay or
omission done, suffered or permitted by one Party or its agents shall be deemed to create a
course of conduct or waive, exhaust or impair any right, remedy or power of such Party under this
Contract, or to relieve the other Party from the full performance of its obligations under this
Contract.
27.2.4. Either Party's waiver of any breach or failure to enforce any of the terms,
covenants, conditions or other provisions of this Contract at any time shall not in any way create
a course of conduct or 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 this Contract 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.
27.3. Independent Contractor
27.3.1. DB Contractor is an independent contractor, and nothing contained in this
Contract shall be construed as constituting any relationship with RCTC other than that of Project
developer and independent contractor.
27.3.2. Both Parties, in the performance of this Contract, shall act in an individual
capacity and not as agents, employees, partners, joint venturers or associates of one another.
Nothing in this Contract is intended or shall be construed to create any partnership, joint venture
or similar relationship between RCTC and DB Contractor; and in no event shall either Party take
a position in any tax return or other writing of any kind that a partnership, joint venture or similar
relationship exists.
27.3.3. In no event shall the relationship between RCTC and DB Contractor be
construed as creating any relationship whatsoever between RCTC and DB Contractor's
employees. Neither DB Contractor nor any of the employees of any DB-Related Entity is or shall
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 186 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
be deemed to be an employee of RCTC. Except as otherwise specified in this Contract, DB
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 DB Contractor or any Subcontractor hires to perform
or assist in performing the Work.
27.4. Successors and Assigns
27.4.1. This Contract shall be binding upon and inure to the benefit of RCTC and DB
Contractor and their permitted successors, assigns and legal representatives.
27.4.2. Upon providing ten Business Days' prior Notice to DB Contractor, RCTC may
assign all or part of its right, title and interest in and to any part of this Contract and performance
security, including rights with respect to the Payment Bonds and Performance Bonds, the
Warranty Bond and the Guaranty, to any other Person.
27.4.3. DB Contractor shall not voluntarily or involuntarily sell, assign, convey, transfer,
pledge, mortgage, or otherwise encumber DB Contractor's interest in and to this Contract or any
portion thereof without RCTC's prior written approval, except to any entity in which the
organizations signing this Contract for DB Contractor, or the shareholder(s), general partner(s) or
member(s) that exercise management control over such organizations, hold and exercise
effective management control and hold the same percent of equity interest in DB Contractor that
exists as of the Proposal Date. DB Contractor shall not sublease or grant any other special
occupancy or use of the Project to any other Person, without RCTC's prior written approval. Any
sale, assignment, conveyance, transfer, pledge, mortgage, encumbrance, sublease or grant of
other special occupancy or use in violation of this provision shall be null and void ab initio and
RCTC, at its option, may declare any such attempted action to be a material DB Contractor
Default.
27.4.4. DB Contractor shall not voluntarily or involuntarily cause, permit or suffer any
Change of Control prior to Final Acceptance without RCTC's prior written approval. If there occurs
any voluntary or involuntary Change of Control without RCTC's prior written approval, RCTC, at
its option, may declare it to be a material DB Contractor Default.
27.4.5. Where RCTC's prior approval is required for a proposed sale, assignment,
conveyance, transfer, pledge, mortgage, encumbrance, sublease or grant of other special
occupancy or use, or for any proposed Change of Control prior to Final Acceptance, RCTC may
withhold or condition its approval in its sole discretion. Any such decision of RCTC to withhold
consent shall be final, binding and not subject to the dispute resolution procedures in this Contract.
If for any reason RCTC does not act within 30 days after receiving all required information, or any
extension thereof by mutual agreement of the Parties, the proposed sale, assignment,
conveyance, transfer, pledge, mortgage, encumbrance, sublease or grant of other special
occupancy or use, or for any proposed Change of Control is not permitted.
27.4.6. Assignments and transfers of DB Contractor's interest permitted under this
Section 27.4 or otherwise approved by Notice from RCTC shall be effective only upon RCTC's
receipt of Notice of the assignment or transfer and a written recordable instrument executed by
the transferee (and any Guarantor and any Surety), in form and substance acceptable to RCTC,
in which the transferee, without condition or reservation, assumes all of DB Contractor's
obligations, duties and liabilities under this Contract then in effect and agrees to perform and
observe all provisions thereof applicable to DB Contractor. Each transferee shall take DB
Contractor's interest subject to, and shall be bound by, the Project Management Plan, the Major
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 187 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Subcontracts, the Utility Agreements, all RCTC-Provided Approvals, all agreements between the
transferor and railroads, the Governmental Approvals, and all agreements between the transferor
and Governmental Entities with jurisdiction over the Project, except to the extent otherwise
approved by Notice from RCTC, in its sole discretion.
27.4.7. No assignment, conveyance, transfer, pledge, mortgage, encumbrance,
sublease or grant by DB Contractor or any permitted successor and assign thereto shall release
DB Contractor, any Guarantor, any Surety or the assignor from any liabilities or obligations under
this Contract and each of such entities shall remain liable and obligated therefor.
27.4.8. DB Contractor shall not change the legal form of its organization without the
prior written approval of RCTC, which RCTC may grant or withhold.
27.4.9. Any permitted assignment of DB Contractor's interest shall not take effect until
replacement Bonds and Guarantees are provided without lapse in coverage. This requirement
may be met if the Surety/ies and Guarantor(s) amend existing Bonds and Guarantees to name
DB Contractor's assignee as the Principal (under the Bonds) and "DB Contractor" (under the
Guarantees).
27.5. Designation of Representatives; Cooperation with Representatives
27.5.1. RCTC and DB Contractor shall each designate an individual or individuals who
shall be authorized to make decisions and bind the Parties on matters relating to this Contract
("Representative"). Exhibit 2 (Contract Particulars) provides the Parties' initial Representative
designations.
27.5.2. DB Contractor Representative (a) will have full responsibility for the
prosecution of the Project, (b) will act as agent and be a single point of contact in all matters on
behalf of DB Contractor, (c) will be available to execute instructions and directions received from
RCTC or its Representatives; and (d) shall be available at all times while the Project is actually in
progress.
27.5.3. The designation of Representatives may be changed by a subsequent Notice
to the other party in accordance with Section 27.11.
27.5.4. The Parties may also designate technical representatives, who shall be
authorized to investigate and report on matters relating to the Project and to negotiate on behalf
of each of the Parties, but who shall not have authority to bind RCTC or DB Contractor.
27.6. Gratuities and Conflicts of Interest
27.6.1. DB Contractor shall not permit any officer, official or employee of RCTC to have
any financial interest in the Contract prohibited by sections 1090 et seq. and 87100 et seq. of the
Government Code. In addition, DB 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 RCTC, pursuant to sections 1090 et seq. and 87100 et seq. of the Government Code. Except
to the extent explicitly disclosed in DB Contractor's Proposal, DB Contractor affirms that no RCTC
officer, official or employee has any interest (whether contractual, non -contractual, financial, or
otherwise) in this transaction or in the business of DB Contractor. If any such interest becomes
known to DB Contractor at any time, DB Contractor shall submit a full and complete disclosure of
such information by Notice to RCTC, even if such interest would not be considered a conflict
under sections 1090 et seq. and 87100 et seq. of the Government Code.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 188 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
27.6.2. Neither DB Contractor nor any of its employees, agents and representatives
shall offer or give to an officer, official or employee of RCTC or Department gifts, entertainment,
payments, loans or gratuities. RCTC may, by Notice to DB Contractor, terminate the right of DB
Contractor to proceed under the Contract if it is found that gratuities (in the form of gifts,
entertainment, or otherwise) were offered or given by DB Contractor, or any agent of DB
Contractor, to any member of RCTC's board of directors or any officer, agent and/or employee of
RCTC or Department.
27.6.3. The rights and remedies of RCTC specified in this Section 27.6 are not
exclusive and are in addition to any other rights and remedies allowed by law.
27.6.4. Employment (whether as an employee, consultant, or independent contractor)
of personnel on RCTC's payroll by any DB-Related Entity is not permitted in the performance of
the Contract, even though such employment may be outside RCTC's employee's regular working
hours or on Saturdays, Sundays, holidays or vacation time; further, employment by any DB-
Related Entity of personnel who have been on RCTC's payroll within one year prior to the date of
Contract award is also prohibited, if such employment is caused by and/or dependent upon DB
Contractor securing this or a related Contract with RCTC.
27.7. Survival
DB Contractor's representations and warranties, the dispute resolution provisions contained in
Section 24, the warranties contained in Section 13, the indemnifications and releases contained
in Section 23 and elsewhere in this Contract, the rights and obligations of the Parties following
termination of this Contract under Section 19 and Section 20, the provisions regarding invoicing
and payment under Section 14, the obligations regarding Application for Final Payment under
Section 14.4 and payment for subsequent Claims under Section 14.5, and all other provisions
which by their express terms or their inherent character or express terms should survive
termination of the Contract and/or Final Acceptance, shall survive the termination of the Contract
and the Final Acceptance Date.
27.8. Limitation on Third Party Beneficiaries
Department is an intended third party beneficiary to this Contract and the Indemnified Parties are
intended third party beneficiaries of the indemnity and insurance provisions of this Contract.
Except as expressly provided in this Contract (such as warranty and indemnity provisions), it is
not intended by any of the provisions of this Contract to create any other third party beneficiary
under this Contract or to authorize anyone not a Party to maintain a suit for personal injury or
property damage pursuant to the terms or provisions hereof. Except as otherwise provided in this
Section 27.8, the duties, obligations and responsibilities of the Parties pursuant to this Contract
with respect to third parties shall remain as imposed by law. This Contract does not create a
contractual relationship of any kind between RCTC and a Subcontractor or any Person other than
DB Contractor.
27.9. Tort Liability, Personal Liability of RCTC Employees
27.9.1. RCTC's Representatives are acting solely as agents and representatives of
RCTC when carrying out the provisions of or exercising any right under this Contract. They shall
not be liable either personally or as employees of RCTC for actions in their ordinary course of
employment.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 189 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
27.9.2. The Parties agree to provide to each other's Representative(s) Notice of any
Claim that either Party receives from any third party relating in any way to the matters addressed
in this Contract, and shall otherwise provide Notice in such form and within such period as is
required by Governmental Rules.
27.9.3. No agent, consultant, officer, or authorized employee of RCTC nor any
member of RCTC's Board of Directors, shall be personally responsible for any liability arising
under this Contract.
27.10. Governing Law; Venue
This Contract shall be governed by and construed in accordance with the law of the State, without
regard to conflict of law principles. The venue of any court, judicial, or referee proceeding under
this Contract shall be in Riverside County, California, unless changed by the judicial officer.
27.11. Notices and Communications
27.11.1. All notices, requests, demands, instructions, certificates, consents,
explanations, agreements, approvals and other communications (each being a "Notice") required
or permitted under this Contract shall be in writing and (a) delivered personally, (b) sent by
certified mail, return receipt requested, (c) sent by a recognized overnight mail or courier service,
with delivery receipt requested, or (d) sent by facsimile or email 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 DB Contractor shall be sent to DB Contractor's Representative
or as otherwise directed by DB Contractor's Representative. The address for such
communications shall be:
Myers -Rados, A Joint Venture
Address: 2002 E. McFadden Avenue, Suite 200,
Santa Ana, CA 92705
Mailing Address: P.O. Box 15184, Santa Ana, CA
92735-0184
Attention: Stephen S. Rados
Telephone: (714) 835-4612
E-mail: ssrados@radoscompanies.com
All communications to RCTC shall be marked as regarding the 15/91 Express Lanes
Connector Project and shall be delivered as directed by RCTC's Toll Program Director. The
address for such communications shall be:
Riverside County Transportation Commission
Attention: Michael Blomquist, Toll Program Director
3850 Vine Street,
Riverside, California
Phone: (951) 787-7141
Facsimile: (951) 787-7920
Email address: mblomquist(a�rctc.orq
With a copy to:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 190 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
Riverside County Transportation Commission
Attention: David Thomas, Toll Program Manager
4080 Lemon Street, 3rd Floor
Riverside, California 92501
Phone: (951) 787-7141
Facsimile: (951) 787-7920
Email address: dthomas(a�rctc.orq
In addition, copies of all notices regarding Claims, Disputes, termination and default
Notices shall be delivered to the following Persons:
Riverside County Transportation Commission
Attention: Anne Mayer, Executive Director
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
Phone: (951) 787-7141
Facsimile: (951) 787-7920
Email address: amayer@rctc.org
Steven C. DeBaun, Esq.
Best and Krieger
3750 University Avenue, Suite 400
P.O. Box 1028
Riverside, California, 92502
Phone: (951) 686-1450
Facsimile: (951) 686-3083
Email address: Steve.DeBaun@bbklaw.com
All Notices and other communications or documentation required to be delivered by DB
Contractor to OCTA under this Contract shall be marked as regarding the Project and shall be
delivered to the following Person or as otherwise directed by OCTA in writing. The address for
such Notices and other communications or documentation shall be:
Orange County Transportation Commission
Attention: Kirk Avila, General Manager
550 South Main Street
Orange, California 92688
Phone: (714) 560-5674
Facsimile: (714) 560-5800
Email address: kavila@octa.net
27.11.2. 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 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 DB
Contractor's Representative and technical representatives designated by RCTC.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 191 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
27.11.3. DB Contractor shall copy RCTC on all written correspondence pertaining to
this Contract between DB Contractor and any Person other than DB Contractor's Subcontractors,
consultants and attorneys.
27.12. Taxes
27.12.1. DB Contractor shall pay, prior to delinquency, all applicable taxes.
DB Contractor accepts sole responsibility, and agrees it shall have no right to a Change Order or
to any other Claim, because of its misinterpretation of Governmental Rules respecting taxes, or
incorrect assumptions regarding applicability of taxes.
27.13. Further Assurances
DB Contractor shall promptly execute and deliver to RCTC all such instruments and other
documents and assurances as are reasonably requested by RCTC to further evidence the
obligations of DB Contractor under this Contract, including assurances regarding the validity of
(a) the assignments of Subcontracts contained in this Contract and (b) any instruments securing
performance hereof.
27.14. Severability
If any clause, provision, Section or part of this Contract is ruled invalid under Section 24 or
otherwise by a court having proper 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 or other decision maker (as applicable) which
declared such invalidity for an interpretation 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 this Contract, which shall be construed and enforced as
if this Contract did not contain such invalid or unenforceable clause, provision, Section or part.
27.15. Headings
The table of contents and captions of the Sections of this Contract are for convenience only and
shall not be deemed part of this Contract or considered in construing this Contract.
27.16. Entire Agreement
This Contract 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.
27.17. Counterparts
This instrument may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
27.18. Costs
(a) Each Party is responsible for paying its own Costs and expenses
incurred in connection with the negotiation, preparation and execution and delivery of this
Contract.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 192 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
(b) Except as otherwise provided in this Contract, each Party perform its
obligations in accordance with this Contract at its own Cost and risk.
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 193 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
SECTION 28
SIGNATURE WARRANTY
28.1. Signature Warranty
Each signatory to this Contract warrants that the signatory has necessary authority to execute
this Contract on behalf of the entity represented.
[Signatures on next page]
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 194 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
IN WITNESS WHEREOF, this Contract has been executed as of , 2020.
DB CONTRACTOR:
Myers -Rados, A Joint Venture
By:
Name:
Title:
By:
Name:
Title:
Contractor License No.: 1059871
RCTC:
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Steven C. DeBaun, General Counsel
Date: , 2020
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 195 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
ADDENDUM
Myers & Sons Construction, LLC and Steven P. Rados, Inc. agree that they shall be jointly and
severally liable for the obligations of DB Contractor under this Contract. Myers & Sons
Construction, LLC and Steven P. Rados, Inc. agree that RCTC and its successors and assignees
may enforce any claim or judgment against DB Contractor arising out of this Contract directly
against DB Contractor, Myers & Sons Construction, LLC, and Steven P. Rados, Inc. in any order.
Dated as of , 2020
Steven P. Rados, Inc.
By:
Name:
Title:
*
*
Myers & Sons Construction, LLC
By:
Name:
Title:
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project 196 Draft Execution Copy: February 12, 2020
56800642.v38
Sensitive
EXHIBIT 1
ABBREVIATIONS AND DEFINITIONS
Unless the context otherwise requires:
(a) the following abbreviations, capitalized terms or terms used in the Department
Standard Specifications as used in this Contract have the meanings given in this Exhibit 1; and
(b) the definitions in this Exhibit 1 that are in lower case also apply to terms that are
capitalized.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 1 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Abbreviation
Meanin •
AASHTO American Association of State Highway and Transportation Officials
AB aggregate base
ACI American Concrete Institute
ADA Americans with Disabilities Act
ADAS Automatic Data Acquisition System
ADL Aerially Deposited Lead
ANSI American National Standards Institute
APE Area of Potential Effect
AQMD air quality management district
ARB California Air Resources Board
AREMA American Railway Engineering and Maintenance -of -Way Association
AS aggregate subbase
ASME American Society of Mechanical Engineers
ASNT American Society of Nondestructive Testing
ASTM American Society of Testing and Materials
AT&T American Telephone & Telegraph
ATC Alternative Technical Concept
AV Audio Visual
AWSa American Welding Society
BMP Best Management Practice
BNSF Burlington Northern and Santa Fe
BO Biological Opinion
BSDS Bridge Site Data Submittal
BSPP Business Support Program Plan
CAC California Certified Asbestos Consultant
CADD Computer Aided Drafting and Design
CaI-NExUS California Numbered Exit Uniform System
CaI/OSHA California Division of Occupational Safety and Health Administration
CAR Corrective Action Report
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 2 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
CAT Contract Acceptance Testing
CCI Construction Cost Index
CCITT International Telegraph and Telephone Consultative Committee
CCP Crisis Communication Plan
CCR California Code of Regulations
CCS California Coordinate System
CCTV Closed Circuit Television
CDFW California Department of Fish and Wildlife
CEQA California Environmental Quality Act
CERCLA Comprehensive Environmental Response Compensation and Liability Act
CFR Code of Federal Regulations
CHP California Highway Patrol
CHST Construction Health and Safety Technician
CIDH Cast -In -Drilled -Hole
CIH Certified Industrial Hygienist
CIP Corridor Improvement Project
CJP complete joint penetration
CLOMR Conditional Letter Map or Revision
CMS Changeable Message Sign
CMU DIR's Compliance Monitoring Unit
CNDDB California Natural Diversity Database
CO Change Order
COZEEP Construction Zone Enhanced Enforcement Program
CPL Contractor's Pollution Liability (insurance)
CPM critical path method
CPP Communication Protocol Plan
CPR Cardiopulmonary Resuscitation
CPT Cone Penetration Test
CPUC California Public Utilities Commission
CQMP Construction Quality Management Plan
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 3 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
CQVM Construction Quality Validation Manager
CRCP continuously reinforced concrete pavement
CRM crumb rubber modifier
CSL crosshole sonic logging
CTB cement treated base
CTM California Test Method
CWI AWS Certified Welding Inspector
DB Design -Build
DBESP Determination of Biological Equivalent or Superior Preservation
DFEH California Department of Fair Employment and Housing
DGS California Department of General Services
DHCP Dynamic Host Configuration Protocol
DIGGS Data Interchange for Geotechnical and Geoenvironmental Specialists
DIR California Department of Industrial Relations
DLC Detector Lead -In Cable
DMS Document Management System
DOSH Division of Occupational Safety and Health
DOT Department of Transportation
Dpi Dots per inch
DPN Department Parcel Number
DQMP Design Quality Management Plan
DQVM Design Quality Validation Manager
DRA Dispute Resolution Advisor
DRB Dispute Resolution Board
DSA Division of the State Architect
DTSC Department of Toxic Substances Control
DVBE disabled veteran business enterprise
DVD Digital Versatile Disc
EA Expenditure Authorization
ECM Environmental Compliance Manager
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 4 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
ECR Environmental Commitments Record
EDMS Electronic Document Management System
EEO Equal Employment Opportunity
El Expansion Index
EIA/ECIA Electronic Industries Alliance/Electronic Components Industry Association
EIT Engineer -in -Training
EL Express Lane
ELC I-15/SR-91 (South to West / East to North) Express Lanes Connector
ELP 15 Express Lanes Project
EMS Extinguishable Message Sign
EPD Escrowed Proposal Documents
ERS Earth Retaining Systems
ESA Environmentally Sensitive Area
ETC Electronic Toll Collection
ETW Edge of Travel Way
fc extreme fiber compressive stress in concrete at service loads
f'c compressive strength of concrete
F/O Fiber Optic
FD Final Design
FEMA Federal Emergency Management Agency
FHWA Federal Highway Administration
FR Foundation Report
FRP Fiber Reinforced Polymer
FSP Freeway Service Patrol
FTE Full-time equivalent
GAD Geometric Approval Drawing
Gbps Gigabit per second
GDR Geotechnical Design Report
GEP Geotechnical Execution Plan
GGL gamma -gamma logging
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 5 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
GP General Purpose
GPS Global Positioning System
HAZWOPER Hazardous Waste Operations and Emergency Response
HDM Department Highway Design Manual
HEC Hydraulic Engineering Circular
HM Hazardous Materials
HMA Hot Mix Asphalt
HMA-0 hot mix asphalt (open graded)
HOV High Occupancy Vehicle
HS high strength
HVAC Heating Ventilation and Air Conditioning
1-15 Interstate 15
IAST Independent Assurance Sampling and Testing
ICC International Code Council
ICEA Insulated Cable Engineers Association
IDR Inspector Delay Report
IEEE Institute of Electrical and Electronics Engineers
IES Illuminating Engineer Society
IH Interstate Highway
IIPP Injury and Illness and Prevention Program
INVEST Infrastructure Voluntary Evaluation Sustainability Tool
IP Internet Protocol
ISO Insurance Services Office
IT Information Technology
ITE Institute of Transportation Engineers
ITP Instructions to Proposers
ITS Intelligent Transport Systems
JHA Job Hazard Analysis
JPCP Jointed Plain Concrete Pavement
JPEG Joint Photographic Experts Group
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 6 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
JRT Joint Resolution Team
LAPM Local Assistance Procedures Manual
LBP Lead -Based Paint
LCB Lean Concrete Base
LCCA Life Cycle Cost Analysis
LCP Labor Compliance Program
LCS Department's lane closure system
LED Light Emitting Diode
LOE Level of Effort
LOTB Log of Test Borings
LOTO Lockout/Tagout
LRFD Load and Resistance Factor Design
LTDS long term design strength
MB Megabyte
MC medium curing
METS Material Engineering and Testing Services
MIT Magnetic Imaging Technology
MOT Maintenance of Traffic
MPQP Material Plant Quality Program published by the Department
MR movement rating
MRI Mean Roughness Index
MSDSb material safety data sheet
MSE Mechanically Stabilized Earth
MSHCP Multiple Association of Corrosion Engineers
MT magnetic particle testing
MUTCD Manual on Uniform Traffic Control Devices
MVP Maintenance Vehicle Pullout
NAD North American Datum
NAHC Native American Heritage Commission
NAL numeric action level
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 7 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
NAVD North American Vertical Datum
NCR Nonconformance Report
NCR/MAR New Connections Report/Modified Access Report
NDC Notice of Design Change
NDT nondestructive testing
NEC National Electrical Code
NEMA National Electrical Manufacturers Association
NEPA National Environmental Policy Act
NESC National Electric Safety Code
NFPA National Fire Protection Association
NHPA National Historic Preservation Act
NOI Notice of Intent
NOT Notice of Termination
NPT National Pipe Thread Taper
NRTL Nationally Recognized Testing Laboratory
NTP Notice to Proceed
OC Overcrossing
OCP California Office of Community Partnerships
OCTA Orange County Transportation Authority
Office of Foreign Assets Control of the United States Department of the
OFAC Treasury
OFCCP Office of Federal Contract Compliance Program
OH Overhead
OJT On -the -Job Training
ORT Open Road Tolling
OSD Offices of Structure Design
OSHA Occupational Safety and Health Administration
OT Overtime
PA/ED Project Approval/Environmental Document
PALM Project Aesthetics and Landscape Master Plan
PC precast
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 8 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
PCC Portland Cement Concrete
PCI Protective Coatings Inspector
PCM Project and Construction Manager
PCMS portable changeable message sign
Pdf portable document format
PE Professional Engineer
PFR Preliminary Foundation Report
PGSSP Project General Standard Special Provision
PI Plasticity Index
PLS Professional Land Surveyor
PMP Project Management Plan
PPE Personal Protective Equipment
PPM Pages Per Minute
PS prestressed
PS&E Plans, Specifications and Estimates
PTS Yellow Paint and Theroplastic Striping
QC Quality Control
QMP Quality Management Plan
QV Quality Validation
RCFC&WCD Riverside County Flood Control & Water Conservation District
RCP Reinforced Concrete Pipe
RCTC Riverside County Transportation Commission
RFC Release for Construction
RFI Request For Information
RFP Request for Proposals
RFQ Request for Qualifications
RHMA rubberized hot mix asphalt
RHMA-G Rubberized Hot Mix Asphalt (Gap Graded)
RM Ramp Meter
RMS Ramp Meter System
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 9 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
ROC RCTC Operations Center
ROW Right of Way
RR Railroad
RT radiographic testing
SARB Santa Ana River Bridge
SARWQCB Santa Ana Regional Water Quality Control Board
SBCTA San Bernardino County Transportation Authority
SBE Small Business Enterprise
SC slow curing
SCE Southern California Edison
SCG Southern California Gas
SCRRA Southern California Regional Rail Authority
SDC Seismic Design Criteria
SDS safety data sheet
SER Standard Environmental Reference
SF Square Foot
SH State Highway
SHE Safety, Health and Environmental
SKR Stephen's Kangaroo Rat
SMFO Single Mode Fiber -Optic
SPT Standard Penetration Test
SR State Route
SR-91 State Route 91
SRC District 8 Safety Review Committee
SSID Service Set Identification
SSP Standard Special Provisions
SUE Subsurface Utility Engineering
SUV Service Utility Vehicle
SWDR
TCE
Storm Water Data Report
Temporary Construction Easement
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 10 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
TCP Traffic Control Plan
TCS Toll Collection System
TEES Department Transportation Electrical Equipment Specification
TIFF Tagged Image File Format
TMC Traffic Management Center
TMDL Total Maximum Daily Load
TMP Transportation Management Plan
TMS Transportation Management System
TOC Toll Backbone Communications and Operations Center
TOS Traffic Operations System
TP Technical Provisions
TRO time -related overhead
TS Traffic Signal
TSP Toll Services Provider
TUB Toll Utility Building
TW Time Warner
UC Undercrossing
UL Underwriters Laboratories, Inc.
USACE United States Army Corps of Engineers
USB Universal Serial Bus
U.S.C. United States Code
USDOL United States Department of Labor
USDOT United States Department of Transportation
USEPA United States Environmental Protection Agency
USFWS United States Fish and Wildlife Service
U.S. GAAP Generally Accepted Accounting Principles
UT ultrasonic testing
UTP Unshielded Twisted Pair
VAC Voltage Alternating Current
VECP Value Engineering Change Proposal
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 11 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
VGA Video Graphics Array
VLAN Virtual Local Area Network
VTMS Variable Toll Message Sign
WAN Wide Area Network
WBS Work Breakdown Structure
WDR Waste Discharge Requirement
WLAN Wireless Local Area Network
WPC water pollution control
WPCP water pollution control program
15 EL Closure Charges means the charges payable by DB Contractor to RCTC for certain Lane
Closures of 15 Express Lanes, as set forth in Exhibit 20.
15 Express Lanes means one to two tolled express lanes in each direction generally between
the I-15/Cajalco Road interchange and the I-15/State Route 60 interchange through the cities of
Corona, Norco, Eastvale, Jurupa Valley, and portions of unincorporated Riverside County.
55-Hour Weekend Closure means a 55-hour weekend closure of (a) the southbound 1-15
General Purpose Lanes and/or Express Lanes, or (b) the westbound 91 General Purpose Lanes
and 91 RCTC Express Lanes, in any case, commencing at or later than 9 p.m. on a Friday and
ending at or earlier than 4 a.m. on the immediately following Monday and solely for the purpose
of constructing the ELC bridge structures.
91 Express Lanes means approximately eighteen miles of tolled express lanes on State Route
91 (SR 91) between the State Route 55 and State Route 91 interchange and the Interstate 15
and State Route 91 interchange from the toll express lanes to and from the Interstate 15.
91 OCTA EL Closure Charges means the charges owing from DB Contractor to RCTC for Lane
Closures of 91 OCTA Express Lanes, in Exhibit 21.
91 OCTA Express Lanes means the 91 Express Lanes operated by OCTA. The eastbound 91
OCTA Express Lanes end at the express lane exit near the Orange County / Riverside County
line. The westbound 91 OCTA Express Lanes begin at the express lane entrance near the Orange
County / Riverside County line.
91 OCTA Express Lanes or 91 OCTA ELs means an approximately ten -mile high occupancy
toll road (express lanes) entirely within the median of the Riverside Freeway State Route 91 in
Orange County, California. The express lanes run from the Costa Mesa Freeway State Route 55
interchange in the vicinity of Anaheim to the Riverside/Orange County line. The 91 OCTA Express
Lanes are owned and operated by OCTA.
91 RCTC EL Closure Charges means the charges owing from DB Contractor to RCTC for Lane
Closures of 91 RCTC Express Lanes, in Exhibit 21.
91 RCTC Express Lanes means the 91 Express Lanes operated by RCTC. The eastbound 91
RCTC Express Lanes begin at the express lane entrance near the Orange County / Riverside
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 12 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
County line. The westbound 91 RCTC Express Lanes end at the express lane exit near the
Orange County / Riverside County line.
91 Revenue Service Commencement Date means March 20, 2017.
abandon means to render unserviceable in place.
Acceleration Costs means those fully documented increased Costs reasonably incurred by DB
Contractor (that is, reasonable Costs over and above what DB Contractor would otherwise have
incurred) which are directly and solely attributable to increasing the performance and production
levels of the Work to complete necessary elements or 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 accelerated efforts. Profit, overhead
and indirect costs in connection with acceleration efforts shall not exceed the amount allowed
under Section 9 of the Modified Standard Specifications (Exhibit 3).
activity means, in the context of Project Schedules, a task, event, or other project element on a
schedule that contributes to completing the project. An activity has a description, start date, finish
date, duration, and one or more logic ties.
Actual Knowledge means facts and information actually known to RCTC, DB Contractor or
RCTC's or DB Contractor's Representative (in each case, as applicable), after due consultation
with other personnel of such Person (or in the case of DB Contractor, each DB-Related Entity),
as applicable.
Additional Properties has the meaning given in Section 8.1.3(a) and includes any Utility
Easements which are RCTC's responsibility to acquire pursuant to the applicable Utility
Agreement(s) and are not included in the RCTC-Provided Property.
adjust or Adjust means, in the context of Utility -related Work, to raise or lower a facility to match
a new grade line.
ADL Management Plan means the plan described in TP Section 6.4.5, as updated in accordance
with this Contract.
aerially deposited lead means lead primarily from vehicle emissions deposited within unpaved
areas or formerly unpaved areas.
Aesthetics and Replacement Planting Concept Meeting has the meaning given in TP Section
20.2.3.
Affidavit of Final Acceptance means the affidavit described in Section 25.7.1(a).
Affiliate means (a) any Person that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, DB Contractor or any of its members,
partners, or shareholders holding a 10% or greater interest in DB 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) DB Contractor, (ii) any of DB Contractor's members, partners or
10% or greater shareholders, or (iii) any Affiliate of DB Contractor under clause (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
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 13 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
voting securities, by contract, family relationship or otherwise. Work performed by Affiliates shall
be deemed performed by DB Contractor.
Alternative Technical Concept or ATC means an RCTC-approved technical solution or
approach that differs from the Contract requirements and is listed in Exhibit 13-B (ATCs).
Application for Final Payment means DB Contractor's written request for Final Payment of the
unpaid remainder of the Contract Price as described in Section 14.4.1.
Apprenticeable craft or trade has the meaning given in Exhibit 16 (Labor Code Requirements).
Area of Potential Effect or APE means the area of potential effect identified in TP Attachment
6-2 (APE Map).
As -Built Documents means (a) the Final Construction Documents and related documentation
revised to show changes made in the field during construction so that they reflect the Project's
as -built condition; and (b) the As -Built Schedule.
As -Built Schedule means the final schedule for the Project, reflecting the actual scope, actual
completion dates and actual durations of the activities in the Project Schedule.
As -Built Verification Maps has the meaning given in TP Section 17.3.2.
As -Built Verification Maps Deadline has the meaning given in Section 6.4.2, as such deadline
may be extended under this Contract.
authorized laboratory means an independent testing laboratory (a) not employed or
compensated by any Subcontractor or Subcontractor's affiliate providing other services for this
Contract, and (b) authorized by Department.
Available Properties means each of the RCTC-owned parcels described as "RCTC Available
Property — SITE PLAN" in the Reference Documents as being required for performance of the
Work by DB Contractor.
base means, in the context of road -building, a layer of specified material of planned thickness
placed immediately below the pavement or surfacing.
Baseline Schedule means the approved Submittal provided in accordance with TP Section 4.3.3
and Section 6.2.1(c)(ii).
basement material means, in the context of road -building, material in an excavation or
embankment under the lowest layer to be placed.
Basic Configuration means the following elements defining the Project:
(a) The Planned ROW Limits;
(b) The number of lanes (as set forth in the Geometric Approval Drawings);
(c) The approximate number and location of the following items as set forth in the
Project Schematics:
(i) Toll Gantries;
Riverside County Transportation Commission Exhibit 1 Design -Build Contract
Express Lanes Connector Project Page 14 of 65 Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
56800642.v38
Sensitive
(ii) CCTV and TTMS Poles; and
(iii) overhead signs for the 15 Express Lanes and 91 Express; and
(d) The approximate location of ramps and approximate lengths of auxiliary lanes (as
set forth in the Geometric Approval Drawings).
Bat Management Plan means the plan described in TP Section 6.4.10.2, as updated in
accordance with this Contract.
Betterment has, with respect to a given Utility facility, the meaning (if any) given in the applicable
Utility Agreement. In all other cases, the term "Betterment" means any upgrading of the Relocated
Utility that is not attributable to the construction of the Project and is made solely for the benefit
of and at the election of the Utility Owner, including an increase in the capacity, capability, level
of service, efficiency, duration or function of the Relocated Utility facility over that which was
provided by the existing Utility facility; except that the following are not considered Betterments in
such cases:
(a) Any upgrading necessary for safe and effective construction of the Project;
(b) Replacement devices or materials that meet equivalent standards although they
are not identical;
(c) Replacement of devices or materials no longer regularly manufactured with the
next highest grade or size;
(d) Any upgrading required by applicable Governmental Rules (excluding any
Governmental Rules that fall within the definition of Utility Standards for such Utility
Owner); or
(e) Replacement devices or materials which are used for reasons of economy (e.g.
non -stocked items may be uneconomical to purchase).
BNSF Construction & Maintenance Agreement means an agreement conforming to the terms
of TP Attachment 8-1 (Railroad Agreement Term Sheet).
BNSF Railway Company means the Burlington Northern and Santa Fe Railway Company.
Bond means each of the Performance Bond, Payment Bond and Warranty Bond or any or all of
them, as the context requires.
Books and Records means any and all documents, books, records, papers or other information
of any DB-Related Entity or Affiliate relating to the Project, RCTC-Provided Property, Relocations
or Work, including:
(a) all design and construction documents (including drawings, specifications,
Submittals, Subcontracts, invoices, schedules, meeting minutes, budgets,
forecasts and change orders);
(b) all budgets, certificates, claims, correspondence, daily time sheet and supervisor's
daily reports, data (including test data), cost accounting data, documents, expert
analyses, facts, files, information, investigations, materials, notices, payroll
documents, plans, projections, proposals, records, reports, requests, samples,
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 15 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
schedules, settlements, statements, studies, surveys, tax returns and information,
tests, test results, vehicular traffic information, operational information analyzed,
categorized, characterized, created, collected, generated, maintained, processed,
produced, prepared, provided, recorded, stored or used by any DB-Related Entity
in connection with the Project;
(c) union agreements;
(d) insurance, welfare and benefits records;
(e) payroll registers;
(f) earnings records;
(g) payroll tax forms;
(h) material invoices and requisitions;
(i) material cost distribution work sheet;
(j) equipment records (list of company equipment, rates, etc.);
(k) Subcontractors' (including Suppliers) invoices;
(I) Subcontractors' and agents' payment certificates;
(m) canceled checks;
(n) job cost report;
(o) job payroll ledger;
(p) general ledger;
(q) cash disbursements journal;
(r) Project schedules;
(s) all documents that relate to each and every Claim and Dispute, together with all
documents that support the amount of damages as to each Claim or Dispute;
(t) work sheets used to prepare the Claim or Dispute establishing the cost
components for items of the Claim or Dispute, including labor, benefits and
insurance, materials, equipment, Subcontractors, all documents that establish the
time periods, individuals involved, the hours for the individuals, and the rates for
the individuals;
(u) email;
(v) network servers, data storage devices, backup tapes/media;
(w) letters and correspondence; and
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 16 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(x) with respect to all of the above, any information that is stored electronically or on
computer -related media.
For purposes of the requirements of this Contract to maintain Books and Records, the term "Books
and Records" includes documents or information that are subject to the attorney -client privilege,
but for purposes of requirements of this Contract to provide access to Books and Records, the
term specifically excludes documents or information that are subject to the attorney -client privilege
and are identified in a privilege log as attorney -client privileged information.
Boring Data means the geotechnical field and laboratory raw data provided for the actual boring
holes expressly identified in the Geotechnical Information included in the Reference Documents.
Boring Data does not include any interpretation, analysis, or other commentary that is based on
the raw data or otherwise contained in the Geotechnical Information.
Boulder means any rock that fails to pass through a 12-inch sieve as defined Department Soil
and Rock Logging, Classification, and Presentation Manual (2010).
bridge means a structure that:
(a) Has a bridge number, and
(b) Carries a (1) utility, (2) railroad, or (3) vehicle, pedestrian, or other traffic over,
under, or around obstructions or waterways.
Business Day means Monday through Friday, excluding weekends and Holidays.
Cal -OSHA means the California Department of Industrial Relations, Division of Occupational
Safety and Health.
California Test means Department -developed test for determining work quality. For California
Tests, go to the METS website.
certificate of compliance means, in the context of providing materials under the Technical
Provisions, a certificate stating the material complies with this Contract.
Certificate of Environmental Compliance has the meaning given in TP Section 6.3.1.
Certificate of Final Acceptance means the Notice issued by RCTC to DB Contractor that, except
for Plant Establishment Work, DB Contractor has achieved Final Acceptance and all Work has
been fully completed in accordance with this Contract.
Certificate of Package Turnover means each Notice issued by RCTC to DB Contractor that DB
Contractor has achieved Package Turnover with respect to a specific Package.
Certificate of Project Completion means the Notice issued by RCTC to DB Contractor that
DB Contractor has achieved Project Completion.
Certificate of Substantial Completion means the Notice issued by RCTC to DB Contractor that
DB Contractor has achieved Substantial Completion.
Certification of As -Built Documents has the meaning given in TP Section 3.4.4.
Certification of Final Design Documents has the certificate described in TP Section 5.3.3.2.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 17 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Change means:
(a) Any addition, decrease, omission, deletion, or removal to or from the Work, the
Project or the Technical Provisions;
(b) Any change to a Completion Deadline or the Contract Price;
(c) Any addition, omission or change to insurance policy limits or deductibles; and
(d) Other items the Parties agree to be a Change or which this Contract states to be
a Change,
excluding Deviations.
Change in Law means the enactment, adoption, modification, repeal or other change in any
Governmental Rule that occurs after the Setting Date, including any change in the judicial or
administrative interpretation of any Governmental Rule, or adoption of any new Governmental
Rule, which is materially inconsistent with Governmental Rules in effect on the Setting Date, but
excluding:
(a) Any change in or new Governmental Rule which was passed or adopted but not
yet effective as of the Setting Date;
(b) A change in a Project Standard or Utility Standard;
(c) A change in the way a Governmental Rule is applied or interpreted as a result of:
(i) The failure of any DB-Related Entity to comply with a Governmental Rule
or any Governmental Approval; or
(ii) Any act or omission of any DB-Related Entity or any DB Contractor Fault;
(d) A change in any Governmental Rule relating to taxes (excluding any Change in
Governmental Rule related to sales tax on materials that are permanently
incorporated in the Work); or
(e) A change in Governmental Rule which was not in force at the Setting Date but
which (i) had been published as a draft bill or draft statutory instrument or otherwise
specifically referred to prior to the Setting Date; (ii) a party experienced and
competent in the implementation of works or services similar to the Work would
have reasonably foreseen or anticipated prior to the Setting Date, including
adoption of a national interoperability standard; or (iii) is substantially the same as
a Governmental Rule in force prior to the Setting Date.
Change Notice means a Notice delivered by RCTC to DB Contractor pursuant to Section 16.4.1.
Change of Control means any assignment, sale, financing, grant of security interest, transfer of
interest or other transaction of any type or description, including by or through voting securities,
asset transfer, contract, merger, acquisition, succession, dissolution, liquidation or otherwise, that
results, directly or indirectly, in a change in possession of the power to direct or control or cause
the direction or control of the management of DB Contractor or a material aspect of its business.
A Change of Control of a shareholder, member, partner or joint venture member of DB Contractor
may constitute a Change of Control of DB Contractor if such shareholder, member, partner or
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 18 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
joint venture member possesses the power to direct or control or cause the direction or control of
the management of DB Contractor. Notwithstanding the foregoing, the following shall not
constitute a Change of Control:
(a) A change in possession of the power to direct or control the management of DB
Contractor or a material aspect of its business due solely to a bona fide transaction
involving beneficial interests in the ultimate parent organization of a shareholder,
member, partner or joint venture member of DB Contractor, (but not if the
shareholder, member, partner or joint venture member is the ultimate parent
organization), unless the transferee in such transaction is at the time of the
transaction suspended or debarred or subject to a proceeding to suspend or debar
from bidding, proposing or contracting with any federal or State department or
agency;
(b) An upstream reorganization or transfer of direct or indirect interests in DB
Contractor so long as no change occurs in the entity with ultimate power to direct
or control or cause the direction or control of the management of DB Contractor;
(c) A transfer of interests between managed funds that are under common ownership
or control other than a change in the management or control of a fund that
manages or controls DB Contractor; or
(d) The exercise of minority veto or voting rights (whether provided by applicable
Governmental Rules, by DB Contractor's organizational documents or by related
member or shareholder agreements or similar agreements) over major business
decisions of DB Contractor, provided that if such minority veto or voting rights are
provided by shareholder or similar agreements, RCTC has previously received
copies of such agreements.
Change Order means a written amendment to the terms and conditions of this Contract issued
by RCTC to DB Contractor with respect to a Change or Relevant Event in accordance with
Section 16 and includes the undisputed portion of any "claim" from DB Contractor, as that term is
defined in Public Contract Code section 9204.
Change Response has the meaning given in Section 16.4.3.
Claim means any claim, proceeding, action, cause of action, demand, judgment, investigation or
suit (including by way of contribution or indemnity) made:
(a) In connection with this Contract, the Project or the Site;
(b) Under Governmental Rules or in equity; or
(c) For specific performance, restitution, payment of money (including damages), an
extension of time, or any other form of relief.
Submission of a DB Contractor Change Request is not a Claim.
closure means a closure of a traffic lane or lanes, including shoulder, ramp or connector lanes,
within a single traffic control system.
Co -Located Office has the meaning given in TP Section 2.2.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 19 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Code means the statutory law of the State.
Collection System means the toll collection system for the 91 Express Lanes or 15 Express
Lanes (as applicable).
commercial quality means the level of quality meeting the Good Industry Practice.
commercial source means an established business operating as a material source for the
general public.
Commission means the governing body of RCTC.
Compensable Event means each of the following events:
(a) Delay Events (excluding Force Majeure Events);
(b) Subject to Section 16.8, Force Majeure Events that are not insured against and
are not required to be insured against in accordance with this Contract and result
in substantial destruction or damage to the Work;
(c) Additional Work resulting from RCTC-Directed Changes for which RCTC has not
issued a Change Order or Directive Letter;
(d) Any net positive Pavement Adjustment with respect to Package 2 or Substantial
Completion as described in Section 21.6.4;
(e) Subject to DB Contractor complying with its obligations under Section 3.5,
Section 25, TP Section 2.5 and TP Section 19.2.2, performance of operations or
maintenance activities by TSP or 91 Express Lanes Operator, on the Planned
ROW Limits that (i) exceeds six hours a month in the aggregate for the 15 Express
Lanes; or (ii) exceeds 12 hours a month in the aggregate for the 91 Express Lanes
and the 91 OCTA Express Lanes (excluding any operation and maintenance
activities allowed under TP Sections 18.3.3.3.1(iii) and 18.3.3.3.2(iii), as
applicable); and (ii) materially and directly disrupts and interferes with the Work;
(f)
(g)
Except as set out in Section 7.4.4, uncovering, removing and restoring Work under
Section 7.4, where the Work uncovered, removed, or restored is in compliance
with this Contract; and
Elements of the ELP Work that: (i) differ materially from elements of the ELP Work
identified in TP Attachment 1-1 (Scope of Work), (ii) DB Contractor identifies in its
Notice to RCTC under Section 25.1.3(e) and are not remedied prior to the date
upon which DB Contractor is required to access the ELP Project Site under the
Project Schedule, and (iii) would result in a material increase in DB Contractor's
Cost of performing the Work.
Completion Deadline means the As -Built Verification Map Deadline, the Utility Strip Map
Deadline, each Package Turnover Deadline, Substantial Completion Deadline, Project
Completion Deadline and Final Acceptance Deadline, or all of them as the context requires.
Completion Milestone means each Package Turnover Deadline, Substantial Completion,
Project Completion and Final Acceptance or all of them as the context requires.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 20 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Conduit means 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.
Construction Documents means all shop drawings, working drawings, fabrication plans,
material and hardware descriptions, specifications, construction quality control reports,
construction quality validation reports and samples necessary for construction of the Project in
accordance with this Contract.
Construction Manager has the meaning given in TP Section 2.6.1.2.
Construction Notice to Owner has the meaning given in TP Section 7.2.4.
Construction Quality Management Plan means the plan described in TP Section 5.4.1, as
updated in accordance with this Contract.
Construction Quality Validation Manager has the meaning given in TP Section 2.6.2.1.
Construction Safety Orders means the California Construction Safety Orders of the Division of
Occupational Safety and Health.
Construction Work means all Work to build or construct, make, form, manufacture, furnish,
install, supply, deliver, landscape or equip the Project.
Construction Work Zone means the portion of the RCTC-Provided Property in which a DB-
Related Entity's construction equipment or material is present, or temporary traffic control devices,
including temporary traffic striping and temporary signing, for the purposes of construction by any
DB-Related Entity, are in place.
Contaminated Groundwater means any extracted, pumped and/or ponded groundwater that
contains Hazardous Materials.
Contract means this Design -Build Contract made and entered into the day of
, 2020, between RCTC, and DB Contractor, including all exhibits, and the other
documents listed in Sections 1.2.1(a) and 1.2.1(b) (as applicable).
Contract Price means the amount set out in Exhibit 2 (Contract Particulars), subject to
adjustment only in accordance with the express terms of this Contract.
Contractor means the entity identified as "DB Contractor" under this Contract.
Controlling activity means, in the context of Project Schedules, a construction activity that will
extend the scheduled completion date if delayed.
Corrective Action Report or CAR has the meaning given in TP Section 5.2.3.1.6, as applicable.
Corrective Measures means corrective measures taken by DB Contractor in accordance with
Department Standards to achieve for any 0.10-mile segment of new pavement an MRI reading
less than 85.0.
Cost(s) means the actual, documented, direct incremental costs of design, construction,
commissioning, maintenance, or repair (as applicable).
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 21 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Cost and Schedule Proposal has the meaning given in Section 16.4.3(a)(v).
Cost Liability means the obligation to bear the cost of a Relocation (as between RCTC and the
Utility Owner), whether arising out of common or statutory law or contract (including Utility
Agreements), as determined by RCTC, in its good faith discretion.
Co -Sureties has the meaning given in Exhibit 8-A (Performance Bond).
Crisis Communications Plan or CCP means the Crisis Communications Plan, as updated in
accordance with this Contract.
Critical Activity Point has the meaning given in TP Section 5.4.4.
Critical Path means each critical path on the Project Schedule which ends on the applicable
Completion Deadline, as applicable (i.e., the term shall apply only following consumption of all
available Float in the schedule for a Completion Milestone, as applicable). The lower case term
"critical path," as used in the preceding sentence, means the longest continuous chain of activities
for the Project that has the least amount of total float of all chains.
critical path method means a method of planning and scheduling for a project where activities
are arranged based on activity relationships (i.e., a network -based planning technique using
activity durations and relationships between activities to calculate a schedule for the entire
project). This process determines which activities are "critical" (i.e., on the longest path) and which
have "total float" (i.e., can be delayed without making the project longer).
culvert means a structure other than a bridge that provides an opening under a roadway.
data date means, in the context of the Project Schedules, the day after the date through which a
schedule is current. Everything occurring earlier than the data date is as -built and everything on
or after the data date is planned.
DB Contractor has the meaning given in the Recitals to this Contract.
DB Contractor Available Property(ies) has the meaning given in Section 8.1.8(b).
DB Contractor Change Request means a Notice delivered by DB Contractor to RCTC pursuant
to Section 16.5.1(b).
DB Contractor Default has the meaning given in Section 20.1.1.
DB Contractor Fault means:
(a) A breach by DB Contractor of any of its obligations or any representation or
warranty under this Contract;
(b) A failure by DB Contractor to submit and/or obtain RCTC's approval of any
Submittal listed in Sections 5.1.3 and 5.2.2;
(c) A breach or violation by any DB-Related Entity of any Governmental Rule or
Governmental Approval; or
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 22 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(d) Negligence, gross negligence, fraud, bad faith recklessness, criminal conduct
intentional misconduct or any other negligent or culpable act or omission by any
DB-Related Entity.
DB Contractor Office Space has the meaning given in TP Section 2.2.
DB Contractor Release of Hazardous Materials means any spill or release, or threatened spill
or release, of a Hazardous Material and in the case of clause (b) any exacerbation of any existing
release or condition of Hazardous Materials, that was (a) brought onto the Site by a DB-Related
Entity, or (b) attributable to any act or omission of any DB-Related Entity or any DB Contractor
Fault.
DB Contractor's Utility Conflict Matrix means an update to the Preliminary Utility Matrix to be
provided by DB Contractor as described in TP Section 7.3.5.
DB-Related Entities means DB Contractor, Subcontractors or any of, their respective
employees, agents, representatives, shareholders, directors, members, managers, partners and
officers and all other Persons for whom DB Contractor may be legally or contractually responsible.
DB Utility Work has the meaning given in Section 8.3.1(c).
debarred has the meaning given in Attachment 2 to Exhibit 14.
Delay Event means each of the following events:
(a) Force Majeure Events;
(b) Extra Maintenance Work required in accordance with TP Section 21.4.4 of the TPs;
(c) RCTC-Caused Delays;
(d) A Change in Law which (i) requires a material modification in the design of the
Project, or (ii) results in imposition of material additional mitigation requirements
on the Project due to impacts on archaeological, paleontological, biological or
cultural resources;
(e) Any failure by a Utility Owner to complete design, construction, materials
procurement, and/or acquisition of a Utility Easement (as applicable) for any
Relocation before the deadline in the applicable Utility Agreement;
(f)
(g)
Subject to Section 16.13, a Differing Site Condition, provided a Reasonable
Investigation and exploration prior to the Setting Date would not have indicated the
condition DB Contractor and had no Actual Knowledge of such conditions as of the
Setting Date;
Performance of Hazardous Materials Management by DB Contractor resulting
from:
(i) Discovery of material quantities of HM-1 within the Existing Department
ROW;
(ii) Discovery of material quantities of HM-2 within the Existing Department
ROW which are Unknown Hazardous Material;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 23 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(iii) Discovery of material quantities of Unknown Hazardous Materials within
the Project ROW or any parcels added to the RCTC-Provided Property by
an RCTC-Directed Change or required due to a Force Majeure Event
(excluding the Existing Department ROW); or
(iv) Any spill of Hazardous Material by a third party who is not acting in a
capacity of, on behalf or under the authority or permission of a DB-Related
Entity which: (i) is required to be reported to a Governmental Entity and (ii)
renders use of the roadway or construction area unsafe or potentially
unsafe absent assessment, containment and/or remediation;
(h) Failure by the Utility Owner or RCTC (as applicable) to provide DB Contractor with
timely access to any Utility Easement, where that Party is responsible for handling
acquisition efforts for a particular Utility Easement under the terms of any
applicable Utility Agreement;
(i)
Unidentified or misidentified Main or Trunkline Utilities to the extent set out in
Section 16.12.1(a) or Section 16.12.1(b);
Q) Subject to DB Contractor complying with its obligations under Section 3.5, acts or
omissions of any Other RCTC Contractor, which materially and adversely directly
affects DB Contractor's obligations under this Contract;
(k) Errors in As -Built Reference Document Information to the extent set out in Section
16.17; and
(I)
Any new or changed condition or requirement in the Major Approvals Baseline
Conditions not identified in Part 2 of TP Attachment 6-1, subject to the limitations
and conditions described in TP Section 6.3.5.1.
Demarcation Matrix means the table setting out the responsibilities of DB Contractor and TSP
with respect to the Project set out in TP Attachment 19-1.
Department means the State of California Department of Transportation as defined in Streets
and Highways Code section 20, and authorized in Streets and Highways Code section 90; and
its authorized representatives.
Department Cooperative Agreement means the cooperative agreement between RCTC and
Department identified in Recital D to this Contract.
Department Documents means the Department Standard Plans, Department Revised Standard
Plans, the Department Standard Specifications, the Department Revised Standard Specifications,
the Department Standard Special Provisions, and all other provisions of publications, manuals,
handbooks, engineering manuals, technical memoranda, standards, guidelines rules and
regulations of Department that are applicable to the type of Work required under this Contract.
Department Safety Review Committee has the meaning given in TP Section 22.2.7.
Department Standard Specifications or Standard Specifications has the meaning given in
Section 1.5.1.
Design Documents means all drawings (including plans, elevations, sections, details and
diagrams), specifications, reports, calculations, records and other Submittals necessary for
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 24 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
design of the Project in accordance with this Contract, following approval by RCTC and others as
required by this Contract.
Design Manager has the meaning given in TP Section 2.6.1.3.
Design Quality Management Plan means the plan described in TP Section 5.3.1, as updated in
accordance with this Contract.
Design Quality Validation Manager has the meaning given in TP Section 2.6.2.2.
Design Review means the formal review of an existing or proposed design for the purpose of
detection and remedy of design deficiencies that would, among other things, affect fitness -for -use
and environmental aspects of the product, process or service, and/or identification of potential
improvements of performance, safety and economic aspects.
Design Work means all Work related to the design, engineering or architecture for the Project.
detour means a temporary route for traffic around a closed road part. A passageway through a
job site is not a detour.
Deviation means any change, deviation, modification, or alteration from the requirements of this
Contract (including deviations from standards referenced in this Contract) but excluding any
Change that is approved by RCTC in accordance with Section 3.2. Subject to Sections 3.2.2 and
3.2.3, and TP Section 10.3.1, a design exception not listed in TP Attachments 10-1, 10-2 and 10-
3 is a Deviation.
Differing Site Condition means (a) subsurface or latent physical conditions that are encountered
at or near the Site that differ from those reasonably assumed by DB Contractor based on incorrect
Boring Data provided by RCTC, to the extent that correct Boring Data would have resulted in
accurate assumptions, 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 including:
(a) The discovery at, near or on the Site of any archaeological, paleontological,
biological or cultural resource; provided that the existence of such resource was
not disclosed in the RFP Documents, DB Contractor had no Actual Knowledge of
such condition as of the Setting Date and such condition would not have become
known to DB Contractor by undertaking Reasonable Investigation prior to the
Setting Date; and
(b) The discovery at, near or on the Site of any species listed as threatened or
endangered under the federal or State Endangered Species Act, except to the
extent that the RCTC-Provided Approvals provide for mitigation measures to be
undertaken with respect thereto (regardless of whether the species is listed as
threatened or endangered as of the Setting Date), and also subject to the risk
allocation provisions contained in Section 8.11 (relating to DB Contractor's
obligation to obtain and maintain environmental approvals under certain
circumstances).
The definition of Differing Site Condition excludes: (i) the discovery of any Boulder that is less
than four feet in diameter or does not have a material impact on DB Contractor's performance of
the Work; (ii) Utilities; (iii) Hazardous Materials; (iv) moving groundwater; and (v) any differences
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 25 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
in groundwater depth, flow or location from the depths, flow or location, if any, noted in the
Reference Documents or otherwise.
Subject to the exclusions in the above paragraph, for the purposes of the definition of Differing
Site Condition, and subject to the DB Contractor's obligation to perform a Reasonable
Investigation, it shall be reasonable for DB Contractor to assume the Boring Data will be
consistent within a 30 ft. horizontal radius from the center of the borehole or half the horizontal
distance to the nearest adjacent borehole, whichever is less.
Directive Letter means a Notice issued by RCTC under Section 16.3.
disabled veteran business enterprise means a business certified as a DVBE by the State
Department of General Services, Office of Small Business and DVBE Services.
Disadvantaged Business Enterprise means a disadvantaged business enterprise as defined in
49 CFR § 26.5.
dispose of means to remove from the job site.
Dispute means a disagreement between the Parties as to the merits, amounts, or remedy arising
out of an issue in controversy, including a disagreement regarding a Claim.
Disputes Review Board means the Project's adjudication board established by the Parties under
Section 24.3.
District 8 means Department District 8.
divided highway means a highway with separated traveled ways for traffic, generally in opposite
directions.
Draft Invoice means a draft invoice in the form included in Exhibit 9-A including all documents
and information required by Section 14.2.2(a), prepared for the purposes of the Progress Meeting
in Section 14.2.2.
early completion time means, in the context of the Project Schedule, the difference in time
between an early scheduled completion date and the work completion date.
Effective Date has the meaning given in the Recitals to this Contract.
ELC Lane Closure Charges means the charges payable by DB Contractor to RCTC for certain
Lane Closures of Express Lanes, as set forth in Exhibit 22.
Eligible Change means a Delay Event and a Compensable Event, or either, as the context
requires.
Eligible Surety means a Surety licensed in the State, listed on the U.S. Department of the
Treasury's "Listing and Approved Sureties" (found at www.fms.treas.gov/c570/c570.html), rated
"A" or higher by at least two nationally -recognized rating agencies (Fitch Ratings, Moody's
Investor Service and Standard & Poor's) or rated at least A-, X or higher according to A.M. Best's
Financial Strength Rating and Financial Size.
ELP DB Contract means the agreement between RCTC and the ELP DB Contractor for design
and construction of the civil infrastructure for the 1-15 Express Lanes Project.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 26 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
ELP DB Contractor means Skanska-Ames a Joint Venture, the design -build contractor for the I-
15 Express Lanes Project.
ELP Project Site means that portion of the Existing Department ROW on CADD layer "ELP
Project Site" within TP Attachment 9-2.
ELP Revenue Service Commencement Date means the date after or coincident with ELP
Substantial Completion upon which the Toll Facilities commence revenue service.
ELP Substantial Completion means substantial completion of the ELP by the ELP DB
Contractor in accordance with the ELP DB Contract.
ELP Turnover means the stage in the Work where ELP DB Contractor has completed design,
construction, and inspection of the elements of the ELP that physically interface with the Work as
described in TP Section 2.5.1 (including providing documentation of the ELP Project Site as
described in TP Section 2.3.3).
Emergency Action _Plan has the meaning given in TP Section 22.2.3.3, as updated in
accordance with this Contract.
Engineer means, subject to Section 1.7.2(b), a Registered Professional Engineer authorized by
DB Contractor to perform or furnish professional services in connection with the Work.
ENR Los Angeles Construction Cost Index means the Los Angeles Construction Cost Index
published by Engineering News Record.
Environmental Approvals means all Governmental Approvals arising from or required by any
Environmental Law in connection with construction, use or operation of the Project, including
approvals and permits required under the National Environmental Policy Act (42 U.S.C. §§ 4321
et seq.), as amended, or the California Environmental Quality Act (section 21000 et seq. of the
Public Resources Code). Environmental Approvals include the NEPA/CEQA Revalidation and
the ROD. In the case of the NEPA/CEQA Revalidation and the ROD, DB Contractor's obligations
with respect to such Environmental Approvals are limited to those obligations set out in the
Environmental Commitments Record.
Environmental Commitments Record means the document entitled "Environmental
Commitments Record" included in TP Attachment 6-1 (Project Environmental Commitment
Requirements).
Environmental Compliance Manager has the meaning given in TP Section 2.6.1.5.
Environmental Laws means (1) all Governmental Rules applicable to the Project or the Work
now or hereafter in effect regulating, relating to, or imposing liability or standards of conduct
concerning the environment or to generation, production, emissions, discharges, storage, use,
handling, transportation, treatment, disposal, remediation, releases or threatened releases of
Hazardous Materials or other hazardous, toxic or dangerous waste, pollutants, contaminants,
substances, or materials into the environment including into the air, surface water or ground water
or onto land, and (2) any requirements and standards that pertain to the protection of the
environment, or to the management of Hazardous Materials or generation, production, emissions,
storage, use, handling, transportation, treatment, disposal, remediation, discharges, releases or
threatened releases of Hazardous Materials or other hazardous, toxic or dangerous waste,
pollutants, contaminants, substances or materials into the environment, contamination of any type
whatsoever, or health and safety matters with respect to Hazardous Materials, set forth in any
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 27 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Governmental Approval, or other criteria and guidelines promulgated, pursuant to Governmental
Rules applicable to the Project or the Work, as each of the foregoing have been or are amended,
modified, or supplemented from time to time (including any present and future amendments
thereto and reauthorizations thereof), including those relating to:
(a) The manufacture, processing, distribution, use, re -use, treatment, storage,
disposal, transport or handling of Hazardous Materials or other hazardous, toxic or
dangerous waste, pollutants, contaminants, substances or materials;
(b) The protection of public health, public welfare, public safety or the environment
(including protection of nonhuman forms of life, land, surface water, groundwater
and air);
(c) Air, soil, surface and subsurface strata, stream sediments, surface water, and
groundwater;
(d) Releases of Hazardous Materials;
(e) Protection of wildlife, endangered, threatened, and sensitive species, wetlands,
water courses and water bodies, parks and recreation lands, cultural, historical,
archeological, and paleontological resources and natural resources;
(f)
(g)
The operation and closure of underground or aboveground storage tanks;
Health and safety of employees and other persons with respect to Hazardous
Materials; or other hazardous, toxic or dangerous waste, pollutants, contaminants,
substances or materials; and
(h) Notification, documentation and record keeping requirements relating to the
foregoing.
Without limiting the above, the term "Environmental Laws" shall also include the following
(all as amended):
(i)
The Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9601 et seq. ("CERCLA");
(ii) The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
("RCRA");
(iii) The Emergency Planning and Community Right to Know Act of 1986, 42
U.S.C. § 11001 et seq.;
(iv) The Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.;
(v) The National Environmental Policy Act, 42 U.S.C. § 4321 et seq.;
(vi) The Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.;
(vii) The California Occupational Safety and Health Act of 1973, Lab. Code
§ 63000 et seq.;
(viii) The Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 28 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(ix) The Endangered Species Act, 16 U.S.C. § 1531 et seq.;
(x) The Clean Water Act, 33 U.S.C. § 1251 et seq.;
(xi) The Clean Air Act, 42 U.S.C. § 7401 et seq.;
(xii) The Federal Water Pollution Control Act, as amended by the Clean Water
Act, 33 U.S.C. § 1251 et seq.;
(xiii) The Oil Pollution Act, 33 U.S.C. § 2701 et seq.;
(xiv) The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et
seq.;
(xv) The Federal Safe Drinking Water Act, 42 U.S.C. § 300 et seq.;
(xvi) The Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. § 7401
et seq.;
(xvii) The Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq.;
(xviii) The Coastal Zone Management Act, 33 U.S.C. § 1451 et seq.;
(xix) The Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.;
(xx) The Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.;
(xxi) The Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.;
(xxii) Section 4f of the Department of Transportation Act, 49 U.S.C. § 303;
(xxiii) The National Historic Preservation Act, 16 U.S.C. § 470;
(xxiv) 33 CFR §§ 114 and 125;
(xxv) The California Environmental Quality Act, § 21000 et seq. of the California
Public Resources Code;
(xxvi) The California Clean Air Act of 1988, § 39000 et seq. of the California
Health and Safety Code;
(xxvii) The California Porter -Cologne Water Quality Act, § 13000 et seq. of the
California Water Code;
(xxviii) The California Coastal Act, § 30000 et seq. of the California Public
Resource Code;
(xxix) The Integrated Waste Management Act, § 40000 et seq. of the California
Public Resources Code;
(xxx) The California Safe Drinking Water and Toxic Enforcement Act, § 25249.5
et seq. of the California Health and Safety Code;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 29 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(xxxi) The California Hazardous Waste Control Act, Chapter 6.5 of Division 20 of
the California Health and Safety Code, § 25100 et seq.;
(xxxii) The California Hazardous Substance Account Act, the California Health
and Safety Code, § 25330 et seq.;
(xxxiii) Health and Safety Code § 25280 et seq. (Underground Storage of
Hazardous Substances);
(xxxiv) The California Hazardous Waste Management Act, the California Health
and Safety Code § 25170.1 et seq.;
(xxxv) Health and Safety Code § 25501 et seq. (Hazardous Materials Response
Plans and Inventory);
(xxxvi) Fish and Game Code §§ 1600 et seq., 1360 et seq., 2050 et seq., and 2080
et seq.; and
(xxxvii) California Energy Conservation Plan issued in compliance with the Energy
Policy and Conservation Act, all as amended.
Environmental Management Plan has the meaning given in TP Section 6.3.2, as updated in
accordance with this Contract.
Environmental Management Program has the meaning given in TP Section 6.3.1.
Environmental Monitoring Reports has the meaning given in TP Section 6.3.2.
Environmental Notification Checklist has the meaning given in TP Section 6.3.3.
Environmentally Sensitive Area means an area within or near the Site where access is
prohibited or limited to protect environmental resources and as set forth in TP Section 6.4.1.
Error means an error, omission, inconsistency, inaccuracy, deficiency or other defect.
Escrow Agent means the individual or entity designated in the RFP Documents who is authorized
to act as the escrow holder with respect to the Escrowed Proposal Documents.
Escrowed Proposal Documents has the meaning given in Section 26.1.
Event of Default has the meaning given in Section 20.2.1.
Existing Department ROW means the real property, owned by Department as of the Effective
Date, which RCTC intends to make available for permanent improvements included in the Project
which is shown graphically in the Project Schematic. Subject to TP Section 9, the limits of Existing
Department ROW permitted for use for the Project will be: (a) all real property shown in CADD
layer "Known Department ROW Limits" in TP Attachment 9-2; and (b) all real property within 10
feet of the boundary line shown in CADD layer "Approximate Department ROW Limits" in TP
Attachment 9-2.
Express Lane means any Lane that is an 15 Express Lane (or 15 EL), an 91 Express Lane (or
91 EL) or an 15/91 Express Lane (or 15/91 EL).
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 30 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Extra Maintenance Work has the meaning given in TP Section 21.4.4.
Facilitator for partnering meetings has the meaning given in Exhibit 2 (Contract Particulars).
FD Notice to Owner has the meaning given in TP Section 7.2.4.
federal -aid contract means a contract that is financed in part with federal funds.
Final Acceptance means the stage in the Work where the following requirements have been
satisfied by DB Contractor:
(a) All requirements for Project Completion have been satisfied;
(b) DB Contractor has provided RCTC with all Design Documents, original working
drawings, shop drawings and final As -Built Documents of the DB Work, right-of-
way record maps, surveys, test data and other Submittals required under this
Contract;
(c) DB Contractor has submitted and received RCTC approval of all Submittals
required by the Contract, including in TP Section 3.4.5.4;
(d) All special tools, equipment, furnishings and supplies purchased and/or used by
DB Contractor as provided in this Contract have been delivered to RCTC and all
replacement spare parts shall have been purchased and delivered to RCTC free
and clear of Liens;
(e) The items on the Final Acceptance Punch List shall have been completed to the
satisfaction of RCTC and Department, and all of DB Contractor's other obligations
under this Contract (other than obligations which by their nature are required to be
performed after Final Acceptance, including Plant Establishment Work) has been
satisfied in full or waived by Notice from RCTC;
(f)
(g)
RCTC's governing board formally accepts the Work as complete; and
All other conditions to Final Acceptance in this Contract shall have been satisfied.
Final Acceptance Date means the date on which Final Acceptance occurs.
Final Acceptance Deadline means 90 days after the Project Completion Date, as such deadline
may be extended under this Contract.
Final Design Documents means the complete final construction plans (including drawings,
elevations, sections, details and diagrams) and specifications needed by DB Contractor to build
the Project.
Final Design Package has the meaning given in TP Section 3.3.1.4.
Final Environmental Mitigation and Monitoring Reports has the meaning given in TP Section
6.3.2.
Final Payment means payment by RCTC of the final installment of the Contract Price.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 31 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
fixed cost means labor, material, or equipment cost directly incurred by DB Contractor or any of
its Subcontractors as a result of performing or supplying a particular bid item that remains constant
regardless of the item's quantity.
Flapping Charge has the meaning given in Section 8.1.7(d).
Float means the amount of time that any given activity or logically connected sequence of
activities shown on the Project Schedule may be delayed before it will affect DB Contractor's
ability to achieve a Completion Milestone by its applicable Completion Deadline. "Float" generally
means 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 within the
meaning of the word "Work").
Force Majeure Event means any of the events listed in clauses (a) through (k) below, subject to
the exclusions listed in clauses (i). through (vii) below, which materially and adversely directly
affects DB Contractor's obligations:
(a) Any earthquake, tornado, hurricane, Wildfire, lightning one in a 100 year flood or
other natural disaster that causes direct physical damage to the Project;
(b) Any epidemic in the Riverside County, California area;
(c) Any blockade, rebellion, war, riot, act of sabotage or civil commotion that causes
direct physical damage to the Project;
(d) Any major new State or federal Environmental Approval necessitated by the
discovery at, near or on the Planned ROW Limits of any archaeological,
paleontological, biological or cultural resources provided that the existence of such
resources or substances was not disclosed in, or ascertainable from, the RFP
Documents, was not otherwise known to DB Contractor prior to the Setting Date
and would not have become known to DB Contractor by undertaking Reasonable
Investigation prior to the Setting Date;
(e) Any major new State or federal Environmental Approval necessitated by the
discovery at, near or on the Planned ROW Limits of any species listed as a
threatened or endangered species (regardless of whether the species is listed as
threatened or endangered as of the Setting Date), provided that the presence of
such species was not disclosed in, or ascertainable from, the RFP Documents,
was not otherwise known to DB Contractor prior to the Setting Date and would not
have become known to DB Contractor by undertaking Reasonable Investigation
prior to the Setting Date;
(f)
(g)
Issuance of a temporary restraining order or other form of injunction by a court that
prohibits prosecution of a material portion of the Work;
The suspension, termination, interruption, denial or failure to obtain, failure to
maintain, or non -renewal of any RCTC-Provided Approval, except if such
suspension, termination, interruption, denial or failure to obtain, failure to maintain
or non -renewal arises from failure by any DB-Related Entity to locate or design the
Project or carry out the Work in accordance with the RCTC-Provided Approvals or
other Governmental Approval;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 32 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(h) Any failure by RCTC to obtain a fully executed and recorded BNSF Construction
& Maintenance Agreement and CPUC authorization, prior to the later of (i) 365
days after RCTC's receipt from DB Contractor of a complete Permit Submittal
Package in accordance with TP Section 8, and (ii) the late date for start of Work
requiring such agreement in the Project Schedule;
(i)
Delay in obtaining a Major Approval by the applicable Major Approval Deadline
where the delay is not due to differences in the Basic Configuration or DB
Contractor's final design;
(j) If, after DB Contractor fully complies with all requirements in TP Section 18.3.3.5,
RCTC and Department do not approve (i) at least one 55-Hour Weekend Closure
of the 1-15 in the southbound direction; and (ii) at least one 55-Hour Weekend
Closure of the SR-91 in the westbound direction;
(k) Subject to DB Contractor complying with its obligations under Section 3.5,
Section 25 and TP Section 18.4.7, DB Contractor is unable to access the
Pavement Contractor ROW as of the latest of (i) 8 months after issuance of NTP2;
(ii) the date shown in the then current Project Schedule; and (iii) June 1, 2021;
(I) Delay in obtaining approvals from the City of Corona of design submittals within
the timeframe specified in TP Attachment 3-1 from DB Contractor's submittal to
the City of Corona of a complete package of documents required for such review
or approval, provided that such delay is not caused by DB Contractor's actions;
and
(m)
The cumulative duration of Work stoppages under paragraph (f) of the definition of
RCTC-Caused Delay exceeds 15 Business Days.
The term "Force Majeure Event" shall be limited to the matters listed above and specifically
excludes from its definition the following matters which might otherwise be considered a
force majeure event:
(i)
Any physical destruction or damage, or delays to the Project which occur
by action of the elements, including explosion, fire, lightning, wind, drought,
rain, snow, or storm, except as specified in clause (a) above;
(ii) Except as provided in clause (c) above, malicious or other acts intended to
cause loss or damage or other similar occurrence, including vandalism or
theft;
(iii) Any strike, labor dispute, work slowdown, work stoppage, secondary
boycott, walkout or other similar occurrence;
(iv) The suspension, termination, interruption, denial, failure to obtain, non -
renewal or change in any requirements of any Governmental Approval,
except for any such matter falling within the scope of clause (e), , (h), or
fl above;
(v) Any increased costs or delays related to Relocations or failure to obtain or
maintain, as applicable, any approval, work or other action from a Utility
Owner, except to the extent directly due to any of the matters listed in
clauses (a) through above;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 33 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(vi) The presence at, near or on the Site, of any Hazardous Material, including
substances disclosed in the Reference Documents as well as any
substances contained in any structure required to be demolished in whole
or in part or relocated as part of the Work; and
(vii) Any matters not caused by RCTC or beyond the control of RCTC or any
other matter not listed in clauses (a) through above.
Foundation Release for Construction Package has the meaning given in TP Section 3.3.1.5.
General Purpose Lane means all mixed -flow Lanes (including ramps and direct connectors),
auxiliary Lanes on State Route 91 or Interstate 15 (as applicable), excluding the Express Lanes.
General TMP means the plan described in TP Section 18.3.1, as updated in accordance with this
Contract.
General Warranty means the general warranty set out in Section 13.1.1.
Generally Accepted Accounting Principles or U.S. GAAP means the set of accounting rules
and accounting standards promulgated by the "Financial Accounting Standards Board" (FASB),
as updated from time to time, and adopted by the accounting profession for the form and content
of financial statements and recording of financial transactions.
Geometric Approval Drawings means the Geometric Approval Drawings (Sheet 1 (interim),
Sheet 2 and Sheet 3), or either as the case may be.
Geotechnical Execution Plan means the plan described in TP Section 13.3.1, as updated in
accordance with this Contract.
Geotechnical Information means:
(a) Preliminary Foundation Information Report E91/N15 Express Lane Connector
prepared by Skanska-Ames, a Joint Venture and dated February 15, 2019;
(b) Preliminary Foundation Information Report Parkridge Avenue Undercrossing
Connector prepared by Skanska-Ames, a Joint Venture and dated February 15,
2019;
(c) Preliminary Foundation Information Report Retaining Walls 1 & 11, 9 & 10, 12 &
13, 2 & 3 prepared by Skanska-Ames, a Joint Venture and dated February 15,
2019;
(d) Preliminary Foundation Information Report Interstate 15 — State Route 91 Express
Lane Connector Project Retaining Walls 4, 5 and 6 prepared by Skanska-Ames, a
Joint Venture and dated February 18, 2018;
(e) Preliminary Foundation Information Report for S15/W91 Express Lane Connector
prepared by Skanska-Ames, a Joint Venture and dated February 18, 2019;
(f)
Preliminary Foundation Information Report E91/N15 EL Temescal Wash
Overhead prepared by Skanska-Ames, a Joint Venture and dated February 15,
2018;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 34 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(g) Final Foundation Report 91/15 Express Lanes Connector Bridge No. 56-0871E
(AWJV Bridge No. 24) SR-91 Corridor Improvement Project (CIP) prepared by
URS and dated October 10, 2014;
(h) Final Foundation Report N15/S15-W91 Connector Overhead Bridge No. 56-0872H
(AWJV Bridge No. 25) SR-91 Corridor Improvement Project (CIP) prepared by
URS and dated April 4, 2014;
(i) Final Foundation Report W91 Temescal Wash BR & OH (Widen) Bridge No. 56-
0446L (AWJV Bridge No. 26) SR-91 Corridor Improvement Project (CIP) prepared
by URS and dated March 30, 2015;
(j) Final Foundation Report E91/Temescal Wash OH Bridge No. 56-0873R(AWJV
Bridge No. 27) SR-91 Corridor Improvement Project (CIP) prepared by URS and
dated June 30, 2014;
(k) Final Foundation Report E91-N15/S15 Connector Oh Bridge No. 56-0874G(AWJV
Bridge No. 28) Sr-91 Corridor Improvement Project (CIP) prepared by URS and
dated April 24, 2014;
(I) Final Foundation Report Retaining Wall No. 115D SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated May 21, 2014;
(m)
Final Foundation Report Retaining Wall No. 119 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated September 8, 2014;
(n) Final Foundation Report Retaining Wall No. 126 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated December 17, 2014;
(o) Final Foundation Report Retaining Wall No. 127 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated September 12, 2014;
(p)
(q)
Final Foundation Report Retaining Wall No. 128 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated March 2, 2015;
Final Foundation Report Retaining Wall No. 129 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated February 10, 2015;
(r) Final Foundation Report Retaining Wall No. 130 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated September 12, 2014; and
(s) Final Foundation Report Retaining Wall No. 223 SR-91 Corridor Improvement
Project (CIP) prepared by URS and dated December 18, 2014.
Good Industry Practice means
(a) in the case of all Work (excluding the Design Work), the exercise of the degree of
skill, diligence, prudence, and foresight which would reasonably and ordinarily be
expected from a skilled and experienced constructor, supplier or other contractor
seeking in good faith to comply with its contractual obligations, complying with all
applicable Governmental Rules and Governmental Approvals and engaged in the
same type of undertaking under circumstances and conditions similar to those
within the same geographic area as the Project; and
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 35 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(b) in the case of Design Work, the exercise of the degree of skill, diligence, prudence,
and foresight which would reasonably and ordinarily be expected from a
professional designer or engineer seeking in good faith to comply with its
contractual obligations, complying with all applicable Governmental Rules and
Governmental Approvals and engaged in the same type of undertaking under
circumstances and conditions similar to those within the same geographic area as
the Project.
Governmental Approval means any permit, license, consent, concession, grant, franchise,
authorization, waiver, certification, exemption, filing, lease, registration or ruling, variance or other
approval, guidance, protocol, mitigation agreement, agreement or memoranda of
agreement/understanding, and any revision, modification, amendment, supplement, renewal or
extension of any of the foregoing, required by or with any Governmental Entity in order to perform
the Work or any Relocation work being performed by a Utility Owner, but excluding (a) any such
approvals relating to the work to be performed by other contractors as specifically described in
this Contract, and (b) any such approvals required by or with a Governmental Entity in its capacity
as a Utility Owner. Governmental Approvals include Environmental Approvals, RCTC-Provided
Approvals and New Approvals.
Governmental Entity means 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 RCTC.
Governmental Rule means any statute, law, code, regulation, ordinance, rule, judgment,
common law, writ, injunction, order, decree, permit, concession, grant, franchise, license,
agreement, directive, guideline, policy requirement or other governmental restriction or any similar
form of decision of or determination by, or any interpretation or administration of any of the
foregoing by, any Governmental Entity, which is applicable to the Work, the Project, the Site or
any Relocation work being performed by a Utility Owner, whether now or hereafter in effect. The
term "Governmental Rule" excludes "Governmental Approvals."
GP Lane Closure Charges mean the charges owing from DB Contractor to RCTC for certain
Lane Closures of General Purpose Lanes, in Exhibit 19.
grading plane means the basement material surface on which the lowest layer of subbase, base,
pavement, surfacing, or other specified layer is placed.
Guaranteed Obligations has the meaning given in the Guaranty.
Guarantor means each Person providing a Guaranty as described in Section 10.3.
Guaranty means each guaranty executed by a Guarantor guaranteeing some or all of the
obligations of DB Contractor under this Contract.
Hazardous Materials means any element, chemical, compound, mixture, substance, product,
waste or other material, whether solid, liquid or gaseous, which is or becomes defined, listed,
classified, regulated, or addressed in any way under any Environmental Laws, or any other
substances or conditions (including mold and other mycotoxins, fungi or fecal matter) which may
create any unsafe or hazardous condition or pose any threat or harm to the environment or human
health and safety. "Hazardous Materials" includes the following:
(a) Any substance, product, waste or other material of any nature whatsoever which
may give rise to liability under any Environmental Law or common law theory
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 36 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
based on negligence, trespass, intentional tort, nuisance or strict liability or under
any reported decisions of a state or federal court;
(b) Hazardous Waste, hazardous materials, hazardous substances, hazardous
constituents, and toxic substances, ignitable, corrosive and reactive substances or
related materials, whether solid, liquid or gas, including substances defined as or
included in the definition of "hazardous substance," "hazardous waste,"
"hazardous material," "extremely hazardous waste," "acutely hazardous waste,"
"radioactive waste," "radioactive materials," "bio-hazardous waste," "pollutant,"
"toxic pollutant," "contaminant," "restricted hazardous waste," "infectious waste,"
"toxic substance," "toxic waste," "toxic material," or any other term or expression
intended to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including harmful properties
such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Law);
(c) Any petroleum or crude oil and any fraction thereof, including any refined
petroleum product or any additive thereto or fraction thereof, and any waste oil or
waste petroleum byproduct or fraction thereof or additive thereto, but excluding
petroleum and petroleum products contained within regularly operated motor
vehicles;
(d) Any solvent, solvent waste, including any refined solvent product, and any waste
solvent or waste solvent byproduct, including any additive, byproduct or fraction of
any of the foregoing;
(e) Any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources;
(f)
(g)
Any flammable substances or explosives, including unexploded ordnance;
Any radioactive materials;
(h) Any 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);
(i)
(U)
Silica;
Any lead, cadmium, or lead -based paint or any other heavy metal -based paint or
material, or any metal listed in or regulated by the Resource Conservation and
Recovery Act (42 U.S.C. §§ 6901 et seq.);
(k) Any radon or radon gas;
(I) Any methane gas or similar or regulated gaseous materials;
(m) Any urea formaldehyde foam insulation;
(n) Electrical equipment and components which contain any oil or dielectric fluid
containing polychlorinated biphenyls;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 37 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(o) Pesticides, herbicides or fungicides;
(p) Any other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any Governmental Entity or which may or could pose a hazard to
the health and safety of any Persons in the vicinity of the Project or to the
environment; and
(q) Soil, surface water or groundwater containing any of the Hazardous Materials as
defined above.
Hazardous Materials and Waste Management Plan has the meaning given in TP Section 6.4.4,
as updated in accordance with this Contract.
Hazardous Materials Management means sampling, characterization, stock -piling, storage,
backfilling in place, asphalt batching, recycling, treatment, clean-up, remediation, transportation
and/or off -Site disposal of Hazardous Materials, whichever is the most cost-effective approach
authorized under applicable Governmental Rules.
Hazardous Substance Removal Certification has the meaning given in Business and
Professions Code section 7085.7.
Hazardous Waste means material that is hazardous waste as defined in section 25117 of the
California Health and Safety Code pursuant to section 25141 of the California Health and Safety
Code.
Health and Safety Plan has the meaning given in TP Section 22.2.3, as updated in accordance
with this Contract.
highway means the whole right-of-way or area reserved for use in constructing the roadway and
its appurtenances.
HM-1 means Hazardous Material that may require removal and disposal in accordance with
Governmental Rules, whether disturbed by the Project or not.
HM-2 means Hazardous Material that may require removal and disposal in accordance with
Governmental Rules only if disturbed by the Project.
holiday means any holiday shown in the following table:
Holidays
Holiday
Date observed
Every Sunday
Every Sunday
New Year's Day
January 1st
Birthday of Martin Luther King, Jr.
3rd Monday in January
Lincoln's Birthday
February 12th
Washington's Birthday
3rd Monday in February
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 38 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Cesar Chavez Day
March 31 st
Memorial Day
Last Monday in May
Independence Day
July 4th
Labor Day
1st Monday in September
Columbus Day
2nd Monday in October
Veterans Day
November 11th
Thanksgiving Day
4th Thursday in November
Day after Thanksgiving Day
Day after Thanksgiving Day
Christmas Day
December 25th
If January 1st, February 12th, March 31 st, July 4th, November 11th, or December 25th falls on a
Sunday, the Monday following is a holiday. If November 11th falls on a Saturday, the preceding
Friday is a holiday.
1-15 Corridor means Interstate 15, generally between the I-15/Cajalco Road interchange and the
I-15/State Route 60 interchange through the cities of Corona, Norco, Eastvale, Jurupa Valley, and
portions of unincorporated Riverside County.
1-15 Express Lane Segments or 1-15 EL Segments means the segments depicted in TP
Attachment 18-3.
1-15 Pavement Rehabilitation Project means the Department project to replace damaged
general purpose lane pavement slabs along 1-15 between Cajalco Road and SR-60, within the
Project ROW described in TP Section 18.4.7.
Improved Landscape Areas has the meaning given in TP Section 20.3.2.1.
Incident Management has the meaning given in TP Section 18.4.1.1.
Incidental Utility Work means all of the following work necessary for construction of the Project,
including any necessary coordination with Utility Owners and property owners or holders of real
property rights, providing design, performing construction, and obtaining and complying with all
required Governmental Approvals:
(a) Protection in Place of Utilities;
(b) All work necessary to abandon in place any utility in accordance with proper
procedures (e.g., flushing, capping, slurry backfill, etc.);
(c) Traffic control for Relocation work, to the extent such responsibility is assigned to
DB Contractor pursuant to TP Section 7;
(d) Resurfacing and re -striping of streets; reconstruction of curbs, gutters and
sidewalks; reinstallation of signage; and reinstallation or replacement of traffic
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 39 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
signals; to the extent such responsibility is assigned to DB Contractor pursuant to
TP Section 7;
(e) Adjustment of utility appurtenances (e.g., manholes, valve boxes, and vaults) for
line and grade upon completion of roadway work;
(f)
Potholing, electronic detection, surveying and any other methods used to
determine Utility locations and other material information concerning Utilities;
(g) Relocation or Protection in Place of Service Lines; and
(h) Temporary Relocations.
Indemnified Claim has the meaning given in Section 23.1.1.
Indemnified Parties means RCTC, the members of the Commission, the RCTC Representative,
Department, City of Corona, County of Riverside, Orange County Transportation Authority and
each of their respective officers, directors, board members, employees, consultants,
representatives and agents, or each of them as the context requires.
Instructions to Proposers means the RFP Document entitled "Instructions to Proposers" issued
by RCTC on July 10, 2019, as amended.
Instrumentation and Monitoring Program Plan has the meaning given in TP Section
13.3.4.1, as updated in accordance with this Contract.
Intellectual Property means all current and future legal and/or equitable rights and interests in
know-how, patents (including applications), copyrights (including moral rights), trade marks
(registered and unregistered), service marks, trade names, trade dress, trade secrets and trade
secret rights, designs (registered and unregistered) and design rights, utility models, circuit
layouts, plant varieties, business and domain names, inventions, solutions embodied in
technology, and other intellectual activity, and applications of or for any of the foregoing,
subsisting in or relating to the Project, Project design data or Project traffic data. Intellectual
Property includes toll -setting and traffic management algorithms, and software used in connection
with the Project (including software used for management of traffic on the Project), and Source
Code. Intellectual Property is distinguished from physical construction and equipment itself and
from data, sketches, charts, calculations, drawings, plans, depictions, specifications, layouts,
depictions, manuals, electronic files, artwork, correspondence, other Submittals and other
documentation that disclose Intellectual Property.
Intermediate Design Package has the meaning given in TP Section 3.3.1.3.
Invoice means an invoice in the form included in Exhibit 9-A including all documents and
information required by Section 14.2.2(a).
Invoice Certificate means the certificate to be provided with each Invoice in the form included in
Exhibit 9-B.
Job Hazard Analysis has the meaning given in TP Section 22.2.4.
Joint Resolution Team has the meaning given in TP Section 3.2.2.5.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 40 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Key Person or Key Personnel means positions identified in TP Section 2.6.1 or positions
otherwise advised by RCTC to DB Contractor from time to time.
Known or Suspected Hazardous Materials means Hazardous Materials that are known or
reasonably suspected to exist as of the Setting Date from information or analysis contained in or
referenced in the Reference Documents, or Hazardous Materials that would have become known
to DB Contractor by undertaking Reasonable Investigation prior to the Proposal Date. Known or
Suspected Hazardous Materials include Hazardous Materials arising in or from any of the sites
identified in the NEPA Approval and TP Section 6, including TP Section 6.4.4, as having or
potentially having Hazardous Materials.
Labor Compliance Program means a Third Party Labor Compliance Program adopted by RCTC
and approved by DIR.
Labor Surcharge and Equipment Rental Rates means the Department publication that lists
labor surcharge and equipment rental rates.
landscaping means the practice of a landscaping contractor under 16 CA Code of Regs.
§ 832.27.
Lane means any traffic lane including main lanes, ramps, direct connectors, frontage roads and
cross roads.
Lane Closure means a Permitted Lane Closure or an Unpermitted Lane Closure, or both, as the
context requires.
Lane Closure Charges mean GP Lane Closure Charges, 15 EL Closure Charges or 91 EL
Closure Charges, as the context requires.
Lane Requirement Chart means TP Attachment 18-1.
Lane Transaction means a uniquely identified record of activity, including transponder reads,
license plat images, and other event data created as a result of a vehicle traveling through a Read
Point.
Lead Engineering Firm means the single entity or joint venture identified in Exhibit 2 (Contract
Particulars) that is primarily responsible for the design and engineering of the Project.
License Agreement means an agreement under which RCTC agrees to provide access to a DB
Contractor Available Property to DB Contractor generally in the form set out in the Reference
Documents and subject to such other conditions that RCTC may require.
Lien means any pledge, lien, hypothecation, security interest, mortgage, deed of trust or other
charge, encumbrance or restriction on title or property interest 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 under the Uniform Commercial Code of any
jurisdiction).
Line of Sight Study has the meaning given in TP Section 19.3.3.
Liquidated Damages has the meaning given in Section 21.7.1.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 41 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Liquidated Damages Events means each of the events described in Sections 21.1, 21.3, 21.4,
21.5 and 21.6 or all of them as the context requires.
Listed Subcontractors means each of the Major Subcontractors and the other Subcontractors
identified in Exhibit 2 (Contract Particulars).
Local Agencies means the County of Riverside, the city of Corona, Orange County
Transportation Authority and any other state or local agency owning property within the Planned
ROW Limits or with jurisdiction over any such property, or that otherwise has interfaces with the
Project, other than RCTC and Department. For purposes of this definition, the State Water
Resources Control Board and California Department of Parks and Recreation shall be considered
to be Local Agencies.
Losses includes any loss, damage (including personal injury, property damage and natural
resource damages), injury, expense, compensation, debt, obligation, charge, liability, cost,
expense (including attorneys' fees, accountants' fees expert witness fees and expenses,
deductibles or increased premiums (including those incurred in connection with the enforcement
of any provision of this Contract)), fee, charge, demand, investigation, proceeding, action, suit,
claim, judgment, penalty, fine or Third Party Claims, actual, prospective or contingent and whether
or not currently ascertainable. Losses include injury to or death of persons, damage or loss of
property, and harm or damage to natural resources.
Main or Trunkline Utility means an underground 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 determined by RCTC. In determining
whether a facility should be considered a Main or Trunkline Utility, RCTC may refer to definitions
in the relevant manual or code, if any, of the Utility Owner.
Maintenance Work has the meaning given in TP Section 21.4.3.
Maintenance Work Plan means the plan to be provided by DB Contractor and approved by
RCTC and Department as described in TP Section 21.4.2, as updated in accordance with this
Contract.
Major Approval Deadline means the end of the expected time necessary to secure each of the
Major Approvals in TP Section 6.3.5.1.
Major Approvals means:
(a) Amendment to the Streambed Alteration Agreement Fish and Game 1602 Lake
and Streambed Alteration Program as described in TP Section 6.3.5.1;
(b) Amendment to the Water Quality Certification - Section 401 Water Quality
Standards Certification as described in TP Section 6.3.5.1;
(c) Riverside County Flood Control and Water Conservation District (RCFCWCD)
Encroachment as described in TP Section 6.3.5.1; and
(d) The BNSF Construction & Maintenance Agreement as described in TP Section
8.3.2.
Major Approvals Baseline Conditions has the meaning given in TP Section 6.3.5.1.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 42 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Major Subcontract means any Subcontract or combination of Subcontracts with a single
Subcontractor for design or construction of the Project or for special fabrication and installation of
a portion of the Work with a price in excess of $10 million.
Major Subcontractor means:
(a) The Lead Engineering Firm (if not the DB Contractor);
(b) The Structural Design Firm (if not the DB Contractor); and
(c) Any other Subcontractor that is a party to a Major Subcontract.
Major TMP means the plan described in TP Section 18.3.1, as updated in accordance with this
Contract.
material means any product or substance specified for use in the construction of a project.
Materials Report has the meaning given in TP Section 11.3.7.
median means, in the context of road -building, the portion of a divided highway separating the
traveled ways including inside shoulders.
milestone means an event activity that has zero duration and is typically used to represent the
start or end of a certain stage of the project.
mobilization means the preparatory work that must be performed or costs incurred before
starting work on the various items on the job site (Public Contract Code section 10104).
Modified Standard Specifications means the modifications to Sections 1 through 9 of the
Standard Specifications published by the Department, and included as Exhibit 3.
modify means to add to or subtract from an appurtenant part.
Monthly Progress Report has the meaning given in TP Section 2.5.3.
Monthly Progress Schedule has the meaning given in TP Section 4.3.4.
narrative report means, in the context of the Project Schedule, a document submitted with each
schedule that discusses topics related to project progress and scheduling.
near -Critical Path means, in the context of the Project Schedule, the chain of activities with total
float exceeding that of the critical path but having not more than 10 working days of total float.
Necessary Basic Configuration Change means a change in the Basic Configuration which is
necessary to meet the requirements of this Contract as the result of an Error in the Project
Schematics, Geometric Approval Drawings or Planned ROW Limited (as applicable) (with the
understanding that a change shall be deemed "necessary" only if the Error creates a problem in
which DB Contractor is unable to meet the requirements of this Contract without a material change
in the Basic Configuration).
NEPA/CEQA Approval means the 1-15 / SR-91 Express Lanes Connector Project NEPA/CEQA
Revalidation of the State Route 91 Corridor Improvement Project Environmental Impact
Report/Environmental Impact Statement, approved and signed on June 14, 2019].
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 43 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Nesting Bird Management Plan has the meaning given in TP Section 6.4.10.3, as updated in
accordance with this Contract.
New Approval means any of the following: (a) a new Governmental Approval of the same type
as the RCTC-Provided Approvals; and (b) a revision, modification, or amendment to one or more
of the RCTC-Provided Approvals.
New Utilities has the meaning given in Section 8.3.1(g).
Nonconformance means any aspect of the Work:
(a) that does not comply with the requirements of this Contract (including any failure
to comply with Proposal Commitments or ATCs); or
(b) is not consistent, or is incompatible with, its age, function, performance, and use
when properly maintained in accordance with Good Industry Practice and the
requirements of this Contract,
excluding any aspect of the Work that constitutes a Deviation that has been approved by RCTC
in accordance with the Contract.
Non -Dig Alert Mapped Utility(ies) means Utilities that are not documented by or recorded with
USA Dig Alert of Southern California.
Non -Standard Special Provision has the meaning given in TP Section 1.4.
Notice has the meaning given in Section 27.11.1.
Notice of Design Change means a Notice issued in accordance with TP Section 3.4.3.
Notice of Termination for Convenience means a Notice issued by RCTC to DB Contractor
terminating all or part of the Work of DB Contractor for convenience as described in
Section 19.1.1.
Notice to Owner means a Notice issued by RCTC to a Utility Owner, instructing the Utility Owner
to commence (a) preliminary planning of a Relocation, (b) final design of a Relocation, or (c)
construction of a Relocation. Notices to Owner include FD Notices to Owner and Construction
Notices to Owner.
NTP1 means a Notice issued by RCTC to DB Contractor authorizing DB Contractor to proceed
with the NTP1 Work.
NTP1 Mobilization Work has the meaning given TP Section 1.1.3.
NTP1 Payment Bond has the meaning given in Section 10.1.2(a).
NTP1 Payment Bond Amount has the meaning given in Section 10.1.2(a).
NTP1 Performance Bond has the meaning given in Section 10.1.1(a).
NTP1 Performance Bond Amount has the meaning given in Section 10.1.1(a).
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 44 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
NTP1 Submittals means the NTP1 Submittals listed in items 1-16 of Table 1-2 of TP Section
1 1.3.
NTP1 Work has the meaning given in TP Section 1.1.3.
NTP2 means a Notice issued by RCTC to DB Contractor authorizing DB Contractor to proceed
with the NTP2 Work.
NTP2 Payment Bond means the rider included in Exhibit 8-B effecting an increase in the amount
of the NTP1 Payment Bond to the NTP2 Payment Bond Amount or the new payment bond
provided by DB Contractor in accordance with Section 10.1.2(b)(ii), as applicable.
NTP2 Payment Bond Amount has the meaning given in Section 10.1.2(b).
NTP2 Performance Bond means the rider included in Exhibit 8-A effecting an increase in the
amount of the NTP1 Performance Bond to the NTP2 Performance Bond Amount or the new
performance bond provided by DB Contractor in accordance with Section 10.1.1(b)(ii), as
applicable.
NTP2 Performance Bond Amount has the meaning given in Section 10.1.1(b).
NTP2 Work means the Project excluding the NTP1 Work.
obliterate means to place an earth cover over or root, plow, pulverize, or scarify.
OCTA Agreement means the reimbursement agreement between RCTC and OCTA identified in
Recital D to this Contract.
OCTA-Related Work means Lane Closures of 91 OCTA Express Lanes and associated work.
Open Book Basis means providing RCTC all underlying assumptions, price quotes and data
associated with pricing or compensation (whether of DB Contractor or RCTC) or adjustments
thereto, including assumptions as to costs of the Work, schedule, composition of equipment
spreads, equipment rates, labor rates, productivity, estimating factors, design and productivity
allowance, contingency and indirect costs, risk pricing, discount rates, interest rates, and other
items reasonably required by RCTC to satisfy itself as to the reasonableness of the amount.
Other RCTC Contractor means any contractor or consultant, except any DB-Related Entity, that
RCTC contracts to perform other or additional work on or near the Site or in connection with the
Project including TSP, the 91 Express Lanes Operator and the ELP DB Contractor, but excluding
BNSF and the Pavement Contractor.
Package means each of Package 1, Package 2 or Package 3 or all of them as the context
requires.
Package 1 means toll infrastructure related work exclusive of the Toll Gantries as described in
TP Section 19.3.
Package 1 Turnover means the stage in the Work where DB Contractor has completed design,
construction, and inspection of the following elements not required for the Toll Gantries:
(a) Infrastructure for CCTV, including poles, pads, conduit, power, and
communication;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 45 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(b) Infrastructure for TTMS, including poles, pads, conduit, power and communication;
(c) Communications from Package 1 to the ROC;
(d) Power to all of the infrastructure within Package 1 and other TCS equipment
locations applicable to Package 1;
(e) Successful completion of a load verification and automatic transfer switch test for
each emergency generator meeting the requirements as set forth by the
manufacturer and in this Contract;
(f)
(g)
Successful completion of testing of the lightning protection and grounding systems
to certify compliance with requirements in the NFPA-70, National Electric Code:
NFPA-780, Lightening Protection Code, and UL-96A, Installation Requirements for
Master Labeled Lightning Protection Systems; and
All other requirements set out in TP Section 3.4.5 for Package 1 Turnover.
Package 1 Turnover Deadline means 120 days prior to the Substantial Completion Deadline,
as such deadline may be extended under this Contract.
Package 2 means the work necessary to complete the westbound SR-91 and eastbound SR-91
Toll Gantries and the area needed to test these Toll Gantries as described in TP Section 19.3.
Package 2 Turnover means, the stage in the Work where DB Contractor has completed design,
construction, and inspection of the following elements:
(a) Infrastructure for the eastbound and westbound SR-91 Toll Gantries, including
gantry, pads, conduits, cabinets, power and communication to support AVI, LPR,
beacons, and all ETC components;
(b) Infrastructure for CCTV, CMS, and Traffic Monitoring Station, including poles,
pads, conduit, power, and communication within the Toll Gantries;
(c) Communications from Package 2 to the ROC;
(d) Power to all of the infrastructure within Package 2 and other TCS equipment
locations applicable to the Toll Gantries;
(e) Successful completion of a load verification and automatic transfer switch test for
each emergency generator meeting the requirements as set forth by the
manufacturer and in this Contract;
(f)
(g)
Successful completion of testing of the lightning protection and grounding systems
to certify compliance with requirements in the NFPA-70, National Electric Code:
NFPA-780, Lightening Protection Code, and UL-96A, Installation Requirements for
Master Labeled Lightning Protection Systems;
DB Contractor has measured MRI separately for each 0.10-mile segment of
pavement for 1,500 feet on either side of each toll read point, and provided such
MRI measurements and supporting data to RCTC; with respect to new pavement:
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 46 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(i) Subject to clause (ii) below, each 0.10-mile segment meets the
requirements of TP Section 11.4 and the Department Standard
Specification; and
(ii) If any 0.10-mile segment fails to meet the requirements of TP Section 11.4
(1) RCTC has applied a Pavement Adjustment, and (2) no 0.10-mile
segment exceeds an MRI measurement of 85.0; and
(h) All other requirements set out in TP Section 3.4.5.
Package 2 Turnover Deadline means 90 days prior to the Substantial Completion Deadline, as
such deadline may be extended under this Contract.
Package 3 means the work necessary to complete the north 1-15 Toll Gantry and the area needed
to test this Toll Gantry as described in TP Section 19.3.
Package 3 Turnover means, the stage in the Work where DB Contractor has completed design,
construction, and inspection of the following elements:
(a) Infrastructure for the north 1-15 Toll Gantry, including gantry, pads, conduits,
cabinets, power and communication to support AVI, LPR, beacons, and all ETC
components;
(b) Infrastructure for CCTV, CMS, and Traffic Monitoring Station, including poles,
pads, conduit, power, and communication within the Toll Gantries;
(c) Communications from Package 3 to the ROC;
(d) Power to all of the infrastructure within Package 3 and other TCS equipment
locations applicable to the Toll Gantries;
(e) Successful completion of a load verification and automatic transfer switch test for
each emergency generator meeting the requirements as set forth by the
manufacturer and in this Contract;
(f)
(g)
Successful completion of testing of the lightning protection and grounding systems
to certify compliance with requirements in the NFPA-70, National Electric Code:
NFPA-780, Lightening Protection Code, and UL-96A, Installation Requirements for
Master Labeled Lightning Protection Systems;
DB Contractor has measured MRI separately for each 0.10-mile segment of
pavement for 1,500 feet on either side of each toll read point, and provided such
MRI measurements and supporting data to RCTC; with respect to new pavement:
(i) Subject to clause (ii) below, each 0.10-mile segment meets the
requirements of TP Section 11.4 and the Department Standard
Specification; and
(ii) If any 0.10-mile segment fails to meet the requirements of TP Section 11.4
(1) RCTC has applied a Pavement Adjustment, and (2) no 0.10-mile
segment exceeds an MRI measurement of 85.0; and
(h) All other requirements set out in TP Section 3.4.5.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 47 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Package 3 Turnover Deadline means 60 days prior to the Substantial Completion Deadline, as
such deadline may be extended under this Contract.
Package Turnover means each of Package 1 Turnover, Package 2 Turnover and Package 3
Turnover, or all of them, as the context requires.
Package Turnover Deadline means each of the Package 1 Turnover Deadline, Package 2
Turnover Deadline or the Package 3 Turnover Deadline, or both of them, as the context requires.
Paleontological Mitigation Plan means the plan described in TP Section 6.4.3.1, as updated in
accordance with this Contract.
participant has the meaning given in Attachment 2 to Exhibit 14.
Party means DB Contractor or RCTC, as the context may require, and "Parties" means DB
Contractor and RCTC, collectively.
Pavement means the uppermost layer of material placed on a traveled way or shoulder.
Pavement Adjustment has the meaning given in Section 21.6.2.
Pavement Contractor ROW means that portion of the Existing Department ROW on CADD layer
"Pavement Contractor ROW" within TP Attachment 9-2.
Payment Bond means the NTP1 Payment Bond and the NTP2 Payment Bond, or either of them
as the context requires.
Performance Bond means the NTP1 Performance Bond and the NTP2 Performance Bond, or
either of them as the context requires.
Permit Submittal Package has the meaning given in TP Section 6.3.5.1.
Permitted 15 EL Closure means a Permitted Lane Closure of a 15 Express Lane during the
time frames specified for the applicable segment and direction in Exhibit 20 — Chart 20-1 or Exhibit
20 — Chart 20-2, as the context requires.
Permitted 91 OCTA EL Closure means a Permitted Lane Closure of a 91 OCTA Express Lane
at the locations and during the time frames specified for the applicable segment and direction in
Exhibit 21 — Chart 21-4.
Permitted 91 OCTA EL Closure means a Permitted Lane Closure of a 91 OCTA Express Lane
ELC during the time frames specified for the applicable segment and direction in Exhibit 21 —
Chart 21-4.
Permitted 91 RCTC Eastbound EL Closure means a Permitted Lane Closure of an eastbound
91 OCTA Express Lane during the time frames specified for the applicable segment and direction
in Exhibit 21 — Chart 21-2.
Permitted 91 RCTC EL Closure means a Permitted Lane Closure of a 91 RCTC Westbound
Express Lane or 91 RCTC Eastbound Express Lane at the locations and during the time frames
specified for the applicable segment and direction in Exhibit 21 — Chart 21-1 and Chart 21-2 (as
the context required).
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 48 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Permitted 91 RCTC Westbound EL Closure means a Permitted Lane Closure of a westbound
91 OCTA Express Lane during the time frames specified for the applicable segment and direction
in Exhibit 21 — Chart 21-1.
Permitted ELC Lane Closure means a Permitted Lane Closure of an Express Lane on either
connector of the ELC during the time frames specified for the applicable segment and direction in
Exhibit 22 — Chart 22-1
Permitted GP Lane Closure means a Permitted Lane Closure of a General Purpose Lane at the
locations and during the time frames specified for the applicable segment and direction in TP
Attachment 18-1.
Permitted Lane Closure means such cases where DB Contactor (a) fully or partially closes a
General Purpose Lane or Express Lane to facilitate construction of the Project, or (b) fully or
partially blocks ingress to or egress from a General Purpose Lane or Express Lane to facilitate
construction of the Project, and where, in the case of either clause (a) or &, (i) RCTC or OCTA
(as applicable) approves the closure or blockage in advance and in accordance with TP Sections
18.3.3.1, 18.3.3.2, 18.3.3.3, 18.3.3.4 and 18.3.3.1.2, and (ii) DB Contractor otherwise complies
with the provisions of the Contract applicable to Lane Closures.
Person means any individual, corporation, joint venture, company, voluntary association,
partnership, trust, unincorporated organization or Governmental Entity.
Planned ROW Limits means (a) Existing Department ROW, (b) permanent easements within
BNSF property that RCTC intends to acquire and make available for the Project as shown in TP
Attachment 9-2, and (c) any other real property that RCTC acquires in connection with an RCTC-
Directed Change or Necessary Basic Configuration Change.
plans means standard plans, Revised Standard Plans, and project plans as follows:
(a) standard plans means drawings standard to Department construction projects.
(b) Revised Standard Plans means new or revised standard plans.
(c) project plans means drawings specific to the project, including authorized shop
drawings.
Plant Establishment Period means the three-year period described in TP Section 20.4.5.2.
Plant Establishment Work means the work described in TP Section 20.4.5.
Post Award Baseline Schedule has meaning given in TP Section 4.3.2.
Preliminary Baseline Schedule means the Project Schedule included in Exhibit 4 (Preliminary
Baseline Schedule).
Preliminary Utility Matrix means the list of existing Utilities identified within the Planned ROW
Limits, which list will be maintained and updated by DB Contractor in DB Contractor's Utility
Conflict Matrix pursuant to TP Section 7. The Preliminary Utility Matrix is included in the
Reference Documents.
Progress Meeting means the regular meetings described in Section 7.4.5.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 49 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Progress Report has the meaning given in TP Section 2.5.3.
Project has the meaning given in the Recitals to this Contract.
Project and Construction Manager or PCM means Parsons Transportation Group or such other
Person as may be designated by RCTC at any time as its Project and Construction Manager.
Project Completion means the stage of the Work when DB Contractor has satisfied the following
requirements:
(a) All requirements for Substantial Completion have been satisfied;
(b) All design and construction Work is complete, including correction of all
Nonconformances, completion of Punch List items and Department Safety Review
Committee review items;
(c) DB Contractor has provided RCTC an updated certification from DB Contractor's
Construction Quality Validation Manager, in form and substance satisfactory to
RCTC, certifying conformity of the construction to the Design Documents in
accordance with TP Section 19.2.2 and TP Attachment 19-2;
(d) All conditions to acceptance by Local Agencies, BNSF and Utility Owners have
been satisfied;
(e) All of DB Contractor's and Subcontractors' personnel, supplies, equipment, waste
materials, rubbish and temporary facilities has been removed from the Site, DB
Contractor has rebuilt, repaired or replaced all damage or injury arising from such
removal to the satisfaction of RCTC, and the Site shall be in good working order
and condition; and
(f)
All other conditions to Project Completion in this Contract have been satisfied.
Project Completion Date means the date on which Project Completion occurs.
Project Completion Deadline means 90 days after the Substantial Completion Date, as such
deadline may be extended under this Contract.
Project Management Plan means the Submittal approved by RCTC, describing Quality
Validation and Quality Control activities necessary to manage the development, design and
construction of the Project, as updated in accordance with this Contract. The Project
Management Plan includes each of the RCTC-approved component parts, plans and
documentation described in TP Section 2.1 and TP Attachment 2-1.
Project Manager has the meaning given in TP Section 2.6.1.1.
Project ROW means the property within the Planned ROW Limits, Available Properties and the
Additional Properties, excluding (a) any Utility Easements and (b) any portion of the Planned
ROW Limits eliminated from the Project by a Change Order. The boundaries of the Project ROW
will be as shown in the ROW Requirement Maps.
Project Schedule means the most current version of the Preliminary Baseline Schedule, Post
Award Baseline Schedule, or Baseline Schedule approved by RCTC, as applicable under Section
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 50 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
6.2.1, in accordance with this Contract as described in TP Section 4 and applicable to the Work
as set out in Sections 6.2.1(a) through 6.2.1(c).
Project Scheduler has the meaning given in TP Section 2.6.2.3.
Project Schematics means the documents entitled "Project Schematics" included in the
Reference Documents
Project Standards means those standards discussed in TP Section 1.3 and listed in TP
Attachment 1-2, together with any additional standards and specifications applicable to the Work
and established by express reference contained in one of the documents listed in TP
Attachment 1-2, or this Contract.
Project Standards Setting Date means May 9, 2019.
Proposal means the original written offer of DB Contractor submitted in response to the Request
for Proposals, as modified and supplemented with RCTC's approval prior to the Effective Date.
Proposal Commitments means the commitments in Exhibit 13-A (Proposal Commitments).
Proposal Date means November 20, 2019.
Proposed Disposition means, for each Utility, the determination (which may be preliminary or
final, as the context may require) as to whether such facility will require any of the following:
(a) removal, (b) abandonment, (c) Protection in Place, (d) Relocation, (e) is a proposed new
Utility, or (f) will not be impacted by the Project in any significant way (i.e., "no impact").
Proposer Questionnaire means Form C to the ITP.
Proprietary Intellectual Property means Intellectual Property created, used, applied or reduced
to practice in connection with the Project or the Work that derives commercial value from its
protection as a trade secret under applicable Governmental Rules or from its protection under
patent law.
Protection in Place or Protect in Place means 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 be considered a Temporary Relocation. The term Protection in Place includes
both temporary measures and permanent installations meeting the foregoing definition.
Public Outreach Plan has the meaning given in TP Section 2.4.3, as updated in accordance with
this Contract.
Public Outreach Specialist has the meaning given in TP Section 2.6.2.5.
Public Records Act has the meaning given in Section 26.8.1.
Punch List means the list of Work that remains to be completed (a) as a condition to achieving
completion of each Package Turnover, or (b), after achievement of Substantial Completion or as
a condition of Project Completion or Final Acceptance, as applicable, and shall be limited to minor
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 51 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
incidental items of Work necessary to correct imperfections which by virtue of not being
completed, will not, individually or collectively, have any adverse effect on the safety, use or
operability of the Project. Work required to comply with all applicable Governmental Rules or
Governmental Approvals is not "Punch List Work."
quality characteristic means a characteristic of a material that is measured to determine
conformance with a given requirement.
Quality Control means those functions that provide a means to control and measure
characteristics, as related to established system design requirements. It shall also mean the
techniques and activities that sustain the quality of an item to satisfy given needs; also the use of
such techniques and activities. Quality Control is a production tool.
quality control plan means a contractor's Quality Management Plan.
Quality Management Plan means, collectively, the Design Quality Management Plan and the
Construction Quality Management Plan included in the Project Management Plan and more fully
described in TP Section 5, as updated in accordance with this Contract.
Quality Manager has the meaning given in TP Section 2.6.1.6.
Quality Program has the meaning given in TP Section 5.
Quality Validation means all those planned and systematic actions necessary to provide
adequate confidence that an item of Work is in conformance with established requirements and
will satisfy given needs. The activity of providing the evidence needed to establish confidence
that quality functions are being performed adequately. Quality Validation is a management tool.
Railroad Coordinator has the meaning given in TP Section 2.6.1.10.
Railroad Flagging Plan has the meaning given in TP Section 8.4.2, as updated in accordance
with this Contract.
Railroad Submittal Package has the meaning given in TP Section 8.3.1.
RCTC has the meaning given in the Preamble to this Contract.
RCTC-Caused Delay means each of the following events:
(a) RCTC-Directed Changes;
(b) Subject to complying with Section 8.1.2(j), failure or inability of RCTC to make
RCTC-Provided Property available as provided in Section 8.1.2;
(c) Failure or inability of RCTC or Department to provide responses to proposed
schedules, plans, Design Documents, Construction Documents, and other
Submittals and matters for which affirmative response by RCTC or Departments is
required, within the time periods indicated in this Contract; provided, however, that
the foregoing shall apply only if the standard under the Contract for RCTC or
Department approval is reasonableness;
(d) Necessary Basic Configuration Changes to the extent permitted by Section 16.11;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 52 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(e) Any order of RCTC to suspend for convenience exceeding 48 hours per order or
more than a total of 96 hours for all such orders to suspend for convenience
pursuant to Section 18.1.1;
(f) Work stoppages under Section 16.15(e) following a discovery of Hazardous
Materials (i) only to the extent the delay is caused by RCTC not permitting DB
Contractor to resume Work in the affected area within three Business Days of the
Work stoppage and (ii) such Work stoppage is not attributable to an RCTC-Caused
Delay arising under Section 16.15(g); and
(g) The failure or inability of Department to:
(i)
Provide design and construction oversight, materials inspection and
material and engineering testing services within the time period specified
in this Contract;
(ii) Conduct investigation and perform Hazardous Materials Management of
HM-1 discovered within the Existing Department ROW or delegate such
responsibility to RCTC, within the time periods specified in Section 8.9.3;
and
(iii) Notify RCTC of its intent to delegate the Hazardous Materials Management
by the expiration of the investigation period specified in Section 8.9.3(b)
where DB Contractor is directed by RCTC to undertake the Hazardous
Materials Management within the time periods specified in Section 8.9.3.
RCTC Decision means a written decision issued by RCTC pursuant to Section 24.2.3.
RCTC-Directed Changes means:
(a) Any Change which RCTC has directed DB Contractor to perform as described in
Section 16.1 (including Section 16.14(a));
(b) Any Change in the Work to be performed by DB Contractor as a result of material
modifications contained in the final BNSF Construction & Maintenance
Agreement(s) from the requirements of TP Section 8 and TP Attachment 8-1 that
(a) have a material adverse impact on DB Contractor's obligations under this
Contract, and (b) were not caused by modifications to the Project Schematics that
were initiated by DB Contractor or result from the design solutions provided by or
construction means, methods and techniques employed by DB Contractor; and
(c) Subject to Section 8.10.1, any Change in the Work to be performed by DB
Contractor as a result of material modifications contained in any final RCTC-
Provided Approval not obtained as of the Setting Date which will (a) have a material
adverse impact on DB Contractor's obligations under this Contract, and (b) were
not caused by modifications to the Project Schematics that were initiated by DB
Contractor or result from the design solutions provided by or construction means,
methods and techniques employed by DB Contractor; and
(d) A Direction by RCTC requiring DB Contractor to comply with commitments
contained in re-evaluations, re -validations, and modifications of Environmental
Approvals submitted after the Setting Date that have a material adverse impact on
DB Contractor's obligations under this Contract to the extent such re-evaluations,
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 53 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
re -validations, and modifications are directly due to a Necessary Basic
Configuration Change pursuant to Section 16.
RCTC-Initiated VECP has the meaning given in Section 17.1.2.
RCTC Office Space means the RCTC office space within the Co -Located Office as described in
TP Section 2.2.
RCTC-Provided Approvals means the following Governmental Approvals: Final Initial Site
Assessment Addendum, dated September 5, 2018;
(a) Scenic Resource Evaluation and Visual Impact Assessment Addendum of State
Route 91 Corridor Improvement Project, dated August 31, 2018;
(b) NEPA/CEQA Approval; and
(c) Department's approval of the RCTC NEPA/CEQA Re -Validations, which has been
obtained as of August 8, 2018.
RCTC-Provided Property means the Planned ROW Limits plus; (a) all TCEs RCTC intends to
acquire for the Project as shown on the "Temporary Construction Easement" layer in TP
Attachment 9-2.
Read Point means a location where the TCS detects vehicles, reads transponders, and captures
images in order to create Lane Transactions.
reasonable accuracy has the meaning given in Section 16.12.2.
Reasonable Investigation means the following activities by appropriate, qualified professionals
prior to the Proposal Date:
(a) Visit and visual, non -intrusive inspection of the Site and adjacent locations
including inspection to identify the presence of other facilities, such as barriers,
railing, structures, manholes, or identifying markers, except areas to which access
rights have not been made available by the Setting Date;
(b) Review and analysis of all Reference Documents and online map tools;
(c) Review and analysis of RCTC-Provided Approvals available prior to the Setting
Date;
(d) Reasonable inquiry with Utility Owners, including request for and review of Utility
Plans provided by Utility Owners;
(e) Review and analysis of material Governmental Rules applicable to the Project or
the Work as of the Setting Date; and
(f)
Other activities sufficient to familiarize DB Contractor with surface and subsurface
conditions, including the presence of Utilities, Hazardous Materials, archeological,
biological, paleontological and cultural resources, and threatened or endangered
species, affecting the Site or surrounding locations;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 54 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
except that none of the foregoing activities includes conducting field studies, geotechnical
investigations, or original research of private records not contained or referenced in the Reference
Documents or Technical Provisions.
Recommendation has the meaning given in Section 24.4.4.
reconstruct means to remove and disassemble and construct again at an existing or new
location.
Record of Survey has the meaning given in TP Section 17.4.4.
Recovery Schedule means a schedule that demonstrates DB Contractor's proposed plan to
regain lost schedule progress and achieve the Completion Milestone by the applicable
Completion Deadline and which complies with the requirements of TP Section 4.3.6.
Reference Documents means the documents and information contained in Volume III of the
RFP.
Registered Professional Engineer means a person who is duly licensed and registered by the
California Board of Professional Engineers to engage in the practice of engineering in the State.
Regulations has the meaning given in Section 24.6.3.
Release for Construction means, for any element of the Project's design, the designation
indicating that the element may be constructed as shown in the corresponding RCTC-approved
Release for Construction Package.
Release for Construction Package has the meaning given in TP Section 3.3.1.5.
Release of Hazardous Materials means any spill, leak, emission, release, discharge, injection,
escape, leaching, dumping or disposal of Hazardous Materials into the soil, air, water,
groundwater or environment, including any exacerbation of an existing release or condition of
Hazardous Materials contamination.
Relevant Event has the meaning given in Section 15.1.1.
Relevant Event Notice has the meaning given in Section 15.4.1.
Relocate means action to undertake a Relocation. In its lowercase spelling to "relocate" means
to remove and install or place in a new location.
Relocated Utility means a Utility facility for which a Relocation has occurred.
Relocation means each removal, relocation, adjustment, reconstruction, abandonment,
Temporary Relocation, and provision of temporary services of any existing Utility facility that is
necessary in order to accommodate or permit construction of the Project, including backfilling,
pavement restoration and any other work described in TP Section 7.
remove means to remove and dispose of.
Representative has the meaning given in Section 27.5.1.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 55 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Request for Change Order means a written request initiated by DB Contractor substantially in
the form of Exhibit 18.
Request for Proposals means the Request for Proposals regarding the Project issued by RCTC
on July 10, 2019, including all addenda thereto, and all attachments thereto.
Retainage has the meaning given in Section 14.3.1(a).
Revenue Service Commencement Date means the date after or coincident with Substantial
Completion upon which the Toll Facilities commence revenue service.
RFP Documents means the documents issued as part of the RFP, including all addenda.
roadbed means the roadway portion extending from the curb line to curb line or the shoulder line
to shoulder line. A divided highway has two roadbeds.
roadside an area between the outside shoulder edge and the right-of-way limits.
roadway the portion of a highway within the outside lines of curbs, sidewalks, slopes, ditches,
channels, or waterways. A roadway includes the structures and features necessary for safety,
protection of facilities, and drainage.
ROD means a record of decision issued by Department with respect to the Project based on,
among other things, the RCTC NEPA/CEQA Re -Validation.
ROW Commitment Dates has the meaning given in TP Attachment 9.4.1.
ROW Requirements Maps mean the maps DB Contractor prepares to show the parcels
comprising the final Project ROW based on the Project's final design, as further described in TP
Section 9.3.1.
Safety Manager has the meaning given in TP Section 22.2.2.
scheduled completion date means the planned work completion date shown on the current
schedule.
Security Plan has the meaning given in TP Section 22.2.3.4, as updated in accordance with this
Contract.
Senior Project Engineer has the meaning given in TP Section 2.6.2.11.
Service Line (also referred to as a service lateral or lateral) means (a) any Utility line, the function
of which is to directly connect the improvements on an individual property (e.g., a single family
residence or an industrial warehouse) to another Utility line located off such property, which other
Utility line connects more than one such individual line to a larger system, and (b) any cable or
Conduit that supplies an active feed from a Utility Owner's facilities to activate or energize a Local
Agency's lighting and electrical systems, traffic signal systems, traffic control systems, copper or
fiber communication systems or irrigation systems. The term also includes any Utility on public
or private property that services structures located on such property.
Segment means the 1-15 Express Lanes Segments depicted in TP Attachment 18-3.
Setting Date means the date which is 60 days before the Proposal Date.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 56 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
shoulder means the Roadway portion contiguous with the traveled way for accommodation of a
stopped vehicle, emergency use, and lateral support of base and surface courses.
Site means those areas designated in writing by RCTC for performance of the Work and such
additional areas as may, from time to time, be designated in writing by RCTC for DB Contractor's
use in performance of the Work. For purposes of insurance (subject to any notification and other
requirements imposed by the insurer(s) for approval), indemnification, safety and security
requirements, the prevailing wage requirements, and payment for use of equipment, the term
"Site" shall also include (a) the field office sites, (b) any property used for bonded storage of
material for the Project approved by RCTC under Section 14.3.4, (c) staging areas dedicated to
the Project, and (d) areas where activities incidental to the Project are being performed by DB
Contractor or Subcontractors covered by the worker's compensation policy included in the
insurance described in Section 11 but excluding any permanent locations of DB Contractor or
such covered Subcontractors.
Site Specific Instrumentation and Monitoring Plan has the meaning given in TP
Section 13.3.4.2, as updated in accordance with this Contract.
small tool means a tool or piece of equipment not listed in Labor Surcharge and Equipment
Rental Rates that has a replacement value of $500 or less.
Sound Wall Design Report has the meaning given in TP Section 6.4.8.2.
Source Code or Source Code Documentation means software written in programming
languages, such as C and Fortran, including all comments and procedural code, such as job
control language statements, in a form intelligible to trained programmers and capable of being
translated into object or machine readable code for operation on computer equipment through
assembly or compiling, and accompanied by documentation, including flow charts, schematics,
statements of principles of operations, architectural standards, and commentary, explanations
and instructions for compiling, describing the data flows, data structures, and control logic of the
software in sufficient detail to enable a trained programmer through study of such documentation
to maintain and/or modify the software without undue experimentation. Source Code and Source
Code Documentation also include all modifications, additions, substitutions, updates, upgrades
and corrections made to the foregoing items.
South Flyover Connector means, collectively, the existing north to west Express Lanes
connector and the existing east to south Express Lanes connector, in each case between 1-15
and SR-91.
Special Design has the meaning given in TP Section 1.4.1.
SR-91 Ultimate Exhibit has the meaning given in TP Section 10.2.2
State means the State of California, including its agencies, departments or divisions whose
conduct or action is related to the work.
State Arbitration Act has the meaning given in Section 24.6.3.
Statement of Qualifications means the Statement of Qualifications submitted by Proposer in
response to RCTC's Request for Qualifications 11-31-031-00.
Stipulated Damages has the meaning given in Exhibit 20 (15 EL Closure Charges), Exhibit 21
(91 EL Closure Charges) or Exhibit 22 (ELC Lane Closure Charges) (as applicable).
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 57 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Structural Design Firm means the single entity or joint venture identified in Exhibit 2 (Contract
Particulars) that is primarily responsible for the structural design of the Project.
Structure Design means the Offices of Structure Design of the Department of Transportation.
Structures Design Manager has the meaning given in TP Section 2.6.1.4.
subbase means the layer of material between a base and the basement material.
Subcontract means an agreement between DB Contractor and one or more third parties
providing for such third party to perform any part of the Work or provide any materials, equipment,
labor or supplies for any part of the Work, or any such agreement between a Subcontractor and
its lower tier Subcontractor or a Supplier and its lower tier Supplier, at any tier.
Subcontractor means any Person with whom DB 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.
subgrade means the roadbed portion on which pavement, surfacing, base, subbase, or a layer
of any other material is placed.
Submittal means any document, work product, or other written or electronic end product or item
required under this Contract to be prepared by DB Contractor and delivered or submitted or
resubmitted to RCTC.
Submittal Schedule has the meaning given in TP Section 3.2.2.6.
Substantial Completion means the stage in the Work when the following requirements have
been satisfied by DB Contractor:
(a) All major safety features are installed and functional, such major safety features to
include shoulders, guard rails, striping and delineations, concrete traffic barriers,
bridge railings, cable safety systems, metal beam guard fences, safety end
treatments, terminal anchor sections, crash attenuators and any other items
specified in TP Section 22.2.3;
(b) All required illumination is installed and functional;
(c) All required signs and signals are installed and functional;
(d) The need for temporary traffic controls or for lane closures at any time has ceased
(except for any required for routine maintenance, and except for temporary lane
closures during hours of low traffic volume in accordance with and as permitted by
the Transportation Management Plan solely in order to complete Punch List items);
(e) All lanes of traffic (including ramps, interchanges, overpasses, underpasses, other
crossings and frontage roads) given in the Design Documents are in their final
configuration and available for public use;
(f)
The required TMS systems (excluding elements to be installed by TSP) are
installed and functional in accordance with TP Section 16.4.2;
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 58 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
(g)
Whether DB Contractor has completed the Work in accordance with this Contract
and Design Documents, including the construction of noise/sound walls, such that
the Project (excluding elements of the Project that are to be installed by TSP) is in
a condition that it can be used for normal and safe vehicular travel in all lanes and
at all points of entry and exit, subject only to Punch List items and other items of
work that do not affect the ability to safely open the Project for such normal use
and operation by the traveling public and for normal tolling operation for the Toll
Facilities;
(h) The Parties shall disregard the status of the vegetative ground cover landscaping
and aesthetic features, except noise/sound walls, included in the Released for
Construction Documents in determining whether Substantial Completion has
occurred, except to the extent that its later completion will affect public safety or
satisfaction of the criteria in clause (d) of this definition;
(i)
G)
All Package Turnovers have occurred;
All noise/sound walls are installed and functional in accordance with TP Section
20.3.5; and
(k) DB Contractor has completed all Work which this Contract states is a condition
precedent to Substantial Completion; provided that, Substantial Completion shall
not be deemed to have occurred until (x) the earlier of DB Contractor's completion
of its Work for the relevant Package and acceptance of such Work by RCTC and
(y) each of the following having occurred:
(i)
With respect to Package 1, 120 days after RCTC's determination that DB
Contractor has achieved Package 1 Turnover;
(ii) With respect to Package 2, 90 days after RCTC's determination that DB
Contractor has achieved Package 2 Turnover; and
(iii) With respect to Package 3, 60 days after RCTC's determination that DB
Contractor has achieved Package 2 Turnover.
Substantial Completion Deadline means the date that is 1150 days after the effective date of
NTP1 as such date may be extended under this Contract.
substructure means bridge parts below the bridge seats, pier tops, and haunches for rigid -
framed bridges or spring lines for arched bridges; "substructure" includes abutment backwalls,
abutment parapets, and wingwalls.
superstructure means Bridge parts except the substructure.
Supplier means any Subcontractor that supplies machinery, equipment, materials or systems to
DB Contractor or any Subcontractor in connection with the performance of the Work and that
does not perform Work at the Site. Persons who merely transport, pick up, deliver or carry
materials, personnel, parts or equipment or any other items or persons to or from the Site shall
not be deemed to be performing Work at the Site. The term "Supplier" includes fabricators and
material dealers.
Surety means each properly licensed surety company, insurance company or other Person
approved by the California State Insurance Commissioner to do business in the State and
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 59 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
approved by RCTC, which has issued the Payment Bond or the Performance Bond in accordance
with this Contract.
surfacing means the uppermost layer of material placed on a traveled way or shoulders;
pavement.
suspended has the meaning given in Attachment 2 to Exhibit 14.
Sustainability Management Plan means the plan described in TP Section 6.4.13, as updated in
accordance with this Contract.
Take means, in the context of Environmental Approvals and environmental Governmental Rules,
to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct.
TCS Infrastructure has the meaning given in TP Section 19.3.1.
Technical Provisions means the part of the Contract identified as Technical Provisions.
Temporary Construction Easement means those work areas identified as TCE in TP
Attachment 9-1 (ROW Availability) and any TCE acquired as Additional Property in accordance
with Section 8.1.3.
Temporary Relocation means (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 location with or without
an interim relocation.
Termination Date means the date of termination specified in the Notice for Termination for
Convenience or Termination for Default Notice (as applicable).
Termination for Convenience means a termination of the Contract, in whole or in part, pursuant
to Section 19.1.
Termination for Convenience Amount has the meaning given in Section 19.5.
Third Party Claims means any and all claims, disputes, disagreements, causes of action,
demands, suits, actions, judgments, investigations or proceedings brought by a Person that is not
a Party with respect to damages, injuries, liabilities, obligations, losses, costs, penalties, fines or
expenses (including attorneys', accountants' and expert witnesses' fees and expenses) sustained
or incurred by such Person.
Time and Materials Change Order has the meaning given in Section 16.10.
Time and Materials Work means Work performed pursuant to a Time and Materials Change
Order.
TMS Inventory has the meaning given in TP Section 16.2.2.
Toll Facilities means the tolled EL facilities located on the existing State highway system and
identified in the Project Schematics.
Toll Gantry(ies) has the meaning given in TP Section 19.3.5.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 60 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Toll Services means the design, installation, integration, deployment, testing, management,
operation and maintenance of the toll collection system and provision of customer service, back
office and traffic management services.
Toll Services Coordinator has the meaning given in TP Section 2.6.1.7.
Toll Services Provider or TSP means Kapsch TrafficCom USA, Inc., a Delaware corporation
(formerly Kapsch TrafficCom Transportation NA, Inc., a Michigan corporation).
total float means the amount of time that an activity or chain of activities can be delayed before
extending the scheduled completion date.
TP Attachments means those documents annexed to the Technical Provisions and identified as
"Attachments."
traffic means pedestrians, bicyclists, ridden or herded animals, vehicles, streetcars, and other
conveyances either singularly or together while using any highway for purposes of travel.
traffic lane means the portion of traveled way used for the movement of a single line of vehicles.
Traffic Management Center has the meaning given in TP Section 16.1 and shall, as the context
requires, refer to the Department Traffic Management Center, City of Corona Traffic Management
Center and/or County of Riverside Traffic Management Center.
Transportation Management Plan means the plan developed by DB Contractor for maintenance
of traffic during construction in accordance with TP Section 18.3.1, as updated in accordance with
this Contract.
Transportation Management System has the meaning given in TP Section 16.
traveled way means the portion of the roadway for the movement of vehicles, exclusive of the
shoulders, berms, sidewalks, and parking lanes.
Tree and Vegetation Preservation and Removal Plan has the meaning given in TP Section
20.3.2.2, as updated in accordance with this Contract.
TSP means Kapsch TrafficCom USA, Inc., a Delaware corporation (formerly Kapsch TrafficCom
Transportation NA, Inc., a Michigan corporation).
TSP Contract means that certain Toll Services Contract (for the 1-15 Express Lanes Project)
dated as of January 26, 2017, by and between RCTC and TSP, as amended.
TSP Ready for Construction Certification means a certificate signed by TSP and provided to
RCTC and DB Contractor pursuant to the process provided in TP Section 19.2.2, certifying to DB
Contractor and RCTC, that (i) TSP has reviewed the elements of the DB Contractor's Design
Documents that reflect the design elements for the TCS Infrastructure, (ii) such elements are
consistent with TSP's "Infrastructure Design Requirements" (as defined in the TSP Contract) set
forth in the "TCS Infrastructure Design Document" (as defined in the TSP Contract), and (iii) if the
Work is built in accordance with such Design Documents, it will be suitable for TSP's performance
of the Toll Services (as defined in the TSP Contract).
TSP Work has the meaning given in TP Section 19.2.2.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 61 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
tunnel means "Tunnel" as defined in 8 CA Code of Regs. § 8405 et seq.
Turnover Area has the meaning given in Section 25.1.
unauthorized work means work performed beyond the lines and grades described in this
Contract or established by RCTC or extra work performed without RCTC's authorization.
Uniform Act means the Federal Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, 42 U.S.C. Chapter 61, as amended, and all associated regulations and
policies. Major app
Unknown Hazardous Materials means Hazardous Materials that meet all of the following
criteria:
(a) The Hazardous Materials are in, on or under the Project ROW, or parcels added
to the Project ROW by an RCTC-Directed Change or required due to a Force
Majeure Event or Necessary Basic Configuration Change as of the date
Department makes available to DB Contractor the affected parcel;
(b) The Hazardous Materials are not Known or Suspected Hazardous Materials; and
(c) The Hazardous Materials are not required to be removed and disposed of due to
a DB Contractor Release of Hazardous Materials.
For purposes of this definition, "makes available" means (i) the Effective Date for parcels acquired
as of the Effective Date or (ii) as to parcels not yet acquired as of the Effective Date, the date DB
Contractor first receives access to the parcel in accordance with this Contract. For avoidance of
doubt, ADL-contaminated soils that exceed applicable DTSC thresholds requiring off -Site
disposal and which are not permitted to be used on -Site are considered Unknown Hazardous
Materials so long as subparts (a), (b) and (c) of this definition of Unknown Hazardous Materials
apply.
Unpermitted 15 EL Closure means an Unpermitted Lane Closure of a 15 Express Lane at the
locations and during the time frames specified for the applicable segment and direction in Exhibit
20 — Charts 20-3 and 20-4 (as the context requires).
Unpermitted 91 OCTA EL Closure means an Unpermitted Lane Closure of a 91 OCTA Express
Lane at the locations and during the time frames specified for the applicable segment and
direction in Exhibit 21 — Chart 21-5.
Unpermitted 91 RCTC EL Closure means an Unpermitted Lane Closure of a 91 RCTC Express
Lane at the locations and during the time frames specified for the applicable segment and
direction in Exhibit 21 — Chart 21-3.
Unpermitted ELC Lane Closure means an Unpermitted Lane Closure of an Express Lane on
either connector of the ELC at the locations and during the time frames specified for the applicable
segment and direction in Exhibit 22 — Chart 22-2.
Unpermitted GP Lane Closure means an Unpermitted Lane Closure of a General Purpose Lane
at the locations and during the time frames specified for the applicable segment and direction in
Exhibit 19.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 62 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Unpermitted Lane Closure means such cases where DB Contractor: (a) fully or partially closes
any portion of a General Purpose Lane or Express Lane, for any purpose; or (b) fully or partially
blocks ingress to or egress from any portion of a General Purpose Lane or Express Lane, for any
purpose, and where, in the case of either clause (a) or (b), the closure or blockage is not a
Permitted Lane Closure; or (c) fails to comply with any requirement with respect to any Lane
Closure.
unsuitable material means material encountered below the natural ground surface in
embankment areas or below the grading plane in excavation areas that the Engineer determines
to be in any of the following conditions:
(a) Of such unstable nature that it cannot be compacted to the specified density using
ordinary methods at optimum moisture content;
(b) Too wet to be properly compacted and cannot be dried before incorporating it into
the work. Excessive moisture alone is not sufficient cause for determining that the
material is unsuitable; or
(c) Inappropriate for the planned use.
Utilities Coordinator has the meaning given in TP Section 2.6.2.4.
Utility or utility means a privately, publicly, or cooperatively owned line, facility or system
(including municipal and/or government lines, facilities and systems) for transmitting or distributing
communications, cable television, power, electricity, gas, oil, crude products, water, steam, waste,
or any other similar commodity, including any irrigation system and any fire or police signal system
as well as streetlights. However, when used in the context of the Relocation of facilities to
accommodate the Project, the term "Utility" or "utility" excludes (a) storm water facilities that
provide drainage solely for the Project ROW, (b) traffic signals, ramp metering systems, flashing
beacon systems, and lighting systems for the Project, (c) all existing Department facilities not
included in clause (b) of the definition of Utility, including TMS components, fiber, and all existing
RCTC SR-91 CIP and 15 ELP tolling components, and (d) all existing BNSF owned facilities
including communications equipment and associated lines, and electrical systems and associated
lines. The necessary appurtenances to each Utility facility (including fire hydrants as
appurtenances to water lines) shall be considered part of such Utility. Without limitation, any
Service Line connecting directly to a Utility shall be considered an appurtenance to that Utility,
regardless of the ownership of such Service Line.
Utility Agreement means any agreement, as the same may be amended from time to time,
between RCTC and a Utility Owner, providing specific scope, cost and schedule details for the
Relocation of one or more particular Utilities. A document is a Utility Agreement if it meets the
foregoing definition, without regard to the title or form of the document. Any Notice to Owner
referenced in a Utility Agreement shall be deemed to be part of that Utility Agreement for purposes
of this Contract, unless the context requires otherwise. For any Utility Owner for which there is
no Utility Agreement, the FD Notice to Owner and Construction Notice to Owner shall be treated
as the Utility Agreement(s) for such Utility Owner.
Utility Easement means a permanent replacement easement and/or other interest in real
property (excluding a franchise) located outside of the Project ROW that is necessary for a
Relocation.
Utility Information means, collectively, the Preliminary Utility Matrix and Utility Maps included in
the Reference Documents.
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 63 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
Utility Maps means the set of plans included in the Reference Documents that shows the existing
locations of Utilities listed in the Preliminary Utility Matrix. The Utility Maps are located in the
Utilities Folder of the Reference Documents and consist of the 15 Express Corridor Improvement
Project, Utility Map Plan Sheets 1 through 57.
Utility Owner means any private entity or public body (including city, county, state, public
corporation, or public district) that owns and/or operates a Utility, including cooperative utilities.
Utility Owner Project means the design and construction by or at the direction of a Utility Owner
of a New Utility that is not part of a Relocation. Utility Owner Projects shall be entirely the financial
obligation of the Utility Owner.
Utility Plans means the final installation details and construction documents that are prepared
by DB Contractor or Utility Owner(s) for Utilities being Relocated to accommodate the Project.
Utility Standards means the standard specifications, standards of practice, and construction
methods that a Utility Owner customarily applies to facilities constructed by the Utility Owner (or
for the Utility Owner by its contractors) at its own expense and that are comparable to the Utilities
being Relocated for the Project. Such Utility Standards may or may not all be incorporated into
documents issued by the Utility Owner, and shall include those processes, procedures, policies
and practices that are industry -standard in Southern California for each particular type of Utility
and those (if any) that are specified for the particular Utility Owner in accordance with TP Section
7. For any Utility Owner that is also a Governmental Entity, its Utility Standards shall include all
such requirements that are imposed by Governmental Rules issued by such Utility Owner.
Utility Strip Map has the meaning given in TP Section 7.3.2.
Utility Strip Map Deadline has the meaning given in Section 6.4.3(a), as such deadline may be
extended under this Contract.
Value Engineering Change Proposal has the meaning given in Section 17.1.1.
voluntarily excluded has the meaning given in Attachment 2 to Exhibit 14.
Warranty Bond has the meaning given in Section 10.1.3(a).
Warranty Bond Amount has the meaning given in Section 10.1.3(b).
Warranty Period has the meaning given in Section 13.1.2.
Warranty Work means Work required to remedy Nonconformances during the applicable
Warranty Period.
Weed Abatement Plan has the meaning given in TP Section 20.3.3, as updated in accordance
with this Contract.
Wildfire means an uncontrolled fire in an area of combustible vegetation.
Work or work means all of the resources required to be provided by DB Contractor, including
administrative, design, support services, procurement, professional, manufacturing, supply,
design, installation, integration testing, commissioning, construction, supervision, management,
labor, materials, equipment (including Department furnished materials), maintenance,
documentation and other duties and services to be provided and provided by DB Contractor under
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 64 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
Sensitive
this Contract, including all efforts necessary or appropriate to achieve the Completion Milestones
by the Completion Deadlines, except for those efforts which this Contract expressly specifies will
be performed by Persons other than the DB-Related Entities.
work paid by force account means work ordered without an existing agreement on its cost, and
performed with the understanding that DB Contractor will bill RCTC according to the cost of labor,
materials, and equipment, plus a certain percentage for overhead and profit.
work plan means the detailed formulation of a program of action.
work zone means the area of a highway with construction, maintenance or utility work activities.
[END OF DEFINITIONS]
Riverside County Transportation Commission
Express Lanes Connector Project
56800642.v38
Exhibit 1
Page 65 of 65
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: January 7, 2019
EXPRESS LANES CONNECTOR
RIVERSIDE COUNTY
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
REQUEST FOR PROPOSALS (RFP No. 19-31-074-00)
TO DESIGN AND BUILD THE
I-15/SR-91 EXPRESS LANES CONNECTOR (ELC)
THROUGH A
DESIGN -BUILD CONTRACT
VOLUME II: CONTRACT EXHIBITS
DRAFT EXECUTION COPY: February 12, 2020
EXECUTED:
NM NM=
Riverside County Transportation Commission
[INSERT DATE]
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
www.rctc.org
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Design -Build Contract
Draft Execution Copy: February 12, 2020
TABLE OF CONTENTS
Exhibits to Design -Build Contract
EXHIBIT 1 Abbreviations and Definitions
EXHIBIT 2 Contract Particulars
EXHIBIT 3 Modified Standard Specifications
(Replacing Sections 1 through 9 of Department's Standard Specifications)
EXHIBIT 4 Preliminary Baseline Schedule
EXHIBIT 5 Reserved
EXHIBIT 6 Listed Subcontractors
EXHIBIT 7 Subcontractor Identification Form
EXHIBIT 8 Bonds
8-A Form of Performance Bond
8-B Form of Payment Bond
8-C Form of Warranty Bond
EXHIBIT 9 Invoice and Invoice Certificate
9-A Invoice
9-B Invoice Certificate
EXHIBIT 10 NTP1 and NTP2 Payment Schedules
10-A NTP1 Payment Schedule
10-B NTP2 Payment Schedule
EXHIBIT 11 Disputes Review Board Agreement
EXHIBIT 12 Insurance Policy Requirements
EXHIBIT 13 Proposal Commitments and ATCs
13-A DB Contractor's Proposal Commitments
13-B ATCs
EXHIBIT 14 Federal Requirements
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project i Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 15 Form of Guaranty
EXHIBIT 16 Labor Code Requirements
EXHIBIT 17 OCTA-Related Work
EXHIBIT 18 Form of DB Contractor Request for Change Order
EXHIBIT 19 GP Lane Closure Charges
EXHIBIT 20 15 EL Closure Charges
EXHIBIT 21 91 EL Closure Charges
EXHIBIT 22 ELC Lane Closure Charges
EXHIBIT 23 Public Contract Code Section 9204
Riverside County Transportation Commission Design -Build Contract
Express Lanes Connector Project ii Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 1
ABBREVIATIONS AND DEFINITIONS
[SEE EXHIBIT 1 IMMEDIATELY FOLLOWING CONTRACT]
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 1
Page 1 of 1
Design -Build Contract
Abbreviations and Definitions
Draft Execution Copy: February 12, 2020
56800652.v31
No.
1.
2.
3.
4.
5.
6.
7. 9.6
8.
Clause
References
Exhibit 1
3.4.2
9.1
EXHIBIT 2
CONTRACT PARTICULARS
Issue
Contract Price
Firm for Design Services
Major Subcontractors
Lead Engineering Firm
Structural Design Firm
Other Major Subcontractors
RCTC Representative
Listed Subcontractors
9. 9.6 DB Contractor Representative
10. 9.6 Key Personnel
Project Manager
Construction Manager
Design Manager
Structures Design Manager
Environmental Compliance
Manager
Quality Manager
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 2
Page 1 of 2
$164,840,000.00
T.Y. Lin International
T.Y. Lin International
T.Y. Lin International
RMA Group
Michael Blomquist
Arellano Associates, LLC
RMA Group
CNS Engineers, Inc.
Converse Consultants
Earth Mechanics, Inc.
Guida Surveying, Inc.
Iteris, Inc.
LIN Consulting, Inc.
LSA Associates, Inc.
Lynn Capouya, Inc.
WRECO
Stephen S. Rados
Felipe Olivar
Josh Dybala
Ray Fares
Stephen Dulor
Alicia Lemke
Jim Rucker
Design -Build Contract
Contract Particulars
Draft Execution Copy: February 12, 2020
56800652.v31
11. 10.1.1(a)
12. 10.1.2(a)
13. 10.1.1(b)
14. 10.1.2(b)
15. 10.1.3(b)
16. 14.3.5
17. 14.3.6
18. 14.3.6
19. 24.1.1(b)
20. Exhibit 1
Toll Services Coordinator
Traffic Manager
Roadway Design Manager
Railroad Coordinator
NTP1 Performance Bond
Amount
NTP1 Payment Bond Amount
NTP2 Performance Bond
Amount
NTP2 Payment Bond Amount
Warranty Bond Amount
Mobilization Amount
Bonds and Insurance Premium
Amount NTP1
Bonds and Insurance Premium
Amount NTP2
Facilitator for partnering
meetings
TSP
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 2
Page 2 of 2
Steven Bradley
John Merrill
Rodrigo Gonzalez
James Faber
$9,600,000.00
$9,600,000.00
$164,840,000.00
$164,840,000.00
$16,484,000.00
$11,300,000.00
$595,000.00
[$9,475,000.00]
(NTD — To be determined in
accordance with Section
24.1.1(b) of the DB Contract]
Kapsch TrafficCom USA, Inc.
(formerly Kapsch TrafficCom
Transportation NA, Inc.)
Design -Build Contract
Contract Particulars
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 3
MODIFIED STANDARD SPECIFICATIONS
(Replacing Sections 1 through 9 of Department's Standard Specifications)
This Exhibit 3 sets forth the Modified Standard Specifications for this Contract. The provisions
contained in these Modified Standard Specifications shall replace Sections 1 through 9 of the
2018 Standard Specifications issued by the State of California Department of Transportation
(Department), in their entirety and differ materially from the volume issued by Department.
The Modified Standard Specifications may include cross-references to provisions of the Standard
Specifications which are not applicable to this Contract because they have been superseded by
other provisions of this Contract. Any such cross-references are deemed references to the
provisions of this Contract which have superseded the referenced provisions of the Standard
Specifications.
Refer to Department Standard Specifications, dated 2018, for Sections 10 through 95 of the
Standard Specifications.
General Exceptions:
1. When these Modified Standard Specifications or other provisions in the Department
Standard Specifications refer to "Measurement for Payment," "Method of Measurement,"
or "Payment Quantities," except as otherwise provided in this Contract, such language is
disregarded. Terms and conditions of Final Payment are set forth in this Contract.
2. When these Modified Standard Specifications or other provisions in the Department
Standard Specifications refer to "basis of payment," "unit prices," or "adjustments of unit
prices," such references and language is disregarded, except as otherwise provided in
this Contract, including the Technical Provisions.
3. When these Modified Standard Specifications or other provisions in the Department
Standard Specifications refer to "extra work," "compensation for," "at the Department's
expense," "quantity adjustments," "equivalent quantities," or similar phrases, such
references shall be disregarded. It is intended that the payment of the Contract Price will
be full compensation for all Work performed pursuant to this Contract unless specific
provisions for additional payments are contained in this Contract, including the Technical
Provisions.
4. When these Modified Standard Specifications or other provisions in the Department
Standard Specifications refer to the term "incidental" such term will mean that the cost is
included in the Contract Price.
5. When these Modified Standard Specifications or other provisions in the Department
Standard Specifications refer to "Change Orders," "change order work," or "extra work,"
except as otherwise provided in this Contract, such language shall be disregarded.
Terms and conditions of changes, entitlement to additional compensation, and Change
Orders are set forth in this Contract.
6. Any references to the State Contract Act or provisions of the State Contract Act
contained in the Department documents shall be deemed references to the equivalent
provisions contained in statutes applicable to RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 1 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
TABLE OF CONTENTS
Page
EXHIBIT 1 ABBREVIATIONS AND DEFINITIONS 1
EXHIBIT 2 CONTRACT PARTICULARS 1
EXHIBIT 3 MODIFIED STANDARD SPECIFICATIONS (REPLACING SECTIONS 1 THROUGH 9 OF
DEPARTMENT'S STANDARD SPECIFICATIONS) 1
DIVISION I GENERAL PROVISIONS 5
1 GENERAL 5
2 NOT USED 10
3 NOT USED 11
4 SCOPE OF WORK 12
5 CONTROL OF WORK 13
6 QUALITY CONTROL AND ASSURANCE 19
7 LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC 25
8 PROSECUTION AND PROGRESS 37
9 PAYMENT 38
EXHIBIT 4 PRELIMINARY BASELINE SCHEDULE 1
EXHIBIT 5 RESERVED 1
EXHIBIT A MONTHLY SUBCONTRACTORS PAID REPORT 1
EXHIBIT 6 LISTED SUBCONTRACTORS 1
EXHIBIT 7 1-15 EXPRESS LANES PROJECT SUBCONTRACTOR IDENTIFICATION FORM
EXHIBIT 8 BONDS 1
EXHIBIT 8-A FORM OF PERFORMANCE BOND 1
EXHIBIT 8-B FORM OF PAYMENT BOND 1
EXHIBIT 8-C FORM OF WARRANTY BOND 1
EXHIBIT 9 INVOICE AND INVOICE CERTIFICATE 1
EXHIBIT 9-A INVOICE
EXHIBIT 10 NTP1 AND NTP2 PAYMENT SCHEDULES
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 2 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 11 DISPUTES REVIEW BOARD AGREEMENT
SECTION 1. ESTABLISHMENT OF BOARD
SECTION 2. BOARD ORGANIZATION AND RESPONSIBILITIES II
SECTION 3. HEARINGS AND DECISIONS III
SECTION 4. PROVISION OF DOCUMENTS TO BOARD IV
SECTION 5. EXPENSES IV
SECTION 6. DISPUTES INVOLVING OTHER PARTIES IV
SECTION 7. TERM V
SECTION 8. MISCELLANEOUS VI
EXHIBIT 12 INSURANCE POLICY REQUIREMENTS
EXHIBIT 13 PROPOSAL COMMITMENTS
ATTACHMENT 1 TO EXHIBIT 13 DB CONTRACTOR'S PROPOSAL COMMITMENTS &
CLARIFICATIONS 1
ATTACHMENT 2 TO EXHIBIT 13 ATCS
EXHIBIT 14 FEDERAL REQUIREMENTS
ATTACHMENT 1 TO EXHIBIT 14 FEDERAL REQUIREMENTS FOR FEDERAL -AID CONSTRUCTION
PROJECTS
ATTACHMENT 2 TO EXHIBIT 14 RESERVED
ATTACHMENT 3 TO EXHIBIT 14 RESERVED
ATTACHMENT 4 TO EXHIBIT 14 RESERVED
ATTACHMENT 5 TO EXHIBIT 14 RESERVED
ATTACHMENT 6 TO EXHIBIT 14 RESERVED
ATTACHMENT 7 TO EXHIBIT 14 COMPLIANCE WITH BUY AMERICA REQUIREMENTS
ATTACHMENT 8 TO EXHIBIT 14 RESERVED
EXHIBIT 15 FORM OF GUARANTY
EXHIBIT 16 LABOR CODE REQUIREMENTS
EXHIBIT 17 MAXIMUM PAYMENT SCHEDULE
EXHIBIT 18 FORM OF REQUEST FOR CHANGE ORDER
EXHIBIT 19 GP LANE CLOSURE CHARGES
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 3 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 20 1-15 EL LANE CLOSURE CHARGES
EXHIBIT 21 91 EL LANE CLOSURE CHARGES
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 4 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
DIVISION I GENERAL PROVISIONS
1 GENERAL
1-1.01 GENERAL
Section 1 includes specifications related to the interpretation of this Contract.
The specifications are divided into 12 divisions.
Division I includes general specifications applicable to every contract unless specified as
applicable only under certain conditions.
Division II includes specifications for general construction applicable to every contract unless
specified as applicable only under certain conditions.
Divisions III through X include construction specifications for specific bid items.
Division XI includes specifications for common materials. For a material specified in this division,
that material specified in any section must comply with the specifications in division XI.
Division XII includes construction specifications for buildings.
Interpret sentences written in the imperative mood as starting with "the Contractor shall" and
interpret "you" as the Contractor and "your" as the "Contractor's."
After Contract approval, submit documents and direct questions to RCTC. Orders, authorizations,
and requests to the Contractor are by RCTC except as otherwise provided in this Contract.
Except as otherwise provided in this Contract, the following items from Riverside County
Transportation Commission ("RCTC") partnering with Department are in writing
1. Approvals
2. Authorizations
3. Decisions
4. Notifications
5. Orders
6. Responses
Except as otherwise provided in this Contract, the following items from the Contractor must be in
writing:
1. Notifications
2. Proposals
3. Reports
4. Requests, including RFIs, sequentially numbered
5. Subcontracts
6. Test results
Where a location is not specified with the words "shown", "specified", or "described", interpret:
1. "Shown" as "shown on the plans".
2. "Specified" as "specified in the specifications".
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 5 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
3. "Described" as "described in this Contract". "Described" means "shown, specified, or
both".
Headings are included for the purposes of organization and referencing. Inclusion of a heading
with no related content, "Not Used", or "Reserved" does not indicate that no specification exists
for that subject; applicable specifications may be covered in a general or referenced specification.
Specifications in a section titled General apply to all subordinate sections within the section.
Specifications in the general section of a division apply to all sections within the division.
Sections are reserved in the Standard Specifications for correlation of special provisions and
revised standard specifications with the Standard Specifications and for future expansion of the
Standard Specifications.
The specifications are expressed in US customary units except where a referenced document
uses the International System of Units as the standard.
Unless an object or activity is specified to be less than the total, the quantity or amount is all of
the object or activity.
All items in a list apply unless the items are specified as choices.
1-1.02 STYLE VARIATIONS
The Department is gradually standardizing the style of the specifications. The use of the new style
does not change the meaning of a Contract part not using this style. The new style includes:
1. Use of:
1.1. Imperative mood
1.2. Introductory modifiers
1.3. Conditional clauses
1.4. Industry -standard terms
2. Elimination of:
2.1. Language variations
2.2. Definitions for industry -standard terms
2.3. Redundant specifications
2.4. Needless cross-references
1-1.03-1-1.04 RESERVED
1-1.05 REFERENCES
A reference within parentheses to a law or regulation is included in this Contract for convenience
only and is not a comprehensive listing of related laws and regulations. Lack of a reference does
not indicate no related laws or regulations exist.
Where the version of a referenced document is not expressly specified, use the most recent
version in effect on the date of the Request for Proposals.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 6 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
A reference to a section includes specifications in sections titled General that apply to the section.
Where a section number is referenced without a reference to a document, the reference is to a
section of the Standard Specifications as revised by any revised standard specification, special
provision, or both. Any reference directly to a revised standard specification is for convenience
only. Lack of a direct reference to a revised standard specification section does not indicate a
revised standard specification for the section does not exist.
A code not specified as a federal code is a California code.
An agency or a department not specified as a federal or local agency or department is a California
agency or department.
1-1.06 ABBREVIATIONS
Refer to Contract Exhibit 1 for the meanings of certain acronyms and abbreviations used in the
Contract, including these Modified Standard Specifications.
1-1.07 DEFINITIONS
Refer to Contract Exhibit 1 for the meanings of certain terms used in the Contract, including these
Modified Standard Specifications.
1-1.08 NOT USED
1-1.09 FREEZE -THAW AREAS
Freeze -thaw areas are areas of the State where freeze -thaw cycles and heavy salting frequently
occur. A project is in a freeze -thaw area if the project is specified in the special provisions to be
in a freeze -thaw area.
1-1.10 PAVEMENT CLIMATE REGIONS
To help account for the effects of various climatic conditions on pavement performance, the State
has been divided into 9 climate regions. The project's pavement climate region is shown on the
project plans.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 7 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
1-1.11 WEBSITES, ADDRESSES, AND TELEPHONE NUMBERS
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 8 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Websites, Addresses, and Telephone Numbers
Reference or
agency or
department
unit
Website
Address
Telephone
no.
Authorized
Facility Audit
List
http://www.dot.ca.gov/h
q/esc/Translab/OSM/d
ocuments/smdocument
s/Internet_auditlisting.p
df
--
--
Authorized
Material List
http://www.dot.ca.gov/h
q/esc/approved_produ
cts_I ist
--
--
Authorized
Material
Source List
http://www.dot.ca.gov/h
q/esc/Translab/authoriz
ed_material _ source _lis
t/
- -
--
Authorized
Material
Systems List
http://www.dot.ca.gov/h
q/esc/Translab/authoriz
ed_systems_list/
--
--
Authorized
Laboratory
List
http://www.dot.ca.gov/h
q/esc/Translab/authoriz
edlaboratories_list/
--
--
California
MUTCD
http://www.dot.ca.gov
--
--
Department
http://www.dot.ca.gov
--
--
Department of
Conservation,
Office of Mine
Reclamation
http://www.conservatio
n.ca.gov/omr/
__
--
Department of
General
Services,
Office of Small
Business and
DVBE
Services
http://www.dgs.ca.gov/
dgs/ProgramsServices/
BusServices.aspx
OFFICE OF SMALL BUSINESS
AND DVBE SERVICES
DEPARTMENT OF GENERAL
SERVICES
707 3rd St
West Sacramento CA 95605-2811
(800) 559-
5529
(916) 375-
4940
Department of
Industrial
Relations
http://www.dir.ca.gov
455 Golden Gate Ave
San Francisco CA 94102
--
Division of
Office Accounting,
External
Accounts
Payable
http://www.dot.ca.gov/h
q/asc/oap/payments/co
ntact.htm#conpets1
MAJOR CONSTRUCTION
PAYMENT AND INFORMATION
UNIT
ACCOUNTS PAYABLEL
DIVISION OF ACCOUNTING
DEPARTMENT OF
TRANSPORTATION
P.O. BOX 168043
SACRAMENTO CA 95816-8043
(916) 227-
9013
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 9 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Division of
Construction
http://www.dot.ca.gov/h
q/construc/
__
--
Geotechnical
Services
http://www.dot.ca.gov/h
q/esc/geotech
Geotechnical Services
DEPARTMENT OF
TRANSPORTATION
5900 FOLSOM BLVD
Sacramento CA 95819-4612
(916) 227-
7000
METS
http://www.dot.ca.gov/h
q/esc/Translab/
Materials Engineering and Testing
services
DEPARTMENT OF
TRANSPORTATION
5900 FOLSOM BLVD
Sacramento CA 95819-4612
(916) 227-
7000
MPQP
http://www.dot.ca.gov/
manuals.htm
-
--
Office
Engineer
__
MSC 43
OFFICE ENGINEER
DEPARTMENT OF
TRANSPORTATION
1727 30th St
Sacramento CA 95816-7005
(916) 227-
6299
Offices of
Structure
Design,
Documents
Unit
--
MSC 9-4/41
DOCUMENTS UNIT OFFICES OF
STRUCTURE DESIGN
DEPARTMENT OF
TRANSPORTATION
1801 30th St
Sacramento CA 95816-7006
(916) 227
0716
Publication
Distribution
Unit
--
PUBLICATION UNIT
DEPARTMENT OF
TRANSPORTATION
1900 Royal Oaks Dr
Sacramento CA 95815-3800
--
South Coast
Air Quality
Management
District
www.aqmd.gov
--
--
1-1.12 through 1-1.15 RESERVED
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 10 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Riverside County Transportation Commission
Express Lanes Connector Project
2 RESERVED
Exhibit 3
Page 11 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Riverside County Transportation Commission
Express Lanes Connector Project
3 RESERVED
Exhibit 3
Page 12 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
4 SCOPE OF WORK
4-1.01 GENERAL
Section 4 includes specifications related to the scope of work.
4-1.02 INTENT
This Contract's intent is to provide for work completion using Good Industry Practice.
Nothing in the specifications voids the Contractor's public safety responsibilities.
4-1.03-4-1.12 RESERVED
4-1.13 CLEANUP
Before final inspection, Contractor shall clean the highway, material sites and all ground occupied
by Contractor in connection with the Work and leave the job site neat and presentable and dispose
of:
1. Rubbish
2. Excess materials
3. Falsework
4. Temporary structures
5. Equipment
Do not remove warning, regulatory, or guide signs until Final Acceptance.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 13 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
5 CONTROL OF WORK
5-1.01 GENERAL
Section 5 includes specifications related to the Contract parties' relations and Final Acceptance.
5-1.02-5-1.12 RESERVED
5-1.13 SUBCONTRACTING
5-1.13A General
No Subcontract releases you from this Contract or relieves you of your responsibility for a
Subcontractor's work.
Do not use a debarred contractor. For a list of debarred contractors, go to the Department of
Industrial Relations' website.
If you violate Pub Cont Code § 4100 et seq., RCTC may exercise the remedies provided in Pub
Cont Code § 4110. RCTC may refer the violation to the Contractors State License Board as
provided under Pub Cont Code § 4111.
Each subcontract must comply with this Contract.
Each Subcontractor must have an active and valid
1. State contractor license with a classification appropriate for the work to be performed
(Bus & Prof Code § 7000 et seq.)
2. Public works contractor registration number with the Department of Industrial Relations.
Submit copies of Subcontracts upon request in accordance with the requirements of this Contract.
5-1.13B Disadvantaged Business Enterprises
5-1.13B(1) General
Section 5-1.13B applies to a federal -aid contract.
5-1.14-5-1.16 RESERVED
5-1.17 CHARACTER OF WORKERS
If a worker appears to RCTC to be incompetent or acts disorderly or improperly, discharge the
worker immediately upon request. Do not employ that worker again on the work.
5-1.18-5-1.26 RESERVED
5-1.27 RECORDS
5-1.27A General
Reserved
Riverside County Transportation Commission Exhibit 3 Design -Build Contract
Express Lanes Connector Project Page 14 of 53 Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
5-1.27B Record Retention
Retain project records from proposal preparation through:
1. Final payment
2. Resolution of claims, if any
For at least 5 years after the later of these, retain cost records, including records of:
1. Proposal preparation
2. Overhead
3. Payrolls
4. Payments to Subcontractors and Suppliers
5. Cost accounting
Maintain the records in an organized way in the original format, electronic and hard copy,
conducive to professional review and audit.
5-1.27C Record Inspection, Copying, and Auditing
Make your records available for inspection, copying, and auditing by RCTC and State
representatives for the same time frame specified under section 5-1.27B. The records of
Subcontractors and Suppliers must be made available for inspection, copying, and auditing by
RCTC and State representatives for the same period. Before Final Acceptance, RCTC and State
representatives notify the Contractor, Subcontractor, or supplier 5 business days before
inspection, copying, or auditing.
If an audit is to start more than 30 days after Final Acceptance, RCTC and the State
representatives notify the Contractor, Subcontractor, or supplier of the date when the audit is to
start.
5-1.27D Cost Accounting Records
Reserved
5-1.28-5-1.29 RESERVED
5-1.30 NONCOMPLIANT AND UNAUTHORIZED WORK
Correct or remove and replace work that (1) does not comply with this Contract, (2) is
unauthorized, or (3) both. RCTC does not pay for any of the following:
1. Corrective, removal, or replacement work
2. Unauthorized work
If ordered, submit a work plan for the corrective, removal, or replacement work.
If you fail to comply promptly with an order under section 5-1.30, RCTC may correct, remove, or
replace noncompliant or unauthorized work. RCTC deducts the cost of this work.
5-1.31 JOB SITE APPEARANCE
Keep the job site neat. In areas visible to the public:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 15 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
1. If practicable, dispose of debris removed during clearing and grubbing concurrently with
its removal. If stockpiling is necessary, dispose of debris weekly.
2. Furnish trash bins for construction debris. Place the debris in trash bins daily.
3. For falsework to be reused, stack the forms neatly and concurrently with their removal.
5-1.32 NOT USED
5-1.33 EQUIPMENT
Legibly stencil or stamp at a clearly visible location on each piece of equipment except hand tools
an identifying number and:
1. On compacting equipment, its make, model number, and empty gross weight that is
either the manufacturer's rated weight or the scale weight
2. On meters and on the load -receiving element and indicators of each scale, the make,
model, serial number, and manufacturer's rated capacity
Submit a list describing each piece of equipment and its identifying number.
Upon request, submit the manufacturer's information that designates portable vehicle scale
capacities.
For proportioning materials, use measuring devices, material plant controllers, and undersupports
complying with section 9-1.02B.
Measuring devices must be tested and approved under California Test 109 in the Department's
presence by any of the following:
1. County Sealer of Weights and Measures
2. Scale Service Agency
3. Official of the Division of Measurement Standards
The indicator over -travel must be at least 1/3 of the loading travel. The indicators must be
enclosed against moisture and dust.
Group the measuring system dials such that the smallest increment for each indicator can be read
from the location at which proportioning is controlled.
5-1.34-5-1.35 RESERVED
5-1.36 PROPERTY AND FACILITY PRESERVATION
5-1.36A General
Preserve and protect:
1. Highway improvements and facilities
2 Adjacent property
3. Waterways
4. ESAs
5. Lands administered by other agencies
6. Railroads and railroad equipment
7. Nonhighway facilities, including utilities
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 16 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
8. Survey monuments
9. Department's instrumentation
10. Temporary work
11. Roadside vegetation not to be removed
Comply with Govt Code § 4216 et seq. Notify RCTC at least 3 Business Days before you contact
the regional notification center. Failure to contact the notification center prohibits excavation.
Immediately report damage to RCTC.
If you cause damage, you are responsible.
The Department may make a temporary repair to restore service to a damaged facility.
Install suitable safeguards to preserve and protect facilities from damage.
Install temporary facilities such as sheet piling, cribbing, bulkheads, shores, or other supports
necessary to support existing facilities or to support material carrying the facilities.
Excavate and backfill as necessary to remove temporary facilities. Backfill with materials of equal
or better quality and to a comparable density of surrounding materials and grade surface to match
the existing grade and cross slope.
5-1.36B RESERVED
5-1.36C Nonhighway Facilities
5-1.36C(1) Reserved
5-1.36C(2) Nonhighway Facility Protection
Reserved
5-1.36C(3) Nonhighway Facility Rearrangement
RCTC may rearrange a nonhighway facility during this Contract. Rearrangement of a nonhighway
facility includes installation, relocation, alteration, or removal of the facility.
RCTC may authorize facility owners and their agents to enter the highway to perform
rearrangement work for their facilities or to make connections or repairs to their property.
Coordinate activities to avoid delays.
5-1.36D Survey Monuments
Protect survey monuments on and off the highway. Upon discovery of a survey monument not
identified and located by RCTC, immediately:
1. Stop work near the monument
2. Notify RCTC
Do not resume work near the monument until authorized.
5-1.36E Landscape
Riverside County Transportation Commission Exhibit 3
Express Lanes Connector Project Page 17 of 53
56800652.v31
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
If you damage plants not to be removed:
1. Dispose of them unless RCTC authorizes you to reduce them to chips and spread the
chips within the highway at locations designated by RCTC.
2. Replace trees as required in TP Section 20.3.2.2 of the Technical Provisions.
Removed shrubs shall be replaced with no. 15-container shrubs.
Replace ground cover plants with plants from flats. All replacement shrub and groundcover
species shall match the existing removed species, unless these species conflict with the
requirements to limit the use of plants considered invasive on the California Invasive Species list
(those considered moderate or higher). If the existing species can no longer be planted, choose
species that have similar characteristics and/or achieve the same quality of cover and hardiness.
Plant ground cover plants 1 foot on center.
If a plant establishment or permanent erosion control establishment period is specified, replace
plants before the start of the plant establishment or permanent erosion control establishment
period; otherwise, replace plants at least 30 days before Final Acceptance.
Water each plant immediately after planting Saturate the backfill soil around and below the roots
or the ball of earth around the roots of each plant. Water as necessary to maintain plants in a
healthy condition until Final Acceptance.
5-1.36F Irrigation Facilities
Keep existing irrigation facilities in place that are described to be removed, relocated, or modified
until RCTC determines they are no longer needed.
Maintain the existing water supply. If the existing water supply is interrupted for more than 3
consecutive days, provide an alternative water supply. Water the existing plants in the area
irrigated from that water supply, including those maintained by RCTC, as necessary to maintain
healthy plant growth.
If you and RCTC irrigate existing plants from the same water supply, furnish enough water to
RCTC for watering plantings on and off the highway as necessary to maintain a healthy condition
through Final Acceptance.
If you damage irrigation facilities not to be removed:
1. Remove and dispose of them.
2. Repair and replace damaged facilities within 10 days.
3. Use similar commercial -quality components from the same manufacturer or components
that are compatible with the existing irrigation system if authorized. Any changes from
the existing equipment must be reviewed and approved prior to installation.
4. After completing the repair or replacement of the facilities, perform an operational test in
the presence of RCTC. If you repair or replace the remote control valves, conduct the
test with the irrigation controller in the automatic mode.
Notify RCTC:
1. At least 4 Business Days before shutting off the water supply to any portion of the
existing irrigation system
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 18 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
2. Immediately after restoring the water supply to any portion of the existing irrigation system
5-1.37 MAINTENANCE AND PROTECTION
5-1.37A General
Maintain and protect work until RCTC has granted relief from maintenance or Final Acceptance
has occurred.
Do not remove any padlock used to secure a portion of the work until RCTC is present to replace
it. Notify RCTC at least 3 business days before removing the lock.
Prevent construction equipment that exceeds the maximum weight limits in Veh Code Div 15 from
operating on completed or existing treated base, pavement, or structures.
5-1.37B Load Limits
5-1.37B(1) General
For areas within the project limits and subject to the Contractor providing protective measures
and repairing related damage, construction equipment exceeding the size or weight limits in Veh
Code Div 15 may move over:
1. Public roads within the highway
2. Treated base or pavement under construction or completed
3. Culverts and pipes
4. Structures not open to traffic that are designed for AASHTO HS20-44 live loading,
except culverts and pipes. Before crossing one of these structures, submit the
dimensions and maximum axle loadings of the equipment; and unless a material hauling
equipment lane on a bridge is shown on the drawings, comply with the following
specifications:
4.1. The maximum loading on a bridge due to pneumatic -tired truck and trailer
combinations must not exceed:
4.1.1. 28,000 Ib. for single axles
4.1.2. 48,000 Ib. for tandem axles
4.1.3. 60,000 Ib. total gross load for single vehicles
4.1.4. 110,000 Ib. total gross load for truck and trailer or semi -trailer
combinations
4.2. The loading on a bridge due to 2- and 3-axle pneumatic -tired earthmovers must
not exceed that shown in the following table:
Allowable Construction Loading on Bridges for 2- and 3-Axle
Earthmovers
Bridge girder center -to -center spacing
(feet)
Maximum axle loading
(pounds)
4
28,000
5
29,000
6
30,000
7
32,000
8
34,000
9
37,000
10 and over
40,000
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 19 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Bridge girder center -to -center spacing
(feet)
NOTE: Minimum axle spacing:
For 2-axle earthmovers:
Axles 1 to 2 = 20 feet
Maximum axle loading
(pounds)
For 3-axle earthmovers:
Axles 1 to 2 = 8 feet
Axles 2 to 3 = 20 feet
5. Completed or existing base, pavement, and structures under the Department's
Transportation Permits Manual, whether open to the public or not
Loads imposed on existing, new, or partially completed structures must not exceed the load -
carrying capacity of the structure or any portion of the structure as determined by AASHTO LRFD
with interims and California Amendments, Design Strength Limit State II. The f'c to be used in
computing the load -carrying capacity must be the smaller of the following:
1. Actual compressive strength at the time of loading
2. Value of fc shown on the plans for that portion of the structure or 2.5 times the value of
fc shown on the plans for portions of the structure where no f'c is shown
5-1.37B(2) RESERVED
5-1.37B(3) Material Hauling Equipment Lane on Bridges
Section 5-1.37B(3) applies to a bridge constructed with a material hauling equipment lane.
You may cross the bridge with pneumatic -tired material hauling equipment that exceeds the size
and weight limits specified but that does not exceed the load limits shown on the material -hauling -
equipment loading diagram on the plans.
For each bridge with a material hauling equipment lane:
1. Construct a minimum 150-foot approach at each bridge end to a grade that provides a
smooth transition to the bridge roadway grade. Maintain these approaches in a smooth
and uniform condition during the operation of the equipment.
2. Operate equipment such that jolting and bouncing of the equipment while crossing the
bridge is prevented.
3. Confine equipment to the material hauling lane using temporary barriers unless the
plans show that the entire bridge may be used for hauling equipment and the permanent
barriers are completed.
4. Allow at most 1 piece of equipment on the bridge at one time.
If ordered, verify the weight of loaded material hauling equipment by weighing. The Department
furnishes individual wheel or axle type scales. The Department weighs the equipment within the
project limits and within the highway at a location accessible to the equipment. You determine the
exact weighing location. Install and maintain the scales.
5-1.38 RESERVED
5-1.39 DAMAGE REPAIR AND RESTORATION
5-1.39A General
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 20 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Before Final Acceptance, restore damaged work to the same state of completion as before the
damage. Restoration of damaged work includes restoration of erected falsework and formwork.
RCTC does not adjust payment for repair or restoration that RCTC determines was caused by
your failure to construct the work under the Contract or protect the work.
5-1.39B NOT USED
5-1.39C Landscape Damage
5-1.39C(1) General
Repair slopes or other existing facilities that were damaged after starting job site activities and
before starting plant establishment or permanent erosion control establishment.
As ordered, replace plants that have been damaged from either or both of the following conditions:
1. Ambient air temperature falling below 32 degrees F during the plant establishment
period
2. Contractor or its Supplier restricting or stopping water delivery during the plant
establishment period
This plant replacement work is included in the Contract Price.
5-1.39C(2)-5-1.50 RESERVED
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 21 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
6 QUALITY CONTROL AND ASSURANCE
6-1 GENERAL
6-1.01 GENERAL
Section 6 includes specifications related to quality control and validation.
Store materials and samples in a way that preserves the quality and facilitates prompt inspection.
Material incorporated into the work must be new, except as provided elsewhere in this Contract.
Before the preconstruction conference, submit material source information on a Notice of
Materials to be Used form.
6-1.02 DEPARTMENT -FURNISHED MATERIALS
Submit a request to RCTC for Department -furnished materials (TP Attachment 1-3, Department -
Furnished Materials) at least 180 days before their scheduled installation. RCTC will notify you
when Department -furnished material is available.
If the Department furnishes the material:
1. At the job site, inspect the material, unload and store the material
2. At a location other than the job site, inspect the material, deliver the material to the job
site and store it
Department -furnished material will be available for pick-up at:
Department District 8
SHOP 8
175 W. Cluster Street
San Bernardino, CA 92408
You are liable, and you are responsible to pay RCTC for all Department -furnished materials,
without right to claim an extension of time, additional compensation, other relief from performance
of your obligations or otherwise make a Claim under the Contract for the value of any such
Department -furnished materials, other than as included in the Contract Price.
You shall pay RCTC, as and when directed, and on such terms as required, by RCTC in
connection with your procurement of Department -furnished materials.
You are responsible for the cost of replacing lost or damaged Department -furnished material.
RCTC deducts replacement costs. Department -furnished material not used in the work remains
the property of RCTC.
6-1.03 LOCAL MATERIALS
Local material must be rock, sand, gravel, earth, or mineral material other than local borrow or
selected material obtained or produced from a source in the work vicinity specifically for use on
the project. Local borrow must not be a material from an established commercial source.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 22 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Upon your request, the Department tests material from an untested local source. If satisfactory
material from that source is used in the work, RCTC does not charge you for the tests; otherwise,
RCTC deducts the test costs.
6-1.04 BUY AMERICA
6-1.04A General
Reserved
6-1.04B Crumb Rubber (Pub Res Code § 42703(d))
Furnish crumb rubber with a certificate of compliance. Crumb rubber must be:
1. Produced in the United States
2. Derived from waste tires taken from vehicles owned and operated in the United States
6-1.04C Steel and Iron Materials
Steel and iron materials must be melted and manufactured in the United States except:
1. Foreign pig iron and processed, pelletized, and reduced iron ore may be used in the
domestic production of the steel and iron materials
2. If the total combined cost of the materials does not exceed the greater of 0.1 percent of
the Contract Price or $2,500, materials produced outside the United States may be used
if authorized
Furnish steel and iron materials to be incorporated into the work with certificates of compliance
and certified mill test reports. Mill test reports must indicate where the steel and iron were melted
and manufactured.
All melting and manufacturing processes for these materials, including an application of a coating,
must occur in the United States. Coating includes all processes that protect or enhance the value
of the material to which the coating is applied.
6-1.05 SPECIFIC BRAND OR TRADE NAME AND SUBSTITUTION
A reference to a specific brand or trade name establishes a quality standard and is not intended
to limit competition. You may use a product that is equal to or better than the specified brand or
trade name if authorized by RCTC.
Submit a substitution request with a time period that:
1. Follows Contract award
2. Allows 30 days for review
3. Causes no delay
Include substantiating data with the substitution request that proves that substitution:
1. Causes no delay
2. Is of equal or better quality and suitability
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 23 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
6-2 QUALITY PROGRAM
6-2.01 GENERAL
6-2.01A General
Section 6-2 includes provisions related to quality.
Work is subject to the Project's quality program in accordance with this Contract. The Quality
Program does not relieve you of your responsibility to provide QC.
For a material specified to comply with a requirement for a quality characteristic shown in the
following table, the quality characteristic is tested under the corresponding California Test:
California Tests
Quality characteristic
California Test
Relative compaction
216 or 231
Sand equivalent
217
Resistance (R-value)
301
Gradation (sieve analysis)
202
Durability index
229
6-2.01 B Authorized Facility Audit Lists
Section 6-2.01 B applies where a facility is specified to be on an Authorized Facility Audit List.
An audit authorized by the Department not more than 3 years before completion of the fabrication
process is acceptable if the Department determines the audit was for the same type of work to be
performed.
For procedures to be included on an Authorized Facility Audit List, go to the Authorized Facility
Audit List website.
6-2.01 C Authorized Material Lists
Section 6-2.01C applies where a material is specified to be on an Authorized Material List.
The material must be on an Authorized Material List before it is incorporated into the work.
For procedures to be included on an Authorized Material List, go to the Authorized Material List
website.
6-2.01 D Authorized Material Source Lists
Section 6-2.01 D applies where a material is specified to be on an Authorized Material Source List.
The material source must be on an Authorized Material Source List before the item from the
source is incorporated into the work.
For procedures to be included on an Authorized Material Source List, go to the Authorized Material
Source List website.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 24 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
6-2.01 E Material Source Inspection and Testing
Section 6-2.01 E applies if a material is to be inspected or tested at the source.
Submit an inspection request form:
1. At least 3 Business Days before the requested inspection date for a material source
within California.
2. At least 5 Business Days before the requested inspection date for a material source
outside California but within the United States.
3. 50 days before the planned production start for a material source outside the United
States. Notify RCTC and Department at least 20 days before the actual start.
For the inspection request form and the procedure for its submittal, go to the METS website. Notify
RCTC of each submittal.
For each item shown in the following table, RCTC deducts the corresponding amount shown:
Source Inspection Expense Deductions
Item
Distances
Deduction
Steel pipe piling
Prestressing system
Tier 1 and tier 2 precast concrete
members
Epoxy -coated reinforcement
Structural steel for sign structures
Miscellaneous metal
> 300
$5,000
> 3,000
$8,000
Extinguishable message signs
Variable message signs
Changeable message signs
Service equipment enclosures
Telephone demarcation cabinets
Closed circuit television cabinets
Weigh -in -motion cabinets
Highway advisory radio cabinets
> 300
$2,000
Poles for electrical systems
> 300
$1,000 for <_ 10 poles and
$1,000 for every multiple of 10 poles
thereafter
Structural steel
> 300
The greater of:
1. $5,000
2. $0.02/Ib.
> 3,000
The greater of:
1. $8,000
2. $0.036/Ib.
Structural steel paint
> 300
The greater of:
1. $2,000
2. $0.01/sq. ft.
> 3,000
The greater of:
1. $5,000
2. $0.015/sq. ft.
Check samples
> 300
$2,000
High mast poles
> 300
$2,500
> 3,000
$5,000
PTFE bearings, <_ 2 lots
> 300
$5,000
> 3,000
$15,000
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 25 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
> 300
$10,000
PTFE bearings, > 2 lots
> 3,000
$20,000
aDistance is air -line miles from both Sacramento and Los Angeles to the inspection source.
6-2.01 F Test Samples
Section 6-2.01 F applies where a test sample is specified in this Contract if a test sample is
requested.
Notify RCTC 10 days before taking a sample.
Submit material to be tested with a Sample Identification Card. For the card, go to the METS
website.
Restore work immediately after sampling.
If requested, obtain RCTC's authorization for the material before incorporating the material
represented by the test sample into the work.
6-2.01 G-6-2.01 K Reserved
6-2.02 QUALITY CONTROL
6-2.02A General
Material production and testing equipment must measure accurately and precisely.
6-2.02B Quality Control Plan
Develop, implement, and maintain a QC program.
Prepare and maintain QC records, including:
1. Names and qualifications of:
1.1. Samplers
1.2. Testers
1.3. Inspectors
2. Testing laboratories' identification and certifications
3. Testing equipment calibrations and certifications
4. Inspection reports
5. Sampling and testing records organized by date and type of material
6. Test results with comparison of quality characteristic requirements
7. Test results in relation to action and any suspension limits
8. Records of corrective actions and suspensions
Within 24 hours, notify RCTC of any noncompliance identified by your QC program.
Allow RCTC access to all QC records.
Submit QC test data and QC test results within 2 business days of test completion.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 26 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
6-2.02C RESERVED
6-2.02D RESERVED
6-2.03 RCTC ACCEPTANCE
6-2.03A General
RCTC and/or Department may use multiple quality verification methods for a material.
RCTC and/or Department may inspect, sample, and test materials for compliance with this
Contract at any time.
Allow RCTC and/or Department to record, including photograph and video, to ensure a material
is produced to comply with this Contract.
You may examine the records and reports of tests RCTC and/or Department performs.
Schedule work to allow time for RCTC and/or Department's inspection, sampling, and testing.
RCTC deducts testing costs for work that does not comply with this Contract.
RCTC and/or Department may retest material previously tested and authorized for use. If RCTC
notifies you of a retest, furnish resources for retesting.
6-2.03B Job Site Inspection and Testing
Section 6-2.03B applies if a material is to be inspected or tested at the job site.
The material must be authorized for use before it is incorporated into the work.
6-2.03C Certificates of Compliance
Section 6-2.03C applies (1) where a certificate of compliance is specified and (2) if any material
is produced outside the United States.
Submit a certificate of compliance:
1. Before the material is incorporated into the work
2. For each lot of the material. Identify the lot on the certificate
3. Signed by the producer of the material and stating that the material complies with this
Contract
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 27 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
7 LEGAL RELATIONS AND RESPONSIBILITY TO THE PUBLIC
7-1.01 GENERAL
Section 7 includes specifications related to your:
1. Compliance with laws
2. Responsibilities for public safety and convenience
3. Responsibilities for indemnification, insurance, and liability
7-1.02 LAWS
7-1.02A General
Comply with all Governmental Rules applicable to the Project and work. Immediately report to
RCTC any discrepancy or inconsistency between this Contract and Governmental Rule.
Immediately notify RCTC if a Governmental Entity requests access to the job site or to records.
Submit a list of documents provided to the Governmental Entity and issued enforcement actions.
7-1.02B US Fair Labor Standards Act
Comply with 29 USC § 201 et seq.
7-1.02C Emissions Reduction
Submit to the Department the following certification before performing the work:
I am aware of the emissions reduction regulations being mandated by the California Air
Resources Board. I will comply with such regulations before commencing the performance of the
work and maintain compliance throughout the duration of this Contract.
Contract signing constitutes submittal of this certification.
7-1.02D-7-1.02H Reserved
7-1.021 Government Code
7-1.021(1) RESERVED
7-1.021(2) Nondiscrimination
Under 2 CA Code of Regs § 11105:
1. During the performance of this contract, the recipient, contractor, and its subcontractors
shall not deny the contract's benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status, nor shall they discriminate unlawfully
against any employee or applicant for employment because of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status. Contractor shall insure that the
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 28 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
evaluation and treatment of employees and applicants for employment are free of such
discrimination.
2. Contractor shall comply with the provisions of the Fair Employment and Housing Act
(Gov. Code, § 12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs.,
tit. 2, § 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2
of the Government Code (Gov. Code, §§ 11135-11139.5), and the regulations or
standards adopted by the awarding state agency to implement such article.
3. Contractor or recipient shall permit access by representatives of the Department of Fair
Employment and Housing and the awarding state agency upon reasonable notice at any
time during the normal business hours, but in no case less than 24 hours' notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or Agency shall require to ascertain compliance with this clause.
4. Recipient, contractor and its subcontractors shall give written notice of their obligations
under this clause to labor organizations with which they have a collective bargaining or
other agreement.
5. The contractor shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under the contract.
Under 2 CA Code of Regs § 11122:
STANDARD CALIFORNIA NONDISCRIMINATION CONSTRUCTION CONTRACT
SPECIFICATIONS (GOV. CODE SECTION 12990)
These specifications are applicable to all state contractors and subcontractors having a
construction contract or subcontract of $5,000 or more.
1. As used in the specifications:
a. "Act" means the Fair Employment and Housing Act.
b. "Administrator" means Administrator, Office of Compliance Programs, California
Department of Fair Employment and Housing, or any person to whom the
Administrator delegates authority;
2. Whenever the contractor or any subcontractor subcontracts a portion of the work, it shall
include in each subcontract of $5,000 or more the nondiscrimination clause in this
contract directly or through incorporation by reference. Any subcontract for work
involving a construction trade shall also include the Standard California Construction
Contract Specifications, either directly or through incorporation by reference.
3. The contractor shall implement the specific nondiscrimination standards provided in
paragraphs 6(a) through (e) of these specifications.
4. Neither the provisions of any collective bargaining agreement, nor the failure by a union
with whom the contractor has a collective bargaining agreement, to refer members of
any group protected by the Act shall excuse the contractor's obligations under these
specifications, Government Code section 12990, or the regulations promulgated
pursuant thereto.
5. In order for the nonworking training hours of apprentices and trainees to be counted,
such apprentices and trainees must be employed by the contractor during the training
period, and the contractor must have made a commitment to employ the apprentices
and trainees at the completion of their training, subject to the availability of employment
opportunities. Trainees must be trained pursuant to training programs approved by the
U.S. Department of Labor or the California Department of Industrial Relations.
6. The contractor shall take specific actions to implement its nondiscrimination program.
The evaluation of the contractor's compliance with these specifications shall be based
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 29 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
upon its effort to achieve maximum results from its actions. The contractor must be able
to demonstrate fully its efforts under steps a. through e. below:
a. Ensure and maintain a working environment free of harassment, intimidation, and
coercion at all sites, and at all facilities at which the contractor's employees are
assigned to work. The contractor shall specifically ensure that all foremen,
superintendents, and other on -site supervisory personnel are aware of and carry
out the contractor's obligations to maintain such a working environment.
b. Provide written notification within seven days to the director of the DFEH when
the referral process of the union or unions with which the contractor has a
collective bargaining agreement has impeded the contractor's efforts to meet its
obligations.
c. Disseminate the contractor's equal employment opportunity policy by providing
notice of the policy to unions and training, recruitment and outreach programs
and requesting their cooperation in assisting the contractor to meet its
obligations; and by posting the company policy on bulletin boards accessible to
all employees at each location where construction work is performed.
d. Ensure all personnel making management and employment decisions regarding
hiring, assignment, layoff, termination, conditions of work, training, rates of pay or
other employment decisions, including all supervisory personnel,
superintendents, general foremen, on -site foremen, etc., are aware of the
contractor's equal employment opportunity policy and obligations, and discharge
their responsibilities accordingly.
e. Ensure that seniority practices, job classifications, work assignments, and other
personnel practices, do not have a discriminatory effect by continually monitoring
all personnel and employment related activities to ensure that the equal
employment opportunity policy and the contractor's obligations under these
specifications are being carried out.
7 Contractors are encouraged to participate in voluntary associations that assist in fulfilling
their equal employment opportunity obligations. The efforts of a contractor association,
joint contractor -union, contractor -community, or other similar group of which the
contractor is a member and participant, may be asserted as fulfilling any one or more of
its obligations under these specifications provided that the contractor actively
participates in the group, makes every effort to assure that the group has a positive
impact on equal employment opportunity in the industry, ensures that the concrete
benefits of the program are reflected in the contractor's workforce participation, and can
provide access to documentation that demonstrates the effectiveness of actions taken
on behalf of the contractor. The obligation to comply, however, is the contractor's.
8. The contractor is required to provide equal employment opportunity for all persons.
Consequently, the contractor may be in violation of the Fair Employment and Housing
Act (Government Code section 12990 et seq.) if a particular group is employed in a
substantially disparate manner.
9. The contractor shall not use the nondiscrimination standards to discriminate against any
person because race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation, or military and veteran
status.
10. The contractor shall not enter into any subcontract with any person or firm decertified
from state contracts pursuant to Government Code section 12990.
11. The contractor shall carry out such sanctions and penalties for violation of these
specifications and the nondiscrimination clause, including suspension, termination and
cancellation of existing subcontracts as may be imposed or ordered pursuant to
Government Code section 12990 and its implementing regulations by the awarding
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 30 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
agency. Any contractor who fails to carry out such sanctions and penalties shall be in
violation of these specifications and Government Code section 12990.
12. The contractor shall designate a responsible official to monitor all employment related
activity to ensure that the company equal employment opportunity policy is being carried
out, to submit reports relating to the provisions hereof as may be required by OCP and
to keep records. Records shall at least include for each employee the name, address,
telephone numbers, construction trade, union affiliation if any, employee identification
number when assigned, status, (e.g., mechanic, apprentice trainee, helper, or laborer),
dates of changes in status, hours worked per week in the indicated trade, rate of pay,
and locations at which the work was performed. Records shall be maintained in any
easily understandable and retrievable form; however, to the degree that existing records
satisfy this requirement, contractors shall not be required to maintain separate records.
7-1.02J Reserved
7-1.02K Labor Code
7-1.02K(1) General
Work on the job site must comply with Labor Code §1720 et seq. and 8 CA Code of Regs § 16000
et seq. Work includes roadside production and processing of materials, and hauling and delivery
of ready -mixed concrete.
Payroll records include time cards, canceled checks, cash receipts, trust fund forms, books,
documents, schedules, forms, reports, receipts or other information which reflect job assignments,
work schedules by days and hours, and the disbursement of payment to workers (8 CA Code of
Regs § 16000).
7-1.02K(2) Wages
RCTC obtains the general prevailing rate of wages applicable to the work to be done. The rate
includes:
1. Basic hourly rate
2. Employer payments for health and welfare, pension, vacation, apprenticeship training
fees, travel time, and subsistence pay as provided for in Labor Code § 1773.1
3. Similar purposes
The general prevailing wage rates and any applicable changes to these wage rates are available:
1. At the RCTC's Labor Compliance Office.
2. From the Department of Industrial Relations' website
Post the general prevailing wage rates at a prominent place at the job site (Labor Code § 1773.2).
The wage determinations refer to expiration dates. The determinations with a single asterisk after
the expiration date, and in effect on the date of advertisement for bids, are good for the life of this
Contract. The determinations with double asterisks after the expiration date indicate the wage
rate to be paid for work performed after this date has been determined. If work is to extend past
this date, pay the new rate and incorporate it into this Contract. Changes in general prevailing
wage determinations apply to this Contract when the Director of Industrial Relations has issued
them at least 10 days before advertisement. (Labor Code § 1773.6 and 8 CA Code of Regs 16204)
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 31 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
RCTC does not recognize any claim for additional payment because of a payment by the
Contractor of any wage rate in excess of the prevailing wage rate specified in this Contract.
The Contractor and any Subcontract must forfeit to the RCTC not more than $200 per day or part
of a day for each worker paid less than the prevailing wage rate and pay the worker the difference
between the prevailing wage rate and the rate paid (Labor Code § 1775). The Labor
Commissioner determines the amount of this penalty and bases the amount on:
1. Whether the failure to pay the correct prevailing wage rate was a good -faith mistake that
the Contractor or Subcontract promptly and voluntarily corrected upon notice
2. Prior record of the Contractor or Subcontract in meeting its prevailing wage obligations
3. Contractor or Subcontract's willful failure to pay the correct rate of prevailing wages
If a worker employed by a Subcontract on a public works project is not paid the general prevailing
per diem wages by the Subcontract, the Contractor is not liable for the penalties described in
section 7-1.02K(2) unless the Contractor had knowledge of the failure to pay the correct general
prevailing per diem wages or unless the Contractor fails to comply with the following requirements
(Labor Code § 1775):
1. The contract executed between the Contractor and the Subcontract for the performance
of work on the public works project must include a copy of the requirements in Labor
Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Contractor must monitor the payment of the specified general prevailing rate of per
diem wages by periodic review of the certified payroll records of the Subcontract.
3. Upon becoming aware of the Subcontract's failure to pay the specified prevailing rate of
wages to the Subcontract's workers, the Contractor must diligently take corrective action
to stop or rectify the failure, including withholding sufficient funds due the Subcontract for
work performed on the public works project.
4. Before making final payment to the Subcontract for work performed on the public works
project, the Contractor must obtain an affidavit signed under penalty of perjury from the
Subcontract that the Subcontract has paid the specified general prevailing rate of per
diem wages to its employees on the public works project and any amounts due under
Labor Code § 1813.
Under Labor Code § 1775, RCTC must notify the contractor on a public works project within 15
days of receipt by RCTC of a complaint of the failure of a Subcontract on that public works project
to pay workers the general prevailing rate of per diem wages.
7-1.02K(3) Certified Payroll Records (Labor Code § 1776)
Keep accurate payroll records.
Submit a copy of your certified payroll records, weekly, including those of Subcontracts. Include:
1. Each employee's:
1.1. Full name
1.2. Address
1.3. Social security number
1.4. Work classification
1.5. Straight time and overtime hours worked each day and week
1.6. Actual wages paid for each day to each:
1.6.1. Journeyman
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 32 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
1.6.2. Apprentice
1.6.3. Worker
1.6.4. Other employee you employ for the work
1.7. Pay rate
1.8. Itemized deductions made
1.9. Check number issued
2. Apprentices and the apprentice -to -journeyman ratio
Each certified payroll record must include a Statement of Compliance form signed under penalty
of perjury that declares:
1. Information contained in the payroll record is true, correct, and complete
2. Employer has complied with the requirements of sections 1771, 1811, and 1815 for any
work performed by his or her employees on the public works project
3. Wage rates paid are at least those required by this Contract
RCTC allows the use of a form with identical wording as the Statement of Compliance form
provided by the Department.
Submitted certified payrolls for hauling and delivering ready -mixed concrete must be
accompanied by a written time record. The time record must include:
1. Truck driver's full name and address
2. Name and address of the factory or batching plant
3. Time the concrete was loaded at the factory or batching plant
4. Time the truck returned to the factory or batching plant
5. Truck driver's signature certifying under penalty of perjury that the information contained
in this written time record is true and correct.
Make certified payroll records available for inspection at all reasonable hours at your main office
on the following basis:
1. Upon the employee's request or upon request of the employee's authorized
representative, make available for inspection a certified copy of the employee's payroll
record
2. Refer the public's requests for certified payroll records to the Department. Upon the
public's request, the Department makes available for inspection or furnishes copies of
your certified payroll records. Do not give the public access to the records at your main
office.
Make all payroll records available for inspection and copying or furnish a copy upon request of a
representative of the:
1. RCTC
2. Division of Labor Standards Enforcement of the Department of Industrial Relations
3. Division of Apprenticeship Standards of the Department of Industrial Relations
Furnish RCTC the location of the records. Include the street address, city, and county. Furnish
RCTC a notification of a location and address change within 5 business days of the change.
Comply with a request for the records within 10 days after you receive a written request. If you do
not comply within this period, RCTC withholds from progress payments a $100 penalty for each
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 33 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
day or part of a day for each worker until you comply. You are not assessed this penalty for a
Subcontract's failure to comply with Labor Code § 1776.
RCTC withholds from progress payments for delinquent or inadequate records (Labor Code §
1771.5). If you have not submitted an adequate record by the month's 15th day for the period
ending on or before the 1st of that month, RCTC withholds up to 10 percent of the monthly
progress estimate, exclusive of mobilization. RCTC does not withhold more than $10,000 or less
than $1,000.
7-1.02K(4) Apprentices
Comply with the apprentice to journeyman ratio requirements (Labor Code § 1777.5(g)).
Comply with the training contribution requirements (Labor Code § 1777.5(m)(1)).
For answers to questions, contact the Division of Apprenticeship Standards before starting work.
RCTC deducts from progress payments civil penalties assessed by the Chief of the Division of
Apprenticeship Standards for violating Labor Code § 1777.5 (Labor Code § 1777.7).
7-1.02K(5) Working Hours
Eight hours is a legal day's work (Labor Code § 1810).
The time of service of any worker employed on public work is limited and restricted to 8 hours in
1 day and 40 hours in 1 calendar week, except as provided by Labor Code § 1815 (Labor Code
§ 1811).
A Contractor's employee may work more than 8 hours per day and 40 hours per week if the
Contractor pays the employee 1-1/2 times the basic pay rate for the hours worked in excess of 8
hours per day and 40 hours per week (Labor Code § 1815).
For each worker employed in the work for each day the worker works more than 8 hours in 1 day
and 40 hours in 1 calendar week without overtime pay, RCTC deducts $25 as a penalty for
violating Labor Code § 1815 (Labor Code § 1813).
7-1.02K(6) Occupational Safety and Health Standards
7-1.02K(6)(a) General
Comply with applicable occupational safety and health standards, rules, regulations, and orders.
The Occupational Safety and Health Standards Board is the only agency authorized in the State
to adopt and enforce occupational safety and health standards (Labor Code § 142 et seq.).
You are the controlling employer and must ensure hazardous conditions are corrected (Labor
Code § 6400).
RCTC may notify Cal/OSHA if you fail to establish or maintain a safe and healthful workplace.
Submit copies of your Injury and Illness Prevention Program and permits required by Cal/OSHA.
The program must address the use of personal and company -issued electronic devices during
work. Do not allow the use of entertainment and personal communication devices in the work
zone. Workers may use a communication device for business purposes in the work area, at a
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 34 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
location where their safety and the safety of other workers and the traveling public is not
compromised.
RCTC is not responsible for the health and safety of:
1. Contractor's personnel
2. Subcontractor's personnel
3. Supplier's personnel
4. Any other persons present at the job site at the request of you or your subcontractors.
7-1.02K(6)(b) Excavation Safety
Comply with Labor Code § 6705 while excavating. For an excavation 5 feet or more in depth,
submit shop drawings for a protective system.
The drawings must show the design and details for providing worker protection from caving
ground during excavation.
Shop drawings of protective systems for which the Construction Safety Orders require design by
a registered professional engineer must be sealed and signed by an engineer who is registered
as a civil engineer in the State.
The submittal must allow review time and include the contents shown in the following table except
the review time is 65 days for an excavation on or affecting railroad property.
Drawing Review Time and Contents
Topic
Plan not requiring a signature
Plan requiring a signature
Review
time
5 business days before excavating
20 days before excavating
Contents
Drawings
Calculations
Material information
Proprietary system information
Drawings
Calculations
Material information
Proprietary system information
Soil classification
Soil properties
Soil design calculations
7-1.02K(6)(c) Tunnel Safety
Cal/OSHA classifies tunnels into one of the following classifications:
1. Nongassy
2. Potentially gassy
3. Gassy
4. Extrahazardous
If a tunnel location is described in this Contract, the classification is included in the Information
Handout and you must:
1. Designate an on -site Safety Representative under 8 CA Code of Regs § 8406
2. Submit the name of your on -site Safety Representative at least 7 days before starting
work at each tunnel
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 35 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
3. Prominently post a notice at the job site of:
3.1. Tunnel classifications
3.2. Any special orders, rules, special conditions, or regulations related to tunnel work
4. Ensure your workers are informed of these classifications
Notify RCTC at least 20 days before a worker enters a tunnel not described in this Contract. RCTC
obtains the classification of the tunnel. RCTC may suspend the work because of a change directly
resulting from the Contractor's planned activities that causes activities to fall under the Tunnel
Safety Orders of 8 CA Code of Regs § 8422.
7-1.02K(6)(d) Confined Space Safety
Comply with 8 CA Code of Regs § 5158 while working in a confined space.
7-1.02K(6)(e)—(j)(i) RESERVED
7-1.02K(6)(j)(ii) Lead Compliance Plan
Section 7-1.02K(6)(j)(ii) applies for the lead compliance plan.
Regulations containing specific Cal/OSHA requirements when working with lead include 8 CA
Code of Regs § 1532.1.
Submit a plan:
1. That documents your compliance program to prevent or minimize worker exposure to
lead
2. Including the items listed in 8 CA Code of Regs § 1532.1(e)(2)(B)
3. Sealed and signed by a CIH with knowledge of and experience complying with 8 CA
Code of Regs
Allow 7 days for RCTC's review. Obtain authorization for the plan before starting any activity that
presents the potential for lead exposure.
Before starting any activity that presents the potential for lead exposure to employees who have
no prior training, including State employees, provide a safety training program to these employees
that complies with 8 CA Code of Regs § 1532.1 and your lead compliance plan.
Submit copies of air monitoring or job site inspection reports made by or under the direction of
the CIH under 8 CA Code of Regs § 1532.1 within 10 days after the date of monitoring or
inspection.
Supply personal protective equipment, training, and washing facilities required by your lead
compliance plan for 5 State employees.
7-1.02K(6)(j)(iii)-7-1.02L(1) RESERVED
7-1.02L(2) Antitrust Claims
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 Subcontract 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
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 36 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
(commencing with § 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. [Pub Cont
Code § 7103.5 (b)]
7-1.02M(1)—(2) RESERVED
7-1.02M(3) Surface Mining and Reclamation Act
Imported borrow or aggregate material must come from a surface mine permitted under the
Surface Mining and Reclamation Act of 1975, Pub Res Code § 2710 et seq., or from a source not
subject to this act.
For the list of permitted sites, go to the Department of Conservation, Office of Mine Reclamation
website.
If you import borrow or aggregate material from a surface mine not on this list, submit proof that
the source is not subject to this act.
7-1.02M(4)-7-1.02M(7) RESERVED
7-1.02N RESERVED
7-1.020 Vehicle Code
Under Veh Code § 591, RCTC determines areas within the project limits are open to public traffic.
For those areas, comply with the requirements set forth in Divisions 11, 12, 13, 14 and 15 of the
Veh Code.
Veh Code § 591 does not relieve you or any other person from the duty of exercising due care.
7-1.02P-7-1.02Z RESERVED
7-1.03 PUBLIC CONVENIENCE
Compliance with section 7-1.03 does not relieve you of your responsibility for public safety.
Construction activities must not inconvenience the public or abutting property owners. Coordinate
construction activities affecting property owners with 14 days prior to any impact to the property
owners, and provide property owner the time and duration of impact, potential alternative access
routes, and other information appropriate for the impact. Schedule and conduct work to avoid
unnecessary inconvenience to the public and abutting property owners. Avoid undue delay in
construction activities to reduce the public's exposure to construction.
Where possible, route traffic on new or existing paved surfaces.
Maintain convenient access to driveways, houses, and buildings. When an abutting property
owner's access across the right-of-way line is to be eliminated or replaced under this Contract,
the existing access must not be closed until the replacement access facility is usable. Construct
temporary approaches to a crossing and an intersecting highway.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 37 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Provide a reasonably smooth and even surface for use by traffic at all time during the excavation
of a roadway and construction of an embankment. Before other grading activities, place fill at
culverts and bridges to allow traffic to cross. If ordered by RCTC, excavate a roadway cut in layers
and construct an embankment in partial widths at a time alternating construction from one side to
the other and routing traffic over the side opposite the one under construction. Install or construct
culverts on only 1/2 the width of the traveled way at a time; keep the traveled way portion being
used by traffic open and unobstructed until the opposite side of the traveled way is ready for use
by traffic.
Upon completion of rough grading or placing any subsequent layer, bring the surface of the
roadbed to a smooth and even condition, free of humps and depressions, and satisfactory for the
use of the public.
After subgrade preparation for a specified layer of material has been completed, repair any
damage to the roadbed or completed subgrade, including damage caused by public use.
While subgrade and paving activities are underway, allow the public to use the shoulders. If half -
width paving methods are used, allow the public to use the side of the roadbed opposite the one
under construction. If enough width is available, keep open a passageway wide enough to
accommodate at least 2 lanes of traffic at locations where subgrade and paving activities are
underway. Shape shoulders or reshape subgrade as necessary to accommodate traffic during
subgrade preparation and paving activities.
Apply a dust palliative for the prevention or alleviation of dust nuisance.
If a height differential of more than 0.04 foot is created by construction activities at a joint
transverse to the direction of traffic on the traveled way or a shoulder subject to public traffic,
construct a temporary taper at the joint with a slope complying with the requirements shown in
the following table:
Temporary Tapers
Height differential
(foot)
Slope (horizontal:vertical)
Taper use of 14 days or less
Taper use of more than 14
days
Greater than 0.08
100:1 or flatter
200:1 or flatter
0.04-0.08
70:1 or flatter
70:1 or flatter
For a taper on existing asphalt concrete or concrete pavement, construct the taper with minor
HMA under section 39-2.07.
Grind existing surfaces to accommodate a minimum taper thickness of 0.10 foot under either of
the following conditions:
1. HMA material such as rubberized HMA, polymer -modified bonded wearing course, or
open -graded friction course is unsuitable for raking to a maximum 0.02 foot thickness at
the edge
2. Taper will be in place for more than 14 days
For a taper on a bridge deck or approach slab, construct the taper with polyester concrete under
section 60-3.04B.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 38 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
The completed surface of the taper must be uniform and must not vary more than 0.02 foot from
the lower edge of a 12-foot straightedge when placed on its surface parallel and perpendicular to
traffic.
If authorized, you may use alternative materials or methods to construct the required taper.
Install signs, lights, flares, Type K temporary railing, barricades and other facilities to direct traffic.
Provide flaggers whenever necessary to direct the movement of the public through or around the
work.
7-1.04 PUBLIC SAFETY
You are responsible to provide for public safety.
Do not construct a temporary facility that interferes with the safe passage of traffic.
Control dust resulting from the work, inside and outside the right-of-way.
Move workers, equipment, and materials without endangering traffic.
Whenever your activities create a condition hazardous to the public, furnish, erect and maintain
those fences, temporary railing, barricades, lights, signs, and other devices and take any other
necessary protective measures to prevent damage or injury to the public.
Any fences, temporary railing, barricades, lights, signs, or other devices furnished, erected and
maintained by you are in addition to those for which payment is provided elsewhere in the
specifications.
Provide flaggers whenever necessary to ensure that the public is given safe guidance through
the work zone. At locations where traffic is being routed through construction under one-way
controls, move your equipment in compliance with the one-way controls unless otherwise ordered.
Use of signs, lights, flags, or other protective devices must comply with the California MUTCD
and any directions of RCTC. Signs, lights, flags or other protective devices must not obscure the
visibility of, nor conflict in intent, meaning, and function of either existing signs, lights and traffic
control devices, or any construction area signs.
Keep existing traffic signals and highway lighting in operation. Other forces within the Department
will perform routine maintenance of these facilities during the work.
Cover signs that direct traffic to a closed area. Except for work specified in section 12, maintaining,
and removing the covers on construction area signs is change order work.
Install temporary illumination such that the illumination and the illumination equipment do not
interfere with public safety. The installation of general roadway illumination does not relieve you
from furnishing and maintaining any protective devices.
Equipment must enter and leave the highway via existing ramps and crossovers and must move
in the direction of traffic. All movements of workmen and construction equipment on or across
lanes open to traffic must be performed in a manner that do not endanger the public. Your vehicles
or other mobile equipment leaving an open traffic lane to enter the construction area must slow
down gradually in advance of the location of the turnoff to give the traffic following an opportunity
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 39 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
to slow down. When leaving a work area and entering a roadway carrying traffic, your vehicles
and equipment must yield to traffic.
Immediately remove hauling spillage from a roadway lane or shoulder open to traffic. When
hauling on roadways, trim loads and remove material from shelf areas to minimize spillage.
Notify RCTC not less than 25 days and not more than 125 days before the anticipated start of an
activity that will change the vertical or horizontal clearance available to traffic, including shoulders.
If vertical clearance is temporarily reduced to 15.5 feet or less, place low clearance warning signs
in compliance with the California MUTCD and any directions of RCTC. Signs must comply with
the dimensions, color, and legend requirements of the California MUTCD and section 12-3.11
except that the signs must have black letters and numbers on an orange retroreflective
background. W12-2P signs must be illuminated so that the signs are clearly visible.
Pave or provide full width continuous and cleared wood walks for pedestrian openings through
falsework. Protect pedestrians from falling objects and concrete -curing water. Extend overhead
protection for pedestrians at least 4 feet beyond the edge of the bridge deck. Illuminate all
pedestrian openings through falsework. Temporary pedestrian facilities must comply with the
California MUTCD, Part 6, Chapter 6D, "Pedestrian and Worker Safety."
Do not store vehicles, material, or equipment in a way that:
1. Creates a hazard to the public
2. Obstructs traffic control devices
Do not install or place temporary facilities used to perform the work which interfere with the free
and safe passage of traffic.
Temporary facilities that could be a hazard to public safety if improperly designed must comply
with design requirements described in the Contract for those facilities or, if none are described,
with standard design criteria or codes appropriate for the facility involved. Submit shop drawings
and design calculations for the temporary facilities and show the standard design criteria or codes
used. Shop drawings and supplemental calculations must be sealed and signed by an engineer
who is registered as a civil engineer in the State. If you appear to be neglectful or negligent in
furnishing warning devices and taking protective measures, RCTC may direct your attention to
the existence of a hazard. You must furnish and install the necessary warning devices. If RCTC
points out the inadequacy of warning devices and protective measures, that action on the part of
RCTC does not relieve you from your responsibility for public safety or abrogate your obligation
to furnish and pay for these devices and measures.
Install Type K temporary railing or other authorized protective systems under any of the following
conditions:
1. Excavations: Where the near edge of the excavation is within 15 feet from the edge of
an open traffic lane
2. Temporarily unprotected permanent obstacles: When the work includes the installation
of a fixed obstacle together with a protective system, such as a sign structure together
with protective railing, and you elect to install the obstacle before installing the protective
system; or you, for your convenience and as authorized, remove a portion of an existing
protective railing at an obstacle and do not replace such railing completely the same day
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 40 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
3. Storage areas: When material or equipment is stored within 15 feet of the edge of an
open traffic lane and the storage is not otherwise prohibited by this Contract
4. Height differentials: When construction operations create a height differential greater
than 0.15 feet within 15 feet of the edge of traffic lane
Installation of Type K temporary railing is not required if an excavation within 15 feet from the
edge of an open traffic lane is protected by any of the following:
1. Steel plate or concrete covers of adequate thickness to prevent accidental entry by
traffic or the public
2. Side slope where the downhill slope is 4:1 (horizontal:vertical) or less unless a naturally
occurring condition
3. Barrier or railing
Offset the approach end of Type K temporary railing a minimum of 15 feet from the edge of an
open traffic lane. Install the temporary railing on a skew toward the edge of the traffic lane of not
more than 1 foot transversely to 10 feet longitudinally with respect to the edge of the traffic lane.
If the 15-foot minimum offset cannot be achieved, the temporary railing must be installed on the
10 to 1 skew to obtain the maximum available offset between the approach end of the railing and
the edge of the traffic lane, and an array of temporary crash cushion modules must be installed
at the approach end of the temporary railing.
Secure Type K temporary railing in place before starting work for which the temporary railing is
required.
If a traffic lane is closed with channelizers for excavation work, move the devices to the adjacent
edge of the traveled way when not excavating. Space the devices as specified for the closure.
Do not move or temporarily suspend anything over a traffic lane open to the public unless the
public is protected.
7-1.05— 7-1.07A RESERVED
7-1.07B Seal Coat Claims
Pay for claims for personal property damage caused by screening and bituminous binder. Seal
coat claims are limited to:
1. 0.1 percent of the Contract Price
2. Damage occurring between the 1st day of screening spreading and 4 days after the last
day of screening spreading for each seal coat location
Within 30 days of the last screening spreading, do the following:
1. Process and resolve all claims reported or submitted to you by the public as follows:
1.1. Within 3 business days of receipt of a claim, submit to the Department a copy of
the claim, a written analysis of the claim, and a statement indicating whether or
not you will pay the claim. If you reject a claim, provide the reasons for rejection
in writing.
1.2. If the claimant becomes dissatisfied with your handling of the claim, immediately
refer the claimant to the local district claims office for assistance in resolving the
claim.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 41 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
2. Submit to RCTC evidence of your paid claims.
All claims presented to RCTC, any district claims office, or the State Board of Control (Govt Code
§ 900 et seq.) are processed and resolved by RCTC as follows:
1. The claims are processed as formal government claims subject to all laws and policies
and are resolved as RCTC determines including referring the claim to you for handling.
2. RCTC or the State Board of Control approves settlement of a claim or is ordered to pay
pursuant to a court order, the claim is paid from funds withheld from you.
3. Within 3 business days of RCTC's determination that you are responsible for resolving
the claim, RCTC sends a copy of the claim to you for resolution or notifies you of
RCTC's decision to resolve the claim.
RCTC withholds an amount not to exceed 0.1 percent of the Contract Price to resolve all claims.
The amount is held no longer than 60 days following the last spreading of screenings so that
RCTC has ample time to resolve any pending claims. After 60 days, any remaining amount
withheld is returned to you.
If no withheld funds remain or have been returned, RCTC may pay any claims and seek
reimbursement from you through an offset or any other legal means. Any reimbursement or offset
to be recovered from you, including all other paid claims, is limited to 10 percent of the Contract
Price.
Section 7-1.07B does not limit your obligation to defend and indemnify the Department and RCTC.
7-1.08-7-1.11 RESERVED
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 42 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
8 PROSECUTION AND PROGRESS
8-1.01 GENERAL
Section 8 includes specifications related to prosecuting this Contract and work progress.
8-1.02 RESERVED
8-1.03 PRECONSTRUCTION CONFERENCE
Attend a preconstruction conference with key personnel, including your assigned representative,
at a time and location determined by RCTC. Submit documents as required before the
preconstruction conference. You may start work before the preconstruction conference.
Be prepared to discuss the topics and documents shown in the following table:
Topic
Document
Potential claim and dispute
resolution
(See Notices in Articles 16 and 23 of the Contract]
Contractor's representation
Assignment of Contractor's representative
Equipment
Equipment list
Labor compliance and equal
employment opportunity
Job site posters and benefit and payroll reports
Material inspection
Notice of Materials to be Used
Materials on hand
Request for Payment for Materials on Hand
Measurements
--
Partnering
--
Quality control
QC plans
Safety
Injury and Illness Prevention Program and job site posters
Schedule
Baseline schedule and Weekly Statement of Working
Days form
Subcontracting
Subcontracting Request
Surveying
Survey Request
Traffic control
Traffic contingency plan and traffic control plans
Utility work
--
Weight limitations
--
Water pollution control
SWPPP or WPCP
Work restrictions
PLACs
Action submittals
--
8-1.04-8-1.16 RESERVED
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 43 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
9 PAYMENT
9-1.01 GENERAL
Section 9 includes specifications related to work that is to be paid for based on unit prices.
9-1.02 MEASUREMENT
9-1.02A General
RCTC determines unit priced quantities under US customary units.
9-1.02B Weighing Equipment and Procedures
9-1.02B(1) General
Measure material quantities for payment with devices that comply with:
1. 4 CA Code of Regs § 4000 et seq.
2. Bus & Prof Code § 12001 et seq.
To determine the material payment quantities, use measuring devices that have been sealed by
the Department of Food and Agriculture's Division of Measurement Standards or its designated
representative.
If a device is not type approved by the Division of Measurement Standards, type approve it under
California Test 109.
Notify RCTC at least 1 Business Day before equipment testing.
Use material plant controllers having elements affecting the data accuracy and delivery that have
been sealed in accordance with the CQMP. Make these elements available to RCTC and the
CQVM for inspection. If the elements are adequate for use, the CQVM seals them. If manipulation
of the security seal occurs, stop material production. Do not resume production until RCTC and
CQVM reinspect the device and the CQVM reseals it.
Measure material paid for by weight on sealed scales regularly inspected by the Department of
Food and Agriculture's Division of Measurement Standards or its designated representative.
Obtain authorization of portable vehicle scale installations before sealing.
9-1.02B(2) Equipment
Each scale must be long enough to fit an entire vehicle or a combination vehicle on the scale
deck. RCTC allows you to weigh a combination vehicle separately if you disconnect the vehicles.
Construct scale undersupports:
1. Using portland cement concrete containing at least 470 pounds of cementitious material
per cubic yard produced from commercial quality materials
2. Such that footing heights are at least 20 inches thick
3. With a bearing surface at least 30 inches wide and bearing pressure on the footing not
over 4,000 lb./sq. ft.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 44 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
In constructing a scale:
1. Provide drainage to prevent water from saturating the ground under the scale
2. Use bulkheads that prevent displacement
3. If shimming is necessary:
3.1. Use securely attached metal shims or grout
3.2. Do not use wedges to shim the supports
3.3. Do not use shim material in excess of 3 inches
4. Install mechanical indicating elements level, plumb, and rigidly mounted on the concrete
undersupports
5. For a hopper scale, rigidly attach the lever systems and mechanical indicating elements
such that no weight is lost from bending or support distortion
Each scale used to determine material payment quantities must be operated by a licensed
weighmaster (Bus & Prof Code § 12700 et seq.).
Submit a public weighmaster's certificate or certified daily summary weigh sheets for each
weighed material quantity. RCTC may witness material weighing and check and compile the daily
scale -weight record.
Each vehicle operator must obtain weight or load slips from the weighmaster. Submit these
records at the delivery point.
9-1.02B(3) Procedures
Each day weigh empty vehicles used to haul material paid for by weight. Each vehicle must have
a legible identification mark. RCTC may verify a material weight by having an empty and loaded
vehicle weighed on any scale RCTC designates.
If imported topsoil, soil amendment, or mulch is measured by volume:
1. Each vehicle must allow for an accurate determination of its contents
2. Unless vehicles are of uniform capacity, each vehicle must have a legible identification
mark showing its volumetric capacity
3. Load vehicles to at least the volumetric capacity
4. Level vehicle loads on arrival at the delivery point
If determining a quantity paid on a volume basis is impractical or if you request and request is
authorized, weigh the material and RCTC converts the result to a volume measurement. RCTC
determines the conversion factors and, if you agree, adopts this method of measurement.
9-1.02C RESERVED
9-1.02D Quantities of Aggregate and Other Roadway Materials
RCTC determines the weights of aggregate and other roadway material that are being paid for by
weight as shown in the following table and does not include the deducted weight of water in their
payment quantities:
Determination of Quantities of Aggregate and Other Roadway Materials
Material
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 45 of 53
Quantity determination
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Aggregate or other roadway
material except as otherwise
shown in this table
By deducting the weight of water in the materiala in
excess of 3 percent of the dry weight of the material
from the weight of the material
Imported borrow, imported
topsoil, AB
By deducting the weight of water in the materiala in
excess of 6 percent of the dry weight of the material
from the weight of the material
Straw
By deducting the weight of water in the materiala in
excess of 15 percent of the dry weight of the material
from the weight of the material
Fiberb
RCTC does not deduct the weight of water
AB and aggregate for CTBs
As specified in section 26 and section 27
NOTE: Percentage of water is determined by California Test 226.
Alsthe time of weighing
bWeight of water in the fibers must not exceed 15 percent of the dry weight of the fiber.
9-1.03 RESERVED
9-1.04 FORCE ACCOUNT
9-1.04A General
For work paid by force account, RCTC compares RCTC's records to your daily force -account
work report. When you and RCTC agree on the contents of the daily force -account work reports,
RCTC accepts the report and RCTC pays for the work. If the records differ, RCTC pays for the
work based only on the information shown on the RCTC's records.
If a Subcontract performs work at force account, accept an additional five(5) percent markup to
the total cost of that work paid at force account, including markups specified in section 9-1.04, as
reimbursement for additional administrative costs.
The markups specified for labor, materials, and equipment include compensation for all delay
costs, overhead costs, and profit which are compensable under the contract.
If an item's unit price is adjusted for work -character changes, RCTC excludes your cost of
determining the adjustment.
Payment for owner -operated labor and equipment is made at the market -priced invoice submitted.
For design work, the cost of labor for non -construction -related work (including design, surveying,
utility coordination, permits, professional environmental services and similar aspects of the Work),
whether provided by Contractor or a Subcontractor, will equal the sum of (1) actual wages (i.e.,
the base wage paid to the employee exclusive of fringe benefits), plus (2) a labor surcharge of
150% on such amount, which shall constitute full compensation for all state and federal payroll,
unemployment and other taxes, workers' compensation, fringe benefits (including health
insurance, retirement plans, vacation, sick leave and bonuses) and all other payments made to,
or on behalf of, the workers, in excess of actual wages, as well as for overhead.
For construction work, the markups set forth below, together with any additional field office and
jobsite overhead costs allowable under Contract Section 13.5.2 constitutes full compensation for
all overhead costs for Work performed on a force account basis as well as for profit thereon.
These overhead costs are deemed to include all items of expense not specifically designated
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 46 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
herein. The total payment made as provided herein is deemed to be the actual cost of the Work
performed on a force account basis, and constitutes full compensation therefor.
9-1.04B Labor (Construction Work)
Labor payment is full compensation for the cost of labor used in the direct performance of the
work plus a 35 percent markup. Force -account labor payment consists of:
1. Employer payment to the worker for:
1.1. Basic hourly wage
1.2. Health and welfare
1.3. Pension
1.4. Vacation
1.5. Training
1.6. Other State- and federal -recognized fringe benefit payments
2. Labor surcharge percentage in Labor Surcharge and Equipment Rental Rates current
during the work paid at force account for:
2.1. Workers' compensation insurance
2.2. Social security
2.3. Medicare
2.4. Federal unemployment insurance
2.5. State unemployment insurance
2.6. State training taxes
3. Subsistence and travel allowances paid to the workers
4. Employer payment to supervisors if authorized
The 35 percent markup consists of payment for all overhead costs related to labor but not
designated as costs of the labor used in the direct performance of the work, including:
1. Home office overhead
2. Field office overhead (including superintendent/general foreman)
3. Bond and insurance costs
4. Profit
5. Labor liability insurance
6. Other fixed or administrative costs that are not costs of the labor used in the direct
performance of the work
9-1.04C Materials
Material payment is full compensation for materials you furnish and use in the work. RCTC
determines the cost based on the material purchase price, including delivery charges, except:
1. 15 percent markup is added
2. Supplier discounts are subtracted whether you took them or not
3. If RCTC believes the material purchase prices are excessive, RCTC pays the lowest
current wholesale price for a similar material quantity
4. If you procured the materials from a source you wholly or partially own, the determined
cost is based on the lower of the:
4.1. Price paid by the purchaser for similar materials from that source on Contract
items
4.2. Current wholesale price for those materials
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 47 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
5. If you do not submit a material cost record within 30 days of billing, the determined cost
is based on the lowest wholesale price:
5.1. During that period
5.2. In the quantities used
9-1.04D Equipment Rental
9-1.04D(1) General
Equipment rental payment is full compensation for:
1. Rental equipment costs, including moving the equipment to and from the change order
work site using its own power.
2. Transport equipment costs for rental equipment that cannot be transported economically
using its own power. No payment is made during transport for the transported
equipment.
3. 15 percent markup.
If you want to return the equipment to a location other than its original location, the payment to
move the equipment must not exceed the cost of returning the equipment to its original location.
If you use the equipment for work other than work paid by force account, the transportation cost
is included in the other work.
Before moving or loading the equipment, obtain authorization for the equipment rental's original
location.
RCTC determines rental costs:
1. Using the rates in Labor Surcharge and Equipment Rental Rates:
1.1. By classifying equipment using manufacturer's ratings and manufacturer -
approved changes.
1.2. Current during the work paid by force account.
1.3. Regardless of equipment ownership; but RCTC uses the rental document rates
or minimum rental cost terms if:
1.3.1. Rented from an equipment business you do not own.
1.3.2. Hourly rate in Labor Surcharge and Equipment Rental Rates is $10.00 per hour
or less.
2. Using the rates established by RCTC for equipment not listed in Labor Surcharge and
Equipment Rental Rates. You may submit cost information that helps RCTC establish
the rental rate; but RCTC uses the rental document rates or minimum rental cost terms
if:
2.1. Rented from an equipment business you do not own.
2.2. RCTC establishes a rate of $10.00 per hour or less.
3. Using rates for transport equipment not exceeding the hourly rates charged by
established haulers.
Equipment rental rates include the cost of:
1. Fuel 7. Repairs and maintenance
2. Oil 8. Depreciation
3. Lubrication 9. Storage
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 48 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
4. Supplies
5. Small tools that are not consumed by use
6. Necessary attachments
10. Insurance
11. Incidentals
RCTC pays for small tools consumed by use. RCTC determines the payment for small tools
consumed by use based on Contractor -submitted invoices.
RCTC may authorize rates in excess of those in the Labor Surcharge and Equipment Rental
Rates if:
1. You submit a request to use rented equipment
2. Equipment is not available from your normal sources or from one of your Subcontracts
3. Rented equipment is from an independent rental company
4. Proposed equipment rental rate is reasonable
5. RCTC authorizes the equipment source and the rental rate before you use the
equipment
RCTC pays for fuel consumed during the operation of rented equipment not included in the
invoiced rental rates.
9-1.04D(2) Equipment On the Job Site
For equipment on the job site at the time required to perform work paid by force account, the time
paid is the time:
1. To move the equipment to the location of work paid by force account plus an equal
amount of time to move the equipment to another location on the job site when the work
paid by force account is completed
2. To load and unload equipment
3. Equipment is operated to perform work paid by force account and:
3.1. Hourly rates are paid in 1/2-hour increments
3.2. Daily rates are paid in 1/2-day increments
9-1.04D(3) Equipment Not On the Job Site and Not Required for Original -Contract Work
For equipment not on the job site at the time required to perform work paid by force account and
not required for the original Contract work, the time paid is the time the equipment is operated to
perform work paid by force account and the time to return the equipment to its source when the
work paid by force account is completed.
The minimum total time paid is:
1. 1 day if daily rates are paid
2. 8 hours if hourly rates are paid
If daily rates are recorded, equipment:
1. Idled is paid as 1/2 day
2. Operated less than 4 hours is paid as 1/2 day
3. Operated 4 hours or more is paid as 1 day
If the minimum total time exceeds 8 hours and if hourly rates are listed, RCTC rounds up hours
operated to the nearest 1/2-hour increment and pays based on the hours shown the following
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 49 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
table. The table does not apply when equipment is not operated due to breakdowns, in which
case rental hours are the hours the equipment was operated.
Equipment Rental Hours
Hours operated
Hours paid
0.0
4.00
0.5
4.25
1.0
4.50
1.5
4.75
2.0
5.00
2.5
5.25
3.0
5.50
3.5
5.75
4.0
6.00
4.5
6.25
5.0
6.50
5.5
6.75
6.0
7.00
6.5
7.25
7.0
7.50
7.5
7.75
>_ 8.0
hours used
9-1.04D(4) Equipment Not On the Job Site and Required for Original -Contract Work
For equipment not on the job site at the time required to perform work paid by force account and
required for the original Contract work, the time paid is the time:
1. To move the equipment to the location of work paid by force account plus an equal
amount of time to move the equipment to a location on the job site or its source when
the work paid by force account is completed
2. Equipment is operated to perform work paid by force account
9-1.04D(5) Non -Owner -Operated Dump Truck Rental
Submit the rental rate for a non -owner -operated dump truck. RCTC determines the payment rate.
Payment for the rental of a non -owner -operated dump truck is for the cost of renting a dump truck,
including its driver. For the purpose of markup payment only, the non -owner -operated dump truck
is rental equipment and the owner is a Subcontract.
9-1.04D(6) Records
Maintain records in such a manner as to provide a clear distinction between the direct costs of
extra Work paid for on a force account basis and the costs of other operations. Records must
provide all other information required under this Contract.
From the above records, furnish RCTC completed daily extra work reports, either on forms
furnished by RCTC or on computerized facsimiles of the RCTC's forms acceptable to the RCTC,
for each day's extra Work to be paid for on a force account basis. Itemize the materials used on
the daily extra work reports, and covering the direct cost of labor and the charges for equipment
rental, whether furnished by Contractor, Subcontractor or other forces, except for charges
described in Section 9-1.05, "Extra Work Performed by Specialists." Provide names or
identifications and classifications of workers, the hourly rate of pay and hours worked, and also
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 50 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
the size, type and identification number of equipment, and hours operated in the daily extra work
reports.
Substantiate material charges by valid copies of vendor's invoices. Submit the invoices with the
daily extra work reports, or if not available, submit the invoices with subsequent daily extra work
reports. Should the vendor's invoices not be submitted within 60 days after the date of delivery
of the material or within 15 days after the acceptance of the contract, whichever occurs first, RCTC
reserves the right to establish the cost of the materials at the lowest current wholesale prices at
which those materials were available in the quantities concerned delivered to the location of Work
less any discounts as provided in Section 9-1.04C.
Daily extra work reports must be signed by Contractor or the Contractor's authorized
representative.
RCTC will compare the RCTC's records with the completed daily extra work reports furnished by
the Contractor and make any necessary adjustments. When these daily extra work reports are
agreed upon and signed by both parties, the reports will become the basis of payment for the
Work performed, but do not preclude subsequent adjustment based on a later audit by the RCTC
or Department.
The Contractor's cost records pertaining to Work paid for on a force account basis is open to
inspection or audit by representatives of the RCTC or Department, during the life of the Contract
and for a period of not less than 5 years after the date of acceptance thereof, and the Contractor
must retain those records for that period. Where payment for materials or labor is based on the
cost thereof to forces other than the Contractor, the Contractor must make every reasonable effort
to ensure that the cost records of those other forces are open to inspection and audit by
representatives of the RCTC or Department on the same terms and conditions as the cost records
of the Contractor. If an audit is to be commenced more than 60 days after the final acceptance
date of the contract, the Contractor will be given a reasonable notice of the time when the audit
is to begin.
9-1.05 EXTRA WORK PERFORMED BY SPECIALISTS
If RCTC determines that you or your Subcontracts are not capable of performing specialty extra
work, a specialist may be used. Itemize the labor, material, and equipment rental costs unless it
is not the special service industry's established practice to provide itemization, in which case,
RCTC accepts current market -priced invoices for the work.
RCTC may accept an invoice as a specialist billing for work performed at an off —job site
manufacturing plant or machine shop.
RCTC determines the cost based on the specialist invoice price minus any available or offered
discounts plus a 10 percent markup.
9-1.06-9-1.08 RESERVED
9-1.11 TIME -RELATED OVERHEAD
9-1.11A General
Section 9-1.11 applies only to those occurrences and events for which Contractor would be
entitled to delay and disruption damages in accordance with Contract Section 16.6.2.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 51 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
9-1.11 B RESERVED
9-1.11C Payment Inclusions
Time -related overhead includes payment for time -related field- and home -office overhead for the
time required to complete the work. It does not include non -time -related costs such as
mobilization, licenses, permits, and other charges incurred once during this Contract. Costs for
home -office overhead are not allowed as part of time -related overhead.
Time -related overhead applies only to Contractor and not to other DB-Related Entities.
The field office overhead includes time -related expenses associated with the normal and recurring
construction activities not directly attributed to the Work under this Contract, including:
1. Salaries, benefits, and equipment costs of:
1.1. Project managers
1.2. General superintendents
1.3. Field office managers
1.4. Field office staff assigned to the project
2. Rent
3. Utilities
4. Maintenance
5. Security
6. Supplies
7. Office equipment costs for the project's field office
The home -office overhead includes the fixed general and administrative expenses for operating
your business, including:
General administration
Insurance
Personnel and Subcontract administration
Purchasing
Accounting
Project engineering and estimating
Time -related overhead does not include the following costs:
Home -office overhead expenses specifically related to:
Your other contracts or other businesses
Equipment coordination
Material deliveries
Consultant and legal fees
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 52 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
Non -time -related costs and expenses such as mobilization, licenses, permits, and other charges
incurred once during this Contract.
Additional overhead involved in incentive/disincentive provisions to satisfy and internal milestone
or multiple calendar requirements
Additional overhead involved in performing additional work that is not controlling activity
Overhead costs incurred by your Subcontractors of any tier or Suppliers
9-1.11 D RESERVED
9-1.11 E RESERVED
9-1.12-9-1.22 RESERVED
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 3
Page 53 of 53
Design -Build Contract
Modified Standard Specifications
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 4
PRELIMINARY BASELINE SCHEDULE
(Note: To be inserted subject to review and approval with RCTC1
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 4
Page 1 of 1
Design -Build Contract
Preliminary Baseline Schedule
Draft Execution Copy: February 12, 2020
56800652.v31
Riverside County Transportation Commission
Express Lanes Connector Project
EXHIBIT 5
RESERVED
Exhibit 5 Design -Build Contract
Page 1 of 1 Reserved
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 6
LISTED SUBCONTRACTORS
Entity Name/Contact
Address of
Head Office
California
Contractor
License and
License Limit
(if applicable)
Public
Works
Contractor
Registration
Number
Scope of Work
Is the Firm a
Major
Subcontractor
(Y/N)
Is the
Firm a
Certified
DBE
T.Y. Lin International
3633 E. Inland Empire Blvd., Ste
900
Ontario, CA 91764
Clark Fernon
P: 619-692-1920
F: 619-692-0634
clark.fernon(a�tvlin.com
345 California
Street, Suite
2300
San Francisco,
CA 94104
N/A
10000166691
Design Management,
Structures Lead,
Highway Design,
Drainage Design,
Traffic Design,
Railroad
Coordination,
Environmental
Y
N
RMA Group
12130 Santa Margarita Court
Rancho Cucamonga, CA 91730
Slawek Dymerski
P: 909-989-7151
F: 909-989-4287
elyon@rmacompanies.com
12310 Santa
Margarita Court
Rancho
Cucamonga,
CA 91730
N/A
DIR
1000006493
Quality Validation,
Testing, and
Inspection
Y
N
Arellano Associates, LLC
5851 Pine Avenue, Suite A
Chino Hills, CA 91709
Genoveva L. Arellano, Principal
P: 909-627-2974
F: 909-628-5804
garellano@arellanoassociates.com
5851 Pine
Avenue, Suite A
Chino Hills, CA
91709
N/A
PW-LR-
1000446549
Public Outreach,
Communications,
Stakeholder
Engagement
N
N
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 6
Page 1 of 4
Design -Build Contract
Listed Subcontractors
Draft Execution Copy: February 12, 2020
56800652.v31
Entity Name/Contact
Address of
Head Office
California
Contractor
License and
License Limit
(if applicable)
Public
Works
Contractor
Registration
Number
Scope of Work
Is the Firm a
Major
Subcontractor
(Y/N)
Is the
Firm a
Certified
DBE
CNS Engineers, Inc.
11870 Pierce Street, Suite 265
Riverside, CA 92505
James Lu, CEO/President
P: 951-587-1005
F: N/A
james.lu@cnsenginc.com
11870 Pierce
Street, Suite
265
Riverside, CA
92505
N/A
1000061180
Structural Design
N
N
Converse Consultants
717 S. Myrtle Avenue
Monrovia, CA 91016
Norman Eke, Senior Vice
President
P: 626-930-1260
F: 626-930-1212
neke@converseconsultants.com
717 S. Myrtle
Avenue
Monrovia, CA
91016
N/A
1000001465
Environmental
(Hazardous
Materials)
N .
N
Earth Mechanics, Inc.
17800 Newhope Street, Suite
B Fountain Valley, CA 92708
Hubert Law, PhD, PE,
Principal P: 714-751-3826
F: 714-751-3928
h.law@earthmech.com
17800
Newhope
Street, Suite B
Fountain Valley,
CA 92708
N/A
1000018020
Geotechnical and
Earthquake
Engineering
N
Y
Guida Surveying, Inc.
9241 Irvine Blvd., Suite 100
Irvine, CA 92618
Bernie Mclnally, PLS, Executive
Vice President
P: 949-777-2000
F: 949-777-2050
bmcinally@guidainc.com
9241 Irvine
Blvd., Suite 100
Irvine, CA
92618
N/A
1000006862
Land Surveying and
Mapping
N
N
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 6
Page 2 of 4
Design -Build Contract
Listed Subcontractors
Draft Execution Copy: February 12, 2020
56800652.v31
Entity Name/Contact
Address of
Head Office
California
Contractor
License and
License Limit
(if applicable)
Public
Works
Contractor
Registration
Number
Scope of Work
Is the Firm a
Major
Subcontractor
(Y/N)
Is the
Firm a
Certified
DBE
Iteris, Inc.
1700 Carnegie Ave., Suite 100
Santa Ana, CA 92705
Ramin Massoumi
P: 949-270-9647
F: N/A
sdb@iteris.com
1700 Carnegie
Ave., Suite 100
Santa Ana, CA
92705
N/A
1000014053
Tolling Coordination
and Communication
Design
N
N
LIN Consulting, Inc.
21660 Copley Drive, Suite 270
Diamond Bar, CA 91765
William Sun
P: 909-396-6850
F: 909-396-8150
shou@linconsulting.com
21660 Copley
Drive, Suite 270
Diamond Bar,
CA 91765
N/A
DIR
1000042783
Traffic Engineering
and Electrical and
Lighting
N
N
LSA Associates, Inc.
20 Executive Park, Suite 200
Irvine, CA 92614
Mike Trotta, CEO
P: 949-553-0666
F: N/A
Mike.trotta@lsa.net
20 Executive
Park, Suite 200
Irvine, CA
92614
N/A
N/A
CEQA/NEPA
Environmental
Revalidations,
regulatory permits,
environmental
compliance for air
quality, noise,
biological resources,
and cultural
resources
N
N
Lynn Capouya, Inc.
17992 Mitchell South, Suite 110
Irvine, CA 92614
Lynn Capouya, President
P: 949-756-0150
F: 949-756-1635
17992 Mitchell
South, Suite
110
Irvine, CA
92614
N/A
1000030336
Landscape
Architectural Design
N
N
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 6
Page 3 of 4
Design -Build Contract
Listed Subcontractors
Draft Execution Copy: February 12, 2020
56800652.v31
Entity Name/Contact
Address of
Head Office
California
Contractor
License and
License Limit
(if applicable)
Public
Works
Contractor
Registration
Number
Scope of Work
Is the Firm a
Major
Subcontractor
(Y/N)
Is the
Firm a
Certified
DBE
lynn@Icapouya.com
WRECO
1243 Alpine Road, Suite 108
Walnut Creek, CA 94596
Han -Bin Liang, Ph.D., P.E.
President
P: 925-941-0017
F: 925-941-0018
info@wreco.com
1243 Alpine
Road, Suite 108
Walnut Creek,
CA 94596
N/A
N/A
Hydrology/Hydraulics,
Drainage Design
N
Y
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 6
Page 4 of 4
Design -Build Contract
Listed Subcontractors
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 7
SUBCONTRACTOR IDENTIFICATION FORM
Subcontractor Name,
Address, Telephone
No., License Number
Description of
Subcontract Work
Dollar Amount of
Subcontract
Est. Time of
Performance
T.Y. Lin International
345 California Street,
Suite 2300
San Francisco, CA
94104
(619) 692-1920
Design Management,
Structures Lead,
Highway Design,
Drainage Design,
Traffic Design,
Railroad
Coordination,
Environmental
$8,056,393
40 months
RMA Group
12130 Santa Margarita
Court
Rancho Cucamonga, CA
91730
(909) 989-7151
Quality Validation,
Testing, and
Inspection
$6,172,649
26 months
Arellano Associates, LLC
5851 Pine Avenue, Suite
A
Chino Hills, CA 91709
(909) 627-2974
Public Outreach,
Communications,
Stakeholder
Engagement
$115,000
36 months
CNS Engineers, Inc.
11870 Pierce Street,
Suite 265
Riverside, CA 92505
(951) 587-1005
Structural Design
317,161
24 months
Converse Consultants
717 S. Myrtle Avenue
Monrovia, CA 91016
(626) 930-1260
Environmental
(Hazardous
Materials)
$59.849
3 months
Earth Mechanics, Inc.
17800 Newhope
Street, Suite B
Fountain Valley, CA
92708
(714) 751-3826
Geotechnical and
Earthquake
Engineering
$1,438,541
24 months
Guida Surveying, Inc.
9241 Irvine Blvd., Suite
100
Irvine, CA 92618
Vice President
(949) 777-2000
Land Surveying and
Mapping
$231,065
3 months
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 7
Page 1 of 2
Design -Build Contract
Subcontractor Identification Form
Draft Execution Copy: February 12, 2020
56800652.v31
Iteris, Inc.
1700 Carnegie Ave.,
Suite 100
Santa Ana, CA 92705
(949) 270-9647
Tolling Coordination
and Communication
Design
$563,375
36 months
LIN Consulting, Inc.
21660 Copley Drive,
Suite 270
Diamond Bar, CA 91765
(909) 396-6850
Traffic Engineering
and Electrical &
Lighting
$1,254,226
36 months
LSA Associates, Inc.
20 Executive Park, Suite
200
Irvine, CA 92614
(949) 553-0666
CEQA/NEPA
Environmental
Revalidations,
regulatory permits,
environmental
compliance for air
quality, noise,
biological resources,
and cultural
resources
$564,932
36 months
Lynn Capouya, Inc.
17992 Mitchell South,
Suite 110
Irvine, CA 92614
(949) 756-0150
Landscape
Architectural Design
$131,749
36 months
WRECO
1243 Alpine Road, Suite
108
Walnut Creek, CA 94596
(925) 941-0017
Hydrology/Hydraulics,
Drainage Design
$144,446
3 months
DB Contractor: Myers -Rados, a Joint Venture
Date:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 7
Page 2 of 2
Design -Build Contract
Subcontractor Identification Form
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 8
BONDS
8-A Form of Performance Bond
8-B Form of Payment Bond
8-C Form of Warranty Bond
Riverside County Transportation Commission Exhibit 8 Design -Build Contract
Express Lanes Connector Project Page 1 of 1 Bonds
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 8-A
FORM OF PERFORMANCE BOND
(NOTE TO PROPOSER: EXECUTED COPY OF PERFORMANCE BOND TO BE ATTACHED
TO EXECUTED CONTRACT AS EXHIBIT 8-A]
Bond No.
KNOW ALL MEN BY THESE PRESENTS,
Contract No.: 19-31-074-00
THAT WHEREAS, the Riverside County Transportation Commission, a public entity of the
State of California ("RCTC" as the primary Obligee) has awarded to Myers -Rados, A Joint Venture
("Principal"), a Design -Build Contract (as amended from time to time, the "Contract"), which
Contract is specifically incorporated by reference in this bond, for the design and construction of
the 15/91 Express Lanes Connector Project (the "Project") through a design -build method of
procurement, as authorized under Section 6820 et. seq. of the Public Contract Code;
AND WHEREAS, it is one of the conditions of the Contract that these presents shall be
executed;
NOW THEREFORE, We the undersigned Principal and Travelers Casualty and Surety
Company of America (the "Surety" or "Co -Sureties"), an admitted surety insurer in the State of
California, are held and firmly bound unto RCTC, in the sum of Nine Million and Six Hundred
Thousand Dollars ($9,600,000.00), subject to: (a) increase in accordance with the NTP2 Rider
(form attached, to be executed as a condition to issuance of NTP2) as (the "Bonded Sum"), or (b)
the replacement of this Bond in accordance with Section 10.1.1(b)(ii) of the Contract, to be paid
to RCTC for which payment, well and truly to be made, we bind ourselves, our heirs, executors
and administrators, successors and assigns, jointly and severally firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
1. The Contract is incorporated by reference in this Bond. Unless the context otherwise
requires, capitalized terms used but not separately defined in this Bond have the meaning given
to them in the Contract.
2. If the Principal, or its heirs, executors, administrators, successors or assigns, shall in all
things stand to and abide by and well and truly keep and perform all covenants, conditions,
agreements, obligations and work under the Contract, including any and all amendments,
supplements, and alterations made to the Contract as therein provided, on Principal's part to be
kept and performed at the time and in the manner therein specified, and shall indemnify, defend
and save harmless RCTC and all other Indemnified Parties, as therein stipulated, then this
obligation shall become and be null and void; otherwise, it shall be and remain in full force and
effect.
3. This Bond shall cover the cost to perform all the obligations of the Principal pursuant to
the Contract.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 1 of 8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
4. The obligations covered by this Bond specifically include the performance of each and
every obligation of Principal under the Contract including its liability for Liquidated Damages and
warranties as specified in the Contract, but not to exceed the Bonded Sum.
5. The Surety (or Co -Sureties) agree(s) that no change, extension of time, alterations,
additions, omissions or other modifications of the terms of any of the Contract, or in the work to
be performed with respect to the Project, or in the specifications or plans, or any change or
modification of any terms of payment or extension of time for any payment pertaining or relating
to any of the Contract, or any rescission or attempted rescission of this Bond, solely due to acts
of Principal, or any fraud practiced by any other person other than RCTC seeking to recover from
this Bond, shall in any way affect its obligations on this Bond, and it hereby waives notice of such
changes, extension of time, alterations, additions, omissions or other modifications.
6. The Surety (or Co -Sureties) agree(s) that payments made to contractors and suppliers to
satisfy claims on the payment bond do not reduce the Surety's legal obligations under this Bond.
Payments made to contractors or suppliers under any agreement where the Surety has arranged
for completion of the work to satisfy this Bond will not be considered payment bond claims.
7. Whenever Principal is in default under the Contract, provided that RCTC is not then in
material default under the Contract, the Surety (or Co -Sureties) shall promptly:
(a) remedy such default, or
(b) complete the work and perform the obligations covered by this Bond in accordance
with the terms and conditions of the Contract then in effect, or
(c) select a contractor or contractors to complete all work and perform all obligations
covered by this Bond for which a notice to proceed has been issued in accordance with
the terms and conditions of the Contract, using a contractor or contractors approved by
RCTC (provided, however, that the Surety may not select Principal or any affiliate of
Principal to complete the work and perform the obligations for and on behalf of the Surety
without RCTC's express written consent, in its sole discretion), arrange for a contract that
contains substantially the same terms and conditions of the Contract between such
contractor or contractors and RCTC, and make available as work progresses (even though
there should be a default or a succession of defaults under such contract or contracts of
completion arranged under this paragraph) sufficient funds to pay the cost of completion
less the unpaid balance of the Contract Price; but not exceeding, including other costs
and damages for which the Surety (or Co -Sureties) is (are) liable hereunder, the Bonded
Sum.
8. If Surety does not proceed as provided in Paragraph 7 of this Bond with reasonable
promptness, Surety shall be deemed to be in default on this Bond fifteen days after receipt of an
additional written notice from RCTC to Surety demanding that Surety perform its obligations under
this Bond, and RCTC shall be entitled to enforce any remedy available to RCTC.
9. The guarantees contained herein shall survive Final Acceptance of the Work called for in
the Contract with respect to those obligations of Principal which survive such Final Acceptance.
10. [Use in case of multiple or co -sureties] The Co -Sureties agree to empower a single
representative with authority to act on behalf of all of the Co -Sureties with respect to this Bond,
so that RCTC will have no obligation to deal with multiple sureties under this Bond. All
correspondence from RCTC to the Co -Sureties and all claims under this Bond shall be sent to
such designated representative. The designated representative may be changed only by delivery
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 2 of 8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
of written notice (by personal delivery or by certified mail, return receipt requested) to RCTC
designating a single new representative, signed by all of the Co -Sureties. The initial
representative shall be
IN WITNESS WHEREOF, We have hereunto set our hands and seals on this day of
, 20 .
Correspondence or claims relating to this Bond
should be sent to the Surety (or Sureties at the
following address:
[Note: If more than one surety, then
add appropriate number of lines to
signature block.]
(Principal's name, title, and signature)
Surety
By:
Attorney -in -Fact
NOTE: Signatures of those executing for the Surety (or Co -Sureties) must be properly
acknowledged, and a Power of Attorney attached.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 3 of 8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
) ss.
COUNTY OF
On before me, , a notary
public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 4of8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
FORM OF MULTIPLE OBLIGEE RIDER
(Performance Bond)
MULTIPLE OBLIGEE RIDER
This Rider is executed concurrently with and shall be attached to and form a part of
Performance Bond No.
WHEREAS, on or about the day of , 20_,
, (hereinafter called "Principal"), entered into a Design -Build Contract
bearing the date of , 20_ (as amended from time to time, hereinafter called the
"Contract") with Riverside County Transportation Commission, a public entity of the State of
California (hereinafter called "ROTC" as the primary Obligee) for the design and construction of
the 15/91 Express Lanes Connector Project; and
WHEREAS, initially capitalized terms not otherwise defined herein shall have the
meanings set forth in the Contract; and
WHEREAS, RCTC requires that Principal provide a performance bond and that the
California Department of Transportation (the "Department"), and
be named as additional obligees under the performance bond;
and
WHEREAS, Principal and (the "Surety" or Co -Sureties") have agreed to
execute and deliver this Rider concurrently with the execution of the Performance Bond
No. (hereinafter referred to as the "Performance Bond") upon the conditions herein
stated.
NOW, THEREFORE, the undersigned hereby agree and stipulate as follows:
The Department is hereby added to the Performance Bond as named obligee (hereinafter
referred to as "Additional Obligees").
The Surety shall not be liable under the Performance Bond to RCTC, the Additional
Obligees, or any of them, unless RCTC, the Additional Obligees, or any of them shall make
payments to Principal (or in the case the Surety arranges for completion of the Contract, to the
Surety) in accordance with the terms of the Contract as to payments and shall perform all other
obligations to be performed under the Contract in all material respects at the time and in the
manner therein set forth such that no material default by RCTC shall have occurred and be
continuing under the Contract.
The aggregate liability of the Surety under the Performance Bond, to any or all of the
obligees, as their interests may appear, is limited to the penal sum of the Performance Bond. The
Additional Obligees' rights under this Bond are subject to the same defenses Principal and/or the
Surety have against RCTC. The total liability of the Surety shall in no event exceed the amount
recoverable from Principal by RCTC under the Contract.
The Surety may, at its option, make any payments under the Performance Bond by check
issued jointly to all of the obligees.
It is further understood and agreed that nothing contained in this Rider shall be held to
change, alter or vary the terms of the attached Performance Bond except as set forth hereinabove.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 5 of 8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
In the event of a conflict between the Performance Bond and this Rider, this Rider shall govern
and control. All references to the Performance Bond, either in the Performance Bond or in this
Rider, shall include and refer to the Performance Bond as supplemented and amended by this
Rider. Except as herein modified, the Performance Bond shall be and remains in full force and
effect.
The Rider may be executed in two or more counterparts, each of which shall be deemed
to be an original, but which together shall constitute one and same instrument.
Signed, sealed and dated this day of , 20_
(Principal) (Seal)
By:
(Title)
(Surety) (Seal)
By:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 6 of 8
Attorney -in -fact
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
FORM OF NTP2 RIDER (OPTIONAL)
To be attached to and form a part of
Bond No.:
(Performance Bond)
Type of
Bond: Performance Bond
dated
effective (Month — Day — Year)
[Principal]
and by , as Surety,
in favor of Riverside County Transportation Commission
(RCTC — PRIMARY OBLIGEE)
and California Department of Transportation
(ADDITIONAL OBLIGEE)
In consideration of the mutual agreements herein contained Principal and the Surety hereby
consent to the following:
The Bonded Sum is hereby increased to the amount of $164,840,000.00.
Nothing herein contained shall vary, alter or extend any provision or condition of this bond
except as herein expressly stated.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 7 of 8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
This rider is
effective (Month — Day — Year)
Signed and
Sealed (Month — Day — Year)
By:
(Principal)
(Surety)
By:
Attorney -in- Fact
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-A
Page 8 of 8
Design -Build Contract
Form of Performance Bond
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 8-B
FORM OF PAYMENT BOND
NOTE TO PROPOSER: EXECUTED COPY OF PAYMENT BOND TO BE ATTACHED TO
EXECUTED CONTRACT AS EXHIBIT 8-B7
Bond No.
KNOW ALL MEN BY THESE PRESENTS,
Contract No.: 19-31-074-00
THAT WHEREAS, the Riverside County Transportation Commission, a public entity of the
State of California ("RCTC" as the primary oblige) has awarded to Myers -Rados, A Joint Venture
("Principal"), a Design -Build Contract (as amended from time to time, the "Contract") for the design
and construction of the 15/91 Express Lanes Connector Project (the "Project") through a design -
build method of procurement, as authorized under Section 6820 et. seq. of the Public Contract
Code;
AND WHEREAS, it is one of the conditions of the Contract that these presents shall be
executed;
NOW THEREFORE, We the undersigned Principal and Travelers Casualty and Surety
Company of America (the "Surety" or "Co -Sureties"), an admitted surety insurer in the State of
California, are held and firmly bound unto RCTC, in the sum of Nine Million and Six Hundred
Thousand Dollars ($9,600,000.00), subject to: (a) increase in accordance with the NTP2 Rider
(form attached hereto, to be executed as a condition to issuance of NTP2) (the "Bonded Sum"),
or (b) the replacement of this Bond in accordance with Section 10.1.2(b)(ii) of the Contract, for
the payment whereof, well and truly to be paid to RCTC, we bind ourselves, our heirs,
successors, executors, administrators, and assigns, jointly and severally firmly by these
presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
1. The Contract is incorporated by reference in this Bond. Unless the context otherwise
requires, capitalized terms used but not separately defined in this Bond have the meaning given
to them in the Contract.lf said Principal, or its subcontractors, or their respective heirs, executors,
administrators, successors or assigns, shall fail to pay:
(a) any of the persons named in California Civil Code section 9100 involved in
prosecution of the Work, including the design and engineering services or construction
services, as provided for in the Contract, or
(b) any amounts due under the Unemployment Insurance Code, with respect to work
or labor performed by such claimant under the Contract or subcontracts, or
(c) any amounts required to be deducted, withheld, and paid over to the Franchise
Tax Board from the wages of employees of the Principal and its subcontractors pursuant
to Revenue and Taxation Code Section 18662 et seq. with respect to such work and labor,
or
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-B
Page 1 of 5
Design -Build Contract
Form of Payment Bond
Draft Execution Copy: February 12, 2020
56800652.v31
(d) anyone required to be paid by law,
then the Surety (or Co -Sureties) herein shall pay for the same, in an aggregate amount
not exceeding the sum specified in this Bond, otherwise the above obligation shall be null
and void. In case suit is brought upon this Bond, the Surety (or Co -Sureties) will pay
reasonable attorney's fee to be fixed by the court.
2. This Bond shall inure to the benefit of any of the persons named in Civil Code section
9100 or anyone required to be paid by law under the Contract so as to give a right of action to
such persons or their assigns in any suit brought upon this Bond.
3. The Surety (or Co -Sureties) agree(s) that no change, extension of time, alterations,
additions, omissions or other modifications of the terms of the Contract, or in the work to be
performed with respect to the Project, or in the specifications or plans, or any change or
modification of any terms of payment or extension of time for any payment pertaining or relating
to the Contract, or any rescission or attempted rescission of this Bond, solely due to acts of
Principal, or any fraud practiced by any other person other than the claimant seeking to recover
from this Bond, shall in any way affect its obligations on this Bond, and it hereby waives notice of
such changes, extension of time, alterations, additions, omissions or other modifications.
4. This Bond shall cover all payment obligations under the Contract.
5. [Use in case of multiple or co-sureties]_The Co -Sureties agree to empower a single
representative with authority to act on behalf of all of the Co -Sureties with respect to this Bond,
so that RCTC and claimants will have no obligation to deal with multiple sureties under this Bond.
All correspondence from RCTC or claimants to the Co -Sureties and all claims under this Bond
shall be sent to such designated representative. The designated representative may be changed
only by delivery of written notice (by personal delivery or by certified mail, return receipt requested)
to RCTC designating a single new representative, signed by all of the Co -Sureties. The initial
representative shall be
IN WITNESS WHEREOF, We have hereunto set our hands and seals on this day of
,20
Correspondence or claims relating to this Bond
should be sent to the Surety (or Sureties at the
following address:
[Note: If more than one surety, then
add appropriate number of lines to
signature block.]
NOTE: Signatures of those executing for the
acknowledged, and a Power of Attorney attached.
Riverside County Transportation Commission
Express Lanes Connector Project
(Principal's name, title, and signature)
Surety
By:
Attorney -in -Fact
Surety (or Co -Sureties) must be properly
Exhibit 8-B
Page 2 of 5
Design -Build Contract
Form of Payment Bond
Draft Execution Copy: February 12, 2020
56800652.v31
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
) ss.
COUNTY OF
On before me, , a notary
public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-B
Page 3 of 5
Design -Build Contract
Form of Payment Bond
Draft Execution Copy: February 12, 2020
56800652.v31
FORM OF NTP2 RIDER (OPTIONAL)
To be attached to and form part of
Bond No.:
(Payment Bond)
Type of
Bond: Payment Bond
dated
effective (Month — Day — Year)
[Principal]
and by , as Surety,
in favor of Riverside County Transportation Commission
(RCTC — PRIMARY OBLIGEE)
and California Department of Transportation
(ADDITIONAL OBLIGEE)
In consideration of the mutual agreements herein contained Principal and the Surety hereby
consent to the following:
The Bonded Sum is hereby increased to the amount of $164,840,000.00.
Nothing herein contained shall vary, alter or extend any provision or condition of this bond
except as herein expressly stated.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-B
Page 4 of 5
Design -Build Contract
Form of Payment Bond
Draft Execution Copy: February 12, 2020
56800652.v31
This rider is
effective (Month — Day — Year)
Signed and
Sealed (Month — Day — Year)
By:
(Principal)
(Surety)
By:
Attorney -in- Fact
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-B
Page 5 of 5
Design -Build Contract
Form of Payment Bond
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 8-C
FORM OF WARRANTY BOND
Contract No. 19-31-074-00
Bond No.
KNOW ALL MEN BY THESE PRESENTS,
THAT WHEREAS, the Riverside County Transportation Commission, a California
public entity (the "Obligee") has awarded to Myers -Rados, A Joint Venture
(the "Principal"), a Design -Build Contract (as amended from time to time, the
"Contract"), which Contract is specifically incorporated by reference in this Bond, for the
design and construction of the 15/91 Express Lanes Connector Project (the "Project")
through a design -build method of procurement, as authorized under Section 6820 et.
seq. of the Public Contract Code;
AND WHEREAS, initially capitalized terms not otherwise defined in this Bond have the
meaning given in the Contract;
AND WHEREAS, as a condition to Final Acceptance and release of the Performance
Bond and Payment Bond, Principal is required to furnish a bond (this "Bond")
guaranteeing the faithful performance of its obligations under the Contract after Final
Acceptance, including payments owing to persons named in California Civil Code
Section 9100;
NOW THEREFORE, We the undersigned Principal and
(the "Surety" or "Co -Sureties"), an admitted surety insurer in the State of California, are
held and firmly bound unto the Obligee, in the sum of Sixteen Million Four Hundred and
Eighty Four Thousand Dollars ($16,484,000.00) (the "Bonded Sum"), for which
payment, well and truly to be made, we bind ourselves, our heirs, executors and
administrators, successors and assigns, jointly and severally firmly by these presents.
THE CONDITION OF THIS BOND IS SUCH THAT, if Principal shall promptly and
faithfully perform all of its obligations under the Contract, as they may be amended or
supplemented, including without limitation the performance of all Plant Establishment
Work, Warranty Work, enforcement of Subcontractor warranties, and payment of claims
as described in paragraph 5 below, then the obligations under this Bond shall be null
and void; otherwise this Bond shall remain in full force and effect, it being expressly
understood and agreed that the liability of Surety for any and all claims hereunder shall
in no event exceed the Bonded Sum.
The following terms and conditions shall apply with respect to this Bond:
1. The Contract is incorporated by reference into this Bond.
2. If the above bound Principal, or its heirs, executors, administrators, successors
or assigns, shall in all things stand to and abide by and well and truly keep and perform
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-C
Page 1 of 7
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
the covenants, conditions, obligations and agreements in the Contract, including any
and all amendments, supplements, and alterations made to the Contract as therein
provided, on the Principal's part to be kept and performed at the time and in the
manner therein specified, and shall indemnify, defend and save harmless the Obligee
and all other Indemnified Parties, as therein stipulated, then this obligation shall become
and be null and void; otherwise, it shall be and remain in full force and virtue.
3. This Bond shall cover the cost to perform all the obligations of the Principal
pursuant to the Contract, including warranty Work. The obligations covered by this
Bond specifically include all payment obligations, liability for damages and warranties as
specified in the Contract, but not to exceed the Bonded Sum.
4. Whenever the Principal shall be, and is declared by the Obligee to be, in default
under the Contract, the Surety (or Co -Sureties) shall promptly:
(a) remedy such default, or
(b) complete the work and perform the obligations covered by this Bond in
accordance with the terms and conditions of the Contract then in effect, or
(c) select a contractor or contractors to complete the work and perform the
obligations covered by this Bond in accordance with the terms and conditions of the
Contract then in effect, using a contractor or contractors approved by the Obligee in its
sole discretion, arrange for a contract that contains substantially the same terms and
conditions of the Contract between such contractor or contractors and the Obligee, and
make available as work progresses (even though there should be a default or a
succession of defaults under such contract or contracts of completion arranged under
this paragraph) sufficient funds to pay the cost of completion less the unpaid balance of
the Contract Price; but not exceeding, including other costs and damages for which the
Surety (or Co -Sureties) is (are) liable hereunder, the Bonded Sum.
5. This Bond shall inure to the benefit of the persons named in Civil Code
Section 9100 or anyone required to be paid by law under the Contract so as to give a
right of action to such persons or their assigns in any suit brought upon this Bond. The
obligations covered by this Bond specifically include:
(a) payments owing to any of the persons named in California Civil Code
Section 9100 involved in prosecution of the Work, including the design and engineering
services or construction services, as provided for in the Contract, or
(b) any amounts due under the Unemployment Insurance Code, with respect
to work or labor performed by such claimant under the Contract or subcontracts, or
(c) any amounts required to be deducted, withheld, and paid over to the
Franchise Tax Board from the wages of employees of the Principal and its
subcontractors pursuant to Revenue and Taxation Code Section 18662 et seq. with
respect to such work and labor, and
(d) any other payments owing to anyone required to be paid by law.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-C
Page 2 of 7
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
In case suit is brought to enforce the provisions of this paragraph 5, the Surety (or Co -
Sureties) will pay a reasonable attorney's fee, to be fixed by the court.
6. The Surety (or Co -Sureties) agree(s) that no change, extension of time,
alterations, additions, omissions or other modifications of the terms of the Contract, or
in the work to be performed with respect to the Project, or in the specifications or plans,
or any change or modification of any terms of payment or extension of time for any
payment pertaining or relating to the Contract, or any rescission of this Bond, solely due
to acts of Principal, or any fraud practiced by any other person other than the claimant
seeking to recover this Bond, shall in any way affect its obligations on this Bond, and it
does hereby waive notice of such changes, extension of time, alterations, additions,
omissions or other modifications.
7. [Use in case of multiple or co -sureties] The Co -Sureties agree to empower a
single representative with authority to act on behalf of all of the Co -Sureties with
respect to this Bond, so that the Obligee and claimants will have no obligation to deal
with multiple sureties hereunder. All correspondence from the Obligee or claimants to
the Co -Sureties and all claims under this Bond shall be sent to such designated
representative. The designated representative may be changed only by delivery of
written notice (by personal delivery or by certified mail, return receipt requested) to the
Obligee designating a single new representative, signed by all of the Co -Sureties. The
initial representative shall be
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-C
Page 3 of 7
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
In witness whereof, we have hereunto set our hands and seals on this
day of
NOTE: Signatures of those executing for the Surety (or Co -Sureties) must be properly
acknowledged, and a Power of Attorney attached.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-C
Page 4 of 7
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
STATE OF )
) ss.
COUNTY OF
On
before me, , a
notary public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(AFFIX NOTARIAL SEAL)
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-C
Page 5 of 7
NOTARY PUBLIC
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
FORM OF MULTIPLE OBLIGEE RIDER
(Warranty Bond)
MULTIPLE OBLIGEE RIDER
This Rider is executed concurrently with and shall be attached to and form a part of
Warranty Bond No.
WHEREAS, on or about the day of , 20 ,
, (hereinafter called the "Principal"), entered into a Design -
Build Contract bearing the date of , 20 (as amended from time to
time, hereinafter called the "Contract") with Riverside County Transportation Authority, a
California public entity (hereinafter called the "Primary Obligee") for the design and
construction of the 15/91 Express Lanes Connector Project (the "Project") through a
design -build method of procurement, as authorized under Section 6820 et. seq. of the
Public Contract Code; and
WHEREAS, initially capitalized terms not otherwise defined herein shall have the
meanings set forth in the Contract; and
WHEREAS, the Primary Obligee requires that the Principal provide a performance bond
and that the California Department of Transportation (the "Department") be named as
additional obligee under the performance bond; and
WHEREAS, the Principal and (the "Surety" or Co -Sureties") have
agreed to execute and deliver this Rider concurrently with the execution of the Warranty
Bond No. (hereinafter referred to as the "Warranty Bond") upon the
conditions herein stated.
NOW, THEREFORE, the undersigned hereby agree and stipulate as follows:
1. The Department is hereby added to the Warranty Bond as named obligee
(hereinafter referred to as "Additional Obligee").
2. The Surety shall not be liable under the Warranty Bond to the Primary Obligee,
the Additional Obligee, or any of them, unless the Primary Obligee, the Additional
Obligee, or any of them shall make payments to the Principal (or in the case the
Surety arranges for completion of the Contract, to the Surety) in accordance with
the terms of the Contract as to payments and shall perform all other obligations
to be performed under the Contract in all material respects at the time and in the
manner therein set forth such that no material default by the Primary Obligee
shall have occurred and be continuing under the Contract.
3. The aggregate liability of the Surety under the Warranty Bond, to any or all of the
obligees, as their interests may appear, is limited to the penal sum of the
Warranty Bond. The Additional Obligees' rights hereunder are subject to the
same defenses the Principal and/or the Surety have against the Primary Obligee.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 8-C
Page 6 of 7
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
The total liability of the Surety shall in no event exceed the amount recoverable
from the Principal by the Primary Obligee under the Contract.
4. The Surety may, at its option, make any payments under the Warranty Bond by
check issued jointly to all of the obligees.
5. It is further understood and agreed that nothing contained in this Rider shall be
held to change, alter or vary the terms of the attached Warranty Bond except as
set forth hereinabove. In the event of a conflict between the Warranty Bond and
this Rider, this Rider shall govern and control. All references to the Warranty
Bond, either in the Warranty Bond or in this Rider, shall include and refer to the
Warranty Bond as supplemented and amended by this Rider. Except as herein
modified, the Warranty Bond shall be and remains in full force and effect.
6. The Rider may be executed in two or more counterparts, each of which shall be
deemed to be an original, but which together shall constitute one and same
instrument.
Signed, sealed and dated this day of , 20 .
Riverside County Transportation Commission
Express Lanes Connector Project
(Principal)
By:
(Seal)
(Title)
(Surety)
(Seal)
By:
, Attorney -in -Fact
Exhibit 8-C
Page 7 of 7
Design -Build Contract
Form of Warranty Bond
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 9
INVOICE AND INVOICE CERTIFICATE
9-A Invoice
9-B Invoice Certificate
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 9
Page 1 of 1
Design -Build Contract
Invoice and Invoice Certificate
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 9-A
INVOICE
DB CONTRACTOR
1234 XXXXX Rd, Suite 123 - City, California ZIP CODE - (999) 999-9999 - Fax: (999) 999-9999 -
www.DesignBuilder.com
DATE: MM/DD/YYYY
Michael Blomquist
Toll Program Director
Riverside County Transportation Commission
4080 Lemon Street, Third Floor
Riverside, California 92502
Attention: Accounts Payable
Reference: DB Invoice
Project Design and Construction (DB) No:
Activities for the 15/91 Express Lanes Connector Project (ELC) Month
Contract No. 19-31-074-00
Invoice # 001; February 20xx
Agency's Project No:
DB Job No:
1
YYYY
XX-XX-XXX-
XX
123456
For professional, technical, and construction services rendered in connection with Design -Build Contract for 15/91
Express Lanes Connector Project. Contract No. 19-31-074-00 (Notice to Proceed # 1 and 2)
Invoice period covered is: January 26, 20xx through February 25, 20xx
ORIGINAL CONTRACT PRICE:
AUTHORIZED CHANGES:
TOTAL CONTRACT PRICE:
TOTAL INVOICE TO DATE:
TOTAL PREVIOUSLY BILLED:
ADJUSTMENT TO PREVIOUS PERIOD $
INVOICE: -
ADJUSTED TOTAL PREVIOUSLY BILLED:
BALANCE REMAINING:
AMOUNT DUE INVOICE # XXX
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 9-A
Page 1 of 2
Design -Build Contract
Invoice
Draft Execution Copy: February 12, 2020
56800652.v31
I certify that the hours and salary rates charged in this invoice are the actual hours worked and rates
paid to the employee(s) listed.
Very truly yours,
DB CONTRACTOR
Project Manager
cc: RCTC, Project Coordinator
cc: PCM, Project Controls Manager
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 9-A Design -Build Contract
Page 2 of 2 Invoice
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 9-B
INVOICE CERTIFICATE
To Owner: RIVERSIDE COUNTY TRANSPORTATION COMMISSION
4080 Lemon Street
Riverside, CA 92502
Contract No. 19-31-074-00
Attention: Accounts Payable Attn: TBD
DB CONTRACTOR
Period covered: MM/26/YYYY to: MM/25/YYYY
Contract Date: mm/dd/yyyy
Current Date: mm/dd/yyyy
DB Contractor Application for Payment
Contract For: DB Contractor XYZ CORPORATION
Address
Contract No. 19-31-074-00
From: DB Contractor
0000 XXXX Road, Ste. 000
City, CA, ZIP CODE
Project Manager XXXX
Total Original Contract:
$ -
Total Authorized Changes:
$ -
Agency's Project No: XX-XX-XXX-XX
Agency's Project No: XX-XX-XXX-XX
DB Contractor Job No: 12345
Total Adjusted Contract:
$ -
Remit To: DB Contractor Operating Account
Bank
Address
Address
MM/26/YYY
Application No.: Y to: MM/25/YYYY
Billed Previously:
$ -
Billed This Period:
$ -
NOTICES TO PROCEED
TOTAL
CONTRACT
CHANGE ORDER SUMMARY
Additions
Deductions
NTP1
NTP2
Total Billed To date:
$
Contract:
$
Contract:
$ -
$ -
Total Change Orders Submitted:
$ -
$ -
Retention: XX%
$ -
Previously
Billed:
$
Previously
Billed:
$ -
$ -
Total Change Orders Pending:
$ -
$ -
Total Billed Less Retention:
$ -
Billed this
Period:
$
Billed this
Period:
$ -
$ -
Total Change Orders Approved:
$ -
$ -
Total Previously Billed Less
Retention:
$
"Net Paid Last Pay Periods"
Contract to
Complete
$
Contract to
Complete
$ -
$ -
TOTAL ADJUSTED CHANGE
$ -
$ -
Current Payment Due This
Period:
$ -
Design and Construction Quality Validation Certificate for Payment In accordance with the Contract, based on on -site observations and the data comprising the above application the Des
DB Contractor's knowledge, information and belief the work has progressed as indicated, the quality of the Work is in accordance with the Contract, and the DB Contractor is entitled to payment of
gn and Construction Quality Validation certifies to Owner that to the best of the
the Amount Certified.
Design Quality Validation:
Date:
By-,
Construction Quality Validation:
Date:
By-,
This certification is not negotiable. The Amount Certified is payable only to the DB Contractor named herein. Issuance of payment, and acceptance of payment are without prejudice o any rights of the Owner or the DB Contractor under this Contract.
The undersigned DB Contractor certifies that to the best of the DB Contractor's knowledge, information, and belief the work covered by this application for Payment has been completed in accordance with the Contract, that all amounts have been paid by the DB Contractor for work for which previous
Certificates for Payment were issued and payments received from the Owner, and that current payment shown herein is now due. All current Subcontractors and vendors invoices are included in this payment request.
DB Contractor:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 9-B
Page 1 of 1
Design -Build Contract
Invoice Certificate
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 10
NTP1 AND NTP2 PAYMENT SCHEDULES
10-A NTP1 Payment Schedule
10-B NTP2 Payment Schedule
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 10
Page 1 of 1
Design -Build Contract
NTP1 and NTP2 Payment Schedules
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 10-A
NTP1 PAYMENT SCHEDULE
Project: 15/91 Express Lanes Connector Project (ELC)
DB Contractor Summary of Tasks
NTP1 Payment Schedule
Reference: Project Design and Construction (DB) DB Invoice No: 1
Activities for the 15/91 Express Lanes Connector Month: MM/YY
Project (ELC)
Contract No. 19-31-074-00 Agency's Project XX XX XXX XX
No:
Invoice # 001; February 20xx DB Job No: 123456
Task Description
CONTRACT
(NTP1)
NTP1
This
Period
NTP1
To Date
NTP1 Balance
Percent
Expended
Total NTP1
Total
This
Period
Total
To Date
Total Balance
A
NTP1
WORK
1
Project Management Plan
$ 280,000.00
$
$
$ 280,000.00
0%
2
Site Documentation
$ 150,000.00
$
$
$ 150,000.00
0%
3
Segment Limits Map and
Submittal Schedule
$ 30,000.00$
-
$
-
$ 3000000
0%
4
Utility Strip Map
$ 200,000.00
$
$
$ 200,000.00
0%
5
Transportation Management Plan
(TMP)
$ 25003000
$
$
$ 25000000
0%
6
Maintenance Work Plan
$ 200,0)0.00
$
$
$ 200,000.00
0%
7
Crisis Communication Plan
$ 30,030.00
$
$
$ 30,000.00
0%
8
Railroad Flagging Plan
$ 20,000.00
$
$
$ 20,000.00
0%
9
TMS Inventory
$ 50,000.00
$
$
$ 50,000.00
0%
10
Drainage Inventory Assessment
Report
$ 5000000
$
-
$
-
$ 5000000
0%
11
Bat Mitigation Plan
$ 40,000.00
$
$
$ 40,000.00
0%
12
Nesting Bird Management Plan
$ 30,030.00
$
$
$ 30,000.00
0%
13
Preliminary DB Contractor's Utility
Conflict Matrix
$ 2000000
$
-
$
-
$ 2000000
0%
14
Draft Geotechnical Execution
Plan
$ 5000000
$
-
$
-
$ 5000000
0%
15
NTP 1 Design and Geotechnical
Work
$ 3,500,000.00
$
-
$
-
$ 3,500,000.00
0%
16
NTP1 Mobilization Work
$ 4,700,000.00
$
$
$ 4,700,000.00
0%
TOTAL NTP # 1
$ 9,600,000.00
$
$
$ 9,600,000.00
0%
Contrail ( 1)
Invdce
This Period
NTP1 ToBalance
Date
0%
$
$
$
$
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 10-A
Page 1 of 1
Design -Build Contract
NTP1 Payment Schedule
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 10-B
NTP2 PAYMENT SCHEDULE
Project: 15/91 Express Lanes Connector Project (ELC)
DB Contractor Summary of Tasks
INTO: To be completed based on Proposal Form J-1]
NTP2 Payment Schedule
(SAMPLE ONLY — DB Contractor to Develop Project Payment Schedule)
Reference: Project Design and Construction (DB)
Activities for the 15/91 Express Lanes Connector Project (ELC)
Contract No. 19-31-074-00
Invoice # 001; February 20xx
DB Invoice No: 1
Month: MM/YY
Agency's Project No: XX-XX-XXX-XX
DB Job No: 123456
Task Description
CONTRACT
(NTP # 2)
NTP#2 This
Period
NTP#2 To
Date
NTP#2 Balance
Total NTP#2
Total This
Period
Total To Date
Total Balance
Percent
Expended
B INDIRECT COSTS
1
Project Management Staff Costs
$ [ 1
$ -
$ -
$ -
2
Documentation
$ [ 1
$ -
$ -
$ _
3
Construction Site Facilities
$ [ 1
$ -
$ -
$ -
4
Project Office
$ L1
$ -
$ -
$ _
5
Partnering and Dispute Resolution Board
$ L1
$ -
$ -
$ _
6
Bond Premiums
6a
Bond Premium for NTP1 Work Effort
$ [ j
$ -
$ -
$ -
6b
Bond Premium for NTP2 Work Effort
$ [ 1
$ -
$ -
$ -
7
Insurance Preniurrr
7a
Insurance Premium NTP1 Work Effort
$ [
$ -
$ -
$ _
7b
Insurance Premium NTP2 Work Effort
$ [ ]
$ -
$ -
$ -
8
NTP 2 Mobilization
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 10-B
Page 1 of 3
Design -Build Contract
NTP2 Payment Schedule
Draft Execution Copy: February 12, 2020
56800652.v31
8a
NTP2 Mobilization (following 5%of Contrail Price being earned on iterrs
other than mobilization)
$ [ 1
$ -
$ -
$ -
8b
NTP2 Mobilization (following 7.5%of Contrail Price being earned on
items other than mobilization)
$ [ 1
$ -
$ -
$ -
8c
NffP2 Mobilization (following 10%of Contract Price being earned on
items other than mobilization)
$ [ 1
$ -
$ -
$ -
9
Subtotal Indirect Costs (Sum Lines B1 — B8c)
$ [ 1
$ -
$ -
$ -
C DESIGN SERVICES
1
Design Management
$ [ 1
$ -
$ -
$ -
2
Surveying
$ [ 1
$ -
$ -
$ -
3
Geotechnical Engineering
$ [ 1
$ -
$ -
$ -
4
Design
$ i
$ -
$ -
$ -
5
Subtotal Design Services (Sum Lines C1 — C4)
$ [ 1
$ -
$ -
$ -
D CONSTRUCTION
1
Water Pollution Control
$ [ 1
$
$
$ -
2
Maintenance of Traffic
$ [ 1
$ -
$ -
$ -
3
F. rthwork
$ [ 1
$ -
$ -
$ -
4
Roadvuay Structural Section
$ [ 1
$ -
$ -
$ -
5
Pavements
$ [ 1
$ -
$ -
$ -
6
Structures
6a
Bridges
$ f 1
$ -
$ -
$ -
6b
Retaining Walls
$ [ 1
$ -
$ -
$ -
6c
Soundwalls
$ [ 1
$ -
$ -
$ -
7
Drainage
$ [ 1
$ -
$ -
$ -
8
TMS/Lighting/Electrical
$ [ 1
$ -
$ -
$ -
9
Signing and Striping
$ f 1
$ -
$ -
$ -
10
Environmental Compliance
$ [ 1
$ -
$ -
$ -
11
Utility Coordination, Protection, Adjustment and Relocations
$ f 1
$ -
$ -
$ -
12
TCS Infrastructure
$ [ 1
$ -
$ -
$ -
13
Express Lane Closures
$ f
$ -
$ -
$ -
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 10-B
Page 2 of 3
Design -Build Contract
NTP2 Payment Schedule
Draft Execution Copy: February 12, 2020
56800652.v31
14
Plant Establishment
$ [ l
$ -
$ -
$ -
15
Aesthetics and Replacement Plantings
$ [ 1
$ -
$ -
$ -
16 Subtotal Construction (Sum Lines D1 through D15)
$ [ ]
$ -
$ -
$ -
TOTAL NTP # 2 (Line B9 + Line C4 + Line D16)
$ [ l
$
$
$ -
Contract
(NTP#2)
Invoice This
Period
NTP#2
To Date
Balance
$ [ l
$ -
$ -
$ -
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 10-B
Page 3 of 3
Design -Build Contract
NTP2 Payment Schedule
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 11
DISPUTES REVIEW BOARD AGREEMENT
THIS DISPUTES REVIEW BOARD AGREEMENT ("Agreement") is made and entered into this
day of , 20_, among the Riverside County Transportation Commission
("RCTC"), Myers -Rados, A Joint Venture ("DB Contractor"), and
(collectively, the "Board Members"), with reference to the following facts:
A. RCTC and DB Contractor have entered into that certain Design -Build Contract No.
19-31-074-00 dated as of (as amended from time to time, the "Contract"). Pursuant to
the Contract, DB Contractor has agreed to furnish the design for and to construct a new south to
west/east to north express lanes connector between 15 Express Lanes and 91 Express Lanes,
including collateral work along the 15 Express Lanes and 91 Express Lanes, otherwise known as
the 15/91 Express Lanes Connector Project (the "Project").
B. The Contract provides for the establishment and operation of a Disputes Review
Board ("Board") to assist in resolving Disputes among RCTC, DB Contractor, and others in
respect to the Project.
C. Capitalized terms used but not defined in this Agreement shall have the meanings
set forth in Exhibit 1 to the Contract.
NOW, THEREFORE, in consideration of the terms, conditions, covenants and agreements
contained herein, the parties to the Agreement agree as follows:
SECTION 1. ESTABLISHMENT OF BOARD
1.1 The Board shall begin operation upon execution of this Agreement by RCTC, DB
Contractor, and the first two Board Members, and shall terminate upon completion of all work
required to be performed by the Board under this Agreement unless sooner terminated in
accordance with this Agreement or applicable law. The Board shall initially consist of two
members, one selected by RCTC and one selected by the DB Contractor. The first duty of the
Board shall be to select its third member as provided in Section 24 of the Contract. A copy of
Section 24 of the Contract is attached hereto as Exhibit A (and shall be applicable with respect to
Disputes under the Contract).
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 any DB-Related Entity, any Affiliate,
the Project and Construction Manager ("PCM"), or the Contract, except for payment for serving
on the Board;
(b) Has not been employed, and his/her employer has not been employed, by
RCTC, the California Department of Transportation ("Department"), any DB-Related Entity, any
Affiliate, or PCM, within two years prior to award of the Contract, except for fee -based consulting
services on other projects which are disclosed to all parties and not objected to by any party;
(c) Has not had substantial prior involvement in the Project, and has not had
any involvement in the Project or with RCTC, Department, any DB-Related Entity, any Affiliate,
or PCM of a nature that could affect his/her ability to impartially resolve Disputes;
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 11
Page 1 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
(d) Shall not accept employment by RCTC, Department, any DB-Related
Entity, any Affiliate, or PCM during the term of the Contract and for as long thereafter as any
Dispute submitted to the Board remains outstanding under the Contract, except as a member of
other disputes boards; and
(e) Shall not discuss employment, nor make any agreement regarding
employment with RCTC, Department, any DB-Related Entity, any Affiliate, or PCM during the
term of the Contract and for as long thereafter as any Dispute submitted to the Board remains
outstanding under the Contract, except as a member of other disputes boards.
1.3 Prior to hearing the first Dispute, and thereafter upon request of RCTC or
DB Contractor from time to time, each Board Member shall provide RCTC and DB Contractor a
declaration under penalty of perjury affirming that such member meets the qualifications set forth
in Section 1.2 of this Agreement, and agrees to be bound by the terms of the Contract and this
Agreement. Each Board Member shall promptly notify RCTC and DB Contractor if any
circumstances are likely to prevent a prompt 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.
SECTION 2. BOARD ORGANIZATION AND RESPONSIBILITIES
2.1 The Board is organized in accordance with Section 24 of the Contract, for the
purposes described under the Contract. The Board shall fairly and impartially consider Disputes
that arise under the Contract and shall provide written decisions for resolution of such Disputes
("Recommendations" or "final decisions," as applicable), in accordance with Section 24 of the
Contract. 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 may 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 Dispute. All reasonable efforts shall be made to allow
the parties to the Agreement to raise issues at such 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. In such a case, a special site visit shall be scheduled at the
request of RCTC, DB Contractor, or any Board Member. Representatives of RCTC and DB
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; except that either party may seek such advice or consultation from
the entire Board, at a Board meeting, after first giving Notice to all interested parties. A Disputes
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 Notice of
withdrawal to ROTC, DB Contractor and the other Board Members, which Notice shall specify a
withdrawal date at least 30 days following the date of delivery of the Notice. In addition, a member
may be terminated by RCTC or DB Contractor if at any time that member fails to meet the
qualifications set forth in Section 24.3.1 of the Contract. Should the need arise to appoint a
replacement Board Member, the replacement member shall be appointed in the same manner as
provided by the 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
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 11
Page 2 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
be completed within 30 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 RCTC and DB Contractor each 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
executed establishing the new board, and except as otherwise mutually agreed by RCTC and DB
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. Nothing shall prohibit a party from reappointing its current member.
2.6 The personal services of the Board Member are a condition to receiving payment
under this Agreement. No Board Member shall assign any of his or her work pursuant to this
Agreement without the prior written consent of both RCTC and DB 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 RCTC or DB Contractor. No
Board Member will be entitled to any employee benefits.
SECTION 3. HEARINGS AND DECISIONS
3.1 Each Dispute under the Contract shall be heard by the Board as provided in
Section 24 of the Contract.
3.2 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. Each party
shall retain the right to discovery as provided in the Contract and to present its witnesses and
evidence in its own discretion, within the parameters established by the Board.
3.3 Upon receipt by the Board of a "complaint" pursuant to Section 24.4.3 of the
Contract, either from DB Contractor or RCTC, the Board 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 RCTC and DB 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.
3.4 The Board shall convene to consider questions presented to it and shall at the
conclusion of each hearing either provide the Recommendation or final decision, as applicable,
or advise the parties when the Recommendation or final decision will be forthcoming.
SECTION 4. PROVISION OF DOCUMENTS TO BOARD
4.1 RCTC shall furnish each Board Member one copy of the Contract and other
documents RCTC has that are pertinent to the Board's work.
4.2 DB Contractor shall furnish to each Board Member one copy of all documents it
might have, other than those furnished by RCTC, that are pertinent to the Board's work.
SECTION 5. EXPENSES
5.1 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
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 11
Page 3 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
Member agreed to among RCTC, DB Contractor, and the Board Member, and RCTC and DB
Contractor shall each pay its share of such payments in accordance with Section 24.8 of the
Contract.
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 RCTC 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.
SECTION 6. DISPUTES INVOLVING OTHER PARTIES
6.1 The parties to this Agreement acknowledge that certain third parties (including
utility owners, Toll Services Provider, Other RCTC Contractors, public agencies, etc. with which
RCTC is in contract ("Third Parties")) may subject themselves to the jurisdiction of the Disputes
Board for certain disputes that affect such Third Parties.
6.2 In general, such disputes shall be heard by the then existing, three Board
Members, appointed as described above and in accordance with the terms of the Contract, this
Agreement, and the applicable contract between RCTC and the Third Party. Accordingly, the
Third Party shall be deemed to have selected this option:
(a) Unless the Third Party delivers 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 Notice to Third Party describing the dispute and
stating that Third Party is a necessary party to the dispute resolution procedure; or
(b) If Third Party fails to select a qualified consultant/Board Member, as
described below, within seven days after delivery of Notice of intent to select such person.
6.3 If, however, the Third Party elects not to use the existing Board, then the parties
to this Agreement shall modify the membership of the Board with respect to the dispute(s)
involving the Third Party, as follows (but only if and to the extent the following rights are provided
to the Third Party under its contract with RCTC):
(a) Third Party may select an advisor who shall act as a non -voting consultant
to the Board with respect to the dispute; or
(b) Third Party may select a fourth Board Member who shall have the right to
participate in the decision -making process under this Agreement with respect to such dispute; or
(c) With respect to disputes which do not involve DB Contractor, the Third
Party shall have the right to appoint a Board Member who shall replace the Member appointed
by the DB Contractor.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 11
Page 4 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
6.4 In selecting a non -voting consultant/Board Member, the Third Party shall be
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.
6.5 Any non -voting consultant or Board Member selected by Third Party shall be
required to meet the qualifications for Board Members set forth in this Agreement and the Contract
and shall execute and agree to be bound by the terms of this Agreement as to disputes involving
the Third Party. In the event the Third Party selects the option under clause (b) of Section 6.3,
the fifth Board Member shall be selected by RCTC. Disputes regarding appointment of such
Members shall be subject to the dispute resolution procedures set forth in Section 24.4 of the
Contract.
6.6 Expenses of the Board payable by Third Party shall be as follows:
(a) If Section 6.2 applies, Third Party shall share equally the costs and
expenses for the Board in accordance with Section 24.8 of the Contract; or
(b) If clauses (a), (b), or (c) of Section 6.3 apply, Third Party shall be
responsible for paying the costs and expenses for the consultant or for the Board Member that 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 24.8 of the Contract, together with a
proportionate share of any common costs allocable to the parties to a dispute under the Contract.
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 Third Party resulting
from the Board's expertise and familiarity with the Project and the expenditures previously
incurred by RCTC and DB Contractor to develop such expertise and familiarity.
6.7 The provisions set forth in this Section 6 shall supersede any provisions to the
contrary contained in Section 19 of the Contract.
SECTION 7. TERM
This Agreement shall commence upon execution hereof by the DB Contractor, RCTC, and
the first two members of the Board. The parties to this Agreement anticipate that the Board shall
continue to operate on a regular basis through the Contract's Warranty Period. The foregoing is
subject to the right of RCTC and DB Contractor to terminate the services of Board Members as
specified in this Agreement.
SECTION 8. MISCELLANEOUS
8.1 The parties intend for Section 24 of the Contract and the other terms of this
Agreement to be complementary. Except as otherwise specifically provided in this Agreement, in
the event of any conflict between this Agreement and said Section 24, Section 24 shall control.
8.2 Notices under this Agreement shall be sent as provided in Section 27.11 of the
Contract. The addresses for the Board Members are set forth on the signature pages of this
Agreement.
8.3 This Agreement shall be governed by and construed in accordance with the law of
the State of California.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 11
Page 5 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
DB CONTRACTOR:
Myers -Rados, A Joint Venture
By:
Name:
Title:
RCTC RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
ATTEST
Name:
Title:
APPROVED AS TO FORM:
By:
Riverside County Transportation Commission
Express Lanes Connector Project
By:
Name:
Title:
Exhibit 11
Page 6 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
BOARD MEMBERS
Address:
Address:
Address:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 11
Page 7 of 7
Design -Build Contract
Disputes Review Board Agreement
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 12
INSURANCE POLICY REQUIREMENTS
All insurance required under this Contract shall be procured from insurance companies authorized
to do business in California, with an A.M. Best and Company rating level of A-: VI or better, or as
otherwise approved by RCTC. All limits of liability set forth in this Exhibit 12 are in U.S. dollars.
1. Primary Commercial General Liability Insurance
(a) During the period beginning with the issuance of NTP1 and ending upon Final
Acceptance, or for such longer period as otherwise specifically provided for in Section 11 of the
Contract or this Exhibit 12, DB Contractor shall obtain and maintain a policy or policies of
commercial general liability insurance for bodily injury, property damage, personal injury, and
advertising injury. Coverage shall be written on an occurrence form that shall provide coverage
at least as broad as the coverage provided by ISO form CG 00 01. The Indemnified Parties shall
be additional insureds using ISO form CG 20 1010 01 and ISO form CG 20 37 10 01 for completed
operations. DB Contractor may use alternative forms, provided such form provides equivalent
coverage, as approved by RCTC in its sole discretion. The policy or policies shall be endorsed to
remove exclusions pertaining to railroads. There shall be no coverage -limiting endorsements
unless reviewed and approved by the Indemnified Parties or their representatives. There shall
be no endorsement or modification of the commercial general liability policy limiting the scope of
coverage for liability assumed under an insured contract.
(b) The commercial general liability insurance coverage shall have limits of not less
than $2,000,000 per occurrence, $4,000,000 general aggregate, and $4,000,000
products/completed operations aggregate. The general aggregate limit shall, by endorsement or
otherwise, provide a designated aggregate limit solely for the Project using ISO form CG 25 03
05 09 or equivalent form, unless a project -specific insurance policy is purchased.
(c) Completed operations coverage shall extend for as long as there is any exposure
to liability under a statute of repose or any other applicable statute, either through continuous
maintenance of completed operations coverage in DB Contractor's corporate insurance program
or by purchase of extended completed operations for a project -specific policy If coverage is
maintained by continuous renewal for corporate policies, each subsequent general liability
insurance policy issued through the statute of repose period, commencing with Final Acceptance,
shall be endorsed with ISO form CG 20 37 10 01, or the equivalent, with the Indemnified Parties
scheduled as additional insureds.
(d) No self -insured retentions for general liability insurance policies shall be allowed
unless disclosed to, and approved by, RCTC. All general liability insurance policies shall allow,
but not require, additional insureds, as applicable, to pay self -insured retentions if the named
insured fails to do so; except that for each insurance policy that has an approved self -insured
retention provision, DB Contractor shall be responsible for paying any applicable self -insured
retentions for its insurance policy(ies) and shall be liable to RCTC for said payments in the same
manner as those interests would have been protected had the policies not contained a self -
insured retention provision. Any deductible or self -insured retention amount shall be shown on
any evidence of insurance provided to RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 12
Page 1 of 6
Design -Build Contract
Insurance Policy Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
2. Workers' Compensation/Employer's Liability Insurance
During all phases of the Project, or for such longer period as otherwise specifically provided for in
Section 11 of the Contract or this Exhibit 12, DB Contractor shall obtain and maintain and shall
require all Subcontractors of all tiers to obtain and maintain, a policy or policies of insurance
providing workers' compensation statutory benefits and employer's liability in conformance with
the laws of the State. Employer's liability limits shall be no less than $1 million by accident,
$1 million by disease, and $1 million policy limit by disease. DB Contractor, and any
Subcontractors performing Plant Establishment Work, shall maintain such insurance through the
expiration of the Plant Establishment Period. DB Contractor and/or Subcontractor, whichever is
the applicable employer, shall be the named insured on these policies. The workers'
compensation policies shall provide the following:
(a) A provision extending coverage to all states operations on an "if any" basis;
(b) Coverage for liability under the United States Longshore and Harbor Workers'
Compensation Act, by adding a Longshore and Harbor Workers' Compensation Act coverage
endorsement (WC 00 01 06 A) on an "if any" basis; and
(c) Coverage for liability under Title 46 of the United States Code § 688 ("Jones Act")
on an "if any" basis, if appropriate.
3. Automobile Liability Insurance
(a) DB Contractor shall obtain and maintain, and shall require all Subcontractors of all
tiers to obtain and maintain, a business auto liability policy or policies using ISO form CA 00 01
or other form providing coverage at least as broad. Each policy shall cover accidental death,
bodily injury, and property damage liability arising from the ownership, maintenance, or use of all
owned, non -owned, and hired vehicles connected with performance of the Work, including loading
and unloading. DB Contractor's auto liability policies shall cover "any auto" ("symbol 1"). For DB
Contractor or any Subcontractor of any tier, who will be involved in any way with the transportation
of Hazardous Materials using its own vehicles, pollution liability coverage at least as broad as that
provided under the ISO pollution liability -broadened coverage for covered autos endorsement (CA
99 48) shall be endorsed on the policy.
(b) DB Contractor's automobile liability coverage shall have a combined single limit
per policy period of not less than $10,000,000 per accident or shall be scheduled under the excess
or umbrella liability policies. Excess or umbrella policies also shall cover "any auto" ("symbol 1").
Subcontractors' policies shall have a combined single limit of no less than $2,000,000 per
accident. Such limit may be achieved through any combination of primary and following form
excess insurance. At its discretion, DB Contractor may reduce the required combined single limit
to $1,000,000 for a Subcontractor who is unable to obtain the $2,000,000 limit. DB Contractor's
determination regarding any such reductions shall not be interpreted as relieving DB Contractor
or its insurers of any liability otherwise imposed on DB Contractor or its insurers under this
Contract.
(c) DB Contractor and Subcontractors of all tiers shall maintain such insurance
through Final Acceptance; except that such coverage shall be maintained for vehicles used in the
performance of Warranty and any Plant Establishment Work until the expiration of the Warranty
period and Plant Establishment Period, respectively. The required limits can be satisfied by a
combination of a primary policy and an excess policy or policies.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 12
Page 2 of 6
Design -Build Contract
Insurance Policy Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
4. Contractor's Pollution Liability Insurance
(a) During the period beginning with the issuance of NTP1 and continuing until
issuance of NTP2, DB Contractor shall procure and maintain contractor's pollution liability
insurance as specified below. Pollution liability insurance limits for the period prior to issuance of
NTP2 shall be no less than $5,000,000 per claim and aggregate. Each of the Indemnified Parties
shall be an additional insured under such a policy.
(b) During the period beginning with the issuance of NTP2 and ending upon Final
Acceptance or for such longer period as otherwise specifically provided in Section 11 of the
Contract or this Exhibit 12, DB Contractor shall obtain and maintain contractor's pollution liability
(CPL) insurance with a total limit of liability of no less than $10,000,000 per loss and $10,000,000
in the aggregate per policy period.
(c) The CPL policy shall include coverage for cleanup costs, third -party bodily injury
and property damage, provided that the third -party property damage liability coverage includes
loss of use of damaged property or of property that has not been physically injured or destroyed,
resulting from pollution conditions caused by contracting operations. Coverage as required in this
paragraph shall apply to sudden and non -sudden pollution conditions resulting from the escape
or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, gases, waste
materials, or other irritants, contaminants, or pollutants. The CPL shall also provide coverage for
transportation and off -Site disposal of materials and environmental or "natural resource" damage.
(d) Each of the Indemnified Parties shall be an additional insured under such a policy.
The policy shall not contain any provision or exclusion (including any so-called "insured versus
insured" exclusion or "cross -liability" exclusion) the effect of which would be to prevent, bar, or
otherwise preclude any additional insured under the policy from making a claim which would
otherwise be covered by such policy.
(e) If the CPL policy is written on a claims made basis, the policy shall be continuously
renewed for ten years after the expiration of the Warranty Period, with a retroactive date on or
before the first date of any Work performed under this Contract, or shall have an extended
reporting period of no less than 10 years from the expiration of the Warranty Period.
(f) DB Contractor shall require that any Subcontractor that performs environmental
remediation work provide pollution and environmental impairment liability insurance with limits
and scope of coverage appropriate to the exposure.
5. Umbrella or Excess Liability Insurance
(a) During the period beginning with the issuance of NTP1 and continuing until
issuance of NTP2, DB Contractor may use its corporate program of insurance or project -specific
insurance to meet the requirements for umbrella or excess liability insurance as specified below.
Total liability insurance limits, including limits provided by umbrella or excess liability insurance in
place prior to issuance of NTP2, shall be no less than $10,000,000. Each of the Indemnified
Parties shall be an additional insured under such a policy.
(b) During the period beginning with issuance of NTP2 and ending upon Final
Acceptance or for such longer period as otherwise specifically provided for in this Exhibit 12 or
Section 11 of the Contract, DB Contractor shall obtain and maintain an umbrella or excess liability
insurance policy with limits of not less than $200,000,000 that will provide bodily injury, personal
injury and property damage liability coverage at least as broad as the primary coverages set forth
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 12
Page 3 of 6
Design -Build Contract
Insurance Policy Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
above, including commercial general liability and employer's liability in excess of the amounts set
forth in Sections 1 and 2 of this Exhibit 12. DB Contractor may use its corporate insurance
program or a combination of corporate insurance and stand-alone policies to meet this
requirement provided that the limits available for this Project are not subject to erosion by losses
on other projects not related to this Project.
(c) Such policy or policies shall include the following terms and conditions:
i. drop down feature requiring the policy to respond in the event that any primary
insurance limits are exhausted or for occurrences covered by an umbrella policy but not covered
in the underlying insurance;
ii. pay on behalf of wording as opposed to reimbursement;
iii. concurrency of effective dates with primary policies;
iv. the policies shall "follow form" to the underlying primary policies, including the
provision of completed operations coverage to the additional insured Indemnified Parties as
required under Section 1 of this Exhibit 12; and
v. there shall be no "contractors' limitation" endorsements, as described in
Section 1, that have not been reviewed and approved by the Indemnified Parties or their
authorized representatives.
6. Professional Liability Insurance
(a) During all phases of the Project, DB Contractor shall obtain and maintain
contractor's professional liability insurance with limits not less than $10,000,000 per claim and in
the aggregate. If DB Contractor joint ventures with or subcontracts with design professionals or
other professional service providers, the design and other professional service providers shall
obtain and maintain professional liability insurance specific to their profession with limits not less
than $5,000,000 per claim and in the aggregate. DB Contractor may, at its discretion, require
lower limits of professional liability insurance from lower -tier design Subcontractors (e.g., smaller
design firms). No self -insured retention for DB Contractor shall exceed $500,000 without prior
written approval from RCTC, in its good faith discretion.
(b) Coverage shall apply specifically to all professional activities performed under this
Contract. The policy(ies) shall have a retroactive date consistent with the inception of design
and/or project/construction management activities, and no later than the date on which the RFP
was issued. DB Contractor agrees to maintain this required coverage for a period of no less than
five years after Substantial Completion or to purchase an extended reporting period for no less
than five years after Substantial Completion. DB Contractor shall require the design professional
Subcontractors to agree to maintain this coverage for a period of no less than five years after
Substantial Completion or to purchase an extended reporting period for no less than five years
after Substantial Completion. If DB Contractor arranges a project -specific policy to meet this
requirement, that policy shall provide for a total period of no less than ten (10) years, including
policy period and extended reporting period.
7. Builder's Risk
Upon commencement of construction and with approval of RCTC, DB Contractor shall obtain and
maintain a policy of builder's risk insurance for the Project as specified below. The policy may be
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 12
Page 4 of 6
Design -Build Contract
Insurance Policy Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
a DB Contractor corporate master builders risk insurance program or a stand-alone policy as long
as the requirements of this Section 7 of Exhibit 12 are met. The named insureds shall be DB
Contractor, all Subcontractors (excluding those solely responsible for design Work) of any tier,
Suppliers, RCTC, and the Indemnified Parties. The status of the insureds under this requirement
shall not be limited by the phrase "as their interests may appear" or similar language. DB
Contractor is not required to maintain property insurance for any portion of the Project following
acceptance thereof by RCTC, Department or a Local Agency.
(a) Minimum Scope
A builder's risk insurance policy on an "all risk" basis, including earthquake, flood, and
wind storm for those portions of the Project comprising high value assets subject to loss from a
single occurrence. Examples of such assets include materials, temporary buildings, falsework,
bridges, connectors, off ramps, foundations, and other structures or items. DB Contractor may
elect to cover all property at a lower blended rate if such a strategy would result in lower premium
or result in broader coverage at a lower or equivalent premium. Coverage for each asset should
be applicable only for the period of construction of the specific asset and should end when the
asset is put to its intended use or as otherwise approved and accepted by RCTC, which end of
coverage must be approved by RCTC prior to termination thereof.
Policy must include: (i) coverage for any ensuing loss from faulty workmanship,
nonconforming work, omission or deficiency in design or specifications using a form that is no
more restrictive than LEG 3/06; (ii) full collapse; (iii) coverage for removal of debris, subject to a
sub -limit of no less than 25% of the loss, and insuring the buildings, structures, machinery,
equipment, materials, facilities, fixtures and all other properties constituting a part of the Project;
(iv) transit coverage, including ocean marine coverage (unless insured by the Supplier or through
a separate marine cargo policy), with sub -limits sufficient to insure the full replacement value of
any key equipment item; and (v) coverage with sub -limits sufficient to insure the full replacement
value of any property or equipment stored either on or off the Site. Such insurance shall be on a
form reasonably acceptable to RCTC to ensure adequacy of terms and sublimits.
There shall be no coinsurance penalty provision in any such policy. Deductibles or self -
insured retentions shall be no greater than 5% of the total value insured at the time of loss, subject
to a maximum deductible of $2 million. All deductibles or self -insured retentions shall be the
responsibility of DB Contractor.
(b) Minimum Limits
Coverage shall be for the replacement value thereof for "all risks" of direct physical loss
or damage, including earth movement and flood coverage, with a minimum limit of $50,000,000.
8. Railroad Protective Liability
DB Contractor shall provide any coverage as may be required by any railroad as a condition of
the railroad's consent for entry into railroad facilities or property. Such policy shall be effective
during the period any Work is being performed within 50 feet of any railroad right of way. DB
Contractor should obtain quotes for a master RPL policy and choose the most practical and cost-
effective alternative between such a policy versus typical RPL policies, provided that the chosen
policy meets all requirements of the railroad.
9. Aircraft Liability
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 12
Page 5 of 6
Design -Build Contract
Insurance Policy Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
DB Contractor shall provide, or cause to be provided, aircraft liability insurance, with a limit of not
less than $5,000,000 per occurrence or higher limits as may be required by RCTC, in all cases
where any aircraft is used on the Project that is owned, leased or chartered by any DB-Related
Entity, protecting against claims for damages resulting from such use. Any aircraft intended for
use in performance of the Work, the aircraft crew, flight path and altitude, including landing of any
aircraft on the Site or on any property owned by RCTC shall be subject to review and written
acceptance by RCTC prior to occurrence of any such usage. If any aircraft are leased or
chartered with crew and/or pilot, evidence of non -owned aircraft liability insurance will be
acceptable but must be provided prior to use of the aircraft. For use of unmanned aircraft vehicles
(UAV), DB Contractor or applicable subcontractor, may provide insurance either through an
aircraft liability insurance policy, or by endorsement to the DB Contractor's commercial general
liability insurance policy and excess liability policies. Use of unmanned aircraft must comply with
all state and federal rules and regulations, including FAA requirements.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 12
Page 6 of 6
Design -Build Contract
Insurance Policy Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 13
PROPOSAL COMMITMENTS AND ATCS
Exhibit 13-A: Proposal Commitments
Exhibit 13-B: ATCs
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 13
Page 1 of 1
Design -Build Contract
Proposal Commitments and ATCs
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 13-A
DB CONTRACTOR'S PROPOSAL COMMITMENTS
The following pages summarize certain commitments made by DB Contractor in its Proposal
submitted for the Project. The commitments in this Exhibit are included in the Work. This
summary is an overview of certain DB Contractor commitments. Nothing contained in this
Exhibit 13-A shall limit, modify, discharge, eliminate or reduce the requirements of this Contract
or transfer any obligations or risk to RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 1 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
#
Proposal
Location
Proposal Commitment
1.
Volume 2,
Section 1,
Page 1
DB Contractor shall maintain operations at Parkridge Avenue on 1-15 by
providing alternative access points from the median.
2.
Volume 2,
Section 1,
Page 1
DB Contractor shall provide a dedicated Public Information Officer, as
approved by RCTC, to the Project throughout construction until Substantial
Completion as needed.
3.
Volume 2,
Section 1,
Page 2 and
Exhibits
1.1-1.2
DB Contractor shall use good faith efforts in accordance with Good Industry
Practice, as design development warrants to construct the Project in two
major stages, minimizing impacts to the traveling public by maintaining
longer durations of driver expectations with fewer traffic shifts, as shown in
Appendix 1.
4.
Volume 2,
Section 1,
Page 3
DB Contractor shall use good faith efforts in accordance with Good Industry
Practice to construct falsework over westbound SR-91 and southbound 1-15
during the 55-Hour Weekend Closures.
5.
Volume 2,
Section 1,
Pages 3
and 7
DB Contractor shall use crossover lanes to maintain 1-15 EL toll revenue
collection and to minimize closures to the SB 1-15 EL.
The SB 1-15 EL crossover will allow EL to remain open during construction of
falsework over the 1-15 mainline and at Parkridge Avenue.
6.
Volume 2,
Section 1,
Page 7
DB Contractor will not close the EB-91 On -ramp at Main Street during use of
any 55-Hour Weekend Closures.
7.
Volume 2,
Section 1
Page 7
DB Contractor will research traffic counts and perform delay calculations at
each location of potential Permitted EL Lane Closures to determine the
lowest revenue generating potential windows to conduct Permitted EL Lane
Closures.
8.
Volume 2,
Section 1
Page 8
DB Contractor shall prepare and deliver to RCTC, for RCTC review and
comment, a scoping memorandum of proposed staging, potential detour
routes and major General TMP elements prior to developing and submitting
the General TMP in accordance with the Contract.
9.
Volume 2
Section 1,
Page 8
Volume 2,
Section 2,
Page 7
Volume 2,
Section 2,
Page 20
DB Contractor shall hold weekly Traffic Technical Working Group (TWG)
meetings with RCTC, as required. DB Contractor shall include all relevant
DB Contractor staff, Subcontractors and TSP in each TWG meeting. DB
Contractor Traffic Manager will attend all other relevant TWG meetings.
10.
Volume 2
Section 1,
Page 8
DB Contractor shall hold a weekly Toll Coordination TWG meeting with
RCTC, TSP and the ELP DB Contractor, as required.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 2 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
11.
Volume 2
Section 1,
Page 8
DB Contractor shall hold Over the Shoulder (OTS) meetings with third party
agencies at the Co -located Office if the third party agencies are willing.
12.
Volume 2,
Section 1,
Page 12
DB Contractor shall design and construct the westbound SR-91 to include
space for the ultimate extension of the SR-91 EL (as depicted in the SR-91
Ultimate Exhibit) along with a standard 10-foot left shoulder from
approximate station 383+00 to 390+00. The columns of the two connector
structures (SW and EN) will be placed such that a 10' shoulder can be
constructed in the ultimate condition, including consideration for a safety
shape in front of the columns.
13.
Volume 2,
Section 1,
Page 12
Subject to approval by BNSF, DB Contractor will provide pier protection walls
adjacent to BNSF right of way by extending the existing pier protection walls
in front of the new columns.
14.
Volume 2,
Section 1,
Page 12
DB Contractor shall use reasonable efforts to design Bent 5 at the
maintenance road to eliminate the need for an overhang over the Flood
Control Channel.
15.
Volume 2,
Section 1,
Page 13
and 14
DB Contractor acknowledges that corrosive soils exist on Site that will affect
structural design and will design and construct the Project in light of such
soils.
16.
Volume 2,
Section 1,
Page 14
DB Contractor acknowledges that the Reference Documents disclosed
potential conflicts between the westbound SR-91 Temescal Wash overhead
bridge foundations and old foundations that were left in place. DB Contractor
will design and construct the Project in light of such old foundations.
17.
Volume 2,
Section 1,
Page 15
Subject to agreement from RCTC, Caltrans, and PCM, the DB Contractor's
Project Manager will chair bi-weekly Project Development Team meetings
with RCTC, Caltrans, and PCM, as required.
18.
Volume 2,
Section 1,
Page 15
Subject to agreement from regulatory agencies, DB Contractor shall conduct
pre -permit application meetings with required regulatory agencies, as
applicable.
19.
Volume 2,
Section 1,
Page 16
DB Contractor shall, if ATC #1 is implemented, maintain (i) the existing 1-15
and SR-91 shoulders and (ii) the lane configuration for emergency vehicles
during construction until Substantial Completion.
20.
Volume 2,
Section 1,
Page 16
DB Contractor shall implement detours for the southbound 1-15 to eastbound
SR-91 connector loop ramp and the northbound 1-15 to eastbound SR-91
connector to maintain traffic flow during construction. The detours reduce the
construction duration and avoid the use of rapid set concrete.
21.
Volume 2,
Section 1,
Page 19
DB Contractor recognizes the importance of vigilant quality control measures
to minimize cracking in concrete structures.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 3 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
22.
Volume 2,
Section 1,
Page 21
DB Contractor shall use good faith efforts to design drainage inlets at easy to
maintain locations. DB Contractor shall, to the extent practicable, avoid
maintenance intensive BMPs.
23.
Volume 2,
Section 2,
Page 1
DB Contractor shall provide updates of the Project's "Issues Log" and action
plans to RCTC and the Project team during Progress Meetings.
24.
Volume 2,
Section 2,
Page 2
Volume 2,
Section 2,
Page 4
DB Contractor shall, in accordance with Good Industry Practice, use
dynamic monitoring analysis during steel pile installation as per agreement
with the RCTC's and DB Contractor's geotechnical engineers.
25.
Volume 2,
Section 2,
Page 3
DB Contractor shall implement a Communications and Logistics
Management (CALM) TWG process led by a Person approved by RCTC, as
required. The purpose of the CALM TWG shall be to coordinate and
disseminate information and to work directly with RCTC, oversight agencies
and stakeholders.
26.
Volume 2,
Section 2,
Page 4
DB Contractor shall hold bi-weekly MOT coordination meetings with RCTC,
local cities, and emergency responders to gather and incorporate valuable
feedback, as required.
27.
Volume 2,
Section 2,
Page 4
DB Contractor shall use ground penetrating radar surveys, as required, in
addition to potholing to enhance evaluation of potential Utility conflicts.
28.
Volume 2,
Section 2,
Page 4
DB Contractor shall hold weekly Utility coordination meetings, as required.
29.
Volume 2,
Section 2,
Page 4
DB Contractor shall prepare an access and alteration plan for activities in the
Arlington Channel and Temescal Wash Channel.
30.
Volume 2,
Section 2,
Page 5
DB Contractor and RCTC shall implement quarterly formal partnering
sessions, as well as informal partnering through Final Acceptance.
31.
Volume 2,
Section 2,
Page 7
DB Contractor shall include relevant Subcontractors in TWG meetings and
will require Subcontractors to complete
safety, environmental, and quality trainings prior to beginning work.
32.
Volume 2,
Section 2,
Page 10
DB Contractor shall hold weekly quality meetings, as required.
33.
Volume 2,
Section 2,
Page 17
DB Contractor shall maintain a well -organized work site that discourages
unauthorized entry and work disruptions.
34.
Volume 2,
Section 2,
Page 18
DB Contractor shall prepare and obtain necessary approvals for additional
environmental technical studies, including a Supplemental Noise Study
Report, Supplemental Noise Abatement Decision Report, and Supplemental
Visual Impact Memorandum as required for ATC approval.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 4 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
35.
Volume 2,
Section 2,
page 19
DB Contractor's Environmental Compliance Manager shall have the ability to
issue a stop work order should an issue result in potential violation from a
Governmental Entity within the area of the potential violation.
36.
Volume 2,
Section 2,
Page 19
DB Contractor shall, in coordination with RCTC, develop a permitting
checklist to aid in streamlining the Governmental Approval process.
37.
Volume 2,
Section 2,
Page 19
DB Contractor shall, in coordination with RCTC, develop a permitting
strategy that outlines the steps, schedules and desired outcome in order to
procure Governmental Approvals effectively.
38.
Volume 2,
Section 2,
Page 19
DB Contractor shall use Department's PS&E Review Tool during the
environmental review to identify ECR commitments and to confirm that
commitments have been incorporated into each design package.
39.
Volume 2,
Section 2,
Page 20
DB Contractor shall invite TSP to the Project initial scope clarification
meeting, design reviews, Turnover planning, and preparation for the
construction phase.
40.
Volume 2,
Section 2,
Page 20
DB Contractor shall coordinate, meet with and include the TSP so as to
better foster communication, coordination and cooperation with TSP. DB
Contractor shall; i) work with the TSP to identify any critical items or long
lead times with design requirements; ii) grant TSP early access to the Site for
inspections during construction; and iii) will work with TSP to identify points in
the schedule where TSP can have early access to preform investigation,
preliminary work and early start date for major TSP work.
41.
Volume 2,
Section 2,
Page 22
DB Contractor will present the construction critical path during the design
phase to DB Contractor and RCTC team members.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 5 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
APPENDIX 1
Exhibit 1.1 of the Proposal
r®
rliakrrrriA
... II•
u
r
WORN
i
f
ZONE
k
AN-liZZAZAMIN1
it-J-La.
ET
lET
,W11
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 6 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
Exhibit 1.2 of the Proposal
- HEW SI IS TO'NH SR-91
- NEW ffi SRA1 TO NS I15
l
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 13-A
Page 7 of 7
Design -Build Contract
DB Contractor's Proposal Commitments
Draft Execution Copy: February 12, 2020
EXHIBIT 13-B
ATCS
The following table lists DB Contractor's Alternative Technical Concepts (ATCs), which are described
in further detail in the ATC submittals attached as Appendix 1, that DB Contractor may incorporate
into the Project. The Deviations set forth in the ATC submittals are approved by RCTC subject to
satisfaction of any conditions set forth in the letters from RCTC to DB Contractor. Such Deviations,
subject to satisfaction of any listed "conditions," expressly supersede any conflicting provisions in the
Technical Provisions, as provided in Section 1.2 of the Contract. The ATCs, to the extent utilized by
the DB Contractor, shall otherwise meet all requirements of the Contract.
ATC
No. 01
Lower Profile of SB-WB Connector
ATC
No. 04
Use of EPS Blocks as Lightweight Fill
Riverside County Transportation Commission Exhibit 13-B Design -Build Contract
Express Lanes Connector Project Page 1 of 4 ATCs
Draft Execution Copy: February 12, 2020
56800652.v31
ATC 01 - Lower the profile of the SW Connector to tie -into SR-91 and widen Bridge 26
DB Contractor shall implement ATC 01.
DB Contractor represents, warrants and covenants that:
a) Any design exceptions arising out of ATC 01 shall be the sole responsibility and risk
of DB Contractor. DB Contractor shall prepare for and obtain approvals from RCTC,
Department and FHWA of all design exceptions;
b) DB Contractor shall complete a new Toll System CCTV camera line -of -sight study (TP
Section 19.3.3) to determine if the location and height of CCTV cameras identified in
the Tolling Concept Plan will need to change. In such an event of a need for such
changes, all changes will be subject to approval of RCTC and at DB Contractor's risk
and expense;
c) DB Contractor shall provide all the necessary information to amend the existing
Governmental Approvals, including Environmental Approvals, such as a CEQA/NEPA
revalidation, and shall bear the risk of such amendments, revalidations and approvals
as set out in Section 1.9 of the Contract. The revalidation will also need to include a
new Noise Study Report and a new Noise Abatement Decision Report;
d) The proposed widening of the existing W91 Temescal Wash Bridge and Overhead
(Bridge 26) requires additional footing easements within BNSF property. RCTC
acquisition of these additional footing easements will be at DB Contractor's cost and
risk and will be subject to the provisions of Section 8.1.3 of the Contract "Additional
Properties and Access to BNSF Property." DB Contractor shall bear all risk of schedule
and cost impact associated with the acquisition of any Additional Properties arising out
of ATC 01, including Additional Properties relating to implementation of the ATC 01 or
mitigation thereof. The foregoing does not modify or diminish rights to review and
approve any Additional Property acquisition;
e) DB Contractor shall prepare and obtain approval from RCTC and Department for a
geometric approval drawing and corresponding Design Standard Decision Document
which shall otherwise be consistent with the Geometric Approval Drawing and SR-91
Ultimate Exhibit;
f) DB Contractor bears all risks of schedule and cost impact, responsibilities, obligations
and liabilities in connection with ATC 01, including, any impacts associated with
obtaining any Governmental Approvals in connection with the ATC 01 and any
submittal of any additional environmental review, revalidation, supplement or approval
in connection with ATC 01 (including the risk of not successfully obtaining any of the
foregoing); and
g) Except to the extent expressly provided in the Contract, DB Contractor is not entitled
to make any Claim or otherwise seek compensation, time extension, a Change Order
or other rights, remedies or relief against RCTC under the Contract or otherwise at
Law or in equity in connection with ATC 01, including the use and implementation
thereof.
Riverside County Transportation Commission Exhibit 13-B Design -Build Contract
Express Lanes Connector Project Page 2 of 4 ATCs
Draft Execution Copy: February 12, 2020
56800652.v31
ATC 04 — Use Expanded Polystyrene blocks as lightweight fill.
DB Contractor shall implement ATC 04.
DB Contractor represents, warrants and covenants that:
a) Design of the Expanded Polystyrene (EPS) block fill shall conform to the requirements
determined by the Department;
b) No design exceptions resulting from this ATC will be considered or permitted unless
approved by RCTC and Department;
c) EPS shall not be used within a mechanically stabilized earth system;
d) EPS shall not be used within a location that is prone to flooding, as determined by RCTC;
e) EPS shall not be used within an area that is prone to fires, as determined by RCTC,
without additional mitigation measures acceptable to RCTC;
f) EPS shall comply with, at a minimum, Caltrans Non -Standard Special Provision for
Lightweight Fill (EPS GEOFOAM) "19-04G";
DB Contractor bears all risks, responsibilities, obligations and liabilities in connection
with the ATC, including, but not limited, to any impacts associated with obtaining any
Governmental Approvals in connection with ATC 04 and any submittal of any additional
environmental review, revalidation, supplement or approval in connection with ATC 04
(including the risk of not successfully obtaining any of the foregoing); and
h) Except to the extent expressly provided in the Contract, DB Contractor is not entitled to
make any Claim or otherwise seek compensation, time extension, a Change Order or
other rights, remedies or relief against RCTC under the Contract or otherwise at Law or
in equity in connection with ATC 04, including the use and implementation thereof.
g)
Riverside County Transportation Commission Exhibit 13-B Design -Build Contract
Express Lanes Connector Project Page 3 of 4 ATCs
Draft Execution Copy: February 12, 2020
56800652.v31
Appendix 1
ATCs 01 and 04 identified in Section 1.1 of the Proposal are incorporated into this Contract by
reference.
Riverside County Transportation Commission Exhibit 13-B Design -Build Contract
Express Lanes Connector Project Page 4 of 4 ATCs
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 14
FEDERAL REQUIREMENTS
Exhibit Description
Attachment 1 — Reserved
Attachment 2 — Reserved
Attachment 3 — Reserved
Attachment 4 — Reserved
Attachment 5 — Reserved
Attachment 6 — Reserved
Attachment 7 — Compliance with Buy America Requirements
Attachment 8 — Reserved
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 14
Page 1 of 1
No. of Pages
1
2
Design -Build Contract
Federal Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 1 TO EXHIBIT 14
FEDERAL REQUIREMENTS FOR CONSTRUCTION PROJECT ON FEDERAL -AID
HIGHWAY
GENERAL. — The Work herein is subject to the statutes, rules, regulations and required
Contract provisions promulgated by the Federal Government included in this Exhibit 14.
Whenever in said required contract provisions references are made to:
(a) "contracting officer" or "authorized representative" such references shall
be construed to mean RCTC or its Authorized Representative;
(b) "contractor", "prime contractor", "bidder," "proposer," "Federal -aid
construction contractor," "prospective first tier participant," or "First Tier Participant," such
references shall be construed to mean DB Contractor or its Authorized Representative;
(c) "contract," "prime contract," "Federal -aid construction contract," or "design -
build contract," such references shall be construed to mean the Contract between DB
Contractor and RCTC for the Project;
(d) "subcontractor", "supplier", "vendor", "prospective lower tier participant,
"lower tier prospective participant," "Lower tier participant," or "lower tier subcontractor,"
such references shall be construed to mean any Subcontractor or Supplier; and
(e) "department", "agency," "department or agency with which this transaction
originated," "department or agency entering into this transaction," or "contracting agency,"
such references shall be construed to mean RCTC, except where a different department
or agency is specified.
BUY AMERICA REQUIREMENTS — This Contract is subject to 23 CFR § 635.410, Buy
America requirements. The provisions of 23 CFR § 635.410 are incorporated herein by reference.
Riverside County Transportation Commission
Express Lanes Connector Project
Attachment 1 to
Exhibit 14
Page 1 of 1
Design -Build Contract
Federal Requirements for Construction Project
on Federal -Aid Highway
Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 2 TO EXHIBIT 14
RESERVED
Riverside County Transportation Commission Attachment 2 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 1 Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 3 TO EXHIBIT 14
RESERVED
Riverside County Transportation Commission Attachment 3 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 1 Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 4 TO EXHIBIT 14
RESERVED
Riverside County Transportation Commission Attachment 4 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 1 Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 5 TO EXHIBIT 14
RESERVED
Riverside County Transportation Commission Attachment 5 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 1 Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 6 TO EXHIBIT 14
RESERVED
Riverside County Transportation Commission Attachment 6 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 1 Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 7 TO EXHIBIT 14
COMPLIANCE WITH BUY AMERICA REQUIREMENTS
DB Contractor shall comply with the Federal Highway Administration (FHWA) Buy America
Requirement in 23 CFR 635.410, which permits FHWA participation in the Contract only if
domestic steel and iron will be used on the Project. To be considered domestic, all steel and iron
used and all products manufactured from steel and iron must be produced in the United States
and all manufacturing processes for these materials must occur in the United States, with the
exception that pig iron and processed, pelletized and reduced iron ore manufactured outside of
the United States may be used in the domestic manufacturing process for such steel and iron
materials. The application of coatings, such as epoxy coating, galvanizing, painting and other
coating that protects or enhances the value of steel or iron materials shall be considered a
manufacturing process subject to Buy America requirements. This requirement does not preclude
a minimal use of foreign steel and iron materials, provided the cost of such materials does not
exceed 0.1% of the contract price under the Contract.
A Certificate of Compliance shall be furnished for steel and iron materials. The certificates, in
addition to certifying that the materials comply with the specifications, shall specifically certify that
all manufacturing processes for the materials occurred in the United States, except as for the
above exception.
Riverside County Transportation Commission Attachment 7 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 2 Draft Execution Copy: February 12, 2020
56800652.v31
BUY AMERICA CERTIFICATE
Certificate of Compliance
DB Contractor hereby certifies that it will comply with the requirements of 23 U.S.C. 313, and the
applicable regulations in 23 CFR 635.410.
Date:
Signature:
DB Contractor's Name: Myers -Rados, A Joint Venture
Title:
Riverside County Transportation Commission Attachment 7 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 2 of 2 Draft Execution Copy: February 12, 2020
56800652.v31
ATTACHMENT 8 TO EXHIBIT 14
RESERVED
Riverside County Transportation Commission Attachment 8 to Design -Build Contract
Express Lanes Connector Project Exhibit 14 Reserved
Page 1 of 1 Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 15
FORM OF GUARANTY
[EXECUTED COPIES OF GUARANTEES TO REPLACE THIS FORM PRIOR TO EXECUTION
OF THE CONTRACT]
GUARANTY
This Guaranty (the "Guaranty") is made by The Rados Companies, a closely held private
corporation ("Guarantor"), in favor of the Riverside County Transportation Commission, a public
entity of the State of California ("RCTC").
WHEREAS, Myers -Rados, A Joint Venture, as DB Contractor ("DB Contractor"), and
RCTC are parties to that certain DB Contract (the "Contract") pursuant to which the DB Contractor
has agreed to develop, design, and construct the Project. Unless the context otherwise requires,
capitalized terms used but not separately defined in this Guaranty will have the meaning given to
them in the Contract.
To induce RCTC to (i) enter into the Contract; and (ii) consummate the transactions
contemplated thereby, Guarantor has agreed to enter into this Guaranty.
DB Contractor is a joint venture, comprised of Myers & Sons Construction, LLC and
Steven P. Rados, Inc. The Guarantor is a corporation. The execution of the Contract by RCTC
and the consummation of the transactions contemplated by the Contract will materially benefit
Guarantor. Without this Guaranty, RCTC would not have entered into the Contract with DB
Contractor. In consideration of RCTC's execution of the Contract and consummation of the
transactions contemplated by the Contract, Guarantor has agreed to execute this Guaranty.
NOW, THEREFORE, in consideration of the foregoing Recitals, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor
agrees as follows:
1. Guaranty.
a. Guarantor guarantees to RCTC and its successors and assigns the full and prompt
payment and performance when due of all of the obligations of the DB Contractor arising out of,
in connection with, under or related to the Contract (including, without limitation, the DB
Contractor's obligation to make payment to RCTC for Liquidated Damages and indemnity). The
obligations guaranteed pursuant to this Guaranty are collectively referred to in this Guaranty as
the "Guaranteed Obligations."
b. Guarantor covenants to RCTC that if at any time the DB Contractor should default
in the performance when due of, observance when due of, or should commit a breach of, any of
the Guaranteed Obligations, Guarantor shall promptly, upon written notice by RCTC, perform or
pay the Guaranteed Obligations or cause the performance or payment of the Guaranteed
Obligations.
c. Guarantor agrees that, to the extent Guarantor's obligations under this Guaranty
relate to obligations of the DB Contractor which require performance other than the payment of
money, RCTC may proceed against Guarantor to effect specific performance of such obligations
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 1 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
(to the extent that such relief is available). Guarantor agrees to assume or to procure the
assumption of the Contract, and to perform or to procure the performance of all of the terms and
conditions under the Contract should the Contract be disaffirmed or rejected by a trustee or court
in a bankruptcy proceeding involving the DB Contractor, or, at the option of RCTC, Guarantor
shall, in the event of the DB Contractor's bankruptcy, make and enter into or have made and
entered into, by one or more entities reasonably satisfactory to RCTC, new contract documents
for the balance of the term of the Contract, which new contract documents shall be in form and
substance identical to the replaced Contract.
2. Unconditional Obligations. This Guaranty is a guaranty of payment and performance
and not of collection. Except as provided in Section 20, this Guaranty is an absolute,
unconditional and irrevocable guarantee of the full and prompt payment and performance when
due of all of the Guaranteed Obligations, whether or not from time to time reduced or extinguished
or hereafter increased or incurred, and whether or not enforceable against the DB Contractor. If
any payment made by the DB Contractor or any other Person and applied to the Guaranteed
Obligations is at any time annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be repaid or refunded, then, to the extent of such payment
or repayment, the liability of Guarantor will be and remain in full force and effect as fully as if such
payment had never been made. Guarantor covenants that this Guaranty will not be fulfilled or
discharged, except by the complete payment and performance of the Guaranteed Obligations,
whether by the primary obligor or Guarantor under this Guaranty. Without limiting the generality
of the foregoing, Guarantor's obligations under this Guaranty will not be released, discharged or
otherwise affected by:
a. except as to applicable statutes of limitation, failure, omission, delay, waiver or
refusal by DB Contractor to exercise, in whole or in part, any right or remedy held by DB
Contractor with respect to the Contract or any transaction under the Contract;
b. any change in the Contract or the obligations under the Contract, any change in
the existence, structure or ownership of Guarantor or the DB Contractor, or any dissolution,
winding up, liquidation, insolvency, bankruptcy, reorganization or similar proceeding affecting the
DB Contractor, Guarantor or their respective assets or any defense that may arise in connection
with or as a result of such dissolution, winding up, liquidation, insolvency, bankruptcy,
reorganization or other proceeding;
c. the existence of any Claim or set-off which the DB Contractor has or Guarantor
may have against RCTC, whether in connection with this Guaranty or any unrelated transaction,
provided that nothing in this Guaranty will be deemed a waiver by Guarantor of any Claim or
prevent the assertion of any Claim by separate suit;
d. any release of DB Contractor from any liability with respect to the Contract;
e. any failure of consideration or lack of authority of the DB Contractor, any lack of
validity or enforceability, illegality or defect or deficiency, or any other defense to formation of the
Contract (or any term, condition or covenant thereof);
f. any change in the time, manner, terms, place of payment of, or any other term of
all or any of the Guaranteed Obligations, or any other amendment, waiver of, or any consent to
departure from any Contract executed in connection therewith;
g• the incapacity or lack of power or authority of, or dissolution or change in, the
members or shareholders of the DB Contractor;
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 2 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
h. any release or subordination of any collateral then held by RCTC as security for
the performance by DB Contractor of the Guaranteed Obligations; or
any other circumstance that might otherwise constitute a defense available to, or
a discharge of, Guarantor with respect to the Guaranteed Obligations, other than performance or
payment in full of the Guaranteed Obligations.
This Guaranty will in all respects be a continuing, absolute, and unconditional guaranty
irrespective of the genuineness, validity, regularity or enforceability of the Contract, Guaranteed
Obligations or any part thereof or any instrument or agreement evidencing any of the Guaranteed
Obligations or relating thereto, or the existence, validity, enforceability, perfection, or extent of any
collateral therefor or any other circumstances relating to the Guaranteed Obligations, except as
provided in Section 20.
3. Independent Obligations. Guarantor agrees that the Guaranteed Obligations are
independent of the obligations of the DB Contractor and if any default occurs under this Guaranty,
a separate action or actions may be brought and prosecuted against Guarantor whether or not
the DB Contractor is joined therein. RCTC may maintain successive actions for other defaults of
Guarantor. RCTC's rights under this Guaranty will not be exhausted by the exercise of any of its
rights or remedies or by any such action or by any number of successive actions until and unless
all Guaranteed Obligations have been indefeasibly paid and fully performed.
a. Guarantor agrees that RCTC may enforce this Guaranty, at any time and from time
to time, without the necessity of resorting to or exhausting any security or collateral and without
the necessity of proceeding against the DB Contractor. Guarantor waives the right to require
RCTC to proceed against the DB Contractor, to exercise any right or remedy under any of the
Contract or to pursue any other remedy or to enforce any other right.
b. Guarantor will continue to be subject to this Guaranty notwithstanding: (i) any
modification, agreement or stipulation between the DB Contractor and RCTC or their respective
successors and assigns, with respect to any of the Contract or the Guaranteed Obligations;
(ii) any waiver of or failure to enforce the Guaranteed Obligations or any of the terms, covenants
or conditions contained in any of the Contract or any modification thereof; (iii) any release of the
DB Contractor from any liability with respect to any of the Contract; or (iv) any release or
subordination of any collateral then held by RCTC as security for the performance by the DB
Contractor of the Guaranteed Obligations.
c. The Guaranteed Obligations are not conditional or contingent upon the
genuineness, validity, regularity or enforceability of any of the Contract or the pursuit by RCTC of
any remedies which RCTC either now has or may hereafter have with respect thereto under any
of the Contract.
d. DB Contractor and Guarantor acknowledge and agree that Guarantor's obligations
and undertakings under this Guaranty are derivative of, and not in excess of, the Guaranteed
Obligations and Guarantor shall be entitled to all rights and defenses of DB Contractor except as
previously waived or disclaimed in this Guaranty. Notwithstanding any other term or provision of
this Guaranty, in the event that the DB Contractor's obligations have been changed by any
modification, agreement or stipulation between DB Contractor and RCTC or their respective
successors or assigns, the term "Guaranteed Obligations" as used in this Guaranty shall mean
the Guaranteed Obligations as so changed, except that the Guaranteed Obligations shall be
determined without regard to the effect of any such modification, agreement or stipulation in the
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 3 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
context of a bankruptcy or insolvency proceeding in which DB Contractor is the debtor, unless
otherwise specified in the modification, agreement or stipulation.
4. Liability of Guarantor.
a. RCTC may enforce this Guaranty upon the occurrence of a breach by the DB
Contractor of any of the Guaranteed Obligations, notwithstanding the existence of any dispute
between RCTC and the DB Contractor with respect to the existence of such a breach.
b. Guarantor's performance of some, but not all, of the Guaranteed Obligations will
in no way limit, affect, modify or abridge Guarantor's liability for those Guaranteed Obligations
that have not been performed.
c. RCTC, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability of this Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of Guarantor's liability under this Guaranty, from
time to time may (i) with respect to the financial obligations of the DB Contractor, if and as
permitted by the Contract, renew, extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of financial obligations that are Guaranteed
Obligations, and/or subordinate the payment of the same to the payment of any other obligations,
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto,
(iii) request and accept other guarantees of the Guaranteed Obligations and take and hold
security for the payment and performance of this Guaranty or the Guaranteed Obligations,
(iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for performance of the
Guaranteed Obligations, any other guarantees of the Guaranteed Obligations, or any other
obligation of any Person with respect to the Guaranteed Obligations, (v) enforce and apply any
security hereafter held by or for the benefit of RCTC in respect of this Guaranty or the Guaranteed
Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy
that RCTC may have against any such security, as RCTC in its discretion may determine, and
(vi) exercise any other rights available to it under the Contract.
d. This Guaranty and the obligations of Guarantor under this Guaranty will be valid
and enforceable and will not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than indefeasible performance in full of the Guaranteed
Obligations), including without limitation the occurrence of any of the following, whether or not
Guarantor will have had notice or knowledge of any of them: (i) any failure or omission to assert
or enforce an agreement or election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of, any Claim or demand
or any right, power or remedy (whether arising under the Contract, at law, in equity or otherwise)
with respect to the Guaranteed Obligations or any agreement or instrument relating thereto;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including without limitation provisions relating to events of default) of
the Contract or any agreement or instrument executed pursuant thereto; (iii) RCTC's knowledge
of or consent to the change, reorganization or termination of the corporate structure or existence
of the DB Contractor; (iv) any defenses, set -offs or counterclaims that the DB Contractor may
allege or assert against RCTC in respect of the Guaranteed Obligations, except as provided in
Section 20.
5. Waivers. To the fullest extent permitted by law, Guarantor hereby waives and agrees
not to assert or take advantage of:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 4 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
a. any right to require RCTC to proceed against the DB Contractor or any other
Person or to proceed against or exhaust any security held by RCTC at any time or to pursue any
right or remedy under any of the Contract or any other remedy in RCTC's power before
proceeding against Guarantor;
b. any defense that may arise by reason of the incapacity, lack of authority, death or
disability of, or revocation hereby by Guarantor, the DB Contractor or any other Person or the
failure of RCTC to file or enforce a claim against the estate (either in administration, bankruptcy
or any other proceeding) of any such Person;
c. any defense that may arise by reason of any presentment, demand for payment or
performance or otherwise, protest or notice of any other kind or lack thereof;
d. any right or defense arising out of an election of remedies by RCTC even though
the election of remedies, such as non -judicial foreclosure with respect to any security for the
Guaranteed Obligations, has destroyed the Guarantor's rights of subrogation and reimbursement
against the DB Contractor by the operation of Section 580d of the California Code of Civil
Procedure or otherwise;
e. all notices to Guarantor or to any other Person, including, but not limited to, notices
of the acceptance of this Guaranty or the creation, renewal, extension, modification, accrual of
any of the obligations of the DB Contractor under any of the Contract, or of default in the payment
or performance of any such obligations, enforcement of any right or remedy with respect thereto
or notice of any other matters relating thereto;
f. any defense based upon any act or omission of RCTC which directly or indirectly
results in or aids the discharge or release of the DB Contractor, Guarantor or any security given
or held by RCTC in connection with the Guaranteed Obligations;
g. any duty on the part of RCTC to disclose to Guarantor any facts RCTC may now
or hereafter know about the DB Contractor, regardless of whether RCTC has reason to believe
that any such facts materially increase the risk beyond that which Guarantor intends to assume,
has reason to believe that such facts are unknown to Guarantor, or has a reasonable opportunity
to communicate such facts to Guarantor. Guarantor acknowledges that it is fully responsible for
being and keeping informed of the financial condition of the DB Contractor and of all
circumstances bearing on the risk of non-payment of any Guaranteed Obligations;
h. [the fact that Guarantor may at any time in the future dispose of all or part of its
direct or indirect ownership or economic interests in the DB Contractor]; and
any and all suretyship defenses under applicable law.
6. Waiver of Subrogation and Rights of Reimbursement. Until the Guaranteed
Obligations have been indefeasibly paid in full, Guarantor waives any claim, right or remedy which
it may now have or may hereafter acquire against the DB Contractor that arises from the
performance of Guarantor under this Guaranty, including, without limitation, any claim, right or
remedy of subrogation, reimbursement, exoneration, contribution, or indemnification, or
participation in any claim, right or remedy of RCTC against the DB Contractor, or any other
security or collateral that RCTC now has or hereafter acquires, whether or not such claim, right
or remedy arises in equity, under contract, by statute, under common law or otherwise. All existing
or future indebtedness of the DB Contractor or any shareholders, partners, members, joint
venturers of the DB Contractor to Guarantor is subordinated to all of the Guaranteed Obligations
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 5 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
until such time as all Guaranteed Obligations shall have been indefeasibly paid in full. Whenever
and for so long as the DB Contractor shall be in default in the performance of a Guaranteed
Obligation, no payments with respect to any such indebtedness shall be made by the DB
Contractor or any shareholders, partners, members, joint venturers of the DB Contractor to
Guarantor without the prior written consent of RCTC. Any payment by the DB Contractor or any
shareholders, partners, members, joint venturers of the DB Contractor to Guarantor in violation
of this provision shall be deemed to have been received by Guarantor as trustee for RCTC.
7. Cumulative Rights. All rights, powers and remedies of RCTC under this Guaranty will
be in addition to and not in lieu of all other rights, powers and remedies given to RCTC, whether
at law, in equity or otherwise.
8. Notices. All demands, notices and other communications provided for under this
Guaranty shall, unless otherwise specifically provided herein, comply with Section 27.11.1 of the
Contract.
9. No Waiver. Any forbearance or failure to exercise, and any delay by RCTC in exercising,
any right, power or remedy under this Guaranty will not impair any such right, power or remedy
or be construed to be a waiver thereof, nor will it preclude the further exercise of any such right,
power or remedy.
10. Assignability. This Guaranty is binding upon and inures to the benefit of the successors
and assigns of Guarantor and RCTC, but is not assignable by Guarantor without the prior written
consent of RCTC, which consent may be granted or withheld in RCTC's sole discretion. Any
assignment by Guarantor effected in accordance with this Section 10 will not relieve Guarantor of
its obligations and liabilities under this Guaranty.
11. Amendments. No amendment of this Guaranty shall be effective unless in writing and
signed by Guarantor and RCTC. No waiver of any provision of this Guaranty nor consent to any
departure by Guarantor therefrom shall in any event be effective unless such waiver shall be in
writing and signed by RCTC. Any such waiver shall be effective only in the specific instance and
for the specific purpose for which it was given.
12. Captions. The captions in this Guaranty are for convenience only and shall not be
deemed part of this Guaranty or considered in construing this Guaranty.
13. Construction of Agreement. Ambiguities or uncertainties in the wording of this Guaranty
will not be construed for or against any party, but will be construed in the manner that most
accurately reflects the parties' intent as of the date hereof.
14. Representations and Warranties. In addition to the representations and warranties with
respect to solvency set forth in Section 16, Guarantor represents and warrants that:
a. it is a corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and qualified to do business and is in good standing under the laws
of the State of California;
b. it has full power, right and authority to execute, deliver and perform this Guaranty;
c. the execution, delivery, and performance by Guarantor of this Guaranty have been
duly authorized by all necessary corporate action on the part of Guarantor and proof of such
authorization will be provided with the execution of this Guaranty;
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 6 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
d. this Guaranty has been duly executed and delivered and constitutes the legal, valid
and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms;
e. neither the execution nor delivery of this Guaranty nor compliance with or
fulfillment of the terms, conditions, and provisions hereof, will conflict with, result in a material
breach or violation of the terms, conditions, or provisions of, or constitute a material default, an
event of default, or an event creating rights of acceleration, termination, or cancellation, or a loss
of rights under: (1) the certificate of incorporation or by-laws of Guarantor, (2) any judgment,
decree, order, contract, agreement, indenture, instrument, note, mortgage, lease, governmental
permit, or other authorization, right, restriction, or obligation to which Guarantor is a party or any
of its property is subject or by which Guarantor is bound, or (3) any federal, state, or local law,
statute, ordinance, rule or regulation applicable to Guarantor;
f. it now has and will continue to have full and complete access to any and all
information concerning the transactions contemplated by the Contract or referred to therein, the
financial status of the DB Contractor and the ability of the DB Contractor to pay and perform the
Guaranteed Obligations;
g• it has reviewed and approved copies of the Contract and is fully informed of the
remedies RCTC may pursue, with or without notice to the DB Contractor or any other Person, in
the event of default of any of the Guaranteed Obligations;
h. it has made and so long as the Guaranteed Obligations (or any portion thereof)
remain unsatisfied, it will make its own credit analysis of the DB Contractor and will keep itself
fully informed as to all aspects of the financial condition of the DB Contractor, the performance of
the Guaranteed Obligations and of all circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations. Guarantor hereby waives and relinquishes any
duty on the part of RCTC to disclose any matter, fact or thing relating to the business, operations
or conditions of the DB Contractor now known or hereafter known by RCTC;
no consent, authorization, approval, order, license, certificate, or permit or act of
or from, or declaration or filing with, any governmental authority or any party to any contract,
agreement, instrument, lease, or license to which Guarantor is a party or by which Guarantor is
bound, is required for the execution, delivery, or compliance with the terms hereof by Guarantor,
except as have been obtained prior to the date of this Guaranty;
j. there is no pending or, to the best of its knowledge, threatened action, suit,
proceeding, arbitration, litigation, or investigation of or before any Governmental Entity which
challenges the validity or enforceability of this Guaranty;
k. it is not subject to any outstanding judgment, rule, writ, injunction or decree of any
Governmental Entity that adversely affects its ability to perform its obligations under this Guaranty;
and
it derives a substantial direct or indirect economic benefit from the Contract.
15. Limitation by Law. All rights, remedies and powers provided in this Guaranty may be
exercised only to the extent that such exercise does not violate any applicable provision of law,
and all the provisions of this Guaranty are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent necessary so that they will
not render this Guaranty invalid, unenforceable, in whole or in part, or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 7 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
16. Bankruptcy; Post -Petition Interest; Reinstatement of Guaranty; Solvency.
a. The obligations of Guarantor under this Guaranty will not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of the DB Contractor or by any defense which the DB Contractor may have by
reason of the order, decree or decision of any court or administrative body resulting from any such
proceeding. RCTC is not obligated to file any claim relating to the Guaranteed Obligations if the
DB Contractor becomes subject to a bankruptcy, reorganization, or similar proceeding, and the
failure of RCTC so to file will not affect Guarantor's obligations under this Guaranty.
b. Guarantor acknowledges and agrees that any interest on any portion of the
Guaranteed Obligations which accrues after the commencement of any proceeding referred to in
clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of said proceeding, such interest as would have
accrued on such portion of the Guaranteed Obligations if said proceedings had not been
commenced) will be included in the Guaranteed Obligations because it is the intention of
Guarantor and RCTC that the Guaranteed Obligations should be determined without regard to
any rule of law or order which may relieve the DB Contractor of any portion of such Guaranteed
Obligations. Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or any similar person to pay RCTC, or allow the claim of
RCTC in respect of, any such interest accruing after the date on which such proceeding is
commenced.
17. Governing Law. This Guaranty shall be governed by and construed in accordance with
the law of the State of California, without regard to conflict of law principles. The venue of any
court, judicial or referee proceeding under this Contract shall be in Riverside County, California,
unless changed by the judicial officer.
18. Attorneys' Fees. Guarantor agrees to pay to RCTC without demand reasonable
attorneys' fees and all costs and other expenses (whether by lawsuit or otherwise, and including
such fees and costs of litigation, arbitration and bankruptcy, and including appeals) incurred by
RCTC in enforcing, collecting or compromising any Guaranteed Obligation or enforcing or
collecting this Guaranty against Guarantor or in attempting to do any or all of the foregoing.
19. Joint and Several Liability. If the Guarantor is comprised of more than one individual
and/or entity, such individuals and/or entities, as applicable, shall be jointly and severally liable
for the Guaranteed Obligations. If more than one guaranty is executed with respect to the DB
Contractor and the Project, each guarantor under such a guaranty shall be jointly and severally
liable with the other guarantors with respect to the obligations guaranteed under such guaranties.
20. Defenses. Notwithstanding any other provision to the contrary, Guarantor shall be entitled
to the benefit of all defenses available to the DB Contractor under the Contract except (a) those
expressly waived in this Guaranty, (b) failure of consideration, lack of authority of the DB
Contractor and any other defense to formation of the Contract, and (c) defenses available to the
DB Contractor under any federal or state law respecting bankruptcy, arrangement, reorganization
or similar relief of debtors. Action against Guarantor under this Guaranty shall be subject to no
prior notice or demand.
21. Entire Agreement. This Guaranty contains the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements, understandings,
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 8 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
statements, representations and negotiations between the parties with respect to their subject
matter.
22. Severability. If any clause, provision, section or part of this Guaranty is ruled invalid by
a court having proper jurisdiction, it will be adjusted rather than voided, to achieve the intent of
the parties. The invalidity or unenforceability of any such clause, provision, section or part shall
not affect the validity or enforceability of the balance of this Guaranty, which shall be construed
and enforced as if this Guaranty did not contain such invalid or unenforceable clause, provision,
section or part.
23. Additional Guarantor Waivers and Acknowledgements.
a. Guarantor hereby waives any and all defenses it might have that liquidated
damages or stipulated damages constitute a penalty or that they do not bear a reasonable relation
to the actual damages.
b. GUARANTOR ACKNOWLEDGES HAVING READ ALL OF THE PROVISIONS
OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, GUARANTOR
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON EXECUTION OF THIS
GUARANTY. NO FORMAL ACCEPTANCE BY RCTC IS NECESSARY TO MAKE THIS
GUARANTY EFFECTIVE. THIS GUARANTY IS EFFECTIVE AS OF THE DATE HEREOF.
[SIGNATURES ON NEXT PAGE]
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 9 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed and delivered
by its duly authorized officer effective as of this [ 1 day of [ ] 2020.
The Rados Companies
By:
Name:
Title:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 10 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
FORM OF GUARANTY
[EXECUTED COPIES OF GUARANTEES TO REPLACE THIS FORM PRIOR TO EXECUTION
OF THE CONTRACT]
GUARANTY
This Guaranty (the "Guaranty") is made by Myers & Sons Construction, LP ("Guarantor"), in favor
of the Riverside County Transportation Commission, a public entity of the State of California
("RCTC").
WHEREAS, Meyers -Rados, A Joint Venture, as DB Contractor ("DB Contractor"), and
RCTC are parties to that certain DB Contract (the "Contract") pursuant to which the DB Contractor
has agreed to develop, design, and construct the Project. Unless the context otherwise requires,
capitalized terms used but not separately defined in this Guaranty will have the meaning given to
them in the Contract.
To induce RCTC to (i) enter into the Contract; and (ii) consummate the transactions
contemplated thereby, Guarantor has agreed to enter into this Guaranty.
DB Contractor is a joint venture. The Guarantor is a limited partnership. The execution
of the Contract by RCTC and the consummation of the transactions contemplated by the Contract
will materially benefit Guarantor. Without this Guaranty, RCTC would not have entered into the
Contract with DB Contractor. In consideration of RCTC's execution of the Contract and
consummation of the transactions contemplated by the Contract, Guarantor has agreed to
execute this Guaranty.
NOW, THEREFORE, in consideration of the foregoing Recitals, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor
agrees as follows:
24. Guaranty.
a. Guarantor guarantees to RCTC and its successors and assigns the full and prompt
payment and performance when due of all of the obligations of the DB Contractor arising out of,
in connection with, under or related to the Contract (including, without limitation, the DB
Contractor's obligation to make payment to RCTC for Liquidated Damages and indemnity). The
obligations guaranteed pursuant to this Guaranty are collectively referred to in this Guaranty as
the "Guaranteed Obligations."
b. Guarantor covenants to RCTC that if at any time the DB Contractor should default
in the performance when due of, observance when due of, or should commit a breach of, any of
the Guaranteed Obligations, Guarantor shall promptly, upon written notice by RCTC, perform or
pay the Guaranteed Obligations or cause the performance or payment of the Guaranteed
Obligations.
c. Guarantor agrees that, to the extent Guarantor's obligations under this Guaranty
relate to obligations of the DB Contractor which require performance other than the payment of
money, RCTC may proceed against Guarantor to effect specific performance of such obligations
(to the extent that such relief is available). Guarantor agrees to assume or to procure the
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 11 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
assumption of the Contract, and to perform or to procure the performance of all of the terms and
conditions under the Contract should the Contract be disaffirmed or rejected by a trustee or court
in a bankruptcy proceeding involving the DB Contractor, or, at the option of RCTC, Guarantor
shall, in the event of the DB Contractor's bankruptcy, make and enter into or have made and
entered into, by one or more entities reasonably satisfactory to RCTC, new contract documents
for the balance of the term of the Contract, which new contract documents shall be in form and
substance identical to the replaced Contract.
25. Unconditional Obligations. This Guaranty is a guaranty of payment and performance
and not of collection. Except as provided in Section 20, this Guaranty is an absolute,
unconditional and irrevocable guarantee of the full and prompt payment and performance when
due of all of the Guaranteed Obligations, whether or not from time to time reduced or extinguished
or hereafter increased or incurred, and whether or not enforceable against the DB Contractor. If
any payment made by the DB Contractor or any other Person and applied to the Guaranteed
Obligations is at any time annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be repaid or refunded, then, to the extent of such payment
or repayment, the liability of Guarantor will be and remain in full force and effect as fully as if such
payment had never been made. Guarantor covenants that this Guaranty will not be fulfilled or
discharged, except by the complete payment and performance of the Guaranteed Obligations,
whether by the primary obligor or Guarantor under this Guaranty. Without limiting the generality
of the foregoing, Guarantor's obligations under this Guaranty will not be released, discharged or
otherwise affected by:
a. except as to applicable statutes of limitation, failure, omission, delay, waiver or
refusal by DB Contractor to exercise, in whole or in part, any right or remedy held by DB
Contractor with respect to the Contract or any transaction under the Contract;
b. any change in the Contract or the obligations under the Contract, any change in
the existence, structure or ownership of Guarantor or the DB Contractor, or any dissolution,
winding up, liquidation, insolvency, bankruptcy, reorganization or similar proceeding affecting the
DB Contractor, Guarantor or their respective assets or any defense that may arise in connection
with or as a result of such dissolution, winding up, liquidation, insolvency, bankruptcy,
reorganization or other proceeding;
c. the existence of any Claim or set-off which the DB Contractor has or Guarantor
may have against RCTC, whether in connection with this Guaranty or any unrelated transaction,
provided that nothing in this Guaranty will be deemed a waiver by Guarantor of any Claim or
prevent the assertion of any Claim by separate suit;
d. any release of DB Contractor from any liability with respect to the Contract;
e. any failure of consideration or lack of authority of the DB Contractor, any lack of
validity or enforceability, illegality or defect or deficiency, or any other defense to formation of the
Contract (or any term, condition or covenant thereof);
f. any change in the time, manner, terms, place of payment of, or any other term of
all or any of the Guaranteed Obligations, or any other amendment, waiver of, or any consent to
departure from any Contract executed in connection therewith;
g• the incapacity or lack of power or authority of, or dissolution or change in, the
members or shareholders of the DB Contractor;
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 12 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
h. any release or subordination of any collateral then held by RCTC as security for
the performance by DB Contractor of the Guaranteed Obligations; or
any other circumstance that might otherwise constitute a defense available to, or
a discharge of, Guarantor with respect to the Guaranteed Obligations, other than performance or
payment in full of the Guaranteed Obligations.
This Guaranty will in all respects be a continuing, absolute, and unconditional guaranty
irrespective of the genuineness, validity, regularity or enforceability of the Contract, Guaranteed
Obligations or any part thereof or any instrument or agreement evidencing any of the Guaranteed
Obligations or relating thereto, or the existence, validity, enforceability, perfection, or extent of any
collateral therefor or any other circumstances relating to the Guaranteed Obligations, except as
provided in Section 20.
26. Independent Obligations. Guarantor agrees that the Guaranteed Obligations are
independent of the obligations of the DB Contractor and if any default occurs under this Guaranty,
a separate action or actions may be brought and prosecuted against Guarantor whether or not
the DB Contractor is joined therein. RCTC may maintain successive actions for other defaults of
Guarantor. RCTC's rights under this Guaranty will not be exhausted by the exercise of any of its
rights or remedies or by any such action or by any number of successive actions until and unless
all Guaranteed Obligations have been indefeasibly paid and fully performed.
a. Guarantor agrees that RCTC may enforce this Guaranty, at any time and from time
to time, without the necessity of resorting to or exhausting any security or collateral and without
the necessity of proceeding against the DB Contractor. Guarantor waives the right to require
RCTC to proceed against the DB Contractor, to exercise any right or remedy under any of the
Contract or to pursue any other remedy or to enforce any other right.
b. Guarantor will continue to be subject to this Guaranty notwithstanding: (i) any
modification, agreement or stipulation between the DB Contractor and RCTC or their respective
successors and assigns, with respect to any of the Contract or the Guaranteed Obligations;
(ii) any waiver of or failure to enforce the Guaranteed Obligations or any of the terms, covenants
or conditions contained in any of the Contract or any modification thereof; (iii) any release of the
DB Contractor from any liability with respect to any of the Contract; or (iv) any release or
subordination of any collateral then held by RCTC as security for the performance by the DB
Contractor of the Guaranteed Obligations.
c. The Guaranteed Obligations are not conditional or contingent upon the
genuineness, validity, regularity or enforceability of any of the Contract or the pursuit by RCTC of
any remedies which RCTC either now has or may hereafter have with respect thereto under any
of the Contract.
d. DB Contractor and Guarantor acknowledge and agree that Guarantor's obligations
and undertakings under this Guaranty are derivative of, and not in excess of, the Guaranteed
Obligations and Guarantor shall be entitled to all rights and defenses of DB Contractor except as
previously waived or disclaimed in this Guaranty. Notwithstanding any other term or provision of
this Guaranty, in the event that the DB Contractor's obligations have been changed by any
modification, agreement or stipulation between DB Contractor and RCTC or their respective
successors or assigns, the term "Guaranteed Obligations" as used in this Guaranty shall mean
the Guaranteed Obligations as so changed, except that the Guaranteed Obligations shall be
determined without regard to the effect of any such modification, agreement or stipulation in the
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 13 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
context of a bankruptcy or insolvency proceeding in which DB Contractor is the debtor, unless
otherwise specified in the modification, agreement or stipulation.
27. Liability of Guarantor.
a. RCTC may enforce this Guaranty upon the occurrence of a breach by the DB
Contractor of any of the Guaranteed Obligations, notwithstanding the existence of any dispute
between RCTC and the DB Contractor with respect to the existence of such a breach.
b. Guarantor's performance of some, but not all, of the Guaranteed Obligations will
in no way limit, affect, modify or abridge Guarantor's liability for those Guaranteed Obligations
that have not been performed.
c. RCTC, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability of this Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of Guarantor's liability under this Guaranty, from
time to time may (i) with respect to the financial obligations of the DB Contractor, if and as
permitted by the Contract, renew, extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of financial obligations that are Guaranteed
Obligations, and/or subordinate the payment of the same to the payment of any other obligations,
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto,
(iii) request and accept other guarantees of the Guaranteed Obligations and take and hold
security for the payment and performance of this Guaranty or the Guaranteed Obligations,
(iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for performance of the
Guaranteed Obligations, any other guarantees of the Guaranteed Obligations, or any other
obligation of any Person with respect to the Guaranteed Obligations, (v) enforce and apply any
security hereafter held by or for the benefit of RCTC in respect of this Guaranty or the Guaranteed
Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy
that RCTC may have against any such security, as RCTC in its discretion may determine, and
(vi) exercise any other rights available to it under the Contract.
d. This Guaranty and the obligations of Guarantor under this Guaranty will be valid
and enforceable and will not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than indefeasible performance in full of the Guaranteed
Obligations), including without limitation the occurrence of any of the following, whether or not
Guarantor will have had notice or knowledge of any of them: (i) any failure or omission to assert
or enforce an agreement or election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of, any Claim or demand
or any right, power or remedy (whether arising under the Contract, at law, in equity or otherwise)
with respect to the Guaranteed Obligations or any agreement or instrument relating thereto;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including without limitation provisions relating to events of default) of
the Contract or any agreement or instrument executed pursuant thereto; (iii) RCTC's knowledge
of or consent to the change, reorganization or termination of the corporate structure or existence
of the DB Contractor; (iv) any defenses, set -offs or counterclaims that the DB Contractor may
allege or assert against RCTC in respect of the Guaranteed Obligations, except as provided in
Section 20.
28. Waivers. To the fullest extent permitted by law, Guarantor hereby waives and agrees
not to assert or take advantage of:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 14 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
a. any right to require RCTC to proceed against the DB Contractor or any other
Person or to proceed against or exhaust any security held by RCTC at any time or to pursue any
right or remedy under any of the Contract or any other remedy in RCTC's power before
proceeding against Guarantor;
b. any defense that may arise by reason of the incapacity, lack of authority, death or
disability of, or revocation hereby by Guarantor, the DB Contractor or any other Person or the
failure of RCTC to file or enforce a claim against the estate (either in administration, bankruptcy
or any other proceeding) of any such Person;
c. any defense that may arise by reason of any presentment, demand for payment or
performance or otherwise, protest or notice of any other kind or lack thereof;
d. any right or defense arising out of an election of remedies by RCTC even though
the election of remedies, such as non -judicial foreclosure with respect to any security for the
Guaranteed Obligations, has destroyed the Guarantor's rights of subrogation and reimbursement
against the DB Contractor by the operation of Section 580d of the California Code of Civil
Procedure or otherwise;
e. all notices to Guarantor or to any other Person, including, but not limited to, notices
of the acceptance of this Guaranty or the creation, renewal, extension, modification, accrual of
any of the obligations of the DB Contractor under any of the Contract, or of default in the payment
or performance of any such obligations, enforcement of any right or remedy with respect thereto
or notice of any other matters relating thereto;
f. any defense based upon any act or omission of RCTC which directly or indirectly
results in or aids the discharge or release of the DB Contractor, Guarantor or any security given
or held by RCTC in connection with the Guaranteed Obligations;
g. any duty on the part of RCTC to disclose to Guarantor any facts RCTC may now
or hereafter know about the DB Contractor, regardless of whether RCTC has reason to believe
that any such facts materially increase the risk beyond that which Guarantor intends to assume,
has reason to believe that such facts are unknown to Guarantor, or has a reasonable opportunity
to communicate such facts to Guarantor. Guarantor acknowledges that it is fully responsible for
being and keeping informed of the financial condition of the DB Contractor and of all
circumstances bearing on the risk of non-payment of any Guaranteed Obligations;
h. [the fact that Guarantor may at any time in the future dispose of all or part of its
direct or indirect ownership or economic interests in the DB Contractor]; and
any and all suretyship defenses under applicable law.
29. Waiver of Subrogation and Rights of Reimbursement. Until the Guaranteed
Obligations have been indefeasibly paid in full, Guarantor waives any claim, right or remedy which
it may now have or may hereafter acquire against the DB Contractor that arises from the
performance of Guarantor under this Guaranty, including, without limitation, any claim, right or
remedy of subrogation, reimbursement, exoneration, contribution, or indemnification, or
participation in any claim, right or remedy of RCTC against the DB Contractor, or any other
security or collateral that RCTC now has or hereafter acquires, whether or not such claim, right
or remedy arises in equity, under contract, by statute, under common law or otherwise. All existing
or future indebtedness of the DB Contractor or any shareholders, partners, members, joint
venturers of the DB Contractor to Guarantor is subordinated to all of the Guaranteed Obligations
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 15 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
until such time as all Guaranteed Obligations shall have been indefeasibly paid in full. Whenever
and for so long as the DB Contractor shall be in default in the performance of a Guaranteed
Obligation, no payments with respect to any such indebtedness shall be made by the DB
Contractor or any shareholders, partners, members, joint venturers of the DB Contractor to
Guarantor without the prior written consent of RCTC. Any payment by the DB Contractor or any
shareholders, partners, members, joint venturers of the DB Contractor to Guarantor in violation
of this provision shall be deemed to have been received by Guarantor as trustee for RCTC.
30. Cumulative Rights. All rights, powers and remedies of RCTC under this Guaranty will
be in addition to and not in lieu of all other rights, powers and remedies given to RCTC, whether
at law, in equity or otherwise.
31. Notices. All demands, notices and other communications provided for under this
Guaranty shall, unless otherwise specifically provided herein, comply with Section 27.11.1 of the
Contract.
32. No Waiver. Any forbearance or failure to exercise, and any delay by RCTC in exercising,
any right, power or remedy under this Guaranty will not impair any such right, power or remedy
or be construed to be a waiver thereof, nor will it preclude the further exercise of any such right,
power or remedy.
33. Assignability. This Guaranty is binding upon and inures to the benefit of the successors
and assigns of Guarantor and RCTC, but is not assignable by Guarantor without the prior written
consent of RCTC, which consent may be granted or withheld in RCTC's sole discretion. Any
assignment by Guarantor effected in accordance with this Section 10 will not relieve Guarantor of
its obligations and liabilities under this Guaranty.
34. Amendments. No amendment of this Guaranty shall be effective unless in writing and
signed by Guarantor and RCTC. No waiver of any provision of this Guaranty nor consent to any
departure by Guarantor therefrom shall in any event be effective unless such waiver shall be in
writing and signed by RCTC. Any such waiver shall be effective only in the specific instance and
for the specific purpose for which it was given.
35. Captions. The captions in this Guaranty are for convenience only and shall not be
deemed part of this Guaranty or considered in construing this Guaranty.
36. Construction of Agreement. Ambiguities or uncertainties in the wording of this Guaranty
will not be construed for or against any party, but will be construed in the manner that most
accurately reflects the parties' intent as of the date hereof.
37. Representations and Warranties. In addition to the representations and warranties with
respect to solvency set forth in Section 16, Guarantor represents and warrants that:
a. it is a corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and qualified to do business and is in good standing under the laws
of the State of California;
b. it has full power, right and authority to execute, deliver and perform this Guaranty;
c. the execution, delivery, and performance by Guarantor of this Guaranty have been
duly authorized by all necessary corporate action on the part of Guarantor and proof of such
authorization will be provided with the execution of this Guaranty;
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 16 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
d. this Guaranty has been duly executed and delivered and constitutes the legal, valid
and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms;
e. neither the execution nor delivery of this Guaranty nor compliance with or
fulfillment of the terms, conditions, and provisions hereof, will conflict with, result in a material
breach or violation of the terms, conditions, or provisions of, or constitute a material default, an
event of default, or an event creating rights of acceleration, termination, or cancellation, or a loss
of rights under: (1) the certificate of incorporation or by-laws of Guarantor, (2) any judgment,
decree, order, contract, agreement, indenture, instrument, note, mortgage, lease, governmental
permit, or other authorization, right, restriction, or obligation to which Guarantor is a party or any
of its property is subject or by which Guarantor is bound, or (3) any federal, state, or local law,
statute, ordinance, rule or regulation applicable to Guarantor;
f. it now has and will continue to have full and complete access to any and all
information concerning the transactions contemplated by the Contract or referred to therein, the
financial status of the DB Contractor and the ability of the DB Contractor to pay and perform the
Guaranteed Obligations;
g• it has reviewed and approved copies of the Contract and is fully informed of the
remedies RCTC may pursue, with or without notice to the DB Contractor or any other Person, in
the event of default of any of the Guaranteed Obligations;
h. it has made and so long as the Guaranteed Obligations (or any portion thereof)
remain unsatisfied, it will make its own credit analysis of the DB Contractor and will keep itself
fully informed as to all aspects of the financial condition of the DB Contractor, the performance of
the Guaranteed Obligations and of all circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations. Guarantor hereby waives and relinquishes any
duty on the part of RCTC to disclose any matter, fact or thing relating to the business, operations
or conditions of the DB Contractor now known or hereafter known by RCTC;
no consent, authorization, approval, order, license, certificate, or permit or act of
or from, or declaration or filing with, any governmental authority or any party to any contract,
agreement, instrument, lease, or license to which Guarantor is a party or by which Guarantor is
bound, is required for the execution, delivery, or compliance with the terms hereof by Guarantor,
except as have been obtained prior to the date of this Guaranty;
j. there is no pending or, to the best of its knowledge, threatened action, suit,
proceeding, arbitration, litigation, or investigation of or before any Governmental Entity which
challenges the validity or enforceability of this Guaranty;
k. it is not subject to any outstanding judgment, rule, writ, injunction or decree of any
Governmental Entity that adversely affects its ability to perform its obligations under this Guaranty;
and
it derives a substantial direct or indirect economic benefit from the Contract.
38. Limitation by Law. All rights, remedies and powers provided in this Guaranty may be
exercised only to the extent that such exercise does not violate any applicable provision of law,
and all the provisions of this Guaranty are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent necessary so that they will
not render this Guaranty invalid, unenforceable, in whole or in part, or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 17 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
39. Bankruptcy; Post -Petition Interest; Reinstatement of Guaranty; Solvency.
a. The obligations of Guarantor under this Guaranty will not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of the DB Contractor or by any defense which the DB Contractor may have by
reason of the order, decree or decision of any court or administrative body resulting from any such
proceeding. RCTC is not obligated to file any claim relating to the Guaranteed Obligations if the
DB Contractor becomes subject to a bankruptcy, reorganization, or similar proceeding, and the
failure of RCTC so to file will not affect Guarantor's obligations under this Guaranty.
b. Guarantor acknowledges and agrees that any interest on any portion of the
Guaranteed Obligations which accrues after the commencement of any proceeding referred to in
clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of said proceeding, such interest as would have
accrued on such portion of the Guaranteed Obligations if said proceedings had not been
commenced) will be included in the Guaranteed Obligations because it is the intention of
Guarantor and RCTC that the Guaranteed Obligations should be determined without regard to
any rule of law or order which may relieve the DB Contractor of any portion of such Guaranteed
Obligations. Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or any similar person to pay RCTC, or allow the claim of
RCTC in respect of, any such interest accruing after the date on which such proceeding is
commenced.
40. Governing Law. This Guaranty shall be governed by and construed in accordance with
the law of the State of California, without regard to conflict of law principles. The venue of any
court, judicial or referee proceeding under this Contract shall be in Riverside County, California,
unless changed by the judicial officer.
41. Attorneys' Fees. Guarantor agrees to pay to RCTC without demand reasonable
attorneys' fees and all costs and other expenses (whether by lawsuit or otherwise, and including
such fees and costs of litigation, arbitration and bankruptcy, and including appeals) incurred by
RCTC in enforcing, collecting or compromising any Guaranteed Obligation or enforcing or
collecting this Guaranty against Guarantor or in attempting to do any or all of the foregoing.
42. Joint and Several Liability. If the Guarantor is comprised of more than one individual
and/or entity, such individuals and/or entities, as applicable, shall be jointly and severally liable
for the Guaranteed Obligations. If more than one guaranty is executed with respect to the DB
Contractor and the Project, each guarantor under such a guaranty shall be jointly and severally
liable with the other guarantors with respect to the obligations guaranteed under such guaranties.
43. Defenses. Notwithstanding any other provision to the contrary, Guarantor shall be entitled
to the benefit of all defenses available to the DB Contractor under the Contract except (a) those
expressly waived in this Guaranty, (b) failure of consideration, lack of authority of the DB
Contractor and any other defense to formation of the Contract, and (c) defenses available to the
DB Contractor under any federal or state law respecting bankruptcy, arrangement, reorganization
or similar relief of debtors. Action against Guarantor under this Guaranty shall be subject to no
prior notice or demand.
44. Entire Agreement. This Guaranty contains the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements, understandings,
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 18 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
statements, representations and negotiations between the parties with respect to their subject
matter.
45. Severability. If any clause, provision, section or part of this Guaranty is ruled invalid by
a court having proper jurisdiction, it will be adjusted rather than voided, to achieve the intent of
the parties. The invalidity or unenforceability of any such clause, provision, section or part shall
not affect the validity or enforceability of the balance of this Guaranty, which shall be construed
and enforced as if this Guaranty did not contain such invalid or unenforceable clause, provision,
section or part.
46. Additional Guarantor Waivers and Acknowledgements.
a. Guarantor hereby waives any and all defenses it might have that liquidated
damages or stipulated damages constitute a penalty or that they do not bear a reasonable relation
to the actual damages.
b. GUARANTOR ACKNOWLEDGES HAVING READ ALL OF THE PROVISIONS
OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, GUARANTOR
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON EXECUTION OF THIS
GUARANTY. NO FORMAL ACCEPTANCE BY RCTC IS NECESSARY TO MAKE THIS
GUARANTY EFFECTIVE. THIS GUARANTY IS EFFECTIVE AS OF THE DATE HEREOF.
[SIGNATURES ON NEXT PAGE]
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 19 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed and delivered
by its duly authorized officer effective as of this [ 1 day of [ ] 2020.
Myers & Sons Construction, LP
By:
Name:
Title:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 15
Page 20 of 20
Design -Build Contract
Form of Guaranty
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 16
LABOR CODE REQUIREMENTS
A. Worker's Compensation
DB Contractor shall comply with the provisions of Section 3700 of the California 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.
B. Prevailing Wages
Pursuant to the provisions of Section 1773 of the State Labor Code, RCTC has obtained the
general prevailing rate of wages (which rate includes employer payments for health and welfare,
pension, vacation, travel time and subsistence pay as provided for in Section 1773.1 of said Code,
apprenticeship or other training programs authorized by Section 3093 of said Code, worker
protection and assistance programs or committees established under the Federal Labor
Management Cooperation Act of 1978, industry advancement and collective bargaining
agreements administrative fees, provided that these payments are required under a collective
bargaining agreement pertaining to the particular craft, classification, or type of work within the
locality or the nearest labor market area at issue and other similar purposes applicable to the
Work to be done, for straight time, overtime, Saturday, Sunday, and holiday work. The holiday
wage rate listed shall be applicable to all holidays recognized in the collective bargaining
agreement of the particular craft, classification or type of worker concerned; provided that if the
prevailing wage rate is not based on a collectively bargained rate, the holidays upon which the
prevailing rate shall be paid shall be as provided in Section 6700 of the California Government
Code. Copies of the prevailing rates of wages are on file at RCTC's offices, and will be furnished
to DB Contractor and other interested parties on request. For crafts or classifications not shown
on the prevailing wage determinations, DB Contractor may be required to pay the wage rate of
the most closely related craft or classification shown in such determinations for design -build work.
The State prevailing wages to apply to this Contract shall be the DIR wage rates applicable upon
July 10, 2019 or such other date upon which the final RFP is issued.
If the Division of Labor Standards Enforcement determines that employees of any Subcontractor
were not paid the general prevailing rate of per diem wages, DB Contractor shall withhold an
amount of moneys due to the Subcontractor sufficient to pay those employees the general
prevailing wage rate of per diem wages if requested by the Division of Labor Standards
Enforcement. DB Contractor shall pay any money retained from and owed such Subcontractor
upon receipt of notification by the Division of Labor Standards Enforcement that the wage
complaint has been resolved. Pursuant to Section 1773.2 of the Labor Code, DB Contractor shall
post prevailing wage rates at a prominent place at the Site.
C. Hours of Work
Eight hours labor constitutes a legal day's work.
D. Apprenticeship
DB Contractor shall comply with the provisions of Labor Code Sections 1777.5 and 1777.6, and
Title 8, Code of Regulations, Sections 200 et. seq., relating to apprentice employment and
training. DB Contractor shall assume full responsibility for compliance with said sections with
respect to all apprenticeable occupations on the Project. To ensure compliance and complete
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 1 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
understanding of the law regarding apprentices, and specifically the required ratio thereunder, DB
Contractor should, where some question exists, contact the Division of Apprenticeship Standards,
Los Angeles Office, 320 West 4th Street, Suite 830, Los Angeles, CA 90013, prior to
commencement of the Work.
E. Specific Labor Code Provisions
DB Contractor's attention is directed to the following requirements of the Labor Code. A copy of
each such Code section (except 1810, 1811 and 1812) shall be included in each Subcontract
hereunder:
Labor Code Section 1725.5
1725.5. A contractor shall be registered pursuant to this section to be qualified to bid on,
be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract
Code, or engage in the performance of any public work contract that is subject to the requirements
of this chapter. For the purposes of this section, "contractor" includes a subcontractor as defined
by Section 1722.1.
(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) (A) Register with the Department of Industrial Relations in the manner prescribed by
the department and pay an initial nonrefundable application fee of four hundred dollars ($400) to
qualify for registration under this section and an annual renewal fee on or before July 1 of each
year thereafter. The annual renewal fee shall be in a uniform amount set by the Director of
Industrial Relations, and the initial registration and renewal fees may be adjusted no more than
annually by the director to support the costs specified in Section 1771.3.
(B) Beginning June 1, 2019, a contractor may register or renew according to this
subdivision in annual increments up to three years from the date of registration. Contractors who
wish to do so will be required to prepay the applicable nonrefundable application or renewal fees
to qualify for the number of years for which they wish to preregister.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the
following:
(A) Workers' compensation coverage that meets the requirements of Division 4
(commencing with Section 3200) and includes sufficient coverage for any worker whom the
contractor employs to perform work that is subject to prevailing wage requirements other than a
contractor who is separately registered under this section. Coverage may be evidenced by a
current and valid certificate of workers' compensation insurance or certification of self-insurance
required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing
with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for
any assessment of back wages or related damages, interest, fines, or penalties pursuant to any
final judgment, order, or determination by a court or any federal, state, or local administrative
agency, including a confirmed arbitration award. However, for purposes of this paragraph, the
contractor shall not be disqualified for any judgment, order, or determination that is under appeal,
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 2 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
provided that the contractor has secured the payment of any amount eventually found due through
a bond or other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other
federal or state law providing for the debarment of contractors from public works.
(E) The contractor has not bid on a public works contract, been listed in a bid proposal,
or engaged in the performance of a contract for public works without being lawfully registered in
accordance with this section, within the preceding 12 months or since the effective date of the
requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in
violation of the requirements of this paragraph, the period of disqualification shall be waived if
both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of
this paragraph within the preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty registration fee of two
thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public Works
Enforcement Fund established by Section 1771.3 and shall be used only for the purposes
specified in that section.
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of
subdivision (a) on or before the expiration of any prior period of registration shall be prohibited
from bidding on or engaging in the performance of any contract for public work until once again
registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the
contractor may renew its registration retroactively by paying an additional nonrefundable penalty
renewal fee equal to the amount of the renewal fee within 90 days of the due date of the renewal
fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the contract,
the work covered by the bid or contract is determined to be a public work to which Section 1771
applies, either as the result of a determination by the director pursuant to Section 1773.5 or a
court decision, the requirements of this section shall not apply, subject to the following
requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract
documents, to identify as a public work that portion of the work that the determination or decision
subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by
the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the
contract was for public work as defined in this chapter, the contractor and any subcontractors are
registered under this section or are replaced by a contractor or subcontractors who are registered
under this section.
(3) The requirements of this section shall apply prospectively only to any subsequent bid,
bid proposal, contract, or work performed after the awarding body is served with notice of the
determination or decision referred to in paragraph (2).
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 3 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
(e) The requirements of this section shall apply to any bid proposal submitted on or after
March 1, 2015, to any contract for public work, as defined in this chapter, executed on or after
April 1, 2015, and to any work performed under a contract for public work on or after January 1,
2018, regardless of when the contract for public work was executed.
(f) This section does not apply to work performed on a public works project of twenty-five
thousand dollars ($25,000) or less when the project is for construction, alteration, demolition,
installation, or repair work or to work performed on a public works project of fifteen thousand
dollars ($15,000) or less when the project is for maintenance work.
Labor Code Section 1771
1771. Except for public works projects of one thousand dollars ($1,000) or less, not less
than the general prevailing rate of per diem wages for work of a similar character in the locality in
which the public work is performed, and not less than the general prevailing rate of per diem
wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all workers
employed on public works.
This section is applicable to contracts let for maintenance work.
Labor Code Section 1775
1775. (a) (1) The contractor and any subcontractor under the contractor shall, as a penalty
to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not
more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker
paid less than the prevailing wage rates as determined by the director for the work or craft in
which the worker is employed for any public work done under the contract by the contractor or,
except as provided in subdivision (b), by any subcontractor under the contractor.
(2) (A) The amount of the penalty shall be determined by the Labor Commissioner based
on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem
wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when
brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its
prevailing wage obligations.
(B) (i) The penalty may not be less than forty dollars ($40) for each calendar day, or portion
thereof, for each worker paid less than the prevailing wage rate, unless the failure of the contractor
or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so,
the error was promptly and voluntarily corrected when brought to the attention of the contractor
or subcontractor.
(ii) The penalty may not be less than eighty dollars ($80) for each calendar day, or portion
thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor
has been assessed penalties within the previous three years for failing to meet its prevailing wage
obligations on a separate contract, unless those penalties were subsequently withdrawn or
overturned.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 4 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
(iii) The penalty may not be less than one hundred twenty dollars ($120) for each calendar
day, or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor
Commissioner determines that the violation was willful, as defined in subdivision (c) of Section
1777.1.
(C) If the amount due under this section is collected from the contractor or subcontractor,
any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division
2 against that contractor or subcontractor shall be satisfied before applying that amount to the
penalty imposed on that contractor or subcontractor pursuant to this section.
(D) The determination of the Labor Commissioner as to the amount of the penalty shall be
reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid to each worker
for each calendar day or portion thereof for which each worker was paid less than the prevailing
wage rate shall be paid to each worker by the contractor or subcontractor, and the body awarding
the contract shall cause to be inserted in the contract a stipulation that this section will be complied
with.
(b) If a worker employed by a subcontractor on a public works project is not paid the
general prevailing rate of per diem wages by the subcontractor, the prime contractor of the project
is not liable for any penalties under subdivision (a) unless the prime contractor had knowledge of
that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or
unless the prime contractor fails to comply with all of the following requirements:
(1) The contract executed between the contractor and the subcontractor for the
performance of work on the public works project shall include a copy of the provisions of this
section and Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general prevailing rate of per
diem wages by the subcontractor to the employees, by periodic review of the certified payroll
records of the subcontractor.
(3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the
specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or
rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for
work performed on the public works project.
(4) Prior to making final payment to the subcontractor for work performed on the public
works project, the contractor shall obtain an affidavit signed under penalty of perjury from the
subcontractor that the subcontractor has paid the specified general prevailing rate of per diem
wages to his or her employees on the public works project and any amounts due pursuant to
Section 1813.
(c) The Division of Labor Standards Enforcement shall notify the contractor on a public
works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a
complaint of the failure of a subcontractor on that public works project to pay workers the general
prevailing rate of per diem wages.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 5 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
Labor Code Section 1776
1776. (a) Each contractor and subcontractor shall keep accurate payroll records, showing
the name, address, social security number, work classification, straight time and overtime hours
worked each day and week, and the actual per diem wages paid to each journeyman, apprentice,
worker, or other employee employed by him or her in connection with the public work. Each payroll
record shall contain or be verified by a written declaration that it is made under penalty of perjury,
stating both of the following:
(1) The information contained in the payroll record is true and correct.
(2) The employer has complied with the requirements of Sections 1771, 1811, and 1815
for any work performed by his or her employees on the public works project.
(b) The payroll records enumerated under subdivision (a) shall be certified and shall be
available for inspection at all reasonable hours at the principal office of the contractor on the
following basis:
(1) A certified copy of an employee's payroll record shall be made available for inspection
or furnished to the employee or his or her authorized representative on request.
(2) A certified copy of all payroll records enumerated in subdivision (a) shall be made
available for inspection or furnished upon request to a representative of the body awarding the
contract, the Division of Labor Standards Enforcement, and the Division of Apprenticeship
Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subdivision (a) shall be made
available upon request by the public for inspection or for copies thereof. However, a request by
the public shall be made through either the body awarding the contract, the Division of
Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested
payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior
to being provided the records, reimburse the costs of preparation by the contractor,
subcontractors, and the entity through which the request was made. The public may not be given
access to the records at the principal office of the contractor.
(c) Unless required to be furnished directly to the Labor Commissioner in accordance with
paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on forms
provided by the Division of Labor Standards Enforcement or shall contain the same information
as the forms provided by the division. The payroll records may consist of printouts of payroll data
that are maintained as computer records, if the printouts contain the same information as the
forms provided by the division and the printouts are verified in the manner specified in subdivision
(a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in
subdivision (a) with the entity that requested the records within 10 days after receipt of a written
request.
(e) Except as provided in subdivision (f), any copy of records made available for inspection
as copies and furnished upon request to the public or any public agency by the awarding body or
the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure
of an individual's name, address, and social security number. The name and address of the
contractor awarded the contract or the subcontractor performing the contract shall not be marked
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 6 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
or obliterated. Any copy of records made available for inspection by, or furnished to, a
multiemployer Taft -Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) that requests the records for the
purposes of allocating contributions to participants shall be marked or obliterated only to prevent
disclosure of an individual's full social security number, but shall provide the last four digits of the
social security number. Any copy of records made available for inspection by, or furnished to, a
joint labor-management committee established pursuant to the federal Labor Management
Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent
disclosure of an individual's social security number.
(f)(1) Notwithstanding any other provision of law, agencies that are included in the Joint
Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of
the Unemployment Insurance Code and other law enforcement agencies investigating violations
of law shall, upon request, be provided nonredacted copies of certified payroll records. Any copies
of records or certified payroll made available for inspection and furnished upon request to the
public by an agency included in the Joint Enforcement Strike Force on the Underground Economy
or to a law enforcement agency investigating a violation of law shall be marked or redacted to
prevent disclosure of an individual's name, address, and social security number.
(2) An employer shall not be liable for damages in a civil action for any reasonable act
or omission taken in good faith in compliance with this subdivision.
(g) The contractor shall inform the body awarding the contract of the location of the records
enumerated under subdivision (a), including the street address, city, and county, and shall, within
five working days, provide a notice of a change of location and address.
(h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt
of a written notice requesting the records enumerated in subdivision (a). In the event that the
contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty
to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one
hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict
compliance is effectuated. Upon the request of the Division of Apprenticeship Standards or the
Division of Labor Standards Enforcement, these penalties shall be withheld from progress
payments then due. A contractor is not subject to a penalty assessment pursuant to this section
due to the failure of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations
to effectuate this section.
(j) The director shall adopt rules consistent with the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the
Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division
3 of the Civil Code) governing the release of these records, including the establishment of
reasonable fees to be charged for reproducing copies of records required by this section.
Regulations implementing Labor Code Section 1776 are located in Sections 16000, 16400,
16401, 16402, 16403, and 16500 of Title 8, California Code of Regulations.
Labor Code Section 1777.5
1777.5. (a) This chapter does not prevent the employment of properly registered
apprentices upon public works.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 7 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
(b) (1) Every apprentice employed upon public works shall be paid the prevailing rate of
per diem wages for apprentices in the trade to which he or she is registered and shall be employed
only at the work of the craft or trade to which he or she is registered.
(2) Unless otherwise provided by a collective bargaining agreement, when a contractor
requests the dispatch of an apprentice pursuant to this section to perform work on a public works
project and requires the apprentice to fill out an application or undergo testing, training, an
examination, or other preemployment process as a condition of employment, the apprentice shall
be paid for the time spent on the required preemployment activity, including travel time to and
from the required activity, if any, at the prevailing rate of per diem wages for apprentices in the
trade to which he or she is registered. Unless otherwise provided by a collective bargaining
agreement, a contractor is not required to compensate an apprentice for the time spent on
preemployment activities if the apprentice is required to take a preemployment drug or alcohol
test and he or she fails to pass that test.
(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship
standards that have been approved by the Chief of the Division of Apprenticeship Standards and
who are parties to written apprentice agreements under Chapter 4 (commencing with Section
3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The
employment and training of each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is
training.
(2) The rules and regulations of the California Apprenticeship Council.
(d) If the contractor to whom the contract is awarded by the state or any political
subdivision, in performing any of the work under the contract, employs workers in any
apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth
in this section and may apply to any apprenticeship program in the craft or trade that can provide
apprentices to the site of the public work for a certificate approving the contractor under the
apprenticeship standards for the employment and training of apprentices in the area or industry
affected. However, the decision of the apprenticeship program to approve or deny a certificate
shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or
programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the
contractor. A contractor covered by an apprenticeship program's standards shall not be required
to submit any additional application in order to include additional public works contracts under
that program.
"Apprenticeable craft or trade," as used in this section, means a craft or trade determined
as an apprenticeable occupation in accordance with rules and regulations prescribed by the
California Apprenticeship Council. As used in this section, "contractor" includes any subcontractor
under a contractor who performs any public works not excluded by subdivision (o).
(e) Before commencing work on a contract for public works, every contractor shall submit
contract award information to an applicable apprenticeship program that can supply apprentices
to the site of the public work. The information submitted shall include an estimate of journeyman
hours to be performed under the contract, the number of apprentices proposed to be employed,
and the approximate dates the apprentices would be employed. A copy of this information shall
also be submitted to the awarding body if requested by the awarding body.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 8 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
Within 60 days after concluding work on the contract, each contractor and subcontractor
shall submit to the awarding body, if requested, and to the apprenticeship program a verified
statement of the journeyman and apprentice hours performed on the contract. The information
under this subdivision shall be public. The apprenticeship programs shall retain this information
for 12 months.
(f) The apprenticeship program supplying apprentices to the area of the site of the public
work shall ensure equal employment and affirmative action in apprenticeship for women and
minorities.
(g) The ratio of work performed by apprentices to journeymen employed in a particular
craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship
standards under which the apprenticeship program operates if the contractor agrees to be bound
by those standards. However, except as otherwise provided in this section, in no case shall the
ratio be less than one hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply during any day or portion
of a day when any journeyman is employed at the jobsite and shall be computed on the basis of
the hours worked during the day by journeymen so employed. Any work performed by a
journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate
the ratio. The contractor shall employ apprentices for the number of hours computed as above
before the end of the contract or, in the case of a subcontractor, before the end of the subcontract.
However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices
during the same time period that the journeymen in the same craft or trade are employed at the
jobsite. When an hourly apprenticeship ratio is not feasible for a particular craft or trade, the
Administrator of Apprenticeship, upon application of an apprenticeship program, may order a
minimum ratio of not less than one apprentice for each five journeymen in a craft or trade
classification.
(i) A contractor covered by this section who has agreed to be covered by an apprenticeship
program's standards upon the issuance of the approval certificate, or that has been previously
approved for an apprenticeship program in the craft or trade, shall employ the number of
apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship
standards, but in no event less than the 1-to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a particular
craft or trade in the state on all of his or her contracts on an annual average of not less than one
hour of apprentice work for every five hours of labor performed by journeymen, the Administrator
of Apprenticeship may grant a certificate exempting the contractor from the 1-to-5 hourly ratio, as
set forth in this section for that craft or trade.
(k) An apprenticeship program has the discretion to grant to a participating contractor or
contractor association a certificate, which shall be subject to the approval of the Administrator of
Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this Section when it
finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average of
15 percent.
(2) The number of apprentices in training in the area exceeds a ratio of 1 to 5.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 9 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
(3) There is a showing that the apprenticeable craft or trade is replacing at least one -
thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or
on a local basis.
(4) Assignment of an apprentice to any work performed under a public works contract
would create a condition that would jeopardize his or her life or the life, safety, or property of fellow
employees or the public at large, or the specific task to which the apprentice is to be assigned is
of a nature that training cannot be provided by a journeyman.
(I) If an exemption is granted pursuant to subdivision (k) to an organization that represents
contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the member
contractors shall not be required to submit individual applications for approval to local joint
apprenticeship committees, if they are already covered by the local apprenticeship standards.
(m) (1) A contractor to whom a contract is awarded, who, in performing any of the work
under the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall
contribute to the California Apprenticeship Council the same amount that the director determines
is the prevailing amount of apprenticeship training contributions in the area of the public works
site. A contractor may take as a credit for payments to the council any amounts paid by the
contractor to an approved apprenticeship program that can supply apprentices to the site of the
public works project. The contractor may add the amount of the contributions in computing his or
her bid for the contract.
(2) (A) At the conclusion of the 2002-03 fiscal year and each fiscal year thereafter, the
California Apprenticeship Council shall distribute training contributions received by the council
under this subdivision, less the expenses of the Department of Industrial Relations for
administering this subdivision, by making grants to approved apprenticeship programs for the
purpose of training apprentices. The grant funds shall be distributed as follows:
(i) If there is an approved multiemployer apprenticeship program serving the same craft
or trade and geographic area for which the training contributions were made to the council, a grant
to that program shall be made.
(ii) If there are two or more approved multiemployer apprenticeship programs serving the
same craft or trade and county for which the training contributions were made to the council, the
grant shall be divided among those programs based on the number of apprentices from that
county registered in each program.
(iii) All training contributions not distributed under clauses (i) and ii shall be used to defray
the future expenses of the Department of Industrial Relations for the administration and
enforcement of apprenticeship standards and requirements under this code.
(B) An apprenticeship program shall only be eligible to receive grant funds pursuant to this
subdivision if the apprenticeship program agrees, prior to the receipt of any grant funds, to keep
adequate records that document the expenditure of grant funds and to make all records available
to the Department of Industrial Relations so that the Department of Industrial Relations is able to
verify that grant funds were used solely for training apprentices. For purposes of this
subparagraph, adequate records include, but are not limited to, invoices, receipts, and canceled
checks that account for the expenditure of grant funds. This subparagraph shall not be deemed
to require an apprenticeship program to provide the Department of Industrial Relations with more
documentation than is necessary to verify the appropriate expenditure of grant funds made
pursuant to this subdivision.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 10 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
(C) The Department of Industrial Relations shall verify that grants made pursuant to this
subdivision are used solely to fund training apprentices. If an apprenticeship program is unable
to demonstrate how grant funds are expended or if an apprenticeship program is found to be
using grant funds for purposes other than training apprentices, then the apprenticeship program
shall not be eligible to receive any future grant pursuant to this subdivision and the Department
of Industrial Relations may initiate the process to rescind the registration of the apprenticeship
program.
(3) All training contributions received pursuant to this subdivision shall be deposited in the
Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury. Upon
appropriation by the Legislature, all moneys in the Apprenticeship Training Contribution Fund
shall be used for the purpose of carrying out this subdivision and to pay the expenses of the
Department of Industrial Relations.
(n) The body awarding the contract shall cause to be inserted in the contract stipulations
to effectuate this section. The stipulations shall fix the responsibility of compliance with this
section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to contracts of
specialty contractors not bidding for work through a general or prime contractor when the
contracts of general contractors or those specialty contractors involve less than thirty thousand
dollars ($30,000).
(p) An awarding body that implements an approved labor compliance program in
accordance with subdivision (b) of Section 1771.5 may, with the approval of the director, assist in
the enforcement of this section under the terms and conditions prescribed by the director.
All decisions of an apprenticeship program under this Section are subject to Section 3081.
Labor Code Section 1810
1810. Eight hours labor constitutes a legal day's work in all cases where the same is
performed under the authority of any law of this State, or under the direction, or control, or by the
authority of any officer of this State acting in his official capacity, or under the direction, or control
or by the authority of any municipal corporation, or of any officer thereof. A stipulation to that effect
shall be made a part of all contracts to which the State or any municipal corporation therein is a
party.
Labor Code Section 1811
1811. The time of service of any workman employed upon public work is limited and
restricted to 8 hours during any one calendar day, and 40 hours during any one calendar week,
except as hereinafter provided for under Section 1815.
Labor Code Section 1812
1812. Every contractor and subcontractor shall keep an accurate record showing the
name of and actual hours worked each calendar day and each calendar week by each worker
employed by him or her in connection with the public work. The record shall be kept open at all
reasonable hours to the inspection of the awarding body and to the Division of Labor Standards
Enforcement.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 11 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
Labor Code Section 1813
1813. The contractor or subcontractor shall, as a penalty to the state or political subdivision
on whose behalf the contract is made or awarded, forfeit twenty-five dollars ($25) for each worker
employed in the execution of the contract by the respective contractor or subcontractor for each
calendar day during which the worker is required or permitted to work more than 8 hours in any
one calendar day and 40 hours in any one calendar week in violation of the provisions of this
article. In awarding any contract for public work, the awarding body shall cause to be inserted in
the contract a stipulation to this effect. The awarding body shall take cognizance of all violations
of this article committed in the course of the execution of the contract, and shall report them to
the Division of Labor Standards Enforcement.
Labor Code Section 1815
1815. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code,
and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said
sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours
during any one week, shall be permitted upon public work upon compensation for all hours worked
in excess of 8 hours per day at not less than 11/2 times the basic rate of pay.
F. Labor Nondiscrimination
DB Contractor's attention is directed to Section 1735 of the Labor Code, which reads as follows:
"A contractor shall not discriminate in the employment of persons upon public works on
any basis listed in subdivision (a) of Section 12940 of the Government Code, as those
bases are defined in Sections 12926 and 12926.1 of the Government Code, except as
otherwise provided in Section 12940 of the Government Code. Every contractor for public
works who violates this section is subject to all the penalties imposed for a violation of this
chapter."
DB Contractor's attention is directed to the following "Nondiscrimination Clause" that is required
by Chapter 5 of Division 4 of Title 2, California Code of Regulations.
Nondiscrimination Clause
1. During the performance of this contract, contractor and its subcontractors shall not
unlawfully discriminate against any employee or applicant for employment because of race,
religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age
(over 40) or sex. Contractors and subcontractors shall insure that the evaluation and treatment of
their employees and applicants for employment are free of such discrimination. Contractors and
subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov.
Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin.
Code, Tit. 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and
Housing Commission implementing Government Code, Section 12990, set forth in Chapter 5 of
Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by
reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give
written notice of their obligations under this clause to labor organizations with which they have a
collective bargaining or other agreement.
2. This Contractor shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under the contract.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 16
Page 12 of 12
Design -Build Contract
Labor Code Requirements
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 17
OCTA-RELATED WORK
In addition to DB Contractor's obligations with respect to the Work generally, DB Contractor shall
perform, and shall ensure that its Subcontractors perform, all OCTA-Related Work in accordance
with the following:
(a) RCTC and its contractors shall take all reasonable steps to minimize any impacts to
OCTA's operations, including conducting all OCTA-Related Work on the 91 OCTA Express Lanes
only between the permitted hours on the dates Exhibit 21, Chart 21-5.
(b) DB Contractor shall acquire all applicable Governmental Approvals required under all
applicable Governmental Rules prior to conducting the OCTA-Related Work. All OCTA-Related
Work shall be conducted in accordance with all (i) applicable Governmental Rules, (ii) all industry
standards, and (iii) all additional standards as reasonably required by OCTA.
(d) The OCTA-Related Work shall be conducted only under the supervision of Persons
licensed and certified to perform the OCTA-Related Work.
(e) DB Contractor shall, at its sole cost and expense, repair all damage to the 91 OCTA
Express Lanes caused by the OCTA-Related Work, it being the intent of the Parties and OCTA
that upon completion of the OCTA-Related Work, business activities on the 91 OCTA Express
Lanes may promptly resume without hindrance, obstruction or delay, and the 91 OCTA Express
Lanes shall be in the same condition as existing prior to the OCTA-Related Work.
(f) Neither OCTA nor RCTC shall have any obligation to advise or inform DB Contractor
regarding the location(s) of any underground utilities, structures, equipment at or beneath the 91
OCTA Express Lanes. The responsibility for determining and confirming the location(s) of any
underground utilities, structures and equipment shall be solely of DB Contractor. In the event any
underground utilities, structures or equipment are damaged by the OCTA-Related Work, it shall
be DB Contractor's responsibility to promptly repair, at its sole cost and expense, the same,
regardless of the reason(s) why such utilities, structures or equipment were damaged, it being
the intent of the Parties that the risk of the same shall be borne solely by DB Contractor.
(g) DB Contractor shall be responsible for providing all safety measures during the OCTA-
Related Work.
(h) If the performance of the OCTA-Related Work causes damage to the 91 OCTA Express
Lanes or any adjacent structures, facilities, underground utilities or equipment that results in the
91 OCTA Express Lanes not being fully available for use during the repair, the Lane Closure
Charges set forth in Exhibit 21, Chart 21-5 or 21-6, as applicable, shall apply for the entirety of
time it takes to effectuate the repair.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 17
Page 1 of 1
Design -Build Contract
OCTA-Related Work
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 18
FORM OF DB CONTRACTOR REQUEST FOR CHANGE ORDER
CHANGE ORDER REQUEST NO.
SECTION I:
Name:
Title:
CONTRACT NO. 19-31-074-00
Date:
Company Name:
Description:
Additions/Deletions/Modifications to Contract requirements:
Contract Requirement: Addition/Deletion/Modification:
Scope:
Reason for Request for Change Order:
Is this Request for Change Order for a RCTC-Directed Change?
❑ Yes ❑ No
Please Explain:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 18
Page 1 of 6
Design -Build Contract
Form of DB Contractor Request for Change Order
Draft Execution Copy: February 12, 2020
56800652.v31
Riverside County Transportation Commission
Express Lanes Connector Project
Project Manager
Date:
Exhibit 18
Page 2 of 6
Design -Build Contract
Form of DB Contractor Request for Change Order
Draft Execution Copy: February 12, 2020
56800652.v31
SECTION II: COST ESTIMATE
The total cost estimate of this Change Order is $ . Documentation supporting
this Request for Change Order is attached as Exhibits through
Payment Schedule Items Added/Deducted:
Activity No.:
Description: Amount:
This Request for Change Order is for (check the applicable categories below):
A lump sum, negotiated price Change Order (provide information in Section II.A below)
A unit price/quantities Change Order (provide information in Section II.B below)
A Time and Materials Change Order (provide information in Section II.0 below)
SECTION II.A:
Lump sum price is $
Section II.B:
UNIT PRICE ITEM
UNIT PRICE
QUANTITY
PRICE
(Unit Price x
Quantity)
Total of all items in above Table: $
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 18
Page 3 of 6
Design -Build Contract
Form of DB Contractor Request for Change Order
Draft Execution Copy: February 12, 2020
56800652.v31
SECTION II.C: (REFERENCE CONTRACT EXHIBIT 3, MODIFIED STANDARD
SPECIFICATIONS, 9-1.04 FOR GUIDANCE)
Summary of Request for Change Order by Categories: [Additives/(Credits)]
[Complete the applicable cells of the table below]
Work ($)
A.
DB Contractor Labor (construction)
1.Wages
2.Labor benefits (% of A.1)
3.Subsistence and travel for craft labor
4.Employer payment to supervisors
B.
DB Contractor and Subcontractor Labor (professional services)
1.Wages (Raw)
2. Labor benefits (150% of B.1, which includes overhead and
profit)
3. Off -duty peace officers and patrol cruisers
C.
Materials (with taxes, freight and discounts)
D.
Equipment'
E.
Subcontracts (Time and Materials cost)
F.
Utility Direct Costs
G.
Overhead and Profit
1.Labor (35% of A)
2.Traffic Control (5% of B.3)
3.Materials (15% of C)
4.Subcontracts (5% of E)
5.Utility Direct Costs (5% of F)
H.
Subtotal
I.
Grand Total (sum of H)
Subcontractor quotes are attached as Exhibits through in
accordance with Section 16.4.3 of the Contract. (To be provided to the extent work is to be
performed by Subcontractors.]
SECTION III: DELAY ANALYSIS
[Complete the applicable cells of the table below]
The status of Substantial Completion is as follows:
0 Unaffected by this Request for Change Order
0 Affected by (increasing) (decreasing) the date of Substantial Completion by
calendar days.
0 Affected by (increasing) (decreasing) the Float by calendar days.
' Enter full compensation amount including markup for type of equipment per Contract Exhibit 2, Section
9-1.04D(2) through 9-1.04D(5)
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 18
Page 4 of 6
Design -Build Contract
Form of DB Contractor Request for Change Order
Draft Execution Copy: February 12, 2020
56800652.v31
The status of Project Completion is as follows:
A Unaffected by this Request for Change Order
A Affected by (increasing) (decreasing) the date of Project Completion by
calendar days.
A Affected by (increasing) (decreasing) the Float by calendar days.
The status of Final Acceptance is as follows:
A Unaffected by this Request for Change Order
A Affected by (increasing) (decreasing) the date of Final Acceptance by
calendar days.
A Affected by (increasing) (decreasing) the Float by calendar days.
Accordingly, the summary of the dates of Substantial Completion, Project Completion and Final
Acceptance and Float are as follows:
1. Substantial Completion:
(+ or - days from base of
calendar days after NTP2)
2. Project Completion:
(+ or - days from base of calendar days after NTP2)
3. Final Acceptance:
(+ or - days from base of calendar days after NTP2)
4. Number of days of Project Float
A Delay Analysis Report is attached as Exhibit in accordance with Sections 16.4.3(a)(v)
and 16.5.1 (b)(iii) of the Contract. (To be provided to the extent that DB Contractor is claiming
an event, situation or change affects a Critical Path.]
SECTION IV: JUSTIFICATION
Justification for this Request for Change Order with reference to the Contract and in accordance
with Section 16.4.3(a)(i) of the Contract:
SECTION V: CERTIFICATION
Each Request for Change Order shall contain the following certification:
, the Authorized Representative of DB Contractor, hereby certify under
penalty of perjury that the above four sections represent a true, accurate and complete summary
of all aspects of this Request for Change Order, and that (a) the amount of time and/or
compensation requested is justified as to entitlement and amount, (b) the amount of time and/or
compensation requested includes all known and anticipated impacts or amounts, direct, indirect
and consequential, which have been or may be incurred as a result of the event, occurrence or
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 18
Page 5 of 6
Design -Build Contract
Form of DB Contractor Request for Change Order
Draft Execution Copy: February 12, 2020
56800652.v31
matter giving rise to the proposed change (and includes all Subcontractor and Supplier amounts),
and (c) the cost and pricing data forming the basis for this Request for Change Order is complete,
accurate and current.
If the foregoing Request for Change Order includes claims of Subcontractors or Suppliers, the
undersigned certifies that I have reviewed such claims and have determined in good faith that the
claims are justified as to both entitlement and amount, and that any Subcontractor pricing data
required to be provided has been provided in accordance with Section 26.5 of the Contract.
DB Contractor Authorized Representative
Date:
Any pricing data provided by a Subcontractor in connection with a Request for Change Order
shall include the certification required to be provided by Subcontractor under Section 26.5 of the
Contract.
SECTION VI: REVIEWED BY
Comments:
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 18
Page 6 of 6
Design -Build Contract
Form of DB Contractor Request for Change Order
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 19
GP LANE CLOSURE CHARGES
In accordance with Contract Section 21.2.2(a), Permitted GP Lane Closures at the locations and
during the periods identified in TP Attachment 18-1 shall be at no charge to DB Contractor,
provided the Lane Closure complies with the requirements for Lane Closures set forth in the
Contract.
For Unpermitted GP Lane Closures, the applicable GP Lane Closure Charges shall consist of
liquidated damages determined as follows:
Type of facility
Route
Direction or
segment
Period
GP Lane Closure
Charges
prior to the ELP
Revenue Service
Commencement
Date
GP Lane Closure
Charges
From the ELP
Revenue Service
Commencement
Date through the
remainder of the
Warranty Period
Mainline
15
NB 34.70-41.97
1st half hour
2nd half hour
2nd hour and beyond
$3650/10 minutes
$4975/10 minutes
$5300/10 minutes
$2650/10 minutes
$3975/10 minutes
$5300/10 minutes
Mainline
15
NB 41.97-43.62
1st half hour
2nd half hour
2nd hour and beyond
$2400/10 minutes
$3100/10 minutes
$2800/10 minutes
$1400/10 minutes
$2100/10 minutes
$2800/10 minutes
Mainline
15
NB 43.62-51.36
1st half hour
2nd half hour
2nd hour and beyond
$3150/10 minutes
$4225/10 minutes
$4300/10 minutes
$2150/10 minutes
$3225/10 minutes
$4300/10 minutes
Mainline
15
NB 51.36-SBd
1.30
1st half hour
2nd half hour
2nd hour and beyond
$3500/10 minutes
$4750/10 minutes
$5000/10 minutes
$2500/10 minutes
$3750/10 minutes
$5000/10 minutes
Mainline
15
SB 34.70-38.06
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 38.06-41.25
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 41.25-41.85
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 41.85-43.50
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 43.50-51.77
1st half hour
2nd half hour
2nd hour and beyond
$1950/10 minutes
$2425/10 minutes
$1900/10 minutes
$950/10 minutes
$1425/10 minutes
$1900/10 minutes
Mainline
15
SB 51.77-SBd
1.30
1st half hour
2nd half hour
2nd hour and beyond
$2850/10 minutes
$3775/10 minutes
$3700/10 minutes
$1850/10 minutes
$2775/10 minutes
$3700/10 minutes
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 19
Page 1 of 2
Design -Build Contract
GP Lane Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
Type of facility
Route
Direction or
segment
Period
GP Lane Closure
Charges
from NTP1 and for
the remainder of the
Warranty Period
Mainline
91
EB 6.34-9.18
1st half hour
2nd half hour
2nd hour and beyond
$2750/10 minutes
$3625/10 minutes
$3500/10 minutes
Mainline
91
WB 6.34-9.18
1st half hour
2nd half hour
2nd hour and beyond
$3500/10 minutes
$4750/10 minutes
$5000/10 minutes
Type of facility
Route
Direction or
segment
Period
GP Lane Closure
Charges
prior to Revenue
Service
Commencement
Date
GP Lane Closure
Charges
From Revenue
Service
Commencement
Date through the
remainder of the
Warranty Period
Connector
15/91
All existing 1-15 /
SR-91 GP
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1500/10 minutes
$1000/10 minutes
$1000 /10 minutes
$1000/10 minutes
The 10-minute increments listed in the table above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 19
Page 2 of 2
Design -Build Contract
GP Lane Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 20
15 EL CLOSURE CHARGES
CHART 20-1
15 EL Closure Charges for Permitted 15 EL Closures
Segment 1 NB, Segment 2 NB, Segment 1 SB, Segment 2 SB From ELP Revenue Service
Commencement Date through the remainder of the Warranty Period
Segment 2 NB Segment 2 SB
Segment 1 NB (Ontario Ingress Segment 1 SB (Sixth Street
(Southern beginning Egress to Second (SR-60 to Sixth Ingress/Egress to
to Ontario Street Street Second Street
Time Frame Ingress/Egress) Ingress/Egress) Ingress/Egress) Ingress/Egress)
Sunday 8:00 p.m. to
Monday 4:00 a.m.
(Except for certain
Sundays identified in
section 18.3.3.3.1 of the
Technical Provisions)
$1,000/night $2,000/night $1,500/night $1,000/night
Monday 8:00 p.m. to
Tuesday 4:00 a.m.
$1,000/night $2,000/night
$1,500/night $1,000/night
Tuesday 8:00 p.m. to
Wednesday 4:00 a.m.
$1,000/night $2,000/night
$1,500/night $1,000/night
Wednesday 8:00 p.m. to
Thursday 4:00 a.m.
$1,000/night $2,000/night
$1,500/night $1,000/night
Thursday 8:00 p.m. to
Friday 4:00 a.m.
$1,000/night $2,000/night
$1,500/night $1,000/night
Friday 10:00 p.m. to
Saturday 6:00 a.m.
$1,000/night $2,000/night
$1,500/night $1,000/night
Saturday 10:00 p.m. to $1,000/night $2,000/night $1,500/night $1,000/night
Sunday 6:00 a.m.
The applicable 15 EL Closure Charge listed in this Chart 20-1 will be assessed on a per night
basis, irrespective of the actual length of the Permitted 15 EL Closure. 1-15 EL Segments are
shown in TP Attachment 18-3.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 20
Page 1 of 6
Design -Build Contract
15 EL Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
CHART 20-2
15 EL Closure Charges for Permitted 15 EL Closures
Segment 3 NB, Segment 4 NB, Segment 3 SB, Segment 4 SB From ELP Revenue Service
Commencement Date through the remainder of the Warranty Period
Time Frame
Segment 3 NB
(Second Street
Ingress/Egress to
Sixth Street
Ingress/Egress)
Segment 4 NB
(Sixth Street
Ingress/Egress to
SR-60)
Segment 3 SB
(Second Street
Ingress/Egress to
Ontario
Ingress/Egress)
Segment 4 SB
(Ontario
Ingress/Egress to
Southern end)
Sunday 9:00 p.m. to
Monday 5:00 a.m.
(Except for certain
Sundays identified in
section 18.3.3.3.1 of the
Technical Provisions)
$1,000/night
$1,500/night
$2,000/night
$1,000/night
Monday 9:00 p.m. to
Tuesday 5:00 a.m.
$1,000/night
$1,500/night
$2,000/night
$1,000/night
Tuesday 9:00 p.m. to
Wednesday 5:00 a.m.
$1,000/night
$1,500/night
$2,000/night
$1,000/night
Wednesday 9:00 p.m. to
Thursday 5:00 a.m.
$1,000/night
$1,500/night
$2,000/night
$1,000/night
Thursday 9:00 p.m. to
Friday 5:00 a.m.
$1,000/night
$1,500/night
$2,000/night
$1,000/night
Friday 10:00 p.m. to
Saturday 6:00 a.m.
$1,000/night
$1,500/night
$2,000/night
$1,000/night
Saturday 10:00 p.m. to $1,000/night $1,500/night $2,000/night $1,000/night
Sunday 6:00 a.m.
The applicable 15 EL Closure Charge listed in this Chart 20-2 will be assessed on a per night basis,
irrespective of the actual length of the Permitted 15 EL Closure. 1-15 EL Segments are shown in TP
Attachment 18-3.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 20
Page 2 of 6
Design -Build Contract
15 EL Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
Chart 20-3
15 EL Closure Charges for
Unpermitted 15 EL Closures
Segment 1 NB, Segment 2 NB, Segment 1 SB, Segment 2 SB
Segment Time Frame 15 EL Closure 15 EL Closure
Charge* prior to the Charge* from the
ELP Revenue ELP Revenue
Service Service
Commencement Commencement
Date Date through the
remainder of the
Warranty Period
Segment 1 NB,
Segment 2 NB,
Segment 1 SB,
Segment 2 SB
Weekday Period:
• Monday 4:00 a.m. to 8:00 p.m.
• Tuesday 4:00 a.m. to 8:00 p.m.
• Wednesday 4:00 a.m. to 8:00 p.m.
• Thursday 4:00 a.m. to 8:00 p.m.
• Friday 4:00 a.m. to 8:00 p.m.
No charge
The sum of
(i) Stipulated
Damages** for the
affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
Weekend Period: The sum of
• Saturday 6:00 a.m. to 10:00 p.m. (i) Stipulated
Damages** for the
• Sunday 6:00 a.m. to 10:00 p.m. affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
1-15 EL Segments depicted in TP Attachment 18-3. The 10 minute increments listed in the
tables above are for partial or full increments, meaning that, for example, an 11 minute period
would be considered two increments.
*Lane Closures will be measured on the basis of direction and Segment. The 15 EL Closure
Charge shall be assessed for any closure of any portion of a lane within a Segment in any
direction. A closure that affects more than one Segment shall result in a charge for each
affected Segment. For instance, a closure of a portion of one lane in two Northbound Segments
and one Southbound Segment shall result in a charge of Stipulated Damages for the three
affected Segments plus $2,700 for every partial or full 10 minute increment.
The 10 minute increments listed in the charts above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
** Stipulated damages shall be determined by using a comparison of the number of transactions
identified by the Collection System during the period of the partial or complete 15 EL Closure
and the number of transactions identified by the Collection System during a comparable prior
period determined by RCTC. Determination of a comparable period shall be made by RCTC,
acting reasonably, and shall consider the day, month, time of day, location, season, whether the
day is a weekday, weekend or holiday, and such other factors as RCTC shall reasonably
determine. During the first six (6) months following the ELP Revenue Service Commencement
Date for Interstate 15, stipulated damages shall be determined by reference to the traffic and
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 20
Page 3 of 6
Design -Build Contract
15 EL Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
revenue study estimates for the Interstate 15 during the period of time in question and may also
consider available live traffic data from the Collection System. For example, if, during the period
of the 15 EL Closure, the Collection System identifies 100 transactions, and during a
comparable prior period where there is no 15 EL Closure, the Collection System identifies 1000
transactions, the stipulated damages for the duration of the 15 EL Closure would be the value of
the difference in the number of transactions (i.e., an amount equal to 900) multiplied by the toll
rate(s) applicable to such transactions. The calculation of stipulated damages can never be a
negative number or result in DB Contractor being entitled to additional payment from RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 20
Page 4 of 6
Design -Build Contract
15 EL Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
Chart 20-4
15 EL Closure Charges for
Unpermitted 15 EL Closures
Segment 3 NB, Segment 4 NB, Segment 3 SB, Segment 4 SB
Direction Time Frame 15 EL Closure 15 EL Closure
Charge* prior to the Charge* from the
ELP Revenue ELP Revenue
Service Service
Commencement Commencement
Date Date through the
remainder of the
Warranty Period
Segment 3 NB,
Segment 4 NB,
Segment 3 SB
Segment 4 SB
Weekday Period:
• Monday 5:00 a.m. to 9:00 p.m.
• Tuesday 5:00 a.m. to 9:00 p.m.
• Wednesday 5:00 a.m. to 9:00 p.m.
• Thursday 5:00 a.m. to 9:00 p.m.
• Friday 5:00 a.m.to 9:00 p.m.
Weekend Period:
• Saturday 6:00 a.m. to 10:00 p.m.
• Sunday 6:00 a.m. to 10:00 p.m.
No charge
No charge
The sum of
(i) Stipulated
Damages** for the
affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
The sum of
(i) Stipulated
Damages** for the
affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
1-15 EL are Segments depicted in TP Attachment 18-3. The 10 minute increments listed in the
tables above are for partial or full increments, meaning that, for example, an 11 minute period
would be considered two increments.
*Lane Closures will be measured on the basis of direction and Segment. The 15 EL Closure
Charge shall be assessed for any closure of any portion of a lane within a Segment in any
direction. A closure that affects more than one Segment shall result in a charge for each
affected Segment. For instance, a closure of a portion of one lane in two Northbound Segments
and one Southbound Segment shall result in a charge of Stipulated Damages for the three
affected Segments plus $2,700 for every partial or full 10 minute increment.
The 10 minute increments listed in the charts above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
** Stipulated damages shall be determined by using a comparison of the number of transactions
identified by the Collection System during the period of the partial or complete 15 EL Closure
and the number of transactions identified by the Collection System during a comparable prior
period determined by RCTC. Determination of a comparable period shall be made by RCTC,
acting reasonably, and shall consider the day, month, time of day, location, season, whether the
day is a weekday, weekend or holiday, and such other factors as RCTC shall reasonably
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 20
Page 5 of 6
Design -Build Contract
15 EL Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
determine. During the first six (6) months following the ELP Revenue Service Commencement
Date for Interstate 15, stipulated damages shall be determined by reference to the traffic and
revenue study estimates for the Interstate 15 during the period of time in question and may also
consider available live traffic data from the Collection System. For example, if, during the period
of the 15 EL Closure, the Collection System identifies 100 transactions, and during a
comparable prior period where there is no 15 EL Closure, the Collection System identifies 1000
transactions, the stipulated damages for the duration of the 15 EL Closure would be the value of
the difference in the number of transactions (i.e., an amount equal to 900) multiplied by the toll
rate(s) applicable to such transactions. The calculation of stipulated damages can never be a
negative number or result in DB Contractor being entitled to additional payment from RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
Exhibit 20
Page 6 of 6
Design -Build Contract
15 EL Closure Charges
Draft Execution Copy: February 12, 2020
56800652.v31
EXHIBIT 21
91 EL CLOSURE CHARGES
CHART 21-1
91 EL Closure Charges for Permitted 91 RCTC Westbound EL Closures From NTP1
and for the remainder of the Warranty Period
Time Frame
91 Westbound EL
Full Closure to 91 Westbound EL Closure
Countyline of Mckinley entrance
1-15 Northbound to 91
Westbound Connector
Closure
Sunday 9:00 p.m. to Monday 4:00
a.m. (Except for certain Sundays
identified in section 18.3.3.3.1 of the
Technical Provisions)
$2,000/night $1,000/night per Segment $1,000/night per Segment
Monday 8:00 p.m. to Tuesday 4:00 $2,000/night
a.m.
$1,000/night $1,000/night
Tuesday 8:00 p.m. to Wednesday
4:00 a.m.
$2,000/night
$1,000/night $1,000/night
Wednesday 8:00 p.m. to Thursday
4:00 a.m.
$2,000/night
$1,000/night $1,000/night
Thursday 8:00 p.m. to Friday 4:00 $2,000/night
a.m.
$1,000/night $1,000/night
Friday 10:00 p.m. to Saturday 7:00 $2,500/night
a.m.
$1,500/night $1,000/night
Saturday 10:00 p.m. to Sunday 7:00 $2,500/night
a.m.
$1,500/night $1,000/night
The applicable 91 RCTC EL Closure Charge listed in this Chart 21-1 will be assessed on a per
night basis, irrespective of the actual length of the Permitted 91 RCTC EL Closure.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 21
Page 1 of 6
Design -Build Contract
91 EL Closure Charges
Draft Execution Copy: February 12, 2020
CHART 21-2
91 EL Closure Charges for Permitted 91 RCTC Eastbound EL Closures from NTP1 and
for the remainder of the Warranty Period
Time Frame
91 Eastbound EL 91 Eastbound EL Closure
Full Closure of Mckinley exit to SR-91
91 Eastbound to 1-15
Southbound EL
Connector Closure
Sunday 10:00 p.m. to Monday 6:00
a.m. (Except for certain Sundays
identified in section 18.3.3.3.1 of the
Technical Provisions)
$2,000/night $1,000/night per Segment $1,000/night per Segment
Monday 10:00 p.m. to Tuesday 6:00 $2,000/night
a.m.
$1,000/night $1,000/night
Tuesday 10:00 p.m. to Wednesday
4:00 a.m.
$2,000/night
$1,000/night $1,000/night
Wednesday 10:00 p.m. to Thursday
4:00 a.m.
$2,000/night
$1,000/night $1,000/night
Thursday 10:00 p.m. to Friday 6:00 $2,000/night
a.m.
$1,000/night $1,000/night
Friday 11:00 p.m. to Saturday 7:00 $2,500/night
a.m.
$1,500/night $1,000/night
Saturday 11:00 p.m. to Sunday 7:00 $2,500/night
a.m.
$1,500/night $1,000/night
The applicable 91 RCTC EL Closure Charge listed in this Chart 21-2 will be assessed on a per night
basis, irrespective of the actual length of the Permitted 91 RCTC EL Closure.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 21
Page 2 of 6
Design -Build Contract
91 EL Closure Charges
Draft Execution Copy: February 12, 2020
CHART 21-3
91 EL Closure Charges for Unpermitted 91 RCTC EL Closures
(including South Flyover Connector)
From NTP1 and for the
remainder of the Warranty
Period
Travel
Direction
Time Frame
91 RCTC EL
Closure
Charge
(excluding
South Flyover
Connector)
91 RCTC EL
to 15 South
Flyover
Connector
Lane Closure
Charge
Westbound
including
Northbound
to
Westbound
or
Northbound
to
Westbound
Weekday Period:
• Monday 4:00 a.m.to 8:00 p.m.
• Tuesday 4:00 a.m. to 8:00 p.m.
• Wednesday 4:00 a.m. to 8:00
p.m.
• Thursday 4:00 a.m. to 8:00
p.m.
Friday 4:00 a.m. to 10:00 p.m.
Weekend Period:
• Saturday 6:00 a.m. through
10:00 p.m.
• Sunday 6:00 a.m. through 9:00
p.m.
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
Eastbound Weekday Period:
including
Eastbound to
Southbound
• Monday 6:00 a.m. to 10:00
p.m.
• Tuesday 6:00 a.m. to 10:00
p.m.
• Wednesday 6:00 a.m. to 10:00
p.m.
• Thursday 6:00 a.m. to 10:00
p.m.
Friday 5:00 a.m.to 9:00 p.m.
Weekend Period:
• Saturday 6:00 a.m. to 10:00
p.m.
• Sunday 6:00 a.m. to 10:00
p.m.
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages* plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The 10 minute increments listed in the tables above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
* Stipulated damages shall be determined by using a comparison of the number of transactions
identified by the toll collection system for the SR-91 during the period of the partial or complete
15-91 EL Closure and the number of transactions identified by the toll collection system for the
SR-91 during a comparable prior period determined by RCTC. Determination of a comparable
period shall be made by RCTC, acting reasonably, and shall consider the day, month, time of
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 21
Page 3 of 6
Design -Build Contract
91 EL Closure Charges
Draft Execution Copy: February 12, 2020
day, location, season, whether the day is a weekday, weekend or holiday, and such other
factors as RCTC shall reasonably determine. The calculation of stipulated damages can never
be a negative number or result in DB Contractor being entitled to additional payment from
RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 21
Page 4 of 6
Design -Build Contract
91 EL Closure Charges
Draft Execution Copy: February 12, 2020
CHART 21-4
91 EL Closure Charges for Permitted 91 OCTA EL Closures
Travel
Direction
Time Frame
91 EL Closure Charge from NTP1
and for the remainder of the
Warranty Period
Westbound Weekday Period: $3,000/night
• Sunday 8:00 p.m. to Monday 4:00 a.m.
• Monday 8:00 p.m. to Tuesday 4:00 a.m.
• Tuesday 8:00 p.m. to Wednesday 4:00 a.m.
• Wednesday 8:00 p.m. to Thursday 4:00 a.m.
• Thursday 8:00 p.m. to Friday 4:00 a.m.
Weekend Period: $1,400/night
• Friday 9:00 p.m. to Saturday 5:00 a.m.
• Saturday 9:00 p.m. to Sunday 5:00 a.m.
Eastbound Weekday Period: $3,000/night
• Sunday 9:00 p.m. to Monday 5:00 a.m.
• Monday 9:00 p.m. to Tuesday 5:00 a.m.
• Tuesday 9:00 p.m. to Wednesday 5:00 a.m.
• Wednesday 9:00 p.m. to Thursday 5:00 a.m.
• Thursday 9:00 p.m. to Friday 5:00 a.m.
Weekend Period: $5,200/night
• Friday 9:00 p.m. to Saturday 5:00 a.m.
• Saturday 9:00 p.m. to Sunday 5:00 a.m.
The applicable 91 OCTA EL Closure Charge listed in this Chart 21-4 will be assessed on a per
night basis, irrespective of the actual length of the Permitted 91 OCTA EL Closure.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 21
Page 5 of 6
Design -Build Contract
91 EL Closure Charges
Draft Execution Copy: February 12, 2020
CHART 21-5
91 EL Closure Charges for Unpermitted 91 OCTA EL Closures
Travel
Direction
Time Frame
91 EL Closure Charge from NTP1 and
for the remainder of the Warranty
Period
Westbound Weekday Period: $22,600 for every partial or full 10 minute
increment
• Monday 4:00 a.m. to 8:00 p.m.
• Tuesday 4:00 a.m. to 8:00 p.m.
• Wednesday 4:00 a.m. to 8:00 p.m.
• Thursday 4:00 a.m. to 8:00 p.m.
• Friday 4:00 a.m. to 9:00 p.m.
Weekend Period:
• Saturday 5:00 a.m. to 9:00 p.m.
• Sunday 5:00 a.m. to 8:00 p.m.
$22,600 for every partial or full 10 minute
increment
Eastbound Weekday Period: $22,600 for every partial or full 10 minute
increment
• Monday 5:00 a.m. to 9:00 p.m.
• Tuesday 5:00 a.m. to 9:00 p.m.
• Wednesday 5:00 a.m. to 9:00 p.m.
• Thursday 5:00 a.m. to 9:00 p.m.
• Friday 5:00 a.m. to 9:00 p.m.
Weekend Period: $22,600 for every partial or full 10 minute
increment
• Saturday 5:00 a.m. to 9:00 p.m.
• Sunday 5:00 a.m. to 9:00 p.m.
The 10 minute increments listed in the charts above (except Chart 21-5) are for partial or full
increments, meaning that, for example, an 11 minute period would be considered two
increments.
* Stipulated damages shall be determined by using a comparison of the number of transactions
identified by the toll collection system for the SR-91 during the period of the partial or complete
91 EL Closure and the number of transactions identified by the toll collection system for the SR-
91 during a comparable prior period determined by RCTC. Determination of a comparable
period shall be made by RCTC, acting reasonably, and shall consider the day, month, time of
day, location, season, whether the day is a weekday, weekend or holiday, and such other
factors as RCTC shall reasonably determine. The calculation of stipulated damages can never
be a negative number or result in DB Contractor being entitled to additional payment from
RCTC.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 21
Page 6 of 6
Design -Build Contract
91 EL Closure Charges
Draft Execution Copy: February 12, 2020
EXHIBIT 22
ELC LANE CLOSURE CHARGES
Chart 22-1
ELC Lane Closure Charges for Permitted ELC Lane Closures
Travel Direction Time Frame
ELC Lane Closure ELC Lane Closure
Charge* prior to the Charge* from the
Revenue Service Revenue Service
Commencement Commencement
Date Date and for the
remainder of the
Warranty Period
Southbound to
Westbound
Weekday Period:
• Sunday 9:00 p.m. to Monday 5:00
a.m.
• Monday 9:00 p.m. to Tuesday 5:00
a.m.
• Tuesday 9:00 p.m. to Wednesday
5:00 a.m.
• Wednesday 9:00 p.m. to Thursday
5:00 a.m.
• Thursday 9:00 p.m. to Friday 5:00
a.m.
Weekend Period:
• Friday 9:00 p.m. to Saturday 5:00
a.m.
• Saturday 9:00 p.m. to Sunday 5:00
a.m.
No charge $1,000 per night
No charge $1,000 per night
Eastbound to Northbound Weekday Period:
• Sunday 9:00 p.m. to Monday 5:00
a.m.
• Monday 9:00 p.m. to Tuesday 5:00
a.m.
• Tuesday 9:00 p.m. to Wednesday
5:00 a.m.
• Wednesday 9:00 p.m. to Thursday
5:00 a.m.
• Thursday 9:00 p.m. to Friday 5:00
a.m.
Weekend Period:
• Friday 9:00 p.m. to Saturday 5:00
a.m.
• Saturday 9:00 p.m. to Sunday 5:00
a.m.
No charge $1,000 per night
No charge $1,000 per night
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 22
Page 1 of 2
Design -Build Contract
ELC Lane Closure Charges
Draft Execution Copy: February 12, 2020
Chart 22-2
ELC Lane Closure Charges for Unpermitted ELC Lane Closures
Travel Direction Time Frame
ELC Lane Closure ELC Lane Closure
Charge* prior to the Charge* from the
Revenue Service Revenue Service
Commencement Commencement
Date** Date through the
remainder of the
Warranty Period**
Southbound to
Westbound
Weekday Period:
• Sunday 9:00 p.m. to Monday 5:00
a.m.
• Monday 9:00 p.m. to Tuesday 5:00
a.m.
• Tuesday 9:00 p.m. to Wednesday
5:00 a.m.
• Wednesday 9:00 p.m. to Thursday
5:00 a.m.
• Thursday 9:00 p.m. to Friday 5:00
a.m.
No charge
Weekend Period: No charge
• Friday 9:00 p.m. to Saturday 5:00
a.m.
• Saturday 9:00 p.m. to Sunday 5:00
a.m.
$5,000 for every
partial or full 10
minute increment
$5,000 for every
partial or full 10
minute increment
Eastbound to Northbound Weekday Period: No charge
• Sunday 9:00 p.m. to Monday 5:00
a.m.
• Monday 9:00 p.m. to Tuesday 5:00
a.m.
• Tuesday 9:00 p.m. to Wednesday
5:00 a.m.
• Wednesday 9:00 p.m. to Thursday
5:00 a.m.
• Thursday 9:00 p.m. to Friday 5:00
a.m.
Weekend Period: No charge
• Friday 9:00 p.m. to Saturday 5:00
a.m.
• Saturday 9:00 p.m. to Sunday 5:00
a.m.
$5,000 for every
partial or full 10
minute increment
$5,000 for every
partial or full 10
minute increment
The 10 minute increments listed in the tables above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 22
Page 2 of 2
Design -Build Contract
ELC Lane Closure Charges
Draft Execution Copy: February 12, 2020
EXHIBIT 23
PUBLIC CONTRACT CODE SECTION 9204
Public Contract Code - PCC
9204.
(a) The Legislature finds and declares that it is in the best interests of the state and its citizens to
ensure that all construction business performed on a public works project in the state that is
complete and not in dispute is paid in full and in a timely manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with
Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2,
and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply
to any claim by a contractor in connection with a public works project.
(c) For purposes of this section:
(1) "Claim" means a separate demand by a contractor sent by registered mail or certified mail with
return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay
assessed by a public entity under a contract for a public works project.
(B) Payment by the public entity of money or damages arising from work done by, or on behalf of,
the contractor pursuant to the contract for a public works project and payment for which is not
otherwise expressly provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) "Contractor" means any type of contractor within the meaning of Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct
contract with a public entity for a public works project.
(3) (A) "Public entity" means, without limitation, except as provided in subparagraph (B), a state
agency, department, office, division, bureau, board, or commission, the California State
University, the University of California, a city, including a charter city, county, including a charter
county, city and county, including a charter city and county, district, special district, public
authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by
a public agency and formed to carry out the purposes of the public agency.
(B) "Public entity" shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of that
department.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 23
Page 1 of 4
Design -Build Contract
Public Contract Code Section 9204
Draft Execution Copy: February 12, 2020
(iv) The Department of Corrections and Rehabilitation with respect to any project under its
jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the
Penal Code.
(v) The Military Department as to any project under the jurisdiction of that department.
(vi) The Department of General Services as to all other projects.
(vii) The High -Speed Rail Authority.
(4) "Public works project" means the erection, construction, alteration, repair, or improvement of
any public structure, building, road, or other public improvement of any kind.
(5) "Subcontractor" means any type of contractor within the meaning of Chapter 9 (commencing
with Section 7000) of Division 3 of the Business and Professions Code who either is in direct
contract with a contractor or is a lower tier subcontractor.
(d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the claim
applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days,
shall provide the claimant a written statement identifying what portion of the claim is disputed and
what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual
agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim.
(C) If the public entity needs approval from its governing body to provide the claimant a written
statement identifying the disputed portion and the undisputed portion of the claim, and the
governing body does not meet within the 45 days or within the mutually agreed to extension of
time following receipt of a claim sent by registered mail or certified mail, return receipt requested,
the public entity shall have up to three days following the next duly publicly noticed meeting of the
governing body after the 45-day period, or extension, expires to provide the claimant a written
statement identifying the disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and made within
60 days after the public entity issues its written statement. If the public entity fails to issue a written
statement, paragraph (3) shall apply.
(2) (A) If the claimant disputes the public entity's written response, or if the public entity fails to
respond to a claim issued pursuant to this section within the time prescribed, the claimant may
demand in writing an informal conference to meet and confer for settlement of the issues in
dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt
requested, the public entity shall schedule a meet and confer conference within 30 days for
settlement of the dispute.
(B) Within 10 business days following the conclusion of the meet and confer conference, if the
claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a
written statement identifying the portion of the claim that remains in dispute and the portion that
is undisputed. Any payment due on an undisputed portion of the claim shall be processed and
made within 60 days after the public entity issues its written statement. Any disputed portion of
the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation,
with the public entity and the claimant sharing the associated costs equally. The public entity and
claimant shall mutually agree to a mediator within 10 business days after the disputed portion of
the claim has been identified in writing. If the parties cannot agree upon a mediator, each party
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 23
Page 2 of 4
Design -Build Contract
Public Contract Code Section 9204
Draft Execution Copy: February 12, 2020
shall select a mediator and those mediators shall select a qualified neutral third party to mediate
with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged
by its respective mediator in connection with the selection of the neutral mediator. If mediation is
unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures
outside this section.
(C) For purposes of this section, mediation includes any nonbinding process, including, but not
limited to, neutral evaluation or a dispute review board, in which an independent third party or
board assists the parties in dispute resolution through negotiation or by issuance of an evaluation.
Any mediation utilized shall conform to the timeframes in this section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation
conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to
mediate after litigation has been commenced.
(E) This section does not preclude a public entity from requiring arbitration of disputes under
private arbitration or the Public Works Contract Arbitration Program, if mediation under this
section does not resolve the parties' dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time periods
described in this subdivision or to otherwise meet the time requirements of this section shall result
in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public
entity's failure to have responded to a claim, or its failure to otherwise meet the time requirements
of this section, shall not constitute an adverse finding with regard to the merits of the claim or the
responsibility or qualifications of the claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent
per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a
public entity because privity of contract does not exist, the contractor may present to the public
entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may
request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that
the contractor present a claim for work which was performed by the subcontractor or by a lower
tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be
presented to the public entity shall furnish reasonable documentation to support the claim. Within
45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as
to whether the contractor presented the claim to the public entity and, if the original contractor did
not present the claim, provide the subcontractor with a statement of the reasons for not having
done so.
(e) The text of this section or a summary of it shall be set forth in the plans or specifications for
any public works project that may give rise to a claim under this section.
(f) A waiver of the rights granted by this section is void and contrary to public policy, provided,
however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing,
mediation and proceed directly to the commencement of a civil action or binding arbitration, as
applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute
resolution procedures and requirements in addition to the provisions of this section, so long as
the contractual provisions do not conflict with or otherwise impair the timeframes and procedures
set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017.
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 23
Page 3 of 4
Design -Build Contract
Public Contract Code Section 9204
Draft Execution Copy: February 12, 2020
(h) Nothing in this section shall impose liability upon a public entity that makes loans or grants
available through a competitive application process, for the failure of an awardee to meet its
contractual obligations.
(i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed,
unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that
date.
(Added by Stats. 2016, Ch. 810, Sec. 1. Effective January 1, 2017. Repealed as of January 1,
2020, by its own provisions.)
Riverside County Transportation Commission
Express Lanes Connector Project
56800652.v31
Exhibit 23
Page 4 of 4
Design -Build Contract
Public Contract Code Section 9204
Draft Execution Copy: February 12, 2020
ATTACHMENT 3
Agreement No. 15-31-001-07
AMENDMENT NO. 7
TO PROFESSIONAL SERVICES AGREEMENT FOR PROJECT AND
CONSTRUCTION MANAGEMENT SERVICES FOR THE
1-15 CORRIDOR IMPROVEMENT PROJECT
1. PARTIES AND DATE
This Amendment No. 7 to the Agreement for project and construction
management services is made and entered into as of this day of
2020, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION
("Commission") and PARSONS TRANSPORTATION GROUP INC., an Illinois
corporation ("Consultant").
2. RECITALS
2.1 The Commission and the Consultant entered into an agreement, dated
April 8, 2015, for the purpose of providing project and construction
management services for the Interstate 15 Corridor Improvement Project
(the "Master Agreement") for a maximum not to exceed ("NTE") amount
of $50,625,807.
2.2 Senate Bill 132 was enacted on April 28, 2017 and provides, among other
things, $180 million for new tolled express lanes connectors from the
91 Express Lanes to the northern portion of the 1-15 (15/91 ELC). Funds
under SB132 are available for encumbrance and liquidation only until
June 30, 2023.
2.3 AB 115 was enacted on June 27, 2017 and provides additional project
delivery authority to Commission to ensure cost-effective and timely
delivery of the 15/91 ELC. Additional project delivery authority includes,
but is not limited to, amendments to any existing 1-15 Express Lanes
Project or 91 Express Lanes Project contract. This amendment is
authorized pursuant to AB 115.
2.4 The Commission and the Consultant entered into Agreement No. 15-31-
001-02-A, an amendment to the Master Agreement, dated November 1,
2017 in order to provide additional engineering and environmental
services to complete the Caltrans supplemental Project Report and
Environmental Document revalidation for the 15/91 ELC.
2.5 The Commission and the Consultant entered into Amendment No. 3 to
the Master Agreement, dated March 28, 2018, ("Amendment No. 3") in
order to extend the term, to provide project and construction management
services for the 15/91 ELC, to update the indemnification provision
pursuant to SB 496, and to include certain additional standard federal
provisions.
17336.00034\32708325.2
1
9
2.6 The Commission and the Consultant entered into Amendment No. 4 to the
Master Agreement, dated January 29, 2019, to provide design refinement,
including geometrical and structural changes, and additional soundwall
studies and revisions mandated by Caltrans District 8 Noise Group to
obtain environmental approval of the 15/91 ELC, and to provide additional
funding therefor.
2.7 The Commission and the Consultant entered into Amendment No. 5 to the
Master Agreement, dated June 26, 2019, to provide additional services
required to obtain environmental approval of the 15/91 ELC, primarily
related to unanticipated additional noise study work, and to provide
additional funding for such services.
2.8 The Commission and the Consultant now desire to amend the Master
Agreement in order to provide additional project and construction
management services required for the 15/91 ELC, and to provide
additional funding for such services.
3. TERMS
3.1 The term of the Master Agreement, as set forth in Section 3.3 of the Master
Agreement, is hereby extended through June 30, 2024.
3.2 The Services, as that term is defined in the Master Agreement, shall be
amended to include additional project and construction management
services required to complete the 15/91 ELC, as further detailed in Exhibit
A, attached to this Amendment No. 7 and incorporated herein by reference.
3.3 Compensation for Services under this Amendment No. 7 shall be in
accordance with the provisions governing fees and payment set forth in
Section 3.5 of Amendment No. 3, and in an amount not to exceed the
values shown in the cost proposal for this Amendment No. 7, as
summarized in Exhibit B, attached hereto and incorporated herein by
reference.
3.3.1 In addition to the allowable incurred costs, Commission shall pay Consultant
a fixed fee of ("Fixed Fee") for Services under this
Amendment No 7. The Fixed Fee is nonadjustable, except in the event of a
significant change in the Scope of Work, and such adjustment is made by
written amendment.
3.3.2 The total amount payable by Commission, including the Fixed Fee, for all
17 3 3 6.000 3 4\ 3 2 7 0 8 3 2 5.2
2
10
Services completed under this Amendment No. 7 shall not exceed
Dollars ($ ).
3.4 Services under this Amendment No. 7 shall be compensated in accordance
with the cost proposal attached hereto as Exhibit "B" and incorporated
herein by reference.
3.5 Except as previously amended and as amended by this Amendment No.
7, all provisions of the Master Agreement, including without limitation the
indemnity and insurance provisions, shall remain in full force and effect and
shall govern the actions of the parties under this Amendment No. 7.
3.6 This Amendment No. 7 shall be governed by the laws of the State of
California. Venue shall be in Riverside County.
3.7 This Amendment No. 7 may be signed in counterparts, each of which shall
constitute an original.
3.8 A manually signed copy of this Amendment No. 7 which is transmitted by
facsimile, email or other means of electronic transmission shall be deemed
to have the same legal effect as delivery of an original executed copy of
this Amendment No. 7 for all purposes.
s
17 3 3 6.000 3 4\ 3 2 7 0 8 3 2 5.2
[Signatures on following page]
3
11
SIGNATURE PAGE
TO
AGREEMENT NO. 15-31-001-07
IN WITNESS WHEREOF, the parties hereto have executed this agreement on
the date first herein above written.
RIVERSIDE COUNTY PARSONS TRANSPORTATION
TRANSPORTATION COMMISSION GROUP INC.
By:
Anne Mayer, Executive Director Signature
APPROVED AS TO FORM:
By: _
Best Best & Krieger LLP
General Counsel
17336.00034\32708325.2
4
Name
Title
12
EXHIBIT "A"
SCOPE OF WORK
[Attached behind this page]
17336.00034\32708325.2
EXHIBIT "A"
SCOPE OF WORK
I-15/SR 91 Express Lanes Connector
PCM Amendment Scope
Amendment #7
ELC Scope of Work
A-1
EXHIBIT A
SCOPE OF WORK
This scope of work (SOW) assumes that future work related to the design, construction,
installation, testing, operation, and maintenance of the I-15/SR-91 Express Lanes
Connector (ELC) will be accomplished through a combination of a separate and new
Design -Build (DB) procurement, and either amendments and/or change orders to the
existing 1-15 Express Lane DB and Toll Services Provider (TSP) contracts.
The Offeror shall assist the Riverside County Transportation Commission
("Commission") in the planning, implementation and general oversight of the ELC.
Offeror will provide the Commission with the agreed upon staff, resources, and
expertise to manage the ELC. The Scope of Work includes program management,
preliminary design, development of procurement documents, and change order
negotiation with the ELC Design -Builder and Tolling Service Provider, risk assessment
and management, toll system planning and development of the operational rules,
overseeing the design -build construction, overseeing the toll system installation and
startup, utility coordination services, railroad coordination services, environmental and
permit support, third party coordination and agreements, ELC controls, quality
management services, public outreach support, design review oversight, construction
management oversight, and contract administration services.
The SOW was written with the intent to describe most if not all services to be provided
by the Offeror. However, Commission may require he Offeror to provide additional
services not specifically identified in this SOW. The Offeror will be required to provide
assistance to the Commission and to provide these additional services to assure the
successful completion of the ELC.
A. ELC Management - TASK 100
Under the Commission's direction, provide overall management of ELC activities and/or
support for agency agreements, ELC financing, procurements and negotiations,
contract awards and contract management, ELC controls, toll system planning and
installation, ROW engineering and acquisition, utility relocation, final design,
construction, environmental permitting, railroad coordination, safety, quality, public
outreach, and other ELC activities. These ELC management responsibilities include
overseeing the activities of the ELC Design -Builder and Toll System Provider,
environmental mitigation, and other contracts further defined in this SOW:
A.1 ELC Management
Under the Commission's direction,
• Represent Commission and be the contact for coordination and
communication between the Commission and the ELC Design -
Builder and the Toll System Provider. Offeror will be the primary
point of contact with Commission on all ELC and contract -related
ELC Scope of Work
A-2
15
matters;
• Plan and conduct meetings, cooperate and coordinate with
stakeholder agencies including the California Department of
Transportation (Caltrans), Federal Highway Administration
(FHWA), regional agencies, and municipalities;
• Coordinate and oversee ELC activities and deliverables performed
by the ELC Design -Builder, Toll System Provider, and other
contractors associated with the ELC;
• Cooperate and coordinate with other Commission consultants,
financial advisors, legal advisors, and contractors to achieve
completion of ELC development activities; and
• Develop, monitor compliance, and maintain a commitment
register and log based on the commitments and obligations with
Federal, State, and Local agency requirements contained in
applicable agreements.
A.2 ELC Administration
Provide administrative personnel and perform general office management and
administration for the duration of the ELC. Administrative responsibilities include:
• Schedule meetings; prepare meeting agendas, minutes, and
action items; provide ELC standards and templates for ELC
communications; institute specific ELC initiatives;
• Provide document control services throughout the ELC duration;
and
• Provide general office support at the co -located office for the
PCM, Commission, Caltrans, FHWA, and others as necessary.
A.3 Polices, Plans and Manuals
Offeror shall obtain and review relevant ELC information and prepare various
plans.
• ELC Information
Obtain and review all available ELC information including preliminary
engineering, ELC reports/briefs, presentations, plans, cost estimates,
environmental documents, environmental technical studies, advance
planning studies, cooperative agreements and other ELC information
provided by Commission, Caltrans, and others.
ELC Scope of Work
A-3
16
" E L C C l o s e - O u t P l a n
I d e n t i f y t h e r e q u i r e m e n t s t o e f f e c t i v e l y c l o s e - o u t t h e d e s i g n - b u i l d a n d
s y s t e m i n t e g r a t i o n c o n t r a c t s i n c l u d i n g s u b m i t t a l s o f a l l r e c o r d
d r a w i n g s , p r o g r e s s r e q u i r e d t o o b t a i n s u b s t a n t i a l a n d f i n a l c o m p l e t i o n ,
n e c e s s a r y d o c u m e n t a t i o n , a p p l i c a t i o n s , d a t a , s u b m i t t a l s , a n d
c o m p l e t i o n o f a l l r e p o r t s .
" O t h e r P l a n s
P r e p a r e o t h e r p l a n s i d e n t i f i e d e l s e w h e r e i n t h i s S O W . I d e n t i f y a n d
p r e p a r e o t h e r p l a n s a s n e c e s s a r y t o c o m p l y w i t h l o c a l , s t a t e , o r f e d e r a l
r e q u i r e m e n t s o r a s d i r e c t e d b y t h e C o m m i s s i o n .
A . 4 E L C S a f e t y
O f f e r o r s h a l l p r o v i d e a S a f e t y E n g i n e e r / M a n a g e r w h o w i l l b e r e s p o n s i b l e f o r
o v e r s e e i n g E L C s a f e t y i n c l u d i n g e n s u r i n g E L C t e a m a n d c o n t r a c t o r c o m p l i a n c e
w i t h E L C s a f e t y r e q u i r e m e n t s r e l e v a n t t o f u t u r e c o - l o c a t e d E L C a n d t o l l
o p e r a t i o n s o f f i c e s a n d c o n s t r u c t i o n s i t e s . S a f e t y a c t i v i t i e s i n c l u d e b u t a r e n o t
l i m i t e d t o :
" I n t e g r a t e t h e E L C i n t o t h e e x i s t i n g 1 - 1 5 E x p r e s s L a n e s P r o j e c t ( E L P )
p r o j e c t - w i d e s a f e t y p r o g r a m . P r o v i d e a n d i m p l e m e n t a n E L C
o v e r s i g h t s i t e s a f e t y p l a n a n d p r o v i d e s a f e t y t r a i n i n g f o r a l l o w n e r
o v e r s i g h t p e r s o n n e l o n t h e E L C . P r o v i d e h a r d h a t s a n d s a f e t y v e s t s
f o r a l l o w n e r o v e r s i g h t p e r s o n n e l w h o w i l l b e w o r k i n g o n t h e E L C s i t e ;
" A s n e c e s s a r y , r e v i s e t h e s a f e t y r e q u i r e m e n t s t h a t a r e i n c l u d e d i n t h e
E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s P r o v i d e r c o n t r a c t s , i n c l u d i n g
s a f e t y m a n u a l a n d t r a i n i n g p r o g r a m r e q u i r e m e n t s f o r a l l E L C
p e r s o n n e l .
" E n s u r e c o m p l i a n c e o f t h e s a f e t y p r o g r a m w i t h a l l f e d e r a l , s t a t e a n d
l o c a l l a w s i n c l u d i n g t h o s e o f C a l i f o r n i a O c c u p a t i o n a l S a f e t y a n d
H e a l t h A d m i n i s t r a t i o n ( C a l - O S H A ) , C a l t r a n s , C o m m i s s i o n a n d t h e
l o c a l a g e n c i e s a n d j u r i s d i c t i o n s ;
" R e v i e w v a r i o u s E L C a c t i v i t i e s a n d w o r k p r o c e s s e s a n d p e r f o r m
p e r i o d i c a u d i t s t o a s s e s s g e n e r a l o f f i c e s a f e t y a n d c o m p l i a n c e w i t h
c u r r e n t b e s t p r a c t i c e s ;
" W o r k w i t h C a l t r a n s t o m e r g e i t s b u d g e t e d s a f e t y r e s p o n s i b i l i t i e s
w i t h C o m m i s s i o n a n d O f f e r o r , a n d b u i l d o n e e f f e c t i v e s a f e t y o v e r s i g h t
p r o g r a m f o r t h e E L C . E s t a b l i s h r o l e s a n d r e s p o n s i b i l i t i e s , n e c e s s a r y
o v e r s i g h t , a n d r e p o r t i n g r e q u i r e m e n t s ;
" P e r f o r m s a f e t y o v e r s i g h t o f t h e I - E L C E L C D e s i g n - B u i l d e r a n d T o l l
S e r v i c e s P r o v i d e r ;
E L C S c o p e o f W o r k
A - 4
1 7
o Verify implementation of the safety training by the Design -
Builder and Toll Services Provider for all ELC staff, and provide
training to office staff as required;
o Track ELC Design -Builder and Toll Services Provider proper
investigation and reporting of accidents;
o Monitor the provision of proper safety personnel protective
equipment to all ELC Design -Builder and Toll Services
Provider personnel, and other ELC personnel as required; and
o Regularly document or require documents by ELC Design -
Builder and Toll Services Provider of safety meetings with set
agendas as conducted by ELC Design -Builder and Toll
Services Provider to document safety understanding and
compliance.
• Oversee the investigation of accidents, report to the Commission,
and recommend corrective actions to reduce risks and reoccurrence.
A.5 Quality Assurance (QA)
Offeror shall provide a Quality Engineer/Manager who will be responsible for
overseeing ELC quality including ensuring ELC team, ELC Design -Builder and
Toll System Provider compliance with ELC quality requirements relevant to all
deliverables and construction. Quality activities include but are not limited to:
• Integrate the ELC into the existing I-15-ELP QA program based on
the ELC scope, assumed construction contracts, stakeholder
requirements, and delivery approach of the ELC. The QA program
shall include the clear delineation of roles and responsibilities between
all identified parties related to all design, procurement, installation, and
construction activities and the development and maintenance of a
quality manual;
• Review and revise, as necessary, the quality requirements that will be
included into the ELC Design -Builder and Toll Services Provider
change order documents;
• Work with Caltrans to merge its budgeted quality responsibilities
with Commission and Offeror, and build one effective quality oversight
program for the ELC. Establish roles and responsibilities, necessary
oversight, and reporting requirements; and
• Perform independent quality assurance (IQA) during final design,
installation, and construction of ELC improvements of Design- Build
and Toll Services Provider including overseeing compliance with
quality control (QC) and QA requirements, over -the -shoulder reviews,
audits of contractor's QC and QA activities, resolution of audit
ELC Scope of Work
A-5
18
findings, coordinating with contractor's quality personnel, and providing
periodic quality reporting.
A.6 ELC Support and Other Services
• Participate in the review of third -party insurance claims involving
incidents as it affects Commission and provide analyses, identify
means to mitigate or resolve, and make recommendations for action
by Commission;
• Identify, define, and implement key ELC initiatives that will benefit
Commission and the ELC by improving work processes and reducing
ELC costs and resource requirements; and
• Schedule, coordinate, and/or attend meetings, as required, and
provide all necessary meeting materials (i.e., agendas, minutes, action
items, reports and documents) necessary to support the ELC
management activities.
A.7 Risk Management
• Perform ongoing Project risk identification and management
activities by working with the various Project work groups, including
the Design -Builder and Systems Integrator;
• Provide all necessary reports and actions requested by Commission to
support requests of Caltrans, FHWA, lenders, or others in
documenting adherence to risk management requirements and
practices.
A.8 Agency Agreements and Stakeholder Coordination
• Work with the Commission to amend, create, develop, negotiate, and
execute agency agreements required to incorporate the ELC .
including but not limited to the following:
o Construction Zone Enhanced Enforcement Program (Caltrans);
o California Tolling Agency Interoperable Agreements (various
statewide tolling agencies);
o Toll Violation Enforcement Agreement (California Highway
Patrol (CHP));
o Roadway Maintenance Agreement; and
• Other agency agreements as necessary.
ELC Scope of Work
A-6
19
" O f f e r o r s h a l l i d e n t i f y , d e f i n e , s c h e d u l e , f a c i l i t a t e a n d c o o r d i n a t e w i t h
s t a k e h o l d e r a g e n c i e s i n s u p p o r t o f E L C p o l i c i e s , p r o c e d u r e s , p r a c t i c e s
a n d s c h e d u l e s . A d d i t i o n a l l y , O f f e r o r s h a l l w o r k t h r o u g h b a r r i e r s a n d
e n h a n c e o p p o r t u n i t y f o r i n n o v a t i o n i n t h e t i m e l y d e l i v e r y o f t h e E L C ,
p a r t i c u l a r l y w i t h t h o s e c o m m i t m e n t s a n d o b l i g a t i o n s a s s o c i a t e d w i t h
a n y c o o p e r a t i v e a g r e e m e n t s b e t w e e n C o m m i s s i o n a n d t h e r e s p e c t i v e
a g e n c y . T h e r e s p e c t i v e a g e n c i e s i n c l u d e b u t a r e n o t l i m i t e d t o t h e
c i t i e s o f C o r o n a , R i v e r s i d e C o u n t y , R i v e r s i d e C o u n t y F l o o d C o n t r o l
a n d W a t e r C o n s e r v a t i o n D i s t r i c t ( R C F C W C D ) , C a l t r a n s , a n d F H W A .
A . 9 P u b l i c O u t r e a c h
O f f e r o r s h a l l p r o v i d e s u p p o r t i n t h e d e v e l o p m e n t a n d i m p l e m e n t a t i o n o f p u b l i c
a n d g o v e r n m e n t r e l a t i o n s c o m m u n i c a t i o n p l a n s f o r t h e E L C . T h e c o m m u n i t y a n d
g o v e r n m e n t r e l a t i o n s c o m m u n i c a t i o n p l a n s s h a l l p r o v i d e :
" P u b l i c i n f o r m a t i o n a n d r e s p o n s e t o p u b l i c a n d m e d i a q u e s t i o n s a b o u t
t h e E L C ;
" O n g o i n g c o m m u n i c a t i o n s w i t h s t a f f a n d b o a r d s o f p u b l i c a g e n c i e s ,
E L C p a r t n e r s , a n d e l e c t e d o f f i c i a l s ;
" A t t e n d a n c e a t p u b l i c m e e t i n g s , h e a r i n g s , i n d u s t r y p r e s e n t a t i o n s ,
a n d c o m m u n i t y g r o u p p r e s e n t a t i o n s , i n c l u d i n g t h e p r e p a r a t i o n o f
p r e s e n t a t i o n m a t e r i a l s ;
" P r e p a r e a n d d i s t r i b u t e , a s d i r e c t e d b y C o m m i s s i o n , E L C b r o c h u r e s ,
f a c t s h e e t s , b r a n d i n g i t e m s , m e s s a g i n g , a n d o t h e r n e c e s s a r y
c o m m u n i c a t i o n a n d c o l l a t e r a l m a t e r i a l s t o s u p p o r t C o m m i s s i o n ' s
c o m m u n i c a t i o n s o b l i g a t i o n a n d r e q u i r e m e n t s w i t h t h e a g e n c i e s a n d
c o m m u n i t i e s ;
" L e a d a n d / o r p a r t i c i p a t e i n r e g u l a r l y s c h e d u l e d m e e t i n g s i n c l u d i n g
c e r t a i n t e c h n i c a l w o r k g r o u p s , p r e c o n s t r u c t i o n , a n d c o n s t r u c t i o n
r e l a t e d m e e t i n g s w i t h C o m m i s s i o n , D e s i g n - B u i l d e r , a n d T o l l S e r v i c e s
P r o v i d e r p e r s o n n e l . P r e p a r e f o r m e e t i n g s , a s r e q u i r e d , t o p r o p e r l y
o r g a n i z e o r s u p p o r t e a c h m e e t i n g e v e n t ;
" O v e r s e e , m o n i t o r , a n d c o o p e r a t e i n b u s i n e s s s u p p o r t m e e t i n g s b y
t h e E L C D e s i g n - B u i l d e r , a n d o r g a n i z e a n d p r e p a r e f o r s u c h
m e e t i n g s , a s r e q u e s t e d b y C o m m i s s i o n , t o s u p p o r t t h e E L C ' s e f f o r t s
t o m i t i g a t e i s s u e s a n d d i s r u p t i o n s t o l o c a l b u s i n e s s e s d u e t o
c o n s t r u c t i o n a c t i v i t i e s ;
" P r e p a r e a n d o r g a n i z e m e d i a e v e n t s a n d g o v e r n m e n t a l r e l a t i o n s
a c t i v i t i e s , i n c l u d i n g n e w s o r g a n i z a t i o n s a n d m e d i a a n d e l e c t e d
o f f i c i a l s ;
E L C S c o p e o f W o r k
A - 7
2 0
" P r e p a r e c o l l a t e r a l m a t e r i a l s a n d o t h e r s u p p o r t d o c u m e n t s f o r s p e c i a l
e v e n t s s u c h a s " r i b b o n c u t t i n g s " a n d " g r o u n d - b r e a k i n g " c e r e m o n i e s ;
" P r o v i d e r e p o r t s , m e e t i n g o r g a n i z a t i o n m a t e r i a l s , t a b l e s , d a t a , a n d
o t h e r f o r m s o f c o m m u n i c a t i o n s t o p r e s e n t o r d o c u m e n t a c t i v i t i e s o n t h e
p u b l i c o u t r e a c h e f f o r t s ; a n d
" M a i n t a i n a d a t a b a s e r e c o r d o f a l l p u b l i c o u t r e a c h c o n t a c t s a n d
r e s p o n s e s .
B . D e s i g n M a n a g e m e n t T A S K 2 0 0
O f f e r o r s h a l l p r o v i d e d a y - t o - d a y m a n a g e m e n t o f a l l p l a n n i n g , d e s i g n r e v i e w , a n d
o v e r s i g h t a c t i v i t i e s f o r t h e E L C i n c l u d i n g c o o r d i n a t i n g w i t h s t a k e h o l d e r s a n d a f f e c t e d
a g e n c i e s o n t e c h n i c a l i s s u e s r e l a t i n g t o u t i l i t i e s , R O W a c q u i s i t i o n , r a i l r o a d c o o r d i n a t i o n ,
a n d e n v i r o n m e n t a l m i t i g a t i o n . C o o r d i n a t e E L C D e s i g n - B u i l d e r d e s i g n a c t i v i t i e s w i t h
t h o s e o f t h e T o l l S e r v i c e s P r o v i d e r a s d e s c r i b e d i n S e c t i o n C , T o l l i n g S e r v i c e s .
B . 1 D e s i g n M a n a g e m e n t
" R e v i e w E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s P r o v i d e r d e s i g n
s u b m i t t a l s f o r c o n f o r m a n c e w i t h t h e c o n t r a c t d o c u m e n t s a n d a l l
a p p l i c a b l e F e d e r a l , S t a t e , a n d L o c a l a g e n c y r e q u i r e m e n t s . P r o v i d e
s t a f f p l a n n i n g a n d r e s o u r c e s r e q u i r e m e n t s t o m e e t s c h e d u l e
c o m m i t m e n t s , i n c l u d i n g h i g h w a y , s t r u c t u r a l , d r a i n a g e , u t i l i t i e s , t r a f f i c ,
l a n d s c a p e , a e s t h e t i c s , a c o u s t i c , a n d g e o t e c h n i c a l e n g i n e e r s a n d
s u p p o r t s t a f f r e q u i r e d t o p e r f o r m t h e I n t e g r a t e d Q u a l i t y A s s u r a n c e
r e v i e w a n d a p p r o v a l s .
B . 2 D e s i g n S u p p o r t
" T h e O f f e r o r s h a l l o r g a n i z e a n d c o n s o l i d a t e t h e d e s i g n c o n c e p t
d r a w i n g s t o b e p r o v i d e d a s p a r t o f t h e R F P d o c u m e n t s . T h e b a s i s f o r
t h e d e s i g n c o n c e p t d r a w i n g s s h a l l b e t h e d r a w i n g s d e v e l o p e d a s p a r t
o f t h e P A / E D e f f o r t ;
" R e v i e w o f a l l a v a i l a b l e E L C d a t a a n d i n f o r m a t i o n , i n c l u d i n g E L C
r e p o r t s , p l a n s , e s t i m a t e s , t e c h n i c a l a n d p l a n n i n g s t u d i e s , c o o p e r a t i v e
a g r e e m e n t s , e n v i r o n m e n t a l d o c u m e n t a t i o n a n d o t h e r E L C i n f o r m a t i o n
a s p r o v i d e d b y C o m m i s s i o n , C a l t r a n s , a n d o t h e r s t a k e h o l d e r a g e n c i e s ;
" R e v i e w a n d u n d e r s t a n d t h e G e o m e t r i c A p p r o v a l D r a w i n g s ( G A D ' s ) ,
e x c e p t i o n s t o M a n d a t o r y a n d A d v i s o r y D e s i g n S t a n d a r d s , a n d o t h e r
d o c u m e n t s d e v e l o p e d p r e v i o u s l y b y t h e C o m m i s s i o n ' s v a r i o u s
s u b c o n t r a c t o r s . P r e p a r e a S u p p l e m e n t a l G A D f o r t h e E L C ; a n d
" P r o v i d e e n g i n e e r i n g s u p p o r t f o r f u r t h e r d e f i n i t i o n a n d r e f i n e m e n t o f
R O W l i n e s t o d e v e l o p R O W r e q u i r e m e n t s f o r n e g o t i a t e d a n d e m i n e n t
d o m a i n a c q u i s i t i o n o f E L C R O W
E L C S c o p e o f W o r k
A - 8
2 1
" R e v i e w E L C D e s i g n - B u i l d e r C o m p u t e r - A i d e d D e s i g n a n d D r a f t i n g
( C A D D ) p r o t o c o l a n d d o c u m e n t E L C D e s i g n - B u i l d e r c o m p l i a n c e t o
c o n t r a c t d o c u m e n t s a n d C a l t r a n s s t a n d a r d s a n d r e q u i r e m e n t s ;
" M o n i t o r c o m p l i a n c e a n d t a k e c o r r e c t i v e a c t i o n s t o s u b m i t t a l
p r o c e d u r e s , c y c l e s , a n d r e v i e w t i m e f r a m e s f o r t h e p r o c e s s i n g , r e v i e w ,
a n d a p p r o v a l o f a l l s u b m i t t a l s b y C o m m i s s i o n , C a l t r a n s , a n d
s t a k e h o l d e r a g e n c i e s i n c o m p l i a n c e w i t h t h e D e s i g n - B u i l d c o n t r a c t ;
" R e p r e s e n t C o m m i s s i o n w i t h C a l t r a n s a n d t h e E L C D e s i g n - B u i l d e r o n
a l l e n g i n e e r i n g i s s u e s a n d f a c i l i t a t e C o m m i s s i o n ' s a p p r o v a l . F a c i l i t a t e
o t h e r a g e n c y r e v i e w s / a p p r o v a l s o f E L C s u b m i t t a l s ;
" P r o v i d e C A D D s u p p o r t , a s n e c e s s a r y , f o r a n y t e c h n i c a l a n a l y s e s ,
g r a p h i c a l p r e s e n t a t i o n s , r e f e r e n c e m a t e r i a l s , R O W a c q u i s i t i o n ,
r e g u l a t o r y p e r m i t s , a n d E L C d o c u m e n t s ;
" R e g u l a r l y c o o r d i n a t e a n d c o m m u n i c a t e w i t h C o m m i s s i o n o n s t a t u s
a n d p r o g r e s s o n d e s i g n r e v i e w s a n d o v e r s i g h t o f E L C D e s i g n - B u i l d e r ' s
s u b m i t t a l s . I d e n t i f y a n y t e c h n i c a l i s s u e s w i t h p r o p o s e d s o l u t i o n s
a n d m a k e r e c o m m e n d a t i o n s t o r e s o l v e t o C o m m i s s i o n , i n c l u d i n g
n e c e s s a r y a c t i o n s t o i m p l e m e n t p r o p o s e d s o l u t i o n ( s ) ;
" C o o r d i n a t e C o m m i s s i o n , C a l t r a n s , a n d o t h e r s t a k e h o l d e r a g e n c y
i n v o l v e m e n t a n d p a r t i c i p a t i o n i n E L C D e s i g n - B u i l d e r t e c h n i c a l
m e e t i n g s , p r o c e s s E L C D e s i g n - B u i l d e r m e e t i n g m i n u t e s , a n d
c o o r d i n a t e C o m m i s s i o n a n d s t a k e h o l d e r a c t i o n i t e m s r e s u l t i n g f r o m
t e c h n i c a l m e e t i n g s , a l o n g w i t h n e c e s s a r y a g e n c y a p p r o v a l s ;
" S c h e d u l e , c o o r d i n a t e , a n d a t t e n d m e e t i n g s , a s n e c e s s a r y , i n
c o o p e r a t i o n w i t h t h e a g e n c i e s a n d c o n t r a c t e d p a r t i e s ( D e s i g n - B u i l d e r
a n d T o l l S e r v i c e s P r o v i d e r ) , i n c l u d i n g t h e p r e p a r a t i o n o f a g e n d a s ,
m e e t i n g m i n u t e s , a n d a c t i o n i t e m s ; a n d
" P a r t i c i p a t e w i t h t h e c o n s t r u c t i o n m a n a g e m e n t u t i l i t y o v e r s i g h t
p e r s o n n e l i n p r o v i d i n g N o t i c e s t o O w n e r s a n d i n o v e r s e e i n g a n d
c o o r d i n a t i n g t h e d e s i g n a n d e n g i n e e r i n g w o r k o f t h e u t i l i t y a g e n c i e s
a n d t h o s e o f t h e E L C D e s i g n - B u i l d e r , a s a p p r o p r i a t e .
B . 3 S t r u c t u r e s I Q A
O f f e r o r s h a l l :
" R e v i e w a l l a v a i l a b l e E L C d a t a a n d i n f o r m a t i o n , i n c l u d i n g E L C r e p o r t s ,
p l a n s , e s t i m a t e s , t e c h n i c a l a n d p l a n n i n g s t u d i e s f o r i n c o r p o r a t i o n i n t o
t h e a p p r o p r i a t e a m e n d m e n t ;
" P r o v i d e p r e l i m i n a r y l o n g l e a d t i m e E L C e l e m e n t s n e c e s s a r y t o
s u p p o r t t h e d e s i g n - b u i l d d e l i v e r y s c h e d u l e a s r e q u e s t e d b y t h e
C o m m i s s i o n ;
E L C S c o p e o f W o r k
A - 9
2 2
" P r o v i d e p r e l i m i n a r y d e s i g n d e v e l o p m e n t a t t h e T e m e s c a l W a s h
C r o s s i n g s a s n e e d e d t o s u p p o r t t h e r e g u l a t o r y a n d c o n s t r u c t i o n
e n v i r o n m e n t a l p e r m i t t i n g ;
" P r o v i d e d e s i g n m a n a g e m e n t s e r v i c e s t o r e v i e w E L C D e s i g n - B u i l d e r
s u b m i t t a l s , i n c l u d i n g d e s i g n p l a n s , i n v e s t i g a t i o n s , s t u d i e s , a n d r e p o r t s
r e q u i r e d b y t h e c o n t r a c t , f o r a c c e p t a b i l i t y a n d c o n f o r m a n c e t o c o n t r a c t
r e q u i r e m e n t s , C a l t r a n s s t a n d a r d s , a n d s t a k e h o l d e r a g e n c y s t a n d a r d s ;
a n d
" R e v i e w a n d r e s p o n d t o s t r u c t u r e s - r e l a t e d i s s u e s a n d a c t i v i t i e s a f t e r
i s s u a n c e o f R e l e a s e f o r C o n s t r u c t i o n ( R F C ) p a c k a g e s .
B . 4 R o a d w a y & D r a i n a g e I Q A
O f f e r o r s h a l l :
" R e v i e w a l l a v a i l a b l e E L C d a t a a n d i n f o r m a t i o n , i n c l u d i n g E L C r e p o r t s ,
p l a n s , e s t i m a t e s , t e c h n i c a l a n d p l a n n i n g s t u d i e s f o r i n c o r p o r a t i o n i n t o
t h e a m e n d m e n t a n d p r e l i m i n a r y R F P d o c u m e n t s ;
" I d e n t i f y a r e a s f o r r i s k r e d u c t i o n ;
" P r o v i d e d e s i g n m a n a g e m e n t s e r v i c e s t o r e v i e w E L C D e s i g n - B u i l d e r
s u b m i t t a l s , i n c l u d i n g d e s i g n p l a n s , i n v e s t i g a t i o n s , s t u d i e s , a n d r e p o r t s
r e q u i r e d b y t h e c o n t r a c t , f o r a c c e p t a b i l i t y a n d c o n f o r m a n c e t o c o n t r a c t
r e q u i r e m e n t s , C a l t r a n s s t a n d a r d s , a n d s t a k e h o l d e r a g e n c y s t a n d a r d s ;
a n d
" R e v i e w a n d r e s p o n d t o r o a d w a y & d r a i n a g e r e l a t e d i s s u e s a n d
a c t i v i t i e s a f t e r i s s u a n c e o f R F C p a c k a g e s .
" F i e l d i n v e s t i g a t e d r a i n a g e s y s t e m s a n d p e r f o r m c o n d i t i o n a s s e s s m e n t
p r i o r t o c o n s t r u c t i o n a m e n d m e n t d e v e l o p m e n t .
B . 5 M a i n t e n a n c e o f T r a f f i c I Q A
O f f e r o r s h a l l :
" P r o v i d e d e s i g n m a n a g e m e n t s e r v i c e s t o r e v i e w E L C D e s i g n - B u i l d e r
s u b m i t t a l s , i n c l u d i n g d e s i g n p l a n s , i n v e s t i g a t i o n s , s t u d i e s , a n d r e p o r t s ,
r e q u i r e d b y t h e c o n t r a c t , f o r a c c e p t a b i l i t y a n d c o n f o r m a n c e t o c o n t r a c t
r e q u i r e m e n t s , C a l t r a n s s t a n d a r d s , a n d s t a k e h o l d e r a g e n c y s t a n d a r d s ;
a n d
" R e v i e w a n d r e s p o n d t o m a i n t e n a n c e o f t r a f f i c r e l a t e d i s s u e s a n d
a c t i v i t i e s a f t e r i s s u a n c e o f R F C p a c k a g e s .
E L C S c o p e o f W o r k
A - 1 0
2 3
B.6 Traffic Management System (TMS) IQA
Offeror shall:
• Review draft Traffic Management Plan (TMP) provided by others
and make recommendations on possible enhancements;
• Provide design management services to review ELC Design -Builder
submittals, including design plans, investigations, studies, and reports
required by the contract, for acceptability and conformance to contract
requirements, Caltrans standards, and stakeholder agency standards;
and
• Review and respond to TMS related issues and activities after
issuance of RFC packages.
B.7 Electrical & Lighting IQA
Offeror shall:
• Coordinate with Commission, Caltrans, and identify system needs;
• Provide design management services to review ELC Design -Builder
submittals, including design plans, investigations, studies, and reports
required by the contract, for acceptability and conformance to contract
requirements, Caltrans standards, and stakeholder agency standards;
and
• Review and respond to electrical & lighting related issues and activities
after issuance of RFC packages.
B.8 Landscape & Aesthetics IQA
Offeror shall:
• Provide design management services to review ELC Design -Builder
submittals, including design plans, investigations, studies, and reports
required by the contract, for acceptability and conformance to contract
requirements, Caltrans standards, and stakeholder agency standards;
and
• Review and respond to landscape & aesthetics related issues and
activities after issuance of RFC packages.
ELC Scope of Work
A-11
24
B.9 Environmental & Permits
Offeror shall provide environmental oversight, compliance, and coordination of ELC
Design -Builder's environmental obligations and commitments under the contract,
including Commission's obligations and requirements with resource agencies.
This includes:
• Incorporation of environmental requirements and approved mitigation
commitments and plans into the DB contract amendment and
preliminary RFP, preparation of necessary environmental permits,
preparation of necessary environmental mitigation or in -lieu fee
agreements for execution by the Commission;
• The following permits shall be updated to the level of completion
needed to support the delivery schedule:
o United States Army Corps of Engineers (USACE) 404 and
408 permits, and Out Grant Agreement;
o Regional Water Quality Control Board (RWQCB) 401
Certification; and
o California Department of Fish and Wildlife (CDFW) 1602
Streambed Alteration permit.
• Oversee ELC Design -Builder's requirements in meeting the
obligations and commitments in its preparation of materials and
documents to secure the final USACE 404 and 408 permits, and Out
Grant Agreement; RWQCB 401 certification; CDFW 1602 permit; and
RCFCWCD encroachment permit;
• Coordinate approval of the permits and agreements with each
resource agency, address any changes required of the ELC Design -
Builder by the agencies, and further the approval of the permits and
agreements;
• Analyze and assess environmental re -validation and re-evaluations
required due to Commission directed changes and implement
accordingly;
• Coordinate with Caltrans for review and comment on all environmental
activities, including agreements, permits, and exercises of re -validation
and re-evaluation;
• Oversee ELC Design -Builder's acquiring of all necessary
environmental permits affecting their construction activities, including
storm water permits;
• Schedule and coordinate meetings necessary to accomplish the
environmental requirements of Commission, including providing
ELC Scope of Work
A-12
25
agenda and meeting minutes and action items; and
• Oversee implementation of the approved mitigation monitoring plan
for compliance with Caltrans and regulatory agencies permit
requirements and the mitigation documented in the environmental
document.
B.10 Utility Coordination & Oversight
Offeror shall provide a ROW/Utility Team Leader who will be responsible for
coordinating the utilities affected by the ELC. To accommodates and facilitate
the design -build schedule, Offeror may be requested to undertake certain
relocation work if needed. Utility coordination activities include, but are not
limited, to the following:
• Identify utilities that may be impacted by the ELC;
• Meet with utility companies and other entities to determine their
requirements for relocation, protection, and abandonment of utilities
required to accommodate ELC and to establish any potential ROW
impacts for utility relocations;
• Coordinate all final utility agreements with private utility owners.
Monitor utility relocation work and meet regularly with Design- Builder,
utility agencies, Caltrans, Commission, and other stakeholder
agencies to coordinate utility relocation work;
• Coordinate all interaction and correspondences with utility owners
including but not limited to preparation of proper notices (i.e., Notice to
Owners), ELC Design -Builder submittals, notice to utility owners
required to commence their (utility owner) design, procurement, and
relocation activities, as necessary;
• Prepare Report of Investigation (ROI) as outlined in Section 13-05 of
Caltrans ROW Manual Chapter 13;
• Review and comment, as appropriate, on utility owner designs for
inclusion into ELC Design -Builder final design documents, and review
ELC Design -Builder's RFC documents for proper inclusion of the utility
owner designs;
• Confirm that the utility agency and ELC Design -Builder have all
necessary permits and ROW clearances to allow relocation work to
proceed;
• Oversee coordination between the ELC Design -Builder and utility
agencies' construction and relocation work, address any issues and
confirm identification, protection, adjustment, removal, or relocation of
the subject utility in compliance with State and Federal laws and
regulations, standards, and agreements; and
ELC Scope of Work
A-13
26
" O v e r s e e a n d c o o r d i n a t e t h e f i n a l d o c u m e n t a t i o n a n d c o m p l e t i o n o f
t h e u t i l i t y o w n e r r e l o c a t i o n w o r k , a n d r e v i e w a n d r e c o m m e n d f i n a l
p a y m e n t s a n d c l o s e o u t .
B . 1 1 R a i l r o a d C o o r d i n a t i o n
O f f e r o r s h a l l :
" C o o r d i n a t e w i t h t h e a p p l i c a b l e r a i l r o a d e n t i t y t o f a c i l i t a t e e x e c u t i o n o f
t h e n e c e s s a r y r a i l r o a d a g r e e m e n t s ;
" O v e r s e e a n d s u p p o r t C o m m i s s i o n ' s r e q u i r e m e n t s w i t h t e c h n i c a l
r e v i e w a n d p r o c e s s i n g f o r a p p r o v a l o f B u r l i n g t o n N o r t h e r n S a n t a F e
( B N S F ) C o n s t r u c t i o n a n d M a i n t e n a n c e A g r e e m e n t s b a s e d o n E L C
s c h e d u l e r e q u i r e m e n t s ;
" C o o r d i n a t e E L C D e s i g n - B u i l d e r a n d B N S F d e s i g n r e v i e w s . F a c i l i t a t e
r e c e i p t o f B N S F a p p r o v a l s o f E L C D e s i g n - B u i l d e r d e s i g n s ;
" O v e r s e e c o m p l i a n c e w i t h t h e p l a n s a n d s p e c i f i c a t i o n s b y t h e E L C
D e s i g n - B u i l d e r w i t h B N S F g u i d e l i n e s ;
" O v e r s e e a n d c o o r d i n a t e w i t h B N S F r e g a r d i n g a l l E L C w o r k a f f e c t i n g
B N S F o p e r a t i o n s a n d t h e a c t i v i t i e s o f t h e E L C D e s i g n - B u i l d e r ,
i n c l u d i n g c o m p l i a n c e w i t h B N S F r e q u i r e m e n t s f o r w o r k a r o u n d t h e i r
t r a c k a n d o p e r a t i o n s ;
" P r e p a r e a n d s u b m i t t h e C a l i f o r n i a P u b l i c U t i l i t i e s C o m m i s s i o n
( C P U C ) f o r m a l a n d s h o r t f o r m a p p l i c a t i o n s . M o n i t o r t h e C P U C
a p p r o v a l p r o c e s s ; a n d
" W o r k w i t h t h e E L C R O W p e r s o n n e l t o r e c e i v e a l l c o n s t r u c t i o n r i g h t -
o f - e n t r y d o c u m e n t s , i n c l u d i n g t e m p o r a r y c o n s t r u c t i o n a n d p e r m a n e n t
e a s e m e n t s .
B . 1 2 G e o t e c h n i c a l I Q A
O f f e r o r s h a l l :
" R e v i e w a n d e v a l u a t e E L C D e s i g n - B u i l d e r s u b m i t t e d d o c u m e n t s a n d
p r o v i d e t e c h n i c a l s e l e c t i o n r e c o m m e n d a t i o n s ;
" P r o v i d e d e s i g n m a n a g e m e n t s e r v i c e s t o r e v i e w E L C D e s i g n - B u i l d e r
s u b m i t t a l s , i n c l u d i n g d e s i g n p l a n s , i n v e s t i g a t i o n s , s t u d i e s , a n d r e p o r t s
r e q u i r e d b y t h e c o n t r a c t , f o r a c c e p t a b i l i t y a n d c o n f o r m a n c e t o c o n t r a c t
r e q u i r e m e n t s , C a l t r a n s s t a n d a r d s , a n d s t a k e h o l d e r a g e n c y s t a n d a r d s ;
a n d
E L C S c o p e o f W o r k
A - 1 4
2 7
" R e v i e w a n d r e s p o n d t o g e o t e c h n i c a l r e l a t e d i s s u e s a n d a c t i v i t i e s
a f t e r i s s u a n c e o f R F C p a c k a g e s .
B . 1 3 S u r v e y & R O W E n g i n e e r i n g
O f f e r o r s h a l l p r o v i d e s u r v e y i n g a n d m a p p i n g s e r v i c e s s u c h a s r e q u i r e m e n t s ,
a c q u i s i t i o n s , a n d R O W e n g i n e e r i n g s e r v i c e s a s n e e d e d i n s u p p o r t o f d e s i g n
d e v e l o p m e n t a n d Q u a l i t y A s s u r a n c e o f t h e D e s i g n B u i l d e r ' s c o n s t r u c t i o n s u r v e y
a n d t o c o m p l e t e p o s t - c o n s t r u c t i o n R e c o r d o f S u r v e y t a s k s i n c l u d i n g b u t n o t
l i m i t e d t o :
" R O W E n g i n e e r i n g O f f e r o r s h a l l p r o v i d e a p p r a i s a l m a p s ( R O W
M a p s ) i n c o n f o r m a n c e w i t h C a l t r a n s D i s t r i c t 8 g u i d e l i n e s a n d d r a f t i n g
s t a n d a r d s t o f a c i l i t a t e R O W a c q u i s i t i o n ; a n d
" F i e l d a n d o f f i c e s u r v e y s u p p o r t o n a n a s - n e e d e d b a s i s t o p r o v i d e
s u r v e y Q A c h e c k s .
B . 1 4 R O W S e r v i c e s
O f f e r o r s h a l l p r o v i d e a R O W / U t i l i t y T e a m L e a d e r w h o w i l l b e r e s p o n s i b l e f o r t h e
t e c h n i c a l a n d a d m i n i s t r a t i v e f u n c t i o n s r e q u i r e d t o d e l i v e r t h e r e q u i r e d R O W f o r
t h e E L C . R O W s e r v i c e s i n c l u d e b u t a r e n o t l i m i t e d t o a s s o c i a t e d w i t h i m p a c t s o f
s t r u c t u r e s i n B N S F r i g h t o f w a y , R i v e r s i d e F l o o d C o n t r o l D i s t r i c t , a n d s o u n d w a l l
2 1 9 8 :
" O v e r a l l c o o r d i n a t i o n a n d m a n a g e m e n t w i t h t h e C o m m i s s i o n ,
C a l t r a n s , F H W A a n d t h e E L C D e s i g n - B u i l d e r a n d a s s i s t w i t h t h e
d e v e l o p m e n t a n d i m p l e m e n t a t i o n o f t h e R O W p r o g r a m a s n e e d e d ;
" P r e p a r e R O W c o s t e s t i m a t e s ;
"
P r o v i d e a c q u i s i t i o n a n d n e g o t i a t i o n s s e r v i c e s r e q u i r e d f o r C o m m i s s i o n
t o a c q u i r e p r o p e r t y f o r t h e E L C i n a t i m e l y , e f f i c i e n t m a n n e r a n d a t a
r e a s o n a b l e c o s t i n c l u d i n g a p p r a i s a l a n d r e v i e w o f a p p r a i s a l s , a n d
n e c e s s a r y e n v i r o n m e n t a l i n v e s t i g a t i o n s a n d r e m e d i a t i o n ;
" O b t a i n t i t l e r e p o r t s a n d e s c r o w , u t i l i t y r e l o c a t i o n c o o r d i n a t i o n , a n d
" R O W c e r t i f i c a t i o n ;
"
A s s e s s a n y p r o p o s e d m o d i f i c a t i o n s o r c h a n g e s t o t h e R O W p r o p o s e d
b y t h e E L C D e s i g n - B u i l d e r a n d p r o v i d e i n v e s t i g a t i o n s a n d a n a l y s e s ,
p r o p o s e s o l u t i o n s , a n d m a k e r e c o m m e n d a t i o n s t o C o m m i s s i o n f o r
c o n s i d e r a t i o n a n d i m p l e m e n t a t i o n a s d i r e c t e d ;
E L C S c o p e o f W o r k
A - 1 5
2 8
" P r o v i d e R O W a c q u i s i t i o n a n d r e l o c a t i o n s e r v i c e s u n d e r c o m p l i a n c e
w i t h F e d e r a l , S t a t e , a n d L o c a l l a w s a n d r e g u l a t i o n s , a n d i n s u p p o r t o f
t h e E L C ' s s c h e d u l e a s n e e d e d ;
" P e r f o r m a l l n e c e s s a r y E L C c l o s e - o u t a c t i v i t i e s , i n c l u d i n g R O W
t r a n s f e r f r o m C o m m i s s i o n t o t h e v a r i o u s a g e n c i e s , a n d w o r k i n g
w i t h C o m m i s s i o n t o d e t e r m i n e t h e e x c e s s l a n d d i s p o s i t i o n p r o c e s s ;
" C o n t i n u e t o p r o v i d e t h e a p p r o p r i a t e p r o g r e s s / s t a t u s r e p o r t s , a n d
s c h e d u l e a n d a t t e n d m e e t i n g s , a s n e c e s s a r y , t o s u p p o r t t h e
a c q u i s i t i o n , r e l o c a t i o n , a n d c l o s e - o u t p r o c e s s e s , a n d c o o r d i n a t i o n w i t h
t h e E L C D e s i g n - B u i l d e r , a n d
" W o r k s h a l l b e p e r f o r m e d i n a c c o r d a n c e w i t h C a l t r a n s a n d
C o m m i s s i o n ' s R O W p o l i c i e s a n d p r o c e d u r e s a n d a p p l i c a b l e f e d e r a l ,
s t a t e , a n d l o c a l r e g u l a t i o n s .
C . T o l l i n g S e r v i c e s T A S K 3 0 0
C l . T o l l i n g S y s t e m G e n e r a l P l a n n i n g a n d O v e r s i g h t
O f f e r o r s h a l l :
" P r o v i d e m a n a g e m e n t a n d o v e r s i g h t o f t h e E L C t o l l i n g s e r v i c e s
i n c l u d i n g i d e n t i f y i n g a n d a l l o c a t i n g o f s t a f f t o o v e r s e e w o r k p e r f o r m e d
b y t h e D e s i g n - B u i l d e r , T o l l S e r v i c e s P r o v i d e r , p l a n n i n g a n d
s c h e d u l i n g o f t o l l s y s t e m a c t i v i t i e s , a n d o r g a n i z i n g a n d / o r p a r t i c i p a t i n g
i n m e e t i n g s ;
" P r o v i d e a n d s u p p o r t c o n t r a c t a d m i n i s t r a t i o n a c t i v i t i e s a s s o c i a t e d w i t h
t h e t o l l i n g s e r v i c e s , i n c l u d i n g s a f e t y a n d q u a l i t y c o m p l i a n c e , r e v i e w o f
p r o g r e s s a n d i n v o i c e a p p l i c a t i o n s , s u b m i t t a l s , a n d m o n t h l y r e p o r t s ;
" P r o v i d e c o o r d i n a t i o n b e t w e e n E L C D e s i g n - B u i l d e r , a n d T o l l S e r v i c e s
P r o v i d e r , a c t i v i t i e s t o e n s u r e p r o p e r c o o r d i n a t i o n a n d i n t e g r a t i o n w i t h
t h e p r o c u r e m e n t , d e s i g n , i n s t a l l a t i o n , r o a d s i d e c o n s t r u c t i o n , t e s t i n g ,
a n d s t a r t u p o f t h e t o l l s y s t e m s ;
" C o o r d i n a t e t o l l s y s t e m a n d o p e r a t i o n s p l a n n i n g a c t i v i t i e s w i t h
s t a k e h o l d e r a g e n c i e s a n d c o o r d i n a t e w i t h o t h e r E L C f u n c t i o n a l g r o u p s
o n t o l l s y s t e m d e s i g n , i n s t a l l a t i o n , a n d i n t e g r a t i o n m a t t e r s , i n c l u d i n g
t o l l s y s t e m t e s t i n g a n d a c c e p t a n c e ; a n d
" C o o r d i n a t e t h e r e v i e w o f d e s i g n , s u b m i t t a l s , d e s i g n p l a n s , a n d s h o p
d r a w i n g s b e t w e e n t h e E L C D e s i g n - B u i l d e r a n d , T o l l S e r v i c e s P r o v i d e r .
E L C S c o p e o f W o r k
A - 1 6
2 9
Toll System Planning
Support the Commission by analyzing, developing, and recommending strategies,
policies, procedures, business rules, customer account rules, management rules,
technical requirements, and toll facility concepts.
Provide analysis, evaluation of alternatives, make recommendations, and
document Commission decisions via white papers, procurement
documents, reports, or similar methods for the following issues and
other issues identified by the Commission:
o Use of variable pricing or dynamic pricing as the Commission's
congestion pricing strategy linking the SR-91 and 1-15 Facilities;
o Use of switchable transponders, self -declaration lanes, or other
alternatives to enforce carpool occupancy requirements;
o General approach to provide the necessary customer services
and the physical location of the customer service center;
o General approach to provide the necessary back office services and
integration with either the SR-91 or 1-15;
o Procurement of the toll services as an amendment to the any existing
contract, as a standalone contract, or other alternatives; and
o Tolling and pricing approach to allow integration of the dissimilar SR-
91 and 1-15 ELCs, as well minimaxing the need to modify the system
to accommodate future expansion of the express lane network within
Riverside County.
• Toll Policy, Violation Enforcement, and Business Rules
o Support the Commission and its Traffic and Revenue consultant in
creating, reviewing, and recommending a toll policy and the
associated procedures to change toll rates during operations to
maintain the desired level of service in the express lanes while
generating sufficient revenue to meet debt repayment, operation and
maintenance cost responsibilities, and other goals;
o Offeror to evaluate toll violation and collection procedures; and
o Offeror to evaluate, prepare, and recommend for approval operating
business rules, prepare account reconciliation policies and procedures
ELC Scope of Work
A-17
30
among stakeholder agencies, and assist Commission to develop
necessary general ledger requirements and entries.
• Toll System Design
o Develop and recommend design concepts, specifications, toll system
testing guidelines and procedures, and/or requirements to implement
electronic toll collection, CHP enforcement and customer service
patrol staging locations, back office, toll operations center, customer
service center, communications network, and enforcement systems;
and
o Incorporate approved design concepts, specifications, and/or
requirements into appropriate amendments to the existing DB and
TSP contract deliverables.
C3. Toll Operations and Maintenance Planning
• Performance Metrics
o Offeror shall evaluate and recommend any changes the
Commission's existing toll operations performance metrics. for
incorporation into any TSP Contract changes.
• Customer Service
o Offeror shall utilize the Commission's existing customer service
strategy by incorporating its ELC requirements and
recommendations into any TSP Contract changes.
• Fee Revenue Estimates and Cost Estimates
o Offeror shall prepare customer account fee revenue estimates
based on assumed toll policies, business rules, account types, and
marketing strategy. See the ELC Funding and Financing section;
o Offeror shall prepare a toll system replacement schedule and cost
estimates for the life of the facility (i.e. toll system life -cycle cost
estimate) to support the Commission's financial model and ELC
financing efforts. See the ELC Finding and Financing section; and
o Offeror shall prepare an Express Lane pavement and structure
rehabilitation strategy, schedule, and cost estimate for the life of the
facility to support the Commission's financial model and ELC
financing efforts.
ELC Scope of Work
A-18
31
" T o l l S y s t e m a n d R o a d w a y M a i n t e n a n c e
o O f f e r o r s h a l l r e v i e w a n d u p d a t e e x i s t i n g T S P p e r f o r m a n c e
r e q u i r e m e n t s f o r t h e r o u t i n e m a i n t e n a n c e o f t h e t o l l s y s t e m ( e . g .
c a m e r a s , t r a n s p o n d e r r e a d e r s , C h a n g e a b l e M e s s a g e S i g n s ( C M S ) ,
e t c . ) a n d r o a d w a y m a i n t e n a n c e ( r e g u l a r p a v e m e n t m a i n t e n a n c e ,
t r a s h r e m o v a l , d e l i n e a t o r r e p l a c e m e n t , e t c . ) . O f f e r o r t o i n c o r p o r a t e
r e q u i r e m e n t s i n t o t h e a n y T S P C o n t r a c t c h a n g e s .
" I n c i d e n t M a n a g e m e n t a n d D i s a s t e r R e c o v e r y
o R e v i e w a n d u p d a t e e x i s t i n g T S P p e r f o r m a n c e r e q u i r e m e n t s t o
a d d r e s s r o u t i n e r o a d s i d e i n c i d e n t m a n a g e m e n t a n d d i s a s t e r
r e c o v e r y . O f f e r o r t o i n c o r p o r a t e t h e s e p e r f o r m a n c e r e q u i r e m e n t s
i n t o a n y T S P C o n t r a c t c h a n g e s .
" O t h e r P e r f o r m a n c e R e q u i r e m e n t s f o r t h e F u t u r e T o l l O p e r a t o r
o D e v e l o p o t h e r T o l l O p e r a t o r p e r f o r m a n c e r e q u i r e m e n t s i n t h e a r e a s
o f p r o c u r e m e n t , c o n t r a c t m a n a g e m e n t , c o s t c o n t r o l s , t o l l r a t e / p o l i c y
c h a n g e s , f a c i l i t y s a f e t y , t r a i n i n g o f T o l l O p e r a t o r a n d C o m m i s s i o n
p e r s o n n e l , a n d o t h e r a r e a s i d e n t i f i e d m u t u a l l y w i t h C o m m i s s i o n .
O f f e r o r t o i n c o r p o r a t e t h e s e p e r f o r m a n c e r e q u i r e m e n t s i n t o a n y T S P
C o n t r a c t c h a n g e s .
C 4 . O v e r s i g h t , C o o r d i n a t i o n , a n d I Q A s
" G e n e r a l M a n a g e m e n t a n d C o o r d i n a t i o n A m o n g C o n t r a c t o r s
O f f e r o r s h a l l :
o P r o v i d e m a n a g e m e n t a n d o v e r s i g h t o f t h e E L C ' s t o l l i n g s e r v i c e s
i n c l u d i n g i d e n t i f y i n g a n d a l l o c a t i n g o f s t a f f t o o v e r s e e w o r k
p e r f o r m e d b y t h e E L C D e s i g n - B u i l d e r , T S P , p l a n n i n g a n d
s c h e d u l i n g o f t o l l s y s t e m a c t i v i t i e s , a n d o r g a n i z i n g a n d / o r
p a r t i c i p a t i n g i n m e e t i n g s ;
o P r o v i d e a n d s u p p o r t c o n t r a c t a d m i n i s t r a t i o n a c t i v i t i e s a s s o c i a t e d
w i t h t h e t o l l i n g s e r v i c e s , i n c l u d i n g s a f e t y a n d q u a l i t y c o m p l i a n c e ,
r e v i e w o f p r o g r e s s a n d i n v o i c e a p p l i c a t i o n s , s u b m i t t a l s , a n d m o n t h l y
r e p o r t s ;
o P r o v i d e c o o r d i n a t i o n b e t w e e n E L C D e s i g n - B u i l d e r a n d T S P
a c t i v i t i e s t o e n s u r e p r o p e r c o o r d i n a t i o n a n d i n t e g r a t i o n w i t h t h e
E L C S c o p e o f W o r k
A - 1 9
3 2
procurement, design, installation, roadside construction, testing,
and startup of the toll systems;
o Coordinate toll system and operations planning activities with
stakeholder agencies and coordinate with other ELC functional
groups on toll system design, installation, and integration matters,
including toll system testing and acceptance; and
o Coordinate the review of designs, submittals, design plans, and
shop drawings between the ELC Design -Builder, Systems
Integrator, and Toll Operator.
• ELC Design -Builder's Toll System Infrastructure
Offeror shall:
o Review and provide comments to ELC Design -Builder's design,
design plans, submittals, and shop drawings of the toll system
infrastructure work, including communications and power conduit
duct banks, vaults and roadside equipment cabinet installations,
gantries, CMS and camera pole installation, toll utility
buildings, emergency backup generators, and integration of the
ELC Design -Builder requirements with the requirements of TSP;
o Review ELC Design -Builder's toll facility -related deliverables and
provide technical selection recommendations as necessary; and
o Provide construction oversight of the Design —Builder's toll
infrastructure work, including power and communications conduit
duct banks, gantries, CMS and camera pole installation, toll utility
buildings, and emergency backup generators; document
compliance with the contract requirements; and obtain signoff and
acceptance by Commission and TSP.
• Toll System Provider
Offeror shall:
o Manage and oversee adherence to the contract requirements,
including compliance with the safety plan and the TSP design of
roadside toll equipment, communications equipment, power
equipment, cameras, CMS signage, and toll operations and
customer service center facility layout plans;
o Review and provide comments to the TSP's design, design plans,
submittals, and shop drawings of the toll system;
ELC Scope of Work
A-20
o Oversee the installation of the tolling equipment, including roadside
tolling equipment, communications and power, express lane
cameras, CMS signage, traffic operations, and data center build
out, document compliance with the contract requirements, and
obtain signoff and acceptance by Commission and other
stakeholder agencies, as required;
o Review testing and startup plans, provide oversight of the systems
testing and startup in compliance with the contract, and obtain
testing and acceptance signoffs by Commission and other
stakeholder agencies;
o Review deliverables and provide technical recommendations as
necessary;
o Obtain manufacturer warranties, as -built drawings, training
materials, and other manuals required under the contract;
o Oversee early toll operation activities to support the training and
startup of the ELC, including operational and start-up manual
reviews;
o Coordinate toll activities and start-up toll facility operations with the
remaining construction activities of the ELC Design -Builder;
o Review training manuals, coordinate training session participation,
and review attendance and training completed by the training
participants; and
o Perform contract management and administration including
identifying potential SOW changes, development of Independent
Cost Estimates for any scope changes, review of submitted contract
change orders (CCO), performing required analyses, coordinating
potential and implemented changes, as necessary, with other
contracts, and maintain full documentation of all potential and actual
changes.
C5. State Route 91 Express Lanes - Roadside Equipment Upgrade
Offeror shall:
o Develop contract amendments to the existing TSP contract to
upgrade the existing the roadside equipment on the State Route 91
Express Lanes including the development of a Scope of Work and
Independent Cost Estimate for the contract amendment;
ELC Scope of Work
A-21
34
o Oversee relocation of two SR-91 Toll Points;
o Oversee the TSP though design, installation and testing until
Revenue Commencement. This task will include management of all
activities specified in Technical Provisions and the SOW including:
review of the design and installation drawings, installation oversight,
and oversight of the site commission and operations tests; and
o Oversee the Final System Acceptance Test and the first annual
Renewal Test; review of system operations, coordination with the
TSP maintenance supervisor and technicians to make sure that
identified problems are resolved and monitor any roadway
maintenance activities that may impact the system, and review
monthly K PI.
D. ELC Funding and Financing — TASK 400
Offeror shall assist and support the Commission and its consultants in reviewing
and updating the existing 1-15 and SR-91 ELC financing. These services include:
• In coordination with the Commission, traffic and revenue consultants,
other engineering consultants, financial advisors, and legal advisors,
participate in finalizing the impact to the existing ELC financial
structure;
• Prepare updates of the ELC program capital cost and operating cost
estimates. Prepare updates of the toll customer account fee
revenue estimate and "non -toll transaction" revenue estimate based
on assumed toll policies and business rules. Prepare toll system
replacement schedule cost estimates. These estimates of costs and
revenues support the Commission's financial model; and
• Prepare or assist in the preparation of various technical supporting
documents or reports related to ELC funding and financing, that are
required by the TIFIA office, FHWA, Caltrans, investors, and others.
Such reports may include the FP and construction progress reports.
E. Contract Management and Procurement Services — TASK 500
Provide contract management to monitor performance by the ELC Design -Builder and
Toll Services Provider, to the requirements of their respective contracts. This includes
Disadvantage Business Enterprise (DBE) subcontracting performance, labor
compliance, administration of change management processes, and claims support on
ELC Scope of Work
A-22
35
behalf of Commission. Define, prepare, and administer all contract changes including
change orders, directive letters for the ELC Design -Builder and the Toll Services
Provider contracts.
Contract management and procurement services include:
E.1 Contract Management
• Incorporate ELC changes into the existing ELP contract
documents. This includes identification and allocation of staffing
resources to accomplish specific contract administration tasks;
integration and coordination with the functional groups on contract
matters; and attendance at meetings to coordinate contract
management -related activities and deliverables with the Design -
Builder and Toll Services Provider, and stakeholder entities
associated with the ELC. Identify contract compliance issues for
the ELC Design -Builder and Toll Services Provider contracts,
provide analyses, and make recommendations to resolve issues
for Commission approval;
• Coordinate and manage additional Commission contracts in
connection with environmental mitigation and other contracts
related to the ELC development and operations and
maintenance;
• Coordinate and manage contract compliance between
Commission and Offeror, providing communications and
correspondence in addressing clarifications and amendments.
Monitor compliance with Federal, State, and Local agency
requirements including:
o Provide regular updates to audited overhead rates as requested
by Commission, including those of Offeror and Offeror's
Subconsultants; and
o Demonstrate compliance with Offeror's contract commercial
requirements, including invoicing content and format,
allowable compensation, schedule adherence, insurance
coverage requirements, etc. through submitted
documentation.
• Schedule, coordinate, and attend meetings to support ELC- related
contract administration activities, including, where
appropriate, providing agenda, meeting minutes, and action item
listings.
ELC Scope of Work
A-23
36
E.2 Contract Administration
• Process ELC Design -Builder and Toll Services Provider,
correspondence under the ELC requirements in a timely manner to
support Commission and stakeholder agency approvals;
• Review ELC Design -Builder and Toll Services Provider, payment
applications, for compliance to contract commercial requirements.
Identify areas of concern and resolve with Design- Builder, Toll
Services Provider, and Commission;
• Identify the amount of the final payment due to ELC Design -Builder
and the Toll Services Provider, and assist Commission with processing
any final contract changes and the resolution of any claims. Obtain
evidence of certification of all lien releases, transfer of title to
appropriate agencies, and certification of delivery of final record
drawings to Caltrans where appropriate. Secure and transmit to
Commission all required turn -over items, including, but not limited to,
guarantees, affidavits, releases, bonds, waivers, keys, manuals, and
maintenance stock;
• Prepare the final documentation to release all liens and recommend
final payment and release of bonds and retention;
• Provide the systems and tools to provide documentation and tracking
of ELC Design -Builder and the Toll Services Provider, and Offeror's
contract compliance;
• Prepare and issue Commission -directed CCOs in compliance with
the ELC Design -Builder and Toll Services Provider respective
contract requirements. Negotiate final contract amendment terms with
the ELC Design -Builder and, Toll Services Provider, and assist the
Commission in obtaining any necessary external approvals;
• Review and analyze contractor -initiated CCOs by ELC Design -
Builder and Toll Services Provider. Negotiate amendment terms and
conditions for approval by Commission and other stakeholder
agencies, including Caltrans and FHWA;
• Perform regular review and documentation of ELC Design -Builder and
Toll Services Provider, communications for changes and claims, and
report to Commission with recommendations and actions; and
• Provide reporting tools and CCO logs to properly track and monitor
change notices, CCOs, and claims to identify trends and measure cost
and schedule impacts; and
• Any other contract related functions necessary for contract
administration.
ELC Scope of Work
A-24
37
E.3 Procurement Services
• General
Under Commission direction, provide broad procurement support
for the Design -Builder, Systems Integrator, Toll Operator,
environmental mitigation work, and other contracts necessary to
develop, design, build, operate, and maintain the Project. Offeror shall
participate in the development of procurement strategy, assist in the
development of solicitations by preparing SOWs and technical
documents, review and provide input on procurement documents to
the Commission and Commission's legal counsel, and coordinate
with the Commission's Project Team, consisting of the Commission,
Commission's legal counsel, legal advisors, financial advisors,
insurance advisors, other consultants, and Caltrans.
• Offeror shall review and understand Commission policies, procedures,
and legal requirements related to its procurements;
• Offeror shall coordinate with the Commission's ELC Team to:
o Support, through either direct input or review and comment
ondocuments as appropriate, the preparation by
Commission's legal counsel of procurement documents
including Requests for Qualifications (RFQs), RFPs,
contracts, evaluation criteria, evaluation manuals, and
certain procurement correspondence;
o Maintain adequate practices and procedures to ensure strict
adherence to confidentiality agreements by all members of the
procurement team, including measures to ensure the security of
all procurement -related documents;
o Develop a detailed work plan for the Project Team's timely
development, review of and collaboration on procurement
documents;
o Plan and organize weekly Project Team calls during the
development of design -build procurement documents and
procurement period;
o Maintain a complete and accurate official procurement file,
including electronic and hard copies;
o o Track, review, and coordinate with the Project Team in the
development of responses to questions received from proposers.
Assist in the development of addenda to procurement
documents;
ELC Scope of Work
A-25
38
o Assist Commission with the evaluation of Statements of
Qualifications (SOQ), Proposals (including technical
proposals and concepts, price/cost proposals, and
schedules), potential conflicts of interest, conformance with
procurement submittal requirements (including insurance,
proposal and payment and performance security, and business
structure), and other deliverables, including preparation of
technical analysis and reports;
o Assist in contract negotiations and the award process following
selection; and
o Participate and help conduct advance industry review
meetings and processes (if applicable) and post-shortlisting and
selection debriefing meetings; and assist Commission with any
protests.
• Offeror, under Commission's direction, shall be directly responsible
to:
o Work with the ELC Team to present/Identify alternatives,
analyze, and make recommendations to the Commission to best
accomplish the necessary planning, development, design,
procurement, construction, installation, testing, operation, and
maintenance of the ELC;
o Review and Prepare revisions to the existing Design -Build and
Toll Services Provider contract documents to facilitate the
execution of a contract amendment. This work would include,
but not limited to, insurance provisions, performance security,
contract interface provisions, and the technical provisions;
o Incorporate lessons learned from recent Commission
procurements and ELCs and other relevant ELCs involving
design -build, system integration, and operations and
maintenance;
o Incorporate strategies, action plans, performance criteria, and
other requirements from the Commission's current toll program
organization effort in the areas of risk management,
performance metrics, asset management, customer service,
communication, and marketing;
o Prepare necessary technical documents including plans,
exhibits, maps, cost estimates, etc. for these same
procurements;
ELC Scope of Work
A-26
39
o Plan and prepare various procurement schedules to meet
overall ELC development and operations and maintenance
schedule goals;
o Plan and coordinate any necessary review of contract
amendment documents with Caltrans, FHWA and local
agencies;
o Help identify, accumulate, review, index and catalogue relevant
reference documents for the contract amendments; and
o Prepare certain correspondence, documentation, and
presentations for Commission approval related to contract
amendments; and
E.4 Labor Compliance and Disadvantaged Business Enterprise (DBE)
This effort may change due to project funding source.
Offeror shall support the preparation of the ELC contract specifications containing
appropriate and current language concerning State prevailing wage requirements,
Federal Davis -Bacon Act requirements and apprentice requirements, and provisions to
be included in the ELC Design -Builder and Toll Services Provider, and other contracts,
as applicable. Services include responding to contractor comments and providing
technical assistance on all labor compliance requirements, as necessary. Labor
compliance shall include:
• Development of a "Federal On -the -Job Training (OJT) Participation"
goal, as necessary, and ensure that all required OJT provisions, labor
compliance forms, and applicable Federal prevailing wage
determinations are included in the applicable contracts;
• Develop processes and procedures for labor compliance functions in
accordance with State and Federal requirements and the Caltrans
LAPM;
• Develop planned labor compliance activities as part of the PMP,
including roles and responsibilities;
• Determine and update the Federal general wage determinations, as
necessary, based on wage rate amendments and the Federal "10- Day
rule" found under 29 CFR Section 1.6(c) (3);
• Determine applicable State prevailing wage rate determinations
applicable to the ELC based on the ELC's bid advertise date;
• Prepare a pre -bid meeting checklist designed to facilitate review of all
labor compliance requirements including applicable prevailing wage
requirements and potential proposers;
ELC Scope of Work
A-27
40
" S u p p o r t t h e C o m m i s s i o n i n i t s c o m p l i a n c e w i t h C a l i f o r n i a ' s D e p a r t m e n t
o f I n d u s t r i a l R e l a t i o n s ( D I R ) r e q u i r e m e n t s f o r l a b o r c o m p l i a n c e ,
i n c l u d i n g :
o P r o v i d e t e c h n i c a l g u i d a n c e a n d c o o r d i n a t e w i t h C o m m i s s i o n t o
e s t a b l i s h t h e a p p r o p r i a t e r e p o r t i n g r e q u i r e m e n t s a n d
i n f o r m a t i o n n e c e s s a r y f o r t h e D I R t o p e r f o r m l a b o r c o m p l i a n c e
o n t h e E L C ;
o P r o v i d e p e r i o d i c a u d i t s o f E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s
P r o v i d e r , a n d o t h e r c o n t r a c t o r ' s c o m p l i a n c e t o D I R
r e q u i r e m e n t s a n d i n f o r m a t i o n n e e d e d f o r l a b o r c o m p l i a n c e
m o n i t o r i n g ;
o S u p p o r t C o m m i s s i o n w i t h c o o r d i n a t i n g w i t h D I R , a s n e c e s s a r y ,
o n i t s p e r f o r m a n c e o f E L C r e v i e w a u d i t s a n d s i t e i n t e r v i e w s ; a n d
o P e r i o d i c a l l y r e v i e w w i t h C o m m i s s i o n i t s c o m p l i a n c e t o S t a t e
a n d F e d e r a l r e q u i r e m e n t s f o r l a b o r c o m p l i a n c e .
" O b s e r v e a n d m o n i t o r E L C D e s i g n - B u i l d e r a n d , T o l l S e r v i c e s P r o v i d e r ,
a n d o t h e r c o n t r a c t o r s l a b o r r e l a t i o n s w i t h l a b o r o r g a n i z a t i o n s o n b e h a l f
o f C o m m i s s i o n , p e r i o d i c a l l y r e v i e w l a b o r p r a c t i c e s o n t h e E L C , a n d
d i s c u s s l a b o r i s s u e s w i t h t h e E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s
P r o v i d e r , a n d o t h e r c o n t r a c t o r s , a s a p p r o p r i a t e , t o m i t i g a t e p o t e n t i a l f o r
d e l a y s t o E L C c o m p l e t i o n . M a k e r e c o m m e n d a t i o n s , a s a p p r o p r i a t e ,
o n r e s o l u t i o n o f l a b o r i s s u e s t o C o m m i s s i o n ;
" M o n i t o r E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s P r o v i d e r , a n d o t h e r
c o n t r a c t o r s f o r c o m p l i a n c e t o l a b o r c o d e r e q u i r e m e n t s a n d p r o v i s i o n s
f o r l a b o r h a r m o n y o n t h e E L C ;
D i s a d v a n t a g e d B u s i n e s s E n t e r p r i s e ( D B E ) S e r v i c e s :
" A s s i s t C o m m i s s i o n i n t h e d e v e l o p m e n t o f t h e D B E G o a l a s r e q u i r e d
u n d e r 4 9 C F R P a r t 2 6 . W o r k w i t h C a l t r a n s t o g a r n e r a p p r o v a l o f t h e
D B E c o n t r a c t g o a l s .
" R e v i e w a n d u p d a t e t h e D B E C o n t r a c t o r P e r f o r m a n c e P l a n
r e q u i r e m e n t f o r i n c l u s i o n i n t h e a p p l i c a b l e c o n t r a c t a m e n d m e n t s ;
" R e v i e w c o n t r a c t - s p e c i f i c D B E g o a l s f o r a p p l i c a b l e c h a n g e
a m e n d m e n t s i n a c c o r d a n c e w i t h C a l t r a n s r a c e - c o n s c i o u s
d i r e c t i v e s ;
" P a r t i c i p a t e i n w o r k g r o u p m e e t i n g s r e l a t i v e t o t h e d e v e l o p m e n t a n d
f i n a l i z a t i o n o f a l l a p p l i c a b l e D B E s o l i c i t a t i o n s a n d c o n t r a c t u a l
p r o v i s i o n s ;
E L C S c o p e o f W o r k
A - 2 8
4 1
" C o n f i r m c o n t r a c t o r - c l a i m e d D B E p a r t i c i p a t i o n c r e d i t i n g i n c o n f o r m a n c e
w i t h 4 9 C F R P a r t 2 6 a n d C a l t r a n s d i r e c t i v e s , i n c l u d i n g C o m m e r c i a l l y
U s e f u l F u n c t i o n ( C U F ) p r o v i s i o n s ;
" C o n d u c t G o o d F a i t h E f f o r t s r e v i e w s o f p r o p o s e r s f o r c o m p l i a n c e
w i t h a l l D B E c o n t r a c t - s p e c i f i c g o a l r e q u i r e m e n t s , a s n e c e s s a r y , t o
d e t e r m i n e r e s p o n s i v e n e s s t o a p p l i c a b l e r e q u i r e m e n t s ;
" R e v i e w E L C D e s i g n - B u i l d e r a n d , T o l l S e r v i c e s P r o v i d e r , a n d o t h e r
a p p l i c a b l e c o n t r a c t o r s ' D B E r e p o r t s f o r a c c u r a c y a n d c o o r d i n a t e w i t h
c o n t r a c t o r s t o r e c o n c i l e d i s c r e p a n c i e s ; a n d
" P r o v i d e o v e r s i g h t o f D B E a n d l a b o r c o m p l i a n c e a c t i v i t i e s o f t h e
E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s P r o v i d e r a n d o t h e r a p p l i c a b l e
c o n t r a c t o r s a n d g e n e r a l s u p p o r t t o t h e C o m m i s s i o n , i n c l u d i n g
c o m p l i a n c e b y t h e c o n t r a c t o r w i t h t h e i r D B E P e r f o r m a n c e P l a n , a n d
F e d e r a l , S t a t e , a n d L o c a l r e q u i r e m e n t s f o r p r e v a i l i n g w a g e s a n d
D a v i s - B a c o n A c t r e q u i r e m e n t s .
F . E L C C o n t r o l s T A S K 6 0 0
P r o v i d e m a n a g e m e n t , a d m i n i s t r a t i o n , a n d o v e r s i g h t s e r v i c e s r e l a t e d t o t h e c o s t ,
s c h e d u l i n g , e s t i m a t i n g , a n d d o c u m e n t m a n a g e m e n t r e q u i r e m e n t s f o r O f f e r o r ' s c o n t r a c t ,
a n d t h e c o n t r a c t b e t w e e n t h e C o m m i s s i o n a n d t h e E L C D e s i g n - B u i l d e r a n d , T o l l
S e r v i c e s P r o v i d e r , i n c l u d i n g t h e n e c e s s a r y p l a n s , p r o c e d u r e s , t o o l s , p r o c e s s e s , a n d
t a s k s f o r o n g o i n g p l a n n i n g , b u d g e t i n g , a n d c o n t r o l o f t h e E L C . T h e s p e c i f i c E L C c o n t r o l s
a c t i v i t i e s p l a n n e d i n c l u d e t h e f o l l o w i n g :
F . 1 E L C C o n t r o l s M a n a g e m e n t
" P r o v i d e r e v i e w a n d m a n a g e m e n t o f t h e b u d g e t , c o s t e n g i n e e r i n g ,
s c h e d u l i n g , e s t i m a t i n g , a n d d o c u m e n t c o n t r o l s p r o c e s s e s a n d
p r o c e d u r e s . R e v i e w t h e m o n t h l y i n v o i c e s f o r t h e E L C D e s i g n - B u i l d e r
a n d , T o l l S e r v i c e s P r o v i d e r
" D e v e l o p a n d m a i n t a i n a n W o r k B r e a k d o w n S t r u c t u r e ( W B S ) c o s t
s t r u c t u r e t o s e g r e g a t e a l l c o s t s a s s o c i a t e d w i t h t h e E L C a n d E L P
E L C s ;
" P r o v i d e m o n t h l y t r e n d r e g i s t e r s , c o s t , a n d s c h e d u l e r e p o r t s o n E L C
p e r f o r m a n c e , b o t h s e p a r a t e a n d i n c o n j u n c t i o n w i t h , t h e E L C D e s i g n -
B u i l d e r a n d , T o l l S e r v i c e s P r o v i d e r , r e p o r t i n g r e q u i r e m e n t s . R e p o r t i n g
w i l l b e p r o v i d e d i n a n a g r e e d u p o n f o r m a t o n a c t i v i t i e s w i t h s t a k e h o l d e r
a n d t h i r d - p a r t y a g e n c i e s . P r o v i d e a n y o t h e r n e c e s s a r y d o c u m e n t a t i o n
d e e m e d r e q u i r e d t o s u p p o r t E L C p e r f o r m a n c e m o n i t o r i n g ;
" U p d a t e a n d d o c u m e n t c h a n g e s i n t h e E L C p r o c e s s e s a n d p r o c e d u r e s
a s p r o v i d e d f o r i n t h e P M P a n d s u b m i t , a s n e c e s s a r y , f o r r e v i e w s
a n d a p p r o v a l s b y C o m m i s s i o n , C a l t r a n s , a n d F H W A ;
E L C S c o p e o f W o r k
A - 2 9
4 2
" P e r f o r m p e r i o d i c r e v i e w s a n d a n a l y s e s o f t h e E L C D e s i g n - B u i l d e r , a n d
T o l l S e r v i c e s P r o v i d e r , c o s t p e r f o r m a n c e , a s a p p r o p r i a t e , t o d e t e r m i n e
t r e n d s t h a t m a y r e s u l t i n p o t e n t i a l c l a i m s i t u a t i o n s , a n d d o c u m e n t
s u c h a n a l y s e s a n d m o n i t o r t r e n d s ; a n d
" M o n i t o r a n d r e p o r t , a s n e c e s s a r y , C o m m i s s i o n p r o g r a m c o s t s t h a t
a r e e x t e r n a l t o P C M c o n t r a c t . T h i s w i l l i n c l u d e c o s t s a s s o c i a t e d
w i t h t h e E L C t h a t a r e i n c u r r e d t h r o u g h o t h e r a g r e e m e n t s , i n
a c c o r d a n c e w i t h S t a t e , F e d e r a l , o r L o c a l r e q u i r e m e n t s , o r a s o t h e r w i s e
d e f i n e d u n d e r t h e P C M c o n t r a c t .
F . 2 C o s t C o n t r o l s
" P r e p a r e m o n t h l y i n v o i c e s f o r w i t h a d e q u a t e b u d g e t a l l o c a t i o n f o r a c t u a l
c o s t s i n c u r r e d ; c h e c k f o r c o m p l i a n c e t o c o n t r a c t c o m p e n s a t i o n
r e q u i r e m e n t s ; m o n i t o r c h a r g e s t o e s t a b l i s h e d W B S c o d e s t o s u p p o r t
c o s t c o n t r o l a n d r e p o r t i n g ; v e r i f y a p p r o p r i a t e n e s s o f c h a r g e s ; a n d
r e s p o n d t o C o m m i s s i o n q u e s t i o n s o r c o m m e n t s o n i n v o i c i n g . D e v e l o p
a n i n v o i c e s t r u c t u r e t o b e a p p r o v e d b y t h e C o m m i s s i o n t h a t f u l l y
s e g r e g a t e s a l l t h e c o s t s b e t w e e n t h e E L C a n d E L P E L C s ;
" D e v e l o p b u d g e t i n g f o r w o r k t a s k s f o r O f f e r o r a c t i v i t i e s ; a s s i g n t a s k s
a g a i n s t t h e W B S ; m o n i t o r l a b o r c h a r g e s a n d e x p e n s e s f o r v a l i d i t y a n d
p r o p e r c o d i n g ; a n d p r o v i d e p r o g r e s s a n d r e p o r t i n g s u p p o r t f o r i n t e r n a l
m a n a g e m e n t a n d c l i e n t n e e d s ;
" R e v i e w m o n t h l y i n v o i c e s / p r o g r e s s p a y m e n t s s u b m i t t e d b y t h e E L C
D e s i g n - B u i l d e r a n d , T o l l S e r v i c e s P r o v i d e r , a s t o c o m p l i a n c e w i t h
c o n t r a c t r e q u i r e m e n t s a n d p r o g r e s s a c h i e v e d o n t h e E L C ; a n d
" C o o r d i n a t e d e v e l o p m e n t o f r e p o r t s r e l a t e d t o C o m m i s s i o n p r o g r a m
c o s t s t h a t a r e e x t e r n a l a n d i n t e r n a l t o t h e P C M c o n t r a c t . C o o r d i n a t e
w i t h E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s P r o v i d e r , t o d e v e l o p
a d d i t i o n a l r e p o r t s , a s n e c e s s a r y .
F . 3 S c h e d u l i n g
" I n c o r p o r a t e t h e E L C i n t o t h e e x i s t i n g o v e r a l l E L C s c h e d u l e a n d
c o o r d i n a t e w i t h E L C d i s c i p l i n e s , i n c l u d i n g R O W , t o s c h e d u l e u p d a t e s
a n d p r o v i d e m o n t h l y r e p o r t i n g t o C o m m i s s i o n . I n c l u d e i d e n t i f i c a t i o n
a n d a n a l y s i s o f r e s o u r c e c o n s t r a i n t s a n d r e q u i r e m e n t s , a s
a p p r o p r i a t e , a n d a n y c o n s t r a i n t s t o c o s t s a n d c a s h f l o w ;
" P r o v i d e s c h e d u l e a n a l y s e s , a s r e q u i r e d , t o a d d r e s s s c h e d u l e i s s u e s
a n d c o n c e r n s r e s u l t i n g f r o m E L C a c t i v i t i e s , e i t h e r o f C a l t r a n s ,
C o m m i s s i o n , a n d / o r O f f e r o r , o r o f t h e E L C D e s i g n - B u i l d e r , a n d T o l l
S e r v i c e s P r o v i d e r . I n a d d r e s s i n g i s s u e s , d e t e r m i n e a n d r e c o m m e n d
r e c o v e r y a c t i o n s , i n c l u d i n g r e s o u r c e a n d c a s h f l o w r e q u i r e m e n t s ;
" R e v i e w t h e E L C D e s i g n - B u i l d e r a n d T o l l S e r v i c e s P r o v i d e r , d e s i g n
E L C S c o p e o f W o r k
A - 3 0
4 3
and construction schedule to monitor compliance with their contracts,
and incorporate their schedules into the master program schedule.
Provide analysis and document all schedule changes and their
impacts to the baseline schedule, and request and analyze
recommendations of ELC Design -Builder and Toll Services Provider,
recovery plans;
• Participate in weekly ELC Design -Builder and Toll Services Provider,
scheduling meetings to coordinate respective schedules, identify areas
of schedule concern, monitor schedule performance, and track
schedule alignment of weekly schedules to ELC schedules;
• Schedule, coordinate, and attend meetings, as necessary, to support
ELC schedule activities, including preparation of agendas, meeting
minutes, and action items; and
• Provide monthly schedule reports on ELC performance, both separate
and in conjunction with, ELC Design -Builder, Toll Services Provider,
reporting requirements. Provide any other necessary supports
deemed required to support ELC performance monitoring.
F.4 Cost Estimating
• Offeror shall develop ELC cost estimates and provide contract
amendment negotiations with the ELC Design -Builder and Toll
Systems Provider
• Provide review and analyses of potential CCOs submitted by the
ELC Design -Builder and, Toll Services Provider, including presentation
of cost and schedule impacts, solutions to mitigate impacts and
recommendations to Commission and other stakeholder agencies for
approval; and
• Provide estimating support, as necessary, to review and analyze
ELC Design -Builder, Toll Services Provider, changes and value
engineering proposals. Provide recommendations to Commission.
F.5 Document Controls Management
• Provide and maintain a Commission -Offeror document collaboration
portal for all ELC communications;
• Hard copies will be maintained and turned over to RCTC at the close
of the project;
• Provide document management and control of all ELC Design -
Builder and, Toll Services Provider, and other contractor submittals
and correspondence. Integrate the ELC Design -Builder and
Commission document management procedures and tools in
ELC Scope of Work
A-31
44
support of transmittal, submittal processing, and approval
requirements. This activity will include all ELC documentation for
design reviews, Requests for Information (RFIs), and all other
submittals. Maintain the tools, filing, storage, and retention of ELC
documentation.
• Prepare final ELC accounting and closeout reports of all reporting and
document control systems. Organize all pertinent data, purge all files,
and send to document control;
G. Construction Management — TASK 700
Provide Construction Management services for construction quality oversight and
compliance to contract requirements by the ELC Design -Builder and Toll Services
Provider, in accordance with AB 401, and in coordination with Caltrans IQA and
construction inspection services. These services include:
G.1 Construction Management
• Organize, schedule and conduct a pre -construction conference that
includes all agencies, utilities, ELC Design -Builder and Toll Services
Provider that will be participating in the ELC and other impacted ELCs
within the limits of the ELC. Provide all meeting support services such
as meeting notice and meeting minutes;
• Provide and implement a construction management staffing plan
that integrates with Caltrans' role, responsibilities, and staffing for
the ELC and provides the necessary resources and capabilities to
oversee and monitor the quality of construction by the Design -
Builder and Toll Services Provider;
• Monitor the ELC Design -Builder and Toll Services Provider overall
planning of construction activities to identify critical milestones and
priorities, and to determine budget estimates and staffing
requirements for the defined scope and schedule;
• Support preparation of the monthly report of construction activity
and progress that relates to ELC Design -Builder and Toll Services
Provider progress and compliance to contract requirements;
• Field monitor ELC Design -Builder and Toll Services Provider
construction activities and compliance to their safety plan. Note
concerns or deficiencies immediately to ELC Design -Builder or Toll
Services Provider for their implementation of corrective measures;
• Develop/implement a field issue resolution program, including issue
identification and resolution by the ELC Design -Builder, Toll
ELC Scope of Work
A-32
45
Services Provider, or appropriate agencies;
• Observe and identify all potential changes in SOW based on ELC
Design -Builder and Toll Services Provider activities, review all CCOs
submitted, and perform required analyses and recommendations to
Commission for disposition;
• Review work status and recommend to Commission when the ELC is
substantially complete. Prepare a summary of the status of the work
of ELC Design -Builder and Toll Services Provider and a "punch list" of
any incomplete work or work that does not conform to the contract
documents. Coordinate and assist Caltrans in conducting final
inspections and oversee completion of all work. Recommend relief
of maintenance to ELC Design -Builder and Toll Services Provider for
all or portions of the ELC; and
• Certify the amount of the final payment due to ELC Design -Builder
and Toll Services Provider and assist Commission with the processing
of any final contract changes and the resolution of any claims. Obtain
evidence of certification of all lien releases, transfer of title to
appropriate agencies, and certification of delivery of final record
drawings to Caltrans. Secure and transmit to Commission all required
turn -over items, including, but not limited to, guarantees, warranties,
affidavits, releases, bonds, waivers, keys, manuals, and maintenance
stock.
G.2 Construction Services & Administration
• Support the Construction Management and Resident Engineer ELC
Design -Builder and Toll Services Provider Oversight teams with
administrative support services. Complete a variety of routine and non -
routine tasks and ELCs in accordance with the ELC procedures, or as
directed. Manage document control for the Construction Management
team;
• Support the Construction Management and Resident Engineer ELC
Design -Builder and Toll Services Provider Oversight teams as the
primary liaison between other ELC departments and construction
management, ensuring timely and accurate distribution of information
and materials;
• Support the Construction Management and Resident Engineer ELC
Design -Builder and Toll Services Provider Systems Integrator
Oversight teams in researching and compiling statistical information
and related data and produce special or recurring reports and complete
special ELCs as assigned. May maintain and monitor the operating
budget as directed;
• Establish and maintain document archiving and retrieval systems,
ELC Scope of Work
A-33
46
prioritizing the flow of ELC reports/correspondence, and ensuring
timeliness in the handling, processing, and resolution of requests,
requirements, or problems;
• Establish and maintain follow-up files and confidential files for
Construction Management team;
• Make recommendations for additions or revisions to existing ELC
practices and policies. Serve as focal point for gathering newly
published policies and the dissemination of materials;
• Maintain the Construction Management team meetings calendar.
Assist Construction Management team in coordinating ELC
meetings; and
• Manage ELC vehicle fleet, maintaining monthly inspection,
maintenance and fueling records.
G.3 Roadway Construction Oversight
• Monitor the overall planning of construction activities to identify critical
milestones and priorities. Determine budget estimates and staffing
requirements for the roadway work scope and schedule;
• Coordinate and conduct pre -construction and pre -activity meetings
with the ELC Design -Builder and Toll Services Provider;
• Provide engineering assessment of plans for adequacy of design,
particularly with respect to suitability to actual field conditions;
• Ensure compliance with the plans and specifications by the Design -
Builder and Toll Services Provider; recommend, modify, interpret, and
edit special provisions and prepare modification estimates; and keep
necessary records pertaining to construction progress, budget
performance, and work order balances for the segment;
• Monitor the ELC Design -Builder and Toll Services Provider
construction QC programs, including the adequacy of capability of QC
resources. Oversee and provide, as necessary, notification to the
Design- Builder and Toll Services Provider of rejected work when it is
the opinion that the work or materials do not conform to the
requirements of the Design -Build contract documents;
• Monitor compliance of ELC Design -Builder and Toll Services Provider
safety plans and note concerns or deficiencies immediately to ELC
Design -Builder or Toll Services Provider for their implementation of
corrective measures;
• Oversee Caltrans performance of periodic construction inspection
and QA independent oversight activities and their recording of daily
progress of the ELC with accurate and complete daily inspection
ELC Scope of Work
A-34
47
reports, including weather conditions, work performed, number of
workers, problems encountered, and other relevant data. Maintain an
independent photographic log of the construction progress indexed for
easy retrieval;
• Review all detour, lane closures, temporary access, signing,
delineation, and traffic management and control plans for compliance
with contract TMP requirements and all safety laws and regulations.
Notify any deficiencies to ELC Design -Builder or Toll Services Provider
for their immediate correction and compliance. Communicate any
special notices to the public outreach team;
• Observe and identify all potential changes in SOW based on Design —
Builder and Toll Services Provider activities, and review all CCOs
submitted, perform required analyses, and present recommendations
to Commission for disposition. Maintain separate log and files to
document all potential and actual changes;
• Perform oversight and review of laboratory, shop, and mill test reports
of materials and equipment, and coordination;
• Offeror shall establish and maintain ELC records. ELC record keeping
shall include, but are not limited to, correspondence, memoranda,
contract documents, RFIs, CCOs, claims, Commission and engineer
directives, meeting minutes, shop drawings, supplementary drawings,
review and approval of submittals, and quantity calculations,
measurements and daily Extra Work Reports that support progress
payments. Offeror shall maintain a record of the names, addresses,
and telephone and fax numbers of the Contractors, subcontractors,
and principal material suppliers;
• Monitor ELC Design -Builder and Toll Services Provider compliance to
inspection and surveys of properties adjacent to the ELC to monitor
possible ground movement or structural damage to properties that may
be caused by the works; and
• Monitor test and inspection records and noncompliance reports for
satisfactory resolution of noncomplying work.
G.4 Structures Construction Oversight
• Monitor the overall planning of construction activities to identify critical
milestones and priorities. Determine budget estimates and staffing
requirements for the structures work scope and schedule;
• Coordinate and conduct pre -construction and pre -activity meetings
with the ELC Design -Builder and Toll Services Provider;
• Provide engineering assessment of plans for adequacy of design,
ELC Scope of Work
A-35
48
particularly with respect to suitability to actual field conditions;
• Ensure compliance with the plans and specifications by the Design -
Builder and Toll Services Provider; recommend, modify, interpret, and
edit special provisions and prepare modification estimates; and keep
necessary records pertaining to construction progress, budget
performance, and work order balances;
• Monitor the ELC Design -Builder and Toll Services Provider
construction QC programs, including the adequacy of capability of QC
resources. Oversee and provide, as necessary, notification to the
Design- Builder and Toll Services Provider of rejected work when it is
the opinion that the work or materials do not conform to the
requirements of the Design -Build contract documents;
• Monitor compliance of ELC Design -Builder and Systems Integrator
safety plans and note concerns or deficiencies immediately to ELC
Design -Builder or Toll Services Provider for their implementation of
corrective measures;
• Oversee Caltrans performance of periodic construction inspection
and QA independent oversight activities and their recording of daily
progress of the ELC with accurate and complete daily inspection
reports, including weather conditions, work performed, number of
workers, problems encountered, and other relevant data. Maintain an
independent photographic log of the construction progress indexed for
easy retrieval;
• Perform oversight and review of laboratory, shop, and mill test reports
of materials and equipment, and coordination;
• Monitor ELC Design -Builder and Toll Systems Provider compliance to
inspection and surveys of properties adjacent to the ELC to monitor
possible ground movement or structural damage to properties that may
be caused by the works; and
• Ensure that ELC Design -Builder's test and inspection records and
noncomps are resolved in accordance with the Design Builder's
contract.
ELC Scope of Work
A-36
G.5 Office Engineering
• Coordinate with ELC Design -Builder and Toll Systems Provider for
completion and submittal of final record drawings or as -built drawings.
The record drawings and documents shall be prepared and submitted
in conformance with the contract requirements;
• Monitor that the ELC Design -Builder and Toll Services Provider
maintain a detailed photographic history of the ELC in compliance
with the work, which includes labels with location, direction of view,
date, time, and any information of interest. Photographs shall be
maintained in an indexed album or Commission approved software.
Photographs shall include, but not be limited to, conditions prior to
construction, changes to detours, barricade placement, disputed work,
rejected work, and completed work;
• Coordinate between the Design Review and Construction Oversight
teams to receive and distribute ELC plans and documents throughout
the ELC term;
• Perform general construction office duties relating to administration of
construction contracts, such as processing extra work invoices,
preparing progress estimates, and filing documents;
• Confer with ELC Design -Builder and Tolling System Provider regarding
compliance with plans and quality of work and construction activity;
• Selection and/or use of computer -based processes to compile
engineering data, horizontal and vertical alignments, and curve
computations; and preparation of as -built plans;
• For schedule/work activities where the need is identified, prepare
quantity calculations and quantity sheets for payment purposes and
review calculations prepared by Roadway and Structures Resident
Engineering teams;
• Assist in timely resolution/close out of RFIs and CCOs;
• Coordinate between field personnel in tracking and logging all field
documents, including reports and daily Progress Reports;
• Track and document all safety procedures and reports.
• Track and document all environmental and stormwater pollution
prevention related reports and inspections and coordinate with the
environmental personnel on the ELC;
• Track, monitor, and document all roadway closures and document all
ELC Scope of Work
A-37
50
10-97, 10-98, and 10-22 calls on Caltrans Traffic Management Center
(TMC);
• Together, with administration and the ELC document control,
develop, maintain, and update ELC's contact matrix and assure
posting and distribution to the ELC's team;
• Provide the tracking and maintenance of ELC work schedules,
analyses, technical and production reports, and other
documentation as required;
• Organize, prepare, and conduct field site investigations and visitations
from Caltrans, Commission, and FHWA personnel to confirm ELC
progress, conduct studies, or any other purpose; and
• Schedule, coordinate, and attend meetings, as necessary, to support
ELC oversight and construction activities, including the preparation
of meeting materials, agendas, minutes, and action item lists.
ELC Scope of Work
A-38
51
EXHIBIT "B"
COMPENSATION
[Attached behind this page]
17336.00034\32708325.2
Executive Summary
15/91 ELC PCM Amendment Scope and Fee Estimate
February 12, 2020
The Project and Construction Management (PCM) consultant shall continue to assist the Commission in
the planning, implementation and general oversight of the I-15/SR 91 Express Lanes Connector (15/91
Project (ELC Project). In March 2018 PCM Contract 15-31-001-00 was amended to include PCM services
for the 15/91 Express Lanes Connector project. The planned course of action for the PCM services was
to negotiate with the 1-15 Express Lanes Project (ELP) Design Build (DB) Contractor (SAJV) to add the ELC
Project to the ELP contract. After negotiating with SAJV through October 2018 the Commission did not
come to acceptable terms with SAJV and elected to proceed with a procurement for a new DB
Contractor to design and construct the 15/91 ELC project. This amendment brings the PCM Consultant
contract current to account for the various changes associated with a new DB Procurement and the
current schedule.
Key elements of the PCM services include program management services, preliminary design services,
development of DB procurement documents, change order negotiation with the Design -Builder and
Tolling Services Providers, risk assessment and management, toll system planning and development of
the operational rules, overseeing the design -build construction, overseeing the toll system installation
and startup, utility coordination services, railroad coordination services, environmental and permit
support, third party coordination and agreements, project controls, quality management services, public
outreach support, design review oversight, construction management oversight, and contract
administration services.
Fee Estimate Basis and Assumptions
Scope and Price Basis:
The basis for the work is Exhibit "A" Scope of Work from the PCM Contract 15-31-001-00, approved by
RCTC Commission on April 6, 2015 and amended to include the 15/91 ELC Project. The pricing approach
follows the previous format and aligns with the existing Project Work Breakdown Structure (WBS)
covering seven major functional tasks.
Project Implementation Approach
The Commission proceeded with a competitive selection process for a new DB Contractor. The project
will be delivered under two Notice to Proceed (NTP). NTP 1 will occur in March 2020 and will continue
until August 2020. Under NTP 1 the DB Contractor and the PCM will operate in separate facilities and
complete the NTP 1 deliverables such as project management plans, procurement of co -located office
space, and preliminary engineering. NTP 2 will occur immediately thereafter and the project should
reach substantial completion in May of 2023.
1 OF 3
53
PROJECT AND CONSTRUCTION MANAGENENIT SERVICES FOR 15/91 EXPRESS LANES CONNECTOR
Major Scope Elements
This project will design and construct a new eastbound SR-91 to Northbound 1-15 express lane connector,
southbound 1-15 to westbound SR-91 express lane connector, eastbound SR-91 widening from the Main
street onramp to just east of the Promenade Avenue overcrossing bridge. Work will include 3 new toll
gantries and associated toll improvements.
Project Schedule:
Attached is a milestone schedule for delivery of the project. The following are the key milestones as
they are currently anticipated:
Milestone
Approximate Date
DB Contract Award, NTP #1
March 2020
DB Contract, NTP 2 (Design and Construction)
August 2020
Design Complete / Begin Construction
May 2021
15/91 ELC open to traffic
Summer 2023
15/91 ELC project complete
Winter 2023
Activity
2019
2020
2021
2022
2023
1
Procurment / Preliminary Design
2
Final Design
3
Construction
4
15/91 ELC Open to Traffic
•
2 OF 3
54
PROJECT AND OONSTRLICT1ON MANAGE VENT SERVICES FOR 15/91 EXPRESS LAWS CONPECTOR
Cost Estimate:
1. The Total Cost amendment estimate is $14,824,122 including escalation and fixed fee.
2. Cost Estimate Notes:
a. Current hourly rates were used for known staff. For others, a general labor
classification rate was used.
b. Current audited overhead rates (field and home) were used. An escalation factor
of 3.0 percent was applied to the labor rates to estimate the total project budget;
c. A field overhead rate was used for all staff who average more than 50% of their
time assigned to the project field office. A home office overhead rate was used for
all other staff;
Fee Summary:
Task
Total
TASK 100 - Project Management
$2,358,559
TASK 200 - Design Management
$2,768,100
TASK 300 - Tolling and Operations
$0
TASK 400 - Project Funding and Financing
$0
TASK 500 - Contracts Management & Procurement
$2,156,148
TASK 600 - Project Controls
$2,055,876
TASK 700 - Construction Management
$2,821,491
TASK 800 - Other Direct Costs (ODC's)
$540,905
Sub Total
$12,701,079
Escalation
$684,613
Fee
$1,438,430
TOTAL
$14,824,122
55
3 OF 3
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
15/91 EXPRESSLANES
CONNECTOR PROJECT
Award of:
(1) Design -Build Contract
(2) Project and Construction Management Amendment
Presented by: David Thomas, Toll Project Manager
15/91
EXPRESS LANES
CONNECTOR
Project Overview
I-15/ SR-91 EXPRESS LANES CONNECTOR
• Tolled express lane connectors:
o EB91 Express Lanes to NB15 Express
Lanes
o SB15 Express Lanes to WB91 Express
Lanes
• Operational improvements along EB91
extending Express Lane and GP lane
approx. 0.5 mile
2
15/91
EXPRESS LANES
CONNECTOR
Background
• April 2017, SB 132 allocated $180 million to the 15/91 ELC
project
• June 2017, AB 115 granted additional project delivery
authority
• October 2017, Commission approved an overall procurement
strategy
• April 2018, staff initiated negotiations with the I-15 ELP
Design -Build (DB) contractor
• November 2018, unable to reach an agreement on a
negotiated price
3
15/91
EXPRESS LANES
CONNECTOR
DB Procurement — Approach
• Competitive procurement to obtain the best value for the
Commission
• Two Step DB procurement process
— Request for Qualifications (results in shortlist of firms)
■ Flatiron West, Inc.
■ Guy F. Atkinson Construction, LLC., dba Guy F. Atkinson
■ MCM Construction, Inc.
■ Myers -Rados, a Joint Venture
— Request for Proposals
■ Pricing and technical approach
1
4
15/91
EXPRESS LANES
CONNECTOR
DB Procurement
Major Milestones
Milestone Activity
Procurement
Schedule
Issued letter to the industry
Issued Request For Qualifications
Short -List Announced
Issued Draft RFP (to shortlisted proposers)
Issued Final RFP (to shortlisted proposers)
Proposals Received
Preferred Proposer Announced
Committee and Commission approval of Contract award
Notice to Proceed
February 4, 2019
March 4, 2019
May 6, 2019
May 9, 2019
July 10, 2019
November 22, 2019
December 16, 2019
February/March 2020
March 2020
5
15/91
EXPRESS LANES
CONNECTOR
DBProcurement-Selection Criteria
• Apparent Best Value Evaluation
— Considers price and technical response in final evaluation
— Based on 100 point scale with
Price = 80 points max
Technical = 20 points max
• Technical categories:
— Technical Approach
— Project Delivery Approach
— Quality Management Approach
6
15/91
EXPRESS LANES
CONNECTOR
DB Procurement - Upset Limit
• Upset Limit set at $142 million
• Sets Maximum Price Expectation to Proposers
• Possible Selection Outcomes
— One Proposer price is under the Upset Limit
• Allows award based on price only
— More than One Proposer price is under the Upset Limit
• Allows for both price and technical evaluation for those firms only
— All Proposal prices are over the Upset Limit
• Allows Commission to waive Upset Limit and award to the firm with lowest
price
7
15/91
EXPRESS LANES
CONNECTOR
Proposal Price
• Two proposals received
• Both Firms found to be responsive to the RFP Requirements
• Both Firms over the Upset Limit — recommend award to
Myers -Rados, a Joint Venture
Pric • Proposal
Myers -Rados, a Joint Venture $164,840,000 -
Flatiron West, Inc.
$187,298,643
8
15/91
EXPRESS LANES
CONNECTOR
Project/Construction Management Services
• Tolling system evaluation and planning
• Project Financing Support
• Agreement Support
• Preliminary Engineering
• Risk Assessment
• DB Procurement
• Design Review and Oversight
• Construction Management and Oversight
9
15/91
EXPRESS LANES
CONNECTOR
Overall Project Cost
Cost Category
Preliminary Engineering / Environmental Approval (PCM)
Design -Build Procurement (PCM and Legal)
Design -Build Phase (PCM and Legal)
Toll Services Provider (Kapsch)
Skanska-Ames JV Design -Build Amendments
Myers -Rados JV Design -Build Contract
Caltrans Oversight
Agency
Contingency
TOTAL
$2,070,000
9,329,000
24,293,000
12,308,000
25,962,000
164,840,000
7,166,000
7,831,000
16,530,000
$270,329,000
Requires a total allocation from surplus toll revenue of $90.329 million
10
15/91
EXPRESS LANES
CONNECTOR
Staff Recommendation
• Award Agreement No. 19-31-074-00 to Myers -Rados JV in the amount of
$164,840,000, plus a contingency amount of $10,487,000, for a total
amount of $175,327,000;
• Approve Amendment No. 7 to Agreement No. 15-31-001-00 with
Parsons to increase the not to exceed amount by $14,825,000, plus a
contingency of $1,482,000 for a total amount not to exceed $16,307,000,
and extend the contract term to June 30, 2024;
• Authorize the Chair or Executive Director, pursuant to legal council
review, to finalize and execute these agreements;
• Authorize the Executive Director or designee to approve contingency
work up to the total not to exceed amount as required for the 15/91 ELC;
• Forward to the Commission for final action.
11
AGENDA ITEM 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
February 24, 2020
TO:
Western Riverside County Programs and Projects Committee
FROM:
Bryce Johnston, Capital Projects Manager
Mark Lancaster, Right of Way Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Award of Interstate 15/Railroad Canyon Road Interchange
Construction Agreement to Riverside Construction Company
Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 20-31-034-00 to Riverside Construction Company to construct
the Interstate 15/Railroad Canyon Road Interchange Project (Project), in the amount of
$27,698,589, plus a contingency amount of $2,769,859, for potential change orders and
supplemental work in the amount of $910,000 during construction, for a total amount
not to exceed $31,378,448;
2) Approve Agreement No. 20-31-046-00 with the Pechanga Band of Luiseno Indians
(Pechanga) for an amount not to exceed $100,000 for Native American monitoring
services during construction of the Project;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize
and execute the agreements on behalf of the Commission;
4) Authorize the Executive Director, or designee, to approve contingency work as may be
required for the Project; and
5) Forward to the Commission for further action.
BACKGROUND INFORMATION:
At its May 11, 2011, meeting, the Commission approved an agreement with the city of Lake
Elsinore, designating the Commission as the lead agency and to develop the plans,
specifications and estimate package (PS&E) for the Project (see map on Attachment 1) on
behalf of the City. The Project will improve traffic circulation within the area by constructing
new northbound hook ramps from 1-15 that connect to Grape Street, reconstructing the
existing northbound entrance ramp, widening the southbound entrance and exit ramps,
widening Railroad Canyon Road under the freeway from six to eight lanes, and installing
drainage and signal improvements. The project approval and environmental document phase
was completed in August 2017.
Agenda Item 8
56
Procurement Process:
On December 18, 2019, the Commission released the Invitation for Bids (IFB) No. 20-31-034-00
for construction of the Project. A public notice was advertised in the Press Enterprise, and the
complete IFB, including all contract documents, was posted on the PlanetBids website, which is
accessible through the Commission's website. Electronic mail messages were sent to vendors
registered in the Commission's PlanetBids database that fit the IFB qualifications. 133 firms
downloaded the IFB. 37 of those firms are located in Riverside County. A pre -bid conference
was held at the Commission's office on January 7. On February 13, 12 bids were received and
publicly opened. A summary of the bids received is shown in Table 1.
Table 1
Construction of I-15/Railroad Canyon Road Interchange
Engineer's Estimate
$35,725,774
Riverside Construction Company
$27,698,589
Skanska USA Civil West California District, Inc.
$27,874,000
Ortiz Enterprises, Inc.
$30,374,376
Security Paving Company, Inc.
$30,499,521
,
Steve P. Rados, Inc.
$30,691,251
Beador Construction Company, Inc.
$30,944,678
Group OHL— North America
$31,363,844
Flatiron West, Inc.
$31,730,939
SEMA Construction, Inc.
$31,741,926
'
Walsh Construction Company II, LLC
$33,307,616
Griffith Company
$34,578,000
Accel Construction
N/A
The basis for award for a public works contract is the lowest responsive and responsible bidder
as defined by the Commission's procurement policy and state law. The preliminary bid analysis
(Attachment 3) shows the bid amounts of the three lowest apparent bidders, the total price per
item and percent variation from the engineer's estimate for each bid item. The bid price
submitted by Riverside Construction Company was 22.5 percent lower than the engineer's
estimate. Although Riverside Construction Company's bid is lower than the engineer's
estimate, an analysis of the bids is required and will be completed by staff prior to the March
Commission meeting.
After analyzing the 12 bids received, staff preliminarily concluded that Riverside Construction
Company is the lowest responsible bidder submitting a responsive bid in the amount of
$27,698,589 for the Project.
Agenda Item 8
57
Staff recommends award of Agreement No. 20-31-034-00 for the construction of the Project to
Riverside Construction Company for the amount of $27,698,589, plus a contingency amount of
$2,769,859, to cover potential change orders encountered during construction and
supplemental work items in the amount of $910,000, for a total amount not to exceed
$31,378,448. Supplemental work is work that will have to be done during construction but is
not quantifiable at the time of construction advertisement. Two common supplemental items
of work are maintaining existing traffic and the price index fluctuation of asphalt pavement.
Construction activity is expected to begin in April 2020 and will take about 24 months to
complete.
Native American Monitoring
A portion of the Project is within Native American culturally sensitive areas. The environmental
document requires that the Project give the affected Native American Tribe, Pechanga, the
opportunity to monitor construction excavation activities occurring in the sensitive areas, and it
has indicated it wishes to monitor soil disturbance and excavation activities for the Project.
Staff recommends approval of Agreement No. 20-31-046-00 for Native American monitoring
services during the construction of the Project for an amount not to exceed $100,000.
Table 2 presents the total funding for the construction and construction support phases of the
Project. Construction support dollars reflect the construction management contract awarded
to Arcadis U.S, Inc. in June 2019, as well as estimated Commission and Bechtel staff, legal
support and other consultant costs for the construction phase of the Project.
Table 2
Project Funding
(Amounts in thousands)
City
SB1 LPP STIP-RIP Impact
Fee
Construction Capital $ 15,000 $ 2,920 $ 755
Construction Support
Total $ 15,000 $ 2,920 $ 755
TUMF Regional
Arterial
Total
$14,799 $ 33,474
7,450 7,450
$ 22,249 $ 40,924
There is sufficient funding programmed to support the Project costs, including the construction
costs and Native American monitoring services that are the subject of this staff report.
Agenda Item 8
58
Financial Information
In Fiscal Year Budget:
Yes
Year:
FY 2019/20
Amount:
$ 5,100,000
N/A
FY 2020/21+
$26,378,448
TUMF Regional Arterial State SB1 Local
Partnership Program (LPP) and State
Source of Funds:
Transportation Improvement Program-
Budget Adjustment:
No
Regional Improvement Program
N/A
(STIP/RIP) funds; City of Lake Elsinore
Traffic Impact Fees
005104 81301 00000 0000 210 72 81301 Construction
GL/Project Accounting No.:
005104 81304 00000 0000 210 72 81301 Construction Support
Fiscal Procedures Approved:
\le,4,1
Date:
02/14/2020
Attachments:
1) Project Map
2) Draft Agreement No. 20-31-034-00
3) Bid Analysis
4) Draft Native American Monitoring Agreement No. 20-31-046-00
Agenda Item 8
59
I-1.5 RAILROAD CANYON ROAD INTERCHANGE
1111111•M.
•
_ • • •
,..41,k,,:•,Z41%.1,4 •
AirasEria, .
T INHWHDVIIV
ATTACHMENT 2
CONSTRUCTION SERVICES FOR THE
INTERSTATE 15 RAILROAD CANYON ROAD INTERCHANGE
AND RELATED WORK
AGREEMENT NO. 20-31-034-00
1. PARTIES AND DATE.
This Contract is made and entered into this day of , 2020 by and
between the Riverside County Transportation Commission (hereinafter called the
"Commission") and Riverside Construction Company (hereinafter called the "Contractor").
This Contract is for that Work described in the Contract Documents entitled CONSTRUCTION
SERVICES FOR THE INTERSTATE 15 RAILROAD CANYON ROAD
INTERCHANGE AND RELATED RK
2. RECITALS.
2.1 The Commission is a County Transpo on Com ion organized under the
provisions of Sections 130000, et seq. of the Public ties Code of t tate of California, with
power to contract for services necessary to achievi s p . se;
2.2 Contractor, in response to a Notice I
18, 2019, has submitted a bid proposal for C
INTERSTATE 15 RAILROAD CA
RELATED WORK
2.3 Commission has
awarded the bid to Co
Documents.
Bids ed by Commission on December
SERVICES FOR THE
D INTERCHANGE AND
onsidered the Contractor's bid proposal and duly
cordance with the Notice Inviting Bids and other Bid
2.4 Contrac has obt ed, and delivers concurrently herewith, Performance and
Payment Bonds and evid- o ' surance coverage as required by the Contract Documents.
3. TERMS.
3.1 Incorporation of Documents.
This Contract includes and hereby incorporates in full by reference this Contract and the
following Contract Documents provided with the above referenced Notice Inviting Bids, including
all exhibits, drawings, specifications and documents therein, and attachments thereto, all of which,
including all addendum thereto, are by this reference incorporated herein and made a part of this
Contract:
a. NOTICE INVITING BIDS
b. INSTRUCTIONS TO BIDDERS
c. CONTRACT BID FORMS
d. FORM OF CONTRACT
Contract-1
1733 6.0601 K\29695231.1
61
e.
f.
g•
PAYMENT AND PERFORMANCE BOND FORMS
ESCROW AGREEMENT FOR SECURITY DEPOSITS
CONTRACT APPENDIX
PART "A" - Regulatory Requirements and Permits
PART "B" — Standard Provisions
PART "C" — Special Provisions
PART "D" — Contract Plans
PART "E" — Supplemental Materials
h. ADDENDUM NO.(S) (N/A or Add Addendum Numbers)
3.2 Contractor's Basic Obligation.
Contractor promises and agrees, at his own cost and
Commission all labor, materials, tools, equipment, services
for CONSTRUCTION SERVICES FOR THE INT
CANYON ROAD INTERCHANGE AND
Notwithstanding anything else in the Cont
the Work for a total of Twenty Seven Million Six Hu
Eighty -Nine Dollars ($27,698,589), as sp
submitted by the Contractor in response to
amount shall be subject to adjustment in acc
All Work shall be subject to, and
Documents.
3.3 Period of Perform
Contractor sh
days (excluding pla
accordance with the Mi
that if such Work is not c
e - se, to furnish to the
idental and customary work
A RAILROAD
ATED
ents, the Contractor shall complete
inety-Eight Thousand Five Hundred
id proposal and pricing schedules
nced Notice Inviting Bids. Such
he applicable terms of this Contract.
cordance with the above referenced Contract
lete all Work under this Contract within 434 working
t work) of the effective date of the Notice to Proceed, and in
pletion Dates set forth in the table below. Contractor agrees
d within the aforementioned periods, liquidated damages will
apply as provided by the appli . ble provisions of the General Conditions, found in Part "B" of the
Contract Appendix. The amount of liquidated damages shall equal thirteen thousand five hundred
dollars ($13,500.00) for each day or fraction thereof, it takes to complete the Work, or specified
portion(s) of the Work, over and above the number of days specified herein or beyond the Project
Milestones established by approved Construction Schedules.
Contract-2
1733 6.0601 K\29695231.1
62
3.4 Commission's Basic Obligation.
Commission agrees to engage and does hereby engage Contractor as an independent
contractor to furnish all materials and to perform all Work according to the terms and conditions
herein contained for the sum set forth above. Except as otherwise provided in the Contract
Documents, the Commission shall pay to Contractor, as full consideration for the satisfactory
performance by the Contractor of services and obligation required by this Contract, the above
referenced compensation in accordance with Compensation Provisions set forth in the Contract
Documents.
3.5 Contractor's Labor Certification.
Contractor maintains that he is aware of the provisions of Section 3700 of the Labor Code
which require every employer to be insured against liability fo orker's Compensation or to
undertake self-insurance in accordance with the provisions o . t Code, and agrees to comply
with such provisions before commencing the performance . ' ork. A certification form for
this purpose is attached to this Contract as Exhibit "A" a► . ncorped herein by reference, and
shall be executed simultaneously with this Contract.
3.6 Successors.
The parties do for themselves, th
assigns agree to the full performance of all of
may not either voluntarily or by act • of
hereunder without the prior writte
All notices her
Contract or changes
return receipt requeste
Contractor:
Riverside Construction Company
4225 Garner Rd
Riverside, CA 92501
Attn: Bryan Lounsbury
rs, administrators, successors, and
ntained in this Contract. Contractor
y obligation assumed by Contractor
unications regarding interpretation of the terms of the
ed by the mailing thereof by registered or certified mail,
aid and addressed as follows:
Commission:
Riverside County Transportation Commission
P.O. Box 12008
Riverside, California 92502-2208
Attn: Executive Director
Any notice so given shall be considered received by the other party three (3) days after
deposit in the U.S. Mail, first class postage prepaid, addressed to the party at the above address.
Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the
method of service.
Contract-3
1733 6.0601 K\29695231.1
63
CONTRACTOR
Riverside Construction Company
COMMISSION
RIVERSIDE COUNTY
TRANSPORTATION
By: By:
Name
Title
Tax I.D. Number:
Anne Mayer
Riverside County Transportation
Commission
APPROVED AS TO FORM:
By:
Contract-4
t & er LLP
se1, RCTC
1733 6.0601 K\29695231.1
ATTACHMENT 3
Printed: 2/14/2020, 11:47 AM
1-15 Railroad Canyon Interchange ENGINEER'S BID PRICES AND AMOUNTS
AVERAGE OF
BID AMOUNTS
VARIANCE FROM AVERAGE OF BIDS
LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
SPREAD
(HIGH MINUS LOW)
% of
PRICE AMOUNT W
Total w n
SPREAD SPREAD I z
Avg.
7,500.00 $ 7,500 0% 1
Revision No.: A (completed 10/21/2019) Yellow items are > $100kbelow ENGR EST
Bid Opening Date: 17 OCT 2019 ESTIMATE LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
UNIT BID ENGINEER'S % of
ITEM ITEM AMOUNT
ITEM DESCRIPTION OF QTY ESTIMATED Eng
NUM CODE MEASURE (C=A x B)
(A) PRICE (B) Est
% VAR
PRICE AMOUNT ENGR
EST
% VAR
PRICE AMOUNT ENGR
EST
% VAR
PRICE AMOUNT ENGR
EST
%Var
PRICE AMOUNT
to Avg
% Var
PRICE AMOUNT
to Avg
% Var
PRICE AMOUNT
to Avg
% of % VAR
PRICE AMOUNT Total ENGR
Avg. EST
1 70030 LEAD COMPLIANCE PLAN LS 1 $ 6,000.00 $ 6,000 0% 3,500.00 $ 3,500 -42% 2,500.00 $ 2,500 -58% 10,000.00 $ 10,000 67%
5,333.33 $ 5,333 0% -11%
(1,833.33) $ (1,833) -34% (2,833.33) $ (2,833) -53% 4,666.67 $ 4,667 88%
2 80050 PROGRESS SCHEDULE (CRITICAL PATH METHOD) LS 1 $ 10,000.00 $ 10,000 0% 25,000.00 $ 25,000 150% 40,000.00 $ 40,000 300% 75,000.00 $ 75,000 650%
46,666.67 $ 46,667 0% 367%
(21,666.67) $ (21,667) -46% (6,666.67) $ (6,667) -14% 28,333.33 $ 28,333 61%
50,000.00 $ 50,000 0% 2
3 90100 TIME -RELATED OVERHEAD (WDAY) WDAY 434 $ 6,845.00 $ 2,970,730 8% 2,500.00 $ 1,085,000 -63% 3,000.00 $ 1,302,000 -56% 4,200.00 $ 1,822,800 -39%
3,233.33 $ 1,403,267 5%A -53%
(733.33) $ (318,267) -23% (233.33) $ (101,267) -7% 966.67 $ 419,533 30%
1,700.00 $ 737,800 3% 3
4 120090 CONSTRUCTION AREA SIGNS LS 1 $ 193,000.00 $ 193,000 1% 75,000.00 $ 75,000 -61% 150,000.00 $ 150,000 -22% 200,000.00 $ 200,000 4%
141,666.67 $ 141,667 0% -27%
(66,666.67) $ (66,667) -47% 8,333.33 $ 8,333 6% 58,333.33 $ 58,333 41%
125,000.00 $ 125,000 0% 4
5 120100 TRAFFIC CONTROL SYSTEM LS 1 $ 310,000.00 $ 310,000 1% 550,000.00 $ 550,000 77%4 500,000.00 $ 500,000 61014 325,000.00 $ 325,000 5%
458,333.33 $ 458,333 2% 48%
91,666.67 $ 91,667 20% 41,666.67 $ 41,667 9% (133,333.33) $ (133,333) -29%
225,000.00 $ 225,000 1% 5
6 120116 TYPE II BARRICADE EA 14 $ 60.00 $ 840 0% 125.00 $ 1,750 108% 30.00 $ 420 -50% 300.00 $ 4,200 400%
151.67 $ 2,123 0% 153%
(26.67) $ (373) -18% (121.67) $ (1,703) -80% 148.33 $ 2,077 98%
270.00 $ 3,780 0% 6
7 120120 TYPE III BARRICADE EA 3 $ 130.00 $ 390 0% 300.00 $ 900 131% 100.00 $ 300 -23% 500.00 $ 1,500 285%
300.00 $ 900 0% 131%
- $ - 0% (200.00) $ (600) -67% 200.00 $ 600 67%
400.00 $ 1,200 0% 7
8 120165 CHANNELIZER (SURFACE MOUNTED) EA 310 $ 46.00 $ 14,260 0% 40.00 $ 12,400 -13% 50.00 $ 15,500 9% 50.00 $ 15,500 9%
46.67 $ 14,467 0% 1%
(6.67) $ (2,067) -14% 3.33 $ 1,033 7% 3.33 $ 1,033 7%
10.00 $ 3,100 0% 8
9 124000 TEMPORARY PEDESTRIAN ACCESS ROUTE LS 1 $ 4,000.00 $ 4,000 0% 45,000.00 $ 45,000 1025 % 35,000.00 $ 35,000 775% 75,000.00 $ 75,000 1775%
51,666.67 $ 51,667 0% 1192%
(6,666.67) $ (6,667) -13% (16,666.67) $ (16,667) -32% 23 333 33 $ 23,333 45%
40,000.00 $ 40,000 0% 9
10 128652 PORTABLE CHANGEABLE MESSAGE SIGN (LS) LS 1 $ 60,000.00 $ 60,000 0% 75,000.00 $ 75,000 25% 135,000.00 $ 135,000 125% 100,000.00 $ 100,000 67%
103,333.33 $ 103,333 0% 72%
(28,333.33) $ (28,333) -27% 31,666.67 $ 31,667 31% (3,333.33) $ (3,333) -3%
60,000.00 $ 60,000 0% 10
11 129000 TEMPORARY RAILING (TYPE K) LF 36,800 $ 15.00 $ 552,000 2% 12.00 $ 441,600 -20% 6.00 $ 220,800 -60% 13.00 $ 478,400 -13%
10.33 $ 380,267 1% -31%
1.67 $ 61,333 16% (4.33) $ (159,467) -42% 2.67 $ 98,133 26%
7.00 $ 257,6001% 11
12 129100 TEMPORARY CRASH CUSHION MODULE EA 290 $ 300.00 $ 87,000 0% 250.00 $ 72,500 -17% 300.00 $ 87,000 0% 250.00 $ 72,500 -17%
266.67 $ 77,333 0% -11%
(16.67) $ (4,833) -6% 33.33 $ 9,667 13% (16.67) $ (4,833) -6%
50.00 $ 14,500 0% 12
13 130100 JOB SITE MANAGEMENT LS 1 $ 120,000.00 $ 120,000 0% 100,000.00 $ 100,000 -17% 80,000.00 $ 80,000 -33% 10,000.00 $ 10,000 -92%
63,333.33 $ 63,333 0% -47%
36,666.67 $ 36,667 58% 16,666.67 $ 16,667 26% (53,333.33) $ (53,333) -84%
90,000.00 $ 90,000 0% 13
14 130300 PREPARE STORM WATER POLLUTION PREVENTION PLAN LS 1 $ 13,000.00 $ 13,000 0% 7,500.00 $ 7,500 -42% 5,000.00 $ 5,000 -62% 165,000.00 $ 165,000 1169%
59,166.67 $ 59,167 0% 355%
(51,666.67) $ (51,667) -87% (54,166.67) $ (54,167) -92% 105,833.33 $ 105,833 179%
160,000.00 $ 160,000 1% 14
15 130310 RAIN EVENT ACTION PLAN EA 13 $ 500.00 $ 6,500 0% 650.00 $ 8,450 30% 250.00 $ 3,250 -50% 600.00 $ 7,800 20%
500.00 $ 6,500 0% 0%
150.00 $ 1,950 30% (250.00) $ (3,250) -50% 100.00 $ 1,300 20%
400.00 $ 5,200 0% 15
16 130320 STORM WATER SAMPLING AND ANALYSIS DAY EA 14 $ 1,500.00 $ 21,000 0% 650.00 $ 9,100 -57% 250.00 $ 3,500 -83% 350.00 $ 4,900 -77%
416.67 $ 5,833 0% -72%
233 33 $ 3,267 56% (166.67) $ (2,333) -40% (66.67) $ (933) -16%
400.00 $ 5,600 0% 16
17 130330 STORM WATER ANNUAL REPORT EA 3 $ 2,000.00 $ 6,000 0% 650.00 $ 1,950 -68% 1,000.00 $ 3,000 -50% 500.00 $ 1,500 -75%
716.67 $ 2,150 0% -64%
(66.67) $ (200) -9% 283.33 $ 850 40% (216.67) $ (650) -30%
500.00 $ 1,500 0% 17
18 130505 MOVE-IN/MOVE-OUT (TEMPORARY EROSION CONTROL) EA 6 $ 700.00 $ 4,200 0% 600.00 $ 3,600 -14% 1,000.00 $ 6,000 43% 500.00 $ 3,000 -29%
700.00 $ 4,200 0% 0%
(100.00) $ (600) -14% 300.00 $ 1,800 43% (200.00) $ (1,200) -29%
500.00 $ 3,000 0% 18
19 130530 TEMPORARY HYDRAULIC MULCH (BONDED FIBER MATRIX) SQYD 87,852 $ 0.90 $ 79,067 0% 0.70 $ 61,496 -22% 1.00 $ 87,852 11% 0.80 $ 70,282 -11%
0.83 $ 73,210 0% -7%
(0.13) $ (11,714) -16% 0.17 $ 14,642 20% (0.03) $ (2,928) -4%
0.30 $ 26,356 0% 19
20 130610 TEMPORARY CHECK DAM LF 18,534 $ 7.00 $ 129,738 0% 5.00 $ 92,670 -29% 3.00 $ 55,602 -57% 6.00 $ 111,204 -14%
4.67 $ 86,492 0% -33%
0.33 $ 6,178 7% (1.67) $ (30,890) -36% 1.33 $ 24,712 29%
3.00 $ 55,602 0% 20
21 130620 TEMPORARY DRAINAGE INLET PROTECTION EA 92 $ 300.00 $ 27,600 0% 150.00 $ 13,800 -50% 450.00 $ 41,400 50% 450.00 $ 41,400 50%
350.00 $ 32,200 0% 17%
(200.00) $ (18,400) -57% 100.00 $ 9,200 29% 100.00 $ 9,200 29%
300.00 $ 27,600 0% 21
22 130621 A TEMPORARY DRAINAGE OUTLET PROTECTION EA 6 $ 300.00 $ 1,800 0% 250.00 $ 1,500 -17% 1,500.00 $ 9,000 li 4.0C, 450.00 $ 2,700 50%
733.33 $ 4,400 0% 144%
(483.33) $ (2,900) -66% 766.67 $ 4,600 105% (283.33) $ (1,700) -39%
1,250.00 $ 7,500 0% 22
23 130640 TEMPORARY FIBER ROLL LF 34,827 $ 3.50 $ 121,895 0% 3.50 $ 121,895 0% 5.00 $ 174,135 43% 5.00 $ 174,135 43%
4.50 $ 156,722 1% 29%
(1.00) $ (34,827) -22% 0.50 $ 17,414 11% 0.50 $ 17,414 11%
1.50 $ 52,241 0% 23
24 130650 TEMPORARY GRAVEL BAG BERM LF 164 $ 6.00 $ 984 0% 20.00 $ 3,280 233% 20.00 $ 3,280 233% 6.00 $ 984 0%
15.33 $ 2,515 0% 156%
4.67 $ 765 30% 4.67 $ 765 30% (9.33) $ (1,531) -61%
14.00 $ 2,296 0% 24
25 130680 TEMPORARY SILT FENCE LF 15,630 $ 4.00 $ 62,520 0% 4.00 $ 62,520 0% 4.50 $ 70,335 13% 5.00 $ 78,150 25%
4.50 $ 70,335 0% 13%
(0.50) $ (7,815) -11% - $ - 0% 0.50 $ 7,815 11%
1.00 $ 15,630 0% 25
26 130710 TEMPORARY CONSTRUCTION ENTRANCE EA 18 $ 3,000.00 $ 54,000 0% 5,000.00 $ 90,000 6671 5,000.00 $ 90,000 ` 671 3,500.00 $ 63,000 17%
4,500.00 $ 81,000 0% 50%
500.00 $ 9,000 11% 500.00 $ 9,000 11% (1,000.00) $ (18,000) -22%
1,500.00 $ 27,000 0% 26
27 130730 STREET SWEEPING LS 1 $ 175,000.00 $ 175,000 0% 50,000.00 -71% 130,000.00 $ 130,000 -26% 261,000.00 $ 261,000 49%
147,000.00 $ 147,000 1% -16%
(97,000.00) $ (97,000) -66% (17,000.00) $ (17,000) -12% 114,000.00 $ 114,000 78%
211,000.00 $ 211,000 1% 27
28 130900 TEMPORARY CONCRETE WASHOUT LS 1 $ 120,000.00 $ 120,000 0% 50,000.00 $ 50,000 -58% 45,000.00 $ 45,000 -63% 65,000.00 $ 65,000 -46%
53 333 33 $ 53,333 0% -56%
(3,333.33) $ (3,333) -6% (8,333.33) $ (8,333) -16% 11,666.67 $ 11,667 22%
20,000.00 $ 20,000 0% 28
29 141103 REMOVE YELLOW THERMOPLASTIC TRAFFIC STRIPE (HAZAR LF 16,982 $ 2.00 $ 33,964 0% 0.50 $ 8,491 -75% 0.75 $ 12,737 -63% 0.60 $ 10,189 -70%
0.62 $ 10,472 0% -69%
(0.12) $ (1,981) -19% 0.13 $ 2,264 22% (0.02) $ (283) -3%
0.25 $ 4,246 0% 29
30 141104 REMOVE YELLOW THERMOPLASTIC PAVEMENT MARKING (H/ SQFT 127 $ 4.00 $ 508 0% 3.00 $ 381 -25% 10.00 $ 1,270 150% 5.00 $ 635 25%
6.00 $ 762 0% 50%
(3.00) $ (381) -50% 4.00 $ 508 67% (1.00) $ (127) -17%
7.00 $ 889 0% 30
31 141120 TREATED WOOD WASTE LB 30,918 $ 0.30 $ 9,275 0% 0.50 $ 15,459 67%41 0.25 $ 7,730 -17% 0.35 $ 10,821 17%
0.37 $ 11,337 0% 22%
0.13 $ 4,122 36% (0.12) $ (3,607) -32% (0.02) $ (515) -5%
0.25 $ 7,730 0% 31
32 146002 CONTRACTOR -SUPPLIED BIOLOGIST (LS) LS 1 $ 30,000.00 $ 30,000 0% 50,000.00 $ 50,000 67% 100,000.00 $ 100,000 233% 75,000.00 $ 75,000 150%
75,000.00 $ 75,000 0% 150%
(25,000.00) $ (25,000) -33% 25,000.00 $ 25,000 33% - $ - 0%
50,000.00 $ 50,000 0% 32
33 146003 NATURAL RESOURCE PROTECTION PLAN LS 1 $ 10,000.00 $ 10,000 0% 5,000.00 $ 5,000 -50% 10,000.00 $ 10,000 0% 2,500.00 $ 2,500 -75%
5,833.33 $ 5,833 0% -42%
(833.33) $ (833) -14% 4,166.67 $ 4,167 71% (3,333.33) $ (3,333) -57%
7,500.00 $ 7,500 0% 33
34 146007 INVASIVE SPECIES CONTROL LS 1 $ 5,000.00 $ 5,000 0% 7,500.00 $ 7,500 50% 135,000.00 $ 135,000 2600% 5,000.00 $ 5,000 0%
49,166.67 $ 49,167 0% 883%
(41,666.67) $ (41,667) -85% 85,833.33 $ 85,833 175% (44,166.67) $ (44,167) -90%
130,000.00 $ 130,000 0% 34
35 153121 REMOVE CONCRETE (CY) CY 224 $ 200.00 $ 44,800 0% 200.00 $ 44,800 0% 70.00 $ 15,680 -65% 115.00 $ 25,760 -43%
128.33 $ 28,747 0% -36%
71.67 $ 16,053 56% (58.33) $ (13,067) -45% (13.33) $ (2,987) -10%
130.00 $ 29,120 0% 35
36 153247 REMOVE CONCRETE(MISCELLANEOUS)(CY) CY 157 $ 300.00 $ 47,100 0% 85.00 $ 13,345 -72% 115.00 $ 18,055 -62% 85.00 $ 13,345 -72%
95.00 $ 14,915 0% -68%
(10.00) $ (1,570) -11% 20.00 $ 3,140 21% (10.00) $ (1,570) -11%
30.00 $ 4,710 0% 36
37 160110 TEMPORARY HIGH -VISIBILITY FENCE LF 3,336 $ 10.00 $ 33,360 0% 6.00 $ 20,016 -40% 7.00 $ 23,352 -30% 5.00 $ 16,680 -50%
6.00 $ 20,016 0% -40%
- $ - 0% 1.00 $ 3,336 17% (1.00) $ (3,336) -17%
2.00 $ 6,672 0% 37
38 170103 CLEARING AND GRUBBING (LS) LS 1 $ 100,000.00 $ 100,000 0% 150,000.00 $ 150,000 50% 25,000.00 $ 25,000 -75% 200,000.00 $ 200,000 100%
125,000.00 $ 125,000 0% 25%
25,000.00 $ 25,000 20% (100,000.00) $ (100,000) -80% 75,000.00 $ 75,000 60%
175,000.00 $ 175,000 1% 38
39 180106 DUST PALLIATIVE LS 1 $ 150,000.00 $ 150,000 0% 25,000.00 $ 25,000 -83% 8,000.00 $ 8,000 -95% 12,500.00 $ 12,500 -92%
15,166.67 $ 15,167 0% -90%
9,833.33 $ 9,833 65% (7,166.67) $ (7,167) -47% (2,666.67) $ (2,667) -18%
17,000.00 $ 17,000 0% 39
40 190101 ROADWAY EXCAVATION CY 31,968 $ 30.00 $ 959,040 3% 22.00 $ 703,296 -27% 24.00 $ 767,232 -20% 34.00 $ 1,086,912 13%
26.67 $ 852,480 3% -11%
(4.67) $ (149,184) -18% (2.67) $ (85,248) -10% 7.33 $ 234,432 28%
12.00 $ 383,616 1% 40
41 192003 STRUCTURE EXCAVATION (BRIDGE) CY 76 $ 40.00 $ 3,040 0% 125.00 $ 9,500 213% 80.00 $ 6,080 100% 150.00 $ 11,400 275%
118.33 $ 8,993 0% 196%
6.67 $ 507 6% (38.33) $ (2,913) -32% 31.67 $ 2,407 27%
70.00 $ 5,320 0% 41
42 192037 STRUCTURE EXCAVATION (RETAINING WALL) CY 4,168 $ 60.00 $ 250,080 1% 40.00 $ 166,720 -33% 45.00 $ 187,560 -25% 50.00 $ 208,400 -17%
45.00 $ 187,560 1% -25%
(5.00) $ (20,840) -11% - $ - 0% 5.00 $ 20,840 11%
10.00 $ 41,680 0% 42
43 192055 STRUCTURE EXCAVATION (SOIL NAIL WALL) CY 970 $ 55.00 $ 53,350 0% 65.00 $ 63,050 18% 55.00 $ 53,350 0% 80.00 $ 77,600 45%
66.67 $ 64,667 0% 21%
(1.67) $ (1,617) -3% (11.67) $ (11,317) -18% 13.33 $ 12,933 20%
25.00 $ 24,250 0% 43
• 44 192060 STRUCTURE EXCAVATION (GROUND ANCHOR WALL) CY 428 $ 55.00 $ 23,540 0% 150.00 $ 64,200 173%170.00 $ 72,760 209%' 110.00 $ 47,080 100%
143.33 $ 61,347 0% 161%
6.67 $ 2,853 5% 26.67 $ 11,413 19% (33.33) $ (14,267) -23%
60.00 $ 25,680 0% 44
GROUND MONITORING LS 1 $ 50,000.00 $ 50,000 0% 5,000.00 $ 5,000 -9001 2,000.00 $ 2,000 -96% 25,000.00 $ 25,000 -5001
45 192061 q
10,666.67 $ 10,667 0% -7901
(5,666.67) $ (5,667) -53% (8,666.67) $ (8,667) -8101 14,333.33 $ 14,333 134%
23,000.00 $ 23,000 001 45
L:\Project Controls\Cost Estimates (ICE), Cost Analysis & Negotiations\Construction Bid Analysis \Pachappa UP\Bid Comparison -Analysis Table - Construction Pachappa UC 2019-10-18 rO, Bid Schad (2)
65
Page 1 of 6
Printed: 2/14/2020, 11:47 AM
1-15 Railroad Canyon Interchange ENGINEER'S BID PRICES AND AMOUNTS
AVERAGE OF
BID AMOUNTS
VARIANCE FROM AVERAGE OF BIDS
LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
SPREAD
(HIGH MINUS LOW)
Revision No.: A (completed 10/21/2019) Yellow items are > $100kbelow ENGR EST
Bid Opening Date: 17 OCT 2019 ESTIMATE LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
%Var
PRICE AMOUNT
to Avg
% Var % Var
PRICE AMOUNT PRICE AMOUNT
to Avg to Avg
UNIT BID ENGINEER'S % of
ITEM ITEM AMOUNT
ITEM DESCRIPTION OF CITY ESTIMATED Eng
CODE MEASURE (A) PRICE (B) (C-_ A x B) Est
% VAR
PRICE AMOUNT ENGR
EST
% VAR % VAR
PRICE AMOUNT ENGR PRICE AMOUNT ENGR
EST EST
% of % VAR
PRICE AMOUNT Total ENGR
Avg. EST
% of
PRICE AMOUNT
Total
SPREAD SPREAD Avg
W
alNUM z
46 193003 STRUCTUREBACKFILL(BRIDGE) CY 46 $ 47.00 $ 2,162 0% 250.00 $ 11,500
432%
75.00 $ 3,450 60% 130.00 $ 5,980 177%
151.67 $ 6,977 0% 223%
98.33 $ 4,523 65% (76.67) $ (3,527) -51% (21.67) $ (997) -14%
175.00 $ 8,050 0% 46
47 193013 STRUCTURE BACKFILL (RETAINING WALL) CY 3,636 $ 45.00 $ 163,620 0% 100.00 $ 363,600
122%
45.00 $ 163,620 0% 32.00 $ 116,352 -29%
59.00 $ 214,524 1% 31%
41.00 $ 149,076 69% (14.00) $ (50,904) -24% (27.00) $ (98,172) -46%
68.00 $ 247,248 1% 47
48 193027 STRUCTURE BACKFILL (GROUND ANCHOR WALL) CY 32 $ 105.00 $ 3,360 0% 1,500.00 $ 48,000
1329%
200.00 $ 6,400 9011 135.00 $ 4,320 29%
611.67 $ 19,573 0% 483%
888.33 $ 28,427 145% (411.67) $ (13,173) -67% (476.67) $ (15,253) -78%
1,365.00 $ 43,680 0% 48
49 193028F STRUCTURE BACKFILL (SOIL NAIL WALL) CY 78 $ 150.00 $ 11,700 0% 500.00 $ 39,000
233%
85.00 $ 6,630 -43% 55.00 $ 4,290 -63%
213.33 $ 16,640 0% 42%
286.67 $ 22,360 134% (128.33) $ (10,010) -60% (158.33) $ (12,350) -74%
445.00 $ 34,710 0% 49
50 193031 PERVIOUS BACKFILL MATERIAL (RETAINING WALL) CY 183 $ 67.00 $ 12,261 0% 100.00 $ 18,300 49% 90.00 $ 16,470 34% 44.00 $ 8,052 -34%
78.00 $ 14,274 0% 16%
22.00 $ 4,026 28% 12.00 $ 2,196 15% (34.00) $ (6,222) -44%
56.00 $ 10,248 0% 50
51 194001 DITCH EXCAVATION CY 52 $ 75.00 $ 3,900 0% 100.00 $ 5,200 33% 40.00 $ 2,080 -47% 205.00 $ 10,660 173%
115.00 $ 5,980 0% 53%
(15.00) $ (780) -13% (75.00) $ (3,900) -65% 90.00 $ 4,680 78%
165.00 $ 8,580 0% 51
52 198010 IMPORTED BORROW (CY) CY 4,516 $ 20.00 $ 90,320 0% 1.00 $ 4,516 -95% 0.50 $ 2,258 -98% 1.00 $ 4,516 -95%
0.83 $ 3,763 0% -96%
0.17 $ 753 20% (0.33) $ (1,505) -40% 0.17 $ 753 20%
0.50 $ 2,258 0% 52
53 200114 ROCK BLANKET SQFT 42,334 $ 25.00 $ 1,058,350 3% 11.00 $ 465,674 -56% 11.00 $ 465,674 -56% 9.50 $ 402,173 -62%
10.50 $ 444,507 2% -58%
0.50 $ 21,167 5% 0.50 $ 21,167 5% (1.00) $ (42,334) -10%
1.50 $ 63,501 0% 53
54 200123 CULTIVATION SQYD 505 $ 10.00 $ 5,050 0% 8.00 $ 4,040 -20% 3.00 $ 1,515 -70% 8.00 $ 4,040 -20%
6.33 $ 3,198 0% -37%
1.67 $ 842 26% (3.33) $ (1,683) -53% 1.67 $ 842 26%
5.00 $ 2,525 0% 54
55 202004 IRON SULFATE (LB) LB 3,953 $ 4.00 $ 15,812 0% 1.00 $ 3,953 -75% 1.00 $ 3,953 -75% 0.90 $ 3,558 -78%
0.97 $ 3,821 0% -76%
0.03 $ 132 3% 0.03 $ 132 3% (0.07) $ (264) -7%
0.10 $ 395 0% 55
56 202006 SOIL AMENDMENT CY 213 $ 42.00 $ 8,946 0% 20.00 $ 4,260 -52% 1.00 $ 213 -98% 20.00 $ 4,260 -52%
13.67 $ 2,911 0% -67%
6.33 $ 1,349 46% (12.67) $ (2,698) -93% 6.33 $ 1,349 46%
19.00 $ 4,047 0% 56
57 202026 RELOCATE BACKFLOW PREVENTER ASSEMBLY EA 2 $ 3,000.00 $ 6,000 0% 1,500.00 $ 3,000 -50% 3,000.00 $ 6,000 0% 1,600.00 $ 3,200 -47%
2,033.33 $ 4,067 0% -32%
(533.33) $ (1,067) -26% 966.67 $ 1,933 48% (433.33) $ (867) -21%
1,500.00 $ 3,000 0% 57
58 202028 RELOCATE IRRIGATION CONTROLLER EA 1 $ 3,550.00 $ 3,550 0% 1,500.00 $ 1,500 -58% 3,000.00 $ 3,000 -15% 1,600.00 $ 1,600 -55%
2,033.33 $ 2,033 0% -43%
(533.33) $ (533) -26% 966.67 $ 967 48% (433.33) $ (433) -21%
1,500.00 $ 1,500 0% 58
59 202029 A REMOVE IRRIGATION CONTROLLER EA 1 $ 1,000.00 $ 1,000 0% 800.00 $ 800 -20% 2,500.00 $ 2,500 150% 800.00 $ 800 -20%
1,366.67 $ 1,367 0% 37%
(566.67) $ (567) -41% 1,133.33 $ 1,133 83% (566.67) $ (567) -41%
1,700.00 $ 1,700 0% 59
60 202038 PACKET FERTILIZER EA 15,418 $ 2.50 $ 38,545 0% 0.20 $ 3,084 -92% 0.50 $ 7,709 -80% 0.20 $ 3,084 -92%
0.30 $ 4,625 0% -88%
(0.10) $ (1,542) -33% 0.20 $ 3,084 67% (0.10) $ (1,542) -33%
0.30 $ 4,625 0% 60
61 204008 PLANT(GROUPH) EA 1,117 $ 15.00 $ 16,755 0% 2.50 $ 2,793 -83% 5.00 $ 5,585 -67% 2.50 $ 2,793 -83%
3.33 $ 3,723 0% -78%
(0.83) $ (931) -25% 1.67 $ 1,862 50% (0.83) $ (931) -25%
2.50 $ 2,793 0% 61
62 204035 PLANT (GROUP A) EA 659 $ 13.00 $ 8,567 0% 10.00 $ 6,590 -23% 20.00 $ 13,180 5414 9.50 $ 6,261 -27%
13.17 $ 8,677 0% 1%
(3.17) $ (2,087) -24% 6.83 $ 4,503 52% (3.67) $ (2,416) -28%
10.50 $ 6,920 0% 62
63 204036 PLANT(GROUPB) EA 4,424 $ 32.00 $ 141,568 0% 18.00 $ 79,632 -44% 20.00 $ 88,480 -38% 18.00 $ 79,632 -44%
18.67 $ 82,581 0% -42%
(0.67) $ (2,949) -4% 1.33 $ 5,899 7% (0.67) $ (2,949) -4%
2.00 $ 8,848 0% 63
64 204038 PLANT(GROUPU) EA 74 $ 150.00 $ 11,100 0% 95.00 $ 7,030 -37% 200.00 $ 14,800 33% 94.00 $ 6,956 -37%
129.67 $ 9,595 0% -14%
(34.67) $ (2,565) -27% 70.33 $ 5,205 54% (35.67) $ (2,639) -28%
106.00 $ 7,844 0% 64
65 204099 PLANT ESTABLISHMENT WORK LS 1 $ 60,000.00 $ 60,000 0% 50,000.00 $ 50,000 -17% 50,000.00 $ 50,000 -17% 56,000.00 $ 56,000 -7%
52,000.00 $ 52,000 0% -13%
(2,000.00) $ (2,000) -4% (2,000.00) $ (2,000) -4% 4,000.00 $ 4,000 8%
6,000.00 $ 6,000 0% 65
66 205035 WOOD MULCH CY 2,373 $ 40.00 $ 94,920 0% 50.00 $ 118,650 25% 60.00 $ 142,380 50% 51.00 $ 121,023 28%
53.67 $ 127,351 0% 34%
(3.67) $ (8,701) -7% 6.33 $ 15,029 12% (2.67) $ (6,328) -5%
10.00 $ 23,730 0% 66
67 205036 A GRAVEL MULCH TYPE 1 SQFT 2,660 $ 5.00 $ 13,300 0% 3.00 $ 7,980 -40% 3.50 $ 9,310 -30% 3.00 $ 7,980 -40%
3.17 $ 8,423 0% -37%
(0.17) $ (443) -5% 0.33 $ 887 11% (0.17) $ (443) -5%
0.50 $ 1,330 0% 67
68 205037 A GRAVEL MULCH TYPE 2 SQFT 4,880 $ 5.00 $ 24,400 0% 4.00 $ 19,520 -20% 3.50 $ 17,080 -30% 4.00 $ 19,520 -20%
3.83 $ 18,707 0% -23%
0.17 $ 813 4% (0.33) $ (1,627) -9% 0.17 $ 813 4%
0.50 $ 2,440 0% 68
69 206559 CONTROL AND NEUTRAL CONDUCTORS (ARMOR -CLAD) LS 1 $ 150,000.00 $ 150,000 0% 50,000.00 $ 50,000 -67% 50,000.00 $ 50,000 -67% 155,000.00 $ 155,000 3%
85,000.00 $ 85,000 0% -43%
(35,000.00) $ (35,000) -41% (35,000.00) $ (35,000) -41% 70,000.00 $ 70,000 82%
105,000.00 $ 105,000 0% 69
70 206400 CHECK AND TEST EXISTING IRRIGATION FACILITIES LS 1 $ 800.00 $ 800 0% 3,500.00 $ 3,500 338% 4,000.00 $ 4,000 400% 3,600.00 $ 3,600 350%
3,700.00 $ 3,700 0% 363%
(200.00) $ (200) -5% 300.00 $ 300 8% (100.00) $ (100) -3/
500.00 $ 500 0% 70
71 206564 1 1/2" REMOTE CONTROL VALVE EA 79 $ 600.00 $ 47,400 0% 650.00 $ 51,350 8% 600.00 $ 47,400 0% 650.00 $ 51,350 8%
633.33 $ 50,033 0% 6%
16.67 $ 1,317 3% (33.33) $ (2,633) -5% 16.67 $ 1,317 3%
50.00 $ 3,950 0% 71
72 206565 2" REMOTE CONTROL VALVE EA 54 $ 800.00 $ 43,200 0% 670.00 $ 36,180 -16% 650.00 $ 35,100 -19% 670.00 $ 36,180 -16%
663.33 $ 35,820 0% -17%
6.67 $ 360 1% (13.33) $ (720) -2% 6.67 $ 360 1%
20.00 $ 1,080 0% 72
73 206569 A 2" ELECTRIC REMOTE CONTROL VALVE (MASTER) EA 4 $ 1,000.00 $ 4,000 0% 600.00 $ 2,400 -40% 1,000.00 $ 4,000 0% 600.00 $ 2,400 -40%
733.33 $ 2,933 0% -27%
(133.33) $ (533) -18% 266.67 $ 1,067 36% (133.33) $ (533) -18%
400.00 $ 1,600 0% 73
74 206634 2" WYE STRAINER ASSEMBLY EA 2 $ 1,500.00 $ 3,000 0% 1,000.00 $ 2,000 -33% 700.00 $ 1,400 -53% 1,030.00 $ 2,060 -31%
910.00 $ 1,820 0% -39%
90.00 $ 180 10% (210.00) $ (420) -23% 120.00 $ 240 13%
330.00 $ 660 0% 74
75 206756 A 30-48 STATION IRRIGATION CONTROLLER (WALL MOUNTED) EA 4 $ 7,500.00 $ 30,000 0% 9,000.00 $ 36,000 20% 10,000.00 $ 40,000 33% 9,200.00 $ 36,800 23%
9,400.00 $ 37,600 0% 25%
(400.00) $ (1,600) -4% 600.00 $ 2,400 6% (200.00) $ (800) -2%
1,000.00 $ 4,000 0% 75
7 1
76 208602 6" PLASTIC PIPE (SCHEDULE 40) (SUPPLY LINE) LF 502 $ 12.00 $ 6,024 0% 45.00 $ 22,590 275% 30.00 $ 15,060 150% 44.00 $ 22,088 267%
39.67 $ 19,913 0% 231%
5.33 $ 2,677 13% (9.67) $ (4,853) -24% 4.33 $ 2,175 11%
15.00 $ 7,530 0% 76
77 208762 12" CORRUGATED STEEL PIPE CONDUIT (.064" THICK) LF 606 $ 100.00 $ 60,600 0% 130.00 $ 78,780 30% 100.00 $ 60,600 0% 122.00 $ 73,932 22/
117.33 $ 71,104 0% 17%
12.67 $ 7,676 11% (17.33) $ (10,504) -15% 4.67 $ 2,828 4%
30.00 $ 18,180 0% 77
78 208301 IRRIGATION CONTROLLER ENCLOSURE CABINET EA 2 $ 3,500.00 $ 7,000 0% 6,500.00 $ 13,000 86V' 5,000.00 $ 10,000 43% 6,900.00 $ 13,800 97%
6,133.33 $ 12,267 0% 75%
366.67 $ 733 6% (1,133.33) $ (2,267) -18% 766.67 $ 1,533 13%
1,900.00 $ 3,800 0% 78
79 208426 2" BACKFLOW PREVENTER ASSEMBLY EA 2 $ 5,000.00 $ 10,000 0% 2,500.00 $ 5,000 -50% 5,000.00 $ 10,000 0% 2,500.00 $ 5,000 -50%
3,333.33 $ 6,667 0% -33%
(833.33) $ (1,667) -25% 1,666.67 $ 3,333 50% (833.33) $ (1,667) -25%
2,500.00 $ 5,000 0% 79
80 208440 BACKFLOW PREVENTER ENCLOSURE EA 2 $ 5,000.00 $ 10,000 0% 3,000.00 $ 6,000 -40% 3,500.00 $ 7,000 -30% 3,150.00 $ 6,300 -37%
3,216.67 $ 6,433 0% -36%
(216.67) $ (433) -7% 283.33 $ 567 9% (66.67) $ (133) -2%
500.00 $ 1,000 0% 80
81 208442 FLOW SENSOR EA 4 $ 800.00 $ 3,200 0% 1,200.00 $ 4,800 50% 1,000.00 $ 4,000 25% 1,200.00 $ 4,800 50%
1,133.33 $ 4,533 0% 42%
66.67 $ 267 6% (133.33) $ (533) -12% 66.67 $ 267 6%
200.00 $ 800 0% 81
82 208445 TREE WELL SPRINKLER ASSEMBLY EA 186 $ 100.00 $ 18,600 0% 50.00 $ 9,300 -50% 50.00 $ 9,300 -50% 51.00 $ 9,486 -49%
50.33 $ 9,362 0% -50%
(0.33) $ (62) -1% (0.33) $ (62) -1% 0.67 $ 124 1%
1.00 $ 186 0% 82
83 208446 RISER SPRINKLER ASSEMBLY (GEAR DRIVEN) EA 749 $ 70.00 $ 52,430 0% 58.00 $ 43,442 -17% 50.00 $ 37,450 -29% 58.00 $ 43,442 -17%
55.33 $ 41,445 0% -21%
2.67 $ 1,997 5% (5.33) $ (3,995) -10% 2.67 $ 1,997 5%
8.00 $ 5,992 0% 83
84 208447 POP-UP SPRINKLER ASSEMBLY (GEAR DRIVEN) EA 521 $ 80.00 $ 41,680 0% 60.00 $ 31,260 -25% 60.00 $ 31,260 -25% 62.00 $ 32,302 -23%
60.67 $ 31,607 0% -24%
(0.67) $ (347) -1% (0.67) $ (347) -1% 1.33 $ 695 2%
2.00 $ 1,042 0% 84
85 2085883" GATE VALVE EA 9 $ 1,100.00 $ 9,900 0% 1,000.00 $ 9,000 -9% 500.00 $ 4,500 -55% 1,100.00 $ 9,900 0%
866.67 $ 7,800 0% -21%
133.33 $ 1,200 15% (366.67) $ (3,300) -42% 233.33 $ 2,100 27%
600.00 $ 5,400 0% 85
86 208594 3/4" PLASTIC PIPE (SCHEDULE 40) (SUPPLY LINE) LF 24,890 $ 3.00 $ 74,670 0% 3.60 $ 89,604 20% 4.00 $ 99,560 33% 3.60 $ 89,604 20%
3.73 $ 92,923 0% 24%
(0.13) $ (3,319) -4% 0.27 $ 6,637 7% (0.13) $ (3,319) -4%
0.40 $ 9,956 0% 86
87 208595 1 PLASTIC PIPE (SCHEDULE 40) (SUPPLY LINE) LF 12,195 $ 4.00 $ 48,780 0% 3.80 $ 46,341 -5% 4.00 $ 48,780 0% 3.80 $ 46,341 -5%
3.87 $ 47,154 0% -3%
(0.07) $ (813) -2% 0.13 $ 1,626 3% (0.07) $ (813) -2%
0.20 $ 2,439 0% 87
88 208596F11/4 PLASTIC PIPE (SCHEDULE 40)(SUPPLY LINE) LF 8,795 $ 4.60 $ 40,457 0% 4.80 $ 42,216 4% 5.00 $ 43,975 9% 4.80 $ 42,216 4%
4.87 $ 42,802 0% 6%
(0.07) $ (586) -1% 0.13 $ 1,173 3% (0.07) $ (586) -1%
0.20 $ 1,759 0% 88
S9 20859711/2"PLASTIC PIPE (SCHEDULE 40) (SUPPLY LINE) LF 8,785 $ 5.00 $ 43,925 0% 5.25 $ 46,121 5% 5.50 $ 48,318 10% 5.25 $ 46,121 5%
5.33 $ 46,853 0% 7%
(0.08) $ (732) -2% 0.17 $ 1,464 3% (0.08) $ (732) -2%
0.25 $ 2,196 0% 89
90 208598F 2" PLASTIC PIPE (SCHEDULE 40) (SUPPLY LINE) LF 390 $ 6.50 $ 2,535 0% 4.40 $ 1,716 -32% 7.00 $ 2,730 8% 4.40 $ 1,716 -32%
5.27 $ 2,054 0% -19%
(0.87) $ (338) -16% 1.73 $ 676 33% (0.87) $ (338) -16%
2.60 $ 1,014 0% 90
L:\Project Controls\Cost Estimates (ICE), Cost Analysis & Negotiations\Construction Bid Analysis \Pachappa UP\Bid Comparison -Analysis Table - Construction Pachappa UC 2019-10-18 rO, Bid Sched (2)
66
Page 2 of 6
Printed: 2/14/2020, 11:47 AM
1-15 Railroad Canyon Interchange ENGINEER'S BID PRICES AND AMOUNTS
AVERAGE OF
BID AMOUNTS
VARIANCE FROM AVERAGE OF BIDS
LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
SPREAD
(HIGH MINUS LOW)
Revision No.: A (completed 10/21/2019) Yellow items are > $100kbelow ENGR EST
Bid Opening Date: 17 OCT 2019 ESTIMATE LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
UNIT BID ENGINEER'S % of
ITEM ITEM AMOUNT
ITEM DESCRIPTION OF QTY ESTIMATED Eng
NUM CODE MEASURE (A) PRICE (B) (C-_ A x B) Est
% VAR
PRICE AMOUNT ENGR
EST
% VAR % VAR
PRICE AMOUNT ENGR PRICE AMOUNT ENGR
EST EST
%Var
PRICE AMOUNT
to Avg
% Var % Var
PRICE AMOUNT PRICE AMOUNT
to Avg to Avg
% of % VAR
PRICE AMOUNT Total ENGR
Avg. EST
% of
PRICE AMOUNT
Total
SPREAD SPREAD Avg
W
u.I Z
I z
91 208599 2 1/2 PLASTIC PIPE (SCHEDULE 40) (SUPPLY LINE) LF 9,425 $ 7.50 $ 70,688 0% 5.30 $ 49,953 -29% 5.50 $ 51,838 -27% 5.30 $ 49,953 -29%
5.37 $ 50,581 0% -28%
(0.07) $ (628) -1% 0.13 $ 1,257 2% (0.07) $ (628) -1%
0.20 $ 1,885 0% 91
92 208607 3" PLASTIC PIPE (CLASS 315) (SUPPLY LINE) LF 13,255 $ 8.50 $ 112,668 0% 8.00 $ 106,040 -6% 8.00 $ 106,040 -6% 8.00 $ 106,040 -6%
8.00 $ 106,040 0% -6%
- $ - 0% - $ - 0% - $ - 0%
- $ - 0% 92
93 208683 BALL VALVE EA 28 $ 150.00 $ 4,200 0% 485.00 $ 13,580 223% 500.00 $ 14,000 233% 485.00 $ 13,580 223%
490.00 $ 13,720 0% 227%
(5.00) $ (140) -1% 10.00 $ 280 2% (5.00) $ (140) -1%
15.00 $ 420 0% 93
94 210300 HYDROMULCH SQFT 650,177 $ 0.15 $ 97,527 0% 0.15 $ 97,527 0% 0.15 $ 97,527 0% 0.07 $ 45,512 -53%
0.12 $ 80,188 0% -18%
0.03 $ 17,338 22% 0.03 $ 17,338 22% (0.05) $ (34,676) -43%
0.08 $ 52,014 0% 94
95 210430 HYDROSEED SQFT 650,177 $ 0.10 $ 65,018 0% 0.08 $ 52,014 -20% 0.10 $ 65,018 0% 0.08 $ 52,014 -20%
0.09 $ 56,349 0% -13%
(0.01) $ (4,335) -8% 0.01 $ 8,669 15% (0.01) $ (4,335) -8%
0.02 $ 13,004 0% 95
96 250201 CLASS 2 AGGREGATE SUBBASE CY 246 $ 60.00 $ 14,760 0% 85.00 $ 20,910 42% 30.00 $ 7,380 -50% 120.00 $ 29,520 100%
78.33 $ 19,270 0% 31%
6.67 $ 1,640 9% (48.33) $ (11,890) -62% 41.67 $ 10,250 53%
90.00 $ 22,140 0% 96
97 260203 CLASS 2 AGGREGATE BASE (CY) CY 5,778 $ 50.00 $ 288,900 1% 80.00 $ 462,240 60% 30.00 $ 173,340 -40% 52.00 $ 300,456 4%
54.00 $ 312,012 1% 8%
26.00 $ 150,228 48% (24.00) $ (138,672) -44% (2.00) $ (11,556) -4%
50.00 $ 288,900 1% 97
98 390100 PRIME COAT TON 8 $ 1,000.00 $ 8,000 0% 7,000.00 $ 56,000 600% 1,500.00 $ 12,000 50% 7,200.00 $ 57,600 620%
5,233.33 $ 41,867 0% 423%
1,766.67 $ 14,133 34% (3,733.33) $ (29,867) -71% 1,966.67 $ 15,733 38%
5,700.00 $ 45,600 0% 98
99 390132 HOT MIX ASPHALT (TYPE A) TON 18,746 $ 95.00 $ 1,780,870
15% 96.00 $ 1,799,616 1% 97.00 $ 1,818,362 2% 95.00 $ 1,780,870 0%
96.00 $ 1,799,616 6% 1%
- $ - 0% 1.00 $ 18,746 1% (1.00) $ (18,746) -1%
2.00 $ 37,492 0% 99
100 390137 RUBBERIZED HOT MIX ASPHALT (GAP GRADED) TON 1,197 $ 120.00 $ 143,640 0% 98.00 $ 117,306 -18% 100.00 $ 119,700 -17% 100.00 $ 119,700 -17%
99.33 $ 118,902 0% -17%
(1.33) $ (1,596) -1% 0.67 $ 798 1% 0.67 $ 798 1%
2.00 $ 2,394 0% 100
101 394090 PLACE HOT MIX ASPHALT (MISCELLANEOUS AREA) SQYD 285 $ 50.00 $ 14,250 0% 45.00 $ 12,825 -10% 50.00 $ 14,250 0% 61.00 $ 17,385 22%
52.00 $ 14,820 0% 4%
(7.00) $ (1,995) -13% (2.00) $ (570) -4% 9.00 $ 2,565 17%
16.00 $ 4,560 0% 101
102 397005 TACK COAT TON 31 $ 1,000.00 $ 31,000 0% 700.00 $ 21,700 -30% 700.00 $ 21,700 -30% 700.00 $ 21,700 -30%
700.00 $ 21,700 0% -30%
- $ - 0% - $ - 0% - $ - 0%
- $ - 0% 102
103 398000 REMOVE ASPHALT CONCRETE PAVEMENT (CY) CY 16,908 $ 40.00 $ 676,320 2% 22.00 $ 371,976 -45% 3.00 $ 50,724 -93% 24.00 $ 405,792 -40%
16.33 $ 276,164 1% -59%
5.67 $ 95,812 35% (13.33) $ (225,440) -82% 7.67 $ 129,628 47%
21.00 $ 355,068 1% 103
104 398100 REMOVE ASPHALT CONCRETE DIKE LF 3,413 $ 5.00 $ 17,065 0% 3.00 $ 10,239 -40% 2.00 $ 6,826 -60% 6.00 $ 20,478 20%
3.67 $ 12,514 0% -27%
(0.67) $ (2,275) -18% (1.67) $ (5,688) -45% 2.33 $ 7,964 64%
4.00 $ 13,652 0% 104
105 398200 COLD PLANE ASPHALT CONCRETE PAVEMENT SQYD 13,745 $ 4.00 $ 54,980 0% 3.50 $ 48,108 -13% 4.00 $ 54,980 0% 5.00 $ 68,725 25%
4.17 $ 57,271 0% 4%
(0.67) $ (9,163) -16% (0.17) $ (2,291) -4% 0.83 $ 11,454 20%
1.50 $ 20,618 0% 105
106 401050 JOINTED PLAIN CONCRETE PAVEMENT CY 12,849 $ 400.00 $ 5,139,600 14% 280.00 $ 3,597,720 -30% 223.00 $ 2,865,327 -44% 275.00 $ 3,533,475 -31%
259.33 $ 3,332,174 12% -35%
20.67 $ 265,546 8% (36.33) $ (466,847) -14% 15.67 $ 201,301 6%
57.00 $ 732,393 3% 106
107 401055 JOINTED PLAIN CONCRETE PAVEMENT (RSC) CY 791 $ 420.00 $ 332,220 1% 340.00 $ 268,940 -19% 440.00 $ 348,040 5% 415.00 $ 328,265 -1%
398.33 $ 315,082 1% -5%
(58.33) $ (46,142) -15% 41.67 $ 32,958 10% 16.67 $ 13,183 4%
100.00 $ 79,100 0% 107
108 520101 DRILL AND BOND (DOWEL BAR) LB 128 $ 2.00 $ 256 0% 20.00 $ 2,560 900% 1.00 $ 128 -50% 12.00 $ 1,536 500%
11.00 $ 1,408 0% 450%
9.00 $ 1,152 82% (10.00) $ (1,280) -91% 1.00 $ 128 9%
19.00 $ 2,432 0% 108
109 414240 ISOLATION JOINT SEAL (ASPHALT RUBBER) LF 9,016 $ 10.00 $ 90,160 0% 14.00 $ 126,224 40% 16.00 $ 144,256 60%i 8.00 $ 72,128 -20%
12.67 $ 114,203 0% 27%
1.33 $ 12,021 11% 3.33 $ 30,053 26% (4.67) $ (42,075) -37%
8.00 $ 72,128 0% 109
110 420201 GRIND EXISTING CONCRETE PAVEMENT SQYD 3,763 $ 10.00 $ 37,630 0% 8.00 $ 30,104 -20% 13.00 $ 48,919 30% 8.50 $ 31,986 -15%
9.83 $ 37,003 0% -2%
(1.83) $ (6,899) -19% 3.17 $ 11,916 32% (1.33) $ (5,017) -14%
5.00 $ 18,815 0% 110
111 460210 GROUND ANCHOR (SUBHORIZONTAL) EA 279 $ 4,000.00 $ 1,116,000
3% 2,000.00 $ 558,000 -50% 2,000.00 $ 558,000 -50% 2,755.00 $ 768,645 -31%
2,251.67 $ 628,215 2% -44%
(251.67) $ (70,215) -11% (251.67) $ (70,215) -11% 503.33 $ 140,430 22%
755.00 $ 210,645 1% 111
112 460300 SOIL NAIL LF 16,854 $ 41.00 $ 691,014 2% 21.00 $ 353,934 -49% 20.00 $ 337,080 -51% 29.00 $ 488,766 -29%
23.33 $ 393,260 1% -43%
(2.33) $ (39,326) -10% (3.33) $ (56,180) -14% 5.67 $ 95,506 24%
9.00 $ 151,686 1% 112
113 490528 FURNISH STEEL PILING (HP 14 X89) LF 496 $ 51.00 $ 25,296 0% 100.00 $ 49,600 96% 110.00 $ 54,560 116% 100.00 $ 49,600 96%
103.33 $ 51,253 0% 103%
(3.33) $ (1,653) -3% 6.67 $ 3,307 6% (3.33) $ (1,653) -3%
10.00 $ 4,960 0% 113
114 490529 DRIVE STEEL PILE (HP 14 X 89) EA 12 $ 3,300.00 $ 39,600 0% 5,500.00 $ 66,000 67 5,800.00 $ 69,600 7641 5,500.00 $ 66,000 67%
5,600.00 $ 67,200 0% 70%
(100.00) $ (1,200) -2% 200.00 $ 2,400 4% (100.00) $ (1,200) -2%
300.00 $ 3,600 0% 114
115 498044 36" CAST -IN -DRILLED -HOLE CONCRETE PILE (SIGN FOUNDAT LF 60 $ 736.00 $ 44,160 0% 600.00 $ 36,000 -18% 600.00 $ 36,000 -18% 730.00 $ 43,800 -1%
643.33 $ 38,600 0% -13%
(43.33) $ (2,600) -7% (43.33) $ (2,600) -7% 86.67 $ 5,200 13%
130.00 $ 7,800 0% 115
116 498050 54" CAST -IN -DRILLED -HOLE CONCRETE PILE (SIGN FOUNDAT LF 18 $ 1,046.00 $ 18,828 0% 900.00 $ 16,200 -14% 900.00 $ 16,200 -14% 970.00 $ 17,460 -7%
923.33 $ 16,620 0% -12%
(23.33) $ (420) -3% (23.33) $ (420) -3% 46.67 $ 840 5%
70.00 $ 1,260 0% 116
117 498052 60" CAST -IN -DRILLED -HOLE CONCRETE PILE (SIGN FOUNDAT LF 120 $ 1,096.00 $ 131,520 0% 1,100.00 $ 132,000 0% 1,100.00 $ 132,000 0% 1,170.00 $ 140,400 7%
1,123.33 $ 134,800 0% 2%
(23.33) $ (2,800) -2% (23.33) $ (2,800) -2% 46.67 $ 5,600 4%
70.00 $ 8,400 0% 117
118 500001 PRESTRESSING CAST -IN -PLACE CONCRETE LS 1 $ 31,700.00 $ 31,700 0% 50,000.00 $ 50,000 581 50,000.00 $ 50,000 581 48,000.00 $ 48,000 51%
49,333.33 $ 49,333 0% 56%
666.67 $ 667 1% 666.67 $ 667 1% (1,333.33) $ (1,333) -3%
2,000.00 $ 2,000 0% 118
119 510051 STRUCTURAL CONCRETE, BRIDGE FOOTING CY 3 $ 750.00 $ 2,250 0% 3,500.00 $ 10,500 367% 500.00 $ 1,500 -33% 6,000.00 $ 18,000 700%
3,333.33 $ 10,000 0% 344%
166.67 $ 500 5% (2,833.33) $ (8,500) -85% 2,666.67 $ 8,000 80%
5,500.00 $ 16,500 0% 119
120 510053F STRUCTURAL CONCRETE, BRIDGE CY 206 $ 1,000.00 $ 206,000 1% 1,350.00 $ 278,100 35% 1,200.00 $ 247,200 20% 1,720.00 $ 354,320 72%
1,423.33 $ 293,207 1% 42%
(73.33) $ (15,107) -5% (223.33) $ (46,007) -16% 296.67 $ 61,113 21%
520.00 $ 107,120 0% 120
121 510054F STRUCTURAL CONCRETE, BRIDGE (POLYMER FIBER) CY 67 $ 1,800.00 $ 120,600 0% 1,350.00 $ 90,450 -25% 800.00 $ 53,600 -56% 2,100.00 $ 140,700 17%
1,416.67 $ 94,917 0% -21%
(66.67) $ (4,467) -5% (616.67) $ (41,317) -44% 683.33 $ 45,783 48%
1,300.00 $ 87,100 0% 121
122 510060 STRUCTURAL CONCRETE, RETAINING WALL CY 2,155 $ 430.00 $ 926,650 3% 800.00 $ 1,724,000 86%4 620.00 $ 1,336,100 44% 500.00 $ 1,077,500 16%
640.00 $ 1,379,2005%A 49%
160.00 $ 344,800 25% (20.00) $ (43,100) -3% (140.00) $ (301,700) -22%
300.00 $ 646,500 2% 122
123 510086F STRUCTURAL CONCRETE, APPROACH SLAB (TYPE N) CY 31 $ 1,200.00 $ 37,200 0% 1,150.00 $ 35,650 -4% 1,100.00 $ 34,100 -8% 1,200.00 $ 37,200 0%
1,150.00 $ 35,650 0% -4%
- $ - 0% (50.00) $ (1,550) -4% 50.00 $ 1,550 4%
100.00 $ 3,100 0% 123
124 510087 STRUCTURAL CONCRETE, APPROACH SLAB (TYPE R) CY 38 $ 1,200.00 $ 45,600 0% 1,200.00 $ 45,600 0% 800.00 $ 30,400 -33% 1,400.00 $ 53,200 17%
1,133.33 $ 43,067 0% -6%
66.67 $ 2,533 6% (333.33) $ (12,667) -29% 266.67 $ 10,133 24%
600.00 $ 22,800 0% 124
125 510502F MINOR CONCRETE (MINOR STRUCTURE) CY 215 $ 1,000.00 $ 215,000 1% 2,500.00 $ 537,500 150% 1,300.00 $ 279,500 30% 1,895.00 $ 407,425 90%
1,898.33 $ 408,142 1% 90%
601.67 $ 129,358 32% (598.33) $ (128,642) -32% (3.33) $ (717) 0%
1,200.00 $ 258,000 1% 125
126 511106 DRILL AND BOND DOWEL LF 30 $ 90.00 $ 2,700 0% 100.00 $ 3,000 11% 50.00 $ 1,500 -44% 15.00 $ 450 -83%
55.00 $ 1,650 0% -39%
45.00 $ 1,350 82% (5.00) $ (150) -9% (40.00) $ (1,200) -73%
85.00 $ 2,550 0% 126
127 511035 ARCHITECTURAL TREATMENT SQFT 16,681 $ 25.00 $ 417,025 1% 15.00 $ 250,215 -40% 9.00 $ 150,129 -64% 18.50 $ 308,599 -26%
14.17 $ 236,314 1% -43%
0.83 $ 13,901 6% (5.17) $ (86,185) -36% 4.33 $ 72,284 31%
9.50 $ 158,470 1% 127
128 511036 A TEXTURED BRICK PATTERN SQFT 3,085 $ 25.00 $ 77,125 0% 15.00 $ 46,275 -40% 8.00 $ 24,680 -68% 24.00 $ 74,040 -4%
15.67 $ 48,332 0% -37%
(0.67) $ (2,057) -4% (7.67) $ (23,652) -49% 8.33 $ 25,708 53%
16.00 $ 49,360 0% 128
129 519088 JOINT SEAL (MR 1") LF 29 $ 65.00 $ 1,885 0% 150.00 $ 4,350 131% 100.00 $ 2,900250.00 $ 7,250 285%
166.67 $ 4,833 0% 156%
(16.67) $ (483) -10% (66.67) $ (1,933) -40% 83.33 $ 2,417 50%
150.00 $ 4,350 0% 129
130 520102 BAR REINFORCING STEEL (BRIDGE) LB 54,700 $ 1.50 $ 82,050 0% 1.00 $ 54,700 -33% 1.50 $ 82,050 0% 1.30 $ 71,110 -13%
1.27 $ 69,287 0% -16%
(0.27) $ (14,587) -21% 0.23 $ 12,763 18% 0.03 $ 1,823 3%
0.50 $ 27,350 0% 130
131 520103 BAR REINFORCING STEEL (RETAINING WALL) LB 399,557 $ 1.65 $ 659,269 2% 1.00 $ 399,557 -39% 1.00 $ 399,557 -39% 0.98 $ 391,566 -41%
0.99 $ 396,893 1% -40%
0.01 $ 2,664 1% 0.01 $ 2,664 1% (0.01) $ (5,327) -1%
0.02 $ 7,991 0% 131
132 530200F STRUCTURAL SHOTCRETE CY 441 $ 590.00 $ 260,190 1% 1,250.00 $ 551,250 112% 1,300.00 $ 573,300 120% 620.00 $ 273,420 5%
1,056.67 $ 465,990 2% 79%
193.33 $ 85,260 18% 243.33 $ 107,310 23% (436.67) $ (192,570) -41%
680.00 $ 299,880 1% 132
133 560213 FURNISH SIGN STRUCTURE(LIGHTWEIGHT) LB 15,538 $ 7.00 $ 108,766 0% 6.50 $ 100,997 -7% 6.50 $ 100,997 -7% 6.70 $ 104,105 -4%
6.57 $ 102,033 0% -6%
(0.07) $ (1,036) -1% (0.07) $ (1,036) -1% 0.13 $ 2,072 2%
0.20 $ 3,108 0% 133
134 560214 INSTALL SIGN STRUCTURE(LIGHTWEIGHT) LB 15,538 $ 2.00 $ 31,076 0% 1.00 $ 15,538 -50% 1.00 $ 15,538 -50% 1.15 $ 17,869 -43%
1.05 $ 16,315 0% -48%
(0.05) $ (777) -5% (0.05) $ (777) -5% 0.10 $ 1,554 10%
0.15 $ 2,331 0% 134
135 560218 FURNISH SIGN STRUCTURE(TRUSS) LB 108,811 $ 5.00 $ 544,055 2% 4.25 $ 462,447 -15% 4.30 $ 467,887 -14% 4.35 $ 473,328 -13%
4.30 $ 467,887 2% -14%
(0.05) $ (5,441) -1% - $ - 0% 0.05 $ 5,441 1%
0.10 $ 10,881 0% 135
L:\Project Controls\Cost Estimates (ICE), Cost Analysis & Negotiations\Construction Bid Analysis \Pachappa UP\Bid Comparison -Analysis Table - Construction Pachappa UC 2019-10-18 r0, Bid Schad (2)
67
Page 3 of 6
Printed: 2/14/2020, 11:47 AM
1-15 Railroad Canyon Interchange ENGINEER'S BID PRICES AND AMOUNTS
AVERAGE OF
BID AMOUNTS
VARIANCE FROM AVERAGE OF BIDS
LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
SPREAD
(HIGH MINUS LOW)
Revision No.: A (completed 10/21/2019) Yellow items are > $100kbelow ENGR EST
Bid Opening Date: 17 OCT 2019 ESTIMATE LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
UNIT BID ENGINEER'S % of
ITEM ITEM AMOUNT
ITEM DESCRIPTION OF QTY ESTIMATED Eng
CODE MEASURE (A) PRICE (B) (C=A x B) Est
% VAR
PRICE AMOUNT ENGR
EST
% VAR % VAR
PRICE AMOUNT ENGR PRICE AMOUNT ENGR
EST EST
%Var
PRICE AMOUNT
to Avg
% Var % Var
PRICE AMOUNT PRICE AMOUNT
to Avg to Avg
% of % VAR
PRICE AMOUNT Total ENGR
Avg. EST
% of
PRICE AMOUNT W
Total alNUM
SPREAD SPREAD Avg I z
136 560219 INSTALL SIGN STRUCTURE (TRUSS) LB 108,811 $ 1.00 $ 108,811 0% 0.30 $ 32,643 -70% 0.30 $ 32,643 -70% 0.31 $ 33,731 -69%
0.30 $ 33,006 0% -70%
(0.00) $ (363) -1% (0.00) $ (363) -1% 0.01 $ 725 2%
0.01 $ 1,088 0% 136
137 568046 REMOVE SIGN STRUCTURE (EA) EA 5 $ 4,200.00 $ 21,000 0% 2,500.00 $ 12,500 -40% 2,500.00 $ 12,500 -40% 2,600.00 $ 13,000 -38%
2,533.33 $ 12,667 0% -40%
(33.33) $ (167) -1% (33.33) $ (167) -1% 66.67 $ 333 3%
100.00 $ 500 0% 137
138 568050 REMOVE BRIDGE MOUNTED SIGN EA 2 $ 1,433.00 $ 2,866 0% 2,000.00 $ 4,000 40% 2,000.00 $ 4,000 40% 2,040.00 $ 4,080 42%
2,013.33 $ 4,027 0% 40%
(13.33) $ (27) -1% (13.33) $ (27) -1% 26.67 $ 53 1%
40.00 $ 80 0% 138
139 600017 REMOVE RETAINING WALL (LF) LF 485 $ 50.00 $ 24,250 0% 150.00 $ 72,750 200% 75.00 $ 36,375 50% 65.00 $ 31,525 30%
96.67 $ 46,883 0% 93%
53.33 $ 25,867 55% (21.67) $ (10,508) -22% (31.67) $ (15,358) -33%
85.00 $ 41,225 0% 139
140 600114 BRIDGE REMOVAL (PORTION) LS 1 $ 15,000.00 $ 15,000 0% 25,000.00 $ 25,000 67%i 20,000.00 $ 20,000 33% 48,000.00 $ 48,000 220%
31,000.00 $ 31,000 0% 107%
(6,000.00) $ (6,000) -19% (11,000.00) $ (11,000) -35% 17,000.00 $ 17,000 55%
28,000.00 $ 28,000 0% 140
141 600130 A BRIDGE MONITORING LS 1 $ 50,000.00 $ 50,000 0% 25,000.00 $ 25,000 -50% 70,000.00 $ 70,000 40% 25,000.00 $ 25,000 -50%
40,000.00 $ 40,000 0% -20%
(15,000.00) $ (15,000) -38% 30,000.00 $ 30,000 75% (15,000.00) $ (15,000) -38%
45,000.00 $ 45,000 0% 141
142 610108 18" ALTERNATIVE PIPE CULVERT LF 907 $ 190.00 $ 172,330 0% 235.00 $ 213,145 24% 120.00 $ 108,840 -37% 160.00 $ 145,120 -16%
171.67 $ 155,702 1% -10%
63.33 $ 57,443 37% (51.67) $ (46,862) -30% (11.67) $ (10,582) -7%
115.00 $ 104,305 0% 142
143 610112 24" ALTERNATIVE PIPE CULVERT LF 991 $ 280.00 $ 277,480 1% 170.00 $ 168,470 -39% 130.00 $ 128,830 -54% 160.00 $ 158,560 -43%
153.33 $ 151,953 1% -45%
16.67 $ 16,517 11% (23.33) $ (23,123) -15% 6.67 $ 6,607 4%
40.00 $ 39,640 0% 143
144 610117 30" ALTERNATIVE PIPE CULVERT LF 121 $ 145.00 $ 17,545 0% 220.00 $ 26,620 52% 280.00 $ 33,880 93%11 265.00 $ 32,065 83%
255.00 $ 30,855 0% 76%
(35.00) $ (4,235) -14% 25.00 $ 3,025 10% 10.00 $ 1,210 4%
60.00 $ 7,260 0% 144
145 610121 36" ALTERNATIVE PIPE CULVERT LF 979 $ 300.00 $ 293,700 1% 125.00 $ 122,375 -58% 190.00 $ 186,010 -37% 135.00 $ 132,165 -55%
150.00 $ 146,850 1% -50%
(25.00) $ (24,475) -17% 40.00 $ 39,160 27% (15.00) $ (14,685) -10%
65.00 $ 63,635 0% 145
146 610128 48" ALTERNATIVE PIPE CULVERT LF 570 $ 335.00 $ 190,950 1% 170.00 $ 96,900 -49% 225.00 $ 128,250 -33% 147.00 $ 83,790 -56%
180.67 $ 102,980 0% -46%
(10.67) $ (6,080) -6% 44.33 $ 25,270 25% (33.67) $ (19,190) -19%
78.00 $ 44,460 0% 146
147 610129 54" ALTERNATIVE PIPE CULVERT LF 522 $ 390.00 $ 203,580 1% 205.00 $ 107,010 -47% 280.00 $ 146,160 -28% 180.00 $ 93,960 -54%
221.67 $ 115,710 0% -43%
(16.67) $ (8,700) -8% 58.33 $ 30,450 26% (41.67) $ (21,750) -19%
100.00 $ 52,200 0% 147
148 610130 60" ALTERNATIVE PIPE CULVERT LF 832 $ 425.00 $ 353,600 1% 200.00 -53% 290.00 $ 241,280 -32% 200.00 $ 166,400 -53%
230.00 $ 191,360 1% -46%
(30.00) $ (24,960) -13% 60.00 $ 49,920 26% (30.00) $ (24,960) -13%
90.00 $ 74,880 0% 148
r
149 700617 DRAINAGE INLET MARKER EA 8 $ 225.00 $ 1,800 0% 500.00 $ 4,000 122% 1,000.00 $ 8,000 344% 25.00 $ 200 -89%
508.33 $ 4,067 0% 126%
(8.33) $ (67) -2% 491.67 $ 3,933 97% (483.33) $ (3,867) -95%
975.00 $ 7,800 0% 149
150 703460 A 36" WELDED STEEL PIPE CASING (BRIDGE) LF 46 $ 515.00 $ 23,690 0% 450.00 $ 20,700 -13% 450.00 $ 20,700 -13% 305.00 $ 14,030 -41%
401.67 $ 18,477 0% -22%
48.33 $ 2,223 12% 48.33 $ 2,223 12% (96.67) $ (4,447) -24%
145.00 $ 6,670 0% 150
151 705315 24" ALTERNATIVE FLARED END SECTION EA 1 $ 775.00 $ 775 0% 850.00 $ 850 10% 550.00 $ 550 -29% 250.00 $ 250 -68%
550.00 $ 550 0% -29%
300.00 $ 300 55% - $ - 0% (300.00) $ (300) -55%
600.00 $ 600 0% 151
152 707117 36" PRECAST CONCRETE PIPE INLET LF 47 $ 500.00 $ 23,500 0% 200.00 $ 9,400 -60% 600.00 $ 28,200 20% 1,200.00 $ 56,400 140%
666.67 $ 31,333 0% 33%
(466.67) $ (21,933) -70% (66.67) $ (3,133) -10% 533.33 $ 25,067 80%
1,000.00 $ 47,000 0% 152
153 707217 36" PRECAST CONCRETE PIPE MANHOLE LF 49 $ 525.00 $ 25,725 0% 200.00 $ 9,800 -62% 600.00 $ 29,400 14% 1,500.00 $ 73,500 186%
766.67 $ 37,567 0% 46%
(566.67) $ (27,767) -74% (166.67) $ (8,167) -22% 733.33 $ 35,933 96%
1,300.00 $ 63,700 0% 153
154 710132 REMOVE CULVERT (LF) LF 2,797 $ 75.00 $ 209,775 1% 18.00 $ 50,346 -76% 40.00 $ 111,880 -47% 24.00 $ 67,128 -68%
27.33 $ 76,451 0% -64%
(9.33) $ (26,105) -34% 12.67 $ 35,429 46% (3.33) $ (9,323) -12%
22.00 $ 61,534 0% 154
155 710150 REMOVE INLET EA 14 $ 1,775.00 $ 24,850 0% 1,000.00 $ 14,000 -44% 1,500.00 $ 21,000 -15% 2,100.00 $ 29,400 18%
1,533.33 $ 21,467 0% -14%
(533.33) $ (7,467) -35% (33.33) $ (467) -2% 566.67 $ 7,933 37%
1,100.00 $ 15,400 0% 155
156 710196 ADJUST INLET EA 3 $ 2,500.00 $ 7,500 0% 1,850.00 $ 5,550 -26% 4,000.00 $ 12,000 60%, 11 1,000.00 $ 3,000 -60%
2,283.33 $ 6,850 0% -9%
(433.33) $ (1,300) -19% 1,716.67 $ 5,150 75% (1,283.33) $ (3,850) -56%
3,000.00 $ 9,000 0% 156
157 710200 ADJUST MANHOLE EA 5 $ 1,500.00 $ 7,500 0% 1,900.00 $ 9,500 27% 1,600.00 $ 8,000 7% 1,000.00 $ 5,000 -33%
1,500.00 $ 7,500 0% 0%
400.00 $ 2,000 27% 100.00 $ 500 7% (500.00) $ (2,500) -33%
900.00 $ 4,500 0% 157
158 710212 ADJUST MANHOLE TO GRADE EA 3 $ 1,500.00 $ 4,500 0% 775.00 $ 2,325 -48% 1,600.00 $ 4,800 7% 1,000.00 $ 3,000 -33%
1,125.00 $ 3,375 0% -25%
(350.00) $ (1,050) -31% 475.00 $ 1,425 42% (125.00) $ (375) -11%
825.00 $ 2,475 0% 158
159 710220 ADJUST UTILITY COVER TO GRADE EA 5 $ 800.00 $ 4,000 0% 900.00 $ 4,500 13% 7,500.00 $ 37,500
838%
500.00 $ 2,500 -38%
2,966.67 $ 14,833 0% 271%
(2,066.67) $ (10,333) -70% 4,533.33 $ 22,667 153% (2,466.67) $ (12,333) -83%
7,000.00 $ 35,000 0% 159
160 710262 CAP INLET EA 1 $ 2,200.00 $ 2,200 0% 2,500.00 $ 2,500 14% 4,500.00 $ 4,500
105%
1,000.00 $ 1,000 -55%
2,666.67 $ 2,667 0% 21%
(166.67) $ (167) -6% 1,833.33 $ 1,833 69% (1,666.67) $ (1,667) -63%
3,500.00 $ 3,500 0% 160
161 721017 ROCK SLOPE PROTECTION (FACING, METHOD B) (CY) CY 100 $ 200.00 $ 20,000 0% 150.00 $ 15,000 -25% 320.00 $ 32,000
60% 4
130.00 $ 13,000 -35%
200.00 $ 20,000 0% 0%
(50.00) $ (5,000) -25% 120.00 $ 12,000 60% (70.00) $ (7,000) -35%
190.00 $ 19,000 0% 161
I
162 721420 CONCRETE (DITCH LINING) CY 19 $ 500.00 $ 9,500 0% 2,000.00 $ 38,000 300% 1,000.00 $ 19,000
100%
550.00 $ 10,450 10%
1,183.33 $ 22,483 0% 137%
816.67 $ 15,517 69% (183.33) $ (3,483) -15% (633.33) $ (12,033) -54%
1,450.00 $ 27,550 0% 162
163 729011 ROCK SLOPE PROTECTION FABRIC (CLASS 8) SQYD 236 $ 20.00 $ 4,720 0% 14.50 $ 3,422 -28% 15.00 $ 3,540 -25% 7.00 $ 1,652 -65%
12.17 $ 2,871 0% -39%
2.33 $ 551 19% 2.83 $ 669 23% (5.17) $ (1,219) -42%
8.00 $ 1,888 0% 163
164 730040 MINOR CONCRETE (GUTTER) (LF) LF 1,883 $ 38.00 $ 71,554 0% 32.00 $ 60,256 -16% 55.00 $ 103,565 45% 36.00 $ 67,788 -5%
41.00 $ 77,203 0% 8%
(9.00) $ (16,947) -22% 14.00 $ 26,362 34% (5.00) $ (9,415) -12%
23.00 $ 43,309 0% 164
165 730070 DETECTABLE WARNING SURFACE SOFT 351 $ 40.00 $ 14,040 0% 38.00 $ 13,338 -5% 45.00 $ 15,795 13% 55.00 $ 19,305 38%
46.00 $ 16,146 0% 15%
(8.00) $ (2,808) -17% (1.00) $ (351) -2% 9.00 $ 3,159 20%
17.00 $ 5,967 0% 165
166 731503 A MINOR CONCRETE (MISCELLANEOUS CONSTRUCTION)(RAPII CY 86 $ 1,000.00 $ 86,000 0% 910.00 $ 78,260 -9% 1,300.00 $ 111,800 30% 625.00 $ 53,750 -38%
945.00 $ 81,270 0% -6%
(35.00) $ (3,010) -4% 355.00 $ 30,530 38% (320.00) $ (27,520) -34%
675.00 $ 58,050 0% 166
167 731504 MINOR CONCRETE (CURB AND GUTTER) CY 361 $ 606.00 $ 218,766 1% 660.00 $ 238,260 9% 700.00 $ 252,700 16% 445.00 $ 160,645 -27%
601.67 $ 217,202 1% -1%
58.33 $ 21,058 10% 98.33 $ 35,498 16% (156.67) $ (56,557) -26%
255.00 $ 92,055 0% 167
168 731521 MINOR CONCRETE (SIDEWALK) CY 101 $ 592.00 $ 59,792 0% 460.00 $ 46,460 -22% 550.00 $ 55,550 -7% 501.00 $ 50,601 -15%
503.67 $ 50,870 0% -15%
(43.67) $ (4,410) -9% 46.33 $ 4,680 9% (2.67) $ (269) -1%
90.00 $ 9,090 0% 168
169 731530 MINOR CONCRETE (TEXTURED PAVING) CY 179 $ 800.00 $ 143,200 0% 370.00 $ 66,230 -54% 500.00 $ 89,500 -38% 805.00 $ 144,095 1%
558.33 $ 99,942 0% -30%
(188.33) $ (33,712) -34% (58.33) $ (10,442) -10% 246.67 $ 44,153 44%
435.00 $ 77,865 0% 169
170 731623 MINOR CONCRETE (CURB RAMP) CY 44 $ 1,000.00 $ 44,000 0% 400.00 $ 17,600 -60% 1,100.00 $ 48,400 10% 789.00 $ 34,716 -21%
763.00 $ 33,572 0% -24%
(363.00) $ (15,972) -48% 337.00 $ 14,828 44% 26.00 $ 1,144 3%
700.00 $ 30,800 0% 170
171 731780 REMOVE CONCRETE SIDEWALK (SQYD) SQYD 1,810 $ 30.00 $ 54,300 0% 8.00 $ 14,480 -73% 12.00 $ 21,720 -60% 3.00 $ 5,430 -90%
7.67 $ 13,877 0% -74%
0.33 $ 603 4% 4.33 $ 7,843 57% (4.67) $ (8,447) -61%
9.00 $ 16,290 0% 171
172 731810 REMOVE CONCRETE ISLAND (PORTIONS) (CY) CY 189 $ 100.00 $ 18,900 0% 75.00 $ 14,175 -25% 100.00 $ 18,900 0% 150.00 $ 28,350 50%
108.33 $ 20,475 0% 8%
(33.33) $ (6,300) -31% (8.33) $ (1,575) -8% 41.67 $ 7,875 38%
75.00 $ 14,175 0% 172
173 731840 REMOVE CONCRETE (CURB AND GUTTER) LF 3,801 $ 15.00 $ 57,015 0% 8.00 $ 30,408 -47% 6.00 $ 22,806 -60% 6.00 $ 22,806 -60%
6.67 $ 25,340 0% -56%
1.33 $ 5,068 20% (0.67) $ (2,534) -10% (0.67) $ (2,534) -10%
2.00 $ 7,602 0% 173
r
174 740400 BOOSTER PUMP LS 1 $ 60,000.00 $ 60,000 0% 50,000.00 $ 50,000 -17% 100,000.00 $ 100,000 67 20,000.00 $ 20,000 -67%
56,666.67 $ 56,667 0% -6%
1
(6,666.67) $ (6,667) -12% 43,333.33 $ 43,333 76% (36,666.67) $ (36,667) -65%
J
80,000.00 $ 80,000 0% 174
175 750001 MISCELLANEOUS IRON AND STEEL LB 44,834 $ 5.00 $ 224,170 1% 3.00 $ 134,502 -40% 3.50 $ 156,919 -30% 1.70 $ 76,218 -66%
2.73 $ 122,546 0% -45%
0.27 $ 11,956 10% 0.77 $ 34,373 28% (1.03) $ (46,328) -38%
1.80 $ 80,701 0% 175
176 770011 A MODIFYING LIGHTING SYSTEMS (CITY STREET) LS 1 $ 40,000.00 $ 40,000 0% 35,000.00 $ 35,000 -13% 100,000.00 $ 100,000 150% 102,000.00 $ 102,000 155%
79,000.00 $ 79,000 0% 98%
(44,000.00) $ (44,000) -56% 21,000.00 $ 21,000 27% 23,000.00 $ 23,000 29%
67,000.00 $ 67,000 0% 176
177 770012 A INTERCONNECTION CONDUIT AND CABLE (CITY) LS 1 $ 64,000.00 $ 64,000 0% 60,000.00 $ 60,000 -6% 100,000.00 $ 100,000 56%1 99,000.00 $ 99,000 55%
86,333.33 $ 86,333 0% 35%
(26,333.33) $ (26,333) -31% 13,666.67 $ 13,667 16% 12,666.67 $ 12,667 15%
40,000.00 $ 40,000 0% 177
178 770031 A MODIFYING SIGNAL AND LIGHTING SYSTEMS (CITY LOCATIOI, LS 1 $ 172,400.00 $ 172,400 0% 220,000.00 $ 220,000 28% 250,000.00 $ 250,000 45% 249,000.00 $ 249,000 44%
239,666.67 $ 239,667 1% 39%
(19,666.67) $ (19,667) -8% 10,333.33 $ 10,333 4% 9,333.33 $ 9,333 4%
30,000.00 $ 30,000 0% 178
179 770051 A MODIFYING SIGNAL AND LIGHTING SYSTEMS (CITY LOCATIOP LS 1 $ 357,000.00 $ 357,000 1% 365,000.00 $ 365,000 2% 400,000.00 $ 400,000 12% 328,000.00 $ 328,000 -8%
364,333.33 $ 364,333 1% 2%
666.67 $ 667 0% 35,666.67 $ 35,667 10% (36,333.33) $ (36,333) -10%
72,000.00 $ 72,000 0% 179
-11
180 770090 LIGHTING (CITY STREET) LS 1 $ 35,000.00 $ 35,000 0% 40,000.00 $ 40,000 14% 70,000.00 $ 70,000 100% 71,000.00 $ 71,000 103%
60,333.33 $ 60,333 0% 72%
(20,333.33) $ (20,333) -34% 9,666.67 $ 9,667 16% 10,666.67 $ 10,667 18%
31,000.00 $ 31,000 0% 180
L:\Project Controls\Cost Estimates (ICE), Cost Analysis & Negotiations\Construction Bid Analysis\Pachappa UP\Bid Comparison -Analysis Table - Construction Pachappa UC 2019-10-18 rO, Bid Schad (2)
68
Page 4 of 6
Printed: 2/14/2020, 11:47 AM
1-15 Railroad Canyon Interchange ENGINEER'S BID PRICES AND AMOUNTS
AVERAGE OF
BID AMOUNTS
VARIANCE FROM AVERAGE OF BIDS
LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
SPREAD
(HIGH MINUS LOW)
Revision No.: A (completed 10/21/2019) Yellow items are > $100kbelow ENGR EST
Bid Opening Date: 17 OCT 2019 ESTIMATE LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
UNIT BID ENGINEER'S % of
ITEM ITEM AMOUNT
ITEM DESCRIPTION OF QTY ESTIMATED Eng
NUM CODE MEASURE (C=A x B)
(A) PRICE (B) Est
% VAR
PRICE AMOUNT ENGR
EST
% VAR % VAR
PRICE AMOUNT ENGR PRICE AMOUNT ENGR
EST EST
%Var
PRICE AMOUNT
to Avg
%Var %Var
PRICE AMOUNT PRICE AMOUNT
to Avg to Avg
% of % VAR
PRICE AMOUNT Total ENGR
Avg. EST
% of
PRICE AMOUNT
Total
SPREAD SPREAD
Avg.
w
I z
181 782111 A INSTALL FIRE HYDRANT EA 1 $ 19,000.00 $ 19,000 0% 25,000.00 $ 25,000 32% 12,000.00 $ 12,000 -37% 15,000.00 $ 15,000 -21%
17,333.33 $ 17,333 0% -9%
7,666.67 $ 7,667 44% (5,333.33) $ (5,333) -31% (2,333.33) $ (2,333) -13%
13,000.00 $ 13,000 0% 181
182 782112 A INSTALL WATER METER EA 3 $ 12,000.00 $ 36,000 0% 8,000.00 $ 24,000 -33% 3,500.00 $ 10,500 -71% 55,000.00 $ 165,000 358%
22,166.67 $ 66,500 0% 85%
(14,166.67) $ (42,500) -64% (18,666.67) $ (56,000) -84% 32,833.33 $ 98,500 148%
51,500.00 $ 154,500 1% 182
183 782300 A SITE IMPROVEMENTS LS 1 $ 50,000.00 $ 50,000 0% 85,000.00 $ 85,000 70% 100,000.00 $ 100,000 100% 75,000.00 $ 75,000 50%
86,666.67 $ 86,667 0% 73%
(1,666.67) $ (1,667) -2% 13,333.33 $ 13,333 15% (11,666.67) $ (11,667) -13%
25,000.00 $ 25,000 0% 183
184 800360 CHAIN LINK FENCE (TYPE CL-6) LF 1,162 $ 15.00 $ 17,430 0% 25.00 $ 29,050 67%d 30.00 $ 34,860 100% 27.00 $ 31,374 80%
27.33 $ 31,761 0% 82%
(2.33) $ (2,711) -9% 2.67 $ 3,099 10% (0.33) $ (387) -1%
5.00 $ 5,810 0% 184
185 802540 8' CHAIN LINK GATE(TYPECL-6) EA 2 $ 1,500.00 $ 3,000 0% 1,500.00 $ 3,000 0% 1,500.00 $ 3,000 0% 1,550.00 $ 3,100 3%
1,516.67 $ 3,033 0% 1%
(16.67) $ (33) -1% (16.67) $ (33) -1% 33.33 $ 67 2%
50.00 $ 100 0% 185
186 803050 REMOVE CHAIN LINK FENCE LF 1,353 $ 5.00 $ 6,765 0% 10.00 $ 13,530 100% 5.00 $ 6,765 0% 9.00 $ 12,177 80%
8.00 $ 10,824 0% 60%
2.00 $ 2,706 25% (3.00) $ (4,059) -38% 1.00 $ 1,353 13%
5.00 $ 6,765 0% 186
187 810120 REMOVE PAVEMENT MARKER EA 5,713 $ 1.00 $ 5,713 0% 2.00 $ 11,426 100% 1.00 $ 5,713 0% 0.50 $ 2,857 -50%
1.17 $ 6,665 0% 17%
0.83 $ 4,761 71% (0.17) $ (952) -14% (0.67) $ (3,809) -57%
1.50 $ 8,570 0% 187
188 810170 DELINEATOR (CLASS 1) EA 129 $ 55.00 $ 7,095 0% 50.00 $ 6,450 -9% 50.00 $ 6,450 -9% 60.00 $ 7,740 9%
53.33 $ 6,880 0% -3%
(3.33) $ (430) -6% (3.33) $ (430) -6% 6.67 $ 860 13%
10.00 $ 1,290 0% 188
189 810230 PAVEMENT MARKER(RETROREFLECTIVE) EA 4,539 $ 4.00 $ 18,156 0% 3.00 $ 13,617 -25% 4.00 $ 18,156 0% 3.00 $ 13,617 -25%
3.33 $ 15,130 0% -17%
(0.33) $ (1,513) -10% 0.67 $ 3,026 20% (0.33) $ (1,513) -10%
1.00 $ 4,539 0% 189
190 820130 OBJECT MARKER EA 6 $ 87.00 $ 522 0% 100.00 $ 600 15% 100.00 $ 600 15% 55.00 $ 330 -37%
85.00 $ 510 0% -2%
15.00 $ 90 18% 15.00 $ 90 18% (30.00) $ (180) -35%
45.00 $ 270 0% 190
191 820270 REMOVE ROADSIDE SIGN (WOOD POST) EA 54 $ 133.00 $ 7,182 0% 100.00 $ 5,400 -25% 100.00 $ 5,400 -25% 100.00 $ 5,400 -25%
100.00 $ 5,400 0% -25%
- $ - 0% - $ - 0% - $ - 0%
- $ - 0% 191
192 820280 REMOVE ROADSIDE SIGN (METAL POST) EA 44 $ 291.00 $ 12,804 0% 100.00 $ 4,400 -66% 150.00 $ 6,600 -48% 100.00 $ 4,400 -66%
116.67 $ 5,133 0% -60%
(16.67) $ (733) -14% 33.33 $ 1,467 29% (16.67) $ (733) -14%
50.00 $ 2,200 0% 192
193 820300 REMOVE ROADSIDE SIGN (STRAP AND SADDLE BRACKET ME EA 17 $ 87.00 $ 1,479 0% 75.00 $ 1,275 -14% 75.00 $ 1,275 -14% 250.00 $ 4,250 187%
133.33 $ 2,267 0% 53%
(58.33) $ (992) -44% (58.33) $ (992) -44% 116.67 $ 1,983 88%
175.00 $ 2,975 0% 193
194 820550 RESET ROADSIDE SIGN (METAL POST) EA 1 $ 243.00 $ 243 0% 200.00 $ 200 -18% 250.00 $ 250 3% 250.00 $ 250 3%
233.33 $ 233 0% -4%
(33.33) $ (33) -14% 16.67 $ 17 7% 16.67 $ 17 7%
50.00 $ 50 0% 194
195 820610 RELOCATE ROADSIDE SIGN EA 3 $ 300.00 $ 900 0% 250.00 $ 750 -17% 350.00 $ 1,050 17% 750.00 $ 2,250 150%
450.00 $ 1,350 0% 50%
(200.00) $ (600) -44% (100.00) $ (300) -22% 300.00 $ 900 67%
500.00 $ 1,500 0% 195
196 820705 A FURNISH FORMED PANEL SIGN (OVERHEAD) FOR RETROREF SQFT 1,181 $ 17.00 $ 20,077 0% 16.00 $ 18,896 -6% 15.00 $ 17,715 -12% 17.00 $ 20,077 0%
16.00 $ 18,896 0% -6%
- $ - 0% (1.00) $ (1,181) -6% 1.00 $ 1,181 6%
2.00 $ 2,362 0% 196
197 820710 FURNISH LAMINATED PANEL SIGN (1"-TYPE A) SQFT 98 $ 26.00 $ 2,548 0% 30.00 $ 2,940 15% 30.00 $ 2,940 15% 30.00 $ 2,940 15%
30.00 $ 2,940 0% 15%
- $ - 0% - $ - 0% - $ - 0%
- $ - 0% 197
198 820750 FURNISH SINGLE SHEET ALUMINUM SIGN (0.063"-UNFRAMED SQFT 435 $ 15.00 $ 6,525 0% 14.00 $ 6,090 -7% 10.00 $ 4,350 -33% 12.00 $ 5,220 -20%
12.00 $ 5,220 0% -20%
2.00 $ 870 17% (2.00) $ (870) -17% - $ - 0%
4.00 $ 1,740 0% 198
199 820755 A FURNISH SINGLE SHEET ALUMINUM SIGN (0.063"-UNFRAMED SQFT 289 $ 20.00 $ 5,780 0% 14.00 $ 4,046 -30% 10.00 $ 2,890 -50% 12.00 $ 3,468 -40%
12.00 $ 3,468 0% -40%
2.00 $ 578 17% (2.00) $ (578) -17% - $ - 0%
4.00 $ 1,156 0% 199
200 820760 FURNISH SINGLE SHEET ALUMINUM SIGN (0.080"-UNFRAMED SQFT 96 $ 15.00 $ 1,440 0% 15.00 $ 1,440 0% 10.00 $ 960 -33% 12.00 $ 1,152 -20%
12.33 $ 1,184 0% -18%
2.67 $ 256 22% (2.33) $ (224) -19% (0.33) $ (32) -3%
5.00 $ 480 0% 200
201 820765 A FURNISH SINGLE SHEET ALUMINUM SIGN (0.080"-UNFRAMED SQFT 188 $ 20.00 $ 3,760 0% 15.00 $ 2,820 -25% 10.00 $ 1,880 -50% 12.00 $ 2,256 -40%
12.33 $ 2,319 0% -38%
2.67 $ 501 22% (2.33) $ (439) -19% (0.33) $ (63) -3%
5.00 $ 940 0% 201
202 820780 FURNISH SINGLE SHEET ALUMINUM SIGN (0.063"-FRAMED) SQFT 20 $ 20.00 $ 400 0% 20.00 $ 400 0% 20.00 $ 400 0% 12.00 $ 240 -40%
17.33 $ 347 0% -13%
2.67 $ 53 15% 2.67 $ 53 15% (5.33) $ (107) -31%
8.00 $ 160 0% 202
203 820785 A FURNISH SINGLE SHEET ALUMINUM SIGN (0.063"-FRAMED) F( SQFT 94 $ 25.00 $ 2,350 0% 20.00 $ 1,880 -20% 20.00 $ 1,880 -20% 12.00 $ 1,128 -52%
17.33 $ 1,629 0% -31%
2.67 $ 251 15% 2.67 $ 251 15% (5.33) $ (501) -31%
8.00 $ 752 0% 203
204 820795 A FURNISH SINGLE SHEET ALUMINUM SIGN (0.080"-FRAMED) F( SQFT 166 $ 30.00 $ 4,980 0% 25.00 $ 4,150 -17% 20.00 $ 3,320 -33% 12.00 $ 1,992 -60%
19.00 $ 3,154 0% -37%
6.00 $ 996 32% 1.00 $ 166 5% (7.00) $ (1,162) -37%
13.00 $ 2,158 0% 204
205 820807 A RETROREFLECTIVE SHEETING (TYPE XI) SQFT 1,877 $ 15.00 $ 28,155 0% 4.50 $ 8,447 -70% 5.00 $ 9,385 -67% 3.00 $ 5,631 -80%
4.17 $ 7,821 0% -72%
0.33 $ 626 8% 0.83 $ 1,564 20% (1.17) $ (2,190) -28%
2.00 $ 3,754 0% 205
206 820810 METAL (ROADSIDE SIGN) LB 6,000 $ 9.00 $ 54,000 0% 5.00 $ 30,000 -44% 5.00 $ 30,000 -44% 4.00 $ 24,000 -56%
4.67 $ 28,000 0% -48%
0.33 $ 2,000 7% 0.33 $ 2,000 7% (0.67) $ (4,000) -14%
1.00 $ 6,000 0% 206
207 820820 METAL (BARRIER MOUNTED SIGN) LB 350 $ 15.00 $ 5,250 0% 12.00 $ 4,200 -20% 15.00 $ 5,250 0% 4.00 $ 1,400 -73%
10.33 $ 3,617 0% -31%
1.67 $ 583 16% 4.67 $ 1,633 45% (6.33) $ (2,217) -61%
11.00 $ 3,850 0% 207
208 820840 ROADSIDE SIGN - ONE POST EA 37 $ 351.00 $ 12,987 0% 250.00 $ 9,250 -29% 300.00 $ 11,100 -15% 350.00 $ 12,950 0%
300.00 $ 11,100 0% -15%
(50.00) $ (1,850) -17% - $ - 0% 50.00 $ 1,850 17%
100.00 $ 3,700 0% 208
209 820850 ROADSIDE SIGN - TWO POST EA 12 $ 955.00 $ 11,460 0% 750.00 $ 9,000 -21% 750.00 $ 9,000 -21% 650.00 $ 7,800 -32%
716.67 $ 8,600 0% -25%
33.33 $ 400 5% 33.33 $ 400 5% (66.67) $ (800) -9%
100.00 $ 1,200 0% 209
210 820860 INSTALL SIGN (STRAP AND SADDLE BRACKET METHOD) EA 25 $ 181.00 $ 4,525 0% 200.00 $ 5,000 10% 150.00 $ 3,750 -17% 120.00 $ 3,000 -34%
156.67 $ 3,917 0% -13%
43.33 $ 1,083 28% (6.67) $ (167) -4% (36.67) $ (917) -23%
80.00 $ 2,000 0% 210
211 820870 INSTALL SIGN OVERLAY SQFT 9 $ 45.00 $ 405 0% 25.00 $ 225 -44% 1.00 $ 9 -98% 12.00 $ 108 -73%
12.67 $ 114 0% -72%
12.33 $ 111 97% (11.67) $ (105) -92% (0.67) $ (6) -5%
24.00 $ 216 0% 211
212 832007 MIDWEST GUARDRAIL SYSTEM (WOOD POST) LF 5,313 $ 30.00 $ 159,390 0% 28.00 $ 148,764 -7% 30.00 $ 159,390 0% 28.00 $ 148,764 -7%
28.67 $ 152,306 1% -4%
(0.67) $ (3,542) -2% 1.33 $ 7,084 5% (0.67) $ (3,542) -2%
2.00 $ 10,626 0% 212
213 832070 VEGETATION CONTROL (MINOR CONCRETE) SQYD 3,367 $ 54.00 $ 181,818 1% 85.00 $ 286,195 57V' 70.00 $ 235,690 30% 74.00 $ 249,158 37%
76.33 $ 257,014 1% 41%
8.67 $ 29,181 11% (6.33) $ (21,324) -8% (2.33) $ (7,856) -3%
15.00 $ 50,505 0% 213
214 839521 CABLE RAILING LF 1,670 $ 60.00 $ 100,200 0% 25.00 $ 41,750 -58% 30.00 $ 50,100 -50% 27.00 $ 45,090 -55%
27.33 $ 45,647 0% -54%
(2.33) $ (3,897) -9% 2.67 $ 4,453 10% (0.33) $ (557) -1%
5.00 $ 8,350 0% 214
215 839543 TRANSITION RAILING (TYPE WB-31) EA 6 $ 4,000.00 $ 24,000 0% 4,500.00 $ 27,000 13% 4,500.00 $ 27,000 13% 4,700.00 $ 28,200 18%
4,566.67 $ 27,400 0% 14%
(66.67) $ (400) -1% (66.67) $ (400) -1% 133.33 $ 800 3%
200.00 $ 1,200 0% 215
216 839576 END CAP (TYPE A) EA 2 $ 450.00 $ 900 0% 200.00 $ 400 -56% 300.00 $ 600 -33% 200.00 $ 400 -56%
233.33 $ 467 0% -48%
(33.33) $ (67) -14% 66.67 $ 133 29% (33.33) $ (67) -14%
100.00 $ 200 0% 216
217 839581 END ANCHOR ASSEMBLY (TYPE SFT) EA 6 $ 809.00 $ 4,854 0% 850.00 $ 5,100 5% 1,000.00 $ 6,000 24% 900.00 $ 5,400 11%
916.67 $ 5,500 0% 13%
(66.67) $ (400) -7% 83.33 $ 500 9% (16.67) $ (100) -2%
150.00 $ 900 0% 217
218 839584 ALTERNATIVE IN -LINE TERMINAL SYSTEM EA 11 $ 3,200.00 $ 35,200 0% 3,500.00 $ 38,500 9% 3,500.00 $ 38,500 9% 3,700.00 $ 40,700 16%
3,566.67 $ 39,233 0% 11%
(66.67) $ (733) -2% (66.67) $ (733) -2% 133.33 $ 1,467 4%
200.00 $ 2,200 0% 218
219 839607 A CRASH CUSHION (TYPE SCI-100GM) EA 1 $ 42,000.00 $ 42,000 0% 40,000.00 $ 40,000 -5% 40,000.00 $ 40,000 -5% 40,100.00 $ 40,100 -5%
40,033.33 $ 40,033 0% -5%
(33.33) $ (33) 0% (33.33) $ (33) 0% 66.67 $ 67 0%
100.00 $ 100 0% 219
220 839640 CONCRETE BARRIER (TYPE 60M) LF 381 $ 175.00 $ 66,675 0% 160.00 $ 60,960 -9% 180.00 $ 68,580 3% 130.00 $ 49,530 -26%
156.67 $ 59,690 0% -10%
3.33 $ 1,270 2% 23.33 $ 8,890 15% (26.67) $ (10,160) -17%
50.00 $ 19,050 0% 220
221 839642 CONCRETE BARRIER (TYPE 60MC) LF 183 $ 150.00 $ 27,450 0% 300.00 $ 54,900 100% 230.00 $ 42,090 530 102.00 $ 18,666 -32%
210.67 $ 38,552 0% 40%
89.33 $ 16,348 42% 19.33 $ 3,538 9% (108.67) $ (19,886) -52%
198.00 $ 36,234 0% 221
222 839643 CONCRETE BARRIER (TYPE 60MD) LF 1,590 $ 120.00 $ 190,800 1% 55.00 $ 87,450 -54% 115.00 $ 182,850 -4% 70.00 $ 111,300 -42%
80.00 $ 127,200 0% -33%
(25.00) $ (39,750) -31% 35.00 $ 55,650 44% (10.00) $ (15,900) -13%
60.00 $ 95,400 0% 222
223 839649 CONCRETE BARRIER (TYPE 60MS) LF 150 $ 250.00 $ 37,500 0% 150.00 $ 22,500 -40% 200.00 $ 30,000 -20% 92.00 $ 13,800 -63%
147.33 $ 22,100 0% -41%
2.67 $ 400 2% 52.67 $ 7,900 36% (55.33) $ (8,300) -38%
108.00 $ 16,200 0% 223
224 839741 CONCRETE BARRIER (TYPE 836) LF 213 $ 160.00 $ 34,080 0% 160.00 $ 34,080 0% 155.00 $ 33,015 -3% 105.00 $ 22,365 -34%
140.00 $ 29,820 0% -13%
20.00 $ 4,260 14% 15.00 $ 3,195 11% (35.00) $ (7,455) -25%
55.00 $ 11,715 0% 224
225 839747 CONCRETE BARRIER (TYPE 842A) LF 735 $ 160.00 $ 117,600 0% 165.00 $ 121,275 3% 160.00 $ 117,600 0% 94.00 $ 69,090 -41%
139.67 $ 102,655 0% -13%
25.33 $ 18,620 18% 20.33 $ 14,945 15% (45.67) $ (33,565) -33%
71.00 $ 52,185 0% 225
L:\Project Controls\Cost Estimates (ICE), Cost Analysis & Negotiations\Construction Bid Analysis \Pachappa UP\Bid Comparison -Analysis Table - Construction Pachappa UC 2019-10-18 rO, Bid Schad (2)
69
Page 5 of 6
Printed: 2/14/2020, 11:47 AM
1-15 Railroad Canyon Interchange ENGINEER'S BID PRICES AND AMOUNTS
AVERAGE OF
BID AMOUNTS
VARIANCE FROM AVERAGE OF BIDS
LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
SPREAD
(HIGH MINUS LOW)
Revision No.: A (completed 10/21/2019) Yellow items are > $100kbelow ENGR EST
Bid Opening Date: 17 OCT 2019 ESTIMATE LOW BIDDER SECOND BIDDER THIRD BIDDER
Riverside Skanska Ortiz
%Var
PRICE AMOUNT
to Avg
% Var % Var
PRICE AMOUNT PRICE AMOUNT
to Avg to Avg
UNIT BID ENGINEER'S
ITEM ITEM AMOUNT % of
ITEM DESCRIPTION OF QTY ESTIMATED Eng
CODE MEASURE (A) PRICE (B) (C-_ A x B) Est
% VAR
PRICE AMOUNT ENGR
EST
% VAR % VAR
PRICE AMOUNT ENGR PRICE AMOUNT ENGR
EST EST
% of % VAR
PRICE AMOUNT Total ENGR
Avg. EST
% of
PRICE AMOUNT
Total
SPREAD SPREAD Avg
2 2
alNUM z
226 839752 REMOVE GUARDRAIL LF 2,225 $ 7.00 $ 15,575 0%
10.00 $ 22,250 43% 5.00 $ 11,125 -29% 11.00 $ 24,475 57%
8.67 $ 19,283 0% 24%
1.33 $ 2,967 15% (3.67) $ (8,158) -42% 2.33 $ 5,192 27%
6.00 $ 13,350 0% 226
227 840515 THERMOPLASTIC PAVEMENT MARKING SQFT 7,465 $ 4.00 $ 29,860 0%
4.00 $ 29,860 0% 5.00 $ 37,325 25% 3.50 $ 26,128 -13%
4.17 $ 31,104 0% 4%
(0.17) $ (1,244) -4% 0.83 $ 6,221 20% (0.67) $ (4,977) -16%
1.50 $ 11,198 0% 227
228 846007 6" THERMOPLASTIC TRAFFIC STRIPE (ENHANCED WET NIGH' LF 204,515 $ 0.55 $ 112,483 0%
1.20 $ 245,418 118% 0.65 $ 132,935 18% 0.62 $ 126,799 13%
0.82 $ 168,384 1% 50%
0.38 $ 77,034 46% (0.17) $ (35,449) -21% (0.20) $ (41,585) -25%
0.58 $ 118,619 0% 228
229 846009 8" THERMOPLASTIC TRAFFIC STRIPE (ENHANCED WET NIGH' LF 24,091 $ 1.00 $ 24,091 0%
2.10 $ 50,591 110% 1.50 $ 36,137 50% 1.30 $ 31,318 30%
1.63 $ 39,349 0% 63%
0.47 $ 11,242 29% (0.13) $ (3,212) -8% (0.33) $ (8,030) -20%
0.80 $ 19,273 0% 229
230 846030 REMOVE THERMOPLASTIC TRAFFIC STRIPE LF 110,811 $ 0.50 $ 55,406 0%
0.30 $ 33,243 -40% 0.50 $ 55,406 0% 0.35 $ 38,784 -30%
0.38 $ 42,478 0% -23%
(0.08) $ (9,234) -22% 0.12 $ 12,928 30% (0.03) $ (3,694) -9%
0.20 $ 22,162 0% 230
231 846035 REMOVE THERMOPLASTIC PAVEMENT MARKING SQFT 3,671 $ 2.00 $ 7,342 0%
1.50 $ 5,507 -25% 2.50 $ 9,178 25% 3.00 $ 11,013 50%
2.33 $ 8,566 0% 17%
(0.83) $ (3,059) -36% 0.17 $ 612 7% 0.67 $ 2,447 29%
1.50 $ 5,507 0% 231
232 870009 MAINTAINING EXISTING TRAFFIC MANAGEMENT SYSTEM ELE LS 1 $ 50,000.00 $ 50,000 0%
3,500.00 $ 3,500 -93% 25,000.00 $ 25,000 -50% 25,000.00 $ 25,000 -50%
17,833.33 $ 17,833 0% -64%
(14,333.33) $ (14,333) -80% 7,166.67 $ 7,167 40% 7,166.67 $ 7,167 40%
21,500.00 $ 21,500 0% 232
233 870136 ELECTRIC SERVICE FOR IRRIGATION LS 1 $ 19,090.00 $ 19,090 0%
25,000.00 $ 25,000 31% 35,000.00 $ 35,000 83% 34,000.00 $ 34,000 78%
31,333.33 $ 31,333 0% 64%
(6,333.33) $ (6,333) -20% 3,666.67 $ 3,667 12% 2,666.67 $ 2,667 9%
10,000.00 $ 10,000 0% 233
234 870403 A SIGNAL AND LIGHTING SYSTEM (LOCATION 3) LS 1 $ 324,000.00 $ 324,000 1%
330,000.00 $ 330,000 2% 365,000.00 $ 365,000 13% 335,000.00 $ 335,000 3%
343,333.33 $ 343,333 1% 6%
(13,333.33) $ (13,333) -4% 21,666.67 $ 21,667 6% (8,333.33) $ (8,333) -2%
35,000.00 $ 35,000 0% 234
235 870511 A RAMP METERING SYSTEM (LOCATION 1) LS 1 $ 210,100.00 $ 210,100 1%
190,000.00 $ 190,000 -10% 340,000.00 $ 340,000 62%
338,000.00 $ 338,000 61%
289,333.33 $ 289,333 1% 38%
(99,333.33) $ (99,333) -34% 50,666.67 $ 50,667 18% 48,666.67 $ 48,667 17%
150,000.00 $ 150,000 1% 235
236 870512 A RAMP METERING SYSTEM (LOCATION 2) LS 1 $ 125,600.00 $ 125,600 0%
130,000.00 $ 130,000 4% 225,000.00 $ 225,000 79%
220,000.00 $ 220,000 75%
191,666.67 $ 191,667 1% 53%
(61,666.67) $ (61,667) -32% 33,333.33 $ 33,333 17% 28,333.33 $ 28,333 15%
95,000.00 $ 95,000 0% 236
237 870513 A RAMP METERING SYSTEM (LOCATION 3) LS 1 $ 146,600.00 $ 146,600 0%
160,000.00 $ 160,000 9% 320,000.00 $ 320,000 118% 319,000.00 $ 319,000 118%
266,333.33 $ 266,333 1% 82%
(106,333.33) $ (106,333) -40% 53,666.67 $ 53,667 20% 52,666.67 $ 52,667 20%
160,000.00 $ 160,000 1% 237
238 871300 CAMERA SYSTEMS LS 1 $ 58,190.00 $ 58,190 0%
35,000.00 $ 35,000 -40% 50,000.00 $ 50,000 -14% 53,000.00 $ 53,000 -9%
46,000.00 $ 46,000 0% -21%
(11,000.00) $ (11,000) -24% 4,000.00 $ 4,000 9% 7,000.00 $ 7,000 15%
18,000.00 $ 18,000 0% 238
239 872131 MODIFYING LIGHTING SYSTEMS LS 1 $ 465,500.00 $ 465,500 1%
525,000.00 $ 525,000 13% 500,000.00 $ 500,000 7/ 480,000.00 $ 480,000 3%
501,666.67 $ 501,667 2% 8%
23 333 33 $ 23,333 5% (1,666.67) $ (1,667) 0% (21,666.67) $ (21,667) -4%
45,000.00 $ 45,000 0% 239
240 872132 MODIFYING SIGN ILLUMINATION SYSTEMS LS 1 $ 27,900.00 $ 27,900 0%
50,000.00 $ 50,000 79 120,000.00 $ 120,000 330% 119,000.00 $ 119,000 327%
96,333.33 $ 96,333 0% 245%
(46,333.33) $ (46,333) -48% 23,666.67 $ 23,667 25% 22,666.67 $ 22,667 24%
70,000.00 $ 70,000 0% 240
241 872134 A MODIFYING SIGNAL AND LIGHTING SYSTEMS (LOCATION 1) LS 1 $ 362,700.00 $ 362,700 1%
390,000.00 $ 390,000 8%77 400,000.00 $ 400,000 10% 400,000.00 $ 400,000 10%
396,666.67 $ 396,667 1% 9%
(6,666.67) $ (6,667) -2% 3,333.33 $ 3,333 1% 3,333.33 $ 3,333 1%
10,000.00 $ 10,000 0% 241
242 872134 B MODIFYING SIGNAL AND LIGHTING SYSTEMS (LOCATION 2) LS 1 $ 180,600.00 $ 180,600 1%
145,000.00 $ 145,000 -20% 120,000.00 $ 120,000 -34% 116,000.00 $ 116,000 -36%
127,000.00 $ 127,000 0% -30%
18,000.00 $ 18,000 14% (7,000.00) $ (7,000) -6% (11,000.00) $ (11,000) -9%
29,000.00 $ 29,000 0% 242
243 872138 MODIFYING INTERCONNECTION CONDUIT AND CABLE LS 1 $ 117,760.00 $ 117,760 0%
185,000.00 $ 185,000 57% 4 250,000.00 $ 250,000
112%
250,000.00 $ 250,000
112%
228,333.33 $ 228,333 1% 94%
(43,333.33) $ (43,333) -19% 21,666.67 $ 21,667 9% 21,666.67 $ 21,667 9%
65,000.00 $ 65,000 0% 243
244 872142 REMOVING SIGN ILLUMINATION SYSTEMS LS 1 $ 6,000.00 $ 6,000 0%
10,000.00 $ 10,000 67% 15,000.00 $ 15,000
150%
11,500.00 $ 11,500
92%
12,166.67 $ 12,167 0% 103%
(2,166.67) $ (2,167) -18% 2,833.33 $ 2,833 23% (666.67) $ (667) -5%
5,000.00 $ 5,000 0% 244
245 872143 A REMOVING SIGNAL AND LIGHTING SYSTEMS (LOCATION 1) LS 1 $ 28,900.00 $ 28,900 0%
15,000.00 $ 15,000 -48% 50,000.00 $ 50,000
73%
50,000.00 $ 50,000
73%
38,333.33 $ 38,333 0% 33%
(23,333.33) $ (23,333) -61% 11,666.67 $ 11,667 30% 11,666.67 $ 11,667 30%
35,000.00 $ 35,000 0% 245
246 872143 B REMOVING SIGNAL AND LIGHTING SYSTEMS (LOCATION 2) LS 1 $ 33,700.00 $ 33,700 0%
15,000.00 $ 15,000 -55% 55,000.00 $ 55,000
63%4
54,000.00 $ 54,000
60%
41,333.33 $ 41,333 0% 23%
(26,333.33) $ (26,333) -64% 13,666.67 $ 13,667 33% 12,666.67 $ 12,667 31%
40,000.00 $ 40,000 0% 246
247 872145 REMOVING TRAFFIC MONITORING STATIONS LS 1 $ 5,000.00 $ 5,000 0%
15,000.00 $ 15,000 200% 25,000.00 $ 25,000
400%
22,000.00 $ 22,000
340%
20,666.67 $ 20,667 0% 313%
(5,666.67) $ (5,667) -27% 4,333.33 $ 4,333 21% 1,333.33 $ 1,333 6%
10,000.00 $ 10,000 0% 247
248 995100 WATER METER CHARGES LS 1 $ 146,500.00 $ 146,500 0%
92,146.00 $ 92,146 -37/ 92,156.00 $ 92,156 -37/ 45,000.00 $ 45,000 -69%
76,434.00 $ 76,434 0% -48%
15,712.00 $ 15,712 21% 15,722.00 $ 15,722 21% (31,434.00) $ (31,434) -41%
47,156.00 $ 47,156 0% 248
249 999990 MOBILIZATION LS 1 $ 3,572,578.00 $ 3,572,578
110%
1,485,000.00 $ 1,485,000 -58% 2,372,972.90 $ 2,372,973 -34% 3,000,000.00 $ 3,000,000 -16%
2,285,990.97 $ 2,285,991 8% -36%
(800,990.97) $ (800,991) -35% 86,981.93 $ 86,982 4% 714,009.03 $ 714,009 31%
1,515,000.00 $ 1,515,000 5% 249
250 720008 REMOVE SLOPE PAVING (SQYD) SQYD 614 $ 30.00 $ 18,420 0/
15.00 $ 9,210 -50% 20.00 $ 12,280 -33% 25.00 $ 15,350 -17%
20.00 $ 12,280 0% -33%
(5.00) $ (3,070) -25% - $ - 0% 5.00 $ 3,070 25%
10.00 $ 6,140 0% 250
1
$ 35,611,854
$ 27,698,589.41 -227o
5 27,874,000 -22%
$ 30,374,376 -15%
$ 28,648,989 -29°0
$ (951399)
5 (//4,989)
5 1, (25,388
L:\Project Controls\Cost Estimates (ICE), Cost Analysis & Negotiations\Construction Bid Analysis \Pachappa UP\Bid Comparison -Analysis Table - Construction Pachappa UC 2019-10-18 r0, Bid Sched (2)
70
Page 6 of 6
ATTACHMENT 4
Agreement No. 20-31-046-00
CULTURAL RESOURCES TREATMENT AND TRIBAL MONITORING AGREEMENT
(Pre -Excavation Agreement)
I-15 RAILROAD CANYON ROAD INTERCHANGE
I. PARTIES
The PARTIES to this Agreement are (1) The Pechanga Band of Luiseno Indians, a federally
recognized Indian tribe ("PECHANGA TRIBE") and (2) Riverside County Transportation
Commission ("AGENCY").
All notices to the PARTIES shall be given at the addresses below:
Pechanga Band of Luisefio Indians
Gary DuBois, Director
Pechanga Cultural Resources
P.O. Box 2183
Temecula, CA 92593
Telephone: (951) 770-6300
Agency
Riverside County Transportation
Commission
4080 Lemon Street, T `iird Floor
Riverside, Ca 92501
Telephone: (951) 787-7141
II. SUBJECT MATTER
General Counsel for,the Pechanga Band
Michele Fahley, Deputy- General Counsel
Pechanga Office of the General Counsel
P:O, Box 1477
Temecula, CA 92593
Telephone;-(951) 770-6170
Facsimile: (951) 694-0733
*For Tribal Morliror selhechtIing and Tribal Monitor
contact'infot-maticm, pease refer to Addendum 2
{Monitorbig Services Summary Sheet)*
This Agreement concerns a project1nown as the 1-15 Railroad Canyon Road Interchange. The
PECHANGA TRIBE will provide a copy of this Agreement to the Riverside County Medical
Examiner's Office and the Riverside County Transportation Commission, Lead Agency for the
Project, and agency responsible for environmental compliance of this Project ("AGENCY").
III. PURPOSE
This Agreement formalizes procedures for the treatment of Native American human remains,
grave goods, funerary objeets,.ceremonial items, and cultural items, in the event that any are found
in conjunction with construction of the Project. This Agreement also formalizes procedures for
Tribal Monitoring during all grading, groundbreaking, excavation, and ground -disturbing
activities performed in conjunction with the Project , including archaeological testing, studies,
surveys, and staging activities. This Agreement is entered into pursuant to the mitigation
measures required under the California Environmental Quality Act, Cal. Public Resources Code
Section 21000 et seq., as amended ("CEQA") and the conditions of approval for this Project. This
Agreement is effective as of the date provided for in Section XVII.
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &s
Tribal Monitoring Agreement
Pechanga Band of Luiseno Indians
(Rev July 2016)
1
71
IV. CULTURAL AFFILIATION & TREATMENT OF CULTURAL RESOURCES
Cultural resources, including ceremonial items and archaeological items, which may be found in
conjunction with the development of this Project shall be treated as follows:
The AGENCY agrees to give all cultural items to the PECHANGA TRIBE for appropriate
treatment, unless the AGENCY is otherwise ordered by a court or agency of competent
jurisdiction. The AGENCY waives any and all claims to ownership of all cultural items in favor of
the PECHANGA TRIBE. If temporary possession of cultural items by the AGENCY or its agents,
subcontractors, or representatives is necessary (for example a Project archaeologist), said en[iry
or individual shall not possess those items for longer than is reasonably necessary, except that all
PARTIES agree that ceremonial and sacred items shall be immediately relinquished to the
PECHANGA TRIBE for appropriate treatment.
V. DISCOVERY OF HUMAN REMAINS
A. Most Likely Descendant Determination
If Native American human remains are found during development of the. Project, the PARTIES
understand that the Native American Heritage a emission ("NAHC") will=be notified and will
make a determination of Most Likely Descendant (" MLD") pursuant to California Public
Resources Code Section 5097.98. Neither PARTY glitiOrneiat the PECHAN , . TRIBE or one
of its members will be named the MD.. However,' given the location of the site and the
history/prehistory of the area, the PA` TIES;'`.:good faith belief is that Tribal Chairperson Mark
Macarro of the PECHANGA TRIBE willbe namedtlle MLD.
Should the NAHC determine that a memberof an lndian;laribe other than the PECHANGA TRIBE
is the MLD, the provisions ofthis Agreement zelati_ng`to the treatment of such Native American
human remains shall be null and void in their entirety, exceptthat the provisions of Addendum 1
to this Agreement, whichis:.fully severable, shal continue in full force and effect.
B. Coordination with County Medical Exarniner's Office
The AGENCY shall ttrimerliately contact the Medical Examiner and the PECHANGA TRIBE in
the even that any human remains are discovered during the development of the Project. The
Medical Examiner shall ensure that notification is provided to the NAHC as required by
California Public: Resources Code Section. 5097.98(a) and California Health & Safety Code
Section 7050.5(c):
C. Treatment of Native. American Human Remains
In the event that Native American human remains are found during development of the Project
and the PECHANGA TRIBE -Or one of its members is determined to be the MLD by the NAHC,
the following provisions shall apply.
The term "Native American human remains" encompasses more than human bones. The
PECHANGA TRIBE'S traditions call for the burial of associated cultural resources with the
deceased (grave goods and funerary objects), and the ceremonial burning of human remains, with
funerary objects, grave goods and animals. Ashes and other remnants of these burning ceremonies,
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
2
Pechanga Band of Luiseno Indians
(Rev July 2016)
72
as well as grave goods and funerary objects, associated with or buried with the Native American
remains, are to be treated in the same manner as bones, bone fragments, and cremations.
The Medical Examiner shall immediately be notified, ground disturbing activities in that location
shall cease, and the remains shall be left in the place where they were discovered until the Medical
Examiner has had the opportunity to inspect the remains in place and make determinations as
required by State law, and until a final decision as to the treatment and disposition has been made
pursuant to this Agreement and the State law.
The PECHANGA TRIBE shall be allowed, pursuant to California Public Resources CodeSection
5097.98(a), to (1) inspect the site of the discovery, and (2) make:, recommendations as to how the
human remains and grave goods should be treated with appropriate dignity. The AGENCY shall
discuss and confer with the PECHANGA TRIBE all reasonable options with regard to its
preferences and recommendations for treatment. The PARTIES agree to discuss in good faith
what constitutes "appropriate dignity," as that termis used in the applicable statutes and in the
PECHANGA TRIBE'S customs and traditions.
The PECHANGA TRIBE shall complete its inspection and make its MLD<recoinmendation within
forty-eight (48) hours of receiving notification of'the M LD determination Rain the NAHC. RCTC
acknowledges that the PECHANGA TRIBE's general preference may be that all human remains
not be disturbed or disinterred and RCTC agrees in good.fai.th to accommodate that preference
when feasible to the extent allowed under California PublicResources Code Section 5097.98.
D. Non -Disclosure of Reburial Locations
Unless otherwise required by law, the site of any reburial of Native American human remains shall
not be disclosed and will not be governed by public disclosure requirements of the California
Public Records Act, Cal. Govt. Code Section '6250<et seq. The Medical Examiner shall withhold
public disclosure of information related to such reburial pursuant to the specific exemption set
forth in California Government Code Section 6254r).
VI. SIGNIFICANT SITES IMPACTED-SY PROJECT
Handling of any additional significant sites shall_.be conducted in accordance with the Cultural
Resources Treatment and Tribal Monitoring Agreement.
VII. TRIBAI. MONITORS
The description of worl< for Tribal:Monitors is attached hereto as Addendum 1 and incorporated
herein by reference. Addendum"1 specifies the development activities that Tribal Monitors will
monitor, the geographical area over which this monitoring shall be conducted, the size of the
monitoring crew, the powers of'the monitoring crew, provisions for compensation of the Tribal
Monitors, and other pertinent provisions.
VIII. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the heirs, successors,
representatives, executors, administrators, and assigns of the parties, including subsequent land
owners, developers, and subcontractors of the Project area, and any person or entity obligated to
comply with environmental and cultural/archaeological protection laws applicable to the Project.
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
Pechanga Band of Luiseno Indians
(Rev July 2016)
3
73
IX. STATUTORY COMPLIANCE
Nothing in this Agreement shall excuse the AGENCY on this Project from their obligations under
any applicable state or federal laws or regulations, including but not limited to the CEQA, Public
Resources Code Section 21000 et seq.; the National Historic Preservation Act, 16 U.S.C. Section
470 et seq.; California Public Resources Code Sections 5097.98, 5097.98(c), and 5097.99;
California Health and Safety Code Section 7050.5(c); California Government Code Sections 6254,
65040.2, 65092, 65351, 65352, 65560, 65352.3, 65352.4, 65562.5;
California Civil Code Section 815.3; the Native American Graves Protection and Repatriation Act,
25 U.S.C. Section 3001 et seq.; the California Native American Graves Protection and Repatriation
Act of 2001, California Health and Safety Code Section 8010 et sea.; the American Indian Religious
Freedom Act, 16 U.S.C. Section 1996, et seq., and the First Amendment to the United States
Constitution. Nothing in this Agreement is intended to make- any of the above -referenced laws
applicable where such laws would otherwise be inappli`kle.
X. INDEMNITY
The PECHANGA TRIBE in no way indemnifies:4n0r guarantees the AG 'NCY in any of their legal
obligations. The PECHANGA TRIBE assumes:all risk of injury to their employees, agents, and
contractors, including loss, arising out of or in connection with, property dainage or bodily injury
resulting from the work of the Tribal monitors on the Project.except in the case of negligence or
willful misconduct of the RCTC, its employees, agents, and'tontractors.
XI. SEVERABILITY
Should any part of this Agreement be found by any co rrt or agency of competent jurisdiction to
be to any extent invalid. or unenforceable, the remainder of .this Agreement shall not be affected
thereby and shall be Valid and enforceable to the.fullest extentpermitted by law.
XII. CONFIDENTIALITY
The AGENCY:agr'ees to keep confidential and shall ntt disclose the following, unless required by
law or a coirt of competent jurisdiction: any items discussed in Section V(D). The AGENCY shall
ensure'`t1at all of its officers, directors, agents, • employees and contractors agree to keep
confidential the above items and to fully comply with this section as though each of them had
signed this Agreement. The PARTIES agree that any remedy at law for a breach of this section
would be inadequate and such hreach shall -result in irreparable harm to the PECHANGA TRIBE,
who shall be entitledto obtain injunctive relief for a breach of this section, in addition to any other
remedies available to itat law.
XIII. LIMITATION ON SCOPE
This Agreement is unique to this Project only and does not set a precedent for other projects.
XVI. AUTHORITY TO EXECUTE
Each of the persons executing this Agreement expressly warrants that he or she is authorized to
do so on behalf of the entity for which he or she is executing this Agreement. Each PARTY to this
Agreement represents and warrants that this Agreement is executed voluntarily, with full
knowledge of its significance.
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
Pechanga Band of Luiseno Indians
(Rev. July 2016)
4
74
XVII. COUNTERPARTS
This Agreement may be signed in two or more counterparts and will be effective when all
PARTIES and signatories have affixed their signatures to two or more of the counterparts and
said counterparts have been delivered to all PARTIES, at which time the counterparts together
will be deemed one original document.
XVIII. TERM
The term of this Agreement shall commence upon the date of the, last signature below and shall
remain in effect until completion of all Project construction a es subject to monitoring as
defined herein, and as determined by RCTC.
IX. ELECTRONICALLY TRANSMITTED SIGNATURES
A manually signed copy of this Agreement which is transmitted by facsimile, email or other means
of electronic transmission shall be deemed to have the same legal effect as delivery of an original
executed copy of this Agreement for all purposes.
Date:
Tribe: PECHAN A BAND OFLUISEIVO Ag ncy:
INDIANS
By:
Its:
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
5
-)RIVERSIDE COUNTY
TRANSPORTATION
COMMISSION
Anne Mayer
Executive Director
Pechanga Band of Luisefio Indians
(Rev. July 2016)
75
ADDENDUM 1
TRIBAL MONITORING
I-15 Railroad Canyon Road Interchange
I. MONITORING SPECIFICATIONS
The I-15 Railroad Canyon Road Interchange, defined in Section II of the Cultural Resources
Treatment and Tribal Monitoring Agreement, shall consist of ramp improvements, and
reconfigurations of the existing I-15 Railroad Canyon Road Interchange.
Given the nature and sensitivity of the archaeological sites andreultural resources that are ormay
be in the Project area, it is agreed that the PECHANGA TRIBE. hall designate representatives to
be retained as Tribal Monitors to monitor all grading, groundbreaking, excavation, and ground -
disturbing activities performed in the Project area and in conjunction with the Project
construction including archaeological testing, studies, surveys, -and staging activities. Tribal
Monitors will nor monitor paleontological material. If necessary, archaeological observation shall
consist of a qualified archaeologist, retained by the AGENCY, to be present during grading
activities to identify and/or ascertain the significance of any subsurface cultural resources or to
aid in the avoidance of sensitive areas.
II. DISCOVERY OF HUMAN REMAINS
In the event that human remains, as defined in..Section V(C) of the Cultural Resources Treatment
and Tribal Monitoring Agreement, incorporated.i .herein by reference, are found during
development of the Proje10bal Monitors. shall immediately notifythe AGENCY Construction
Manager and after nonf9ing are:empowered to temporarily halt grading or excavation activities
pending further investigation by the;Medical Examiner and the PECHANGA TRIBE, pursuant to
California Health & Safety .Code Section 7050.5. The Tribal Monitors are further empowered to
temporarily hak. grading or excavation activities, for short periods of time, to conduct further
evaluation .Of the significance of, cliscovered cultural items, including further controlled
excavations pursuant to Califonia Public Resources Code Section 21083.2(i). Surface or
subsurface artifacts of sigpificanee may be collected and mapped during this controlled
excavation.
III. PRE -GRADING CONFERENCE & PROJECT CREW SIZES
Regarding grading activities, a pre -grading conference shall be held by the AGENCY to clarify
Tribal Monitoring speeifications:. ?yith the grading contractor and/or Construction Manager and
Resident Engineer. The PECHH,GA TRIBE shall be invited to participate in this conference.
To determine Tribal Monitoring crew sizes, a written schedule of excavation, testing, grading,
and ground -disturbing activities shall be submitted by the AGENCY to the PECHANGA TRIBE
one week in advance of the commencement of these activities. If the AGENCY changes the written
schedule of excavation with less than twenty-four (24) hours' notice, the PECHANGA TRIBE
may impose a minimum half -day show -up charge. "Notice" must be given during normal business
hours (i.e., Monday -Friday from 8:00 a.m. to 5:00 p.m.). Notice provided outside of normal
business hours may result in a minimum half -day charge.
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
Pechanga Band of Luiseno Indians
(Rev July 2016)
6
76
The PARTIES to this Agreement anticipate the need for a Tribal Monitoring crew consisting of
two (2) persons. If the scope of work changes to require additional monitors (for example, if
inadvertent discoveries of cultural resources are made or simultaneous grading in two or more
geographic areas), the AGENCY agrees to come to a reasonable agreement with the PECHANGA
TRIBE regarding compensation of more than two (2) monitors.
IV. COMPENSATION
The PECHANGA TRIBE shall hire the Tribal Monitoring crew for this Project and shall be
responsible for coordinating their activities on this Project. The PECHANGA TRIBE recognizes
that dangerous conditions can exist at the Project work $tc, particularly during grading
operations, and agrees to assume responsibility for the safety of the Tribal Monitors while on the
Project site. The PECHANGA TRIBE possesses liability insurance for its Monitors.
The AGENCY shall compensate the Tribal Monitors at the rare of $75.00 per hour, plus
reimbursement for all reasonable and documented,ileage expenses.:at the current Federal Travel
Regulation mileage rate. The hourly rate of compensation shall be adjusted for inflation based on
2020 dollars. The adjustment, if any, shall be caleilated at the beginningof the calendar year and
will be in accordance with the United States Department of Labor, Bureau of:Labor Statistics, and
Revised Consumer Price Index. A minimum half-day=charge ("show up time`) will be charged to
the AGENCY for unannounced work stoppages of Tribal Monitors which are not due to actions
of the PECHANGA TRIBE. The hourly "rate will not be applicable to travel time to and from the
Project site. A minimum two-hour charge \vili`be.applied for the pre -grading conference and any
other meetings conducted outside of regularly scheduled grading or construction hours.
Overtime rates of time and a:liall.($112.50 per.hour) of`the quoted rate apply for "after hours" and
"weekend" work. "Alter hours work" is defined as. services performed beyond an eight -hour day
from start of construction. "Weekend work" is defined as services performed between close of the
eight -hour construction day on Friday and start of construction work Monday morning. Holiday
rates of double time ($150 per hour)-ol the quoted'rate apply for all holiday work. The hourly rate
will not be..applicable to travel;riine to and from the E,roject site.
The AG NCY agrees 1 late the PECHANGA TRIBE may invoice the AGENCY for the Tribal
Monitors` mpensation on; a`montly: basis. The PECHANGA TRIBE shall submit verified time
records with: each invoice. The AGENCY>also agrees to remit payment in full to the following
address within thirty (30) days .ofreceipt of"the PECHANGA TRIBE's invoice:
Accounting Department
Pechanga Band>of Luis eiza-Indians
Attn: Accounts Receivable
P.O. Box 1477
Temecula, CA 92593
All unpaid balances are subject to a monthly finance charge of 2% of the balance owed. If the
AGENCY fails to remit payment, the PECHANGA TRIBE may pursue any necessary legal action,
including collections, to recover the money owed.
RCTC estimates that Tribal Monitors will be required for 8 hours per day, over a period of 150
days, for a total cost of Ninety Thousand Dollars ($90,000). To ensure adequate funding for any
additional days, overtime or work on holidays, RCTC has allocated the total not to exceed sum of
One Hundred Thousand Dollars ($100,000) to this Agreement. Notwithstanding the foregoing,
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
Pechanga Band of Luiseno Indians
(Rev Ju1y2016)
7
77
payment of any funds under this Agreement shall be based on actual invoiced costs, approved by
RCTC, in accordance with the terms of this Agreement.
V. MONITOR SERVICES SUMMARY SHEET
Please refer to Addendum 2 for pertinent contact information regarding monitor services.
VI. INSURANCE
The PECHANGA TRIBE shall furnish the RCTC with a certificate aF workers compensation insurance
indicating compliance with a worker's compensation program and employer's liability insurance. The
specific requirements are provided in Addendum 3 to this Agreement
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
8
Pechanga Band of Luiseho Indians
(Rev. July 2016)
78
ADDENDUM 2
MONITORING SERVICES SUMMARY SHEET
Project : Project Owner/Developer
Hourly Rate:
Overtime hare:
$75.00
$112.50
Project Manager Name:
Holiday Rate: I
$150.00
E-mail:
Accounts Payable Contact:
E-mail:
Account #:
#:
Mileage Rate:
Project Start Dare; Projecr End Dare:
Show Up: Y or N Pre -grading Time:
Phone Number:
r-
ix YFx
Address:
u'
Name of Tribe: j A4t1ress: •
Phone Number:
P,e banga Band of, itiscno l ndiaxis P.d:" px 1477 Temecula CA 92593
•
Ku'Y
Accounts Receivable Contact: Address:
Fiery f�..'.
Aide
mail:
Phone Numbe.r:
951-770-6000
Phone Number:
P.O. Bax'1477Temecula, CA 92593 afierro@pechanga-nsn.gov
951-770-6111
Monitor Services Contact: Address: E-mail: Phone Number:
Tina Thompson-Mena.•-ssa,Z . Box 2183 Temecula, CA 92593 ` tmendoza@pechanga-nsn.gov f 951-770-6302
I I
If you can not reach Tina Thj asgn ease contact Ebru Ozdil at (951) 770-6313
For Internal Use Only:
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment E
Tribal Monitoring Agreement
9
Pechanga Band of Luiseno Indians
(Rev. July 2016)
79
ADDENDUM 3
TRIBAL MONITOR INSURANCE REQUIREMENTS
A. WORKERS COMPENSATION (IF APPLICABLE)
The Pechanga Band shall Furnish the Riverside County Transportation Commission (RCTC) with a certificate of
workers compensation insurance indicating compliance with a worker's compensation program and employer's
liability insurance with a minimum of $1,000,000.00 for injury, death, or disease to any employee.
B. GENERAL LIABILITY AND AUTOMOBILE LIABILITY COVERAGES
The Pechanga Band shall, at their own expense, maintain during the performance of this contract professional
liability, general liability, and auto liability insurance of the coverage and amount provided below:
Automobile Liability Insurance shall include coverage for bodily injury and property damage for owned (if any),
hired, and non -owned vehicles and shall be not less than_$1,000,000.00 combined limit for any one occurrence.
Comprehensive or Commercial General Liability Insurance shall include coverage for bodily injury, property
damage, and personal injury for premises operations, products/completed operation, and contractual liability.
The amount of the insurance shall not be less than $1,000 000:D0 combined single limit per occurrence and
$2,000,000.00 in the aggregate.
C. ADDITIONAL INSURANCE PROVISIONS
Comprehensive or Commercial General liability Xnsurance shal1•(1) includean endorsement adding the County as
additionally insured regarding wvork:performed bytfie Pechanga Band,. (2) contain a severability of interest clause,
and (3) provide that the ROTC shall not incur liability ;to the insurance carrier for payment of premium.
I-15 Railroad Canyon Road Interchange
Cultural Resources Treatment &
Tribal Monitoring Agreement
10
Pechanga Band of Luiseno Indians
(Rev. July 2016)
80
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
AWARD CONSTRUC11ON
CONTRACTFORI-15 RAILROAD
CANYON INTERCHANGE
Western Riverside County Programs and Projects Committee
February 24, 2020
Bryce Johnston, Capital Projects Manager
Interstate 15
RAILROAD CANYON
Project Location
Chino
Chino Hills
State Park
Ida
t Tustin
4.1
Norco
Corona
Silverado
Lake Forest Rancho Santa
Margarita
Mission Viejo
na Beach
0
Jurupa Valley
El Cerrito
tro
Riverside
t wELEP
Woodcrest
Lake Mathews
Estella
Mo1rtfairr
Reserve
Temescal
Valley
Terra Ca
74
0 Lakeland
Village
Moreno Valley
March Air
Reserve Base
Calimesa
Ktn da
0
Mead Valley Lakeview
Perris
yen Lake
Val i ldomar
Menifee
Murriet,
Nuevo
Homeland
Winchester
Q
Chit Valley
Beaumont Q
Q
San Jacint(
Hemet
Glencak Hills
Sa
2
Interstate 15
RAILROAD CANYON
1-15 RAILROAD CANYON ROAD INTERCHANGE
3
Interstate 15
RAILROAD CANYON
Bid Results
Construction of 1-15/Railroad Canyon Road Interchange
Firm
(In order from Low Bid to High Bid)
Bid
Am a unt
Engineer's Estimate
$35,725,774
Riverside Construction Company
$27,698,589
Skanska USA Civil West California District, Inc.
$27,874,000
Ortiz Enterprises, Inc.
$30,374,376
Security Paving Company, Inc.
30„499, 521
Steve P. Rados, Inc.
$30,691,251
Beadir Construction Company, Inc.
30..94 , 678
Group OHL—North America
31,36.5,844
r Iati ron West, Inc,
31,73O,959
SE MA Construction, Inc.
31.741,926
'iNalsh Construction Company II, LLC
33.307, 616
Griffith Carnpany
34.57.,OlJC
Accel Construction
N/A
4
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
QUESTIONS
AGENDA ITEM 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
February 24, 2020
TO:
Western Riverside County Programs and Projects Committee
FROM:
Mark Lancaster, Capital Projects Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Amendment to Agreement with T.Y. Lin International for Final Design Services
Related to the Mid County Parkway Interstate 215/Placentia Avenue
Interchange Improvement Project and Agreement for Construction Zone
Enforcement Enhancement Program Services for the Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 16-31-066-04, Amendment No. 4 to Agreement
No. 16-31-066-00, with T.Y. Lin International (T.Y. Lin) to complete final design services
and prepare the Interstate 215/Placentia Avenue interchange improvement
(I-215/Placentia Avenue) project for advertising and award, in the amount of $386,663,
plus a contingency amount of $38,666, for an additional amount of $425,329, and a total
amount not to exceed $5,171,185;
2) Approve Agreement No. 20-31-051-00 with the California Highway Patrol (CHP) for
Construction Zone Enforcement Enhancement Program (COZEEP) services in an amount
not to exceed $279,900;
3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and
execute the agreements on behalf of the Commission;
4) Authorize the Executive Director or designee to approve the use of the contingency
amount as may be required for the project; and
5) Forward to Commission for final action.
BACKGROUND INFORMATION:
The Commission began environmental studies and preliminary engineering on the Mid County
Parkway (MCP) project in December 2003.
In April 2015, the Commission certified the final environmental impact report, adopted findings
pursuant to the California Environmental Quality Act, adopted a mitigation monitoring and
reporting program, adopted a statement of overriding considerations, and approved the MCP
project.
At the Commission's direction, staff proceeded with design and right of way acquisition for the
I-215/Placentia Avenue project as the first construction contract for the MCP project. The
I-215/Placentia Avenue project will construct a new interchange at I-215/Placentia Avenue and
Agenda Item 9
81
six lanes on Placentia Avenue between Harvill Avenue and Indian Avenue, connecting to the
existing two-lane section of Placentia Avenue between Indian Avenue and Perris Boulevard (see
Attachment 1 Vicinity Map).
At the November 2016 meeting, the Commission approved an agreement with T.Y. Lin for final
design and preparation of the final Plans, Specifications and Estimate (PS&E) package and related
construction bid documents for the construction of the I-215/Placentia Avenue project in the
amount of $3,754,000. Two subsequent amendment authorizations aggregating an additional
amount of $991,856 resulted in a total contract authorization to date of $4,745,856.
The parties now desire to amend Agreement 16-31-066-00 in order to provide compensation for
final design services for the I-215/Placentia Avenue project to complete work that was not
anticipated in the original scope of work for the project.
DISCUSSION:
During the design phase, ongoing coordination with Caltrans, Riverside County Transportation
Department (RCTD), and Riverside County Flood Control and Water Conservation District
(RCFCWCD) identified the following work items that were not included in the original scope of
the project, but now are required to be completed by T.Y. Lin:
1. Updates to Roadway Plans and Details: Required roadway plan and detail updates
include:
A) Grading adjustments as a result of a revised Eastern Municipal Water District
easement, and the processing of a Supplemental Design Standard Decision
Document with Caltrans for a nonstandard side slope;
B) Creation of details, placement and modifications to a new community
identification monument sign, as requested by the County of Riverside;
C) Updates to the PS&E based on constructability review comments provided by the
Commission's Construction management firm;
D) Significant drainage design revisions required by RCTD and RCFCWCD;
E) Processing of non-standard special provisions;
F) Processing of Utility Exception Memo for Southern California Edison through
Caltrans;
G) Modifications to the PS&E as a result of the October 2019 Caltrans Standard Plans
and Specifications update; and
H) Preparation of Resident Engineer File.
2. Updates to the Drainage Plans, Reports, and Details: Required drainage plan, report, and
detail updates include:
A) Caltrans request to analyze and revise proposed drainage structures within the
State right of way;
B) Response to comments from Caltrans, city of Perris, RCTD and RCFCWCD; and
C) Extensive hydrology and hydraulic analysis and preparation of a drainage report.
Agenda Item 9
82
3. Updates to Landscape Plans, including: Required landscape plan updates include:
A) Modifications to the PS&E as a result of the October 2019 update to the Caltrans
Standard Plans and Specifications; and
B) Design of county monument sign and associated lighting.
4. Environmental Revalidation: Caltrans is requiring a second Environmental Re -Evaluation
(National Environmental Policy Act, or NEPA)/Re-Validation (California Environmental
Quality Act, or CEQA) for the environmental certification approval process. The second
Environmental Re -Evaluation (NEPA)/Re-Validation (CEQA) will also include an updated
project description to document the revised drainage design and the revised impacts to
jurisdictional waters. This task includes time for preparation of the document and to
coordinate with Caltrans and the Federal Highway Administration to review and obtain
signatures.
5. Environmental Permits: A Section 401 (Clean Water Act) certification authorization from
the Santa Ana Regional Water Quality Control Board (SARWQCB) received on September
9, 2019 will be revised and resubmitted to SARWQCB for re -authorization due to drainage
revisions, which caused small additional impacts to jurisdictional waters.
6. Asbestos Testing in Bridges: As requested by Caltrans, the Commission will conduct
supplemental asbestos sampling of the bridge decks of the Placentia Avenue Overcrossing
and Placentia Street Overhead to determine the presence of asbestos in joints and seals
within the bridge. The survey will be completed in accordance with federal, state and local
regulations, including but not limited to, the Asbestos Hazard Emergency Response Act,
South Coast Air Quality Management District, and California Occupational Safety and
Health Administration rules and regulations. A Health and Safety Plan will be prepared for
this investigation, which will outline the safety protocols to be followed during the
asbestos field sampling. This task includes traffic control and safety services during the
field investigation.
7. Construction Support Phase: Additional budget is anticipated to respond to inquiries and
Requests for Information from potential bidders.
Subsequently, staff negotiated the scope of work (including the appropriate level of effort, labor
categories/mix, etc.), cost, and schedule proposal received from T.Y. Lin for the additional
services and established a fair and reasonable price. The proposed cost is $386,663.
The completion of design of the project is February 2020, and construction is scheduled to begin
in summer 2020.
Construction Zone Enforcement Enhancement Program Agreement
As with all highway projects, an agreement is required with CHP to provide COZEEP services for
speed enforcement and traffic queuing control for the safety of motorists and construction
workers during nighttime lane closures construction work. Based on a Caltrans formula and the
Agenda Item 9
83
amount of freeway lane and directional closures, the estimated amount for this agreement is
$279,900.
Recommendation
Staff recommends approval of Agreement No. 16-31-066-04 with T.Y. Lin to complete these
additional scope items for the project, based on the final negotiated scope and cost of $386,663,
plus a contingency amount of $38,666, for an additional amount of $425,329, and a total contract
authorization not to exceed $5,171,185. The table below provides a summary of the initial
agreement and subsequent approved and proposed amendments.
Agreement
Authorization Date
Authorization
Amount
Agreement
Amount
Original Agreement
November 9, 2016
$ 3,754,000
$ 3,412,677
Amendment No. 1
July 11, 2018
299,498
314,663
Amendment No. 2
N/A (use of contingency)
-
341,300
Amendment No. 3
September 11, 2019
692,358
629,416
Subtotal
4,745,856
4,698,056
Amendment No. 4 (proposed)
425,329
386,663
Totals
$ 5,171,185
$ 5,084,719
Staff also recommends approval of Agreement No. 20-31-051-00 for COZEEP services with the
CHP in the amount of $279,900.
Further, authorization is requested for the Chair or Executive Director to finalize and execute the
agreements on behalf of the Commission and for the Executive Director or designee to approve
the use of the contingency amount as may be required for the project.
Financial Information
In Fiscal Year Budget:
Yes
Year:
FY 2019/20
Amount:
$705,229
Source of Funds:
2009 Measure A Western County
New Corridors
Budget Adjustment:
No
GL/Project Accounting No.:
002317 81102 00000 0000 261 31 81101
Fiscal Procedures Approved:
\z, 0,„,
Date:
02/13/2020
Attachments:
1) Vicinity Map-I-215/Placentia Avenue Interchange
2) TY Lin Amendment No. 4, Agreement No. 16-31-066-04
3) CHP COZEEP Agreement No. 20-31-051-00
Agenda Item 9
84
ATTACHMENT 1
TYLININTERNATIONAL
0 225' 450' 900'
*Mid -County Parkway (shown in blue) is not part of project.
1-215 / Placentia Ave Interchange
SCALE: 1" = 150'
Attachment 1 Vicinity Map
85
ATTACHMENT 2
STATE OF CALIFORNIA
DEPARTMENT OF CALIFORNIA HIGHWAY PATROL
REIMBURSABLE SERVICES CONTRACT REQUEST
CHP 78R (Rev. 2-12) OPI 076
TO
BUSINESS SERVICES SECTION-
CONTRACT SERVICES UNIT (076)
DATE
05/24/2018
(1) CURRENT AGREEMENT NUMBER
(2) DPI TRACKING NUMBER
(3) PREVIOUS AGREEMENT NUMBER
(4) CONTRACT COORDINATOR (Print Name and Tilley
R. Pereyda Officer
FROM (Command/Location Code)
Riverside 840
TELEPHONE NUMBER
(Include Arse Code)
(951) 637-8000
FAX NUMBER
(include Area Code)
(951) 63_74003
MAXINGAAT DRESS (include o e
81 i 8 Lincoln Ave, Riverside Ca, 92504
BUSINESS ADDRESS (if different than mailing address)
(5) AGREEMENT WITH (include Full Pas/ness Name)
Riverside County Transportation Commision
CONTACT NAME (Prim Name end 77Ue)
Alex Menor Capital Projects Mgr,
TELEPHONE NUMBER
("include Area Code)
(951) 787-7970
FAX NUMBER
(Include Area Code)
(951) 787-7906
MAILING ADDRESS (Include Zip Code)
4080 Lemon St. 3rd floor Riverside Ca, 92502
BUSINESS ADDRESS (If different than mailing address)
ORIGINAL AGREEMENT E AMENDMENT NUMBER
(7) TERM OF AGREEMENT
STARTING DATE 06/01/2019 THROUGH 12/01 /2021
ORIGINAL ENDING DATE
AMENDED ENDING DATE
(8) AREA(S)/LOCATION CODE(S)1ADDRESS(ES) WHERE SERVICES ARE TO BE PERFORMED (If Different From Above)
111 CHECK IF MULTIPLE LOCATION LISTING ATTACHED NO CHANGE
Construction will be performed on Placentia Ave, at Interstate 215,
(9) DESCRIBE PURPOSE, SERVICE(S) TO BE PERFORMED, AND/OR FINAL PRODUCT TO SE DELIVERED
The Riverside County Transportation Commission will be the lead agency providing demolition and construction for the necessary upgrades
and improvements of the Placentia Ave, over crossing including the on and off ramps for the interstate 215, The Riverside County
Transportation Commission has requested CNP provide Construction Zone Enhanced Enforcement Program (Cozeep) services within the
construction zone,
(10)
`-1 SUPPORTING DOCUMENTATION ATTACHED (Spedi7cat/ens or scope of work, drawings end other supporting documents, or services affected by this reimbursable agreemeal must be attached to CNP 717R
and available vie email upon CSU's request). Pieria provide cpnracl person and email address below.
NAME (Print Name and Title)
R. Pereyda Officer
EMAIL ADDRESS
RPeieyda@chp,ca,gov
TELEPHONE NUMBER (include Area Code/
(951) 637-8000
lit-) NAME OF INVOICE APPROVER (Print Name and TBfe)
G. J. Tyler, Captain
MAILING ADDRESS
8118 Lincoln Ave, Riverside Ca, 92504
TELEPHONE NUMBER (Include Area Code)
(951) 637-8000
Ap reimbursable agreements are aubjact to lull -cost recovery, a,g„ portal to portal and mileage, unless Indicated and approved by approp late Assistant Commissioner, Appropriate charges will he
made for departmental supplies extended, additional equipment utilized, damages to unifarmo or property repaired or replaced at slate expense, etc., which are directly related to the services provided,
(12) ESTIMATED
HOURS/MILEAGE:
Esl. Officer Reg, hours:
Officer Reg. rate:
s I 1 I; a1 ESTIMATED AMOUNT
9ft.lc us'
$
(13) AMENDMENT- Increase/Decrease
$
per hour
$
Est. Officer Oft hours; 2,880
Meer OIT rate:
$ 92,00 pet hour
264,960,00
(11) MAXIMUM REIMBURSABLE
AMOUNT AUTHORIZED
Est. Sgt. Reg, hours:
Sgt. Reg. rale, $
Est. Sgt. OTT hours;
Sg1, OF rate: $
Eel, WC Sgt, Rag, hours:
WC Sgt. Reg, rate:
Tsi MIC Sgl, Olt hours:
$
WC Sgt. O/T rate: $
par hour
per hour
per hour
$
(15) LOCATION CODE
2840
OSJECTCODE
PCA CODE
96501
$
(1B) INVOICE TO BE PREPARED
Upon completion of Agreement Monthly
Other, Fully explain method below:
per hour
EsL Automobile miles:
18,000
AulomoblJo miles race: @
0,83
per mike
$ 14,940,00
Est, WC miles:
M/C miles rater
( per mile
Est. Other Expense(*):
Other expense(s): 3
Estimated total:
COMMANDER OR APPROVED DESIGNEE (Print Name and Title)
G. J, Tyler, Captain
DIVISION COMMANDER OR AP PR/VED DESIGNEEawaked (if (Print Name and Vile)
,l
$
$
$
DATE
05/31/2018
DATE
6 ( EV/8
Destroy Previous Editions
86
Chp78R_0212.pel
ATTACHMENT 3
Agreement No. 16-31-066-04
AMENDMENT NO. 4 TO AGREEMENT
FOR PREPARATION OF PLANS, SPECIFICATION AND ESTIMATES (PS&E)
WITH T.Y. LIN INTERNATIONAL
1. PARTIES AND DATE
This Amendment No. 4 to the Agreement for preparation of plans,
specifications, and estimates services is made and. entered into as of
2020, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION
("Commission") and T.Y. LIN INTERNATIONAL ("Consultant"), a California
corporation.
2. RECITALS
2.1 The Commission andthe Consultant have;,,entered into an agreement
dated November 9, 2016 for the purpose of providing the preparation
of plans,. specifications, and `estimates (PS&E) for the Interstate
215/Placentia Avenue Interchange Improvements Project (the "Master
Ag reement").
2.3
The CommiSs,,ion and the Consultant have entered into an
Amendment No. 1, dated October 2, 2018, for the purpose providing
additional compensation for additional PS&E services for the
Interstate 2Th PlacentI.a Avenue Interchange Improvements Project.
The Commission and the Consultant have entered into an
Amendment No. 2, dated February 11, 2019, for the purpose
providing additional compensation for additional PS&E services for
the Interstate 215/Placentia Avenue Interchange Improvements
Project
2.4 The Commission and the Consultant have entered into an
Amendment No. 3, dated September 11, 2019, for the purpose
providing additional compensation for additional PS&E services for
the Interstate 215/Placentia Avenue Interchange Improvements
Project
17336.01100\31282465.5
87
2.5 The parties now desire to amend the Master Agreement in order to
provide additional compensation for additional PS&E services for the
Interstate 215/Placentia Avenue Interchange Improvements Project.
3. TERMS
3.1 The Scope of Services for the Master Agreement shall be amended to
include Services, as that term is defined in the Master Agreement,
required to provide additional PS&E services, as more fully described
in Exhibit "A" attached to this Amendment No. 4 and incorporated
herein by reference.
3.2 The maximum compensation for Services performed pursuant to this
Amendment No. 4 shall be Three Hundred Eighty -Six Thousand, Six
Hundred Sixty -Three Dollars ($386,663).
3.3 The compensation terms are further set forth in Exhibit "B" attached
to this Amendment No. 4 and incorporated herein by reference.
Compensation for Services performed under this Amendment No. 4
shall be billed in accordance with the attached Exhibit "B".
3.4 The total not -to -exceed amount of the Master Agreement, as amended
by this Amendment No. 4, shall be increased from Four Million Six
Hundred and Ninety -Eight Thousand, Fifty -Six Dollars ($4,698,056) to
Five Million Eighty -Four Thousand, Seven Hundred and Nineteen
Dollars ($5,084,719).
3.5 Except as amended by this Amendment No. 4, all provisions of the
Master Agreement, including without limitation the indemnity and
insurance provisions, shall remain in full force and effect and shall
govern the actions of the parties under this Amendment.
3.6 This Amendment No. 4 shall be governed by the laws of the State of
California. Venue shall be in Riverside County.
3.7 This Amendment No. 4 may be signed in counterparts, each of which
shall constitute an original.
[Signatures on following page]
17336.01100\31282465.5 2
88
SIGNATURE PAGE
TO
AGREEMENT NO. 16-31-066-04
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
on the date first herein above written.
RIVERSIDE COUNTY T.Y. LIN
TRANSPORTATION COMMISSION INTERNATIONAL
By: By:
Anne Mayer, Executive Director Signature
Name
Title
APPROVED AS TO FORM: Attest:
By: By:
Best Best & Krieger LLP
Counsel to the Riverside County Its:
Transportation Commission
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the
second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief
financial officer or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be
provided to the Commission.
17336.01100\31282465.5 3
89
Exhibit "A"
Amendment No. 4
Scope of Services
[attached behind this page]
17336.01100\31282465.5
Exhibit A
90
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
SCOPE OF WORK
Preparation of Plans, Specifications and Estimates (PS&E)
For the
Interstate 215 (I-215) / Placentia Avenue Interchange Improvements
Project
Amendment #4
December 24, 2019
1 12/24/2019
91
SECTION 1
DESCRIPTION OF PROJECT
1.1
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
PROJECT DESCRIPTION
1.1-1 Background
No change from original contract dated November 9, 2016.
1.1-2 Location and Limits
No change from original contract dated November 9, 2016.
1.1-3 Project Description
No change from original contract dated November 9, 2016.
1.2 REASONS FOR CONTRACT AMENDMENT
1.2-1 Finalize Design and Ready -to -List (RTL) Project
Additional effort required to complete the final design and RTL the project.
1.2-2 Construction Support Phase
Additional budget needed for Construction Support, due to additional project
scope.
SECTION 2
Not used
2 12/24/2019
92
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
SECTION 3
TASK BREAKDOWN OF WORK
3.2 TASK 5 — FINAL PS&E (100 PERCENT) SUBMITTAL
3.5-9 Final PS&E Updates
Additional budget is required to finish final design and RTL the project. This
includes the following:
A. Updates to Roadway Plans and Details, including:
• Grading adjustments as a result of the revised Eastern Municipal
Water District (EMWD) easement width, and the processing of a
Supplemental Design Standard Decision Document (DSDD) for a
nonstandard side slope.
• Creation of details, placement and modifications to a new
monument sign, as requested by the County of Riverside.
• Updates to the PS&E based on comments provided by RCTC's
Construction Management Firm.
• Grading and Elevation updates based on ongoing drainage design
revisions.
• Processing of Non -Standard Special Provisions (NSSPs).
• Processing of Utility Exception Memo for Southern California
Edison (SCE).
• Modifications to the special provisions and bid items as a result of
the 10/18/19 Caltrans update to the Standard Plans and
Specifications.
• Preparation of Resident Engineer (RE) File.
B. Updates to the Drainage Plans, Reports, and Details, including:
• Caltrans request to analyze and revise proposed reinforced
concrete box (RCB) to an open channel through State Right -of -
Way.
• Respond to comments from Caltrans, City of Perris, and Riverside
County Flood Control and Water Conservation District
(RCFC&WCD).
• Additional details, quantity adjustments, calculations, and exhibits
based on agency comments.
• Details or calculations to prepare for the RE File.
C. Updates to Landscape Plans, including:
• Modifications to the special provisions and bid items as a result of
the 10/18/19 Caltrans update to the Standard Plans and
Specifications.
• County Monument Sign renderings.
• County Monument Sign lighting, including type and placement.
• Additional details to prepare for the RE File.
3 12/24/2019
93
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
D. Updates to Electrical Plans, including:
• Modifications to the special provisions and bid items as a result of
the 10/18/19 Caltrans update to the Standard Plans and
Specifications.
• Processing of revised NSSPs, due to the 10/18/19 Caltrans update
to the Standard Plans and Specifications.
This amendment scope is based on acceptance of the overall drainage concept
by Caltrans and RCFC&WCD. Any significant revisions to the drainage concept
are not included.
3.5-10 Right of Way Updates
Additional budget is required to update legal descriptions based on the revised
EMWD Easement, and new easements for RCFC&WCD. One new legal
description, and adjustments to five previously prepared legal descriptions is
anticipated. Includes potential updates to Land Net base map, Appraisal Map,
and Record of Survey adjustments per Caltrans review.
3.5-11 County Drainage Analysis
CONSULTANT will prepare a drainage memo analyzing the existing conditions at
the intersection of Placentia Avenue/Harvill Avenue, in response to Cathy
Wampler/County of Riverside's September 18, 2019 email, items 7a-7f.
a. Hydrology: TYLI will provide a hydrology map showing the existing
tributary area and the existing Q10 and Q100 flows that reach the two
existing corrugated metal pipe arches (CMPA) on the west side of Harvill
Ave. This analysis will consider the tributary area as `developed' using
appropriate RCFCWCD hydrology parameters, which will assume the 20-
acre Transportation site is fully developed.
b. Ponding: Using the calculated Q10 and Q100 flow rates, the capacity of
the CMPA's and the ponding depth of flow in Placentia Street west of
Harvill Avenue will be determined.
c. Breach: Assuming the shallow CMPA's do not have adequate capacity to
carry the full tributary flow, then backwater and ponding on the west side
of Harvill Avenue will be evaluated and it will be determined at what
ponding depth the water will breach over the centerline of Harvill Avenue
to the east side of Harvill Avenue. The amount of flow breaching the crest
of Harvill Avenue will be determined for both the Q10 and Q100 storm
events.
d. Capacity: The proposed inlets and pipes on the east side of Harvill
Avenue will be evaluated with this additional flow.
e. Spread width: The spread width and standing depth of this water in the
4 12/24/2019
94
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
street at the sump catch basins will be evaluated.
f. Clogging considerations: In the event that the sump catch basins are
blocked, the additional curb openings (parkway drains) will be evaluated
as a secondary overflow. Any additional overflow conditions will be
discussed.
This study will include the hydrologic analysis (HEC-HMS) tributary to two
existing 49"x33" CMPA's located to the west of the intersection including flows
from the Perris Valley Storm Drain (PVSD) Master Drainage Plan (MDP) for
Laterals H-10.1 and H-10. The ultimate (build -out) condition hydrology will be
assumed tributary to the pair of CMPAs for both the 10-year, 6-hour and 100-
year, 6-hour storm events in accordance with the Riverside County Flood Control
Hydrology Manual (1978). In both conditions, it is conservatively assumed that
the MDP drainage infrastructure for Laterals H-10.1 and H-10 have not been
constructed and that all flows will be conveyed on the surface to the two CMPAs
that exist today. This assumption of surface flow will likely cause an increase in
the conveyance time in the tributary and the flow rates in turn will likely be lower
than the conservative MDP values.
Since it is assumed that the portion of Placentia Avenue west of Harvill Avenue
will pond up and split flows between both CMPAs, it is only necessary to model
one hydrologic concentration point at the sump. The split of the peak flow rates
will be accounted for in the hydraulic calculations. A second concentration point
will be modeled at the new proposed sump along Placentia Avenue (at
approximately "P" Line Station 2+75) to represent the local drainage area that is
added once flows overtop Harvill Avenue.
The roadway profile at the centerlines of both roads will be analyzed to determine
the lowest breach elevations at each of the three sumps (one on each side of
Placentia Avenue and one across the centerline of Harvill Avenue). Hydraulic
calculations (i.e., HY-8, FHWA Inlet Charts) will be prepared at various stage
elevations to determine the capacity of each CMPA prior to overtopping Harvill
Avenue and draining towards the proposed curb inlets along the improved
portion of Placentia Avenue. Additional inlet calculations will be performed at the
two proposed curb inlets and the additional four parkway drains along Placentia
Avenue east of the intersection to determine whether the proposed inlets have
the capacity to intercept the overflows. Additionally, the hydraulic capacity of the
proposed 36-inch RCP will be determined in StormCAD. The goal of these
calculations is to determine the inundation elevations and limits in each condition.
It is assumed that the County of Riverside will regularly monitor and maintain
both CMPAs after each storm event to remove the known sediment accumulation
from offsite areas. Thus, a clogging factor would not be utilized in the analysis of
the CMPAs.
Open-faced curb inlets in a sump condition do not typically utilize a clogging
factor, as clogging factors are usually intended for grated inlets clogged by
debris. However, for this analysis, in accordance with the County's request, TYLI
will perform an additional 'clogged condition' and assume a percentage of the
5 12/24/2019
95
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
curb inlet length is not utilized to extract the flow from the roadway.
Results from the hydrologic and hydraulic analysis will be summarized into a
memorandum and will include the hydrologic and hydraulic conditions described
above, as well as exhibits illustrating the inundation limits for each condition. This
study will be completed utilizing existing available topographic and survey data.
This scope assumes one revision to address minor comments.
Any design of improvements to address study results can be evaluated through a
separate scope/contract amendment.
3.5-12 Environmental Permits and Revalidation
Environmental Revalidation
Caltrans is requiring a second Environmental Re -Evaluation (NEPA)/Re-
Validation (CEQA) for the environmental certification approval process. Based on
the example provided by Caltrans on August 20, 2019, the second Environmental
Re -Evaluation (NEPA)/Re-Validation (CEQA) will include the "project processing
to next major federal approval" box checked on the first page, any refinements to
the scope of the project or the Environmental Commitments Record (ECR), and a
copy of the Final ECR.
The second Environmental Re -Evaluation (NEPA)/Re-Validation (CEQA) will also
include an updated project description to include the revised drainage design and
an updated write-up including the revised impacts to jurisdictional waters.
Includes time to prepare a Draft and Final Environmental Re -Evaluation
(NEPA)/Re-Validation (CEQA) with responses to one round of comments, and
time to coordinate with RCTC and FHWA to obtain signatures.
Environmental Permits
A Section 401 (Clean Water Act) certification authorization from the Regional
Water Quality Control Board (RWQCB) was received on September 9, 2019.
Due to drainage updates, and additional impacts to jurisdictional waters, the
Section 401 certification application will be revised and resubmitted to RWQCB
for re -authorization. Includes time to revise the certification application with
responses to one round of comments on the draft certification application and
time to coordinate with RWQCB to obtain a revised Section 401 certification
authorization.
A Section 404 (CWA) permit authorization from the U.S Army Corps of Engineers
(USACE) was received on September 25, 2019.
Due to drainage updates, and additional impacts to jurisdictional waters, the
Section 404 permit application will be revised and resubmitted to USACE for re-
authorization. Includes time to revise the permit application with responses to
6 12/24/2019
96
Amendment #4 (RFQ 16-31-066-00)
EXHIBIT A
SCOPE OF WORK
one round of comments on the draft permit application and time to coordinate
with USACE to obtain a revised Section 404 permit authorization.
3.5-13 Asbestos Testing in Bridges
As requested by Caltrans, we will conduct supplemental asbestos sampling of
the bridge decks of the Placentia Avenue Overcrossing and Placentia Street
Overhead (bridge numbers 56-0450 and 56-0763). The survey will be completed
in general accordance with Federal, State and Local regulations, including but
not limited to, the Asbestos Hazard Emergency Response Act (AHERA), South
Coast Air Quality Management District (SCAQMD), and California Occupational
Safety and Health Administration (Cal/OSHA) rules and regulations.
A Health and Safety Plan (HSP) will be prepared for this investigation, which will
outline the safety protocols to be followed during the asbestos field sampling.
Includes traffic control and safety services during the field investigation.
Testing of concrete on both of the above -referenced bridges will be done to
determine the presence of asbestos. We will collect three bulk samples of
suspect concrete from each of the two bridges for the determination of asbestos
content, as necessary to satisfy all United States Environmental Protection
Agency, Cal/OSHA and the South Coast Air Quality Management District
requirements. Samples will be submitted to a NVLAP-accredited laboratory and
analyzed by Polarized Light Microscopy. It is estimated that six (6) asbestos bulk
samples shall be collected during the described investigation and testing.
A supplemental asbestos testing report will be prepared. The report will be
appended to include laboratory analytical results, field sketches and other
pertinent field documentation, and will be signed by a California Certified
Asbestos Consultant and a California registered professional engineer or
geologist.
Includes time to process an Encroachment Permit with Caltrans for this work.
3.5 TASK 7 — CONSTRUCTION SUPPORT PHASE
3.7-5 Respond to Inquiries/RFIs
Additional budget is anticipated to be needed to respond to inquiries and RFIs
related to Landscaping during construction, including reviews of the County
Monument Sign.
3.7-7 As-Builts
Additional budget is anticipated to be needed during construction for
Landscaping Plans As -Built preparation and approvals from Caltrans.
7 12/24/2019
97
Exhibit "B"
Amendment No. 4
Compensation
[attached behind this page]
17336.01100\31282465.5
Exhibit B
98
EXHIBIT "B"
COMPENSATION SUMMARY'
FIRM
PROJECT TASKS/ROLE
COST
Prime Consultant:
TY Lin [Design and PS&E Preparation Services
$ 251,636.00
Sub Consultants:
David Evans and Associates, Inc.
Landscape Design Services
$63,860.00
Leighton Consulting
Geotechnical Services
$3,076.00
LIN Consulting, Inc. (LCI)
Traffic/Electrical Design Services
$11,193.00
LSA Associates, Inc.
Environmental Services
$24,767.00
Towill, Inc.
Surveying/ROW Services
30,856.00
SUBTOTAL
$385,388.00
OTHER DIRECT COSTS
1,275.00
TOTAL COSTS
$ 386,663.00
Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur;
however, the maximum total compensation authorized may not be exceeded.
99
AGENDA ITEM 10
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
February 24, 2020
TO:
Western Riverside County Programs and Projects Committee
FROM:
Bryce Johnston, Capital Projects Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Amendment to Agreement for California Highway Patrol Construction Zone
Enhancement Enforcement Program Services During the Construction of the
State Route 60 Truck Lanes Project
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 19-31-038-01, Amendment No. 1 to Agreement
No. 19-31-038-00, with the California Highway Patrol (CHP) for Construction Zone
Enhanced Enforcement Program (COZEEP) services during the construction of the
State Route 60 Truck Lanes project (Project) in the amount of $350,000, plus a
contingency amount of $100,000, for an additional amount of $450,000, and a total
amount not to exceed $1,490,070;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission;
3) Authorize the Executive Director, or designee, to approve contingency work as may be
required for the agreement; and
4) Forward to the Commission for final action.
BACKGROUND INFORMATION:
At its January 2019 meeting, the Commission awarded the construction contract to Skanska
USA Civil West (Skanska) for the Project located east of Moreno Valley from Gilman Springs
Road to Jack Rabbit Trail (see Attachment 1 for vicinity map). This project will add an
eastbound truck climbing lane and a westbound truck descending lane plus inside and outside
standard shoulders along a 4.5-mile stretch of SR-60 and is designed to enhance safety and
improve operations.
At its January 2019 meeting, the Commission also approved an agreement with CHP for COZEEP
services needed during construction.
At this time, the construction of the project is about 20 percent complete and is on schedule.
Agenda Item 10
100
CHP COZEEP SERVICES
The original authorization for COZEEP services was $1,040,070. COZEEP expenditures to date
have been higher than originally estimated due to additional COZEEP services associated with a
significant incident that occurred at the beginning of Stage 2 construction, in which west bound
traffic was reduced to one lane. The project team determined in the interest of safety to use
COZEEP services 24 hours a day for the seven month duration of Stage 2.
When westbound traffic is restored to two lanes, the COZEEP support will be used in reduced
frequency.
Staff reviewed expenditures to date and estimates the need for an additional $350,000 in
COZEEP services for monitoring traffic during the remaining construction of the Project plus
$100,000 contingency to cover potential extra work that may be required. As a result, the total
amount not exceed authorization is $1,490,070. The draft amendment is attached.
There are sufficient funds included in the FY 2020/21 budget for these additional expenditures
related to the Project.
Financial Information
Yes
FY 2019/20
$150,000
In Fiscal Year Budget:
N/A
Year:
FY 2020/21
Amount:
$300,000
Congestion Mitigation Air Quality, State
Transportation Improvement Program -
Source of Funds:
Regional Improvement Program, State
Highway Operations and Protection
Budget Adjustment:
No
N/A
Program, and 2009 Measure A Western
County Highway funds
GL/Project Accounting No.:
003029 81304 00000 0000
262 31 81301
Fiscal Procedures Approved:
\;;a,ivno�
Date:
02/24/2020
Attachments:
1) Vicinity Map
2) Agreement No. 19-31-038-01 with CHP for COZEEP Services
Agenda Item 10
101
ATTACHMENT 1
BCIYI .T rillri
Marra
rJ I18y
Par%
511115
• 17•.
REGIONAL MAP
Site Location
Harm/aril li�1e1
`?iFI r•.
Figure 1: Project Location Map
102
STATE OF CALIFORNIA
STANDARD AGREEMENT AMENDMENT
STD. 213 A (Rev 6/03)
ATTACHMENT 2
CHECK HERE IF ADDITIONAL PAGES ARE ATTACHED Pages
AGREEMENT NUMBER
18R655000
REGISTRATION NUMBER
AMENDMENT NUMBER
1
1. This Agreement is entered into between the State Agency and Contractor named below:
STATE AGENCY'S NAME
Department of California Highway Patrol
CONTRACTOR'S NAME
Riverside County Transportation Commission
2. The term of this
Agreement is
March 1, 2019 through February 28, 2021
3. The maximum amount of this $1,490,070.00
Agreement after this amendment is: One Million Four Hundred Ninety Thousand Fifty dollars and Zero Cents
4. The parties mutually agree to this amendment as follows. All actions noted below are by this reference made a part
of the Agreement and incorporated herein:
A. Add funds in the amount ($350,000.00) Three Hundred Fifty Thousand Dollars and Zero cents
and $100,000 One Hundred Thousand Dollar and Zero cents a contingency effective
immediately
B.
Pagel, Item 3 (Maximum Amount), is revised to read: The Maximum amount for this agreement
is One Million Four Hundred Ninety Thousand Fifty dollars and Zero Cents ($1,490,070.00). All
references to Page 1, Item 3 (Maximum Amount), in the body of this agreement and in any
Exhibits hereto shall be deemed to read One Million Four Hundred Ninety Thousand Fifty
dollars and Zero Cents ($1,490,070.00).
All other terms and conditions shall remain the same.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
CONTRACTOR
CONTRACTOR'S NAME (If other than an individual, state whether a corporation, partnership, etc.)
Riverside County Transportation Commission
BY (Authorized Signature)
DATE SIGNED (Do not type)
PRINTED NAME AND TITLE OF PERSON SIGNING
Anne Mayer, Executive Director
ADDRESS
4080 Lemon Street, 3rd Floor Annex Riverside, CA 92501
STATE OF CALIFORNIA
AGENCY NAME
Department of California Highway Patrol
BY (Authorized Signature)
DATE SIGNED (Do not type)
PRINTED NAME AND TITLE OF PERSON SIGNING
P. Silney, Assistant Chief, Adminsitrative Services Division
ADDRESS
601 North 7th Street, Sacramento, CA 945811
CALIFORNIA
Department of General Services
Use Only
Exempt per:
103
AGENDA ITEM 11
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
February 24, 2020
TO:
Western Riverside County Programs and Projects Committee
FROM:
Lisa Mobley, Clerk of the Board
THROUGH:
Anne Mayer, Executive Director
SUBJECT:
Election of Officers for the Western Riverside County Programs and Projects
Committee
STAFF RECOMMENDATION:
This item is for the Western Riverside County Programs and Projects Committee to conduct an
election of officers for 2020 — Chair and Vice Chair.
BACKGROUND INFORMATION:
The election of officers for the full Commission and its Committees are held on an annual basis.
Commissioners Brian Berkson and Michael Vargas were elected as the Western Riverside County
Programs and Projects Committee's officers. Once the election for 2020 is conducted, the new
Chair and Vice Chair will immediately assume the positions.
Past Chairs of the Western Riverside County Programs and Projects Committee are as follows:
2019 — Brian Berkson, City of Jurupa Valley
2018 — Adam Rush, City of Eastvale
2017 — Deborah Franklin, City of Banning
2016 — Ben Benoit, City of Wildomar
2015 — Ben Benoit, City of Wildomar
2014 — Frank Johnston, City of Jurupa Valley
2013 — Andrew Kotyuk, City of San Jacinto
2012 — Adam Rush, City of Eastvale
2011— Darcy Kuenzi, City of Menifee
2010 — Karen Spiegel, City of Corona
Agenda Item 11
104
RIVERSIDE
COUNTY
TRANSPORTATION
COMMISSION
TO: Riverside County Transportation Commission
FROM: Lisa Mobley, Clerk of the Board
DATE: February 18, 2020
SUBJECT: G.C. 84308 Compliance — Potential Conflict of Interest
California Government Code 84308 states a Commissioner may not participate in any discussion or
action concerning a contract or amendment if a campaign contribution of more than $250 is
received in the past 12 months or 3 months following the conclusion from a bidder or bidder's agent.
This prohibition does not apply to the awarding of contracts that are competitively bid. The
Commission's procurement division asks potential vendors to disclose any contributions made to
the campaigns of any Commissioner as part of their submitted bid packets. As an additional
precaution, those entities are included below in an effort to give Commissioners opportunity to
review their campaign statements for potential conflicts. Please note the entities listed in this
memo are not encompassing of all potential conflicts and are in addition to any personal conflicts
of interest such as those disclosed on Statement of Economic Interests — Form 700 or prohibited
by Government Code Section 1090. Please contact me should you have any questions.
Agenda Item No. 9: Amendment to Agreement with T.Y. Lin International for Final Design
Services Related to the Mid County Parkway Interstate 215/Placentia Avenue Interchange
Improvement Project and Agreement for Construction Zone Enforcement Enhancement Program
Services for the Project
Consultant(s): F.R. Clark Fernon, Vice President
T.Y. Lin International
404 Camino del Rio South, Suite 700
San Diego, CA 92108
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN -IN SHEET
FEBRUARY 24, 2020
NAME
AGENCY
E_MAIL ADDRESS
\(tA . 'jv '
bt- 0 viGVe'm Valk
aarktte VviovaLa/c,
, - S
e., 4, €, --s-,,,__
✓2, zS, sL .c
6 -r\---- Q I v O
/u U a1 k it-
5ti(N 6 O NQ.Atpe2.1 i�4ol
iieftw- /h"{---,v {U 1t
N DR Co
'c-F i-t'e,4.J i
12^uC0 Dc
6 r 1 a,, P ti 1s to,
—} q 1/ 4//.e
lc 4-e/ 14, 1 i4(2, AS
10 �2�z.rs
/ ev,«✓ —<a,‘,.-
"c,.�U D
G/ / .z&p_ __
¢7,��
0
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS
COMMITTEE
ROLL CALL
FEBRUARY 24, 2020
Present Absent
County of Riverside, District I .1 0
County of Riverside, District V i1 0
City of Corona a 0
City of Eastvale Z 0
City of Jurupa Valley 0 0
City of Menifee 0 ®'
City of Moreno Valley a IF
City of Murrieta g 0
City of Norco 0 0
City of Perris 0 0
City of San Jacinto Z 0
City of Wildomar 0 0
4