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03 March 27, 2017 Western Riverside County Programs and ProjectsCOMM-WRC-00037 RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 1:30 p.m. Monday, March 27, 2017 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 / ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. 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. 4. APPROVAL OF MINUTES — FEBRUARY 27, 2017 Western Riverside County Programs and Projects Committee March 27, 2017 Page 2 5. 6. 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.) AGREEMENT FOR INTERSTATE 15 EXPRESS LANES PROJECT DESIGN -BUILD SERVICES Overview This item is for the Committee to: Page 1 1) Award Agreement No. 16-31-057-00 to Skanska-Ames, a Joint Venture (Skanska-Ames) as the design -builder to design and construct the Interstate 15 Express Lanes project in the amount of $243,900,000, plus a contingency amount of $19,512,000, for a total amount not to exceed $263,412,000; 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 staff to issue a Notice to Proceed No. 1 under the agreement in an amount not to exceed $5,250,000 after execution of the agreement; 5) Authorize staff to issue a Notice to Proceed No. 2 for the remainder of the agreement work after financial close including the successful sale of bonds and funding of the U.S. Department of Transportation (USDOT) Transportation Investment Finance and Innovation Act (TIFIA) loan and design -builder compliance with the agreement requirements; and 6) Forward to the Commission for final action. 7. INTERSTATE 15 EXPRESS LANES PROJECT — AT&T UTILITY AGREEMENT Overview This item is for the Committee to: Page 9 1) Approve Agreement No. 17-31-080-00 with AT&T for a utility relocation for the Interstate 15 Express Lanes project (Project) in the amount of $296,524, plus a contingency amount of $29,652, for a revised total amount not to exceed $326,176; 2) Authorize the 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; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee March 27, 2017 Page 3 8. AMENDMENT TO AGREEMENT WITH HDR ENGINEERING INC. FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE PERRIS VALLEY LINE PROJECT Overview This item is for the Committee to: Page 16 1) Approve Agreement No. 10-31-058-06, Amendment No. 6 to Agreement No. 10-31-058-00, with HDR Engineering Inc. (HDR) to provide construction management for the Perris Valley Line (PVL) project in the amount of $1.7 million, plus a contingency amount of $300,000, for an additional amount of $2 million, and a total amount not to exceed $27,050,146; 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, pursuant to legal counsel review, to approve the use of the contingency as may be required for the project; and 4) Forward to the Commission for final action. 9. 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. 10. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, April 24, 2017, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. Alexandra Rackerby From: Alexandra Rackerby Sent: Wednesday, March 22, 2017 4:18 PM To: Alexandra Rackerby Subject: RCTC Western Riverside County Programs and Projects Committee - 1pad compatible users Attachments: Conflict of Interest Form.pdf; Conflict of Interest Memo.pdf Good afternoon Commissioners, The Western Riverside County Programs and Projects Committee agenda for Monday, March 27, 2017 is posted on our Website at http://www.rctc.org/uploads/media items/western-riverside-county-programs-and-projects-committee- march-27-2017.original.pdf Also, attached is the Conflict of Interest Memo and Form for your information. Let me know if you have any questions or concerns. Thank you. Respectfully, A['lie Rackerby Records Technician RiMerside County Transportation Commission PO Box 12008, Riverside, CA 92502-2208 4080 Lemon Street, 3d Floor, Riverside, CA 92501 (951) 787.7141 j rctcorg 1 RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL March 27, 2017 Present Absent � v e d, l : HOP. rn. County of Riverside, District I �" County of Riverside, District V � �( �c,,c ❑ City of Banning ,Rri O City of Corona ,,A` O City of Eastvale 34' t121°- 0 City of Jurupa Valley 0 City of Menifee g City of Moreno Valley )0/O City of Norco � O City of Perris ;X O City of San Jacinto ;tif ,�City of Wildomar O AGENDA ITEM 4 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, February 27, 2017 MINUTES 1. CALL TO ORDER/ ROLL CALL The meeting of the Western Riverside County Programs and Projects Committee was called to order by Vice Chair Deborah Franklin at 1:36 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Vice Chair Franklin led the Western Riverside County Programs and Projects Committee in a flag salute. Members/Alternates Present Members Absent Victoria Baca* Ben Benoit* Brian Berkson Deborah Franklin Berwin Hanna Kevin Jeffries Andrew Kotyuk Adam Rush Karen Spiegel Michael Vargas *arrived after meeting was called to order Marion Ashley Neil Winter 3. PUBLIC COMMENTS There were no requests to speak from the public. 4. APPROVAL OF MINUTES — NOVEMBER 28, 2016 M/S/C (Jeffries/Kotyuk) to approve the minutes as submitted. RCTC WRC Programs and Projects Committee Minutes February 27, 2017 Page 2 5. ADDITIONS/REVISIONS There were no additions or revisions at this time. At this time, Commissioner Victoria Baca joined the meeting. 6. AMENDMENT TO THE 91 EXPRESS LANES OPERATOR AGREEMENT Reinland Jones, Toll Technology Manager, presented the scope of the amendment to the 91 Express Lanes operator agreement. In response to Vice Chair Franklin's question regarding the difference in cost between the presentation and the agenda item, Reinland Jones clarified the amount on the agenda item is correct. M/S/C (Hanna/Kotyuk) to: 1) Approve Agreement No. 13-31-105-03, Amendment No. 3 to the 91 Express Lanes Operator Agreement No. 13-31-105-00 (commonly referred to as the ORCOA), among the Orange County Transportation Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute) to incorporate the joint lane system maintenance agreement for an additional amount of $1,629,194 and a total amount not to exceed $32,826,193; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the amendment on behalf of the Commission; and 3) Forward to the Commission for final action. 7. AMENDMENT WITH JACOBS ENGINEERING GROUP, INC. FOR THE MID COUNTY PARKWAY PROJECT Alex Menor, Capital Projects Manager, presented the scope of the amendment with Jacobs Engineering Group, Inc. for the Mid County Parkway project. In response to Commissioner Andrew Kotyuk's question regarding the Placentia Avenue interchange, Alex Menor provided a brief description and timeline for the interchange project. Anne Mayer, Executive Director, added the Placentia Avenue interchange project is separate from the other projects along the 1-215 corridor. At this time, Chair Ben Benoit joined the meeting. RCTC WRC Programs and Projects Committee Minutes February 27, 2017 Page 3 M/S/C (Spiegel/Vargas) to: 1) Approve Agreement No. 04-31-018-12, Amendment No. 12 to Agreement No. 04-31-018, with Jacobs Engineering Group, Inc. (Jacobs) to continue to perform Phase III post environmental impact report/environmental impact statement (EIR/EIS) closeout tasks through the permitting process, conduct work to implement required mitigation measures, and respond to requests for information and provide non -legal technical support to the Commission and its legal counsel for the Mid County Parkway (MCP) project for an additional amount of $2,595,098, plus a contingency amount of $259,510, for a total additional amount of $2,854,608, resulting in a total amount not to exceed $49,852,025; 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 for these services; and 4) Forward to the Commission for final action. Abstain: Benoit 8. AGREEMENTS FOR ON -CALL PROPERTY MAINTENANCE AND REPAIR SERVICES Mark Lancaster, Right of Way Manager, presented the scope of the agreements for on -call property maintenance and repair services. In response to Commissioner Karen Spiegel's question regarding the number of surplus parcels, Mark Lancaster stated there are a number of excess parcels from various projects that will need to be declared as surplus. Currently, there are more than a dozen parcels declared as surplus. Additionally, if a government agency has interest in a surplus parcel, there are restrictions to its uses. Anne Mayer added the Commission's objective is to sell as many of the excess parcels as possible and discussed the process and challenges of doing so. M/S/C (Kotyuk/Benoit) to: 1) Award the following agreements to provide on -call property maintenance and repair services for a three-year term, and two one- year options to extend the agreement, in an amount not to exceed an aggregate value of $1.5 million; a) Agreement No. 17-33-029-00 to Braughton Construction, Inc.; b) Agreement No. 17-33-030-00 to Carry All; c) Agreement No. 17-33-031-00 to DeAngelo Brothers, LLC; and RCTC WRC Programs and Projects Committee Minutes February 27, 2017 Page 4 d) Agreement No. 17-33-032-00 to Real Estate Consulting & Services, Inc. 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; and 4) Forward to the Commission for final action. 9. REQUEST TO DECLARE REAL PROPERTY AS SURPLUS Mark Lancaster presented the request to declare real property as surplus. Commissioner Kevin Jeffries introduced his Chief of Staff, Jeff Green, to illustrate one of the proposed trails in the city of Corona that goes through one of the parcels the Commission is proposing to surplus. He then requested the Commission put aside a portion of the parcel for the proposed trail. Anne Mayer proposed staff review the request and determine the necessary steps to accommodate the request, if feasible. Jeff Green clarified the trail design plan has not been adopted and is only conceptual. At Commissioner Jeffries' request, Anne Mayer clarified staff will evaluate the options and bring a proposal to the Commission at its next meeting. If an evaluation cannot be completed by that time, staff will suspend action on this parcel until an evaluation is completed. At this time, Commissioner Andrew Kotyuk left the meeting. M/S/C (Baca/Spiegel) to: 1) Declare as surplus the real property in the areas of the State Route 91 high occupancy vehicle lanes (SR-91 HOV) project and former alignment of the Mid County Parkway (MCP) near Cajalco Road, as specifically identified in this report and attached maps; 2) Authorize the Executive Director to notify public agencies pursuant to Government Code 54220 et.seq. the properties are available; 3) If no response is received, authorize the Executive Director to offer the surplus properties for sale to the public; and 4) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes February 27, 2017 Page 5 10. AMENDMENTS TO FREEWAY SERVICE PATROL AGREEMENT Brian Cunanan, Commuter and Motorist Assistance Manager, presented the scope of the amendments to the Freeway Service Patrol (FSP) agreement. M/S/C (Spiegel/Rush) to: 1) Approve Agreement No. 12-45-045-04, Amendment No. 3 to Agreement No. 12-45-045-00, with Pepe's Towing, Inc. (Pepe's) to provide Freeway Service Patrol (FSP) services on Beat No. 18 for an additional amount of $38,000, for a total amount not to exceed $1,558,000; 2) Approve Agreement No. 12-45-046-05, Amendment No. 4 to Agreement No. 12-45-046-00, with Pepe's to provide FSP services on Beat No. 19 for an additional amount of $70,000, for a total amount not to exceed $1, 571,000; 3) Approve Agreement No. 14-45-009-06, Amendment No. 4 to Agreement No. 14-45-009-00, with Steve's Towing (Steve's) to provide FSP services on Beat No. 1, Beat No. 2, and State Route 91 Corridor Improvement Project (91 Project) Beat No. 1 and 91 Project Beat No. 2 for an additional amount of $197,000 and a total amount not to exceed $2,852,057; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; and 5) Forward to the Commission for final action. 11. FUNDING AGREEMENT WITH THE CALIFORNIA HIGHWAY PATROL FOR FREEWAY SERVICE PATROL SUPERVISION Brian Cunanan presented the scope of the agreement with CHP for FSP supervision. At Commissioner Spiegel's request, Brian Cunanan clarified construction FSP is funded through a separate agreement. Anne Mayer added construction FSP is monitored and provides significantly different services. M/S/C (Vargas/Berkson) to: 1) Approve Agreement No. 16-45-094-01, Amendment No. 1 to Agreement No. 16-45-094-00, with the California Highway Patrol (CHP) to provide supervision and operation of the Freeway Service Patrol (FSP) program in Riverside County for an additional amount of $731,115, and a total amount not to exceed $1,524,296; RCTC WRC Programs and Projects Committee Minutes February 27, 2017 Page 6 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. 12. IE COMMUTER SYSTEM ENHANCEMENTS Brian Cunanan presented the scope of the agreement for the programming enhancements and website administration services for the Commuter Assistance Program. In response to Vice Chair Franklin's question regarding using these enhancements to assist with first -mile and last -mile trips, Brian Cunanan concurred the application will support multimodal trips. M/S/C (Hanna/Benoit) to: 1) Approve Agreement No. 14-41-156-02, Amendment No. 2 to Agreement No. 14-41-156-00, with Media Beef, Inc. for programming enhancements and website administration services for the Commuter Assistance Program (CAP) in the amount of $193,700, plus a contingency amount of $19,370, for an additional amount of $213,070, and a total amount not to exceed $1,151,670; 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 contingency amount as may be required for these services; and 4) Forward to the Commission for final action. 13. ELECTION OF OFFICERS FOR THE WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Jennifer Harmon stated this item is for the Western Riverside County Programs and Projects Committee to conduct an election of the officers for 2017. At this time, Vice Chair Franklin opened nominations for the Chair position. Chair Benoit, seconded by Commissioner Adam Rush, nominated Vice Chair Franklin for the Chair position for 2017. No other nominations were received. The Chair closed the nominations. Commissioner Deborah Franklin was elected as the Western Riverside County Programs and Projects Committee's Chair for 2017. The Chair then opened nominations for the Vice Chair position for 2017. RCTC WRC Programs and Projects Committee Minutes February 27, 2017 Page 7 Commissioner Spiegel, seconded by Commissioner Jeffries, nominated Commissioner Rush for the Vice Chair position for 2017. No other nominations were received. The Chair closed the nominations. Commissioner Adam Rush was elected as the Western Riverside County Programs and Projects Committee's Vice Chair for 2017. 14. COMMISSIONERS / STAFF REPORT 14A. Commissioner Spiegel announced the dedication ceremony for the Commission's 91 Project is scheduled for Friday, March 31, at 11 a.m. at the North Main Corona Parking Structure. 15. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:48 p.m. Respectfully submitted, O \-\ 0.JLrriavy--- Jennifer Harmon Clerk of the Board AGENDA ITEM 6 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 27, 2017 TO: Western Riverside County Programs and Projects Committee FROM: Michael Blomquist, Toll Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement for Interstate 15 Express Lanes Project Design -Build Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 16-31-057-00 to Skanska-Ames, a Joint Venture (Skanska-Ames) as the design -builder to design and construct the Interstate 15 Express Lanes project in the amount of $243,900,000, plus a contingency amount of $19,512,000, for a total amount not to exceed $263,412,000; 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 staff to issue a Notice to Proceed No. 1 under the agreement in an amount not to exceed $5,250,000 after execution of the agreement; 5) Authorize staff to issue a Notice to Proceed No. 2 for the remainder of the agreement work after financial close including the successful sale of bonds and funding of the U.S. Department of Transportation (USDOT) Transportation Investment Finance and Innovation Act (TIFIA) loan and design -builder compliance with the agreement requirements; and 6) Forward to the Commission for final action. BACKGROUND INFORMATION: Project Description The 1-15 Express Lanes project is part of the Commission's 10-Year Western Riverside County Highway Delivery Plan and will improve 1-15 in northern Riverside County. The project includes the construction of what generally is described as two tolled express lanes in each direction between the I-15/Cajalco Road interchange in Corona and the I-15/State Route 60 interchange just south of the Riverside/San Bernardino County line — approximately 14.6 miles. Proposed roadway improvements are anticipated to be constructed within the existing Caltrans right of way with the majority of the improvements occurring within the existing 1-15 median. The Agenda Item 6 1 Commission will operate and maintain the tolled express lanes after opening for a period of 50 years. Procurement On August 24, 2015, staff issued a request for expressions of interest (RFEI) inviting firms or teams of firms interested in the 1-15 Express Lanes project to submit an expression of interest including comments on various procurement packaging strategies, tolling technical requirements, opportunities for innovation, and potential risks. The RFEI was a due diligence effort and not part of the formal procurement process. One of the key goals of this due diligence step was to obtain industry feedback and input allowing staff to assess the various approaches to procure the required work in order to provide the best value to the Commission. The packaging of the various required work elements was critical in order to utilize the best-value/competitively negotiated procurement method that considers and evaluates both the price of a proposal and its qualitative technical merits. As presented to the Commission at its December 9, 2015 meeting, the most advantageous procurement packaging option consisted of two separate procurements, one for the toll services and one for design -build civil work, with the toll services to be procured first. Subsequently, at its January 26, 2017 meeting, the Commission approved award of an agreement with Kapsch TrafficCom Transportation NA Inc. as the toll services provider to design, implement, operate and maintain a toll collection system on the project. This staff report relates to the design -build civil work procurement in support of the project. DISCUSSION: Design -Build Procurement Selection Process The design -builder for the 1-15 Express Lanes project was procured using the competitively negotiated procurement method to obtain the best -value for the Commission. The competitively negotiated procurement method considers and evaluates the proposal price and its qualitative technical merits. Staff determined the competitively negotiated procurement method was most advantageous for this procurement as it allows the Commission to obtain the best value by using any one or a combination of selection approaches wherein the relative importance of price may vary with other non -price factors. The best -value design -builder 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 and determination of a competitive range 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 - Agenda Item 6 2 Build Law, the recommended award is based upon a best -value determination using criteria established in the RFP. Request for Qualifications Staff issued RFQ No. 16-31-048-00 for design -build services on January 8, 2016. On February 18 the Commission received five statements of qualifications (SOQs) in response to the RFQ. A selection team of staff and project management personnel reviewed the SOQs and performed a comprehensive evaluation. On March 25 the Commission announced the shortlisting of the following three design -builders: • Express Lane Builders • Flatiron West, Inc. • Skanska-Ames, a Joint Venture Request for Proposals The three short-listed proposers were issued a RFP and each submitted price and technical proposals. The proposals were evaluated and scored on two factors: 1) proposal price; and 2) technical concepts and approach. The weighting of both factors was determined by staff and listed in the RFP. The factors were then combined using the predetermined weighting to derive the highest score and the best -value proposer. The selection process commenced once the Commission received the proposals from the three short-listed proposers on January 10, 2017. Attachment 1 generally illustrates the proposal evaluation and selection organization structure used including the price and technical subcommittees, advisory groups, and pass/fail and proposal responsiveness subcommittees. The steps leading up to selection of the best -value proposer and this recommendation for award of a design -build agreement were as follows: • The proposals were received from the three short-listed proposers and were logged in and stored in a secure location; • The proposals were then separated into two components — price proposals and technical proposals — and provided to the Price Proposal Evaluation Committee (PPEC) and Technical Proposal Evaluation Committee (TPEC), respectively, for evaluation. The TPEC and PPEC were made up of staff with the appropriate experience who made independent and confidential evaluations. The two evaluation committees were assisted by financial, legal, and project management professionals; • The two evaluation committees then performed a pass/fail and responsiveness review of their respective proposals to ensure the proposers satisfied the pass/fail and responsiveness requirements of the RFP, including organization, format, inclusion of forms, business organization, proposal security, Disadvantaged Business Enterprise certification, and adherence to the maximum time for schedule completion; Agenda Item 6 3 • The two evaluation committees submitted requests for clarification related to the pass/fail review and responsiveness to each of the proposers and reviewed all responses to the clarification requests; • The Commission and Flatiron West, Inc. had a dispute related to its proposal. As a result of the dispute, the Commission and Flatiron West, Inc. mutually agreed to a settlement and the proposal was not evaluated. • The TPEC members received input and recommendations from a technical advisory group made up of project management personnel concerning the technical proposals; • After having individually reviewed the technical proposals and the input and recommendations from the technical advisory group, the TPEC met to form consensus and to score the technical proposals based on the predetermined criteria and weighting of the technical concepts and approach; • The PPEC completed its scoring based on the predetermined weighting of the proposal price; • After the completion of their respective evaluation responsibilities and scoring, the PPEC and TPEC met to combine the proposal score, based on the predetermined weighting of the technical proposal score and price score; • The PPEC and TPEC chairs presented their recommended scoring and the supporting rationale to the Executive Director. The Executive Director accepted the recommendations of the PPEC and TPEC, which marked the completion of the evaluation process; and • The proposer with the highest score was selected for limited negotiations on February 17, 2017, and all shortlisted teams were notified of the results. Apparent Best Value (ABV) Determination The best -value determination was based on a 100 point scale. The price score represented up to 80 points of the total score, and the technical score represented up to 20 points of the total score. The determination of ABV was based on the highest total proposal score (TPS) computed based on the following formula: Total Proposal Score (max. 100) = Price Score (max. 80) +Technical Score (max. 20) 1. The Price Score Price Score was based on the following formula: Price Score = (PPVLow/PPV) * 80, where; PPVLow = Lowest Proposal Present Value submitted by any Proposer, as determined pursuant to Instructions to Proposers (ITP) Section 5.6 PPV = Proposer's Proposal Present Value, as determined pursuant to ITP Section 5.6 Agenda Item 6 4 a. Contract Price and Proposal Present Value Calculations The PPV of each price proposal was calculated by discounting the contract price using a discount rate of 3 percent per annum as set forth in the RFP. The proposers' respective PPV are set forth as follows: Proposer Contract Price Proposal Present Value Express Lane Builders $258,500,000 $234,846,306.37 Skanska-Ames $243,900,000 $222,677,615.02 b. Calculation of Price Score The proposers' Price Scores were calculated using the formula set forth in the RFP and noted above. This calculation resulted in the following Price Scores. Proposer Price Score Express Lane Builders 75.85 Skanska-Ames 80.00 2. The Technical Score Technical Score was calculated using the following formula: Technical Proposal Score = (TP/TPHigh) * 20, where; TP = Proposer's Technical Proposal Evaluation Score, as determined pursuant to ITP Section 5.5 TPHigh = Highest Technical Proposal Evaluation Score achieved by any Proposer, as determined pursuant to ITP Section 5.5. The evaluation factors for the Technical Proposal were as follows: • Technical Approach (maximum 35 points); • Project Delivery Approach (maximum 35 points); and • Quality Management Approach (maximum 30 points). a. Technical Proposal Evaluation Score The resulting TPEC evaluation scores are set forth below: Proposer Technical Proposal Evaluation Score Express Lane Builders 73.25 Agenda Item 6 5 Skanska-Ames 61.25 b. Calculation of Technical Score The proposers' Technical Scores were calculated using the formula set forth in the RFP and noted above. That calculation resulted in the following Technical Scores: Proposer Technical Proposal Score Express Lane Builders 20.00 Skanska-Ames 16.72 The Price Scores and Technical Scores were combined and resulted in the following Total Proposal Scores: Proposer Price Score (80 points max.) Technical Score (20 points max.) Total Proposal Score (100 points max.) Express Lane Builders 75.85 20.00 95.85 Skanska-Ames 80.00 16.72 96.72 Schedule The following table represents past and planned procurement milestones: Milestone Activity Date Issue final RFP to short-listed proposers August 1, 2016 Proposals due January 10, 2017 Proposal evaluation and selection Jan. 10-Feb. 17, 2017 Limited negotiation, agreement conformance, and recommendation staff February 17, 2017 — March 12, 2017 Caltrans and FHWA concurrence of agreement award April 5, 2017 (est.) Proposed Commission approval of agreement award April 12, 2017 Execute agreement and Notice to Proceed No. 1 April 12, 2017 (est.) Financial close for I-15 Express Lanes project (sale of bonds) Summer 2017(est.) Notice to Proceed No. 2 for full design and construction Summer 2017 (est.) Agreement Award and Notice to Proceed The agreement was structured with the ability for the Commission to authorize the design - builder to proceed with limited work and provide payment based upon achieving certain milestones. Notice to Proceed No. 1 is planned for issuance immediately following execution of Agenda Item 6 6 the agreement in the amount of $5,250,000 allowing the design -builder to advance work before financial close in a number of key areas including: • Co -located project office, mobilize personnel; • Baseline project schedule and monthly progress schedule; • Utility Mapping, Drainage Inventory Assessment; • Project Management Plan, Document Control Work Plan; • Insurance Premiums and Bond Premiums; • Environmental Permitting and Environmental Management Plan; • Health and Safety Plan, Public Outreach Plan; • Disadvantaged Business Enterprise Program Performance Plan; and • Quality Management Plans, Document Control System. Upon successfully reaching financial close for the project, which is currently planned for Summer 2017, the Commission is positioned to issue Notice to Proceed No. 2 for the remainder of the agreement provided the design -builder has met all of its obligations. RECOMMENDATIONS: Staff requests Commission approval of the design -build agreement between the Commission and Skanska-Ames for a total amount not to exceed of $263,412,000, which includes a contingency amount of $19,512,000. Further, authorization is requested for the Chair or Executive Director to execute the agreement on behalf of the Commission; the Executive Director, or designee, to approve contingency work up to the total not to exceed amount; staff to issue a Notice to Proceed No. 1 in the amount of $5,250,000 after agreement execution; and Notice to Proceed No. 2 for the remainder of the design -build agreement after financial close including the successful sale of bonds and funding of the USDOT TIFIA loan. Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17 $ 5,250,000 N/A FY 2017/18+ Amount $258,162,000 Source of Funds: Bond and TIFIA Loan Proceeds and Toll Budget Adjustment: No Revenues N/A GL/Project Accounting No.: 003027 81601 00000 0000 262 3181601 Fiscal Procedures Approved: \1,1,ivijA7 Date: 03/15/2017 Attachments: 1) Proposal Evaluation and Selection Organizational Structure 2) Design Build Agreement — Terms, Conditions, and Exhibits (Enclosed on CD) Agenda Item 6 7 ATTACHMENT 1 DESIGN -BUILD PROPOSAL EVALUATION ORGANIZATION RCTC Commission PRICE PROPOSAL EVALUATION COMMITTEE (PPEC) RCTC Executive Director RCTC General Counsel Price Pass/Fail & Responsiveness Advisory Group Price Facilitator RCTC Procurement Administrative/Legal Subcommittee TECHNICAL PROPOSAL EVALUATION COMMITTEE (TPEC) 1 Technical Advisory Group (TAG) I Technical Pass/Fail & Responsiveness Advisory Group Technical Facilitators Riverside County Transportation Commission 1-15 Express Lanes Project Design -Build Contract 8 EXPRESS LINES RIVERSIDE COUNTY TRANSPORTATION COMMISSION REQUEST FOR PROPOSALS (RFP No. 16-31-057-00) TO DESIGN AND BUILD THE 1-15 EXPRESS LANES PROJECT THROUGH A DESIGN -BUILD CONTRACT VOLUME II: CONTRACT ISSUED AUGUST 1, 2016 ADDENDUM #1 ISSUED SEPTEMBER 30, 2016 ADDENDUM #2 ISSUED NOVEMBER 10, 2016 ADDENDUM #3 ISSUED DECEMBER 13, 2016 ADDENDUM #4 ISSUED DECEMBER 21, 2016 DRAFT EXECUTION VERSION MARCH 16, 2017 Riverside County Transportation Commission Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 4080 Lemon Street, 3rd Floor Riverside, CA 92501 www. rctc.org Contract Number: 16-31-057-00 Draft Execution Version- Design -Build Contract March 15, 2017 9816780.v44 DESIGN -BUILD CONTRACT INTERSTATE 15 EXPRESS LANES PROJECT TABLE OF CONTENTS 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 15 3.4. General Obligations of DB Contractor 15 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 20 4.3. Design Professional Licensing Requirements 22 4.4. Role of PCM 22 4.5. Role of Department and FHWA 23 4.6. City of Norco 23 4.7. Role of Local Agencies 23 4.8. Toll Services Provider 24 SECTION 5 NOTICES TO PROCEED 25 5.1. NTP1 25 5.2. NTP2 26 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 i Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 15, 2017 9816780.v44 SECTION 6 TIME WITHIN WHICH PROJECT SHALL BE COMPLETED, PROJECT SCHEDULE AND PROGRESS 28 6.1. Time of Essence 28 6.2. Scheduling of Design, Construction and Payment 28 6.3. Conditions to Design Work Review and Payment 30 6.4. Conditions to Commencement of Construction 30 6.5. Recovery Schedule 32 SECTION 7 CONTROL OF WORK 33 7.1. Control of Work 33 7.2. Safety 33 7.3. Obligation to Minimize Impacts 33 7.4. Oversight, Inspection and Testing 33 SECTION 8 ACCESS TO SITE; UTILITIES; ENVIRONMENTAL MITIGATION; HAZARDOUS MATERIALS; APPROVALS; COOPERATION WITH LOCAL AGENCIES 37 8.1. Access to Site 37 8.2. Access to Santa Ana River 43 8.3. Advance Utility Relocation 43 8.4. Utility Relocations 43 8.5. Accuracy of RCTC-Supplied Information Concerning Existing Utilities 47 8.6. Utility Enhancements 49 8.7. Failure of Utility Owners to Cooperate 49 8.8. Avoiding Relocations and Minimizing RCTC Costs 51 8.9. Process to Follow Upon Discovery of Certain Site Conditions 52 8.10. Hazardous Materials Management 53 8.11. Environmental Compliance, Mitigation, and Approval Requirements 55 8.12. Approvals 56 8.13. Cooperation with Local Agencies 59 SECTION 9 SUBCONTRACTORS AND LABOR 60 9.1. Disadvantaged Business Enterprise (DBE) Program 60 9.2. Subcontracts 61 9.3. Equal Employment Opportunity 66 9.4. Labor Code Requirements 66 9.5. Prevailing Wages 68 9.6. Key Personnel; Qualifications of Employees 68 9.7. Key Personnel Liquidated Damages 69 9.8. Lobbying 70 9.9. Federal On -the -Job Training Participation Goal 70 SECTION 10 PERFORMANCE AND PAYMENT BONDS; GUARANTY 71 10.1. Provision of Bonds 71 10.2. No Relief of Liability 72 Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project ii Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 10.3. Guaranty 72 SECTION 11 INSURANCE 74 11.1. General Insurance Provisions 74 SECTION 12 SITE SECURITY; MAINTENANCE AND REPAIR; TITLE 80 12.1. Site Security 80 12.2. Obligation to Maintain and Repair 80 12.3. Title 82 SECTION 13 WARRANTIES AND NONCONFORMANCES DURING THE WARRANTY PERIOD 83 13.1. DB Contractor Warranties 83 13.2. Subcontractor Warranties 84 13.3. No Limitation of Liability 85 13.4. Damages for Breach of Warranty and Other Rights at Law / Equity 85 SECTION 14 PAYMENT FOR SERVICES 86 14.1. Contract Price 86 14.2. Invoicing and Payment 87 14.3. Deductions, Exclusions and Limitations on Payment 90 14.4. Final Payment 96 14.5. Payment for Subsequent Claims 97 14.6. Payments Not Acceptance of Work 98 14.7. Payment to Subcontractors 98 14.8. Payment of "Claims" under Pub. Cont. Code § 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 101 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 109 16.7. Change Order Entitlement for Compensable Events 109 16.8. Change Order Pricing 110 16.9. Time and Materials Change Orders 111 16.10. Basic Configuration Changes 113 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 16.11. Main or Trunkline Utilities 113 16.12. Differing Site Conditions 114 16.13. Changes in Project Standards 115 16.14. Hazardous Materials Management 115 16.15. Pavement Adjustment 117 16.16. Change Order Records 117 16.17. Daily Work Reports and Data Collection 118 16.18. Supplier's Invoices 118 16.19. Execution of Reports 118 16.20. Disputes 119 16.21. Work Performed Without Direction 119 16.22. Changes Not Requiring Change Order 119 16.23. No Release or Waiver 119 SECTION 17 SUSPENSION 121 17.1. Suspensions for Convenience 121 17.2. Suspensions for Cause 121 17.3. Department Suspensions 122 17.4. Responsibilities of DB Contractor during Suspension Periods 122 SECTION 18 TERMINATION FOR CONVENIENCE 123 18.1. Notice of Termination for Convenience 123 18.2. Transition Plan 123 18.3. DB Contractor's Responsibilities after Receipt of Notice of Termination 123 18.4. Acceptance 125 18.5. Payment for Termination for Convenience 125 18.6. Settlement Proposal 126 18.7. Amount of Negotiated Termination Settlement 127 18.8. No Agreement as to Amount of Termination Settlement for Work 127 18.9. Conditions to Payment; Reduction in Amount of Claim 127 18.10. Payment upon Termination 128 18.11. Termination Based on Delay in or Failure to Issue NTP1 128 18.12. Termination Based on Delay in or Failure to Issue NTP2 128 18.13. No Waiver; Release 128 18.14. Dispute Resolution 129 18.15. Allowability of Costs 129 SECTION 19 DEFAULT 130 19.1. Default of DB Contractor 130 19.2. Remedies 132 19.3. Right to Stop Work for Failure by RCTC to Make Undisputed Payment 135 19.4. Event of Default Due Solely to DB Contractor's Failure to Achieve Completion Deadlines 135 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 iv Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 20 LIQUIDATED DAMAGES AND LANE CLOSURE CHARGES 137 20.1 Liquidated Damages for Delay in Completion 137 20.2. Lane Closure Charges for Lane Closures on State Route 91 and Interstate 15 138 20.3. Liquidated Damages for Failure to Comply with Requests for Lane Closures of General Purpose Lanes 139 20.4. Liquidated Damages for DB Contractor's Failure to Timely Cancel BNSF Flagging Services 140 20.5. Liquidated Damages for Unavailability of Key Personnel 140 20.6. Pavement Adjustments; Liquidated Damages for Net Negative Pavement Adjustments 140 20.7. Payment; Offset; Reduction; Waiver; Non -Exclusive Remedy 141 SECTION 21 LIMITATION OF DB CONTRACTOR'S LIABILITY 143 21.1. Limitation of Liability 143 21.2. Consequential Damages 143 SECTION 22 INDEMNIFICATION 145 22.1 Indemnifications by DB Contractor 145 22.2. Defense and Indemnification Procedures 147 22.3. Responsibility of RCTC for Certain Hazardous Materials 150 22.4. No Effect on Other Rights 150 22.5. CERCLA Agreement 150 SECTION 23 PARTNERING AND DISPUTE RESOLUTION 152 23.1. Partnering; Informal Process and mediation for Resolution of Claims 152 23.2. Commencement of Dispute Resolution Process 153 23.3. Disputes Review Board 156 23.4. Resolution of Disputes Exceeding $375,000 by Disputes Review Board 159 23.5. Resolution of Disputes Exceeding $375,000 by Judicial Reference 160 23.6. Resolution of Disputes Involving $375,000 or Less by Arbitration 161 23.7. Cooperation 162 23.8. Costs 162 23.9. Provisional Remedies 163 23.10. Continuing Performance 163 23.11. Participation in Proceedings; Joinder 163 23.12. Effect on Surety and Guarantor 163 23.13. Emergency Dispute Resolution 163 23.14. Time Limitation 164 23.15. Timely Payment of Undisputed Amounts of any Claim 164 SECTION 24 ACCEPTANCE 165 24.1. Coordination of Work with TSP 165 24.2. Project Completion 168 24.3. Final Acceptance 168 Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project v Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 24.4. Opening Sections of Project to Traffic 170 24.5. Expiration of Plant Establishment Period 170 SECTION 25 DOCUMENTS AND RECORDS 171 25.1. Escrowed Proposal Documents 171 25.2. Subcontractor Pricing Documents 173 25.3. Financial Reporting Requirements 173 25.4. Maintenance of, Access to and Audit of Records 174 25.5. Retention of Records 177 25.6. Public Records Act 178 25.7. Ownership of Documents 179 25.8. Intellectual Property 179 SECTION 26 VALUE ENGINEERING 181 26.1. General 181 26.2. Value Engineering Recommendation 181 26.3. Information to be Provided 181 26.4. Review by RCTC 182 26.5. Approval of VECPs 182 26.6. Contract Price Adjustment 183 26.7. Use of VECPs by RCTC 184 26.8. Public Records Act Exclusion 184 SECTION 27 MISCELLANEOUS PROVISIONS 185 27.1. Amendments 185 27.2. Waiver 185 27.3. Independent Contractor 185 27.4. Successors and Assigns 186 27.5. Designation of Representatives; Cooperation with Representatives 187 27.6. Gratuities and Conflicts of Interest 188 27.7. Survival 188 27.8. Limitation on Third Party Beneficiaries 188 27.9. Tort Liability, Personal Liability of RCTC Employees 189 27.10. Governing Law; Venue 189 27.11. Notices and Communications 189 27.12. Taxes 191 27.13. Further Assurances 191 27.14. Severability 191 27.15. Headings 191 27.16. Entire Agreement 191 27.17. Counterparts 191 27.18. Costs 192 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 vi Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 ADDENDUM 194 EXHIBIT 1 ABBREVIATIONS AND DEFINITIONS 1 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 vii Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 Design -Build Contract -Specific DBE Requirements Exhibit 6 Listed Subcontractors Exhibit 7 Subcontractor Identification Form Exhibit 8 Bonds Exhibit 9 Invoice and Invoice Certificate Exhibit 10 NTP1 and NTP2 Payment Schedules Exhibit 11 Disputes Review Board Agreement Exhibit 12 Insurance Policy Requirements Exhibit 13 Proposal Commitments Exhibit 14 Federal Requirements Exhibit 15 Form of Guaranty Exhibit 16 Labor Code Requirements Exhibit 17 Maximum Payment Schedule Exhibit 18 Form of DB Contractor Change Request Exhibit 19 General Purpose Lane Closure Charges Exhibit 20 1-15 Express Lane Closure Charges Exhibit 21 SR-91 Express Lane Closure Charges Exhibit 22 Form of Acknowledgement and Consent to Assignment Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 viii Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 DESIGN -BUILD CONTRACT INTERSTATE 15 (1-15) EXPRESS LANES PROJECT 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 Skanska- Ames 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 and the following facts: A. RCTC, in cooperation with the Department, wishes to develop one to two tolled express lanes in each direction generally between the 1-15 / Cajalco Road interchange and the 1-15 / State Route 60 interchange through the cities of Corona, Norco, Eastvale, Jurupa Valley, and portions of unincorporated Riverside County (the "1-15 Express Lanes"), otherwise known as the I- 15 Express Lanes Project (the "1-15 Express Lanes Project") through this Contract. B. Under this Contract, DB Contractor shall design and build the civil infrastructure for the 1-15 Express Lanes Project (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 1-15 Express Lanes 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). E. On June 27, 2016, RCTC's Commission authorized RCTC staff to issue a Request for Proposals (as subsequently amended by addenda, the "RFP") to three 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 August 1, 2016, RCTC issued the RFP to the short-listed proposers. 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 April , 2017, RCTC's Commission accepted the recommendation of the Executive Director of RCTC and the RFP evaluation committee to award this Contract to DB Contractor. I. 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 1 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 commencement of revenue operations. NOW, THEREFORE, in consideration of the sums to be paid to DB Contractor by RCTC, the foregoing premises and the covenants and agreements set forth in this Contract, the Parties agree as follows: Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 2 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 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)); (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). (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 in 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 but only to the extent that DB Contractor specifically identifies the conflicts to RCTC and RCTC approves such Deviations by Notice to DB Contractor. 1.2.2. Except as set out in Sections 1.5.2 and 1.10 or otherwise as directed by RCTC, in its sole discretion, any provisions 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). Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 3 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 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. Incorporation into this Contract of any part of the Proposal (including the Proposal Commitments in Exhibit 13) 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. Except as set out in Sections 1.5.2 and 1.10 or otherwise expressly stated in this Contract, if (a) the conflict, ambiguity or inconsistency conflict or Error cannot be reconciled by applying the applicable rules 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 hereby 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 constructions 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; Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 4 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (d) RCTC is not liable for any Losses suffered by any DB-Related Entity in connection with the Reference Documents, including or reliance on the Reference Documents; (e) To the extent DB Contractor or anyone on DB Contractor's behalf uses the Reference Documents in any way, such use is made on the basis that DB Contractor, not RCTC, has approved 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 the Department (as applicable). 1.4.2. RCTC owes 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 to review, comment on, approve, disapprove, monitor, inspect, test, accept, or carry out any other act or omission of RCTC 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; (b) Prejudice RCTC'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 be relied upon by DB Contractor in determining whether DB Contractor has satisfied the requirements of this Contract; or (d) Be asserted against RCTC by DB Contractor as a defense, legal or equitable, to DB Contractor's obligation to satisfy the requirements of this Contract. 1.4.4. Notwithstanding the provisions of Section 1.4.1 through 1.4.3, (a) DB Contractor may rely on Notices RCTC gives under this Contract, (b) RCTC is not relieved from any liability in connection with a material misrepresentation under any written statement RCTC Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 5 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 knowingly and intentionally delivers, and (c) RCTC is not relieved from its obligations under this Contract. 1.5. Integration of Department Standard Specifications into Contract 1.5.1. The Parties acknowledge and agree that the Department Standard Specifications dated 2015, published by Department, is 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 1.5 and otherwise in this Contract. The term "Department Standard Specifications" as used in this Contract s hall refer to the Standard Specifications, as so modified, and including 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 required to 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; (i) A reference to any legislation (including any orders, regulations, by- laws, ordinances, orders, codes of practice or instruments made under the relevant legislation) Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 6 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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; (1) 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 references 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) No rule of construction applies to the disadvantage of a party on the basis that the party put forward or drafted this Contract or any part; (s) Except as set forth in 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; (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; and (v) Except as set forth in Section 1.7.2, a reference to an "engineer" or "Engineer" in the Contract may mean DB Contractor's engineer 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. Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 7 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 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 If RCTC or DB Contractor is required to provide an approval, consent, or other determination under this Contract, such approvals, consents, or determinations shall not be withheld unreasonably except in cases where a different standard (such as sole discretion) is specified. In cases where sole discretion is specified the decision shall not be subject to dispute resolution under this Contract. In cases where good faith discretion is specified, the approval, consent or determination shall be binding, unless it is finally determined through the dispute resolution under this Contract by clear and convincing evidence that such approval, consent, determination, acceptance, decision or other action was arbitrary or capricious. 1.9. Incorporation of ATCs 1.9.1. In the event that any ATC requires additional Environmental Approvals, analysis, assessment, approvals, permits or findings prior to implementation, RCTC shall be the implementing agency under applicable Governmental Rules, and DB Contractor shall (a) be solely responsible for the cost and schedule impact of any related review, analysis, assessment, approvals, permits and findings; (b) be solely responsible for the risk that any approvals, permits or findings are not (or are not timely) granted, issued, approved or obtained; and (c) 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 the environmental review, analysis, approvals, permits or findings related to such ATC. 1.9.2. DB Contractor agrees that if any condition in Exhibit 13 has not been met as of the Effective Date, DB Contractor shall satisfy such conditions before implementing the ATC. 1.9.3. If DB Contractor is unable to obtain or maintain any required approval, fails to satisfy any such condition, fails to otherwise comply with Exhibit 13, or fails in any other way to implement the ATC, DB Contractor shall provide Notice of such event to RCTC's Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 8 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 Representative and this Contract is deemed to be amended to delete the relevant amendments set out in Exhibit 13 with respect to the applicable ATC and 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, in RCTC's sole discretion, be incorporated through the RCTC-Directed Change Notice process under Section 16.4 of this Contract. 1.10. Federal Requirements The Work will be financed in part with federal funds and is therefore su bject to federal statutes, rules, and regulations applicable to work financed with federal funds, including the requirements in Exhibit 14. 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 between any applicable federal requirements and the other requirements of this Contract, the federal requirements shall prevail. DB Contractor acknowledges that RCTC is pursuing a loan under TIFIA, the proceeds of which would be used in part to pay for the cost of the Project. In connection with the execution of a loan agreement between RCTC and the USDOT, acting by and through FHWA, RCTC may require DB Contractor and its Guarantors, as applicable, to provide RCTC and the Financing Entities with a certificate certifying as to such matters as reasonably requested by RCTC. Such certificate shall be provided promptly upon receipt of a request from RCTC and shall confirm compliance with applicable federal requirements, including the requirements in Exhibit 13, environmental laws applicable to the Project, anti -money laundering and anti -terrorism laws, anti-trust laws and laws prohibiting the embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 9 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 Skanska USA Civil West California District Inc. and Ames Construction, 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, it 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 Docume nts and has brought to RCTC's attention any Errors 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 Proposal 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 10 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 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 affects 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 i n accordance with this Contract, and who shall assume professional responsibility for the accuracy and completeness of the Design Documents, Construction Documents, and other documents prepared or checked by them. Any Subcontractor that performs environmental remediation work shall 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 large 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 org anizational 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 Govern mental 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. Riverside County Transportation Commission 1-15 Express Lanes Project 11 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 2.1.16. There is no action, suit, proceeding, investigation, or litigation pending and served on DB Contractor that challenges (i) DB Contractor's authority to execute, deliver or perform, or the validity or enforceability of, this Contract, (ii) DB Contractor's assets, properties, or operations, as they relate to the Project, or (iii) 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, organizati onal 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 ti mes 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 destructio n 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 12 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 in connection with the Project, and, to the knowledge of DB C ontractor, there are no circumstances that may prevent or interfere with full compliance in the future. 2.1.25. DB Contractor (i) is not in violation of (A) any applicable United States anti - money laundering laws, including those contained in the Bank Secrecy Act and the regulations promulgated thereunder, (B) 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 (C) any applicable United States anti -drug trafficking, anti -terrorism, or anti -corruption laws, civil or criminal; and (ii) is not a Person (1A) that is charged with, or has reason to believe that he, she or it is under investigation for, any violation of any such laws; (26) 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; (3C) 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); (4D) 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 the TIFIA loan agreement and the other related documents under any other applicable Governmental Rule; (5E) that is owned, controlled by, or affiliated with any Person identified in clause (1A), (26), (3C) or (4D) of this clause (ii); or (6F) 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 13 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 3 OBLIGATIONS OF DB CONTRACTOR; DESIGN REQUIREMENTS 3.1. Project Management Plan 3.1.1. DB Contractor is responsible for all Quality Assurance and Quality Control activities necessary to manage the Work. DB Contractor shall perform all aspects of Quality Assurance 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. 3.1.6. DB Contractor shall ensure that, the DQAM 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 CQAM shall, irrespective of his or her other responsibilities, have express authority to establish and maintain the constructi on 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 assurance 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 assurance laboratory that may affect the Work, or permit or suffer any substitution or replacement of the construction quality assurance laboratory, except with RCTC's prior written approval, in its reasonable discretion. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 14 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 3.2. Deviations 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 requested Deviations in its sole discretion. DB Contractor shall bear the burden of persuading RCTC that the Deviation sought constitutes sound and safe engineering consistent w ith 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. No Deviation shall be deemed approved or be effective unless stated in a signed Notice by RCTC's Representative. RCTC's affirmative approval Notice of any part of the Project Management Plan shall constitute: (a) approval of the 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) and (b) disapproval of any Deviations not expressly identified and labeled as Deviations in the Project Management Plan. 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. 3.3. 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. Subject to Section 1.8, if a Dispute arises regarding such performance, order or direction, the Dispute shall be resolved in accordance with Section 23. 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; Riverside County Transportation Commission Contract Number: 16-31-057-00 1-15 Express Lanes Project 15 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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; (c) Perform the Work so as to ensure: (i) The Work satisfies each of the purposes, objectives, functions, uses, and requirements set out in or reasonably inferred from the Contract; and (ii) The Work is free of Deviations unless approved by RCTC; and (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 to perform the design services required by this Contract (or other Subcontractors approved by Notice from RCTC, which approval shall not be withheld provided that RCTC shall first have 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). DB Contractor shall not shift design Work from one firm to another without the prior written approval of RCTC, in its good faith discretion. (b) 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 FHWA, Department, and other third parties as directed by RCTC. (c) 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. If failure to maintain labor harmony results in delay in completion of the Project, DB Contractor is not entitled to a time extension or increase in compensation under Section 16. 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 set forth in Section 16. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 16 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 Contra ct, an applicable Governmental Rule, or any Governmental Approval. 3.5.2. DB Contractor acknowledges and agrees that: (a) Other RCTC Contractors, including TSP, may be working at, near or otherwise present on or near the Site during performance of the Work; (b) The work of Other RCTC Contractors may 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 1-15 Express Lanes Project and other obligations under this Contract; (b) RCTC, Other RCTC Contractors, Department, FHWA, and other Governmental Entities with jurisdiction over the Work in performing oversight and conduct ing inspections during the performance of the Work and other matters relating to the Project; and 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 are included in Section 24.1. 3.5.6. If RCTC, Department, Local Agencies, BNSF, or Utility Owners award or perform 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 17 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 3.5.7. Except as set out in Section 3.5.8, 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 recours e 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 23 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. In no event shall DB Contractor have any Claim or other right to compensation, time extension, or other relief 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 18 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 sets forth the terms and procedures that govern DB Contractor's Submittals to RCTC pursuant to this Contract (inclu ding 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 Project Management Plan concerning submission, review, and approval procedures for Submittals, this Section 4 shall exclusively govern and control, except to the extent that the conflicting provision expressly states that it supersedes this Section 4. (b) Wherever in this Contract DB Contractor is required to make a Submittal to RCTC, DB Contractor shall deliver such Submittal to the individual or organization, if any, appointed by RCTC to act on its behalf. (c) Wherever in this Contract DB Contractor is required to obtain an action (e.g., review, comment, approval) from Department, FHWA, or BNSF in connection with a Submittal, 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) Whenever DB Contractor provides Department, FHWA, other Governmental Entities, Utility Owners, BNSF, TSP, or property owners with a submittal, notice, application, or other communication relating to the Project, DB Contractor shall also concurrently submit a duplicate thereof to RCTC. DB Contractor shall also provide RCTC with copies of all correspondence or communications by or between DB Contractor and Department, FHWA, other Governmental Entities, Utility Owners, BNSF, TSP or property owners relating to the Project. 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 or resubmission of a Submittal, RCTC and/or Departure nt 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) TP Section 3.2.2; For NTP1 Submittals, the time period indicated in (ii) For Design Documents, Construction Documents, and Requests for Information, the time periods indicated in TP Section 3.2.2; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 19 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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). (b) If any provision of this Contract expressly provides a longer or shorter period for RCTC and/or Department to act, such period shall control. (c) DB Contractor acknowledges that this Contract, including TP Sections 3.2.2 and 3.2.2.7, 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. (d) 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 the acts or omission of any DB - Related Entity or any DB Contractor Fault. (e) 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 approva I of other Submittals. This provision shall not apply, however, during any time described in Section 4.1.2(d). (f) Whenever RCTC and/or Department are entitled 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 may 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 and that if RCTC and/or Department does not decide or act within three (3) Business Days after receipt of DB Contractor's Notice, delay from and after such three Business Day period shall constitute an RCTC-Caused Delay (for RCTC failure to decide or act) or Department -Caused Delay (for Department failure to decide or act) for which DB Contractor may be entitled to relief under Section 16. 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 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 specifically permitted 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 20 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (c) DB Contractor shall correct 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 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, and (ii) if DB Contractor wishes to deviate from the concepts contained in the Project Schematics, it must specifically provide Notice of such proposed Deviations to RCTC and Department together with justification for the modification. DB Contractor acknowledges and agrees that 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, the design and schedule for Advance Utility Relocations, 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: (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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 21 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 14 days after receipt of any comments, the incorporation of which DB Contractor believes would render the Design Documents, Construction Documents, or any other part of this Contract erroneous, defect ive, or deficient in any respect, or would otherwise adversely affect in any manner the design or construction of the Project or the Project Schedule. No failure of DB Contractor to so notify RCTC shall 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 t his Contract. DB Contractor agrees to undertake reasonable efforts to accommodate or otherwise resolve any such comments through the review processes described in TP Section 3.2.2. The foregoing shall in no way be deemed to obligate DB Contractor to inco rporate 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 req uired 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 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 "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. The Project and Construction Manager has responsi bility 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, subject to the limitations in TP Section 1.3. DB Contractor shall deliver all Design Documents, Construction Documents, other Submittals and other documents required to Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 22 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 be submitted to RCTC pursuant to Section 4.1 to the PCM. PCM has certain responsibilities with respect to environmental mitigation requirements, as specified in TP Section 6.3.2 and TP Attachment 6-1. Further, 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. 4.4.2. The 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 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. 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 the FHWA Project of Division Interest Agreement in TP Section 2.5.2. 4.6. City of Norco DB Contractor acknowledges and agrees that, in connection with the Project, RCTC has made certain commitments to the City of Norco regarding potential impacts to the River Rails Park horse trail, which RCTC has delegated to DB Contractor under TP Section 6.4.11. 4.7. Role of Local Agencies DB Contractor acknowledges and agrees that 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 coope ration with Local Agencies. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 23 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. (b) No later than 60 days after issuance of NTP2, (i) review the TSP Infrastructure Design Document, and (ii) identify any design elements that differ materially from design elements in the TCS Infrastructure Baseline. Certain material changes in design elements may qualify as a Compensable Event under clause (d) of the definition of that term in Exhibit 1. (c) 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 24 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 5 NOTICES TO PROCEED 5.1. NTP1 5.1.1. DB Contractor shall not proceed with the Work until directed by RCT C 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. RCTC shall not issue NTP1 until the following requirements for the Work have been satisfied: (a) Satisfaction of all conditions to award in the ITP (including Section 6.1.1 of the ITP); (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. Subject to Section 5.1.5, issuance of NTP1 authorizes DB Contractor to perform the NTP1 Submittals and the NTP1 Mobilization Work, so long as DB Contractor obtains the applicable approvals and permits described in TP Sections 1.1.3 and 9.4.3 and complies with Section 6.3.3. 5.1.5. DB Contractor may not commence final design and construction of those elements of the Project subject to the RCTC NEPA/CEQA Re -Validation addressed in TP Section 6.3.5.2 until such time as RCTC has obtained Department's approval of the RCTC NEPA/CEQA Re -Validation. 5.1.6. RCTC will pay DB Contractor for Work prior to NTP2 in accordance with Sections 14.1.2(a) and 14.2.1. 5.1.7. DB Contractor's rights and remedies arising from a delay in issuance of NTP1 are set forth in Section 18.11. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 25 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 5.2. NTP2 5.2.1. DB Contractor acknowledges and agrees that: (a) RCTC has no obligation to issue NTP2; and (b) 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 in accordance with Section 5.1 where NTP1 has been issued. 5.2.2. RCTC shall not issue NTP2 until the later of (i) 90 days after issuance of NTP1, and (ii) satisfaction of the following conditions: (a) If requested by RCTC in connection with any financing of the 1-15 Express Lanes Project, DB Contractor has submitted to RCTC any certificates, acknowledgements, collateral agreements, other documents and other evidence reasonably required by RCTC or the Financing Entities; Project; Schedule; (b) RCTC has closed all financing required for the 1-15 Express Lanes (c) DB Contractor has submitted to RCTC a draft of the full Baseline (d) DB Contractor has submitted to RCTC a draft of the Utility Strip Map; (e) 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; (f) DB Contractor has delivered to RCTC the NTP2 Performance Bond and NTP2 Payment Bond; (g) The Guaranty of DB Contractor's obligations in accordance with this Contract in the form of Exhibit 15 remains in full force and effect; (h) RCTC has approved, in writing, any changes in Key Personnel, in accordance with Section 9.6.1; (i) 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; a) DB Contractor has provided RCTC office space available for occupancy at the Co -Located Office, in accordance with TP Section 2.2.1; and (k) DB Contractor has provided to RCTC any other documents or assurances required by this Contract as a condition of NTP2. 5.2.3. Subject to Section 5.2.4, issuance of NTP2 authorizes DB Contractor to perform all other Work and activities for the Project. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 26 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 5.2.4. DB Contractor may not commence final design and construction of those elements of the Project subject to the RCTC NEPA/CEQA Re -Validation addressed in TP Section 6.3.5.2 until such time as RCTC has obtained Department's approval of the RCTC NEPA/CEQA Re -Validation. 5.2.5. DB Contractor's rights and remedies arising from a delay in issuance of NTP2 are set forth in Sections 14.1.3 and 18.12. 5.2.6. 6.2.3. RCTC will pay DB Contractor for NTP2 Work in accordance with Section Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 27 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. DB Contractor shall 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 shall provide such employees, materials, facilities, and equipment, and work such hours, extra shifts, overtime operations, Sundays, and holidays as necessary to achieve such Completion Deadlines, all at DB Contractor's own cost, except as otherwise specifically provided in Section 15 and Section 16 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 or (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, subject to the Maximum Payment Schedule. (e) RCTC has no obligation to accept a Project Schedule that sets fo rth Completion Deadlines that differ from the Preliminary Baseline Schedule, Post Award Baseline Schedule, or previously -approved Baseline Schedule (as applicable), as those durations may Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 28 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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) 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 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; (iv) Modify this Contract. (g) DB Contractor's failure to include in the applicable Project Schedule any element of Work required by the Contract 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. Maximum Payment Schedule (a) Subject to Section 6.2.3(b), following issuance of NTP2, RCTC shall pay DB Contractor on the basis of DB Contractor's progress. (b) DB Contractor's cumulative total progress payments (excluding mobilization payments and payments for Change Orders or Directive Letters) for Work performed after issuance of NTP2 shall not exceed the cumulative total expenditure permitted by the Maximum Payment Schedule without the prior written approval of RCTC, which approval may be withheld in RCTC's sole discretion. (c) The Maximum Payment Schedule shall be calculated based on the monthly expenditure rate in Exhibit 17. If DB Contractor and RCTC agree in writing to a different expenditure rate at any time, then such revised rate shall thereafter be applied to the Maximum Payment Schedule. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 29 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (d) The Maximum Payment Schedule shall be revised from time to time upon request by RCTC or by DB Contractor on its own initiative, as appropriate to account for any changes in the Contract Price as evidenced by Change Orders and/or amendments. 6.3. Conditions to Design Work Review and Payment 6.3.1. Except as provided in Section 6.3.3, RCTC shall have no obligation to commence its review of, or pay DB Contractor for, any Design Documents until RCTC (a) issues NTP2, and (b) receives and approves: (i) the Quality Management Plan (general requirements and professional services), (ii) the Submittal Schedule; (iii) a Schedule of Values for the post- NTP2 design Work; and (iv) the final DBE Performance Plan. 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. 6.3.3. Notwithstanding Section 6.3.2, DB Contractor may submit to RCTC Design Documents and other related Submittals for the Santa Ana River Bridge any time after issuance of NTP1 provided DB Contractor also submits to RCTC a draft DQMP prior to, or together with, its first Submittal of Design Documents for the Santa Ana River Bridge. RCTC shall have no obligation to pay for any such design Work unless and until the conditions in Section 6.3.1 are satisfied. 6.4. Conditions to Commencement of Construction 6.4.1. Construction Work Generally (a) Except with the prior written approval of RCTC, which approval RCTC may provide in its sole discretion, 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 30 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (vii) RCTC and Department have approved all Release for Construction Packages and Construction Documents for the applicable portion of the Project; (viii) Each Performance Bond and Payment Bond required under Sections 10.1.1 or 10.1.2 has 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 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. (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. 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 31 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 8.7.5, 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 (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 item is delayed for a period that exceeds the lesser of (a) 30 days in the aggregate, or (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 sha II 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. Within five B usiness 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. 6.5.3. If DB Contractor fails to provide RCTC with an acceptable Recovery Schedule within 30 days after DB Contractor's receipt of Notice to do so, RCTC may withhold up to 50% from each progress payment owing to DB Contractor thereafter until DB Contractor prepares and RCTC 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 time extension or increase in the Contract Price or other compensation under this Contract. 6.5.4. 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 32 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 (b) 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. 7.2.2. DB Contractor shall comply with all safety requirements of this Contract, the RCTC-approved Health and Safety Plan, and all such requirements and er applicable Governmental Rules and Government Approvals (as applicable). 7.2.3. If, in the sole discretion of RCTC, the 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, the PCM, and Department. 7.2.4. If the Work or any portion of it is suspended by RCTC, the PCM, Department or any other Governmental Entity because of an unsafe condition, such suspension shall be treated in accordance with Section 17.2.1(a). 7.3. Obligation to Minimize Impacts DB Contractor shall undertake the Work in a manner that will minimize the effect on surrounding property and the public to the maximum extent practicable. 7.4. Oversight, Inspection and Testing 7.4.1. DB Contractor Inspection and Testing DB Contractor shall perform the inspection, sampling, testing, Quality Control and Quality Assurance necessary to comply with this Contract. 7.4.2. Oversight, Inspection and Testing by RCTC and Others (a) DB Contractor shall at all times permit RCTC, Department, the 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) ca rry out Department's Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 33 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 inspection and other rights under the Department Cooperative Agreement and California Streets and Highways Code section 91.2, and (c) verify DB Contractor's compliance with this Contract and Project Management Plan. (b) RCTC shall perform activities under this Section 7.4.2 in compliance with DB Contractor's reasonable safety procedures and in a manner intended to minimize interference with the Project. (c) 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. (d) 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 be required to 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. (e) 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. (f) DB Contractor shall cause its representatives to be available at all reasonable times for consultation with RCTC and Department. (g) Without limiting the foregoing, DB Contractor shall afford RCTC, the 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 25.4. 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. (h) 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. (i) DB Contractor shall bear all of its costs of such inspections, tests or approvals unless otherwise provided in this Contract. 7.4.3. Obligation to Uncover Finished Work Before covering any part of the Work, DB Contractor shall provide Notice to RCTC and Department, and offer RCTC and Department a full and adequate opportunity to inspect and test such part of the Work before it is covered. 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. After examination by RCTC, the PCM, and an y Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 34 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 other Persons designated by RCTC, DB Contractor shall rebuild, repair, or replace the Work to the standard required by this Contract. If the Work exposed or examined is not in accordance with this Contract, then uncovering, removing and restoring the Work and 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 examination. Furthermore, any Work done or materials used without adequate Notice to and opportunity for prior inspection by RCTC and Department (if applicable) or without inspection in accordance with the TPs 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 acceptable and in compliance after uncovering. 7.4.4. Progress Meetings DB Contractor shall arrange and conduct regular meetings with RCTC, and other Persons as set forth 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. 7.4.5. Nonconformances and Correction of Work (a) At any time prior to Substantial Completion and within a reasonable period after RCTC has Actual Knowledge of any Nonconformance, RCTC may give DB Contractor Notice of the Nonconformance. If RCTC fails to p rovide Notice within a reasonable period after obtaining Actual Knowledge of the Nonconformance, such failure shall not constitute a waiver of RCTC's rights under this Section 7.4.5. In the event of such a failure, however, DB Contractor shall not be responsible for the increase in Cost, if any, directly and solely resulting from RCTC's failure to provide timely Notice of the Nonconformance. (b) If DB Contractor has Actual Knowledge of any Nonconformance or has received notice of any Nonconformance from RCTC under Section 7.4.5(a), DB Contractor shall promptly: (i) Subject to Section 7.4.5(b)(i)1, remedy such Nonconformance and any damage to the TSP Work or property of third parties to the extent caused by such Nonconformance in order to return the same to its condition existing immediately prior to the damage or Nonconformance within 10 Business Days; 1. If DB Contractor considers it is not possible to remedy the Nonconformance within 10 Business Days, submit a written plan to RCTC for approval, in its sole discretion, identifying DB Contractor's process for remedying the Nonconformance and the proposed timeframe for remedying the Nonconformance and remedy the Nonconformance within the time period for remedy approved in such plan; and 2. Take all action necessary to prevent similar Nonconformances from occurring in the future; and (ii) Perform such tests as RCTC may require to remedy a Nonconformance. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 35 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 7.4.6. 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: (i) DB Contractor receives from, or delivers to, RCTC Notice of the Nonconformance and fails to correct the Nonconformance within 10 Business Days after receipt or delivery (as applicable) of the Notice; or (ii) Where the Nonconformance cannot be corrected within 10 Business Days, DB Contractor fails to (1) provide to RCTC, within such 10 Business Day period, a plan to correct the Nonconformance that is approved by RCTC under Section 7.4.5(b)(i)1, (2) commence the corrective Work within such 10 Business Day period, and (3) diligently prosecute the corrective Work in accordance with the RCTC-approved plan. (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. 7.4.7. 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 corrected, RCTC shall be entitled to reimbursement of a portion of the Contract Price in an amount equal to the greater of: (a) the amount deemed appropriate by RCTC and Department to provide compe nsation for future revenue impacts and maintenance and/or other Costs relating to the Nonconformance; or (b) 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. Payment, reimbursement or deduction of the amounts owing to RCTC under this Section 7.4.7 shall be a condition precedent to the acceptance of the applicable Nonconformances. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 36 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 DB Contractor (and not RCTC) shall secure access through the applicable property owner; 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 in, 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). Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 37 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (g) 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. (h) 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 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. (i) 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. 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. 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), tha t: (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, in its sole discretion, agree to do so following receipt of request from DB Contractor. (b) The process for acquisitions of Additional Properties by RCTC in TP Section 9.4. (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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 38 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (ii) the cost of condemnation proceedings required by ROTC 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 (Cal. Gov. Code sections 7260 et. seq.), the Uniform Act, and RCTC and Department policies. If RCTC incurs any such Costs on DB Contractor's behalf, ROTC 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 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 26; (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 26. (g) Except as set out in Section 8.1.3(f), in the event that the acquisition of Additional Properties necessitates New Approvals or additional Governmental Approvals, DB Contractor shall: (i) be solely 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 New Approvals or 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 New Approvals or additional Governmental Approvals related to such Additional Properties. (h) 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 39 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. Cod e section 7260 et seq.), the Uniform Act, and 23 CFR Part 710. (c) Additional requirements regarding early access are set forth 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. 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, consideration shall be given to using retaining walls or making other engineering adjustments as an alternative to acquisition of Additional Properties. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 40 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 g ranted 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) Upon execution, RCTC shall deliver to DB Contractor the final BNSF Construction & Maintenance Agreement(s) to be entered into by and among BNSF, RCTC, and Department. (b) 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). (c) RCTC will pay the cost of BNSF flagging services required for DB Contractor to perform Work within BNSF property, but only during the 240-day window, and subject to certain other limitations in TP Section 8.4.2. (d) DB Contractor shall provide Notice to RCTC requesting BNSF flagging services at least 30 days before the date and time flagging services are required. (e) For costs in connection with BNSF flaggers required at all other times beyond the period 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 20.4. (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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 41 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 inform ation 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 8.12 as being the responsibility of RCTC. 8.1.8. Available Properties for Temporary Work (a) In addition to provision of 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 extend past Project 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 parce I in the Project Schedule; provided such date is no earlier than March, 2017. RCTC is not obligated to 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) 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 42 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 8.2. Access to Santa Ana River DB Contractor shall not access the Santa Ana River and surrounding areas shown in TP Attachment 6-7 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; (c) Except with respect to Limited SAR Work, 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 Norco encroachment permit, necessary for DB Contractor to comply with the requirements of TP Section 6, or that otherwise apply to the Work to be performed in the Santa Ana River and surrounding areas shown in TP Attachment 6-7; and (d) With respect to Limited SAR Work, obtains RCTC's approval of Design -Builder's proposal for Limited SAR Work under TP Section 1.4.1. 8.3. Advance Utility Relocation (a) RCTC shall complete the Advance Utility Relocation within the Site by the latest of: (i) May 1, 2018; or (ii) NTP2 plus 270 days. (b) DB Contractor shall not perform the Advance Utility Relocation, but shall schedule, coordinate, and perform the Work to accommodate and avoid conflicts with the Advance Utility Relocation. 8.4. Utility Relocations 8.4.1. Scope of DB Utility Work (a) Sections 8.4 through 8_8 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 for the Advance Utility Relocation, Relocations under Section 8.4.3, and any other efforts expressly identified as "work by others" in the Utility Maps 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 43 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (c) The DB Utility Work includes all Work associated with Relocation of Utilities and Incidental Utility Work, including (i) The Work described in Sections 8.4 through 8_8 and TP (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 Section 7; pursuant to Section 8.6.1; (iv) Any efforts expressly identified as "work by others" (including Utility Owners and RCTC) in the Utility Maps or Utility Agreements that Section 8 or TP Section 7 expressly identifies as the responsibility of DB Contractor. (d) TP Section 7 expressly states that such efforts and costs are excluded from the DB Utility Work. (e) The DB Utility Work does not include: (i) Advance Utility Relocations; (ii) 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); (iii) Except as set out in Section 8.4.1(c)(iv), any efforts expressly identified as "work by others" (including Utility Owners and RCTC) in the Utility Maps or Utility Agreements; (iv) 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); (v) 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); (vi) 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 (vii) Relocations under Section 8.4.3. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 44 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (f) Relocations in addition to the Advance Utility Relocation 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 Relocations may involve modification of the affected Utilities to provide service to the Project (i.e., they are "New Utilities"). This Section 8.4 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. 8.4.2. Agreements with Utilities (a) RCTC and AT&T have entered into a Utility Agreement (included in Reference Documents) for the Advance Utility Relocation. (b) 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). (c) 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. (d) Subject only to DB Contactor's entitlement, if any, to a Change Order under Section 16.11, 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. (e) 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 Owner's, 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 45 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 8.4.3. 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 set forth under the applicable Utility Agreement. (b) For purposes of this Section 8.4.3 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. 8.4.4. 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 i s required to reimburse the Utility Owner for such work. 8.4.5. Work Not Assigned to DB Contractor in a Utility Agreement 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 8.7 shall apply. 8.4.6. 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 (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 8.4.6(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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 46 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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). 8.5. Accuracy of RCTC-Supplied Information Concerning Existing Utilities 8.5.1. 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 16.11. 8.5.2. All Other Utilities DB Contractor acknowledges that: (a) Except as expressly provided in Section 16.11 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; and (b) The information with respect to Utilities described in Section 8.5.2(a) 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 (c) 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 16.11. 8.5.3. 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 Section 16.11 with respect to Main or Trunkline Utilities. DB Contractor acknowledges and agrees that the provisions of Section 16.11 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 8.5.3(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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 47 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (ii) The acknowledgements, waivers and agreements in Section 8.5.3(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. 8.5.4. 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 accorda nce with Section 6.4.2(a), then DB Contractor shall 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. Without limiting Section 14.3.2, DB Contractor shall pay any amount under Section 8.5.4 to RCTC within ten 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. 8.5.5. Changes by DB Contractor (a) For purposes of this Section 8.5.5, a Project design change that impacts Relocations is a change in Project plans that requires (i) Relocation of a Utility that was not listed on the Preliminary Utility Matrix; or (ii) Relocation of a Utility that was already Adjusted pursuant to the Advance Utility Relocation. (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 8.8; 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: 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 48 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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, including costs associated with Advance Utility Relocations or need for Relocation of any Utility that was already Relocated under an Advance Utility Relocation), 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 8.5.5 shall not apply to any changes in design made to accommodate any change in Utility Standards or Change in Law. 8.6. Utility Enhancements 8.6.1. DB Contractor acknowledges and agrees that: (a) DB Contractor shall address any requests by Utility Owners that DB Contractor design and/or construct a Betterment or Utility Owner Project (collectively, "Utility Enhancement") including design and/or construction of Utility Enhancements; (b) Any Betterment performed as part of a Utility Relocation, whether by DB Contractor or by the Utility Owner, is subject to the same standards and requirements as if it were a necessary Relocation, and shall be addressed in an applicable Utility Agreement; and (c) Subject to Section 8.6.2, DB Contractor shall perform any work on a Utility Owner Project only by separate contract outside of the Work. 8.6.2. DB Contractor shall not: (a) Proceed with any Utility Enhancement 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, in each case, as determined by RCTC, in its good faith discretion; or (b) Be entitled to any adjustment to the Contract Price or time extension under this Contract as the result of any Utility Enhancement, whether performed by DB Contractor or by the Utility Owner except where such Utility Enhancement expressly constitutes a Delay Event. 8.6.3. DB Contractor shall provide RCTC with such information, analyses, and certificates as RCTC may request in order to determine compliance with this Section 8.6. 8.7. Failure of Utility Owners to Cooperate 8.7.1. DB Contractor shall make diligent efforts to obtain the cooperation of each Utility Owner as necessary for the Project. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 49 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 8.7.2. 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. 8.7.3. After giving Notice in accordance with Section 8.7.2, 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; (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. 8.7.4. Following RCTC's receipt of satisfactory evidence and information under Section 8.7.3(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 8.12.1(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. 8.7.5. 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 that the Utility Owner will be unable to timely complete such work, then RCTC may, in its sole discretion and 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 8.7.5, then the provisions of Section 8.4.5 shall apply. 8.7.6. 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 8.7.5. DB Contractor shall provide Notice to RCTC within two Bus iness Days after discovery of such potential delay. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 50 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 8.8. Avoiding Relocations and Minimizing RCTC Costs 8.8.1. 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 b een advised of RCTC's 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. 8.8.2. Subject to Section 8.8.1, 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 pursuan t to this Contract and avoiding Relocation of any Utility that was already Adjusted pursuant to an Advance Utility Relocation. 8.8.3. 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 8.8 (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 8.8 (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. 8.8.4. 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. 8.8.5. Coordination Costs DB Contractor is not entitled to any increase in the Contract Price for any costs of coordinating with Utility Owners. 8.8.6. 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. 8.8.7. 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 time extension or Contract Price increase 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 51 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 8.8.8. 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 8.4 through 8_8 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). 8.9. Process to Follow Upon Discovery of Certain Site Conditions 8.9.1. 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; 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 8.10 will apply. (b) DB Contractor's Notice under Section 8.9.1(a)(i) shall: (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, DB Contractor shall provide RCTC and Department with 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. 8.9.2. RCTC Response (a) Upon receipt of Notice under Section 8.9.1(a)(i), RCTC will: (i) View the location and conduct such further investigation as RCTC deems appropriate; and Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 52 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (ii) Use reasonable efforts to provide Notice to DB Contractor within three Business Days of receiving Notice under Section 8.9.1(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 8.10.3. (b) If Hazardous Materials or Contaminated Groundwater is involved, RCTC's Notice under Section 8.9.2(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 this Section 8.9.1. (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 recomm encing 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. 8.10. Hazardous Materials Management 8.10.1. Procedures and Compensation for Hazardous Materials Management (a) Except for Hazardous Materials Management with respect to HM-1 undertaken by Department under Section 8.10.3, 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 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 8.10.3, 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- Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 53 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 8.10.2. Hazardous Materials Generator (a) Subject to Section 8.10.2(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 8.10.2(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 Materia Is Management undertaken by Department under Section 8.10.3. DB Contractor may list RCTC as the "generator" under applicable Governmental Rules of materials covered under Section 8.10.2(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 will have exclusive approval authority regarding selection of such destination facilities. (d) This Section 8.10.2 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 8.10.2(a)(i) or 8.10.2(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 22.1.1(q). 8.10.3. 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 8.9.2 will apply as if RCTC had received a Notice from DB Contractor under Section 8.9.1(a)(i). (b) Upon receipt of the Notice under Section 8.9.1(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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 54 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 8.10.4. 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. 8.10.5. 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 set forth in Section 16. 8.11. Environmental Compliance, Mitigation, and Approval Requirements 8.11.1. 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; (c) Abide by and comply with the commitments contained in subsequent re-evaluations, re -validations, and modifications of Environmental Approvals. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 55 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 8.11.2. 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. 8.11.3. 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 8.12 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 8.11. (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 6.3.2.1. DB Contractor acknowledges and agrees that the 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. No Change Order shall be allowed in connection with any update or revision to the Environmental Management Plan except that (a) Chang e Orders shall be issued for additional Work resulting from New Approvals which are RCTC's responsibility as specified in Section 8.12.3(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. 8.12. Approvals 8.12.1. 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 8.11 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 56 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 57 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 8.12.2. RCTC-Provided Approvals (a) The RCTC NEPA/CEQA Re-Validation(s) are the only RCTC- Provided Approvals RCTC has not obtained as of the Proposal Date. (b) 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 6.3.1 and TP Attachment 6-1. (c) RCTC shall coordinate with Department to obtain Department's approval of the RCTC NEPA/CEQA Re -Validation. DB Contractor shall assist RCTC in obtaining this approval, including providing information requested by RCTC and participating in meetings regarding this approval or any amendments to this approval. (d) Any applicable mitigation requirements and/or conditions in the final, Department -approved RCTC NEPA/CEQA Re -Validation provided to DB Contractor after the Proposal Date will be added to the Technical Provisions and become part of this Contract. (e) If DB Contractor believes the final, Department -approved RCTC NEPA/CEQA Re -Validation results in a material modification of DB Contractor's obligations under this Contract, DB Contractor may submit a DB Contractor Change Request in accordance with Section 16.5; except that DB Contractor shall have 20 Business Days to deliver the DB Contractor Change Request in lieu of the ten Business Days allowed in Section 16.5. (f) As of the Effective Date, certain elements of the Project are undergoing National Environmental Policy Act/California Environmental Quality Act environmental review by RCTC and Department. At this time, the proposed changes sought in the RCTC NEPA/CEQA Re -Validation remain in the environmental process and it is possible that the Project scope may be modified through this environmental revalidation process. DB Contractor may not commence final design and construction of those elements of the Project that are subject to the RCTC NEPA/CEQA Re -Validation until such time as RCTC has obtained Department's approval of the RCTC NEPA/CEQA Re -Validation. 8.12.3. New Approvals (a) Approvals To Be Obtained at RCTC's Expense 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. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 58 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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) New Approvals To Be Obtained at DB Contractor's Expense If a New Approval becomes necessary for any reason other than those specified in Section 8.12.3(a), DB Contractor shall be fully responsible for the cost and delay of obtaining the New Approval and any other Environmental Approvals that ma y be necessary, and for all requirements and delays resulting therefrom, as well as for any litigation arising in connection therewith. If DB Contractor wishes to adopt any design or construction approach that would require a revision, modification or amendment to an RCTC-Provided 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. 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 26. 8.12.4. 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 Co ntractor shall obtain and provide to RCTC such Governmental Approvals before commencing any construction activity within the feature(s). DB Contractor is responsible for all costs of pursuing, obtaining, and complying with all such Governmental Approvals and any others which may be necessary, and is not entitled to any time extension for delays encountered in obtaining these approvals, except as specified in Section 8.12.3(a). 8.12.5. Major Approvals DB Contractor shall obtain and maintain all Major Approvals, even though such approvals must formally be issued in RCTC's name. 8.13. Cooperation with Local Agencies 8.13.1. Compliance with Local Agency Requirements 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. 8.13.2. 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 59 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 9 SUBCONTRACTORS AND LABOR 9.1. Disadvantaged Business Enterprise (DBE) Program This Contract is subject to the federal Disadvantaged Business Enterprise (DBE) program requirements found at 49 CFR Part 26 (the "DBE Regulations"). For this reason, RCTC has adopted Department's "Disadvantaged Business Enterprise Policy" and has specified DBE requirements applicable to this Project in Exhibit 5. The purpose of the federal DBE program is to create a level playing field on which DBEs can compete fairly for contracts and subcontracts on the Project. The DBE Regulations are incorporated by reference as part of RCTC's Design - Build Contract Specific DBE Requirements for the Project. 9.1.1. Compliance DB Contractor shall comply with (a) the Design -Build Contract Specific DBE Requirements in Exhibit 5 and (b) DB Contractor's DBE Performance Plan, as approved by RCTC. In the event of any conflicts or inconsistencies between the DBE Regulations and the Design -Build Contract Specific DBE Requirements for the Project ( Exhibit 5), the DBE Regulations shall prevail. 9.1.2. DBE Participation — DBE Goal RCTC has established a 10.0% DBE goal for the Project, which represents the level of DBE participation, DB Contractor shall commit to meeting on the Project. RCTC will maintain oversight of DB Contractor's activities, including those identified within the RCTC-approved DBE Performance Plan, to ensure full compliance with the DBE requirements. 9.1.3. DB Contractor Reporting Requirements (a) In accordance with Section D(8) of Exhibit 5, DB Contractor shall develop reporting formats, in a form acceptable to RCTC, to effectively provide updates to all DBE Performance Plan elements on a monthly basis. (b) DB Contractor shall submit a monthly report to RCTC no later than the 10th day of each month until Final Acceptance. The format and content of the report is to be developed by DB Contractor, in accordance with the reporting requirements prescribed in the Design -Build Contract Specific DBE Requirements. (c) Failure to submit these reports by the 10th day of each month to RCTC shall result in the application of appropriate administrative sanctions, including withholding of payment to DB Contractor of two percent of the invoice amount due per month, until such time as a completed report is submitted. 9.1.4. Calculation and Crediting of DBE Participation DBE participation shall be credited and calculated in accordance with 49 CFR § 26.55. 9.1.5. DBE Program Records Management DB Contractor shall maintain and submit monthly all records substantiating the progress of DBE participation regardless of tier and demonstrating compliance with the Design -Build Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 60 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 Contract Specific DBE Requirements for DBE prompt payment and payment of retainage, and such documentation, including copies of cancelled checks issued, unconditional waivers, and progress payment releases shall be made available for inspection upon request by RCTC. 9.1.6. DBE Frauds and Fronts Only legitimate DBEs are eligible to participate in federally funded contracts. Therefore, DB Contractor shall not knowingly and willfully use "fronts" to attain DBE partic ipation for the Project. The use of "fronts" and "pass -through" Subcontracts to non -DBE firms constitute criminal violations. Further, any indication of fraud, waste, abuse, or mismanagement of federal funds should be immediately reported to the Office of Inspector General, U.S. Department of Transportation, at the toll -free Fraud, Waste and Abuse Hotline, 800-424-9071. 9.2. Subcontracts 9.2.1. 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 amend or terminate any Major Subcontract or 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, with good faith efforts to provide Notice of such intended termination to RCTC in advance. 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 9.2.2. (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. 9.2.2. 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 (a) Subcontracts with Listed Subcontractors, and (b) Subcontracts with Affiliates. (a) DB Contractor shall (a) provide public notice of the availability of work to be subcontracted in accordance with the publication requirements applicable to the Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 61 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 competitive bidding process of RCTC; and (b) 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 and undertake good faith efforts to obtain participation by DBE firms. 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 of the identity of each Subcontractor selected and, upon RCTC's request, provide the solicitation and evaluation materials and results. (d) If any Subcontractor is an Affiliate, DB Contractor shall require such Affiliate to follow the procedures under this Section 9.2.2 in connection with lower tier Subcontracts for construction Work and shall comply with Section 9.2.5. 9.2.3. Substitution of Subcontractors DB Contractor may not make any substitution of: (a) Identified DBE Subcontractors (whether identified in the Proposal, DBE Performance Plan, or at a later date) without approval from RCTC, in which case DB Contactor shall substitute the DBE Subcontractor with another DBE Subcontractor. Commitments made within DB Contractor's DBE Performance Plan are to be considered solidified commitments and require RCTC's approval prior to any change made by DB Contractor regarding the allocated scope and/or value committed of any DBE Subcontractor. (b) Any Listed Subcontractor or Subcontractor selected pursuant to Section 9.2.2 except in accordance with the provisions of the Subletting and Subcontracting Fair Practices Act, Public Contract Code sections 4100 et seq. 9.2.4. 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 62 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 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, including the applicable requirements of the DBE Performance Plan, and to be joined in any dispute resolution proceeding pursuant to Section 23 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) 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; (4) 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; (5) provision prohibiting assignment of the Subcontract by the Subcontractor without DB Contractor's prior written consent; (6) provisions implementing the requirements of Section 25.2, and (7) copies of Labor Code sections 1771, 1775, 1776, 1777.5, 1813, and 1815; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 63 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (x) For Major Subcontracts: (i) be terminable only for cause, unless RCTC exercises a Termination for Convenience under this Contract pursuant to 18.1, in which case DB Contractor may terminate the Subcontractor for convenience in accordance with Section 9.2.4(a)(xii); (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; (xi) 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 clause (xi) 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; (xii) 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; (xiii) 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; (xiv) Include the prompt payment requirements in this Section 14.7.1 and require the Subcontractor to make payments to sub -subcontractors and Suppliers in a similar manner; (xv) Include provisions consistent with Pub. Cont. Code § 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 (xvi) 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; and Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 64 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (xvii) Define this Contract as the "Contract," Subcontractor as "Subcontractor," DB Contractor as "DB Contractor" and that part of the work under such Subcontract as the "Work" for purposes of references to this Contract therein. (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. 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 Subcontracts with DBEs 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 25.1. (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. 9.2.5. Subcontracts with Affiliates (a) DB Contractor may have Work and services performed by Affiliates only under the following terms and conditions: (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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 65 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 9.2.6. 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 Sections 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). 9.3. Equal Employment Opportunity 9.3.1. 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. DB Contractor shall carry out, and shall cause the Subcontractors to carry out, applicable requirements of 49 CFR Part 26. F ailure 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 set forth in this Contract). 9.3.2. DB Contractor shall include Section 9.3.1 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. 9.3.3. 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 (Exhibit 3), and in Exhibits 14 and 16, and shall require its Subcontractors to comply with such provisions. 9.4. Labor Code Requirements 9.4.1. 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. 9.4.2. 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, 14 and 16. 9.4.3. 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) and Federal (Code of Federal Regulations 29) prevailing wage statutes and regulations. Accordingly, the Project is subject to the requirements of DIR's compliance Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 66 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 9.4.4. Refer to Section 7-1.02K(3) of the Modified Standard Specifications (Exhibit 3) and Exhibit 16 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. 9.4.5. 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 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". Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 67 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 9.5. Prevailing Wages 9.5.1. 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 and all applicable federal requirements respecting prevailing wages, including those in Exhibits 2, 14 and 16. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the Director of the DIR for similar classifications of labor, DB Contractor and Subcontractors shall pay not less than the higher wage rate. The DIR will not accept lower State wage rates not specifically included in the federal minimum wage determinations. This includes "helper" (or other classifications based on hours of experience) or any other classification not appearing in the federal wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by DB Contractor and Subcontractors, DB Contractor and Subcontractors shall pay not less than the Federal minimum wage rate which most closely approximates the duties of the employees in question. 9.5.2. 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 19.1.1(q). 9.6. Key Personnel; Qualifications of Employees 9.6.1. DB Contractor shall: (a) Appoint or procure the engagement of the Key Personnel in the positions stated in Exhibit 2; (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) Deputy Project Manager; (iii) Construction Manager; (iv) Traffic Manager; and (v) Environmental Compliance 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 sole discretion, determines that such personnel are not devoting sufficient time to the prosecution and performance of the Work; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 68 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 9.6.2. RCTC may review the qualifications and character of each individual to be appointed to a Key Personnel position (including personnel employed by Subcontractors) and to 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. 9.6.3. If RCTC determines, in its good faith discretion, that any Pe rson (a) is not performing the Work in a proper, safe and skillful manner or is detrimental to the Work; or (b) poses a potential health, safety or security threat to RCTC's customers, RCTC Parties or assets; or (c) does not meet the minimum performance requirements of the Work or for that 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, in its sole discretion. 9.7. Key Personnel Liquidated Damages 9.7.1. 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 9.7.2. A further liquidated amount in accordance with Section 9.7.1 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. 9.7.3. DB Contractor agrees that any damages payable in accordance with this Section 9.7 are liquidated damages, not a penalty and are reasonable under the circumstances existing as of the Proposal Date. DB Contractor is not liable for liquidated damages under Section 9.7.1 if: (a) DB Contractor removes or replaces such person nel 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 69 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 270 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 9.7.3(a) or 9.7.3(b) or 15 Business Days from the issuance of NTP1, in the case of Section 9.7.3(c). 9.7.4. Upon approval of any Key Personnel replacement under Section 9.7.3, the new individual shall be considered a Key Personnel for all purposes under this Contract, including this Section 9.7.1. 9.8. Lobbying The certification and disclosure of lobbying activities described in Exhibit 14 shall be included in each Subcontract (including any lower -tier Subcontracts exceeding $100,000). All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by RCTC's Procurement Manager. 9.9. Federal On -the -Job Training Participation Goal This Contract is subject to Federal on-the-job training (OJT) participation provisions in the Department Local Assistance Procedures Manual, Title 23 CFR, Part 230, and FHWA Form 1273 (Exhibit 14). The Federal OJT participation goal for the Project is 48 trainees. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 70 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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, 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 (the "NTP1 Performance Bond Amount"), including a dual 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, the amount of the NTP1 Performance Bond shall increase to the amount specified in Exhibit 2 ("NTP2 Performance Bond Amount"), in accordance with the rider included in Exhibit 8-A (the "NTP2 Performance Bond"). (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 (the "NTP1 Payment Bond Amount"), including a dual 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, the amount of the NTP1 Payment Bond shall increase to the amount specified in Exhibit 2 ("NTP2 Payment Bond Amount"), in accordance with the rider included in Exhibit 8-B effecting such increase (the "NTP2 Payment Bond"). (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. 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 in its sole discretion, that guarantees performance of Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 71 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 dual obligee rider, in form and substance consistent with that in Exhibit 8-C, in favor of the Department, Utility Owners and Local Agencies (as applicable). (b) If used, the Warranty Bond shall be in an amount specified in Exhibit 2 ("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; and (iii) The statutory period for Subcontractors to file a Claim against the Warranty Bond has expired and no claims have been filed. 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 D epartment of the Treasury's Listing of Approved Sureties and 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, in its sole discretion, require a corresponding proportionate increase in the amount of any Bond, a new Bond, or alternative security to cover the Change Order Work. 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 ob ligations 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 72 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (b) DB Contractor shall periodically report to RCTC regarding the financial capacity of the Guarantor as required in Section 25.3.2(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 1-15 Express Lanes Project Contract Number: 16-31-057-00 73 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 11 INSURANCE Without limiting the indemnification obligations of DB Contractor under this Contract, DB Contractor shall purchase and continuously maintain in full force and effect the insurance coverages specified in this Section 11 and Exhibit 12. 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 shall not commence Work under this Contract or any applicable Subcontractor 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 original evidence of insurance for the required coverage, as specified under Section 11.1.8, for the applicable Work; and (c) RCTC approves such insurance. 11.1.2. Non Limitation of Insurance Requirements (a) 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 22, nor do the indemnity obligations limit the rights of the Indemnified Parties to the coverage afforded by their insured status. The Parties acknowledge and agree that: (i) 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; (ii) 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 (iii) 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 74 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. Except as set forth 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. 11.1.5. 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 provided. (c) Any self -insured retentions maintained by DB Contractor over $250,000 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 cost or 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 75 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 Indemnified Party, their directors, officers, employees, agents, or consultants shall be excess of such insurance and shall not contribute with it. (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), so long as such endorsement shall not include any limitatio n of liability of the insurer for failure to provide such Notice. (e) All endorsements that add insureds to required commercial general liability policies shall provide additional insureds with coverage for "completed operations," or a separate endorsement providing such coverage must be added to the policy. (f) Each policy shall provide coverage on an "occurrence" basis and not a "claims made" basis (with the exception of professional liability and pollution 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 the pollution liability policies. 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 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, with each such waiver written in favor of all immediately preceding, enumerated parties. Each policy, including workers' compensation, shall include by endorsement, or otherwise, a waiver of any right of subrogation against the Indemnified Parties and their respective members, directors, officers, employees, agents and consultants. 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 Warranty Period, at which time DB Contractor shall forward to RCTC all collected evidence of insurance relating to the Project, or copies thereof; (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. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 76 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 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 set forth 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 77 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. (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 22.2. 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 22.2 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 22.2. (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 exercise best efforts to 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 (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 19 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 78 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 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, including automobile liability. (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 the Final Acceptance Date 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 they preclude RCTC from taking any actions as are available to it under this Contract or otherwise at law. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 79 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 prope rty 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, m aterials, 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 the Effective Date until Revenue Service Commencement for Work comprising the TCS Infrastructure, and from the Effective Date 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 set forth 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. Subject to Section 12.2.1(d), if any such third -party owned real or other property is damaged (whether Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 80 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 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 7.4.6 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 date of Revenue Service Commencement, 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 solely within the discretion of RCTC. (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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 81 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 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, repai r 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. 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 Bonds 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 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 (a) incorporation into the Project, (b) payment by RCTC to DB Contractor of invoiced amounts pertaining to such materials, equipment, tools and supplies; or 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 82 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 13 WARRANTIES AND NONCONFORMANCES DURING THE WARRANTY PERIOD 13.1. DB Contractor Warranties 13.1.1. General Warranty The General Warranty is in addition to any express warranty provided elsewhere in this Contract. DB Contractor warrants that: (a) All design Work furnished under this Contract shall conform to Good Industry Practice; (b) The Project shall be free of Nonconformances, including design Errors, except to the extent such Errors are inherent in prescriptive specifications included in this Contract; (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) The Work shall meet all of the requirements of this Contract; and (g) The Project shall be fit for use for the purposes, objectives, functions, uses and requirements set out in or reasonably inferred from this Contract. 13.1.2. Warranty Period (a) Subject to Sections 13.1.2(b) and 13.1.2(c), the original Warranty Period for each element of the Project shall be 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 elem ent 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 83 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. For such elements, the Warranty Period shall commence upon the Termination Date and end two years after the Termination Date. 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 standards in this Section 13.1, then, subject to Section 7.4.7, DB Contractor shall perform the Warranty Work necessary to remedy such Nonconformance as specified in Section 13.1.3(2b , even if performance of such Warranty Work extends beyond the applicable Warranty Period. (b) To the extent applicable, the provisions in Sections 7.4.5,through 7.4.7, regarding notice and remedy of Nonconformances prior to Substantial Completion, shall apply to Warranty Work, except that if DB Contractor fails to remedy Nonconformances in accordance with Section 7.4.6, 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 Warranties 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 Warranties 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; (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 1-15 Express Lanes Project Contract Number: 16-31-057-00 84 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 oblig ations 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 hereby 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 foregoing Warranties 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 21.2.1, 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 the Nonconformances 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 21, 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 any defect in the Work, including the cost of performance of such obligations by others. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 85 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 14 PAYMENT FOR SERVICES 14.1. Contract Price 14.1.1. Fixed Price (a) Subject to Section 14.1.2, the complete compensation payable by RCTC to DB Contractor under this Contract is the Contract Price. (b) Except as otherwise expressly provided in Section 16, the Contract Price shall not be modified. (c) The Contract Price shall be invoiced and paid in accordance with Section 14.2. 14.1.2. NTP1 Work; Delay in Issuance of NTP2 (a) 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) $2,000,000 for performance of NTP1 Submittals, to be paid in accordance with the NTP1 Payment Schedule; plus (ii) $3,000,000 for mobilization (including NTP1 Mobilization Work) as set out in Section 14.3.5(a)11); plus (iii) Premiums for bonds and insurance associated with NTP1 Work as set forth in 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) RCTC anticipates it will issue NTP2 concurrently with the close of RCTC's financing for the Project, but may, in its sole discretion, defer issuance. If the effective date of NTP2 is more than 270 days after the Proposal Date, and only if such 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, 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 NTP2 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 86 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (i.e., the amount determined by taking the average of the index most recently published as of the date of the NTP2, the index most 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 270 days after the Proposal Date. For example, if the Proposal Date was January 10, 2017, the date for commencement of escalation would be October 8, 2017. Assuming (a) the as -proposed Contract Price (less any amounts previously earned or paid) is $100,000,000, (b) NTP2 is issued on November 1, 2017, (c) the average monthly ENR Los Angeles CCI for the 36-month period ending October 8, 2017 was 7500, and (d) the average monthly ENR Los Angeles CCI published for the 36-month period ending November 1, 2017 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 the Notice to Proceed. (d) If RCTC does not issue NTP2 on or before 15 months after the Proposal Date, the Parties may agree to terms allowing an extension in time for issuance of the NTP2 and an adjustment in the Contract Price that is mutually acceptable to both Parties. In such a case, DB Contractor shall provide evidence satisfactory to RCTC, including information required to be submitted by DB Contractor in a Change Response under Section 16.4.3, to justify the amount of any increase in the Contract Price. Only if (i) 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, and (ii) either DB Contractor does not wish to negotiate an extension or the Parties fail to reach agreement in accordance with this Section 14.1.2(d), then (iii) DB Contractor's sole remedy shall be to terminate this Contract in accordance with Section 18.11. 14.1.3. Additional Provisions Relating to Delays in NTP2 (a) Notwithstanding anything to the contrary contained in this Contract, DB Contractor shall not be entitled to an increase in the Contract Price or extension of the Completion Deadlines, nor shall DB Contractor have a right to terminate this Contract in accordance with Section 18.11, with respect to any delay in issuance of NTP2 caused in whole or in part by any act or omission of any DB-Related Entity or DB Contractor Fault. (b) Any Contract Price increase under Section 14.1.2 and this Section 14.1.3 shall be amortized proportionally over all Work at issue, and shall be evidenced by a Change Order accompanied by a revised Project Schedule and Maximum Payment Schedule. 14.2. Invoicing and Payment The following process shall apply to invoicing and payment: Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 87 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 14.2.1. NTP1 Work (a) Subject to Section 14.1.2(b), RCTC will pay DB Contractor for the NTP1 Work described in TP Section 1.1.3 the amounts in the corresponding line items for Submittals and NTP1 Mobilization Work in the NTP1 Payment Schedule ( Exhibit 10-A). In addition, RCTC will reimburse DB Contractor for bond and insurance premiums associated with the NTP1 Work in accordance with Section 14.3.6. (b) RCTC will pay DB Contractor for NTP 1 Work no more often than once monthly after NTP 1 and only based on the following: (i) For NTP 1 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; (ii) For NTP1 Mobilization Work, as set forth in Section 14.3.5; and (iii) For bond and insurance premiums for NTP1 Work, as set forth in Section 14.3.6. 14.2.2. Draft Invoice and Progress Meeting (a) On or before the 25th day of each month following the issuance of NTP1 and continuing through the last date of the Maximum Payment Schedule shown on Exhibit 17, DB Contractor shall deliver to RCTC a draft invoice and draft Invoice Certificate for that month in the form of Exhibits 9-A and 99=B, respectively, 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; (ii) The Monthly Progress Report described in TP Section 2.5.3; (iii) Any amounts otherwise payable in accordance with this Contract; (iv) An Invoice Certificate certified by DB Contractor in the form of Exhibit 9-B, signed and sealed by DB Contractor's Representative, with no additions or deletions other than those approved by RCTC; (v) In the case of amounts to be paid on a unit price basis, invoices, receipts or other evidence establishing the number of units delivered; (vi) In the case of amounts invoiced for Time and Materials Work, all supporting documentation described in Section 16.9; (vii) The amounts paid to Subcontractors (including Suppliers) from the payments made by RCTC to DB Contractor with respect to the prior month's invoice; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 88 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (viii) 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; (ix) Subcontractor payment releases shall be in the form set forth in Civil Code sections 8132 through 8138; (x) All materials, reports, certifications, and other submittals identified in Section 14.2.2 (xi) 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.); (xii) Any other Submittals that this Contract require to be included with invoice packages; (xiii) All materials, reports, schedules, certifications and other submittals identified in TP Sections 2.5.3 and 4.3.3; and (xiv) Such other 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) At each Progress Meeting, DB Contractor's and RCTC's Representatives shall ascertain the progress of the Work and verify the quantities for any unit priced Work. Each Progress Meeting shall be attended by DB Contractor and RCTC and/or its consultants and may also be attended by Department. (c) DB Contractor's and RCTC's Representatives shall review the draft invoice and draft Invoice Certificate reflecting the value of Work completed as of the date of the Progress Meeting (based on completed and approved Submittals for NTP1 Work, based on quantities and unit prices for unit priced Work, based on time and materials for Time and Materials Work and, for all other Work, based on the percentage completion of Project Schedule activities and the values distributed to such activities). Progress of design and construction management Work shall be tracked separately from other Work so as to allow calculation of Retainage. DB Contractor's and RCTC's Representatives shall sign the draft invoice, indicating the portions of it that have been approved and setting forth the proposed total payment amount, which shall be the approved value of the Work then completed, calculated in accordance with the Project Schedule, plus the value of unit priced and Time and Materials Work, less Retainage and progress payments previously made. The amounts in the draft invoice shall be used by DB Contractor in preparation of its monthly payment request described in Section 14.2.3. Invoices that cover Utility Work shall include documentation as required by TP Section 7.2.7.2, and shall separately identify the total amount due for (a) Utility Betterments and (b) any other Work for which the Utility Owner has Cost Liability. 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 in the form of Exhibit 9-A and consistent with Section 14.2.2 for the Work performed under this Contract during the immediately preceding Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 89 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 month. The form of invoice shall be modified as appropriate to account for unit priced, and for Time and Materials Work. Each invoice shall be based upon the approved draft invoice and may not include any amounts not approved by RCTC in the Progress Meeting reviewing the draft invoice. (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 will review the invoice and all attachments for consistency with the draft invoice prepared at the most recent Progress Meeting and conformity with all requirements of this Contract, and shall notify DB Contractor of the amount approved for payment and specify the reason for disapproval of any remaining invoiced amounts. DB Contractor may include such disapp roved amounts in the next month's invoice 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 an invoice in accordance with Section 14.2.3 and the applicable Invoice Certificate 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 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 set forth 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 during the Progress Meeting reviewing the draft invoice for the applicable month; or (iii) Results in aggregate payments under this Contract in excess of (1) the overall completion percentage for the Project multiplied by the Contract Price (for non - unit priced Work), or (2) the Maximum Payment Schedule for the month to which the invoice applies, 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 90 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 payment for Plant Establishment Work. The Retainage shall be an amount equal to 5% of the payment amount, after subtracting any amounts owing for design services and construction management services. (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 and Lane Closure Charges have been paid to RCTC in accordance with this Contract; (ii) DB Contractor has established to RCTC's satisfaction that Liquidated Damages or Lane Closure 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 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 achievement of Substantial Completion. (ii) An additional portion of Retainage 30 days after achievement of 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: Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 91 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 RCTC 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 or Lane Closure 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 to the escrow agent, as appropriate, has been delivered in form and substance sat isfactory 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, or other moneys due from DB Contractor to RCTC, whether under this Contract, under applicable Governmental Rules, or in equity, including Liquidated Damages or Lane Closure Charges, that have accrued as of the date of the invoice and Invoice Certificate or Application for Final Payment, or that are anticipated to accrue based on the Completion Deadlines shown in the Project Schedule; and (b) Any Claim that RCTC or others as specified below may have against DB Contractor including; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 92 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 amounts RCTC is required to retain under applicable federal Governmental Rules; (e) Any sums expended by or owing to RCTC as a result of DB Contractor's failure to maintain the As -Built Documents; (f) 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; and (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 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 a progress 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, or (ii) the maximum rate allowable under applicable Governmental Rules. (b) Except with respect to Claims under Section 23, 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 set forth in Code of Civil Procedure Section 685.010(a), from the 30th day after the payment was due until the date of payment. Inte rest shall not accrue on Retainage, monies withheld pursuant to stop notices or the final payment. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 93 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 RCTC, 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. (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, not to exceed $10 million. This amount shall be fixed and paid in installments as follows: (i) The first $3 million 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 94 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (iv) The fourth payment shall be made after issuance of NTP2 in an amount not to exceed $1.5 million, payable when 10% of the Contract Price is earned on items other than mobilization. (b) The amounts paid for mobilization under Section 14.2.1 and Section 14.3.5(a) shall not be taken into account in assessing the maximum amount payable under an invoice through application of the Maximum Payment Schedule. 14.3.6. Payment for Bond and Insurance Premiums (a) RCTC shall reimburse DB Contractor for bond and insurance premiums actually paid, without markup and not to exceed the amount set out in Exhibit 2. 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; and (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. (b) Any excess portion of the line item for such premiums in the Proposal shall be payable following Substantial Completion. The total of amounts paid under this Section 14.3.6 for both NTP1 and NTP2 premiums shall be taken into account in assessing the maximum amount payable under an invoice through application of the Maximum Payment Schedule, notwithstanding the fact that the bonds and premiums associated with NTP1 Work will have been paid prior to issuance of NTP2. 14.3.7. Payment for As -Built Documents The amount payable to DB Contractor for As -Built Documents acceptable to RCTC shall equal 1.0% of the Contract Price. DB Contractor shall not be entitled to payment for the last 0.5% of the Contract Price until As -Built Documents have been delivered to RCTC and approved by RCTC. 14.3.8. Payment for Plant Establishment Work RCTC shall retain from payment to DB Contractor an amount equal to $300,000.00 of the Contract Price 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 16.9.3. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 95 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. This Application for Final Payment shall include: (a) All requirements for invoices under Section 14.2.2; (b) A schedule for monthly payment that does not exceed the amounts on the Maximum Payment Schedule; (c) A list 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. (d) 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; (e) Consent of any Guarantors and Surety(ies) to Final Payment; (f) An executed release from DB Contractor for any Claims that arise in connection with the Work that survives 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; (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, Warranties and Subcontractor warranties are in full force and effect. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 96 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (g) 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; (h) Affidavits of prevailing wages paid, signed and submitted by DB Contractor and each Subcontractor required to submit such an affidavit under California Labor Code § 1775(b)(4) in the form required under Governmental Rules or Project Standards; (i) Assignment to RCTC of all right, title and interest in and to all Claims and causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15), arising from purchases of goods, services, equipment, hardware, software or materials in accordance with this Contract or any Subcontract; and a) 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 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 thereafter formal Claims or dispute resolution processes in Section 23, or otherwise in accordance with this Contract, that either Party is entitled to payment from the other Party with respect to Claims (i) that were identified as being unsettled in the release and waivers of Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 97 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 Claims required in Section 14.4.1(c), (ii) that 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 Final Payment, or (iii) that 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 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. 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 amoun t 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 this Section 14.7.1 shall subject DB Contractor to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code, 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. These requirements shall not be construed to limit or impair any contractual, administrative, judicial or equitable remedies otherwise available to the Subcontractor in the event of a dispute involving late payment or nonpayment by DB Contractor. 14.7.3. 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. 14.7.4. 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. 14.7.5. 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 Subcontractor work shall include a summary of DB Contractor's analysis of the claim. Any Notice of Claim (or similar notification) under this Section 14.7.5 shall be considered incomplete if it involves Subcontractor work and is not accompanied by such analysis and certification. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 98 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 14.8. Payment of "Claims" under Pub. Cont. Code § 9204 The Parties acknowledge that Pub. Cont. Code § 9204 requires RCTC to make payments to DB Contractor with respect to any portion of a "claim" as that term is defined in Pub. Cont. Code § 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. 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 23. 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 99 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 15 GENERAL PROVISIONS APPLYING TO CHANGES IN THE WORK 15.1. Mitigation 15.1.1. If a Change, Eligible Change, or other event occurs for which DB Contractor considers it is entitled to claim an extension of time, compensation, or relief from performance of its obligations under this Contract (a "Relevant Event"), DB Contracto r 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) 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; (d) In the case of an extension of time, to the extent that the delay is not on the Critical Path; (e) 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 100 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 15.3. Sole Entitlement DB Contractor acknowledges and agrees that: (a) The Contract Price constitutes full compensation for performance of the Work; and (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 26. 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 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 under this Contract in connection with the Relevant Event, which accrued prior to the delivery date of the Relevant Event Notice. 15.4.2. Notice by: Subject to Section 15.4.3, if DB Contractor fails to provide a Relevant Event (a) Where a timeframe is expressly stated within this Contract with respect to the specific Relevant Event, the stated timeframe; or (b) Where a timeframe is not expressly stated within this Contract 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 hereby waives all relief, in connection with that Relevant Event. 15.4.3. If Section 15.4.2 applies and 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, DB Contractor may be entitled to relief under this Contract for such Relevant Eve nt, subject to application of Section 15.4.1 and the other applicable provisions of this Contract. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 101 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 102 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 16 CHANGES IN THE WORK 16.1. Change Order and Directive Letters This Section 16 sets forth the requirements for obtaining all 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 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 this Section 16.2: (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 ba sis 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 for 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 103 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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, at its sole discretion, 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 notification under Section 16.4.2(b)(ii), or such longer period as the Parties mutually agree, 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 al I data and reports required under Section 16.16) to support such estimate; (iii) A breakdown for labor, materials, Equipment, and permitted markups for overhead and profit; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 104 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 16.9; (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 ROTC, which compares the proposed new schedule to the Project Schedule or details of any Acceleration Costs. RCTC may at any time, in its sole discretion, 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 105 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 reimbursable items. If the Change Order is approved, such actual and reasonable design and engineering costs will be included within the Change Order. 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 16.9 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 estim ated 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 (by registered or certified mail, with return receipt requested, as set out at Section 27.11.1(b)) as soon as possible but in no case later than ten Business Days after DB Contractor had Actual Knowledge of an Eligible Change. For purposes of Pub. Cont. Code § 9204, receipt of the Notice of an Eligible Change or DB Contract Change Request in accordance with this Section 16.5.1(a) shall be deemed to be receipt of a Claim as set forth in this Section 16.5.1; provided that DB Contractor states, in writing, that the DB Contract Change Request constitutes a "claim" under Pub. Cont. C ode § 9204. (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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 106 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (iii) In the case of an Eligible Change that is a Delay Event, 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 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; (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 i ncreased 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 107 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 agrees that it shall give RCTC and its designees access to any and all of DB 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 Req uest is disputed and what portion is undisputed. RCTC may reject the DB Contractor Change Request at any point in the process. 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 23. 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 25.2; 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 108 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 16.6. Change Order Entitlement for Delay Events 16.6.1. Subject to Section 15 and 16.6.2, and so long as DB Contractor complies with the applicable Notice requirements in 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 16.5.1(e), in which case the Change Order shall not provide for an adjustment in the applicabl e Completion Deadline; (b) Subject to Sections 16.6.2(a) and 16.6.2(b), delay and disruption damages, but only if the Delay Event is a Department -Caused Delay or falls within clauses (a), ILD1, or M of the definition of RCTC-Caused Delay; and (c) 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 16.11.1(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(b) and markups on such direct costs in accordance with Section 16.9, 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 any delay and disruption damages with respect to the first 20 Business Days, in the aggregate, of Department -Caused Delay for which DB Contractor is entitled to a time extension under Section 16.6.1(a). (c) 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 DB Contractor is responsible 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 (excluding Force Majeure) that changes the scope of the 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 Section 16.8 through 16.19 (as applicable). Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 109 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 16.8. Change Order Pricing 16.8.1. General Pricing Except as expressly provided otherwise in Section 16.8 through 16.19, 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. 16.8.2. 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 16.9: (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. 16.8.3. 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 16.8.6; or (c) actual costs in accordance with Section 16.9. For negotiated Change Orders, markups for profit and overhead shall be consistent with Section 16.9.3. 16.8.4. Deleted Work 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. 16.8.5. 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 16.8.3 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 110 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (b) Net decrease in cost, the change shall be treated as Work deleted and the provisions of Section 16.8.4 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. 16.8.6. 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. 16.9. Time and Materials Change Orders 16.9.1. Issuance RCTC may, at its sole discretion, 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. 16.9.2. 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 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. 16.9.3. 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; Riverside County Transportation Commission 1-15 Express Lanes Project 111 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 16.9.4. 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 16.9 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 hereby 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 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 the foregoing clause (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 16.9 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 112 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 23. 16.10. Basic Configuration Changes 16.10.1. 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. 16.10.2. 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. 16.10.3. If a VECP results in a change in Basic Configuration, any cost savings from such VECP shall be shared in accordance with Section 26. 16.10.4. DB Contractor shall not make any change in the Basic Configuration, except as approved by RCTC and authorized in accordance with Section 16. 16.11. Main or Trunkline Utilities 16.11.1. Inaccuracy Resulting in Additional Costs (a) If any Main or Trunkline Utility that is located within the Planned ROW Limits and requires Relocation is not indicated at all in the Utility Information (i.e., is "unidentified"), or is not identified in the Utility Information with "reasonable accuracy," as defined in Section 16.11.3 (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 specified in Section 16.11.1(b). The amount of such Change Order shall be determined in accordance with Section 16.8.3. (b) DB Contractor shall not be entitled to any increase in the Contract Price pursuant to Section 16.11.1(a) for any of the following: (i) Increased costs of the Work attributable to unidentified 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 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) Increased costs of the Work attributable to misidentified Utilities, to the extent that the existence of the Utility in the correct location and/or size, as applicable, was known to DB Contractor as of the Setting Date or could have been inferred from the presence of other facilities, such as buildings, meters, junction boxes, manholes, or Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 113 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 identifying markers, visible during a surface inspection of the area conducted prior to the Setting Date; (iii) Increased costs of the Work 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; and (iv) Delay and disruption damages, except that DB Contractor shall be entitled to compensation for idle time of equipment in Section 16.6.1(c) on account of such delay. 16.11.2. Inaccuracy Resulting in Decreased Costs (a) If any Main or Trunkline Utility identified in the Utility Information as requiring Relocation is not identified therein with "reasonable accuracy," then RCTC shall be entitled to a Change Order reducing the Contract Price to reflect the value of any reduction in the Work that is directly attributable to the correction of such inaccurate information. The amount of any such Change Order shall be determined in accordance with Section 16.8.4. 16.11.3. "Reasonable Accuracy" Defined (a) For purposes of this Section 16.11, 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); or (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; or (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 diameter shown in the Utility Information by 25% or more of the diameter shown in the Utility Information. (b) Any other inaccuracies in the Utility Information (e.g., as to type of material or encasement status) has 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 16.11. 16.12. Differing Site Conditions 16.12.1. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 114 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 16.12.2. Each DB Contractor Change Request relating to a Differing Site Condition shall be accompanied by a statement signed by a qualified professional setting forth 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 Conditions, 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. 16.12.3. No time extension or costs 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 16.12. 16.13. 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 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 16.13 shall not apply to Changes in Law. 16.14. Hazardous Materials Management Subject to the limitations in this Section 16.14 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 (i) of the definition of Delay Event: (a) Any Costs payable under this Section 16.14 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 115 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 22.1.1(q); (iii) Less than "material quantities" (as defined in Section 8.10.1) 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 integrally intertwined 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 16.9 and this Section 16.14 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 8.9.1(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 16.14, allowable costs shall be limited to the incremental direct costs but excluding both delay and disruption damages and markup for overhead and profit (except to the extent any delay qualifies as an RCTC-Caused Delay under clause (h) of the definition of that term in Exhibit 1, 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 116 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 22.1.1(q)), and subject to the limitations in this Section 16.14. (g) Section 16.14(f) shall not apply to any delays associated with Department' investigation and Hazardous Materials Management of HM-1 located within the Existing Department ROW, which delays shall be treated as Department -Caused Delays under this Contract. (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 (q) of the definition of that term in Exhibit 1, 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 22.1.1(q), or (c) any compensation or time extension in connection with any work stoppage in affected areas during the investigation periods described in Sections 8.9.1, 8.9.2, or 8.10.3. DB Contractor shall also not be entitled to receive any compensation or time extension 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 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. 16.15. 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 paragraph (c) of the definition of Compensable Event shall not be greater 100% of the positive Pavement Adjustment calculated under Section 20.6.4(b). DB Contractor shall not otherwise be entitled to receive any compensation, receive a time extension or otherwise make any Claim with respect to any pavement adjustment falling within paragraph (c) of the definition of Compensable Event. 16.16. 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 Sections 5.4.2 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 data shall be provided to the Disputes Review Board (if a Change Order or Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 117 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 requested Change Order is under dispute), RCTC and its representatives as directed by RCTC, on forms approved by RCTC. 16.17. 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. (e) The total costs to date for the Time and Materials Change Order Work. 16.18. 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. 16.19. 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 fo r such costs may be deleted if the records of such third parties are not made available to RCTC's representatives. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 118 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 16.20. 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 d escribed above) shall be a Dispute to be resolved pursuant to Section 23. 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 further compensation and time extension 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 16.9 with respect thereto. 16.21. Work Performed Without Direction If DB Contractor undertakes any efforts outside of the scope of the Work or unrelated to the Project, unless DB Contractor has received a Directive Letter or Change Order signed by RCTC to undertake such efforts, DB Contractor shall be deemed to have undertaken such efforts voluntarily, and shall not be entitled to a Change. In addition, RCTC may require DB Contractor to remove or otherwise undo the results of any such efforts without any time extension. 16.22. Changes Not Requiring Change Order Subject to Section 16.10, 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 Sections 1.4. Any other change in the requirements of this Contract shall require either a Directive Letter or a Change Order. 16.23. No Release or Waiver 16.23.1. No extension of time granted under this Contract shall release DB Contractor's Surety or any Guarantor from its obligations. 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 hereof. 16.23.2. 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, 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. 16.23.3. 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. Further, DB Contractor shall undertake, at its risk, work included in any request, order, or other Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 119 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 authorization issued by a Person in excess of that Person's authority as provided in this Contract, or included in any oral request or directive. DB Contractor shall be deemed to have performed such work as a volunteer and at its sole risk and cost. In addition, RCTC may require DB Contractor to remove or otherwise undo any such work, at DB Contractor's sole ris k and cost. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 120 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 17 SUSPENSION 17.1. Suspensions for Convenience 17.1.1. 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. 17.1.2. DB Contractor shall promptly comply with any Notice under Section 17.1.1. 17.1.3. DB Contractor shall promptly recommence the Work upon receipt of Notice from RCTC directing DB Contractor to resume Work. 17.2. Suspensions for Cause 17.2.1. 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 Qual ity Management Plan; (e) Remove any Person as required under Section 9.6.3 or if DB Contractor or its Subcontractor fails to ensure employment of an alternative skilled and experienced Person; (f) Section 11; Provide proof of required insurance coverage as provided in (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 a) Remove from the Work and dismiss from the Project any Subcontractor that (i) is determined disqualified, suspended or debarred, or otherwise excluded from bidding, proposing or contracting with a federal or a State department or agency. 17.2.2. DB Contractor shall promptly comply with any Notice under Section 17.2.1 to suspend the Work. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 121 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 17.2.3. DB Contractor shall promptly recommence the Work upon receipt of Notice from RCTC directing DB Contractor to resume the Work. 17.2.4. RCTC has no liability to DB Contractor and DB Contractor is not entitled to make any Claim in connection with any suspension under Section 17.2.1. 17.2.5. If RCTC orders suspension of Work under Section 17.2.1, 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 17.1. 17.3. Department Suspensions 17.3.1. 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 Work. Neither RCTC nor Department shall have any liability to DB Contractor in connection with any such suspension, and DB Contractor shall have no right to Claim in connection with any such suspension. 17.4. Responsibilities of DB Contractor during Suspension Periods Where the Work is suspended: 17.4.1. 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; 17.4.2. 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 17.4.3. DB Contractor shall continue other Work not subject to the suspension. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 122 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 18 TERMINATION FOR CONVENIENCE 18.1. Notice of Termination for Convenience 18.1.1. 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"). 18.1.2. 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. 18.1.3. 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 18.11 and 18.12. 18.2. Transition Plan 18.2.1. 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. 18.2.2. 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. 18.2.3. 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 18.3. 18.3. 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 18 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 123 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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; a) As authorized by Notice from RCTC, use its best efforts to sell at reasonable prices any property of the types referred to in subsection (q); 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, Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 124 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 and any debris or waste materials generated by, DB Contractor and any Subcontractor in the performance of the Work as RCTC may direct; and (I) Take other actions directed by RCTC. 18.4. Acceptance 18.4.1. 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. 18.4.2. 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. 18.5. Payment for Termination for Convenience 18.5.1. If RCTC terminates this Contract for convenience under Section 18.1, 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 16.9.3, 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 co ntract 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 18.5.1(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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 125 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 Section 18.5.1(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 18.3(f), exclusive of the amounts paid or payable 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 18.5.1(a). (d) The reasonable out-of-pocket cost (including reasonable overhead) of the preservation and protection of property incurred pursuant to Section 18.3(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. 18.5.2. DB Contractor acknowledges and agrees that the Termination for Convenience Amount shall not exceed: (a) The value of the Work performed plus its settlement costs and potentially a reasonable profit, 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. 18.5.3. 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. 18.5.4. Upon determination of the Termination for Convenience Amount, this Contract shall be amended to reflect 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. 18.5.5. 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 clause 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. 18.6. 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 an d with such certifications requested by RCTC. DB Contractor's termination settlement proposal shall then 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 126 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 18.7. Amount of Negotiated Termination Settlement 18.7.1. DB Contractor and RCTC may agree upon the Termination for Convenience Amount, as provided and subject to the limitations in Section 18.5, 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 18.5.1(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. 18.7.2. Upon determination of the settlement amount, this Contract will be amended accordingly, and DB Contractor will, subject to Section 18.9 and following execution of such settlement agreement, be paid the agreed amount as described in this Section 18.7. 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 Warranties, 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. 18.8. 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 18.5.1 (exclusive of interest charges and any amounts deducted pursuant to Section 18.9) as calculated by RCTC (and without duplication of any items or of any amounts agreed upon in accordance with Sections 18.5 and 18.7) within 30 days after RCTC's calculation of the Termination for Convenience Amount described in Section 18.5.1. 18.9. Conditions to Payment; Reduction in Amount of Claim 18.9.1. As a condition to its obligation to pay DB Contractor amounts due under this Section 18, but not as a condition to termination, RCTC shall have received 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 Lien s 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(f) and 18.13.3 and otherwise satisfactory in form and content to RCTC; and (e) Such other documentation as RCTC may reasonably require. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 127 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 18.10. Payment upon Termination 18.10.1. Subject to Sections 14.3.2, 18.8 and 18.9, RCTC shall pay the Termination for Convenience Amount within 30 days after receipt of an invoice from DB Contractor. 18.10.2. 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 or (b) the maximum rate allowable under applicable Governmental Rules. 18.11. Termination Based on Delay in or Failure to Issue NTP1 If NTP1 has not been issued within 90 days after the Effective 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 $275,000.00 (i.e., the amount equal to the stipend payment provided to unsuccessful proposers under the RFP). 18.12. Termination Based on Delay in or Failure to Issue NTP2 18.12.1. 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 any unpaid amounts due for Work performed pursuant to NTP1 in accordance with Section 14.2.1. 18.12.2. If NTP2 has not been issued on or before 450 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 may terminate this Contract at any time, which right shall be exercised by delivery of Notice of termination to RCTC. In such event, no compensation shall be allowed under this Contract in connection with the termination except as set out in Section 18.11. 18.13. No Waiver; Release 18.13.1. The payment to DB Contractor determined in accordance with this Section 18 constitutes DB Contractor's exclusive remedy for a termination hereunder. 18.13.2. Notwithstanding any other provision of this Contract, a termination under this Section 18 shall not waive any Claim that RCTC may have under this Contract. Accordingly, RCTC may pursue any such Claim against DB Contractor. 18.13.3. RCTC's payment to DB Contractor of the amounts provided under this Section 18 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 128 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 section 1542), but no such written release and discharge shall be necessary to give effect to the foregoing satisfaction and release. 18.14. Dispute Resolution The failure of the Parties to agree on amounts due under this Section 18 shall be a Dispute to be resolved in accordance with Section 23. 18.15. Allowability of Costs All Costs claimed by DB Contractor under this Section 18 shall be allowable, allocable, and reasonable in accordance with the cost principles and procedures of 48 CFR Part 31. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 129 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 19 DEFAULT 19.1. Default of DB Contractor 19.1.1. 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 19.3; (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 and Lane Closure 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 130 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 a) 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. (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 19.1.1(m) or 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 27.4or 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 131 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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 determined disqualified, suspended or debarred, or otherwise excluded from bidding, or proposing or contracting with a federal or a State department or agency. 19.1.2. Notice and Opportunity to Cure (a) Except with respect to the DB Contractor Defaults described in Sections 19.1.1(c), �, �, �, fifl, Q.) through 19.1.1(p) and 19.1.1(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 19.1.1(c), �, (e), if), 1-1), Q.) through 19.1.1(p)_and 19.1.1(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 com pletion; 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 19.1.1 (d), or 211 , DB Contractor shall be entitled to 7 days' Notice and opportunity to cure. (e) DB Contractor acknowledges and agrees that the DB Contractor Defaults described in Sections 19.1.1(c), M, il) through 19.1.1(p)_and 19.1.1(q) are not curable and no notice or cure period shall apply; except that, if a DB Contractor Default under Section 19.1.1(m) or 19.1.1(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 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. 19.2. Remedies Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 132 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 19.2.1. If any DB Contractor Default is not subject to cure or is not cured within the applicable cure period (if any) specified in Section 19.1.2, 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 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 18.3 and 18.4 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) 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; (v) amounts of any Losses or Third Party Claims that have accrued; (vi) the cost to complete or remediate uncompleted Work or Nonconformances, plus an administrative charge equal to 10% of such costs; and (vii) 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, but is not obligated to, among other things: (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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 133 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 required to complete the work; (iv) modify or terminate any contractual arrangements; (v) take any other actions that RCTC may, in its sole discretion, consider necessary to complete the Work; and (vi) prosecute and defend any action or proceeding incident to the Work. 19.2.2. 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 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 Lane Closure 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. 19.2.3. DB Contractor acknowledges that if a DB Contractor Default under Section 19.1.1(m) through 19.1.1(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 to 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 134 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 19.2.4. In lieu of the provisions of this Section 19.2 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. 19.2.5. 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 18. 19.2.6. The exercise or beginning of the exercise by RCTC of any one or more rights or remedies under this Section 19.2 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. 19.2.7. DB Contractor, each Guarantor and Surety shall not be relieved of liability for continuing Liquidated Damages 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 ROTC under this Section 19.2. 19.2.8. 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 21, 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. 19.2.9. 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. 19.3. 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 18 by delivering to RCTC a Notice of termination specifying its effective date. Upon such termination, the Parties' rights and obligations shall be as set forth in Section 18. 19.4. Event of Default Due Solely to DB Contractor's Failure to Achieve Completion Deadlines 19.4.1. 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; 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 19.4 shall prejudice any other rights or remedies that RCTC may have due to any other Event of Default during such 180-day period. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 135 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 19.4.2. 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 20.1; and/or (c) exercise any other right or remedy under this Contract, at law or in equity. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 136 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 20 LIQUIDATED DAMAGES AND LANE CLOSURE CHARGES 20.1. Liquidated Damages for Delay in Completion 20.1.1. The Parties acknowledge and agree that: (a) If DB Contractor fails to achieve any Completion Milestone by the applicable Completion Deadline, RCTC shall incur damages that are incapable of accurate measurement because of, among other things, the unique nature of the Project. Such damages include loss of potential revenue, costs of financing, loss of use, enjoyment and benefit of the Project and connecting RCTC transportation facilities by the general public, injury to the credibility and reputation of RCTC's transportation improvement program with policy makers and with the general public who depend on and expect availability of service by the Substantial Completion Deadline, which injury to credibility and reputation may directly result in loss of ridership on the Project, and additional costs of administering this Contract (including engineering, legal, accounting, overhead and other administrative costs); (b) Accordingly, the Parties have agreed to the Liquidated Damages to stipulate the amount payable by DB Contractor to RCTC in the event of DB Contractor's failure to meet a Completion Milestone by the applicable Completion Deadline; (c) The Parties intend for the Liquidated Damages 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; (d) The purpose of the Liquidated Damages is to fix and limit DB Contractor's costs and to avoid later Disputes over what amounts of damages are properly chargeable to DB Contractor for failure to achieve a Completion Milestone by the applicable Completion Deadline. As of the Proposal Date, the amounts of the Liquidated Damages represent good faith estimates and evaluations by the Parties as to the actual, potential damages RCTC would incur as a result of such failure; (e) The Liquidated Damages do not constitute a penalty; and (f) The Liquidated Damages are reasonable in light of the anticipated or actual harm caused by failure to achieve a Completion Milestone by the applicable Completion Deadline, the difficulties of the proof of loss, and the inconvenience or infeasibility of otherwise obtaining an adequate remedy. 20.1.2. 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 Liquidated Damages are as follows: (a) $65,000 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 137 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (c) $10,000 for each day Final Acceptance is delayed beyond the Final Acceptance Deadline, not to exceed 365 days. 20.1.3. The Liquidated Damages under Section 20.1 shall commence on the applicable Completion Deadline, as the same may be extended pursuant to this Contract, 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. 20.1.4. The application of Liquidated Damages, however, shall not: (a) liquidate DB Contractor's liability under the indemnification provisions of Section 22, 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 18 or Section 19. 20.2. Lane Closure Charges for Lane Closures on State Route 91 and Interstate 15 20.2.1. DB Contractor shall perform the Work in a manner that will reasonably minimize impacts to the operations of State Route 91 and Interstate 15, including minimizing Lane Closures. 20.2.2. For Lane Closures between NTP1 and the end of the Warranty Period, DB Contractor shall be liable for and pay fees and/or charges to RCTC as follows: (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, Section 20.2.2(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. (c) For a Permitted 1-15 Express Lane Closure, DB Contractor shall pay I- 15 EL Lane Closure Charges for each affected EL as set forth in Exhibit 20 — Chart 20-1. (d) For an Unpermitted 1-15 Express Lane Closure, DB Contractor shall pay 1-15 EL Lane Closure Charges for each affected EL as set forth in Exhibit 20— Chart 20-2. (e) For a Permitted SR-91 Express Lane Closure, DB Contractor shall pay SR-91 EL Lane Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-1. (f) For an Unpermitted SR-91 Express Lane Closure, DB Contractor shall pay SR-91 EL Lane Closure Charges for each affected EL as set forth in Exhibit 21 — Chart 21-2. 20.2.3. DB Contractor acknowledges that, because of the unique nature of the 1-15 Express Lanes Project, proper management of Permitted Lane Closures a nd minimization of Unpermitted Lane Closures is essential for RCTC to collect toll revenues to enable RCTC to continue to finance, construct, operate, maintain, and improve its highway systems, it is not Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 138 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 possible to ascertain and determine the actual Losses, including lost toll revenues, that would accrue to RCTC and the public from such failures. 20.2.4. DB Contractor acknowledges that the Lane Closure Charges are reasonable in order to compensate RCTC for damages it will incur by reason of the matters that result in Lane Closure Charges for Lane Closures. Such damages include loss of potential revenue for RCTC, loss of use, enjoyment and benefit of the Project and connecting RCTC's transportation facilities by the general public, injury to the credibility and reputation of RCTC's transportation improvement program with policy makers and with the general public who depend on and expect availability of service, which injury to credibility and reputation may directly result in loss of ridership on the Project and connecting transportation facilities, and additional costs to RCTC of administering this Contract (including legal, engineering, accounting, overhead and other administrative costs). DB Contractor further acknowledges that these damages are incapable of accurate measurement because of, among other things, the unique nature of the Project and the unavailability of a substitute for it. 20.2.5. DB Contractor shall pay to RCTC the Lane Closure Charges owing under this Contact as and when provided in TP Sections 18.3.3.1 and 18.3.3.2, as applicable. 20.2.6. Without limiting Section 20.7, 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 Change Order, compensation, or time extension arising out of any inability to pursue or implement such Permitted Lane Closures. 20.2.7. 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 this Contract, this shall not waive RCTC's right to receive damages under this Contract or any rights or remedies otherwise available to RCTC. 20.3. Liquidated Damages for Failure to Comply with Requests for Lane Closures of General Purpose Lanes 20.3.1. DB Contractor shall be subject to liquidated damages for failure to comply with requests for GP Lane Closures (including failure to timely cancel), as described in TP Section 18.3.3.3.1. The amount of liquidated damages owing from DB Contractor to RCTC for each failure shall be $5,000. 20.3.2. DB Contractor acknowledges and agrees that the liquidated damages respecting DB Contractor's failure to comply with a Lane Closure request (including failure to timely cancel) as described in this Section 20.3, are reasonable in order to compensate RCTC and the Department for DB Contractor's failure to timely cancel. DB Contractor further acknowledges that these damages are incapable of accurate measurement because of, among other things, their imprecise nature. The Parties have agreed to liquidated damages under this Section 20.3 in order to fix and limit DB Contractor's costs and to avoid later Disputes over what amounts of damages are properly chargeable to DB Contractor. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 139 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 20.4. Liquidated Damages for DB Contractor's Failure to Timely Cancel BNSF Flagging Services 20.4.1. DB Contractor shall be subject to liquidated damages in the amount of $50,000, in each instance, if DB Contractor (a) fails to utilize BNSF flagging services its requests under Section 8.1.7(b), 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. 20.4.2. DB Contractor acknowledges and agrees that the liquidated damages respecting DB Contractor's failure to timely cancel BNSF flagging, described in this Section 20.4, are reasonable in order to compensate RCTC for amounts RCTC must pay to BNSF for flagging services RCTC requests and fails to timely can cel. DB Contractor further acknowledges that these damages are incapable of accurate measurement because of, among other things, their imprecise nature. The Parties have agreed to liquidated damages under this Section 20.4 in order to fix and limit DB Contractor's costs and to avoid later Disputes over what amounts of damages are properly chargeable to DB Contractor. 20.5. 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 9.7. 20.6. Pavement Adjustments; Liquidated Damages for Net Negative Pavement Adjustments 20.6.1. Construction of new pavement for the Project shall comply with all Contract requirements, including TP Section 11 and Department Standard Specifications. 20.6.2. Subject to DB Contractor's obligation to perform Corrective Measures under TP Section 11.4, if, at Package Turnover, any 0.10-mile segment of new pavement within the applicable Turnover Area or 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 a Package or 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 > 85.0 DB Contractor shall perform Corrective Measures in accordance with TP Section 11.4). Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 140 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 20.6.3. Subject to Section 20.6.4, 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 20.7. 20.6.4. Where a Pavement Adjustment results in a net positive Pavement Adjustment: (a) In the case of Package 1, Package, 2 or Package 3, DB Contractor may apply such amount as a credit to offset any pavement deductions in any subsequent Package Turnover; and (b) In the case of the calculation following Package 4 only, 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. 20.6.5. For illustrative purposes only, as examples: If for 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 1, there was a net positive Pavement Adjustment of $3,000, then DB Contractor would not owe any Pavement Adjustment to RCTC for Package 1. However, the $3,000 for Package 1 would offset a net negative Pavement Adjustment owing for Package 2 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: -$8,500 + $3,000 =-$5,000 20.7. Payment; Offset; Reduction; Waiver; Non -Exclusive Remedy 20.7.1. Except for the liquidated damages set out in Section 20.2.5, DB Contractor shall pay any liquidated damages owing under this Section 20, within ten Business Days after DB Contractor's receipt of RCTC's invoice or demand therefor. 20.7.2. RCTC may deduct and offset any unpaid liquidated damages 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 not paid when due. 20.7.3. 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 under this Contract or any rights or remedies otherwise available to RCTC. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 141 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 20.7.4. Subject to Section 19.4, RCTC's right to, and imposition of, liquidated damages are in addition, and without prejudice, to any other rights and re medies 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 are intended to compensate. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 142 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 21 LIMITATION OF DB CONTRACTOR'S LIABILITY 21.1. Limitation of Liability To the extent permitted by Governmental Rules, DB Contractor's liability under this Contract to RCTC for damages (including actual, indirect, special, consequential, multiple or punitive damages) 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 23; plus (b) An amount equal to $125,000,000 (which amount shall specifically include any Liquidated Damages paid under Section 20.1); plus (c) DB Contractor's indemnities under Section 22 regarding third party suits, actions, proceedings, judgments, and claims; plus (d) Any amounts paid or payable by 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; and plus (e) 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; and plus (f) Losses arising out of DB Contractor Release of Hazardous Materials; and plus (g) Lane Closure Charges, plus Liquidated Damages payable under Sections 20.3, 20.4, 20.5 and 20.6. 21.2. Consequential Damages 21.2.1. Except as otherwise specified in this Contract, including this Section 21, 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 da mages payable under this Contract shall be considered as consequential damages for purposes of this Section 21.2, and each Party hereby releases the other Party from any such liability. 21.2.2. The limitations on DB Contractor's liability under Section 21.2 shall not apply to or limit any right of recovery RCTC may have respecting the following: (a) Any amounts paid or payable by 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; Losses in connection with any illegal activities, fraud, recklessness, criminal conduct, intentional misconduct, bad fa ith, or gross negligence on the part of any DB-Related Entity; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 143 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (b) DB Contractor's indemnities under Section 22 or elsewhere in this Contract; (c) DB Contractor's obligation to pay (i) Liquidated Damages, liquidated damages, or Lane Closure Charges under this Contract; and (d) Losses arising out of DB Contractor Release of Hazardous Materials. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 144 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 22 INDEMNIFICATION 22.1. Indemnifications by DB Contractor 22.1.1. Subject to Section 22.1.2, 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 1-15 Express Lanes Project, this Contract, the Project 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; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 145 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (h) To the extent of the negligence of any DB-Related Entity or failure to comply with DB Contractor's obligations under Section 3; the claim or assertion by any other contractor (excluding contractors in privity of contract with RCTC), including TSP, that any DB- Related Entity (i) interfered with or hindered the progress or completion of work being performed 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) failure of any DB-Related Entity 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; Q) 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; (1) Any failure to pay any Liquidated Damages or Lane Closure Charges under this Contract; and/or. (m) Subject to Section 22.1.2, 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, (a) 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 (b) such documents shall not be deemed "design provided" by RCTC or any of the other Indemnified Parties, as the to rm "design provided" is used in Civil Code Section 2782 and Section 22.1.4(a). DB Contractor hereby waives the benefit (if any) of Civil Code Section 2782 and agrees that this Section 22.1.1(m) constitutes an agreement governed by Civil Code Section 2782.5. 22.1.2. Subject to the releases and disclaimers under this Contract, DB Contractor's indemnity under Section 22 shall not extend to any Claim or Losses to the extent that such Claim or Losses were directly caused by: (a) Without limiting Section 22.1.4(a) the active negligence, gross negligence, reckless or willful misconduct, bad faith or fraud of such Indemnified Party; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 146 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 22.1.3. 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 22 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. 22.1.4. The following restrictions shall apply to the indemnities in Sections 22.1.1: (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 22 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 22 shall automatically apply to require DB Contractor, subject to Section 22.1.2, 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 22.1.2, 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 of this Contract as in Section 22.1.1(a) is intended to provide protection to RCTC with respect to third -party claims associated with such breach. It is not intended to provide RCTC with an alternative cause of action for damages incurred by RCTC with respect to such breach. 22.2. Defense and Indemnification Procedures 22.2.1. If an Indemnified Party receives notice of a Claim or other item covered under Section 22, or otherwise has actual knowledge of an Indemnified Claim that it believes is within Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 147 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 the scope of the indemnities provided under Section 22, 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 (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 22.2.4. 22.2.2. 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. 22.2.3. 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 22.2.4 shall apply. 22.2.4. 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. 22.2.5. If DB Contractor accepts the tender of defense under Section 22.2.4(a), 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 148 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 available to the Indemnified Party, and use reasonable efforts to maintain the confi dentiality of all communications between it and DB Contractor concerning such defense. 22.2.6. If DB Contractor responds to the tender of defense as specified in Section 22.2.4(b) or 22.2.4(c), the Indemnified Party may select its own legal counsel and otherwise control the defense of such Indemnified Claim, including settlement. 22.2.7. Notwithstanding DB Contractor's acceptance of a tender of defense under Section 22.2.4(a) or 22.2.4(b), the Indemnified Party may assume its own defense by delivering 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. 22.2.8. 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 22.2.4(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 22.2.4(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 22.2.4(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. 22.2.9. 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 22.2.6 shall be resolved in accordance with Section 23, but the foregoing shall not preclude an Indemnified Party from preserving its rights or defending the claim pending such resolution. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 149 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 22.2.10. The Parties acknowledge that while Section 22 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 th e indemnification arrangements of this Section 22.2, and consistent with the outcome of such proceedings concerning the respective liabilities of the Parties on the Indemnified Claim. 22.2.11. In determining responsibilities and obligations for defending Indemnified Claims under to this Section 22.2, 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. 22.3. Responsibility of RCTC for Certain Hazardous Materials The Parties acknowledge and agree that: 22.3.1. 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; 22.3.2. 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. 22.4. No Effect on Other Rights The obligations in Sections 22.1 through 22.3 shall not be construed to negate, abridge, or reduce other rights or obligations which would otherwise exist in favor of an Indemnifi ed Party under this Contract. 22.5. CERCLA Agreement The indemnities in Section 22.1.1(g) are intended to operate as agreements pursuant to Section 9607(e) of the Comprehensive Environmental Response, Compensation and Liability Act Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 150 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (CERCLA), 42 U.S.C. § 9607(e), and Health and Safety Code section 25364, to defend, indemnify, and hold harmless the Indemnified Parties. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 151 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 23 PARTNERING AND DISPUTE RESOLUTION 23.1. Partnering; Informal Process and mediation for Resolution of Claims The Parties acknowledge that Pub. Cont. Code § 9204 applies to Claims (as defined thereunder) made by DB Contractor or its Subcontractors under this Contract, and that this Section 23, and as pertains to "claims" under Pub. Cont. Code § 9204, complies in substance and procedure with Pub. Cont. Code § 9204. To the extent that any provision in this Section 23 conflicts with Pub. Cont. Code § 9204, solely with respect to "claims" thereunder, the procedures set forth in Pub. Cont. Code § 9204 shall control. 23.1.1. 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 CI aims 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, 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 sessio ns 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 §§ 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. 23.1.2. 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 23.1.2(a) is not (i) the Notice sent under Section 23.2.2(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) 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 152 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 Pub. Cont. Code § 9204. If the notification regarding the dispute of RCTC's written response involves a DB Contractor "claim" as that term is defined in Pub. Cont. Code § 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 10 Business Days. (c) Within 10 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. (d) Failure of either party to request mediation under this Section 23.1.2(d) 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 10 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. E ach 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. (e) Unresolved Claims that become Disputes between the Parties that are not governed by Pub. Cont. Code § 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 23.2.4 below. 23.2. 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 23, except for those matters identified in Section 23.2.1. All Disputes shall be decided strictly in accordance with the terms and co nditions of this Contract and general principles of contract law of the State. Before DB Contractor may submit any Dispute to dispute resolution under Sections 23.4, 23.5, or 23.6, it must first obtain a final RCTC Decision in accordance with this Section 23.2. 23.2.1. Matters not Eligible for Dispute Resolution The dispute resolution procedures in this Section 23 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 sole discretion of RCTC; Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 153 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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; Disputes regarding matters under the jurisdiction of Cal -OSHA; Issues regarding DBE participation; Issues related to Subcontractor substitutions governed by Public Contract Code sections 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; and (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, RCTC, PCM, Department, FHWA, or TSP). The Parties acknowledge and agree that the items above are not "claims" within the meaning of Pub. Cont. Code § 9204. 23.2.2. 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 23.2.2(a) regarding Claims that are governed by (and defined under) Pub. Cont. Code § 9204 shall conform to the requirements of such Governmental Rule. (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 23.13. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 154 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. 23.2.3. Project Level Negotiation (a) Upon commencement of the dispute resolution process, except with respect to Notices given under this Section 23.2.3(a) (seeking executive level negotiation), 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. 23.2.4. 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 (a) given under Section 23.2.2(a) for Disputes between the Parties that are not governed by Pub. Cont. Code § 9204 or (b) given under Section 23.2.3(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 Un ited States during the time period he or she 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 23.2.4(a)) (which meeting shall be no later than 25 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 155 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 23.2.5. 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 23.4 or 23.6, as applicable, based on the value of the Dispute, and in any event only after providing a Notice within 10 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), or RCTC, at RCTC's discretion, may seek a determination of the dispute by the dispute resolution procedure set forth below. 23.3. 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 23, 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 23.3 describes the purpose, procedure, functions, and key features of the Disputes Review Board. 23.3.1. 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; (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 1-15 Express Lanes Project, or 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 156 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (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. (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 23.5. (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. (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 Section 23.3.1, 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, 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 157 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 23.3.2. 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. 23.3.3. 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 binding Recommendation of the Disputes Review Board; or (iii) a final judgment or award entered in accordance with Section 23.5 or 23.6. 23.3.4. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 158 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 23.3.5. Right to Litigate Disputes; Admissibility of Disputes Review Board Findings (a) RCTC and DB Contractor agree that submission of any unresolved Dispute to project level and executive level negotiations, under Sections 23.2.3 and 23.2.4, and the Disputes Review Board, under this Section 23.3, 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 23.6 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. 23.4. Resolution of Disputes Exceeding $375,000 by Disputes Review Board 23.4.1. 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. 23.4.2. Such Disputes submitted by DB Contractor to the Dis putes 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. 23.4.3. 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 com plaint. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 159 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 which [RCTC] [DB Contractor] believes, at this time, [RCTC] [DB Contractor] is liable. By: [RCTC] / [DB Contractor] [Person Responsible for Claim] 23.4.4. 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. 23.4.5. 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. 23.4.6. 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 23.5 (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. 23.5. 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; (c) the Disputes Review Board has issued a Recommendation with respect to the Dispute; and (d) the Dispute is submitted to judicial reference within timeframe in Section 23.4.6. All Disputes submitted to judicial reference shall be heard and 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. 23.5.1. Filing of Complaint Subject to the procedural requirements in this Section 23.5, 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 160 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 23.5.2. 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, Cal ifornia, 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. 23.5.3. 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 hereby 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. T he 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. 23.5.4. 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 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. 23.6. Resolution of Disputes Involving $375,000 or Less by Arbitration 23.6.1. 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. 23.6.2. Disputes submitted by DB Contractor to arbitration under this Section 23.6 must be based on a final RCTC Decision, and a demand for arbitration must be submitted within Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 161 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 30 days after the date the RCTC Decision becomes final. RCTC may submit a demand for arbitration under this Section 23.6 at any time. 23.6.3. 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"). 23.6.4. 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. 23.6.5. Discovery shall be permitted to the full extent provided by Code of Civil Procedure sections 1283.05(a) through (d). 23.6.6. 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. 23.7. 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 23.7, 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 ad ditional expenses and attorneys' fees to the Party giving such Notice, even if such Party is not the prevailing Party in the Dispute. 23.8. 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 23.5; except that the Party against whom an award of additional attorneys' fees or expenses is made in accordance with Section 23.7 shall make such payments to the other Party and is not entitled to recover (or offset) the amount paid. If either Party refuses to pay its share of the co sts 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 23.7, 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 23.8, 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 162 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 23.9. 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 23, to protect its rights, including temporary and preliminary injunctive relief, attachment, claim and delivery, receivership and any extraordinary writ. 23.10. 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. 23.11. 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 23; 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 1-15 Express Lanes 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. 23.12. Effect on Surety and Guarantor Decisions made in accordance with this Section 23 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. 23.13. 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 163 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 23.14. 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 wit h the Disputes Review Board are necessary and reasonable. DB Contractor expressly waives any longer statute of limitations contained in any statute, including Government Code Sections 900 et seq. that would otherwise be applicable. 23.15. Timely Payment of Undisputed Amounts of any Claim In accordance with Pub. Cont. Code § 9204, RCTC shall conduct a reasonable review of any Claim by DB Contractor subject to Pub. Cont. Code § 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 23, 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 164 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 24 ACCEPTANCE 24.1. Coordination of Work with TSP (a) The Project is comprised of eight Turnover Areas, each consisting of one Tolling Zone and certain equipment and civil infrastructure required for TSP to install the TCS, as described in TP Section 19. (b) DB Contractor shall coordinate the performance of the Work with the TSP Work in accordance with TP Section 19, and shall allow TSP and Other RCTC Contractors to install such facilities reasonably in advance of the Substantial Completio n Deadline, as specified in this Section 24 and TP Section 19. 24.1.2. Turnover Areas (a) DB Contractor shall complete the Work required for each Turnover Area, and shall turnover to RCTC and TSP one, two, or three Turnover Areas, as applicable, as part of four Package Turnovers as follows: (i) Package 1 Turnover shall consist of one Turnover Area (Package 1) and shall be turned over to TSP 180 days prior to the Substantial Completion Deadline (Package 1 Turnover Deadline); (ii) Package 2 Turnover shall consist of three Turnover Areas (Package 2) and shall be turned over to TSP 120 days prior to the Substantial Completion Deadline (Package 2 Turnover Deadline); (iii) Package 3 Turnover shall consist of two Turnover Areas (Package 3) and shall be turned over to TSP 90 days prior to the Substantial Completion Deadline (Package 3 Turnover Deadline); and (iv) Package 4 Turnover shall consist of two Turnover Areas and any remaining elements of the TCS Infrastructure on the 1-15 Corridor (Package 4) and shall be turned over to TSP 60 days prior to the Substantial Completion Deadline (Package 4 Turnover Deadline). (b) DB Contractor shall determine which of the eight Turnover Areas shall comprise each Package Turnover described above. 24.1.3. 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) Commencing 180 days before the applicable Package Turnover Deadline in the Project Schedule, DB Contractor shall provide RCTC and TSP separate, monthly Notices for each Package Turnover. Each such Notice shall set forth the anticipated Package Turnover Deadline and describe the anticipated Turnover Areas to be included in the applicable Package Turnover. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 165 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 (c) DB Contactor may change the Turnover Area(s) to be included in each Package Turnover up to, but no later than, 90 days before the applicable Package Turnover Deadline. 24.1.4. 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 24.1.4. (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 Package Turnover. (c) During this ten Business Day period, DB Contractor, RCTC, and TSP shall meet and confer on a regular and cooperative basis to exchange information, with the goal being to orderly and timely inspect the Work comprising the applicable Package Turnover to determine whether the applicable Package Turnover has been achieved. During this ten Business Day period, 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 24.1.40). (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. 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 24.1.4(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 24.1.4(e) has been completed, and Sections 24.1.4(d) through Lf) 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, the provisions in subparts 24.1.4(b) through (q) of this Section 24.1.4 shall apply to the repair work as if it were part of the initial Package Turnover. 24.1.5. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 166 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 this 30 Business Day period, DB Contractor and RCTC shall meet, confer, a nd 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 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 N otice 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 24.1.5(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 23. 24.1.6. 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, but is not obligated to, 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 such 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 167 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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, and each modification thereto, 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 to be set forth in the Project Management Plan and in any case by the Project Completion Deadline. 24.2. Project Completion 24.2.1. 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 Assurance 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. 24.2.2. 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 92 00 et seq. 24.3. Final Acceptance 24.3.1. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 168 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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, 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, 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. 24.3.2. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 169 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 24.3.3. No Relief from Liability Final Acceptance will not prevent RCTC from correcting any measurement, estimate, or certificate made before or after completion of the 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. 24.4. Opening Sections of Project to Traffic 24.4.1. Plan for Opening to Traffic 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. Notwithstanding the foregoing, if RCTC orders DB Contractor to open portions of the Project 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 15. 24.4.2. 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, 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 24.4.1, DB Contractor shall not receive any added compensation due to the added costs or any time extension due to the schedule impacts attributable to the opening of the Project to traffic. 24.4.3. 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. 24.5. 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 170 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 25 DOCUMENTS AND RECORDS 25.1. Escrowed Proposal Documents DB Contractor has delivered to RCTC one copy of all documentary information used in preparation of the Proposal Price (the "Escrowed Proposal Documents" or "EPDs"), which are initially being held by the Escrow Agent. At the time DB Contractor has established the Co - Located Office, DB Contractor and RCTC will transfer the EPDs 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. Concurrently with submission of quotations or revisions to quotations provided in connection with formally proposed amendments to this Contract and concurrently with approval of each Change Order, if appropriate, one copy of all documentary information used in preparation of the quotation, amendment or Change Order, as applicable, shall be added to the escrow or cabinet, as applicable, to be held with the other EPDs. The EPDs will be held in such cabinet or otherwise maintained subject to Section 25.1.1 until the following have occurred: (a) 180 days have elapsed from Final Acceptance or termination of the Work, as applicable; (b) all Disputes regarding this Contract have been settled; and (c) Final Payment on the Contract has been made by RCTC and accepted by DB Contractor. 25.1.1. Availability for Review The EPDs shall be available during regular business hours for joint review by DB Contractor and RCTC, and its respective successors and permitted assigns, in connection with negotiations of Change Orders and Contract amendments, the resolution of Disputes and Claims and as described in Section 25.1.6. RCTC may review all or any part of the EPDs in order to satisfy itself regarding the applicability of the individual documents to the matter at issue. RCTC may make and retain copies of such documents as it deems appropriate in connection with any such matters; 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 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. 25.1.2. Proprietary Information The EPDs are, and shall remain 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 25. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 171 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 25.1.3. Representation DB Contractor represents and warrants that the EPDs constitute all of the information used in the preparation of its Proposal Price and pricing related to Contract amendments and Change Orders and agrees that no other Proposal Price, Contract amendment or Change Order preparation information will be considered in resolving Disputes or Claims. DB Contractor agrees that the EPDs are not part of this Contract and that nothing in the EPDs shall change or modify this Contract. 25.1.4. Contents of EPDs The EPDs shall: (a) Detail how the components of the Proposal Price were determined and shall be adequate to enable a complete understanding and interpretation of how DB Contractor arrived at the Proposal Price; (b) In connection with quotations, Contract amendments and Change Orders, clearly detail how the total price and individual components of that price were determined; (c) Detail crews, equipment, materials, quantities, rates of production; (d) 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; (e) Detail plant and equipment and indirect costs including identifying risk contingencies, markup and other items to each direct cost item; (f) 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; (g) Include electronic media data files associated with all 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 Proposal Price or amendment or Change Order. 25.1.5. Form of EPDs Except as otherwise provided in the RFP, DB Contractor shall submit the EPDs in such format as is used by DB Contractor. DB Contractor represents and warrants that the EPDs provided with the Proposal were personally examined prior to delivery by an authorized officer of DB Contractor and that they meet the requirements of Section 25.1.4, that the EPDs provided in connection with quotations, Contract amendments and Change Orders will be personally examined prior to delivery by an authorized officer of DB Contractor, and that they will m eet the requirements of Section 25.1.4. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 172 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 25.1.6. Review by RCTC RCTC may at any time conduct a review of the EPDs to determine whether they are complete. In the event RCTC determines that any data is missing, DB Contractor shall provid e such data within three Business Days of the request, and at that time it will be date stamped, labeled to identify it as supplementary EPD information, and added to the EPDs. DB Contractor has no right to add documents to the EPDs except upon RCTC's req uest. At RCTC's option, which may be exercised at any time, the EPDs associated with any Change Order or Contract amendment shall be reviewed, organized and indexed as described in Section 6.1.2 of the ITP. 25.2. Subcontractor Pricing Documents DB Contractor shall require the principal design Subcontractor (including any joint venture) and each Major Subcontractor to submit to DB Contractor a copy of all documentary information 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 held in the same manner as the EPDs and which shall be accessible by DB Contractor and its successors and ass igns (including RCTC) and the Disputes Review Board, on terms substantially similar to those contained in this Contract. Each such Subcontract shall include a representation and warranty from the Subcontractor, for the benefit of DB Contractor and RCTC, stating that its EPDs constitute all the documentary information used in establishing its Subcontract price, and agreeing to provide a sworn certification in favor of DB Contractor and RCTC together with each supplemental set of EPDs, stating that the information contained therein is complete, accurate and current. Each Subcontract that is not subject to the foregoing requirement shall include a provision requiring the Subcontractor to preserve all documentary information 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. 25.3. Financial Reporting Requirements 25.3.1. DB Contractor shall deliver to RCTC the financial and narrative reports, statements, certifications, budgets and information as and when required under this Contract. 25.3.2. DB Contractor shall provide, or cause to be provided, to RCTC such information and statements as RCTC may reasonably request from time to time for any purpose related to the Project or this Contract. In addition, 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 25.3.2(b) for DB Contractor and each Guarantor: (a) Within 60 days after the end of each fiscal quarter, duplicate copies of the balance sheet and a consolidated statement of earnings of DB Contractor and each Guarantor and its consolidated subsidiaries for such quarter and for the period from the beginning of the then current fiscal year to the end of such quarter, setting forth in comparative form the figures for the corresponding periods during 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, if any, 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 173 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 and with the documents provided under Section 25.3.2(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. 25.3.3. DB Contractor shall cooperate and provide, and shall cause each Guaranto r and the Subcontractors to cooperate and provide, such information as determined necessary or desirable by RCTC in connection with any Project 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. 25.3.4. All reports and information delivered by DB Contractor under Sections 25.3.3 shall also be delivered electronically, to the extent electronic files exist, and be suitable for posting on the web. 25.4. Maintenance of, Access to and Audit of Records 25.4.1. Except for EPDs (which shall be maintained as set forth in Section 25.1), DB Contractor shall maintain at its Project administration office in Riverside County, California a complete set of all books, records and documents prepared or employed by DB Contractor in its management, scheduling, cost accounting, payroll documents, facilities and otherwise with respect to the Project, RCTC-Provided Property, Relocations or Work, including copies of all original documents delivered to RCTC and Department. DB Contractor shall keep and maintain such books, records, and documents in accordance with applicable provisions of this Contract and of the Project Management Plan, and in accordance with Good Industry Practice. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 174 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 25.4.2. DB Contractor shall grant to RCTC and its representatives and legal counsel, Department, and FHWA such audit rights and allow such Persons such access to and the right to copy such books, records and documents (including all tax returns and supporti ng documentation filed with any Governmental Entity) as such Persons may request from time to time in connection with the issuance of Change Orders and Contract amendments, the resolution of disputes and claims and such other matters as such Persons reason ably deem necessary for purposes of complying or verifying compliance with this Contract and Governmental Rules. The right of inspection includes the right to make copies and extracts and take notes. 25.4.3. Where the payment method for any Work is on a time and materials basis, such examination and audit rights shall include all books, records, documents and other evidence and accounting principles and practices sufficient to reflect properly all direct and indirect costs of whatever nature claimed to have been incurred and anticipated to be incurred for the performance of such Work. If an audit indicates DB Contractor has been overcredited under a previous progress report or progress payment, that overcredit will, at RCTC's sole option, be credited against current progress reports or payments or reimbursed to RCTC by DB Contractor upon demand therefor. 25.4.4. 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 substantial quantities to the public, or prices set by Governmental Rule, such Persons and their representatives have the right to examine all books, records, documents and other data of DB Contractor 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. 25.4.5. RCTC may review and audit DB Contractor, its Subcontractors and their respective books and records as and when RCTC deems necessary for purposes of verifying compliance with this Contract, the Governmental Approvals and applicable Governmental Rules. Without limiting the foregoing, RCTC may 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. RCTC may conduct a ny such audit of books and records upon 48 hours' prior Notice, or unannounced and without prior notice where there is good faith suspicion of fraud or other criminal activity. 25.4.6. 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. 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 175 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 25.4.7. At a minimum, and only with respect to the Project, RCTC and the auditors shall have available to them the following documents: (a) Daily time sheets and supervisor's daily reports; (b) Union agreements; (c) Insurance, welfare, and benefits records; (d) Payroll registers; (e) Earnings records; (f) Payroll tax forms; (g) Material invoices and requisitions; (h) Material cost distribution work sheet; (I) Equipment records (list of company equipment, rates, etc.); (j) Subcontractors' (including Suppliers) invoices; (k) Subcontractors' and agents' payment certificates; (I) Canceled checks; (m) Job cost report; (n) Job payroll ledger; (o) General ledger; (p) Cash disbursements journal; (q) Project Schedules; (r) 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; (s) 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; (t) Email; (u) Network servers, data storage devices, backup tapes/media; and (v) Letters and correspondence. 25.4.8. Full compliance by DB Contractor with the provisions of this Section 25.4 is a contractual condition precedent to DB Contractor's right to seek relief under Section 23. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 176 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 25.4.9. Any rights of FHWA to review and audit DB Contractor, its Subcontractors and their respective books and records are in Exhibit 14. 25.4.10. DB Contractor represents and warrants the completeness and accuracy of all information 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 such Subcontractors or their agents provide in connection with this Section 25.4. 25.4.11. 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. 25.4.12. 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 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 the PCM (or designees) will be for purposes of verifying physical labor, material and equipment count rather than validating DB Contractor's Claims. 25.4.13. To the extent requested by RCTC, DB Contractor shall provide RCTC with access to and a copy of each item described in Section 25.4.12 (provided, however, that the provision of such information shall not constitute a Notice under Section 15.4.21). 25.5. Retention of Records DB Contractor shall maintain all records and documents relating to the Work and the Project (including copies of all original documents delivered to RCTC) in Riverside County, California until five years after the Final Acceptance Date or the termination of this Contract (as applicable). DB Contractor shall notify RCTC where such records and documents are kept. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 177 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 Notwithstanding the foregoing, all records which relate to Claims being processed or Disputes brought under the dispute resolution provisions hereof shall be retained and made available until such Disputes and Claims have been finally resolved. Records to be retained include all books, electronic information and files and other evidence bearing on DB Contractor's costs under this Contract. DB Contractor shall make these records and documents available for audit and inspection to RCTC, Department and FHWA, at DB Contractor's offices in Riverside County, California, at all reasonable times, without charge, and shall allow RCTC, Department and FHWA to make copies of such documents (at no expense to DB Contractor). If approved by RCTC, photographs, microphotographs or other authentic reproductions may be maintained instead of original records and documents. 25.6. Public Records Act 25.6.1. 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 Sections 6250 et seq.) (the "Public Records Act"). 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 25.6 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. 25.6.2. 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. 25.6.3. 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 su ch 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 178 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 25.7. Ownership of Documents Subject to Section 25.8, 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 25.7 in accordance with the requirements of Section 25.4 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. 25.8. Intellectual Property 25.8.1. 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. 25.8.2. 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. 25.8.3. Subject to the license and rights granted to RCTC pursuant to Section 25.8.2, 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. 25.8.4. 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. 25.8.5. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 179 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 25.8.6. 25.8.6. Subject to Section 25.6, 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. 25.8.7. 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 25.8.6 if such breach is not the result of gross negligence or intentional misconduct. DB Contractor hereby irrevocably waives all claims to any such damages. 25.8.8. 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. 25.8.9. 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 25.8.2. The foregoing requirement shall not apply, however, to mass -marketed software products (sometimes referred to as "shrink wrap software") owned by 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 25.8.3 through 25.8.6 shall also apply to RCTC's licenses in such Proprietary Intellectual Property. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 180 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 26 VALUE ENGINEERING 26.1. General This Section 26 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 re lating to the Work. 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. 26.2. Value Engineering Recommendation A VECP is a proposal developed and documented by DB Contractor which: (a) Would modify or require a change in any of the commitments, requirements of or constraints in this Contract in order to be implemented; and (b) Reduces the Project cost 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. 26.3. Information to be Provided 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) Description of the proposed change; (d) Discussion of differences between existing requirements in this Contract and the proposed change, together with advantages and disadvantages of each changed item; (e) Itemization of the requirements of this Contract which must be changed if the VECP is approved (e.g., document Sections, drawing numbers and specifications); (f) 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 181 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 maintenance costs; and (iii) costs of development and implementation of the VECP by DB 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; (g) 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; (h) If available, a description of any previous use or tests of th e VECP and the conditions and results; and (i) 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. 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. 26.4. Review by RCTC DB Contractor shall submit VECPs directly to the 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 26. 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. 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 26. DB Contractor may withdraw all or part of any VECP at any time prior to approval by RCTC. Subject to Section 26.6, 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. 26.5. Approval of VECPs RCTC may approve or reject, in its sole discretion, 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. 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. 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 26, but may specify that the VECP is delivered under protest. In such case, either Party may submit the question of DB Contractor's entitlement to proceed without an approved VECP to dispute resolution. If a determination is ultimately made that DB Contractor is not entitled to proceed without an approved VECP, RCTC may receive a credit Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 182 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 against the Contract Price as provided in Section 26.6. 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 26.6. Unless DB Contractor has received written approval from RCTC to proceed with VECP work pending approval of a VECP, DB Contractor shall not have the right to 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 as a volunteer and shall not have the right to later submit a VECP under this Contract. 26.6. Contract Price Adjustment If RCTC accepts a VECP submitted by DB Contractor pursuant to this Section 26, the Contract Price shall be adjusted in accordance with the following: 26.6.1. 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. 26.6.2. Except as specified in Section 26.6.4, 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. 26.6.3. Subject to Sections 26.6.4 and 26.6.5, 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. 26.6.4. 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 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 additio nal 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 183 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 26.6.5. 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. 26.6.6. 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 ch anges that also entail a modification of commitments contained in the Proposal or requirements of or constraints in this Contract. 26.7. 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 26.8 below. Notwithstanding any restrictions pursuant to Section 26.8, RCTC retains the right to 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. 26.8. 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 25.6.2 shall be applicable. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 184 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 SECTION 27 MISCELLANEOUS PROVISIONS 27.1. Amendments Except to the extent expressly provided otherwise in this Contract, this Contract ma y 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 185 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 employees. Neither DB Contractor nor any of the employees of any DB-Related Entity is or shall 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. DB Contractor agrees, as a condition to issuance of NTP2, to consent to any collateral assignment of this Contract in whole or in part by RCTC to one or more of the Financing Entities as security for the performance of RCTC's obligations to the Financing Entities. In the event of such an assignment, the term "RCTC" as used in this Contract shall be deemed to mean the Financing Entities as assignee of RCTC, and, as such assignee, the Financing Entities shall have all rights accorded to RCTC. Any Financing Entity may, in connection with any default under any Financing Document, assign any rights assigned to it under this Contract to any Person. Such consent shall be evidenced by DB Contractor's execution of an acknowledgement and consent in the form of Exhibit 22. 27.4.3. Upon providing 10 Business Days prior Notice to DB Contractor, which Notice shall not be required where any assignment is to the Financing Entities, 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. 27.4.4. 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. 27.4.5. 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. 27.4.6. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 186 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 27.4.7. 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 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. 27.4.8. 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. 27.4.9. DB Contractor shall not change the legal form of its organization without the prior written approval of RCTC, which consent may be granted or withheld in RCTC's sole discretion. 27.4.10. 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 187 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 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, Su ndays, 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 23, the warranties contained in Section 13, the indemnifications and releases contained in Section 22 and elsewhere in this Contract, the rights and obligations of the Parties following termination of this Contract under Section 18 and Section 19, 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 a nd 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 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 188 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. 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: Address: 1995 Agua Mansa, Riverside, CA 92509 Attention: David Sharpnack Telephone: Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 189 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 E-mail: In addition, copies of all Notices to Proceed, notices regarding Claims, Disputes, and suspension, termination and default notices shall be delivered to the following persons: Address: 1995 Agua Mansa, Riverside, CA 92509 Attention: David Sharpnack Telephone: E-mail: All communications to RCTC shall be marked as regarding the 1-15 Express Lanes 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@RCTC.ORG 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 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 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 1-15 Express Lanes Project Contract Number: 16-31-057-00 190 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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 23 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. Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 191 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 27.18. Costs Except as otherwise provided in this Contract, each Party perform its obligations in accordance with this Contract at its own Cost and risk. [Signatures on next page] Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 192 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 IN WITNESS WHEREOF, this Contract has been executed as of , 2017. DB CONTRACTOR: SKANSKA-AMES A JOINT VENTURE By: Name: Tim Wilson Title: Attorney In Fact Contractor License No.: 1010973 RCTC: RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Name: John F. Tavaglione Title: Chair APPROVED AS TO FORM: By: Steven C. DeBaun, General Counsel Date: , 2017 Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 193 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 ADDENDUM Skanska USA Civil West California District Inc. and Ames Construction, Inc. agree that they shall be jointly and severally liable for the obligations of DB Contractor under this Contract. Skanska USA Civil West California District Inc. and Ames Construction, 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, Skanska USA Civil West California District Inc., and Ames Construction, Inc. in any order. Dated as of , 2017 Skanska USA Civil West California District Inc. By: Name: Tim Wilson Title: Senior Vice -President * * * Ames Construction, Inc. By: Name: Gerard Miller Title: Senior Vice President Riverside County Transportation Commission 1-15 Express Lanes Project Contract Number: 16-31-057-00 194 Draft Execution Version - Design -Build Contract March 16, 2017 9816780.v44 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. Abbreviation AASHTO AB AC I ADA ADAS ADL ANSI APE AQMD AREMA ARB AS ASME ASNT ASTM AT&T ATC AV AWSa BMP Meaning American Association of State Highway and Transportation Officials aggregate base American Concrete Institute Americans with Disabilities Act Automatic Data Acquisition System Aerially Deposited Lead American National Standards Institute Area of Potential Effect air quality management district American Railway Engineering and Maintenance -of -Way Association California Air Resources Board aggregate subbase American Society of Mechanical Engineers American Society of Nondestructive Testing American Society of Testing and Materials American Telephone & Telegraph Alternative Technical Concept Audio Visual American Welding Society Best Management Practice Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1-1 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 15, 2017 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 Cal-NExUS California Numbered Exit Uniform System Cal/OSHA California Division of Occupational Safety and Health Administration CAR Corrective Action Report 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 cast in place CJP complete joint penetration CMS Changeable Message Sign CMU DIR's Compliance Monitoring Unit CNDDB California Natural Diversity Database CO Change Order Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 2 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 CQAM Construction Quality Assurance Manager CAMP Construction Quality Management Plan 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 DBE Disadvantaged Business Enterprise DFEH California Department of Fair Employment and Housing DBESP Determination of Biological Equivalent or Superior Preservation DGS California Department of General Services DHCP Dynamic Host Configuration Protocol DIR California Department of Industrial Relations DLC Detector Lead -In Cable DIGGS Data Interchange for Geotechnical and Geoenvironmental Specialists DMS Document Management System DOSH Division of Occupational Safety and Health DOT Department of Transportation Dpi Dots per inch DPN Department Parcel Number DQAM Design Quality Assurance Manager DAMP Design Quality Management Plan Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 3 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 DRA DRB DSA DTSC DVBE DVD EA ECM ECR EDMS El EIA/ECIA EIT EL ELP EMS EPD ERS ESA ETC ETW fc F/O FD FEMA FHWA FR FRP FSP Dispute Resolution Advisor Dispute Resolution Board Division of the State Architect Department of Toxic Substances Control disabled veteran business enterprise Digital Versatile Disc Expenditure Authorization Environmental Compliance Manager Environmental Commitments Record Electronic Document Management System Expansion Index Electronic Industries Alliance/Electronic Components Industry Association Engineer -in -Training Express Lane Express Lane Project Extinguishable Message Sign Escrowed Proposal Documents Earth Retaining Systems Environmentally Sensitive Area Electronic Toll Collection Edge of Travel Way extreme fiber compressive stress in concrete at service loads compressive strength of concrete Fiber Optic Final Design Federal Emergency Management Agency Federal Highway Administration Foundation Report Fiber Reinforced Polymer Freeway Service Patrol Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 4 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 FTE Full-time equivalent GAAP Generally Accepted Accounting Principles GAD Geometric Approval Drawing Gbps Gigabit per second GEP Geotechnical Execution Plan GDR Geotechnical Design Report GGL gamma -gamma logging GP General Purpose HAZWOPER Hazardous Waste Operations and Emergency Response HDM Department Highway Design Manual HMA-O hot mix asphalt (open graded) HEC Hydraulic Engineering Circular HM Hazardous Materials HMA Hot Mix Asphalt 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 5 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 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 MC medium curing MB Megabyte 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 6 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 NAVD North American Vertical Datum NCR Nonconformance Report NDC Notice of Design Change NDT nondestructive testing NCR/MAR New Connections Report/Modified Access Report 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 7 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 OSD OSHA OT PA/ED PALM PC PCI PCC PCM PCMS Pdf PE PFR PGSSP PI PIM PLS PPE PPM PS PS&E PTS QA QC QMP RCFC&WCD RCP RCTC RFC RFI Offices of Structure Design Occupational Safety and Health Administration Overtime Project Approval/Environmental Document Project Aesthetics and Landscape Master Plan precast Protective Coatings Inspector Portland Cement Concrete Project and Construction Manager portable changeable message sign portable document format Professional Engineer Preliminary Foundation Report Project General Standard Special Provision Plasticity Index Public Information Manager Professional Land Surveyor Personal Protective Equipment Pages Per Minute prestressed Plans, Specifications and Estimates Yellow Paint and Theroplastic Striping Quality Assurance Quality Control Quality Management Plan Riverside County Flood Control & Water Conservation District Reinforced Concrete Pipe Riverside County Transportation Commission Release for Construction Request For Information Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 8 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 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 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 SRC District 8 Safety Review Committee SSID Service Set Identification SSP Standard Special Provisions Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 9 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 SUE Subsurface Utility Engineering SUV Service Utility Vehicle SWDR Storm Water Data Report SWPPP Storm Water Pollution Prevention Plan TCE Temporary Construction Easement TCP Traffic Control Plan TCS Toll Collection System TEES Department Transportation Electrical Equipment Specification TIA Telecommunications Industry Association; time impact analysis TIFIA Transportation Infrastructure Finance and Innovation Act TIFF Tagged Image File Format TMC Traffic Management Center 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 10 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 USFWS UT UTP VAC VECP VGA VLAN VTMS WAN WBS WDR W LAN WPC WPCP United States Fish and Wildlife Service ultrasonic testing Unshielded Twisted Pair Voltage Alternating Current Value Engineering Change Proposal Video Graphics Array Virtual Local Area Network Variable Toll Message Sign Wide Area Network Work Breakdown Structure Waste Discharge Requirement Wireless Local Area Network water pollution control water pollution control program 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). acts of God means "Acts of God" as defined in Public Contract Code section 7105. activity means 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 and shall be strictly limited to facts and information actually known to RCTC, DB Contractor or RCTC's or DB Contractor's Representative (as applicable), after due consultation with other personnel of such Party directly involved with the Work, as applicable. Additional Properties has the meaning given in Section 8.1.3 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 means to raise or lower a facility to match a new grade line. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 11 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 ADL Management Plan has the meaning given in TP Section 6.4.5. Advance Utility Relocation means the Relocation of the AT&T Utility conduit and manhole at 6th Street in Corona, shown as conflict # X216AT in the Utility Information. 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 24.3.1(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 voting securities, by contract, family relationship or otherwise. Work performed by Affiliates shall be deemed performed by DB Contractor. Alternative Technical Concept means an RCTC-approved technical solution or approach that differs from the Contract requirements and is listed in Attachment 2 to Exhibit 13. Application for Final Payment means DB Contractor's written request for Final Payment of the unpaid remainder of the Contract Price as further described in Section 14.4.1. Apprenticeable craft or trade has the meaning given in Exhibit 16. 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 -build 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. authorized laboratory mean an independent testing laboratory (1) not employed or compensated by any Subcontractor or Subcontractor's affiliate providing other services for this Contract and (2) authorized by the Department. Available Properties means each of the RCTC-owned parcels described in the Reference Documents as being required for performance of the Work by DB Contractor. base means 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). Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 12 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 basement material means 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 Project Schematics); (c) The number and approximate location of the Tolling Zones (as set forth in the Project Schematics); (d) The approximate location of ramps (as set forth in the Project Schematics); and (e) The approximate number, location and heights of the sound walls (as set forth in TP Attachment 6-3), except as otherwise provided in TP Section 6.4.8. Bat Management Plan has the meaning given in TP Section 6.4.10.2. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 13 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Boring Data means the geotechnical field and laboratory raw data provided for actual boring holes expressly identified in the Geotechnical Reports 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 Reports. bridge means a structure that: 1. Has a bridge number, and 2. Carries a (1) utility, (2) railroad, or (3) vehicle, pedestrian, or other traffic over, under, or around obstructions or waterways. Burrowing Owl Management Plan has the meaning given in TP Section 6.4.10.1. Business Day means Monday through Friday, excluding weekends and Holidays. California Test means Department -developed test for determining work quality. For California Tests, go to the METS website. Cal -OSHA means the California Department of Industrial Relations, Division of Occupational Safety and Health. certificate of compliance means a certificate stating the material complies with this Contract. 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 Project Completion means the Notice issued by RCTC to DB Contractor that DB Contractor has achieved Project Completion. 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 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 5.2.4. Certification of Environmental Compliance has the meaning given in TP Section 6.3.1. Certification of Final Design Documents has the meaning given in TP Section 5.2.4. 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; (c) Any addition, omission or change to insurance policy limits or deductibles; and Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 14 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (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; or (e) A change in Governmental Rule which was not in force at issuance of NTP1 but which (i) had been published as a draft bill or draft statutory instrument or otherwise specifically referred to prior to the issuance of NTP1; (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 issuance of NTP1, including adoption of a national interoperability standard; or (iii) is substantially the same as a Governmental Rule in force prior to issuance of NTP1. Change Notice means a Notice delivered by RCTC to DB Contractor pursuant to Section 16.4.1. Change Response has the meaning given in Section 16.4.3. 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 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, Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 15 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 shall include a "claim" from DB Contractor, as that term is defined in Pub. Cont. Code § 9204. 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, the Site or the 1-15 Express Lanes Project; (b) Under Governmental Rules or in equity; or For specific performance, restitution, payment of money (including damages), an extension of time, or any other form of relief. closure means a closure of a traffic lane or lanes, including shoulder, ramp, or connector lanes, within a single traffic control system. Code means the statutory law of the State. Co -Located Office has the meaning given in TP Section 2.2. Collection System means the toll collection system for State Route 91 or Interstate 15 (as applicable). commercial quality means the level of quality meeting the Good Industry Practice. commercial source means and established business operating as a material source for the general public. Commission means the governing body of the Riverside County Transportation Commission. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 16 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Compensable Event means each of the following events: (a) Delay Events (excluding Force Majeure Events); (b) Additional Work resulting from RCTC-Directed Changes for which RCTC has not issued a Change Order or Directive Letter; (c) Any net positive Pavement Adjustment with respect to Package 4 as described in Section 20.6.4(b); (d) Uncovering, removing and restoring Work under Section 7.4.3, where the Work uncovered, removed, or restored is in compliance with this Contract; and (e) Design elements in the TSP Infrastructure Design Document that (i) differ materially from design elements in TP Attachment 19-2 (TCS Infrastructure Baseline), (ii) DB Contractor identifies by Notice to RCTC no later than 30 days after NTP2, and (iii) would result in a material increase in DB Contractor's Cost of performing the Work if implemented. Completion Deadline means 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. 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 Alerts has the meaning given in TP Section 2.4.3.1. Construction Documents means all shop drawings, working drawings, fabrication plans, material and hardware descriptions, specifications, construction quality control reports, construction quality assurance reports and samples necessary for construction of the Project in accordance with this Contract. Construction Manag• has the meaning given in TP Section 2.6.1.2. Construction Notice to Owner has the meaning given in TP Section 7. Construction Quality Assurance Manager has the meaning given in TP Section 2.6.2.1. Construction Quality Management Plan means the plan described in TP Section 5.4.1. Construction Safety Order means the California Construction Safety Orders of the Division of Occupational Safety and Health. 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, for the purposes of construction by any DB-Related Entity, are in place. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 17 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 , 2017, 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, subject to adjustment only in accordance with the express terms of the this Contract. Contractor means the entity identified as "DB Contractor" under this Contract. controlling activity means a construction activity that will extend the scheduled completion date if delayed. 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. Costs means the actual, documented, direct incremental costs of design, construction, commissioning, operation, maintenance, or repair (as applicable). 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 sole discretion. Co -Sureties has the meaning given in Exhibit 8-A. covered transaction has the meaning given in Attachment 2 to Exhibit 14. 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" 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 18 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 19.1.1. 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; (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 Utility Work has the meaning given in Section 8.4.1(c). DBE Performance Plan has the meaning given in Section D of Exhibit 5. DBE Program Administrator has the meaning given in TP Section 2.6.1.8. DBE Regulations has the meaning given in Section 9.1. DB-Related Entities means DB Contractor, Subcontractors or any of, their respective employees, agents, representatives, shareholders, directors and officers and all other Persons for whom DB Contractor may be legally or contractually responsible. debarred has the meaning given in Attachment 2 to Exhibit 14. Delay Event means each of the following events that result in a delay to a Completion Milestone by the relevant Completion Deadline on the Critical Path: (a) Force Majeure Events; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 19 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (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) A change in Project Standards that RCTC directs DB Contractor to implement in accordance with, and subject to the requirements and limitations in, Section 16.13(a); (0 (g) Subject to Section 16.10, Necessary Basic Configuration Changes; 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; (h) Subject to Section 16.12, a Differing Site Condition, provided a Reasonable Investigation and exploration prior to the Effective Date would not have indicated the condition DB Contractor and had no Actual Knowledge of such conditions as of the Setting Date; (i) 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; (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; Q) Department -Caused Delays; (k) 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; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 20 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (1) (m) Unidentified or misidentified Main or Trunkline Utilities to the extent set out in Section 16.11.1(a); and Acts or omissions of any Other RCTC Contractor, except TSP, which materially and adversely directly affects DB Contractor's obligations under this Contract. Demarcation Matrix means the table setting out the responsibilities of DB Contractor and TSP with respect to the 1-15 Express Lanes Project set out in TP Section 19.3. 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 -Caused Delays means failure or inability of Department to: (a) Provide responses to proposed schedules, plans, Design Documents, Construction Documents and other Submittals and matters for which an affirmative response by Department is required within the time period specified in this Contract; (b) Provide design and construction oversight, materials inspection and material and engineering testing services within the time period specified in this Contract; (c) 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 8.10.3; and (d) Notify RCTC of its intent to delegate the Hazardous Materials Management by the expiration of the investigation period specified in Section 8.10.3(b) where DB Contractor is directed by RCTC to undertake the Hazardous Materials Management within the time periods specified in Section 8.10.3. Department Cooperative Agreement means the agreement between RCTC and Department identified in Recital E to this Contract. Department Documents means the Department Standard Plans, Department Revised Standard Plans, the Department Standard Specifications and all other provisions of publications, manuals, handbooks, rules and regulations of Department that are applicable to the type of Work required under this Contract. Department Lane Closure Chart means TP Attachment 18-1. 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. Design -Build Contract Specific DBE Requirements means the requirements set forth in Exhibit 5. Design Documents means all drawings (including plans, elevations, sections, details and diagrams), specifications, reports, calculations, records and other Submittals necessary for design of the Project in accordance with this Contract, following approval thereof by RCTC and others as required by this Contract. Riverside County Transportation Commission Exhibit 1 1-15 Express Lanes Project Page 1- 21 9816780_44 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Design Manager has the meaning given in TP Section 2.6.1.3. Design Quality Assurance Manager has the meaning given in TP Section 2.6.2.2. Design Quality Management Plan means the plan described in TP Section 5.3.1. Design Review means the formal review of an existing or proposed design for the purpose of detection and remedy of design deficiencies that would 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. 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. Differing Site Condition means (a) subsurface or latent physical conditions that are encountered at or near the Site that differ materially from those reasonably assumed by DB Contractor due to 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: (i) 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, 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; and (ii) 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 8.12 (relating to DB Contractor's obligation to obtain and maintain environmental approvals under certain circumstances). The definition of Differing Site Condition excludes Utilities, Hazardous Materials and any differences in groundwater depth from the depths noted in the Reference Documents or otherwise. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 22 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 23.3. District 8 means Department District 8. divided highway means a highway with separated traveled ways for traffic, generally in opposite directions. early completion time means 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. 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. Emergency Action Plan has the meaning given in TP Section 22.2.3.3. End Date has the meaning given in Exhibit 22. Engineer means a Registered Professional Engineer authorized by DB Contractor to perform or furnish professional services in connection with the Work; provided, however, that RCTC has discretion to determine that any references to "engineer" or "Engineer" mean RCTC's authorized representative or a professional providing services directly to RCTC or Department. See Sections 1.6.1(v) and 1.7.2(b). 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 (§§ 21000 et seq. of the California Public Resources Code). Environmental Approvals include the NEPA/CEQA Approval. Environmental Commitments Record means the document entitled "Environmental Commitments Record" included in the NEPA/CEQA Approval. Environmental Compliance Manager has the meaning given in TP Section 2.6.1.4. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 23 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Environmental Laws means (a) 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 emissions, discharges, releases or threatened releases of Hazardous Materials into the environment including into the air, surface water or ground water or onto land, and (b) any requirements and standards that pertain to the protection of the environment, or to the management of Hazardous Materials or emissions, discharges, releases or threatened releases of Hazardous Materials into the environment, contamination of any type whatsoever, or health and safety matters with respect to Hazardous Materials, set forth in any 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; (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; 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.; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 24 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (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.; (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; Riverside County Transportation Commission Exhibit 1 Contract Number: 16-31-057-00 1-15 Express Lanes Project Page 1- 25 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions 9816780 44 March 16, 2017 (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; (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. 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, fault, inconsistency, inaccuracy, deficiency, or other defect. Escrow Acgnt 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 25.1. Event of Default has the meaning given in Section 19.2.1. Exchange Act means the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq., as amended. 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 ROW Acquisition Maps. Subject to TP Section 9, the Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 26 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 limits of Existing Department ROW permitted for use for the Project will be (a) all real property shown in layer A of the "Approximate Department ROW Limits" in TP Attachment 9-3; and (b) all real property 10 feet within the boundary line shown in layer B of the "Approximate Department ROW Limits" in TP Attachment 9-3. Express Lane means any Lane that is either the 1-15 Express Lanes or the SR-91 Express Lanes. Extra Maintenance Work has the meaning given in TP Section 21.4.4 Facilitator for partnering meetings has the meaning given in Exhibit 2. FD Notice to Owner has the meaning given in TP Section 7.2.4. Federal On -the -Job Training Participation Goal has the meaning given in Exhibit 2. 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 the Submittals identified 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 deadline may be extended under this Contract. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 27 Date, as such Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 Payment means payment by RCTC of the final installment of the Contract Price. Financing Documents means all loan agreements, reimbursement agreements, letters of credit, notes, indentures, security agreements, standby purchase agreements, interest rate swap or cap agreements and other documents and instruments and all amendments, supplements and modifications thereto relating to the interim or long-term construction and/or term financing or refinancing of the Project or any activity related thereto, including those issued by a Financing Entity or entered into by RCTC or its trustee with or in favor of any Financing Entity. Financing Entities means shall the financial institution(s) and federal agencies (including their respective agents and participants) providing RCTC with construction, term and/or equity financing or refinancing with respect to the Project or any activity related thereto, including any financial institution(s) (including their agents or participants) providing any credit enhancement and/or liquidity with respect to or financing (including interest rate swap or cap agreements) to pay interest on or to repay bonds, notes or other obligations issued to finance design and construction of the Project. In the event that financing is provided through means other than a credit -enhanced or equity facility, the term "Financing Entities" shall include the bond trustee (including successors thereto and co -bond trustees), paying agent or other designated representative of the bondholders. DB Contractor is specifically excluded from the term. fixed cost means labor, material, or equipment cost directly incurred by a contractor as a result of performing or supplying a particular bid item that remains constant regardless of the item's quantity. 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 account work means work ordered on a construction project without an existing agreement on its cost, and performed with the understanding that the contractor will bill the owner according to the cost of labor, materials, and equipment, plus a certain percentage for overhead and profit. 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, 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; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 28 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (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 Effective 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; (h) The addition of any new condition or requirement in the NEPA/CEQA Approval, subject to the limitations and conditions described in TP Section 6.3.5.2; (i) 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; and Q) Delay in obtaining a Major Approval by the applicable Major Approval Deadline where the delay is not due to differences in the Basic Configuration and DB Contractor's final design. 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, drought, rain, snow, or storm, except as specified in clause (a) above; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 29 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (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),, or 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 fi) above; (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 Q.) above. Form-LLL means the Disclosure Form to Report Lobbying. Generally Accepted Accounting Principles (or 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. 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 Warranty means the general warranty set out Section 13.1.1. Geometric Approval Drawings has the meaning given in TP Section 3.3.1.1. Geotechnical Design Report has the meaning given in TP Section 13.3.3.2. Geotechnical Report means the Pre -Bid Geotechnical Investigation Data Report Santa Ana Bridge (Widen) 1-15 Express Lanes Design -Build Project prepared by Group Delta Consultants and dated October 28, 2016. Good Industry Practice means the exercise of the degree of skill, diligence, prudence, and foresight which would reasonably and ordinarily be expected from a skilled and experienced designer, engineer, 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 30 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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. 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. Habitat Mitigation and Monitoring Plan means the plan described in TP Section 6.4.1.5. 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 31 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (c) Riverside County 1-15 Express Lan 9816780_44 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); 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; 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; Any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; Any flammable substances or explosives, including unexploded ordnance; Any radioactive materials; 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); 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.); Any radon or radon gas; Any methane gas or similar or regulated gaseous materials; Any urea formaldehyde foam insulation; Electrical equipment and components which contain any oil or dielectric fluid containing polychlorinated biphenyls; Pesticides, herbicides or fungicides; 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 Transportation Commission es Project Exhibit 1 Page 1- 32 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 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, Safety and Environmental Work Plan has the meaning given in TP Section 22.2.3. 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 Cesar Chavez Day March 31 st Memorial Day Last Monday in May Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 33 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 31st, 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 EL Lane Closure Charges means the charges owing from DB Contractor to RCTC for certain Lane Closures of 1-15 Express Lanes, in Exhibit 20. 1-15 Express Lanes has the meaning given in Recital A to this Contract. 1-15 Express Lanes Project has the meaning given in Recital A to this Contract. Idle equipment means equipment: 1. On the job site at the start of a delay; 2. Idled because of the delay; and 3. Not operated during the delay. Improved Landscaped 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: Protection in Place of Utilities; (r) Traffic control for Relocation work, to the extent such responsibility is assigned to DB Contractor pursuant to TP Section 7; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 34 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (s) Resurfacing and re -striping of streets; reconstruction of curbs, gutters and sidewalks; reinstallation of signage; and reinstallation or replacement of traffic signals; to the extent such responsibility is assigned to DB Contractor pursuant to TP Section 7; (t) Potholing, electronic detection, surveying and any other methods used to determine Utility locations and other material information concerning Utilities; and (u) Temporary Relocations. Indemnified Claim has the meaning given in Section 22.1.1. Indemnified Parties means RCTC, the members of the Commission, the RCTC Representative, Department, City of Corona, City of Norco, City of Eastvale, City of Jurupa Valley, County of Riverside 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 August 2, 2016, as amended. Instrumentation and Monitoring Program Plan has the meaning given in TP Section 13.3.4.1. 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 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. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 35 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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, 1-15 EL Lane Closure Charges, or SR-91 EL Lane 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. 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). Limited SAR Work has the meaning given in TP Section 1.1.4. Limited Work Approvals has the meaning given in TP Section 1.1.4. Line of Sight Study has the meaning given in TP Section 19.3.3.1. Liquidated Damages has the meaning given in Section 20.1. Listed Subcontractors (or List of Subcontractors) means each of the Major Subcontractors and the other listed Subcontractors identified in Exhibit 2. Local Agencies means the County of Riverside, the cities of Corona, Norco, Eastvale, Jurupa Valley, 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 36 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 or death, 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. 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. Major Approval means: (a) Nationwide Permit 14 Linear Transportation Projects - Section 404 of the Clean Water Act as described in TP Section 6.3.5.1; (b) Modification and Alteration of USACE Project Permit — 33 U.S.C. § 408 as described in TP Section 6.3.5.1; (c) Streambed Alteration Agreement Fish and Game 1602 Lake and Streambed Alteration Program as described in TP Section 6.3.5.1; (d) Water Quality Certification- Section 401 Water Quality Standards Certification as described in TP Section 6.3.5.1; (e) Riverside County Flood Control and Water Conservation District (RCFCWCD) Encroachment as described in TP Section 6.3.5.1; and (f) California Public Utility Commission General Order 88B Permit for modification of the East Corona Overhead Bridge as described in TP Section 8.3.2. 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 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 any Subcontractor that is a party to a Major Subcontract. material means any product or substance specified for use in the construction of a project. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 37 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 material source facility audit means a self -audit and a Department audit evaluating a facility's capability to consistently produce materials that comply with Department standards. Materials Report has the meaning given in TP Section 11.3.8. Maximum Payment Schedule means the schedule described in Section 6.2.3 which constitutes a cap on the aggregate amount of payments which may be made to DB Contractor under this Contract at any specified time. median means 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, when used in Exhibit 3 only means to add to or subtract from an appurtenant part. Monthly Progress Schedule has the meaning given in TP Section 4.3.4. Monthly Progress Report means Progress Report. narrative report means a document submitted with each schedule that discusses topics related to project progress and scheduling. Native Fish Protection Plan has the meaning given in TP Section 6.4.10.4. near critical path means 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 (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 Express Lanes Project Initial Study with Mitigated Negative Declaration/Environmental Assessment with Finding of No Significant Impact, approved and signed on May 4, 2016. Nesting Bird Management Plan has the meaning given in TP Section 6.4.10.3. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 38 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Nonconformance means any aspect of the Work: (a) that does not comply with the requirements of this Contract; 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. Nonstandard Special Provision has the meaning given in TP Section 1.4. Notice has the meaning given in Section 27.11. 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 18.1. 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). NTP1 Submittals has the meaning given in 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 has the meaning given in Section 10.1.2(b). NTP2 Payment Bond Amount has the meaning given in Section 10.1.2(b). NTP2 Performance Bond has the meaning given in Section 10.1.1(b). NTP2 Performance Bond Amount has the meaning given in Section 10.1.1(b). NTP2 Work means the Project excluding the NTP1 Work. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 39 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 obliterate means to place an earth cover over or root, plow, pulverize, or scarify. 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 which for the avoidance of doubt excludes BNSF. Package means each of Package 1, Package 2, Package 3, Package 4 or all of them as the context requires. Package 1 (or Package 1 Turnover) has the meaning given in Section 24.1.2. Package 2 (or Package 2 Turnover) has the meaning given in Section 24.1.2. Package 3 (or Package 3 Turnover) has the meaning given in Section 24.1.2. Package 4 (or Package 3 Turnover) has the meaning given in Section 24.1.2. Package 1 Turnover Deadline has the meaning given in Section 24.1.2. Package 2 Turnover Deadline has the meaning given in Section 24.1.2. Package 3 Turnover Deadline has the meaning given in Section 24.1.2. Package 4 Turnover Deadline has the meaning given in Section 24.1.2. Package Turnover means, for each Package, the stage in the Work where DB Contractor has completed design, construction, and inspection of the following elements: (a) Infrastructure for the Read Point, including gantry, pads, conduit, power and communication to support AVI, LPR, beacons, and all ETC components; (b) A 3,000 foot -long paved and striped EL section that includes two ELs, shoulders, and two -feet wide buffer to perform drive tests for the applicable Turnover Area(s), with the toll gantry constructed approximately within the center of the 3,00 foot -long section; (c) Infrastructure for CCTV, CMS, and Traffic Monitoring Station, including poles, pads, conduit, power, and communication; (d) Infrastructure for VTMS, including poles, pads, conduit, power and communication; (e) Communications (temporary or otherwise) from the relevant Turnover Area(s) to the ROC; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 40 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (f) (g) Commercial power to all of the infrastructure within the relevant Turnover Area(s) and other TCS equipment locations applicable to the Turnover Areas; 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; (h) 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; (i) DB Contractor has measured MRI separately for each 0.10-mile segment of pavement within the Turnover Areas that comprises the applicable Package, and provided such MRI measurements and supporting data to RCTC; with respect to new pavement for the Package (including such additional areas of pavement relating to Package 4 Turnover as described in clause (j)(ii) below): (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 with respect to the Package, and (2) no 0.10-mile segment exceeds an MRI measurement of 85.0; a) In the case of Package 4 Turnover only: (i) a fully tested fiber optic backbone communication network from the 1-15 Corridor to the ROC junction box, ELs paved and striped end to end (including shoulders, two ELs, and a two -feet wide buffer), bridge structures and end -to -end network communications; and (ii) DB Contractor has measured MRI separately for each 0.10-mile segment of pavement within the Project's remaining elements not included in any of the four Packages Turnover Areas that comprises the applicable Package, and provided such MRI measurements and supporting data to RCTC; and (k) All other requirements set out in TP Sections 19.4.1 for each Package. Package Turnover Deadline means the Package 1 Turnover Deadline, Package 2 Turnover Deadline, Package 2 Turnover Deadline or Package 4 Turnover Deadline, as applicable. Paleontological Mitigation Plan has the meaning given in TP Section 6.4.3.1. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 41 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Pavement Adjustment has the meaning set forth in Section 20.6.2. Payment Bond means the NTP1 Payment Bond and the NTP2 Payment Bond, or either of them as the context requires. PE Notice to Owner has the meaning given in TP Section 7. 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 GP Lane Closure means a Permitted Lane Closure of a General Purpose Lane. Permitted 1-15 EL Lane Closure means a Permitted Lane Closure of an 1-15 Express Lane. Permitted SR-91 Express Lane Closure means a Permitted Lane Closure of an SR-91 Express Lane. 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 (a) or (b), RCTC or OCTA (as applicable) approves the closure or blockage in advance and in accordance with TP Section 18.3.3.1, 18.3.3.2, 18.3.3.3, or 18.3.3.4. 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 9-3, 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: 1. standard plans means drawings standard to Department construction projects. 2. revised standard plans means new or revised standard plans. 3. 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 has means the work described in TP Sections 20.4.5 and 6.4.1.5. 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 42 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Conflict Matrix pursuant to TP Section 7. The Preliminary Utility Matrix is included in the Reference Documents. Preliminary Work Package Conflict Matrix means TP Attachment 7-1. Progress Meeting has the meaning given in Section 7.4.4. Progress Report has the meaning given in TP Section 2.5.3. Project means the design and construction of civil infrastructure for 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, and Relocations, to the extent included in the DB Utility Work. 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 design and construction Work is complete, including correction of all Nonconformances in the design and construction Work, completion of Punch List items and Department Safety Review Committee review items; (b) DB Contractor has provided RCTC an updated certification from DB Contractor's Construction Quality Assurance 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 19-1; (c) All conditions to acceptance by Local Agencies, BNSF and Utility Owners have been satisfied; and (d) 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 (e) 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 Environmental Commitment Requirements has the meaning given in TP Attachment 6-1. Project Manager has the meaning given in TP Section 2.6.1.1. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1-43 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Project Management Plan means the Submittal approved by RCTC, describing Quality Assurance and Quality Control activities necessary to manage the development, design, construction, operation, and maintenance of the Project. 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 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. Proposal means the written offer of DB Contractor submitted in response to the Request for Proposals, as it may have been supplemented in accordance with Section 5.8 of the ITP. Proposal Commitment Conditional Element means those options marked with an asterisk (*) in the Proposal Commitments. Proposal Commitments means the table in Attachment 1 to Exhibit 13. Proposal Date means January 10, 2017. Proposal Price means the total price for performance of the Work shown in Form J-2. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 44 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 Information Manager has the meaning given in TP Section 2.6.2.5. Public Outreach Plan has the meaning given in TP Section 2.4.3. Public Records Act has the meaning given in Section 25.6.1. 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 incidental items of Work necessary to correct imperfections which if not completed, will not, individually or collectively, have an 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 Assurance 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 Assurance is a management tool. 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. Quality Manager has the meaning given in TP Section 2.6.1.5. Quality Program has the meaning given in TP Section 5. 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. Railroad Submittal Package has the meaning given in TP Section 8.3.1. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1-45 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 RCTC has the meaning given in the Preamble to this Contract. RCTC-Caused Delays means each of the following events: (a) RCTC-Directed Changes; (b) Subject to complying with Section 8.1.2(1), failure or inability of RCTC to make RCTC-Provided Property available as provided in Section 8.1.2; (c) Failure by RCTC to obtain an RCTC-Provided Approval prior to the date in TP Section 2.5.2; (d) Failure or inability of RCTC to provide responses to proposed schedules, plans, Design Documents, Construction Documents, and other Submittals and matters for which affirmative response by RCTC is required, within the time periods indicated in this Contract; Failure or inability of RCTC or a Utility Owner to complete the Advance Utility Relocation prior to the latest date in Section 8.3; Necessary Basic Configuration Changes to the extent permitted by Section 16.10; 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 17.1.1; and Work stoppages under Section 16.14(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 a Department - Caused Delay arising under Section 16.14(q), but excluding Department -Caused Delays. RCTC Decision means a written decision issued by RCTC pursuant to Section 23.2.3. RCTC-Directed Changes means: any Change which RCTC has directed DB Contractor to perform as described in Section 16.1; 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 8.11.1, any Change in the Work to be performed by DB Contractor as a result of material modifications contained in any final RCTC- Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1-46 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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; (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, 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 26.1. RCTC NEPA/CEQA Re-Validation(s) means environmental documentation prepared by RCTC needed to cover changes to the Project that are not specifically included in the other RCTC- Provided Approvals, to include the following design refinements: (a) Two-lane configuration (i.e., addition of 2nd tolled Express Lane in each direction from El Cerrito Road to Ontario Avenue, and a 2nd tolled Express Lane in the southbound direction form Hidden Valley Parkway to Second Street); (b) Parkridge Avenue Undercrossing Widening; and (c) The Advance Utility Relocation. RCTC Office Space has the meaning given in TP Section 2.2. RCTC-Provided Approvals means the following Governmental Approvals: (a) Biological Opinion (Federal Endangered Species Act, Section 7) from United States Department of the Interior Fish and Wildlife Services, dated April 20, 2016; (b) Multiple Species Habitat Conservation Plan Consistency Determination (Federal Endangered Species Act, Section 10) from Western Riverside County Regional Conservation Authority, dated April 14, 2016; (c) Interstate 15 Express Lanes Project Final Initial Study with Mitigated Negative Declaration/Environmental Assessment with Finding of No Significant Impact, dated May 4, 2016; and (d) Department's Approval of the RCTC NEPA/CEQA Re -Validation. 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 9-3. 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 16.11.3. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 47 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Reasonable Investigation means the following activities by appropriate, qualified professionals prior to the Setting Date: (a) Visit and visual, non -intrusive inspection of the Site and adjacent locations, except areas to which access rights have not been made available by the Setting Date; (b) Review and analysis of all Reference Documents; (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, paleontological and cultural resources, and threatened or endangered species, affecting the Site or surrounding locations; 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 23.4.4. reconstruct when used in Exhibit 3 only, 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 23.6.3, except when used in Section 9.1 and Exhibit 5 it means the DBE Regulations. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1-48 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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. 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. 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 August 1, 2016, including all addenda thereto, and all attachments thereto. Retainage has the meaning given in Section 14.3.1. Revenue Service Commencement 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. River Trails Park Detour Plan has the meaning given in TP Section 6.4.11. roadbed means the roadway portion extending from the curb line to curb line or the shoulder line to shoulder line. A divided highway has 2 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. ROW Acquisition Maps means the right of way maps included in the Project Schematics. ROW Commitment Dates has the meaning given in TP Attachment 9-1. 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 49 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Safety Manager has the meaning given in TP Section 2.6.1.7. 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. Segment has the meaning given in TP Section 3.2.2.6. Segment Limits Map has the meaning given in TP Section 3.2.2.6. 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 control systems, communication systems or irrigation systems. The term also includes any Utility on public or private property that services structures located on such property. Setting Date means the date which is 60 days before the Proposal Date. 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. Sound Wall Design Report has the meaning given in TP Section 6.4.8.2. Source Code and 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 50 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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. 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. Special Design has the meaning given in TP Section 1.4.1. SR-91 EL Lane Closure Charges means the charges owing from DB Contractor to RCTC for Lane Closures of SR-91 Express Lanes, in Exhibit 21. SR-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 1-15. 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 23.6.3. 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 or Exhibit 21 (as applicable). Structure Design means the Offices of Structure Design of the Department of Transportation. 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. subdrade 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 TSP and delivered or submitted 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 Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 51 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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) (g) The required TMS systems (excluding elements to be installed by TSP) are installed and functional in accordance with TP Section 16.4.2; Whether DB Contractor has otherwise 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; and (i) 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 the earlier of DB Contractor's completion of its Work for the relevant Package and acceptance of such Work by RCTC and each of the following having occurred: (i) With respect to Package 1, the earlier of the passage of 180 days after RCTC's determination that DB Contractor has achieved Package 1 Turnover; (ii) With respect to Package 2, the earlier of the passage of 120 days after RCTC's determination that DB Contractor has achieved Package 2 Turnover; Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 52 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (iii) With respect to Package 3, the earlier of the passage of 90 days after RCTC's determination that DB Contractor has achieved Package 3 Turnover; (iv) With respect to Package 4, the earlier of the passage of 60 days after RCTC's determination that DB Contractor has achieved Package 4 Turnover. Substantial Completion Deadline the date that is 1,095 days after the effective date of NTP2 as such date may be extended under this Contract, except where the failure to issue NTP2 is as result of any act or omission of a DB-Related Entity or any DB Contractor Fault, including: (a) DB Contractor's failure to submit and/or obtain RCTC's approval of the (i) Submittals set forth in TP Section 1.1.3 that are designated as requiring approval prior to issuance of NTP2, and other Submittals described in Section 4.1, or (ii) the Baseline Schedule as set forth in Section 6.2.1(c)(i); (b) DB Contractor's failure to submit to RCTC any other Submittals in TP Section 1.1.3 that are designated as requiring submittal prior to issuance of NTP2); or (c) DB Contractor's failure to provide RCTC with office space available for occupancy in accordance with TP Section 2.2; in which case, the "Substantial Completion Deadline" is 1,095 days after the effective date of RCTC's close of its Project financing. substantial defects means defects plainly seen as damaged, displaced, or missing parts or improper functioning of materials, parts, equipment, or systems. substructure means bridge parts below the bridge seats, pier tops, and haunches for rigid - framed bridges or spring lines for arched bridges; 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 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 has the meaning given in TP Section 6.4.14. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 53 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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 Baseline means the baseline requirements for the TCS equipment provided in TP Attachment 19-2. TCS Infrastructure has the meaning given in TP Section 19.3.1. Technical Provisions the part of the Contract identified as Technical Provisions. 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 pursuant to Section 18.1. Termination for Convenience Amount has the meaning given in Section 18.5. 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 16.9. Time and Materials Work means Work performed pursuant to a Time and Materials Change Order. time impact analysis means analysis using a CPM schedule developed specifically to demonstrate the effect a proposed or past change or delay has on the current scheduled completion date. time -scaled network diagram means graphic depiction of a CPM schedule comprised of activity bars with relationships for each activity represented by arrows. The tail of each arrow connects to the activity bar for the predecessor and points to the successor. 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 Services Coordinator has the meaning given in TP Section 2.6.1.6. Tolling Zone means the zone within which a toll transaction takes place, as shown on the Project Schematics. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 54 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 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. Traffic Manager has the meaning given in TP Section 2.6.1.9. Transportation Management Plan means the plan developed by DB Contractor for maintenance of traffic during construction in accordance with TP Section 18.3.1. 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 TSP means Kapsch TrafficCom Transportation NA, Inc., a Michigan corporation. TSP Ready for Construction Certification has the meaning given in TP Section 19.2.2. TSP Infrastructure Design Document means the design requirements for the TCS and TCS Infrastructure provided by TSP to RCTC and DB Contractor in accordance with TP Section 19.2.2. TSP Work has the meaning given in TP Section 19.2.2. tunnel means "Tunnel" as defined in 8 CA Code of Regs. § 8405 et seq. Turnover Area has the meaning given in Section 24.1. 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. Unknown Hazardous Materials means Hazardous Materials that meet all of the following criteria: Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 55 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 (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 the 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 triggering off -Site disposal are considered Unknown Hazardous Materials so long as subparts (a), (b) and (c) of this definition of Unknown Hazardous Materials apply. Unpermitted GP Lane Closure means an Unpermitted Lane Closure of a General Purpose Lane. Unpermitted 1-15 EL Lane Closure means an Unpermitted Lane Closure of an 1-15 Express Lane. Unpermitted SR-91 Express Lane Closure means an Unpermitted Lane Closure of an SR- 91 Express Lane. Unpermitted Lane Closure means such cases where DB Contractor (a) fully or partially closes a General Purpose Lane or Express Lane for any purpose, or (b) fully or partially blocks ingress to or egress from a General Purpose Lane or Express Lane for any purpose, and where, in the case of either (a) or (b), the closure or blockage is not a Permitted 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: 1. Of such unstable nature that it cannot be compacted to the specified density using ordinary methods at optimum moisture content. 2. 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. 3. 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, and (b) traffic signals, Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 56 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 ramp metering systems, flashing beacon systems, and lighting systems for the 1-15 Express Lanes Project. 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 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 Enhancement has the meaning given at Section 8.6.1(a). Utility Information means, collectively, the Preliminary Utility Matrix and Utility Maps included in the Reference Documents. 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 1-15 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. Riverside County Transportation Commission 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 57 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 Utility Strip Map Deadline has the meaning given in Section 6.4.2(a), as such deadline may be extended under this Contract. Value Engineering Change Proposal has the meaning given in Section 26.1. voluntarily excluded has the meaning given in Attachment 2 to Exhibit 14. Warranty or Warranties means the general and express warranties of DB Contractor given under Section 13.1. 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. withhold: Money temporarily or permanently taken from a progress payment. 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 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 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 1-15 Express Lanes Project 9816780_44 Exhibit 1 Page 1- 58 Contract Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit 1 - Abbreviations and Definitions March 16, 2017 E%PRESS 1.1:111f5 RIVERSIDE COUNTY TRANSPORTATION COMMISSION REQUEST FOR PROPOSALS (RFP No. 16-31-057-00) TO DESIGN AND BUILD THE 1-15 EXPRESS LANES PROJECT THROUGH A DESIGN -BUILD CONTRACT VOLUME II: CONTRACT EXHIBITS ISSUED AUGUST 1, 2016 ADDENDUM #1 ISSUED SEPTEMBER 30, 2016 ADDENDUM #2 ISSUED NOVEMBER 10, 2016 ADDENDUM #3 ISSUED DECEMBER 13, 2016 ADDENDUM #4 ISSUED DECEMBER 21, 2016 DRAFT EXECUTION VERSION MARCH 16, 2017 Amide fates Trat5porhrian {an r4N Riverside County Transportation Commission 1-15 Express Lanes Project 4080 Lemon Street, 3rd Floor Riverside, CA 92501 www.rctc.org RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 16, 2017 10308675.v32 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 Design -Build Contract -Specific DBE Requirements EXHIBIT 6 Listed Subcontractors EXHIBIT 7 Subcontractor Identification Form EXHIBIT 8 Bonds EXHIBIT 9 Invoice and Invoice Certificate EXHIBIT 10 NTP1 and NTP2 Payment Schedules EXHIBIT 11 Disputes Review Board Agreement EXHIBIT 12 Insurance Policy Requirements EXHIBIT 13 Proposal Commitments EXHIBIT 14 Federal Requirements 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 General Purpose Lane Closure Charges EXHIBIT 20 1-15 EL Lane Closure Charges EXHIBIT 21 SR-91 EL Lane Closure Charges EXHIBIT 22 Form of Acknowledgement and Consent to Assignment Riverside County Transportation Commission 1-15 Express Lanes Project i RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract March 16, 2017 10308675.v32 EXHIBIT 1 ABBREVIATIONS AND DEFINITIONS [SEE EXHIBIT 1 IMMEDIATELY FOLLOWING CONTRACT] Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 1 Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Abbreviations and Definitions March 16, 2017 1 n'InRR7i'19 No. 1. 2. 3. 4. Clause References Exhibit 1 3.4.2 9.1.2 9.2 EXHIBIT 2 CONTRACT PARTICULARS Issue Contract Price Firm for Design Services DBE Participation Goal Major Subcontractors 5. 9.6 RCTC Representative 6. Listed Subcontractors 7. 9.6 DB Contractor Representative 8. 9.6 Key Personnel 8.1 Project Manager Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 2 Page 1 of 2 $243,900,000 AZTEC Engineering Group, Inc. 10.0% AZTEC Engineering Group, Inc. Security Paving Company, Inc. Michael Blomquist Design Subconsultants Betkon, Inc. Biggs Cardosa Associates, Inc. Coastal Engineering Inc. Diaz Consultants Inc. dba Diaz Yourman & Associates Kimley-Horn and Associates, Inc. Leighton Consulting, Inc. Lynn Capouya, Inc. NCM Engineering Corporation Vandermost Consulting Services, Inc. dba VCS Environmental, Inc. Wagner Engineering & Survey, Inc. Wilson & Company, Inc., Engineers & Architects David Sharpnack David Sharpnack RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Contract Particulars March 16, 2017 1 n'InRR7i'19 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 9. 10. 11. 12. 13. 14. 15. 16. A 17. 18. 9.9 10.1.1(a) 10.1.1(b) 10.1.2(a) 10.1.2(b) 10.1.3 14.3.5 14.3.6 16.B 14.3.6 24.1.2 Exhibit 1 Construction Manager Design Manager Environmental Compliance Manager Quality Manager Toll Services Coordinator Safety Manager DBE Program Administrator Traffic Manager Railroad Coordinator Federal On -the -Job Training Participation Goal NTP1 Performance Bond Amount NTP1 Payment Bond Amount Curtis Scanlan Scott McKenzie Teresa Jakeway Mike Rausch Bill Hadley Scott Thompson Jackie Guilfucci Dennis Putnam Larry Long 48 trainees $20 million $20 million NTP2 Performance Bond Amount $243,900,000 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 Toll System Provider Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 2 Page 2 of 2 $243,900,000 $24,390,000 $10,000,000 $250,000.00 $10,150,000.00 David Sharpnack Kapsch TrafficCom Transportation NA, Inc. RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Contract Particulars March 16, 2017 1 n'InRR7i'19 EXHIBIT 3 MODIFIED STANDARD SPECIFICATIONS (Replacing Sections 1 through 9 of Department's Standard Specifications) Riverside County Transportation Commission Exhibit 3 1-15 Express Lanes Project RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 10308675.v32 EXHIBIT 3 MODIFIED STANDARD SPECIFICATIONS (Replacing Sections 1 through 9) 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 2015 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 2015, 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 the 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 1-15 Express Lanes Project Exhibit 3 Page 1 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DESIGN -BUILD CONTRACT - SPECIFIC DBE REQUIREMENTS 1-15 EXPRESS LANES PROJECT 1 EXHIBIT A MONTHLY SUBCONTRACTORS PAID REPORT 1 EXHIBIT 6 LISTED SUBCONTRACTORS 1 EXHIBIT 7 1-15 EXPRESS LANES PROJECT SUBCONTRACTOR IDENTIFICATION FORM I EXHIBIT 8 BONDS I EXHIBIT 8-A FORM OF PERFORMANCE BOND I EXHIBIT 8-B FORM OF PAYMENT BOND I EXHIBIT 8-C FORM OF WARRANTY BOND I EXHIBIT 9 INVOICE AND INVOICE CERTIFICATE I EXHIBIT 9-A INVOICE I EXHIBIT 10 NTP1 AND NTP2 PAYMENT SCHEDULES I Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 2 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 EXHIBIT 11 DISPUTES REVIEW BOARD AGREEMENT I SECTION 1. ESTABLISHMENT OF BOARD I 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 I EXHIBIT 13 PROPOSAL COMMITMENTS I ATTACHMENT 1 TO EXHIBIT 13 DB CONTRACTOR'S PROPOSAL COMMITMENTS & CLARIFICATIONS 1 ATTACHMENT 2 TO EXHIBIT 13 ATCS I EXHIBIT 14 FEDERAL REQUIREMENTS I ATTACHMENT 1 TO EXHIBIT 14 FEDERAL REQUIREMENTS FOR FEDERAL -AID CONSTRUCTION PROJECTS I ATTACHMENT 2 TO EXHIBIT 14 FEDERAL REQUIREMENTS I ATTACHMENT 3 TO EXHIBIT 14 FEDERAL PREVAILING WAGE RATE I ATTACHMENT 4 TO EXHIBIT 14 EQUAL EMPLOYMENT OPPORTUNITY I ATTACHMENT 5 TO EXHIBIT 14 AFFIRMATIVE ACTION I ATTACHMENT 6 TO EXHIBIT 14 CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING I ATTACHMENT 7 TO EXHIBIT 14 COMPLIANCE WITH BUY AMERICA REQUIREMENTS I ATTACHMENT 8 TO EXHIBIT 14 TRAINING SPECIAL PROVISIONS I EXHIBIT 15 FORM OF GUARANTY I EXHIBIT 16 LABOR CODE REQUIREMENTS I EXHIBIT 17 MAXIMUM PAYMENT SCHEDULE I EXHIBIT 18 FORM OF REQUEST FOR CHANGE ORDER I EXHIBIT 19 GP LANE CLOSURE CHARGES I Riverside County Transportation Commission Exhibit 3 RFP Number: 16-31-057-00 1-15 Express Lanes Project Page 3 of 46 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 EXHIBIT 20 1-15 EL LANE CLOSURE CHARGES I EXHIBIT 21 SR-91 EL LANE CLOSURE CHARGES I EXHIBIT 22 FORM OF ACKNOWLEDGEMENT AND CONSENT TO ASSIGNMENT I EXHIBIT A-1 NOTICE OF EVENT OF DEFAULT UNDER FINANCING AGREEMENT AND EXERCISE OF RIGHTS UNDER COLLATERAL ASSIGNMENT OF DB CONTRACT IV EXHIBIT A-2 NOTICE OF CURE OF EVENT OF DEFAULT UNDER FINANCING AGREEMENT V Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 4 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 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 Riverside County Transportation Commission ("RCTC") partnering with Department furnishes the following in writing: 1. Approvals 2. Authorizations 3. Decisions 4. Notifications 5. Orders 6. Responses Except as otherwise provided in this Contract, the Contractor must submit the following items in writing: 1. Assignments 2. Notifications 3. Proposals 4. Reports 5. Requests, including RFIs, sequentially numbered 6. Subcontracts 7. 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". 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. The specifications are expressed in US customary units except where a referenced document uses the International System of Units as the standard. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 5 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. A reference to a section includes the General specifications for 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. A code not specified as a federal code is a California code. A department not specified as a federal or local agency or department is a California 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 6 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 1-15 Express Lanes Project Exhibit 3 Page 7 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 1-1.11 WEBSITES, ADDRESSES, AND TELEPHONE NUMBERS Websites, Addresses, and Telephone Numbers Reference or agency or department unit Website Address Telephone no. Authorized Material Lists Authorized Material Source Lists http://www.dot.ca.gov/hq/ esc/approved_ products_li st -- -- CA Unified Certification Program's list of certified DBEs http://www.dot.ca.gov/hq/ bep/find_certified.htm __ __ California MUTCD http://www.dot.ca.gov -- -- Department http://www.dot.ca.gov -- -- Department of Conservation, Office of Mine Reclamation http://www.conservation.c a.gov/omr/ __ -- Department of General Services, Office of Small Business and DVBE Services http://www.dgs.ca.gov/dg s/ProgramsServices/Bus Services.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 Accounting, Office of External Accounts Payable http://www.dot.ca.gov/hq/ asc/oap/payments/contac t.htm#conpets1 MAJOR CONSTRUCTION PAYMENT AND INFORMATION UNIT OFFICE OF EXTERNAL ACCOUNTS PAYABLE DIVISION OF ACCOUNTING DEPARTMENT OF TRANSPORTATION P.O. BOX 168043 SACRAMENTO CA 95816-8043 (916) 227- 9013 Division of Construction http://www.dot.ca.gov/hq/ construc/ __ -- Geotechnical Services http://www.dot.ca.gov/hq/ esc/geotech GEOTECHNICAL SERVICES DEPARTMENT OF TRANSPORTATION 5900 FOLSOM BLVD SACRAMENTO CA 95819-4612 (916) 227- 7000 METS http://www.dot.ca.gov/hq/ 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/ma nuals.htm Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 8 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 9 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 Riverside County Transportation Commission 1-15 Express Lanes Project 2 NOT USED Exhibit 3 Page 10 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 Riverside County Transportation Commission 1-15 Express Lanes Project 3 NOT USED Exhibit 3 Page 11 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 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 NOT USED 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 1-15 Express Lanes Project Exhibit 3 Page 12 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 5 CONTROL OF WORK 5-1.01 GENERAL Section 5 includes specifications related to relations of the parties under this Contract and Final Acceptance. 5-1.0203-5-1.12 NOT USED 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's 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 NOT USED 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 NOT USED 5-1.27 RECORDS 5-1.27A General Reserved 5-1.27B Record Retention Retain project records from proposal preparation through: 1. Final payment Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 13 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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, ROTC 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. 5-1.28-5-1.29 NOT USED 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. 5-1.31 JOB SITE APPEARANCE Keep the job site neat. In areas visible to the public: 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 14 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. Roadside vegetation not to be removed 7. Railroads and railroad equipment 8. Nonhighway facilities, including utilities 9. Survey monuments 10. Department's instrumentation 11. Temporary work 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 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 Landscape 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 them Replace plants with plants of the same species. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 15 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 Replace trees with 24-inch-box trees. Replace shrubs with no. 15-container shrubs. Replace ground cover plants with plants from flats. Replace Carpobrotus ground cover plants with plants from cuttings. Plant ground cover plants 1 foot on center. If a plant establishment period is specified, replace plants before the start of the plant establishment period; otherwise, replace plants at least 30 days before Final Acceptance. Water each plant immediately after planting and 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. 5-1.36C NOT USED 5-1.36D Nonhighway Facilities 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. 5-1.37 MAINTENANCE AND PROTECTION 5-1.37A General Maintain and protect work until RCTC has granted relief from maintenance or Final Acceptance has occurred. 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. 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. 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 lb. for single axles 4.1.2. 48,000 lb. for tandem axles 4.1.3. 60,000 lb. total gross load for single vehicles 4.1.4. 110,000 lb. 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: Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 16 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 NOTE: Minimum axle spacing: For 2-axle earthmovers: Axles 1 to 2 = 20 feet 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', 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 fc is shown 5-1.376(2) NOT USED 5-1.376(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 NOT USED 5-1.39 DAMAGE REPAIR AND RESTORATION Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 17 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 5-1.39A General 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. 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. 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 NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 18 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 6 QUALITY CONTROL AND ASSURANCE 6-1 GENERAL 6-1.01 GENERAL Section 6 includes specifications related to quality control and assurance. 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 Documents. 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. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 19 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. Include substantiating data with the substitution request that proves that substitution: 1. Causes no delay 2. Is of equal or better quality and suitability 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 20 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 METS website. 6-2.01 C Authorized Material Lists Section 6-2.01 C 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 METS 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 METS website. 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. Request inspection: 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: Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 21 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 Source Inspection Expense Deductions Item Distancea 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 PTFE bearings, > 2 lots > 300 $10,000 > 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 22 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 6-2.02A General Material production and testing equipment must measure accurately and precisely. 6-2.02B Quality Management Plan Develop, implement, and maintain a QMP. 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 QMP. Allow RCTC access to all QC records. Submit QC test data and QC test results within 2 business days of test completion. 6-2.02C NOT USED 6-2.02D NOT USED 6-2.03 QUALITY ASSURANCE 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 Quality Verification. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 23 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 1-15 Express Lanes Project Exhibit 3 Page 24 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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) NOT USED 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 25 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 26 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 27 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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) 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 28 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 29 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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 location where their safety and the safety of other workers and the traveling public is not compromised. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 30 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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)—(1) NOT USED 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: Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 31 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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) NOT USED 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 (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 NOT USED 7-1.02M(1)-(2) NOT USED 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) NOT USED 7-1.02N NOT USED 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 32 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 7-1.02P-7-1.02Z NOT USED 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. 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. 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 section 39-2.07. Grind existing surfaces to accommodate a following conditions: Riverside County Transportation Commission 1-15 Express Lanes Project concrete pavement, construct the taper with minor HMA under minimum taper thickness of 0.10 foot under either of the Exhibit 3 Page 33 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. 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. Apply a dust palliative for the prevention or alleviation of dust nuisance. 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 34 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. [note] 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 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, Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 35 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 NOT USED 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. 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 NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 36 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 8 PROSECUTION AND PROGRESS 8-1.01 GENERAL Section 8 includes specifications related to prosecuting this Contract and work progress. 8-1.02 NOT USED 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 following topics and documents: 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 DBE and DVBE Final utilization reports 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 NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 37 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 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 CAMP. Make these elements available to RCTC and the CQAM for inspection. If the elements are adequate for use, the CQAM seals them. If manipulation of the security seal occurs, stop material production. Do not resume production until RCTC and CQAM reinspect the device and the CQAM 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. 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: Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 38 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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. 9-1.026(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 NOT USED 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: Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 39 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 Determination of Quantities of Aggregate and Other Roadway Materials Material Quantity determination 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 Fiber') 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. aAt the time of weighing bWeight of water in the fibers must not exceed 15 percent of the dry weight of the fiber. 9-1.03 NOT USED 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 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. Riverside County Transportation Commission Exhibit 3 1-15 Express Lanes Project Page 40 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 41 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 4. Supplies 10. Insurance 5. Small tools that are not consumed by use 11. Incidentals 6. Necessary attachments 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 42 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 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 7.5 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 43 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1nVznRF7vg9 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 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 NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 44 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 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 13.5.2. 9-1.11 B NOT USED 9-1.11 C Payment Time -related overhead includes payment of costs for field -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, such as: 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 Non -allowed costs for home -office overhead are fixed general and administrative costs and expenses for operating your business, such as: 1. General administration 2. Insurance 3. Personnel and Subcontract administration 4. Purchasing 5. Accounting 6. Project engineering and estimating 7. Your other contracts or other businesses 8. Equipment coordination 9. Material deliveries 10. Consultant and legal fees 11. Non -time -related costs and expenses such as mobilization, licenses, permits, and other charges incurred once during this Contract. 12. Additional overhead involved in incentive/disincentive provisions to satisfy and internal milestone or multiple calendar requirements 13. Additional overhead involved in performing additional work that is not controlling activity 14. Overhead costs incurred by your Subcontractors of any tier or Suppliers 9-1.11 D NOT USED 9-1.11 E NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 45 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 1 n'InRR7vq9 9-1.12-9-1.22 NOT USED Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 3 Page 46 of 46 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Modified Standard Specifications March 16, 2017 EXHIBIT 4 PRELIMINARY BASELINE SCHEDULE (NTD - TO BE INSERTED PRIOR TO EXECUTION OF CONTRACT BASED ON PROPOSALS BUT SUBJECT TO RCTC REVIEW AND APPROVAL] Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 4 Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Preliminary Baseline Schedule March 16, 2017 1 n'InRR7i'19 EXHIBIT 5 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DESIGN -BUILD CONTRACT -SPECIFIC DBE REQUIREMENTS 1-15 EXPRESS LANES PROJECT Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 1 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 TABLE OF CONTENTS Page A. POLICY STATEMENT 3 B. CONTRACT ASSURANCE 3 C. DBE GOAL 3 D. DBE PERFORMANCE PLAN 3 E. DBE CERTIFICATION 7 F. COUNTING DBE PARTICIPATION / COMMERCIALLY USEFUL FUNCTION 8 G. GOOD FAITH EFFORTS DETERMINATION 9 H. TERMINATION OF DBE CONTRACTS 11 I. EFFECT OF CONTRACT MODIFICATIONS 11 J. PROMPT PAYMENT PROVISIONS 11 K. COMPLIANCE MONITORING AND ENFORCEMENT 12 L. CONSEQUENCES OF NON-COMPLIANCE 12 M. MONTHLY SUBCONTRACTORS PAID REPORT 13 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 2 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 A. POLICY STATEMENT The Riverside County Transportation Commission (RCTC) has adopted Department's Disadvantaged Business Enterprise (DBE) program for the 1-15 Express Lanes Project (Project) and intends to encourage the participation of DBE businesses on the Project in accordance with this program and regulations of the U.S. Department of Transportation (DOT), Title 49, Code of Federal Regulations (CFR), Part 26 "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs" (DBE Regulations). The DBE Regulations are incorporated into the Design -Build Contract -Specific DBE Requirements by reference. DB Contractor and its Subcontractors and Suppliers will take all necessary and reasonable steps to ensure that DBEs as defined in 49 CFR Part 26, have an equal opportunity to participate in the Project. In the event of any conflicts or inconsistencies between the DBE Regulations and the Design -Build Contract -Specific DBE Requirements, the DBE Regulations shall prevail. B. CONTRACT ASSURANCE DB Contractor, and its Subcontractors and Suppliers, shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. DB Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT -assisted contracts. 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, which may include: ■ Withholding monthly progress payments; ■ Assessing sanctions; ■ Assessing liquidated damages; and/or ■ Disqualifying DB Contractor from future bidding opportunities as non -responsible. DB Contractor shall insert in each Subcontract all of the stipulations contained in these Design -Build Contract -Specific DBE Requirements, and further require their inclusion in any lower tier Subcontract or purchase order that may in turn be made. These requirements shall not be incorporated by reference in any case. DB Contractor shall be responsible for compliance by any Subcontractor or lower tier Subcontractor with these requirements. C. DBE GOAL The DBE goal established for this Contract is 10.0% as defined in Section 9.1.2 of the Contract. D. DBE PERFORMANCE PLAN DB Contactor submitted to RCTC as part of its Proposal a substantive outline of its DBE Performance Plan. RCTC will deliver to DB Contractor RCTC's comments on the outline of DB Contractor's DBE Performance Plan within thirty (30) days after the Effective Date. Based on these comments, DB Contractor shall submit to RCTC, within thirty (30) days Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 3 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 after receiving such comments, a proposed -final DBE Performance Plan. The proposed - final DBE Performance Plan is subject to further review and comment by RCTC and to RCTC's approval prior to and as a condition to issuance of NTP2, in accordance with Section 6.3.1 of the Contract. Once approved by RCTC, DB Contactor shall update the final DBE Performance Plan on a quarterly basis to reflect then -current circumstances. The elements required in the DBE Performance Plan are set forth below. DBE PERFORMANCE PLAN ELEMENTS 1. Introduction • Description of DB Contractor's understanding of the Design -Build Contract -Specific DBE Requirements, including the DBE goal for the Contract, and statement that DB Contractor will commit to achieve the DBE goal and gain meaningful DBE participation in all aspects of the Contract work. • Identification of DB Contractor's DBE Program Administrator and statement that the DB Contractor's DBE Program Administrator has reviewed, fully understands, and is responsible for implementing DB Contractor's DBE Performance Plan. • Statement that DB Contractor has identified elements of the Work of a size and scope that DBEs can reasonably perform, and that DB Contractor is committed to implementing this DBE Performance Plan in good faith to meet the DBE goal. 2. DBE Commitments • DB Contractor shall list the names and addresses of DBE firms that have committed to participate as Subcontractors or Suppliers along with a description of the work that each DBE will perform, the dollar amount of the participation of each DBE firm participating, written documentation of the DB Contractor's commitment to use each listed DBE, and a current DBE certification for each listed DBE firm. • DBE firms that commit to participate as Subcontractors or Suppliers, and which are known as of the Proposal Submittal Deadline, must be identified (together with the information described above) in the substantive outline of its DBE Performance Plan submitted with the Proposal. • DBE firms that commit to participate as Subcontractors or Suppliers after the Proposal Submittal Deadline must be identified (together with the information described above) in the proposed -final, final, or quarterly updates to the DBE Performance Plan, as appropriate, based on when the DBE firms commit. 3. DBE Participation Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 4 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 • DB Contractor shall provide a complete description of Work it will self - perform and Work that will be performed by its Subcontractors, including DBEs. DB Contractor shall also list all remaining Subcontract scopes and related costs, and define those scopes to be committed to DBEs. These elements shall be segregated into professional service and construction related categories. This listing should clearly show how the DB Contractor plans to meet the DBE goal for the Project. • This above Subcontract listing should also provide a general timeline of anticipated bid/award times for the remaining Subcontract scopes. • DB Contractor should describe the extent to which Major Subcontractors will assist in providing subcontract opportunities to DBEs. • Due the significant size of the Project, DB Contractor shall make every effort to break down the work scopes into economically feasible units to facilitate DBE participation on the Project. 4. DBE Supportive Services • DB Contractor shall identify potential barriers to DBE participation and describe plans to mitigate these barriers, including, but not limited to, bonding and insurance requirements, Subcontract scope, bidding processes, communications, financing, prompt payment and payment of retainage. As part of DB Contractor's efforts to overcome these barriers, it shall provide on -going supportive services to DBEs. • DB Contractor shall cooperate with RCTC to actively promote Small Business conferences, programs and supportive services currently offered by peer agencies which have mature DBE and Small Business Programs and are seeking increased DBE and Small Business participation in their programs. • DB Contractor shall describe efforts to make Project plans, specifications and requirements available to DBEs. 5. DBE Communications • DB Contractor shall carry out a communications effort to inform DBEs of opportunities that may be available with DB Contractor on the Project. The communications activities should be described here and should minimally include the following elements: a. Efforts to advertise opportunities in various media (list such media outlets) b. Plans to utilize Small, Minority and Women Business organizations (list such organizations) c. Plans for DBE outreach events facilitated by DB Contractor, to highlight current and upcoming subcontracting opportunities. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 5 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 d. Other vehicles that will be used to notify DBEs of opportunities. 6. DBE & SBE Directory • DB Contractor shall provide statement describing its commitment to utilize the online directory of certified DBEs, found at the California Unified Certification Program (CUCP) website: www.CaliforniaUCP.orq, in its efforts to identify DBEs. 7. DBE Quarterly Strategy Meetings • Quarterly meetings shall be held between DB Contractor's DBE Program Administrator and RCTC to discuss the DBE Performance Plan and DBE commitments/attainments. Updates shall be made to the DBE Performance Plan, as needed but at least quarterly, to reflect changed circumstances. The meetings will be held at DB Contractor's project office. 8. DBE Program Reporting • DB Contractor shall develop a reporting format, to be included in the final DBE Performance Plan, which addresses the below reporting elements. This report is due to RCTC by the 10th day of the month following the reporting month. a. b. c. Written narrative of progress in meeting the DBE requirements: DB Contractor shall provide a summary of the activities undertaken during the reporting month. Key accomplishments, DBE Program challenges, and activities for the next reporting month are to be provided. Report of commitments and payments to DBEs and other Subcontractors. This report shall provide information on initial and any subsequent changes to Subcontractor commitments (all Subcontractors at all tiers), along with any payments made to each Subcontractor. The DB Contractor may develop a report format of its choosing, or adopt the Monthly Subcontractors Paid Report attached to this document. Any report format developed by the DB Contractor must minimally include all information requested in the Monthly Subcontractors Paid Report and be approved by RCTC prior to use. Compliance with prompt payment and payment of retainage requirements: This element provides information on DB Contractor's compliance with prompt payment and retainage payment requirements. DB Contractor is to pay each Subcontractor participating on the Project for satisfactory performance of its contract no later than 7 days from the receipt of each payment the DB Contractor receives from RCTC. Additionally, DB Contractor to make prompt and full payment of any retainage owed to Subcontractors for satisfactory completion of the Subcontractor's work within 30 days after Subcontractor's Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 6 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 work has been satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of RCTC. Report format is to be developed by the DB Contractor and should minimally include enough information for RCTC staff to identify dates of payments made to all Subcontractors relative to prompt payment and payment of retainage requirements. d. Information on new Subcontractors added to DB Contractor's team, at all tiers, and Information on contract changes for all Subcontractors on DB Contractor's team, at all tiers, including the name of the Subcontractor or Supplier, the total dollar amount of the Subcontract, the specific work items covered by the Subcontract, estimated quantities of each work item. A copy of all executed Subcontracts and/or purchase orders, at all tiers, shall be submitted to RCTC within 14 days after request is made by RCTC. e. Schedule of upcoming Subcontract procurements, including specification of procurements targeted towards DBEs and Small Businesses. f Bidders List DB Contractor submitted a Bidders List at time of Proposal. The intent of the Bidders List, as specified by the DBE Regulations, is to identify all firms seeking (through bid or proposal) to participate on the Project. For this reason, the DB Contractor shall continue to update the Bidders List with information on all firms bidding on Project contract elements subsequent to Project award for the duration of the Project. The following information shall be included in the Bidders List. DB Contractor has the option of using the Bidders List forms provided in the ITP document, or to develop a similar form that minimally captures the above stated information: 1 Firm Name; 2. Address; 3. Years in Business; 4. Status as a DBE or non -DBE; 5. Type of Work; and 6. Annual Range of Gross Receipts. E. DBE CERTIFICATION RCTC will accept DBE certifications from certifying member agencies of the CUCP. For more information about the certification process or to apply for certification, firms should visit the CUCP website at www.californiaucp.org. If a DBE firm is decertified during the life of the Project, the decertified firm shall notify DB Contractor in writing with the date of decertification. If a Subcontractor or Supplier becomes a certified DBE during the life of the Project, the Subcontractor or Supplier Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 7 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 shall notify DB Contractor in writing with the date of certification. DB Contractor shall furnish the written documentation to RCTC. F. COUNTING DBE PARTICIPATION / COMMERCIALLY USEFUL FUNCTION RCTC will count DBE participation toward the DBE goal for the Contract as provided in 49 CFR §26.55. RCTC will utilize the following guidelines in determining the percentage of DBE participation that will be counted toward the contract DBE goal: 1. If a firm is not currently certified as a DBE, in accordance with the standards of Subpart D of the regulations (49 C.F.R. §26.55(f)), at the time of the due date for the Proposals, the firm's participation toward any DBE goals will not be counted, except as provided for in 49 C.F.R. §26.87(i); 2. The dollar value of the work performed under a contract with a firm after it has ceased to be certified will not be counted toward the overall goal; 3. The participation of a DBE Subcontractor or Supplier toward DB Contractor's DBE achievements or the overall goal will not be counted until the amount being counted toward the goal has been paid to the DBE; 4. When a DBE participates in the Contract, the value of the work actually performed will be counted as follows: a. The entire amount of the portion of a construction contract (or other contract not covered by paragraph 49 C.F.R. §26.55 that is performed by the DBE's own forces). Include the cost of supplies and materials obtained by the DBE for the work, including supplies purchased or equipment leased by the DBE (except that supplies and equipment the DBE Subcontractor purchases or leases from DB Contractor or its Affiliate(s) will not be counted); b. The entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a USDOT- assisted contract, count toward DBE goals, provided that RCTC determines the fee to be reasonable and not excessive as compared with fees customarily allowed for similar services; c. When a DBE subcontracts part of the work of its Subcontract to another firm, the value of the subcontracted work may be counted toward DBE goals only if the DBE's Subcontractor is itself a DBE. Work that a DBE subcontracts to a non -DBE firm will not count toward the DBE goal; d. When a DBE performs as a participant in an approved joint venture, RCTC will count a portion of the total dollar value of the Subcontract equal to the distinct, clearly defined portion of the work of the Subcontract that the DBE performs with its own forces toward DBE goals; and Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 8 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 e. RCTC will count expenditures of a DBE Subcontractor of Supplier toward DBE goals only if the DBE is performing a commercially useful function on that Subcontract in accordance with 49 C.F.R. §26.55. G. GOOD FAITH EFFORTS DETERMINATION 1. Time of Proposal RCTC will determine whether DB Contractor made sufficient good faith efforts to meet the goal, in accordance with 49 C.F.R. §26.53 and Exhibit A thereto. DB Contractor must show that it took all necessary and reasonable steps to achieve the DBE goal or other requirement of 49 C.F.R. Part 26, which, by its scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if it were not fully successful. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. Compliance will be determined on a case -by -case, based on a review of documentation of the following types of activities: a. Soliciting, through all reasonable and available means (e.g., attendance at pre- proposal/pre- letting meetings, advertising and/or written notices), the interest of all certified DBEs who have the capability to perform the Work. DB Contractor must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. DB Contractor must determine with certainty if the DBEs are interested by taking appropriate steps to follow up on the initial solicitations; b. Selecting portions of the Work to be performed by DBEs in order to increase the likelihood that the DBE goal will be achieved. This includes, where appropriate, breaking out the Work into economically feasible units to facilitate DBE participation even when DB Contractor might otherwise prefer to perform those portions of the Work with its own forces; c. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation; d. Negotiating in good faith with interested DBEs. DB Contractor has the responsibility to make a portion of the Work available to DBE Subcontractors and Suppliers, to select those portions of the Work or material needs consistent with the available DBE Subcontractors and Suppliers so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of the DBEs that were considered; a description of information provided regarding the plans and specifications for the work selected for contracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work; e. DB Contractor using good business judgment would consider a number of factors in negotiating with Subcontractors and Suppliers, including those who are DBEs, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for DB Contractor's failure to meet the DBE Contract goal, as long as such costs are reasonable. Also, the ability or desire of DB Contractor to perform the Work with Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 9 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 its own organizations does not relieve the DB Contractor of the responsibility to make good faith efforts. DB Contractor is not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable; f. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. DB Contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non -union employee status) are not legitimate causes for rejection or non -solicitation of proposals/bids in DB Contractor's efforts to meet the DBE Project goal; g• Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by RCTC or DB Contractor; h. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials or related assistance or services; and i. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state and federal offices of minority/women business assistance; and other organizations, as allowed on a case -by -case basis, to provide assistance in the recruitment and placement of DBEs. 2. Continuing Good Faith Efforts During the term of the Contract, DB Contractor will make good faith efforts to ensure that DBEs have maximum opportunity to successfully perform on the Contract, and that DB Contractor meets its DBE goal. These efforts shall include but not be limited to the following: a. Negotiating in good faith to attempt to finalize a Subcontract with DBEs committed to prior to Contract award; b. Continuing to provide assistance to DBE Subcontractors and Suppliers in obtaining bonding, lines of credit, etc., if required by the Subcontract; c. Notifying a DBE in writing of any potential problem and attempting to resolve the problem prior to formally requesting RCTC's statement of no objection to substitute the DBE; d. As with all Subcontractors and Suppliers, timely payment of all monies due and owing to DBE Subcontractors and Suppliers; e. Timely submittal of "Good Faith Efforts" information and documentation to RCTC throughout the Contract, as Subcontracts are let and new Subcontractors and Suppliers are selected; f. Informing RCTC in a timely manner of any problems anticipated in attaining the DBE participation goal committed to in the Proposal; and g• If DB Contractor or any of its Subcontractors or Suppliers requests a substitution of a DBE firm, DB Contractor or its Subcontractors or Suppliers must exert good Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 10 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 faith efforts to replace the DBE firm with another DBE firm, subject to RCTC's statement of no objection. H. TERMINATION OF DBE CONTRACTS RCTC requires that DB Contractor, and its Subcontractors and Suppliers, not terminate for convenience a listed DBE Subcontractor or Supplier and then perform the Work of the terminated Subcontract with its own forces or those of an affiliate, without prior written consent of RCTC. The request for removal must be made in writing to RCTC. RCTC may provide such written consent only if the DB Contractor has good cause (as defined in 49 C.F.R. §26.53 f(3)) to terminate the DBE firm. If a DBE Subcontractor or Supplier is terminated or fails to complete its work on a Subcontract for any reason, DB Contractor must make good faith efforts to find another DBE Subcontractor or Supplier to substitute for the original DBE. These good faith efforts must be directed at finding another DBE to perform at least the same amount of work under the Subcontract as the DBE that was terminated, to the extent needed to meet the Contract DBE goal. I. EFFECT OF CONTRACT MODIFICATIONS Change Orders and/or contract modifications may have the effect of increasing the total Contract Price. The DBE Contract goal shall be based on the final total Contract Price. These revised dollar values shall be reflected in the monthly report submitted to RCTC. J. PROMPT PAYMENT PROVISIONS The DBE Program, 49 C.F.R. Part 26, requires that any delay or postponement of payment over 30 days may take place only for good cause and with RCTC's prior written approval. Any violation of this provision shall subject the violating DB Contractor or Subcontractor to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the DB Contractor or Subcontractor in the event of a dispute involving late payment or nonpayment by the DB Contractor, deficient subcontract performance, or noncompliance by a Subcontractor. Any delay or postponement of payment from the above -referenced timeframes may occur only for good cause following written approval from RCTC. Failure to comply with this provision without prior approval from RCTC will constitute noncompliance, which may result in the application of appropriate administrative sanctions, including, but not limited to, withholding of payment to the DB Contractor of two percent (2%) of the invoice amount due per month, for every month that full payment is not made in accordance with these prompt payment requirements. 1. Prompt Progress Payments to Subcontractors RCTC will include a contract clause that will require the DB Contractor to pay each Subcontractor participating on the Project for satisfactory performance of its contract no later than 7 days from the receipt of each payment the DB Contractor receives from RCTC. Any delay or postponement of payment from the above referenced time frame Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 11 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 may occur only for good cause following written approval of RCTC. This clause applies to both DBE and non -DBE Subcontractors. 2. Payment of Retention Withheld from Subcontractor RCTC elects to hold retainage from the Project DB Contractor. RCTC will provide prompt and regular incremental acceptances of portions of the work on the Project and pay retainage to the DB Contractor based on these acceptances. RCTC will include a contract clause that will require the DB Contractor to make prompt and full payment of any retainage owed to Subcontractors for satisfactory completion of the Subcontractor's work within 30 days after Subcontractor's work has been satisfactorily completed. K. COMPLIANCE MONITORING AND ENFORCEMENT a. DB Contractor shall maintain records and shall require its Subcontractors and Suppliers that are utilizing DBE firms in their Subcontracts to maintain records to verify DBE participation as set forth in the Proposal and as modified during the course of the Contract. Such records shall show the name and business address of each DBE participating in the Contract, including DBE firms participating through Subcontracts, and the total dollar amount actually paid to each DBE and the date of payment. b. RCTC will monitor the DB Contractor's compliance with the DBE Program requirements through monthly reports submitted by the DB Contractor. This report is due no later the 10th of each month until Project completion. These reports will be in a format to be developed by the DB Contractor and approved by RCTC (see DBE Performance Plan requirements), which will address all the reporting requirements of the DBE Program. RCTC will review the monthly report to monitor and determine whether the utilization of DBE firms is consistent with the commitment of the DB Contractor, as stated in its Proposal (DBE Performance Plan). c. RCTC may perform interim audits of contract payments to DBEs. The audit will review payments to DBE Subcontractors to ensure that the actual amount paid to DBE Subcontractors equals or exceeds the dollar amounts committed. d. A final monthly report shall be submitted with the Request for Final Payment. e. RCTC will bring to the attention of the USDOT any false, fraudulent, or dishonest conduct in connection with the program, so that USDOT can take the steps provided in 26.107 (e.g., referral to the Department of Justice for criminal prosecution, referral to the USDOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules). Additionally, RCTC will consider similar action under its own legal authorities, including responsibility determinations in future contracts. L. CONSEQUENCES OF NON-COMPLIANCE a. BREACH OF CONTRACT - Failure to carry out the DBE requirements specified in the Contract constitutes a breach of contract. RCTC will notify DB Contractor and the USDOT of such breach, including notification that the breach may result Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 12 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 in termination of the Contract by RCTC or imposition of other appropriate remedy and/or sanctions. This notice is given pursuant to 49 C.F.R. Part 26. b. NOTICE - If DB Contractor or any Subcontractor or Supplier is deemed to be in non-compliance with DBE requirements, DB Contractor will be given notice by RCTC in writing, delivered by certified mail, of the non-compliance finding. The notice will specify the non-compliance circumstances identified by RCTC and define a corrective action(s) with dates to be implemented by the DB Contractor. DB Contractor will have 5 working days to respond to the notice of non- compliance with information that demonstrates DB Contractor compliance with DBE requirements at question. If no such response is provided by the DB Contractor, then DB Contractor will be required to implement the corrective action(s) identified in the notice. Failure to properly and timely implement a corrective action(s) will subject the DB Contractor to sanctions up to and including contract termination. c. SANCTIONS — If it is determined that the DB Contractor fails to properly implement a corrective action, DB Contractor may be subject to withholding of progress payments for all or part of the payment until satisfactory action has been taken. In severe cases of non-compliance, remedies may include assessment of liquidated damages and consideration of contract termination. d. DBE LIQUIDATED DAMAGES — As defined in 49 C.F.R. Part 26, if it is determined that DB Contractor is not implementing its DBE Performance Plan in good faith, the DB Contractor may be required to pay DBE liquidated damages for an amount to be determined by RCTC. M. MONTHLY SUBCONTRACTORS PAID REPORT See attached report in Exhibit A. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 5 Page 13 of 13 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 EXHIBIT A MONTHLY SUBCONTRACTORS PAID REPORT Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit A to Exhibit 5 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1 n'InRR7i'19 miig:?I' Reporting Period (Month/Year) Report Number 2) Project Location Date Prepared i■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■r:■■■■■■■■■■■■■■■■■■■ 1) Project Name 3) Contract Number 4) Original Contract Award Amount 5) Contract Award Date 6) Current Contract Value 7) RCTC Payment to Prime This Month 8) Total Amount Paid to Prime to Date 9) Date of Last Progress Payment Received from RCTC 10) Percent of Project Complete 11) DBE Goal Percentage (committed) ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ 12) Prime Contractor 13) Contact Person 14) Street Address 15) City/State/Zip 16) Area Code/Phone No. 17) Email Address i i■ i i■—■ i-0—■ i-0—■ i■ i-0—■iY■ i■ i-0—■ i-0—i ■—i ■—■ i■ i-0—■—■—E—■iY■ i■ i■ i ■iYi ■—■ i■ 18) SUBCONTRACTOR/SUPPLIER Dollars Paid This Month Dollar Amount Paid to Date Schedule Activity ID(Construction only) Type of Work Performed Original Dollar Amount Committed Dollar +/- resulting from Change Order Activity Subcontractor/Supplier #1 1 1 1 1 1 1 Name Address Area Code/Phone Contact Person Subcontractor/Supplier #2 ), ), ), 1 1 j, Name Address Area Code/Phone Contact Person Subcontractor/Supplier #3 j, ), j, 1 1 ), Name Address Area Code/Phone Contact Person Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit A to Exhibit 5 Page 1 of 4 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 10308675_v37 Im.S25° Reporting Period (Month/Year) Report Number Date Prepared Subcontractor/Supplier #_ 1 1 1 1 1 1 Name Address Area Code/Phone Contact Person Subcontractor/Supplier #_ 1 1 1 Name Address Area Code/Phone Contact Person Subcontractor/Supplier #_ 1 1 1 d 1 1 Name Address Area Code/Phone Contact Person Subcontractor/Supplier #_ 1 1 1 1 1 1 INSTRUCTIONS The DB Contractor shall make prompt payment of all monies due and owed to DBE and non -DBE firms within 7 business days upon receipt of payment from Riverside County Transportation Commission (RCTC) per the Contract. Payment of retention shall be made to all DBE and non -DBE subcontractors within 30 days after satisfactory completion of the subcontracted work. This form is due to RCTC by the 10th of each month and should reflect all payments made to subs through the last day of the previous month. The DB Contractor must report monthly, even if the sub(s) did not perform any work for the previous month. Please forward signed original documents by email and/or fax. Please duplicate this sheet if additional space to report subcontractor information is needed. Completed By: Name Riverside County Transportation Commission 1-15 Express Lanes Project Signature Exhibit A to Exhibit 5 Page 2 of 4 Date RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 10308675_v37 Reporting Period (Month/Year) Report Number Date Prepared Invoice Payment Histor DBE Subcontractors/Suppliers Sub/Su lier Sub/Supplier #1 Sub/Su lier p #2 Sub/Sup lier #3 Sub/Sup lier #4 Sub/Sup lier #s Sub/Sup lier #6 DBE Sub/Supplier Total Invoice Numbers Invoice Date and Date Paid Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ GRAND TOTAL (Paid to Date) Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit A to Exhibit 5 Page 3 of 4 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 1030SA75_v32 Instructions — Summary of Monthly DBE Payments Information DB Contractor: This form requires specific information regarding the disadvantaged business enterprise and other subcontractors paid on this construction contract. The form must be completed for all subcontractors performing on the contract. The form requires that the Reporting Period (month/year) be included. A Report Number should also be completed. This field should include a sequential number with the first form having number "1". The date prepared should also be included. IMPORTANT: Identify all firms that were paid during the reporting period for the project, regardless of tier. Names of the First Tier Subcontractors and their respective item(s) of work listed should be consistent, where applicable, with the names and items of work in the "List of Subcontractors" submitted with your bid. There is a column for the "Dollars Paid This Month". Enter the Total amount paid for each firm for the reporting period. Also include the total amount paid to date, which shall include the amount paid for the current reporting period. Include the Schedule Activity ID for construction contracts. Include a brief description for the type of work performed. The original dollar amount committed to the firm should be included in the appropriate Column and any increase or decrease in the subcontract amount resulting from a change order shall be included in the "Dollar +/- resulting from Change Order Activity" column. This form must be signed and dated by the prime contractor's representative that is responsible for reporting DBE compliance matters. The form (or an equivalent form) must be submitted along with the DB Contractor's monthly report. Riverside County Transportation Commission Exhibit A to Exhibit 5 1-15 Express Lanes Project Page 4 of 4 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Design -Build Contract -Specific DBE Requirements March 16, 2017 10308675_v37 EXHIBIT 6 LISTED SUBCONTRACTORS Entity Name/Contact Address of Head Office California Contractor License and License Limit (if applicable) Scope of Work Is the Firm a Certified DBE Aztec Engineering Group, Inc. Scott McKenzie 4561 E. McDowell Rd. Phoenix, AZ 85008 Not applicable Lead Engineering Firm / Design No Betkon, Inc. Heather McGuffin 10700 Jersey Blvd., Suite 680 Rancho Cucamonga, CA 91730 Not applicable Public Outreach No Coastal Engineering, Inc. Jianxiong Yu 5653 Stoneview Rd. Rancho Cucamonga, CA 91739 Not applicable Utilities Coordination No Diaz-Yourman & Associates Christopher M. Diaz 1616 E. 17th St. Santa Ana, CA 92705 Not applicable Geotechnical Yes Kimley-Horn and Associates, Inc. Jean B. Fares, P.E. 21820 Burbank Blvd., Suite 230 Woodland Hills, CA 91367 Not applicable Traffic Management System and Toll Collection System Infrastructure No Leighton Consulting, Inc. Thomas C. Benson, Jr., PE, GE 17781 Cowan Irvine, CA 92614 CL: 858635 Geotechnical No Lynn Capouya, Inc. Lynn Capouya 17992 Mitchell Ave., Suite 110 Irvine, CA 92614 Not applicable Landscape Architecture No NCM Engineering Corporation Edward Ng 22362 Gilberto, Suite 125 Rancho Santa Margarita, CA 92679 Not applicable Structures No Security Paving Company, Inc. Joseph Ferndino 13170 Telfair Ave. Sylmar, CA 91342 116307 Concrete Paving No Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 6 Page 1 of 2 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit Listed Subcontractor March 16, 2017 1 n'InRR7i'19 Entity Name/Contact Address of Head Office California Contractor License and License Limit (if applicable) Scope of Work Is the Firm a Certified DBE Vandermost Consulting Services, Inc. dba VCS Environmental, Inc. Julie Beeman 30900 Rancho Viejo Rd., Suite 100 San Juan Capistrano, CA 92675 Not applicable Environmental Yes Wagner Engineering & Survey, Inc. Stephanie Wagner 17134 Devonshire St., Suite 200 Northridge, CA 91325 PE License: C46979 PLS License: C5752 Land Surveying Yes Wilson & Company, Inc., Engineers and Architects Larry g Lon 4900 Lang Ave. NE Albuquerque, NM 87109 Not applicable Traffic, Structures, Roadway, Drainage, Tolling Coordination, Railroad Coordination No Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 6 Page 2 of 2 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibit Listed Subcontractor March 16, 2017 1 n'InRR7i'19 EXHIBIT 7 1-15 EXPRESS LANES PROJECT SUBCONTRACTOR IDENTIFICATION FORM Subcontractor Name, Address, Telephone No., License Number Description of Subcontract Work Dollar Amount of Subcontract Est. Time of Performance Aztec Engineering Group, Inc. 4561 E. McDowell Rd. Phoenix, AZ 85008 (602) 454-0402 Lead Engineering Firm / Design Betkon, Inc. 10700 Jersey Blvd., Suite 680 Rancho Cucamonga, CA 91730 (760) 964-1124 Public Outreach Coastal Engineering, Inc. 5653 Stoneview Rd. Rancho Cucamonga, CA 91739 (626) 757-2398 Utilities Coordination Diaz-Yourman & Associates 1616 E. 17th St. Santa Ana, CA 92705 (714) 245-2920 Geotechnical Kimley-Horn and Associates, Inc. 21820 Burbank Blvd., Suite 230 Woodland Hills, CA 91367 (747) 900-8400 Traffic Management System and Toll Collection System Infrastructure Leighton Consulting, Inc. 10532 Acacia St., Suite B-6 Rancho Cucamonga, Geotechnical Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 7 Page 1 of 3 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Subcontractor Identification Form March 16, 2017 1 n1(151P7 „Zo CA 91730 (909) 527-8771 CL: 858635 Lynn Capouya, Inc. 17992 Mitchell Ave., Suite 110 Irvine, CA 92614 Landscape Architecture NCM Engineering Corporation 4740 Green River Rd., Suite 218 Corona, CA 92880 (951) 339-9979 Structures Security Paving Company, Inc. 13170 Telfair Ave. Sylmar, CA 91342 (818) 362-9200 CL: 116307 Concrete Paving Vandermost Consulting Services, Inc. dba VCS Environmental, Inc. 30900 Rancho Viejo Rd., Suite 100 San Juan Capistrano, CA 92675 (949) 489-2700 Environmental Wagner Engineering & Survey, Inc. 17134 Devonshire St., Suite 200 Northridge, CA 91325 (818) 892-6565 PE: C46979 PLS: C5752 Land Surveying Wilson & Company, Inc., Engineers and Architects 625 E. Carnegie Dr., Suite 100 San Bernardino, CA 92408 Traffic, Structures, Roadway, Drainage, Tolling Coordination, Railroad Coordination Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 7 Page 2 of 3 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Subcontractor Identification Form March 16, 2017 1 n1(151P7 „Zo (909) 806-8000 DB Contractor: Skanska-Ames a Joint Venture Date: Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 7 Page 3 of 3 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Subcontractor Identification Form March 16, 2017 1111nSIP7 „Zo 8-A Performance Bond 8-B Payment Bond 8-C Warranty Bond Riverside County Transportation Commission 1-15 Express Lanes Project EXHIBIT 8 BONDS Exhibit 8 Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Bonds March 16, 2017 10308675.v32 EXHIBIT 8-A FORM OF PERFORMANCE BOND [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.: 16-31-057-00 THAT WHEREAS, the Riverside County Transportation Commission, a public entity of the State of California ("RCTC" as the primary Obligee) has awarded to Skanska-Ames 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 1-15 Express Lanes 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 Zurich American Insurance Company/Fidelity and Deposit Company of Maryland, Federal Insurance Company, Liberty Mutual Insurance Company, The Continental Insurance Company, Berkshire Hathaway Specialty Insurance Company, 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 Twenty Million Dollars ($20,000,000), subject to increase in accordance with the NTP2 Rider (form attached, to be executed as a condition to issuance of NTP2) as (the "Bonded Sum"), 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 1-15 Express Lanes Project Exhibit 8-A Page 1 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 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 the Contract, or this Bond, or any conditions precedent or subsequent in this Bond attempting to limit the right of recovery of RCTC seeking to recover from this Bond, 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. 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-A Page 2 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 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 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 acknowledged, and a Power of Attorney attached. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-A Page 3 of 8 be properly RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 [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 acknowledged, and a Power of Attorney attached. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-A Page 3 of 8 be properly RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 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 1-15 Express Lanes Project Exhibit 8-A Page 4 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 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 "RCTC" as the primary Obligee) for the design and construction of the 1-15 Express Lanes 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-A Page 5 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 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. 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 Riverside County Transportation Commission 1-15 Express Lanes Project (Principal) (Seal) By: (Title) (Surety) (Seal) By: Exhibit 8-A Page 6 of 8 Attorney -in -fact RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 FORM OF NTP2 RIDER 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 $243,900,000. Nothing herein contained shall vary, alter or extend any provision or condition of this bond except as herein expressly stated. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-A Page 7 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 This rider is effective (Month — Day — Year) Signed and Sealed (Month — Day — Year) By: (Principal) (Surety) By: Attorney -in- Fact Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-A Page 8 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Performance Bond March 16, 2017 10308675.v32 EXHIBIT 8-B FORM OF PAYMENT BOND (NOTE TO PROPOSERS: 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.:16-31-057-00 THAT WHEREAS, the Riverside County Transportation Commission, a public entity of the State of California ("RCTC" as the primary oblige) has awarded to Skanska-Ames , a Joint Venture ("Principal"), a Design -Build Contract (as amended from time to time, the "Contract") for the design and construction of the 1-15 Express Lanes 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 Zurich American Insurance Company/Fidelity and Deposit Company of Maryland, Federal Insurance Company, Liberty Mutual Insurance Company, The Continental Insurance Company, Berkshire Hathaway Specialty Insurance Company, 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 Twenty Millions Dollars ($20,000,000), subject to increase in accordance with the NTP2 Rider (form attached hereto, to be executed as a condition to issuance of NTP2) (the "Bonded Sum"), 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 Exhibit 8-B 1-15 Express Lanes Project Page 1 of 6 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 (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 the Contract, or this Bond, or any conditions precedent or subsequent in this Bond attempting to limit the right of recovery of claimants otherwise entitled to recover from this Bond, 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. 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: Riverside County Transportation Commission 1-15 Express Lanes Project (Principal's name, title, and signature) Exhibit 8-B Page 2 of 6 Surety RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 Riverside County Transportation Commission 1-15 Express Lanes Project (Principal's name, title, and signature) Exhibit 8-B Page 2 of 6 Surety RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 [Note: If more than one surety, then add Appropriate number of lines to signature block.] 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 1-15 Express Lanes Project Exhibit 8-B Page 3 of 6 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 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 1-15 Express Lanes Project Exhibit 8-B Page 4 of 6 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 To be attached to and form part of Bond No.: FORM OF NTP2 RIDER (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 $243,900,000. Nothing herein contained shall vary, alter or extend any provision or condition of this bond except as herein expressly stated. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-B Page 5 of 6 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 This rider is effective (Month — Day — Year) Signed and Sealed (Month — Day — Year) By: (Principal) (Surety) By: Attorney -in- Fact Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-B Page 6 of 6 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Payment Bond March 16, 2017 10308675.v32 EXHIBIT 8-C FORM OF WARRANTY BOND Contract No. 16-31-057-00 Bond No. KNOW ALL MEN BY THESE PRESENTS, THAT WHEREAS, the Riverside County Transportation Commission, a California public entity (the "Obligee") has awarded to Skanska-Ames, 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 1-15 Express Lanes 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 Twenty Four Million Three Hundred and Ninety Thousand Dollars ($24,390,000) (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 the covenants, conditions, obligations and agreements in the Contract, including any and all Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-C Page 1 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 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. 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. 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-C Page 2 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 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 or attempted rescission of the Contract, or this Bond, or any conditions precedent or subsequent in this Bond attempting to limit the right of recovery of claimants otherwise entitled to recover under this Bond, 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 1-15 Express Lanes Project Exhibit 8-C Page 3 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 In witness whereof, we have hereunto set our hands and seals on this day of [Note: If more than one surety, then add appropriate number of lines to signature block.] 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 1-15 Express Lanes Project Exhibit 8-C Page 4 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 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 1-15 Express Lanes Project Exhibit 8-C Page 5 of 8 NOTARY PUBLIC RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 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 1-15 Express Lanes Project Exhibit 8-C Page 6 of 8 NOTARY PUBLIC RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 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 1-15 Express Lanes 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: The Department is hereby added to the Warranty Bond as named obligee (hereinafter referred to as "Additional Obligee"). 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. 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. The total liability of the Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 8-C Page 7 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 Surety shall in no event exceed the amount recoverable from the Principal by the Primary Obligee under the Contract. The Surety may, at its option, make any payments under the Warranty 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 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. 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 , 201 . Riverside County Transportation Commission 1-15 Express Lanes Project (Principal) By: (Seal) (Title) (Surety) (Seal) By: , Attorney -in -Fact Exhibit 8-C Page 8 of 8 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Warranty Bond March 16, 2017 10308675.v32 EXHIBIT 9 INVOICE AND INVOICE CERTIFICATE 9-A Invoice 9-B Invoice Certificate Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 9 Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Invoice and Invoice Certificate March 16, 2017 10308675.v32 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 Michael Blomquist Toll Program Director Riverside County Transportation Commission 4080 Lemon Street, Third Floor Riverside, California 92502 Attention: Accounts Payable Reference: Project Design and Construction (DB) Activities for the 1-15 Express Lanes Project (ELP) Agreement #15-31-001-00 Invoice # 001; February 20xx DATE: MM/DD/YYYY DB Invoice No: Month Agency's Project No: DB Job No: 1 YYYY 15-31-001-00 123456 For professional, technical, and construction services rendered in connection with Design -Build Contract for 1-15 Express Lanes Project. Project Agreement No. xx-yy-zzz-00 (Notice to Proceed # 1 and 2) Invoice period covered is: January 26, 20xx through February 25, 20xx ORIGINAL CONTRACT: AUTHORIZED CHANGES: TOTAL CONTRACT: 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 1-15 Express Lanes Project Exhibit 9-A Page 1 of 2 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Invoice March 16, 2017 1 n'InRR7i'19 DBE Total Contract Value to Date: DBE Total Invoice to Date: $ 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 1-15 Express Lanes Project Exhibit 9-A Page 2 of 2 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Invoice March 16, 2017 1 n'InRR7i'19 EXHIBIT 9-B INVOICE CERTIFICATE (1-15 Express Lanes Project (ELP)) To Owner: RIVERSIDE COUNTY TRANSPORTATION COMMISSION 4080 Lemon Street Riverside, CA 92502 Project Number 15-31-001-00 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 Contact No. 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: 15-31-001-00 Agency's Project No: 15-31-001-00 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 Assurance Certificate for Payment In accordance with the Contract, based on on -site observations and the data comprising the above application the Design and Construction Quality Assurance certifies to Owner that to the best of the 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 the Amount Certified. Design Quality Assurance: Date: By: Construction Quality Assurance: 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 to 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 1-15 Express Lanes Project Exhibit 9-B Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version Design -Build Contract Exhibits Invoice Certificate March 16, 2017 10308675.v32 EXHIBIT 10 NTP1 AND NTP2 PAYMENT SCHEDULES 10-A NTP1 Payment Schedule 10-B NTP2 Payment Schedule Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 10 Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits NTP1 and NTP2 Payment Schedules March 16, 2017 1 n'InRR7i'19 EXHIBIT 10-A Project: 1-15 Express Lanes Project (ELP) DB Contractor Summary of Tasks NTP1 Payment Schedule Reference: Project Design and Construction (DB) DB Invoice No: 1 Activities for the 1-15 ELP Month: MM/YY Agreement #15-31-001-00 Agency's Project No: 15-31-001-00 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 $ 215,000.00 $ - $ - $ 215,000.00 0% la Project Administration $ 220,000.00 $ - $ - $ 220,000.00 0% lb Quality Management Plan $ 30,000.00 $ - $ - $ 30,000.00 0% lc Design Quality Management Plan $ 80,000.00 $ - $ - $ 80,000.00 0% 1d Construction Quality Management Plan $ 80,000.00 $ $ $ 80,000.00 0% 1e Environmental Management Plan $ 70,000.00 $ - $ - $ 70,000.00 0% 1f Public Outreach Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 1g Health and Safety Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 1 h Sustainability Management Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 2 Site Documentation $ 185,000.00 $ - $ - $ 185,000.00 0% 3 Segment Limits Map and Submittal Schedule $ 30,000.00 $ $ $ 30,000.00 0% 4 Utility Strip Map $ 215,000.00 $ - $ - $ 215,000.00 0% 5 (TMP) Transportation management Plan $ 215,000.00 $ - $ - $ 215,000.00 0% 6 Maintenance Work Plan $ 215,000.00 $ - $ - $ 215,000.00 0% 7 Crisis Communication Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 8 DBE Utilization Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 9 Railroad Flagging Plan $ 20,000.00 $ - $ - $ 20,000.00 0% 10 TMS Inventory $ 60,000.00 $ - $ - $ 60,000.00 0% 11 Drainage Inventory Assessment Report $ 80,000.00 $ - $ - $ 80,000.00 0% 12 Bat Mitigation Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 13 Nesting Bird Management Plan $ 30,000.00 $ - $ - $ 30,000.00 0% 14 Preliminary Utility Conflict Matrix $ 20,000.00 $ - $ - $ 20,000.00 0% 15 i Draft Geotechnical Execution Plan $ 55,000.00 $ - $ - $ 55,000.00 0% 16 NTP1 Mobilization $ 3,000,000.00 $ - $ - $ 3,000,000.00 0% TOTAL NTP # 1 $ 5,000,000.00 $ - $ - $ 5,000,000.00 0% Contract (NTP1) Invoice This Period NTP1 To Date Balance 0% $ 5,000,000.00 $ - $ - $ 5,000,000.00 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 10-A Page 1 of 1 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits NTP1 Payment Schedule March 16, 2017 1 n2nRR7i'19 Exhibit 10-B: Project: 1-15 Express Lanes Project (ELP) DB Contractor Summary of Tasks NTP2 Payment Schedule (SAMPLE ONLY — DB Contractor to Develop Project Payment Schedule) Reference: Project Design and Construction (DB) Activities for the 1-15 Express Lanes Project (ELP) Agreement #15-31-001-00 Invoice # 001; February 20xx DB Invoice No: Month: Agency's Project No: DB Job No: 1 M M/YY 15-31-001-00 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 PROFESSIONAL SERVICES 1 Community Outreach $ 150,000.00 $ - $ - $ - 2 Design Survey $ 4,900,000.00 $ - $ - $ - 3 Geotechnical/Site Condition Investigation $ 4,100,000.00 $ - $ - $ - 4 Design (Incl. TSP Coord., Landscape & Aesthetics Design) $ 5,600,000.00 $ - $ - $ - 5 Environmental Permitting/Governmental Approval Activities $ 5,200,000.00 $ - $ - $ - 6 Utility Location, Survey, Design and Coordination $ 4,500,000.00 $ - $ - $ - 7 Project Vehicles $ 1,350,000.00 $ - $ - $ - 8 Subtotal Professional Services (Sum Lines B1 — B7) $ 25,800,000.00 $ - $ - $ - C CONSTRUCTION 1 Construction Management $ 40,000,000.00 $ $ $ - 2 Mobilization (not to exceed $7M ($10M less $3M NTP1 Mob)) $ 7,000,000.00 $ - $ - $ - 3 Bond Premiums 3a Bond Premium for NTP1 Work Effort $ 50,000.00 $ - $ - $ - 3b Bond Premium for NTP2 Work Effort $ 1,150,000.00 $ - $ - $ - 4 Insurance Premiums 4a Insurance Premium NTP1 Work Effort $ 200,000.00 $ - $ - $ - 4b Insurance Premium NTP2 Work Effort $ 9,000,000.00 $ - $ - $ - 5 Railroad Coordination $ 100,000.00 $ - $ - $ - Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 10 Page 1 of 2 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits NTP2 Payment Schedule March 16, 2017 1 n2nRR7i'19 6 Water Pollution Control $ 1,300,000.00 $ - $ - $ - 7 Maintenance of Traffic $ 6,500,000.00 $ - $ - $ - 8 Earthwork $10,200,000.00 $ - $ - $ - 9 Roadway Structural Section $ 2,500,000.00 $ - $ - $ - 10 Pavements $ 50,300,000.00 $ - $ - $ - 11 Structures Mr M 11 a Bridges $ 35,800,000.00 $ - $ - $ - 11 b Retaining Walls $ 2,750,000.00 $ - $ - $ - 11c Soundwalls $ 6,500,000.00 $ - $ - $ - 12 Drainage $ 4,000,000.00 $ - $ - $ - 13 TMS/Lighting/Electrical $ 7,000,000.00 $ - $ - $ - 14 Signing and Striping $ 3,000,000.00 $ - $ - $ - 15 Environmental Compliance $ 3,000,000.00 $ - $ - $ - 16 Utility Coordination, Protection, Adjustment and Relocations $ 400,000.00 $ - $ - $ - 17 TSP Infrastructure $17,500,000.00 $ - $ - $ - 18 Express Lane Closures $ 350,000.00 $ - $ - $ - 19 Plant Establishment (Must be at least $xx,000.00) $ 500,000.00 $ - $ - $ - 20 Aesthetics and Replacement Plantings $ 4,000,000.00 $ - $ - $ - 21 Subtotal Construction (Sum Lines C1 through C20) $213,100,000.00 $ - $ - $ - TOTAL NTP # 2 (Line B8 + Line C21) $ $ $ Contract (NTP#2) Invoice This Period NTP#2 To Date Balance $238,900,000.00 $ - $ - $ - Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 10 Page 2 of 2 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits NTP2 Payment Schedule March 16, 2017 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"), Skanska-Ames 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. 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 one to two tolled express lanes in each direction generally between the 1-15 / 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 (the "1-15 Express Lanes"), otherwise known as the 1-15 Express Lanes 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 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 23 of the Contract. A copy of Section 23 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; Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 11 Page 1 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o (c) Has not had substantial prior involvement in the Project, and has not had any involvement in the Project or with ROTC, Department, any DB-Related Entity, any Affiliate, or PCM of a nature that could affect his/her ability to impartially resolve Disputes; (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 23 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 23 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 RCTC, 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 11 Page 2 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o the qualifications set forth in Section 23.3 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 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 23 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 23.4.3 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. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 11 Page 3 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o 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 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 23.8 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 Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 11 Page 4 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o (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. 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 23.4 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 23.8 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 23.8 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 23 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 23, Section 23 shall control. Riverside County Transportation Commission 1-15 Express Lanes Project Exhibit 11 Page 5 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o 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. DB CONTRACTOR: SKANSKA-AMES A JOINT VENTURE By: Name: Title: RCTC RIVERSIDE COUNTY TRANSPORTATION COMMISSION ATTEST Name: Title: APPROVED AS TO FORM: By: Riverside County Transportation Commission 1-15 Express Lanes Project By: Name: Title: Exhibit 11 Page 6 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o 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 1-15 Express Lanes Project Exhibit 11 Page 7 of 7 RFP Number: 16-31-057-00 Draft Execution Version - Design -Build Contract Exhibits Disputes Review Board Agreement March 16, 2017 i n.znQa7 „�o 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 and authorized or approved to do business in the State. 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 10 10 01 and ISO form CG 20 37 10 01 fo r completed operations. DB Contractor may use an alternative ISO form, 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. Ther