HomeMy Public PortalAbout03 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
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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
" T h e t w o e v a l u a t i o n c o m m i t t e e s s u b m i t t e d r e q u e s t s f o r c l a r i f i c a t i o n r e l a t e d t o t h e
p a s s / f a i l r e v i e w a n d r e s p o n s i v e n e s s t o e a c h o f t h e p r o p o s e r s a n d r e v i e w e d a l l r e s p o n s e s
t o t h e c l a r i f i c a t i o n r e q u e s t s ;
" T h e C o m m i s s i o n a n d F l a t i r o n W e s t , I n c . h a d a d i s p u t e r e l a t e d t o i t s p r o p o s a l . A s a r e s u l t
o f t h e d i s p u t e , t h e C o m m i s s i o n a n d F l a t i r o n W e s t , I n c . m u t u a l l y a g r e e d t o a s e t t l e m e n t
a n d t h e p r o p o s a l w a s n o t e v a l u a t e d .
" T h e T P E C m e m b e r s r e c e i v e d i n p u t a n d r e c o m m e n d a t i o n s f r o m a t e c h n i c a l a d v i s o r y g r o u p
m a d e u p o f p r o j e c t m a n a g e m e n t p e r s o n n e l c o n c e r n i n g t h e t e c h n i c a l p r o p o s a l s ;
" A f t e r h a v i n g i n d i v i d u a l l y r e v i e w e d t h e t e c h n i c a l p r o p o s a l s a n d t h e i n p u t a n d
r e c o m m e n d a t i o n s f r o m t h e t e c h n i c a l a d v i s o r y g r o u p , t h e T P E C m e t t o f o r m c o n s e n s u s
a n d t o s c o r e t h e t e c h n i c a l p r o p o s a l s b a s e d o n t h e p r e d e t e r m i n e d c r i t e r i a a n d w e i g h t i n g
o f t h e t e c h n i c a l c o n c e p t s a n d a p p r o a c h ;
" T h e P P E C c o m p l e t e d i t s s c o r i n g b a s e d o n t h e p r e d e t e r m i n e d w e i g h t i n g o f t h e p r o p o s a l
p r i c e ;
" A f t e r t h e c o m p l e t i o n o f t h e i r r e s p e c t i v e e v a l u a t i o n r e s p o n s i b i l i t i e s a n d s c o r i n g , t h e P P E C
a n d T P E C m e t t o c o m b i n e t h e p r o p o s a l s c o r e , b a s e d o n t h e p r e d e t e r m i n e d w e i g h t i n g o f
t h e t e c h n i c a l p r o p o s a l s c o r e a n d p r i c e s c o r e ;
" T h e P P E C a n d T P E C c h a i r s p r e s e n t e d t h e i r r e c o m m e n d e d s c o r i n g a n d t h e s u p p o r t i n g
r a t i o n a l e t o t h e E x e c u t i v e D i r e c t o r . T h e E x e c u t i v e D i r e c t o r a c c e p t e d t h e
r e c o m m e n d a t i o n s o f t h e P P E C a n d T P E C , w h i c h m a r k e d t h e c o m p l e t i o n o f t h e e v a l u a t i o n
p r o c e s s ; a n d
" T h e p r o p o s e r w i t h t h e h i g h e s t s c o r e w a s s e l e c t e d f o r l i m i t e d n e g o t i a t i o n s o n F e b r u a r y 1 7 ,
2 0 1 7 , a n d a l l s h o r t l i s t e d t e a m s w e r e n o t i f i e d o f t h e r e s u l t s .
A p p a r e n t B e s t V a l u e ( A B V ) D e t e r m i n a t i o n
T h e b e s t - v a l u e d e t e r m i n a t i o n w a s b a s e d o n a 1 0 0 p o i n t s c a l e . T h e p r i c e s c o r e r e p r e s e n t e d u p t o
8 0 p o i n t s o f t h e t o t a l s c o r e , a n d t h e t e c h n i c a l s c o r e r e p r e s e n t e d u p t o 2 0 p o i n t s o f t h e t o t a l s c o r e .
T h e d e t e r m i n a t i o n o f A B V w a s b a s e d o n t h e h i g h e s t t o t a l p r o p o s a l s c o r e ( T P S ) c o m p u t e d b a s e d
o n t h e f o l l o w i n g f o r m u l a :
T o t a l P r o p o s a l S c o r e ( m a x . 1 0 0 ) = P r i c e S c o r e ( m a x . 8 0 ) + T e c h n i c a l S c o r e ( m a x . 2 0 )
1 . T h e P r i c e S c o r e
P r i c e S c o r e w a s b a s e d o n t h e f o l l o w i n g f o r m u l a :
P r i c e S c o r e = ( P P V L o w / P P V ) * 8 0 , w h e r e ;
P P V L o w = L o w e s t P r o p o s a l P r e s e n t V a l u e s u b m i t t e d b y a n y P r o p o s e r , a s d e t e r m i n e d
p u r s u a n t t o I n s t r u c t i o n s t o P r o p o s e r s ( I T P ) S e c t i o n 5 . 6
P P V = P r o p o s e r ' s P r o p o s a l P r e s e n t V a l u e , a s d e t e r m i n e d p u r s u a n t t o I T P
S e c t i o n 5 . 6
A g e n d a I t e m 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
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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
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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
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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
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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
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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
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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
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ADDENDUM 194
EXHIBIT 1 ABBREVIATIONS AND DEFINITIONS 1
Riverside County Transportation Commission
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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
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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
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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:
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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).
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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;
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(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
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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)
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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;
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(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.
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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.
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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.
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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;
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(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.
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(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.
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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
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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.
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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.
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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.
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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.
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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
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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
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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.
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(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;
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(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;
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(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.
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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
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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
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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.
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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.
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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).
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(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;
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(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
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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.
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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
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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
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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.
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(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.
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(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.
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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
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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
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(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
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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.
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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.
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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.
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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
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(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-
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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.
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(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.
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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
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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
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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
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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.
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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
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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
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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;
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(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;
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(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
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(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.
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(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
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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".
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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;
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(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
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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.
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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
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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.
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(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.
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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.
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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
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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.
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(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
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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
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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.
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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
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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.
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(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.
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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.
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(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
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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.
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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
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(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:
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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;
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(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
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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
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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:
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(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;
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(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.
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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
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(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.
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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.
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(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
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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.
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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.
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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.
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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.
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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.
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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.
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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;
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(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
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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;
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(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;
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(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.
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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).
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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;
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(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;
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(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
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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
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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.
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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
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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.
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(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
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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.
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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
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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.
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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.
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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.
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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;
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(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,
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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
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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
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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.
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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
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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.
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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;
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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
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(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
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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
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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.
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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.
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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.
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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
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(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
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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.
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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).
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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.
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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.
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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;
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(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.
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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;
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(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;
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(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
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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
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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.
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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
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(CERCLA), 42 U.S.C. § 9607(e), and Health and Safety Code section 25364, to defend,
indemnify, and hold harmless the Indemnified Parties.
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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
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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;
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(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.
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(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.
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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;
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(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
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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(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
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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
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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
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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:
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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.
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Contract Number: 16-31-057-00
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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.
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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
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Contract Number: 16-31-057-00
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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
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Contract Number: 16-31-057-00
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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).
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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.
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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
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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
" D B C o n t r a c t o r s h a l l p r o v i d e a c o m p l e t e d e s c r i p t i o n o f W o r k i t w i l l s e l f -
p e r f o r m a n d W o r k t h a t w i l l b e p e r f o r m e d b y i t s S u b c o n t r a c t o r s , i n c l u d i n g
D B E s . D B C o n t r a c t o r s h a l l a l s o l i s t a l l r e m a i n i n g S u b c o n t r a c t s c o p e s a n d
r e l a t e d c o s t s , a n d d e f i n e t h o s e s c o p e s t o b e c o m m i t t e d t o D B E s . T h e s e
e l e m e n t s s h a l l b e s e g r e g a t e d i n t o p r o f e s s i o n a l s e r v i c e a n d c o n s t r u c t i o n
r e l a t e d c a t e g o r i e s . T h i s l i s t i n g s h o u l d c l e a r l y s h o w h o w t h e D B
C o n t r a c t o r p l a n s t o m e e t t h e D B E g o a l f o r t h e P r o j e c t .
" T h i s a b o v e S u b c o n t r a c t l i s t i n g s h o u l d a l s o p r o v i d e a g e n e r a l t i m e l i n e o f
a n t i c i p a t e d b i d / a w a r d t i m e s f o r t h e r e m a i n i n g S u b c o n t r a c t s c o p e s .
" D B C o n t r a c t o r s h o u l d d e s c r i b e t h e e x t e n t t o w h i c h M a j o r S u b c o n t r a c t o r s
w i l l a s s i s t i n p r o v i d i n g s u b c o n t r a c t o p p o r t u n i t i e s t o D B E s .
" D u e t h e s i g n i f i c a n t s i z e o f t h e P r o j e c t , D B C o n t r a c t o r s h a l l m a k e e v e r y
e f f o r t t o b r e a k d o w n t h e w o r k s c o p e s i n t o e c o n o m i c a l l y f e a s i b l e u n i t s t o
f a c i l i t a t e D B E p a r t i c i p a t i o n o n t h e P r o j e c t .
4 . D B E S u p p o r t i v e S e r v i c e s
" D B C o n t r a c t o r s h a l l i d e n t i f y p o t e n t i a l b a r r i e r s t o D B E p a r t i c i p a t i o n a n d
d e s c r i b e p l a n s t o m i t i g a t e t h e s e b a r r i e r s , i n c l u d i n g , b u t n o t l i m i t e d t o ,
b o n d i n g a n d i n s u r a n c e r e q u i r e m e n t s , S u b c o n t r a c t s c o p e , b i d d i n g
p r o c e s s e s , c o m m u n i c a t i o n s , f i n a n c i n g , p r o m p t p a y m e n t a n d p a y m e n t o f
r e t a i n a g e . A s p a r t o f D B C o n t r a c t o r ' s e f f o r t s t o o v e r c o m e t h e s e b a r r i e r s ,
i t s h a l l p r o v i d e o n - g o i n g s u p p o r t i v e s e r v i c e s t o D B E s .
" D B C o n t r a c t o r s h a l l c o o p e r a t e w i t h R C T C t o a c t i v e l y p r o m o t e S m a l l
B u s i n e s s c o n f e r e n c e s , p r o g r a m s a n d s u p p o r t i v e s e r v i c e s c u r r e n t l y
o f f e r e d b y p e e r a g e n c i e s w h i c h h a v e m a t u r e D B E a n d S m a l l B u s i n e s s
P r o g r a m s a n d a r e s e e k i n g i n c r e a s e d D B E a n d S m a l l B u s i n e s s
p a r t i c i p a t i o n i n t h e i r p r o g r a m s .
" D B C o n t r a c t o r s h a l l d e s c r i b e e f f o r t s t o m a k e P r o j e c t p l a n s , s p e c i f i c a t i o n s
a n d r e q u i r e m e n t s a v a i l a b l e t o D B E s .
5 . D B E C o m m u n i c a t i o n s
" D B C o n t r a c t o r s h a l l c a r r y o u t a c o m m u n i c a t i o n s e f f o r t t o i n f o r m D B E s o f
o p p o r t u n i t i e s t h a t m a y b e a v a i l a b l e w i t h D B C o n t r a c t o r o n t h e P r o j e c t .
T h e c o m m u n i c a t i o n s a c t i v i t i e s s h o u l d b e d e s c r i b e d h e r e a n d s h o u l d
m i n i m a l l y i n c l u d e t h e f o l l o w i n g e l e m e n t s :
a . E f f o r t s t o a d v e r t i s e o p p o r t u n i t i e s i n v a r i o u s m e d i a ( l i s t s u c h m e d i a
o u t l e t s )
b .
P l a n s t o u t i l i z e S m a l l , M i n o r i t y a n d W o m e n B u s i n e s s
o r g a n i z a t i o n s ( l i s t s u c h o r g a n i z a t i o n s )
c . P l a n s f o r D B E o u t r e a c h e v e n t s f a c i l i t a t e d b y D B C o n t r a c t o r , t o
h i g h l i g h t c u r r e n t a n d u p c o m i n g s u b c o n t r a c t i n g o p p o r t u n i t i e s .
R i v e r s i d e C o u n t y T r a n s p o r t a t i o n C o m m i s s i o n
1 - 1 5 E x p r e s s L a n e s P r o j e c t
E x h i b i t 5
P a g e 5 o f 1 3
R F P N u m b e r : 1 6 - 3 1 - 0 5 7 - 0 0
D r a f t E x e c u t i o n V e r s i o n - D e s i g n - B u i l d C o n t r a c t E x h i b i t s
D e s i g n - B u i l d C o n t r a c t - S p e c i f i c D B E R e q u i r e m e n t s
M a r c h 1 6 , 2 0 1 7
1 n ' I n R R 7 i ' 1 9
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. There shall be no limiting
endorsements unless reviewed and approved by the Indemnified Parties or their
representatives. There shall be no endorsement or modification of the commercial general
liability policy limiting the scope of coverage for liability assumed under an insured contract.
(b) The commercial general liability insurance coverage shall have limits of not less
than $2,000,000 per occurrence, $4,000,000 general aggregate, and $4,000,000
products/completed operations aggregate. The general aggregate I imit shall, by endorsement
or otherwise, provide a designated aggregate limit solely for the Project using ISO form CG 25
03 05 09 or equivalent form, unless a project -specific insurance policy is purchased.
(c) Completed operations coverage shall extend for as long as there is any exposure
to liability under a statute of repose or any other applicable statute, either through continuous
maintenance of completed operations coverage in DB Contractor's corporate insurance
program or by purchase of extended completed operations for a project -specific policy If
coverage is maintained by continuous renewal, each subsequent general liability insurance
policy issued through the statute of repose period, commencing with Final Acceptance, shall be
endorsed with ISO form CG 20 37 10 01, or the equivalent, with the Indemnified Parties
scheduled as additional insureds.
(d) No self -insured retentions for general liability insurance policies shall be allowed
unless disclosed to, and approved by, RCTC. All general liability insurance policies shall allow,
but not require, additional insureds, as applicable, to pay any applicable self -insured retentions
if the named insured fails to do so; except that for each insurance policy that has an approved
self -insured retention provision, DB Contractor shall be responsible for paying any applicable
self -insured retentions for its insurance policy(ies) and shall be liable to RCTC for said
payments in the same manner as those interests would have been protected had the policies
not contained a self -insured retention provision. Any deductible or self -insured retention amount
shall be shown on any evidence of insurance provided to RCTC.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 12
Page 1 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Insurance Requirements
March 16, 2017
i nQns2a7G „Qo
2. Workers' Compensation/Employer's Liability Insurance
During all phases of the Project, DB Contractor shall obtain and maintain and shall require all
Subcontractors of all tiers to obtain and maintain, a policy or policies of insurance providing
workers' compensation statutory benefits and employer's liability in conformance with the laws
of the State. Employer's liability limits shall be no less than $1 million by accident, $1 million by
disease, and $1 million policy limit by disease. DB Contractor, and any Subcontractors working
on Plant Establishment, shall maintain such insurance through the expiration of t he Plant
Establishment Period. DB Contractor and/or Subcontractor, whichever is the applicable
employer, shall be the named insured on these policies. The workers' compensation policies
shall provide the following:
(a) A provision extending coverage to all states operations on an "if any" basis;
(b) Coverage for liability under the United States Longshore and Harbor Workers'
Compensation Act, by adding a Longshore and Harbor Workers' Compensation Act coverage
endorsement (WC 00 01 06) on an "if any" basis; and
(c) Coverage for liability under Title 46 of the United States Code § 688 ("Jones Act")
on an "if any" basis, if appropriate.
3. Automobile Liability Insurance
(a) DB Contractor shall obtain and maintain, and shall require all Subcontractors of
all tiers to obtain and maintain, a business auto liability policy or policies. Each policy shall
cover accidental death, bodily injury, and property damage liability arising from the ownership,
maintenance, or use of all owned, non -owned, and hired vehicles connected with performance
of the Work, including loading and unloading. DB Contractor's auto liability policies shall cover
"any auto" ("symbol 1 "). For any Subcontractor of any tier, including DB Contractor, who will be
involved in any way with the transportation of Hazardous Materials using its own vehicles,
pollution liability coverage at least as broad as that provided under the ISO pollution liability -
broadened coverage for covered autos endorsement (CA 99 48) shall be provided and the
automobile liability insurance policies shall be endorsed to include Motor Carrier Act
Endorsement -Hazardous materials clean up (MCS-90).
(b) DB Contractor's automobile liability policy shall have a combined single limit per
policy period of not less than $10,000,000 per accident or shall be scheduled under the excess
or umbrella liability policies. Excess or umbrella policies shall cover "any auto" ("symbol 1").
Subcontractors' policies shall have a combined single limit of no less than $2,000,000 per
accident. Such limit may be achieved through any combination of primary and following form
excess insurance. At its discretion, DB Contractor may reduce the required combined single
limit to $1,000,000 for a Subcontractor who is unable to obtain the $2,000,000 limit.
DB Contractor's determination regarding any such reductions shall not be interpreted as
relieving DB Contractor or its insurers of any liability otherwise imposed on DB Contractor or its
insurers under this Contract.
(c) DB Contractor and Subcontractors of all tiers shall maintain su ch insurance
through Final Acceptance; except that such coverage shall be maintained for vehicles used in
the performance of Warranty and any Plant Establishment Work until the expiration of the
Warranty period and Plant Establishment Period, respectively. Coverage shall be at least as
broad as coverage provided by Insurance Services Office form number CA 00 01. The required
limits can be satisfied by a combination of a primary policy and an excess policy or policies.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 12
Page 2 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Insurance Requirements
March 16, 2017
i nQns2a7G „Qo
4. DB Contractor's Pollution Liability Insurance
(a) During the period beginning with the issuance of NTP1 and continuing until
issuance of NTP2, DB Contractor shall procure and maintain contractor's pollution liability
insurance as specified below. Pollution liability insurance limits for the peri od prior to issuance
of NTP2 shall be no less than $5,000,000 per claim and aggregate. Each of the Indemnified
Parties shall be an additional insured under such a policy.
(b) During the period beginning with the issuance of NTP2 and ending upon Final
Acceptance or for such longer period as otherwise specifically provided in Section 11 of the
Contract or this Exhibit 12, DB Contractor shall obtain and maintain contractor's pollution liability
(CPL) insurance with a total limit of liability of no less than $10,000,000 per loss and
$10,000,000 in the aggregate per policy period.
(c) The CPL policy shall include coverage for cleanup costs, third -party bodily injury
and property damage, provided that the third -party property damage liability coverage includes
loss of use of damaged property or of property that has not been physically injured or destroyed,
resulting from pollution conditions caused by contracting operations. Coverage as required in
this paragraph shall apply to sudden and non -sudden pollution conditions resulting from the
escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, gases,
waste materials, or other irritants, contaminants, or pollutants. The CPL shall also provide
coverage for transportation and off -Site disposal of materials.
(d) Each of the Indemnified Parties shall be named an additional insured under such
a policy. The policy shall not contain any provision or exclusion (including any so-called
"insured versus insured" exclusion or "cross -liability" exclusion) the effect of which would be to
prevent, bar, or otherwise preclude any additional insured under the policy from making a claim
which would otherwise be covered by such policy.
(e) If the CPL policy is written on a claims made basis, the policy shall be
continuously renewed for ten years after the expiration of the Warranty Period, with a retroactive
date on or before the first date of any Work performed under this Contract, or shall have an
extended reporting period of no less than 10 years from the expiration of the Warranty Period.
(f) The requirement for DB Contractor's pollution liability insurance may be met
through the use of a combined contractor's pollution liability and contractor's professional
liability insurance form, as specified in Section 6(c) below.
5. Umbrella or Excess Liability Insurance
(a) During the period beginning with the issuance of NTP1 and continuing until
issuance of NTP2, DB Contractor may use its corporate program of insurance or project -specific
insurance to meet the requirements for umbrella or excess liability insurance as specified below.
Total liability insurance limits, including limits provided by umbrella or excess liability insurance
in place prior to issuance of NTP2, shall be no less than $10,000,000. Each of the Indemnified
Parties shall be an additional insured under such a policy.
(b) During the period beginning with issuance of NTP2 and ending upon Final
Acceptance or for such longer period as otherwise specifically provided for in this Exhibit 12 or
Section 11 of the Contract, DB Contractor shall obtain and maintain an umbrella or excess
liability insurance policy with limits of not less than $200,000,000 that will provide bodily injury,
personal injury and property damage liability coverage at least as broad as the primary
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 12
Page 3 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Insurance Requirements
March 16, 2017
i nQns2a7G „Qo
coverages set forth above, including commercial general liability and employer's liability in
excess of the amounts set forth in Sections 1 and 2 of this Exhibit 12. DB Contractor may use
its corporate insurance program or a combination of corporate insurance a nd stand-alone
policies to meet this requirement provided that the limits available for this Project are not subject
to erosion by losses on other projects not related to this Project.
(c) Such policy or policies shall include the following terms and conditions:
i. drop down feature requiring the policy to respond in the event that any
primary insurance limits are exhausted or for occurrences covered by an umbrella policy but
not covered in the underlying insurance;
ii. pay on behalf of wording as opposed to reimbursement;
concurrency of effective dates with primary policies;
iv. the policies shall "follow form" to the underlying primary policies, including
the provision of completed operations coverage to the additional insured Indemnified Parties
as required under Section 1 of this Exhibit 12; and
v. there shall be no "contractors limitation" endorsements, as described in
Section 1, that have not been reviewed and approved by the Indemnified Parties or their
authorized representatives.
6. Professional Liability Insurance
(a) During all phases of the Project, DB Contractor shall obtain and maintain
contractor's professional liability insurance with limits not less than $10,000,000 per claim and in
the aggregate. If DB Contractor joint ventures with or subcontracts with design profes sionals or
other professional service providers, the design and other professional service providers shall
obtain and maintain professional liability insurance specific to their profession with limits not less
than $5,000,000 per claim and in the aggregate. DB Contractor may, at its discretion, require
lower limits of professional liability insurance from lower -tier design Subcontractors (e.g.,
smaller design firms and DBE design firms). No self -insured retention for DB Contractor shall
exceed $500,000 without prior written approval from RCTC, in its good faith discretion.
(b) Coverage shall apply specifically to all professional activities performed under
this Contract. The policy(ies) shall have a retroactive date consistent with the inception of
design and/or project/construction management activities, and no later than the date on which
the RFP was issued. DB Contractor agrees to maintain this required coverage for a period of
no less than five years after Substantial Completion or to purchase an extended reporting period
for no less than five years after Substantial Completion. DB Contractor shall require the design
professional Subcontractors to agree to maintain this coverage for a period of no less than five
years after Substantial Completion or to purchase an extended reporting period for no less than
five years after Substantial Completion. If DB Contractor arranges a project -specific policy to
meet this requirement, that policy shall provide for a total period of no less than ten (10) years,
including policy period and extended reporting period.
(c) DB Contractor may satisfy the requirement for contractor's professional liability
insurance and the requirement for contractor's pollution liability insurance through the use of a
combined, project -specific policy that provides both forms of coverage. The minimum limit for
such a policy is $10,000,000 per claim and in the aggregate, and the policy shall provide for a
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 12
Page 4 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Insurance Requirements
March 16, 2017
i nQns2a7G „Qo
total coverage period of no less than ten (10) years, including policy period and extended
reporting period. The scope of the coverage of such policy shall include coverage equivalent to
stand-alone forms of contractor's pollution liability insurance policy and contractor's professional
liability insurance.
7. Builder's Risk
Upon commencement of construction and with approval of RCTC, DB Contractor shall obtain
and maintain a policy of builder's risk insurance for the Project as specified below. The policy
may be a DB Contractor corporate policy or a stand-alone policy as long as the requirements of
this Section 7 of Exhibit 12 are met. The named insureds shall be DB Contractor, all
Subcontractors (excluding those solely responsible for design Work) of any tier, Suppliers,
RCTC, and the Indemnified Parties. The status of the insureds under this requirement shall not
be limited by the phrase "as their interests may appear" or similar language. DB Contractor is
not required to maintain property insurance for any portion of the Project following acceptance
thereof by RCTC, Department or a Local Agency.
(a) Minimum Scope
A builder's risk insurance policy on an "all risk" basis for those portions of the Project
comprising high value assets subject to loss from a single occurrence. Examples of such
assets include materials, temporary buildings, falsework, bridges, connectors, off ramps, and
other structures or items. DB Contractor may elect to cover all property at a lower blended rate
if such a strategy would result in lower premium, or result in broader coverage at a lower or
equivalent premium. Coverage for each asset should be applicable only for the period of
construction of the specific asset and should end when the asset is put to its intended use or as
otherwise approved and accepted by RCTC, which end of coverage must be approved by
RCTC prior to termination thereof. Such coverage may be provided under a master builder's
risk program in which each asset is added for its period of construction only, or may be provided
under individual policies for each high value asset.
Policy must include: (i) coverage for any ensuing loss from faulty workmanship,
nonconforming work, omission or deficiency in design or specifications using a form that is no
more restrictive than LEG 3/06; (ii) coverage against machinery accidents and operational
testing; (iii) coverage for removal of debris, subject to a sub -limit of no less than 25% of the loss,
and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all
other properties constituting a part of the Project; (iv) transit coverage, including ocean marine
coverage (unless insured by the Supplier or through a separate marine cargo policy), with sub -
limits sufficient to insure the full replacement value of any key equipment item; (v) coverage with
sub -limits sufficient to insure the full replacement value of any property or equipment stored
either on or off the Site; and (vi) coverage for loss of revenue resulting from delayed opening.
Such insurance shall be on a form reasonably acceptable to RCTC to ensure adequacy of terms
and sublimits.
There shall be no coinsurance penalty provision in any such policy. Deductibles or self -
insured retentions shall be no greater than 5% of the total value insured at the time of loss,
subject to a maximum deductible of $2 million. All deductibles or self -insured retentions shall be
the responsibility of DB Contractor.
(b) Minimum Limits
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 12
Page 5 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Insurance Requirements
March 16, 2017
i nQns2a7G „Qo
Coverage shall be for the replacement value thereof for "all risks" of direct physical loss
or damage, including earth movement and flood coverage, with a minimum limit of $50,000,000.
(c) Delay Coverage
In addition to the requirements set forth in Section 1.1.7(b) of this Exhibit 12, DB
Contractor shall provide delay coverage for loss of revenue due to accidental physical damage
to the Project and which shall apply only for the benefit of the Indemnified Parties. Valuation
shall be based on estimated toll revenues with a period of indemnity limited to a period of no
less than one year. The minimum loss valuation shall be $95,000 per day on an agreed basis.
The policy shall not contain any coinsurance provision. The policy may include a "waiting
period" deductible of no more than 60 days. No liquidated damages shall be deducted from the
insurance recovery unless such damages are actually collected by RCTC or an Indem nified
Party. Coverage shall include payment for expenses incurred for the purpose of reducing any
loss amount to the extent such loss amount is actually reduced. Coverage shall include loss
caused by action of civil authority.
8. Railroad Protective Liability
DB Contractor shall provide any coverage as may be required by any railroad as a condition of
the railroad's consent for entry into railroad facilities or property. Such policy shall be effective
during the period any Work is being performed within 50 feet of any railroad right of way.
9. Aircraft Liability
DB Contractor shall provide, or cause to be provided, aircraft liability insurance, with a limit of
not less than $5,000,000 per occurrence or higher limits as may be required by RCTC, in all
cases where any aircraft is used on the Project that is owned, leased or chartered by any DB -
Related Entity, protecting against claims for damages resulting from such use. Any aircraft
intended for use in performance of the Work, the aircraft crew, flight path and altitude, including
landing of any aircraft on the Site or on any property owned by RCTC shall be subject to review
and written acceptance by RCTC prior to occurrence of any such usage. If any aircraft are
leased or chartered with crew and/or pilot, evidence of non -owned aircraft liability insurance will
be acceptable but must be provided prior to use of the aircraft.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 12
Page 6 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Insurance Requirements
March 16, 2017
i nQnsia7G „Qo
EXHIBIT 13
PROPOSAL COMMITMENTS AND ATCS
Attachment 1: Proposal Commitments
Attachment 2: ATCs
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 13
Page 1 of 1
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Proposal Commitments
March 16, 2017
i n.znQa7 „�o
ATTACHMENT 1 TO EXHIBIT 13
DB CONTRACTOR'S PROPOSAL COMMITMENTS & CLARIFICATIONS
THE FOLLOWING PAGES SUMMARIZE CERTAIN COMMITMENTS MADE BY
DB CONTRACTOR IN ITS PROPOSAL SUBMITTED FOR THE PROJECT, WHICH
DB CONTRACTOR AGREES EITHER MEET OR EXCEED THE REQUIREMENTS OF THIS
CONTRACT. THE COMMITMENTS IN THIS EXHIBIT ARE INCLUDED IN THE WORK. THIS
SUMMARY IS AN OVERVIEW OF CERTAIN DB CONTRACTOR COMMITMENTS AND IS
NOT INTENDED TO BE AN EXHAUSTIVE LIST OF COMMITMENTS MADE IN THE
PROPOSAL THAT MEET OR EXCEED THE REQUIREMENTS OF THIS CONTRACT.
NOTHING CONTAINED IN THIS EXHIBIT 13 SHALL LIMIT, MODIFY, DISCHARGE,
ELIMINATE OR REDUCE THE REQUIREMENTS OF THIS CONTRACT
No.
Proposal
Location
Proposal Commitment
1.
Volume 2, Technical
Proposal
Pages 4, 6 & 7
*DB Contractor shall commence early median bridge
widening work at Riverside Drive, Corona Avenue 2nd Street,
3rd Street, and El Cerrito Road as the first order of
construction work. Median roadway construction shall be
accomplished with a single shift of traffic away from the
median for a majority of the length of the Project.
2.
Volume 2, Technical
Proposal
Pages 4 Figure 01.
*DB Contractor shall use precast girders for all bridges
(excluding the gore portion of the SB East Corona OH) to
minimize the need for falsework.
3.
Volume 2, Technical
Proposal
Page 4
Figure 1
*DB Contractor shall implement the Work at the I-15/SR-91
separation bridges through the use of micro pile foundations,
type selection of a PC/PS girder structure and geometric
refinements which eliminate the need for the eastern
widening.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to
Exhibit 13
Page 1 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
4.
Volume 2, Technical
Proposal
Page 4
Figure 1
DB Contractor shall communicate, coordinate with, and
provide detour information to national GPS traffic
information providers including Waze and Google Maps for
all detours required (excluding local streets). DB Contractor
shall provide copies of such correspondence to RCTC
monthly. This commitment is in addition to all other MOT,
closure communication and public outreach requirements in
the Contract.
5.
Volume 2, Technical
Proposal
Page 12
DB Contractor shall provide 2000-foot long paved areas in the
median in at least two locations for ingress/egress into work
zones. If such areas are to be left in place as the final JPCP
pavement required by the Contract, a supplemental
pavement inspection and corresponding hold -point shall be
performed by RCTC and the Department on the
ingress/egress areas just prior to paving any adjacent
pavement areas. The supplemental inspection shall focus on
the pavement condition and damage assessment to the
paved ingress/egress areas. Should the inspections reveal any
pavement damage, DB Contractor shall submit a pavement
remediation plan, for review and approval, in accordance
with the Contract. Any damaged panels, including on the
ends of the 2,000 ingress/egress area, must be replaced as a
condition to Substantial Completion. The ingress/egress
paved areas shall meet all other Contract requirements.
6.
Volume 2, Technical
Proposal
Page 51, including Figure 40
*DB Contractor shall provide a conveyor batch plant system
over I-15 to deliver mixed concrete into the 1-15 median work
zone, which will reduce the amount of material haul trips into
the median by approximately 19,000.
7.
Volume 2, Technical
Proposal
Pages 9, 20-23, 51
*DB Contractor shall use a gantry crane system and precast
girders for the Santa Ana River Bridge (SARB) to reduce
environmental, traffic and schedule risk and eliminate
superstructure falsework in the river bed. DB Contractor shall
submit details of the spliced girders and gantry system,
including load calculations, for review and approval by RCTC
and the Department with the SARB Type Selection submittal
required by the Contract.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to
Exhibit 13
Page 2 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
8.
Volume 2, Technical
Proposal
Page 21
Figure 17
*DB Contractor shall be limited to 15 acres of total disturbed
footprint in the Santa Ana River, instead of the approximate
23 acres depicted on TP Attachment 6-7, to minimize
environmental impacts. DB Contractor shall construct
positive barriers (such as temporary orange fencing) to
protect areas outside of the disturbance zone, and quantify
and track the areas of disturbance in the Santa Ana River on a
table on the design plans.
9.
Volume 2, Technical
Proposal
Page 11
DB Contractor shall use a dedicated traffic flagger for girder
setting operations that impact local roads to keep traffic
flowing between girder placements.
10.
Volume 2, Technical
Proposal
Page 16 Figure 12 and Page
17
DB Contractor shall provide a designated work traffic crew for
each eight -hour shift and traffic control personnel to monitor
and repair damage to the Site (e.g. traffic control devices and
all other Project elements). DB Contractor's traffic control
crew supervisor shall complete a checklist (a) listing deficient
items in need of repair; and (b) documenting traffic control
and general Site conditions, during each eight -hour shift. DB
Contractor shall incorporate these provisions into the Traffic
Management Plan and provide all traffic control crew
supervisor checklists and reports to RCTC on a weekly basis or
as otherwise requested by RCTC.
11.
Volume 2, Technical
Proposal
Page 21
DB Contractor shall use handheld GPS to record the pre -
construction riverbed topography at the SARB after
vegetation clearing, but prior to any construction activities,
and shall restore the riverbed to pre -construction conditions
following construction in the riverbed.
12.
Volume 2, Technical
Proposal
Pages 31
DB Contractor shall ensure that all Express Lane longitudinal
construction joints (in the 1-15 median) are placed along
permanent lane lines, out of normal traffic wheel paths.
13.
Volume 2, Technical
Proposal
Page 33
*DB Contractor shall not construct any MSE walls on the
Project.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to
Exhibit 13
Page 3 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
14.
Volume 2, Technical
Proposal
Page 2
DB Contractor shall provide water quality treatment for at
least 125% of new impervious surface constructed on the
Project — at least 25% more than the requirement set forth in
TP Section 6 and Section 12.
15.
Volume 2, Technical
Proposal
Pages 35
Figure 29
DB Contractor shall provide a functionally independent Safety
Manager who reports to the DB Contractor's executive
committee, rather than reporting just to the Project Manager
as described in TP Section 2.6.1.7.
16.
Volume 2, Technical
Proposal
Page 71
DB Contractor shall recycle 85% of materials demolished on
the Project and develop tracking/reporting procedures in the
Sustainability Management Plan (SMP) demonstrating DB
Contractor's ability to achieve and satisfaction of this
commitment.
17.
Volume 2, Technical
Proposal
Page 71
*DB Contractor shall disturb a maximum of 15 acres of
wetlands in the Santa Ana River . DB Contractor shall provide
exhibits depicting the reductions and set goals and
tracking/reporting procedures in the Environmental
Management Plan demonstrating DB Contractor's ability to
achieve and satisfaction of this commitment.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to
Exhibit 13
Page 4 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
18.
Volume 2, Technical
Proposal
Pages 70-71
Figure 57
DB Contractor shall address FHWA's "triple bottom line of
sustainability" and include INVEST criterion and metrics in the
SMP. DB Contractor shall produce and submit monthly
progress reports and detailed quarterly reports from the
INVEST tool to RCTC.
DB Contractor shall prepare a sustainability report and
include such report in the SMP. The sustainability report shall
include analysis of success, and lessons learned.
DB Contractor shall provide RCTC with electronic project
monitoring tools and data for O&M of sustainability
measures.
DB Contractor shall submit and obtain Envision certification
for the Project.
DB Contractor represents and warrants that inclusion of this
commitment will not result in any additional responsibility,
cost or obligations being imposed on RCTC.
19.
Volume 2, Technical
Proposal
Page 71
DB Contractor shall provide a qualified Sustainability Manager
who is an Envision Accredited Professional and has a
minimum of 10 years of experience.
20.
Volume 2, Technical
Proposal
Page 75
DB Contractor shall assign at least one full-time, design
engineer at the Co -Located Office during construction
(through Substantial Completion) who shall be subject to
RCTC's approval.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to
Exhibit 13
Page 5 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
ATTACHMENT 2 TO EXHIBIT 13
ATCS
The following table lists DB Contractor's Alternative Technical Concepts (ATCs), which are
described in further detail in the ATC submittals, that DB Contractor may incorporate into the
Project. The Deviations set forth in the ATC submittals are approved by RCTC subject to
satisfaction of any conditions set forth in the letters from RCTC to DB Contractor. Such Deviations,
subject to satisfaction of any listed "conditions," expressly supersede any conflicting provisions in
the Technical Provisions, as provided in Section 1.3.2 of the Contract. The ATCs, to the extent
utilized by the DB Contractor, shall otherwise meet all requirements of the Contract.
ATC
No. 7
Light Poles
ATC
No. 9
Non -Hydraulic Rapid Strength Concrete
See attached.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to
Exhibit 13
Page 1 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
ATC 07 - Light Poles
DB Contractor shall utilize lighting poles with a 69-foot mounting height atop the median barrier
as an alternative to the conventional pole / mast arm for lighting express lane ingress / egress
zones (concept based on Arizona Department of Transportation (ADOT) Type U-69 pole subject
to conditions below). Based on photometric analysis, the 69-foot light pole with two LED fixtures
shall be placed at approximately 400-foot intervals to replace the conventional pole/mast arm
assemblies with single LED fixtures at approximately 180-foot intervals. The modified foundation
will allow for the light foundation to fit within the normal barrier base width, so with this ATC, the
foundation for the new light pole can be constructed without a barrier "blister," which reduces
effective shy distance at the light pole.
DB Contractor shall implement ATC 07 at all express lane ingress/egress zones.
DB Contractor represents, warrants and covenants that:
(a) ATC 07 will not result in any changes in roadway or toll operations;
(b) By decreasing the number of both poles and fixtures, ATC 07 should
reduce routine capital maintenance requirements. With the standard poles there would be
approximately 67 poles and 134 fixtures to maintain. ATC 07 would reduce those numbers to
approximately 35 poles and 70 fixtures;
(c) The light fixtures implemented through ATC 07 will use LED luminaires,
and poles will meet current Department structural requirements, so there should be no change
in anticipated service life associated with this ATC;
(d) ATC 07 would have no impact on the time period necessary to design the
Project;
(e) ATC 07 will not impact vehicular traffic during construction. Upon
implementation of ATC 07 an 8-foot shoulder can be provided more consistently by reducing the
number of barrier design exceptions associated with a standard design;
(f) The foundation design for ATC 07 does not require a median barrier
blister; it allows the light pole foundation to fit in the standard barrier width without encroaching
on the vehicle shoulder width;
(g)
No additional ROW will be required to implement ATC 07;
(h) ATC 07 shall reduce the number of light poles and fixtures, which should
reduce construction and maintenance/life cycle costs, while providing a higher foot-candle
lighting average in the express lane ingress/egress zones than that required in the Contract;
(i) By maintaining a consistent shoulder width in the center median project
safety is enhanced, by eliminating the shoulder width design exceptions;
Q) DB Contractor is not aware of any risk to RCTC or third parties as a result
of ATC 07; and
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to
Exhibit 13
Page 2 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
(k) There are no additional costs to the RCTC, Skanska Ames or third parties
associated with implementation of ATC 07
DB Contractor is required to comply with all Contract requirements, except, as it relates to ATC
07 only, the portion of the Department's Traffic Manual, Chapter 9, Traffic Signals and Lighting
which specifies lighting poles to be used on Department projects.
In connection with implementation of ATC 07, DB Contractor shall:
(I) Submit photometric analysis, pole specifications and foundation design
for approval with the 65% lighting design plans;
(m) Design the proposed pole to conform to AASHTO's "Standard
Specifications for Structural Supports for Highway Signs, Luminaires & Traffic Signals", Sixth
Edition; and
(n) Fabricate the proposed pole with a fabricator on the Ca!trans Authorized
Facility Audit List.
(o) No design exceptions resulting from ATC 07 will be considered or
permitted.
DB Contractor represents, warrants and covenants that:
(p) ATC 07 is subject to final approval by the Department and compliance
with all other conditions in the Contract;
(q) It shall bear all risks, responsibilities, obligations and liabilities in
connection with ATC 07, including any impacts associated with obtaining any Governmental
Approvals in connection with ATC 07 and any submittal of any additional environmental review,
revalidation, supplement or approval in connection with ATC 07 (including the risk of not
successfully obtaining any of the foregoing);
(r) It is not entitled to make any Claim or otherwise seek compensation, time
extension, a Change Order or other rights, remedies or relief against RCTC under the Contract
or otherwise at Law or in equity in connection with ATC 07, including the use and
implementation thereof; and
(s) ATC 07 shall only modify the specific requirements contained in the
Lighting Standards portion of the Department Traffic Manual, Chapter 9, Traffic Signals and
Lighting related to light poles and luminaires. All other requirements of the Contract, including
the TPs, shall continue to apply in full force and effect even if the application of such
requirements would render ATC 07 non -compliant and not allowable.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to
Exhibit 13
Page 3 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
ATC 09 — Non -Hydraulic Rapid Strength Concrete
ATC 09 proposed the use of rapid strength concrete at limited locations to accelerate
construction and reduce staging impacts, utilizing a mix design composed of Type 2 or Type 3
cement and an add -mixture accelerant. "C Non -hydraulic rapid strength concrete, or NHRSC
will be used at isolated ramps, gores and shoulder locations where new alignments and existing
alignments overlap to minimize the shifting of traffic by using infills (plugs) of NHRSC. Because
of the overlap, traditional construction requires either a full shutdown or a two -stage "flip-flop,"
which will narrow the traffic flow to one lane with K-rail on each side. To minimize the impact to
the public and reopen the ramp sooner, NHRSC will be utilized to reduce cure time from a
minimum of 10 days to a window ranging from 4 to 10 hours which will substantially decrease
the impact to the traveling public by performing this work at night."
ATC 09 is not acceptable as described herein, but may be acceptable upon the satisfaction, in
RCTC's sole discretion, of the following conditions, which must be met, and/or clarifications or
modifications that must be made:
(a) ATC 09 may not be used on the 1-15 ELs and may only be used in the
locations approved by RCTC and Department during the design phase as described below;
(b) During the design phase, and prior to installation, DB Contractor shall
submit to RCTC, for RCTC's review approval, in its sole discretion, detailed drawings depicting
proposed use locations for ATC 09 and justification for use in each area. DB Contractor shall
also clearly identify in its submittals the Project benefits arising out of the identified location(s).
Locations for use must be pre -approved by RCTC and Department, in their respective sole
discretion. RCTC and Department reserves the right to determine Project benefits and reject
use of ATC 09 in certain locations, in their respective sole discretion;
(c) No design exceptions resulting from ATC 09 will be considered or
permitted;
DB Contractor represents, warrants and covenants that:
(d) DB Contractor shall bear all risks, responsibilities, obligations and
liabilities in connection with ATC 09, including to any impacts associated with obtaining any
Governmental Approvals in connection with ATC 09 and any submittal of any additional
environmental review, revalidation, supplement or approval in connection with ATC 09
(including the risk of not successfully obtaining any of the foregoing); and
(e) That it is not entitled to make any Claim or otherwise seek compensation,
time extension, a Change Order or other rights, remedies or relief against RCTC under the
Contract or otherwise at Law or in equity in connection with ATC 09, including the use and
implementation thereof; and
(f) ATC 09 shall only modify the requirements under TP Section 11.4.4. All
other requirements of the Contract, including the TPs, shall continue to apply in full force and
effect even if the application of such requirements would render ACT 09 non- compliant and not
allowable.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to
Exhibit 13
Page 4 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
DB Contractor's Proposal Commitments
ATCs and Clarifications
March 16, 2017
EXHIBIT 14
FEDERAL REQUIREMENTS
Exhibit Description No. of Pages
Attachment 1 — Federal Requirements for Federal -Aid Construction Projects 2
Attachment 2 — FHWA Form 1273 25
Attachment 3 — Federal Prevailing Wage Rate 1
Attachment 4 — Equal Employment Opportunity 6
Attachment 5 — Affirmative Action 4
Attachment 6 — Lobbying Certification 2
Attachment 7 — Compliance with Buy America Requirements 2
Attachment 8 — Training Special Provisions 3
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 14
Page 1 of 1
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
irvw1Qa7� wzo
ATTACHMENT 1 TO EXHIBIT 14
FEDERAL REQUIREMENTS FOR FEDERAL -AID CONSTRUCTION PROJECTS
GENERAL. — The Work herein proposed will be financed in whole or in part with
Federal funds, and therefore all of the statutes, rules and regulations promulgated by the
Federal Government and applicable to work financed in whole or in part with Federal funds will
apply to such work. The "Required Contract Provisions, Federal -Aid Construction Contracts,
Form FHWA 1273," are included in this Exhibit 14. Whenever in said required contract
provisions references are made to:
(a) "contracting officer" or "authorized representative" such references shall
be construed to mean RCTC or its Authorized Representative;
(b) "contractor", "prime contractor", "bidder," "proposer," "Federal -aid
construction contractor," "prospective first tier participant," or "First Tier Participant," such
references shall be construed to mean DB Contractor or its Authorized Representative;
(c) "contract," "prime contract," "Federal -aid construction contract," or
"design -build contract," such references shall be construed to mean the Contract
between DB Contractor and RCTC for the Project;
(d) "subcontractor", "supplier", "vendor", "prospective lower tier participant,
"lower tier prospective participant," "Lower tier participant," or "lower tier subcontractor,"
such references shall be construed to mean any Subcontractor or Supplier; and
(e) "department", "agency," "department or agency with which this
transaction originated," "department or agency entering into this transaction," or
"contracting agency," such references shall be construed to mean RCTC, except where
a different department or agency is specified.
PERFORMANCE OF PREVIOUS CONTRACT. — In addition to the provisions in
Section II, "Nondiscrimination," and Section VI, "Subletting or Assigning the Contract," of the
Form 1273 required contract provisions, DB Contractor shall comply with the following:
The bidder shall execute the CERTIFICATION WITH REGARD TO THE
PERFORMANCE OF PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO THE
EQUAL OPPORTUNITY CLAUSE AND THE FILING OF REQUIRED REPORTS located in the
Proposal. No request for subletting or assigning any portion of the Contract in excess of
$10,000 will be considered under the provisions of Section VI of the required contract provisions
unless such request is accompanied by the CERTIFICATION referred to above, executed by
the proposed subcontractor.
NON -COLLUSION PROVISION. — The provisions in this Section are applicable to all
contracts except contracts for Federal Aid Secondary Projects. Title 23, United States Code,
Section 112, requires as a condition precedent to approval by the Federal Highway
Administrator of the contract for this work that each bidder file a sworn statement executed by,
or on behalf of, the person, firm, association, or corporation to whom such contract is to be
awarded, certifying that such person, firm, association, or corporation has not, either directly or
indirectly, entered into any agreement, participated in any collusion, or otherwise taken any
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 3 Federal Requirements
March 16, 2017
10308675.v32
action in restraint of free competitive bidding in connection with the submitted bid. A form to
make the non -collusion affidavit statement required by Section 112 as a certification under
penalty of perjury rather than as a sworn statement as permitted by 28 U.S.C., Sec. 1746, is
included in the Proposal.
[PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN
SUBCONTRACTING. — Part 26, Title 49, Code of Federal Regulations applies to the Project.
Pertinent sections of said Code are incorporated within other sections of the Contract and the
RCTC Disadvantaged Business Enterprise Program adopted pursuant to 49 CFR Part 26.]
VETERANS EMPLOYMENT — Section 1506 of MAP-21 applies to the Project. DB
Contractor and its subcontractors are required to use best faith efforts in the employment of
veterans to work on the Project.
CONVICT PRODUCED MATERIALS
a. FHWA Federal -aid projects are subject to 23 CFR § 635.417, Convict produced
materials.
b. Materials produced after July 1, 1991, by convict labor may only be incorporated
in a Federal aid highway construction project if such materials have been: (i) produced
by convicts who are on parole, supervised release, or probation from a prison, or (ii)
produced in a prison facility in which convicts, during the 12 month period ending July 1,
1987, produced materials for use in Federal aid highway construction projects, and the
cumulative annual production amount of such materials for use in Federal aid highway
construction does not exceed the amount of such materials produced in such facility for
use in Federal aid highway construction during the 12 month period ending July 1, 1987.
BUY AMERICA REQUIREMENTS — FHWA Federal -aid projects are subject to 23 CFR §
635.410, Buy America requirements. The provisions of 23 CFR § 635.410 are incorporated
herein by reference.
ACCESS TO RECORDS
a. As required by 2 CFR §200.336, DB Contractor and its subcontractors shall allow
FHWA and the Comptroller General of the United States, or their duly authorized
representatives, access to all books, documents, papers, and records of DB Contractor
and subcontractors which are directly pertinent to any grantee or subgrantee contract,
for the purpose of making audit, examination, excerpts, and transcriptions thereof. In
addition, as required by 2 CFR §200.333, DB Contractor and its subcontractors shall
retain all books, documents, papers and records for three years after final payment is
made pursuant to any such contract and all other pending matters are closed.
b. DB Contractor agrees to include this section in each Subcontract at each tier,
without modification except as appropriate to identify the subcontractor who will be
subject to its provisions.
PRIVACY ACT — DB Contractor shall comply with, assure the compliance of its
employees with, and require its subcontractors to comply with, the information restrictions and
other applicable requirements of the Privacy Act of 1974, 5 U.S.C. §552a. DB Contractor
understands the requirements of the Privacy Act, including the civil and criminal penalties for
violation of that Act, apply to those individuals involved, and that failure to comply with the terms
of the Privacy Act may result in termination of the Contract.
Riverside County Transportation Commission Attachment 1 to RFP Number: 16-31-057-00
1-15 Express Lanes Project Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 3 Federal Requirements
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10308675.v32
RECOVERED MATERIALS — DB Contractor and its subcontractors shall
comply with all requirements of section 6002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA), including the
regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to
the procurement of the items designated in Subpart B of 40 CFR Part 247.
CARGO PREFERENCE ACT — DB Contractor shall comply with the Cargo
Preference Act of 1954 (46 U.S.C. §55305) and its implementing regulations (46 CFR
Part 381). Without limiting the foregoing, DB Contractor agrees:
a. To utilize privately owned United States -flag commercial vessels to ship at
least 50 percent of the gross tonnage (computed separately for dry bulk carriers,
dry cargo liners, and tankers) involved, whenever shipping any equipment.
material, or commodities pursuant to this contract, to the extent such vessels are
available at fair and reasonable rates for United States -flag commercial vessels.
b. To furnish within 20 days following the date of loading for shipments
originating within the United States or within 30 working days following the date
of loading for shipments originating outside the United States. a legible copy of a
rated, 'on -board' commercial ocean bill -of -lading in English for each shipment of
cargo described in paragraph (a) above to both the contracting officer (through
the prime contractor in the case of subcontractor bills -of -lading) and to the
Division of National Cargo, Office of Market Development, Maritime
Administration, Washington, DC 20590.
c. To include this Section in each Subcontract at each tier involving Work
subject to the Cargo Preference Act, without modification except as appropriate
to identify the subcontractor who will be subject to its provisions.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 1 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 3 of 3 Federal Requirements
March 16, 2017
10308675.v32
ATTACHMENT 2 TO EXHIBIT 14
FEDERAL REQUIREMENTS
FHWA — 1273 — Revised May 1, 2012
REQUIRED CONTRACT PROVISIONS
FEDERAL-AIDCONSTRUCTION CONTRACTS
FHWA Form 1273
I. General
II. Nondiscrimination
III. Nonsegregated Facilities
IV. Davis -Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions
VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water Pollution Control Act
X. Compliance with Government wide Suspension and Debarment Requirements
XI. Certification Regarding Use of Contract Funds for Lobbying
ATTACHMENTS
A. Employment and Materials Preference for Appalachian Development Highway System or
Appalachian Local Access Road Contracts (included in Appalachian contracts only)
I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each construction contract funded
under Title 23 (excluding emergency contracts solely intended for debris removal). The
contractor (or subcontractor) must insert this form in each subcontract and further
require its inclusion in all lower tier subcontracts (excluding purchase orders, rental
agreements and other agreements for supplies or services).
The applicable requirements of Form FHWA-1273 are incorporated by reference for
work done under any purchase order, rental agreement or agreement for other services.
The prime contractor shall be responsible for compliance by any subcontractor, lower -
tier subcontractor or service provider.
Form FHWA-1273 must be included in all Federal -aid design -build contracts, in all
subcontracts and in lower tier subcontracts (excluding subcontracts for design services,
purchase orders, rental agreements and other agreements for supplies or services). The
DB Contractor shall be responsible for compliance by any subcontractor, lower -tier
subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in bid proposal or request for
proposal documents, however, the Form FHWA-1273 must be physically incorporated
(not referenced) in all contracts, subcontracts and lower -tier subcontracts (excluding
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 23 Federal Requirements
March 16, 2017
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purchase orders, rental agreements and other agreements for supplies or services
related to a construction contract).
2. Subject to the applicability criteria noted in the following sections, these contract
provisions shall apply to all work performed on the contract by the contractor's own
organization and with the assistance of workers under the contractor's immediate
superintendence and to all work performed on the contract by piecework, station work,
or by subcontract.
3. A breach of any of the stipulations contained in these Required Contract Provisions may
be sufficient grounds for withholding of progress payments, withholding of final payment,
termination of the contract, suspension / debarment or any other action determined to be
appropriate by the contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract, the contractor shall not use
convict labor for any purpose within the limits of a construction project on a Federal -aid
highway unless it is labor performed by convicts who are on parole, supervised release,
or probation. The term Federal -aid highway does not include roadways functionally
classified as local roads or rural minor collectors.
II. NONDISCRIMINATION
The provisions of this Section related to 23 CFR Part 230 are applicable to all Federal -
aid construction contracts and to all related construction subcontracts of $10,000 or
more. The provisions of 23 CFR Part 230 are not applicable to material supply,
engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply with the following policies:
Executive Order 11246, 41 CFR 60, 29 CFR 1625-1627, Title 23 USC Section 140, the
Rehabilitation Act of 1973, as amended (29 USC 794), Title VI of the Civil Rights Act of
1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27; and
23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the requirements of the Equal
Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction contracts exceeding
$10,000, the Standard Federal Equal Employment Opportunity Construction Contract
Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine compliance
with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR
60, and 29 CFR 1625-1627. The contracting agency and the FHWA have the authority
and the responsibility to ensure compliance with Title 23 USC Section 140, the
Rehabilitation Act of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act
of 1964, as amended, and related regulations including 49 CFR Parts 21, 26 and 27;
and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR 230, Exhibit A, with appropriate
revisions to conform to the U.S. Department of Labor (US DOL) and FHWA
requirements.
1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements
not to discriminate and to take affirmative action to assure equal opportunity as set forth
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630, 29 CFR
1625-1627, 41 CFR 60 and 49 CFR 27) and orders of the Secretary of Labor as
modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140
shall constitute the EEO and specific affirmative action standards for the contractor's
project activities under this contract. The provisions of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR 35 and 29 CFR 1630 are
incorporated by reference in this contract. In the execution of this contract, the contractor
agrees to comply with the following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and the Federal Government
to ensure that it has made every good faith effort to provide equal opportunity
with respect to all of its terms and conditions of employment and in their review of
activities under the contract.
b. The contractor will accept as its operating policy the following statement:
"It is the policy of this Company to assure that applicants are
employed, and that employees are treated during employment,
without regard to their race, religion, sex, color, national origin,
age or disability. Such action shall include: employment,
upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship,
pre -apprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known to the contracting officers
an EEO Officer who will have the responsibility for and must be capable of effectively
administering and promoting an active EEO program and who must be assigned
adequate authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to
hire, supervise, promote, and discharge employees, or who recommend such action, or
who are substantially involved in such action, will be made fully cognizant of, and will
implement, the contractor's EEO policy and contractual responsibilities to provide EEO
in each grade and classification of employment. To ensure that the above agreement will
be met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be
conducted before the start of work and then not less often than once every six
months, at which time the contractor's EEO policy and its implementation will be
reviewed and explained. The meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be given a thorough
indoctrination by the EEO Officer, covering all major aspects of the contractor's
EEO obligations within thirty days following their reporting for duty with the
contractor.
c. All personnel who are engaged in direct recruitment for the project will be
instructed by the EEO Officer in the contractor's procedures for locating and
hiring minorities and women.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 3 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
d. Notices and posters setting forth the contractor's EEO policy will be placed in
areas readily accessible to employees, applicants for employment and potential
employees.
e. The contractor's EEO policy and the procedures to implement such policy will be
brought to the attention of employees by means of meetings, employee
handbooks, or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will include in all
advertisements for employees the notation: `An Equal Opportunity Employer.' All such
advertisements will be placed in publications having a large circulation among minorities
and women in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, conduct
systematic and direct recruitment through public and private employee referral
sources likely to yield qualified minorities and women. To meet this requirement,
the contractor will identify sources of potential minority group employees, and
establish with such identified sources procedures whereby minority and women
applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement providing for
exclusive hiring hall referrals, the contractor is expected to observe the
provisions of that agreement to the extent that the system meets the contractor's
compliance with EEO contract provisions. Where implementation of such an
agreement has the effect of discriminating against minorities or women, or
obligates the contractor to do the same, such implementation violates Federal
nondiscrimination provisions.
c. The contractor will encourage its present employees to refer minorities and
women as applicants for employment. Information and procedures with regard to
referring such applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and employee benefits shall be
established and administered, and personnel actions of every type, including hiring,
upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without
regard to race, color, religion, sex, national origin, age or disability. The following
procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to insure that
working conditions and employee facilities do not indicate discriminatory
treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages paid within each
classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to
determine whether there is evidence of discrimination. Where evidence is found,
the contractor will promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such corrective action
shall include all affected persons.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 4 of 23 Federal Requirements
March 16, 2017
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d. The contractor will promptly investigate all complaints of alleged discrimination
made to the contractor in connection with its obligations under this contract, will
attempt to resolve such complaints, and will take appropriate corrective action
within a reasonable time. If the investigation indicates that the discrimination may
affect persons other than the complainant, such corrective action shall include
such other persons. Upon completion of each investigation, the contractor will
inform every complainant of all of their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of
minorities and women who are applicants for employment or current employees.
Such efforts should be aimed at developing full journey level status employees in
the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements and as permissible
under Federal and State regulations, the contractor shall make full use of training
programs, i.e., apprenticeship, and on-the-job training programs for the
geographical area of contract performance. In the event a special provision for
training is provided under this contract, this subparagraph will be superseded as
indicated in the special provision. The contracting agency may reserve training
positions for persons who receive welfare assistance in accordance with 23
U.S.C. 140(a).
c. The contractor will advise employees and applicants for employment of available
training programs and entrance requirements for each.
d. The contractor will periodically review the training and promotion potential of
employees who are minorities and women and will encourage eligible employees
to apply for such training and promotion.
7 Unions: If the contractor relies in whole or in part upon unions as a source of
employees, the contractor will use good faith efforts to obtain the cooperation of such
unions to increase opportunities for minorities and women. Actions by the contractor,
either directly or through a contractor's association acting as agent, will include the
procedures set forth below:
a. The contractor will use good faith efforts to develop, in cooperation with the
unions, joint training programs aimed toward qualifying more minorities and
women for membership in the unions and increasing the skills of minorities and
women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an EEO clause into each
union agreement to the end that such union will be contractually bound to refer
applicants without regard to their race, color, religion, sex, national origin, age or
disability.
c. The contractor is to obtain information as to the referral practices and policies of
the labor union except that to the extent such information is within the exclusive
possession of the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to the contracting
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 5 of 23 Federal Requirements
March 16, 2017
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agency and shall set forth what efforts have been made to obtain such
information.
d. In the event the union is unable to provide the contractor with a reasonable flow
of referrals within the time limit set forth in the collective bargaining agreement,
the contractor will, through independent recruitment efforts, fill the employment
vacancies without regard to race, color, religion, sex, national origin, age or
disability; making full efforts to obtain qualified and/or qualifiable minorities and
women. The failure of a union to provide sufficient referrals (even though it is
obligated to provide exclusive referrals under the terms of a collective bargaining
agreement) does not relieve the contractor from the requirements of this
paragraph. In the event the union referral practice prevents the contractor from
meeting the obligations pursuant to Executive Order 11246, as amended, and
these special provisions, such contractor shall immediately notify the contracting
agency.
8. Reasonable Accommodation for Applicants / Employees with Disabilities: The
contractor must be familiar with the requirements for and comply with the Americans with
Disabilities Act and all rules and regulations established there under. Employers must
provide reasonable accommodation in all employment activities unless to do so would
cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment:
The contractor shall not discriminate on the grounds of race, color, religion, sex, national
origin, age or disability in the selection and retention of subcontractors, including
procurement of materials and leases of equipment. The contractor shall take all
necessary and reasonable steps to ensure nondiscrimination in the administration of this
contract.
a. The contractor shall notify all potential subcontractors and suppliers and lessors
of their EEO obligations under this contract.
b. The contractor will use good faith efforts to ensure subcontractor compliance with
their EEO obligations.
10. Assurance Required by 49 CFR 26.13(b):
a. The requirements of 49 CFR Part 26 and the State DOT's U.S. DOT -approved
DBE program are incorporated by reference.
b. The contractor or subcontractor shall not discriminate on the basis of race, color,
national origin, or sex in the performance of this contract. The contractor shall
carry out applicable requirements of 49 CFR Part 26 in the award and
administration of DOT -assisted contracts. Failure by the 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 the contracting agency
deems appropriate.
11. Records and Reports: The contractor shall keep such records as necessary to
document compliance with the EEO requirements. Such records shall be retained for a
period of three years following the date of the final payment to the contractor for all
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 6 of 23 Federal Requirements
March 16, 2017
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contract work and shall be available at reasonable times and places for inspection by
authorized representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non -minority group members
and women employed in each work classification on the project;
(2) The progress and efforts being made in cooperation with unions, when
applicable, to increase employment opportunities for minorities and
women; and
(3)
The progress and efforts being made in locating, hiring, training,
qualifying, and upgrading minorities and women;
b. The contractors and subcontractors will submit an annual report to the
contracting agency each July for the duration of the project, indicating the
number of minority, women, and non -minority group employees currently
engaged in each work classification required by the contract work. This
information is to be reported on Form FHWA-1391. The staffing data should
represent the project work force on board in all or any part of the last payroll
period preceding the end of July. If on-the-job training is being required by
special provision, the contractor will be required to collect and report training
data. The employment data should reflect the work force on board during all or
any part of the last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal -aid construction contracts and to all related
construction subcontracts of $10,000 or more.
The contractor must ensure that facilities provided for employees are provided in such a manner
that segregation on the basis of race, color, religion, sex, or national origin cannot result. The
contractor may neither require such segregated use by written or oral policies nor tolerate such
use by employee custom. The contractor's obligation extends further to ensure that its
employees are not assigned to perform their services at any location, under the contractor's
control, where the facilities are segregated. The term "facilities" includes waiting rooms, work
areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms,
and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment
areas, transportation, and housing provided for employees. The contractor shall provide
separate or single -user restrooms and necessary dressing or sleeping areas to assure privacy
between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This Section is applicable to all Federal -aid construction projects exceeding $2,000 and to all
related subcontracts and lower -tier subcontracts (regardless of subcontract size). The
requirements apply to all projects located within the right-of-way of a roadway that is functionally
classified as Federal -aid highway. This excludes roadways functionally classified as local roads
or rural minor collectors, which are exempt. Contracting agencies may elect to apply these
requirements to other projects.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 7 of 23 Federal Requirements
March 16, 2017
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The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5
"Contract provisions and related matters" with minor revisions to conform to the FHWA-1273
format and FHWA program requirements.
1. Minimum wages
a. All laborers and mechanics employed or working upon the site of the work, will
be paid unconditionally and not less often than once a week, and without
subsequent deduction or rebate on any account (except such payroll deductions
as are permitted by regulations issued by the Secretary of Labor under the
Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe
benefits (or cash equivalents thereof) due at time of payment computed at rates
not less than those contained in the wage determination of the Secretary of
Labor which is attached hereto and made a part hereof, regardless of any
contractual relationship which may be alleged to exist between the contractor
and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits
under Section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics
are considered wages paid to such laborers or mechanics, subject to the
provisions of paragraph 1.d. of this section; also, regular contributions made or
costs incurred for more than a weekly period (but not less often than quarterly)
under plans, funds, or programs which cover the particular weekly period, are
deemed to be constructively made or incurred during such weekly period. Such
laborers and mechanics shall be paid the appropriate wage rate and fringe
benefits on the wage determination for the classification of work actually
performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4).
Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually
worked therein: Provided, that the employer's payroll records accurately set forth
the time spent in each classification in which work is performed. The wage
determination (including any additional classification and wage rates conformed
under paragraph 1.b. of this section) and the Davis -Bacon poster (WH-1321)
shall be posted at all times by the contractor and its subcontractors at the site of
the work in a prominent and accessible place where it can be easily seen by the
workers.
b. (1) The contracting officer shall require that any class of laborers or
mechanics, including helpers, which is not listed in the wage determination and
which is to be employed under the contract shall be classified in conformance
with the wage determination. The contracting officer shall approve an additional
classification and wage rate and fringe benefits therefore only when the following
criteria have been met:
(0 The work to be performed by the classification requested is not
performed by a classification in the wage determination; and
(ii) The classification is utilized in the area by the construction
industry; and
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 8 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
(iii) The proposed wage rate, including any bona fide fringe benefits,
bears a reasonable relationship to the wage rates contained in the
wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and the contracting
officer agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of the action
taken shall be sent by the contracting officer to the Administrator of the
Wage and Hour Division, Employment Standards Administration, U.S.
Department of Labor, Washington, DC 20210. The Administrator, or an
authorized representative, will approve, modify, or disapprove every
additional classification action within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within the 30-day
period that additional time is necessary.
(3)
In the event the contractor, the laborers or mechanics to be employed in
the classification or their representatives, and the contracting officer do
not agree on the proposed classification and wage rate (including the
amount designated for fringe benefits, where appropriate), the contracting
officer shall refer the questions, including the views of all interested
parties and the recommendation of the contracting officer, to the Wage
and Hour Administrator for determination. The Wage and Hour
Administrator, or an authorized representative, will issue a determination
within 30 days of receipt and so advise the contracting officer or will notify
the contracting officer within the 30-day period that additional time is
necessary.
(4) The wage rate (including fringe benefits where appropriate) determined
pursuant to paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to
all workers performing work in the classification under this contract from
the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for a class of
laborers or mechanics includes a fringe benefit which is not expressed as an
hourly rate, the contractor shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
d. If the contractor does not make payments to a trustee or other third person, the
contractor may consider as part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona fide fringe benefits
under a plan or program, Provided, That the Secretary of Labor has found, upon
the written request of the contractor, that the applicable standards of the Davis -
Bacon Act have been met. The Secretary of Labor may require the contractor to
set aside in a separate account assets for the meeting of obligations under the
plan or program.
2. Withholding
The contracting agency shall upon its own action or upon written request of an
authorized representative of the Department of Labor, withhold or cause to be withheld
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 9 of 23 Federal Requirements
March 16, 2017
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from the contractor under this contract, or any other Federal contract with the same
prime contractor, or any other federally -assisted contract subject to Davis -Bacon
prevailing wage requirements, which is held by the same prime contractor, so much of
the accrued payments or advances as may be considered necessary to pay laborers
and mechanics, including apprentices, trainees, and helpers, employed by the contractor
or any subcontractor the full amount of wages required by the contract. In the event of
failure to pay any laborer or mechanic, including any apprentice, trainee, or helper,
employed or working on the site of the work, all or part of the wages required by the
contract, the contracting agency may, after written notice to the contractor, take such
action as may be necessary to cause the suspension of any further payment, advance,
or guarantee of funds until such violations have ceased.
3. Payrolls and basic records
a. Payrolls and basic records relating thereto shall be maintained by the contractor
during the course of the work and preserved for a period of three years thereafter
for all laborers and mechanics working at the site of the work. Such records shall
contain the name, address, and social security number of each such worker, his
or her correct classification, hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or cash equivalents
thereof of the types described in Section 1(b)(2)(B) of the Davis -Bacon Act), daily
and weekly number of hours worked, deductions made and actual wages paid.
Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the
wages of any laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan or program described in Section
1(b)(2)(B) of the Davis Bacon Act, the contractor shall maintain records which
show that the commitment to provide such benefits is enforceable, that the plan
or program is financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and records
which show the costs anticipated or the actual cost incurred in providing such
benefits. Contractors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of apprenticeship
programs and certification of trainee programs, the registration of the apprentices
and trainees, and the ratios and wage rates prescribed in the applicable
programs.
b. (1) The contractor shall submit weekly for each week in which any contract work
is performed a copy of all payrolls to the contracting agency. The payrolls
submitted shall set out accurately and completely all of the information required
to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security
numbers and home addresses shall not be included on weekly transmittals.
Instead the payrolls shall only need to include an individually identifying number
for each employee (e.g., the last four digits of the employee's social security
number). The required weekly payroll information may be submitted in any form
desired. Optional Form WH-347 is available for this purpose from the Wage and
Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its
successor site. The prime contractor is responsible for the submission of copies
of payrolls by all subcontractors. Contractors and subcontractors shall maintain
the full social security number and current address of each covered worker, and
shall provide them upon request to the contracting agency for transmission to the
State DOT, the FHWA or the Wage and Hour Division of the Department of
Labor for purposes of an investigation or audit of compliance with prevailing
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 10 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
wage requirements. It is not a violation of this Section for a prime contractor to
require a subcontractor to provide addresses and social security numbers to the
prime contractor for its own records, without weekly submission to the contracting
agency.
(2) Each payroll submitted shall be accompanied by a "Statement of
Compliance," signed by the contractor or subcontractor or his or her
agent who pays or supervises the payment of the persons employed
under the contract and shall certify the following:
(3)
(0 That the payroll for the payroll period contains the information
required to be provided under §5.5 (a)(3)(ii) of Regulations, 29
CFR part 5, the appropriate information is being maintained under
§5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such
information is correct and complete;
(ii) That each laborer or mechanic (including each helper, apprentice,
and trainee) employed on the contract during the payroll period
has been paid the full weekly wages earned, without rebate, either
directly or indirectly, and that no deductions have been made
either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in Regulations, 29 CFR part 3;
(iii) That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for
the classification of work performed, as specified in the applicable
wage determination incorporated into the contract.
The weekly submission of a properly executed certification set forth on
the reverse side of Optional Form WH-347 shall satisfy the requirement
for submission of the "Statement of Compliance" required by paragraph
3.b.(2) of this section.
(4) The falsification of any of the above certifications may subject the
contractor or subcontractor to civil or criminal prosecution under Section
1001 of title 18 and Section 231 of title 31 of the United States Code.
c. The contractor or subcontractor shall make the records required under paragraph
3.a. of this Section available for inspection, copying, or transcription by
authorized representatives of the contracting agency, the State DOT, the FHWA,
or the Department of Labor, and shall permit such representatives to interview
employees during working hours on the job. If the contractor or subcontractor
fails to submit the required records or to make them available, the FHWA may,
after written notice to the contractor, the contracting agency or the State DOT,
take such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds. Furthermore, failure to submit the
required records upon request or to make such records available may be
grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees
a. Apprentices (programs of the USDOL).
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 11 of 23 Federal Requirements
March 16, 2017
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Apprentices will be permitted to work at less than the predetermined rate for the work
they performed when they are employed pursuant to and individually registered in a
bona fide apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Office of Apprenticeship Training, Employer
and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or
if a person is employed in his or her first 90 days of probationary employment as an
apprentice in such an apprenticeship program, who is not individually registered in the
program, but who has been certified by the Office of Apprenticeship Training, Employer
and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible
for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification
shall not be greater than the ratio permitted to the contractor as to the entire work force
under the registered program. Any worker listed on a payroll at an apprentice wage rate,
who is not registered or otherwise employed as stated above, shall be paid not less than
the applicable wage rate on the wage determination for the classification of work actually
performed. In addition, any apprentice performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less than the applicable
wage rate on the wage determination for the work actually performed. Where a
contractor is performing construction on a project in a locality other than that in which its
program is registered, the ratios and wage rates (expressed in percentages of the
journeyman's hourly rate) specified in the contractor's or subcontractor's registered
program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered
program for the apprentice's level of progress, expressed as a percentage of the
journeymen hourly rate specified in the applicable wage determination. Apprentices shall
be paid fringe benefits in accordance with the provisions of the apprenticeship program.
If the apprenticeship program does not specify fringe benefits, apprentices must be paid
the full amount of fringe benefits listed on the wage determination for the applicable
classification. If the Administrator determines that a different practice prevails for the
applicable apprentice classification, fringes shall be paid in accordance with that
determination.
In the event the Office of Apprenticeship Training, Employer and Labor Services, or a
State Apprenticeship Agency recognized by the Office, withdraws approval of an
apprenticeship program, the contractor will no longer be permitted to utilize apprentices
at less than the applicable predetermined rate for the work performed until an acceptable
program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than
the predetermined rate for the work performed unless they are employed pursuant to
and individually registered in a program which has received prior approval, evidenced by
formal certification by the U.S. Department of Labor, Employment and Training
Administration.
The ratio of trainees to journeymen on the job site shall not be greater than permitted
under the plan approved by the Employment and Training Administration.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 12 of 23 Federal Requirements
March 16, 2017
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Every trainee must be paid at not less than the rate specified in the approved program
for the trainee's level of progress, expressed as a percentage of the journeyman hourly
rate specified in the applicable wage determination. Trainees shall be paid fringe
benefits in accordance with the provisions of the trainee program. If the trainee program
does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits
listed on the wage determination unless the Administrator of the Wage and Hour Division
determines that there is an apprenticeship program associated with the corresponding
journeyman wage rate on the wage determination which provides for less than full fringe
benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not
registered and participating in a training plan approved by the Employment and Training
Administration shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the wage determination
for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a
training program, the contractor will no longer be permitted to utilize trainees at less than
the applicable predetermined rate for the work performed until an acceptable program is
approved.
c. Equal employment opportunity. The utilization of apprentices, trainees and
journeymen under this part shall be in conformity with the equal employment
opportunity requirements of Executive Order 11246, as amended, and 29 CFR
part 30.
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and skill training programs which
have been certified by the Secretary of Transportation as promoting EEO in connection
with Federal -aid highway construction programs are not subject to the requirements of
paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and
trainees under such programs will be established by the particular programs. The ratio of
apprentices and trainees to journeymen shall not be greater than permitted by the terms
of the particular program.
5. Compliance with Copeland Act requirements. The contractor shall comply with the
requirements of 29 CFR part 3, which are incorporated by reference in this contract.
6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any
subcontracts and also require the subcontractors to include Form FHWA-1273 in any
lower tier subcontracts. The prime contractor shall be responsible for the compliance by
any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be
grounds for termination of the contract, and for debarment as a contractor and a
subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis -Bacon and Related Act requirements. All rulings and
interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and
5 are herein incorporated by reference in this contract.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 13 of 23 Federal Requirements
March 16, 2017
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9. Disputes concerning labor standards. Disputes arising out of the labor standards
provisions of this contract shall not be subject to the general disputes clause of this
contract. Such disputes shall be resolved in accordance with the procedures of the
Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning
of this clause include disputes between the contractor (or any of its subcontractors) and
the contracting agency, the U.S. Department of Labor, or the employees or their
representatives.
10. Certification of eligibility.
a. By entering into this contract, the contractor certifies that neither it (nor he or she)
nor any person or firm who has an interest in the contractor's firm is a person or
firm ineligible to be awarded Government contracts by virtue of Section 3(a) of
the Davis -Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or firm ineligible for
award of a Government contract by virtue of Section 3(a) of the Davis -Bacon Act
or 29 CFR 5.12(a)(1).
c. The penalty for making false statements is prescribed in the U.S. Criminal Code,
18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
The following clauses apply to any Federal -aid construction contract in an amount in excess of
$100,000 and subject to the overtime provisions of the Contract Work Hours and Safety
Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR
5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include
watchmen and guards.
1. Overtime requirements. No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers or mechanics
shall require or permit any such laborer or mechanic in any workweek in which he or she
is employed on such work to work in excess of forty hours in such workweek unless
such laborer or mechanic receives compensation at a rate not less than one and one-
half times the basic rate of pay for all hours worked in excess of forty hours in such
workweek.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of
the clause set forth in paragraph (1.) of this section, the contractor and any
subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such
contractor and subcontractor shall be liable to the United States (in the case of work
done under contract for the District of Columbia or a territory, to such District or to such
territory), for liquidated damages. Such liquidated damages shall be computed with
respect to each individual laborer or mechanic, including watchmen and guards,
employed in violation of the clause set forth in paragraph (1.) of this section, in the sum
of $10 for each calendar day on which such individual was required or permitted to work
in excess of the standard workweek of forty hours without payment of the overtime
wages required by the clause set forth in paragraph (1.) of this section.
3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting
agency shall upon its own action or upon written request of an authorized representative
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 14 of 23 Federal Requirements
March 16, 2017
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of the Department of Labor withhold or cause to be withheld, from any moneys payable
on account of work performed by the contractor or subcontractor under any such
contract or any other Federal contract with the same prime contractor, or any other
federally -assisted contract subject to the Contract Work Hours and Safety Standards
Act, which is held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages
and liquidated damages as provided in the clause set forth in paragraph (2.) of this
section.
4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the
clauses set forth in paragraph (1.) through (4.) of this Section and also a clause requiring
the subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for compliance by any subcontractor or lower tier
subcontractor with the clauses set forth in paragraphs (1.) through (4.) of this section.
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal -aid construction contracts on the National Highway
System.
1. The contractor shall perform with its own organization contract work amounting to not
less than 30 percent (or a greater percentage if specified elsewhere in the contract) of
the total original contract price, excluding any specialty items designated by the
contracting agency. Specialty items may be performed by subcontract and the amount of
any such specialty items performed may be deducted from the total original contract
price before computing the amount of work required to be performed by the contractor's
own organization (23 CFR 635.116).
a. The term "perform work with its own organization" refers to workers employed or
leased by the prime contractor, and equipment owned or rented by the prime
contractor, with or without operators. Such term does not include employees or
equipment of a subcontractor or lower tier subcontractor, agents of the prime
contractor, or any other assignees. The term may include payments for the costs
of hiring leased employees from an employee leasing firm meeting all relevant
Federal and State regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the following conditions:
(1) the prime contractor maintains control over the supervision of the day-to-
day activities of the leased employees;
(2) the prime contractor remains responsible for the quality of the work of the
leased employees;
(3)
the prime contractor retains all power to accept or exclude individual
employees from work on the project; and
(4) the prime contractor remains ultimately responsible for the payment of
predetermined minimum wages, the submission of payrolls, statements of
compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work that requires highly
specialized knowledge, abilities, or equipment not ordinarily available in the type
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 15 of 23 Federal Requirements
March 16, 2017
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of contracting organizations qualified and expected to bid or propose on the
contract as a whole and in general are to be limited to minor components of the
overall contract.
2. The contract amount upon which the requirements set forth in paragraph (1) of Section
VI is computed includes the cost of material and manufactured products which are to be
purchased or produced by the contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent or supervisor who is
employed by the firm, has full authority to direct performance of the work in accordance
with the contract requirements, and is in charge of all construction operations
(regardless of who performs the work) and (b) such other of its own organizational
resources (supervision, management, and engineering services) as the contracting
officer determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with
the written consent of the contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the contractor of any responsibility
for the fulfillment of the contract. Written consent will be given only after the contracting
agency has assured that each subcontract is evidenced in writing and that it contains all
pertinent provisions and requirements of the prime contract.
5. The 30% self -performance requirement of paragraph (1) is not applicable to design -build
contracts; however, contracting agencies may establish their own self -performance
requirements.
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal -aid construction contracts and to all related
subcontracts.
1. In the performance of this contract the contractor shall comply with all applicable
Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635).
The contractor shall provide all safeguards, safety devices and protective equipment and
take any other needed actions as it determines, or as the contracting officer may
determine, to be reasonably necessary to protect the life and health of employees on the
job and the safety of the public and to protect property in connection with the
performance of the work covered by the contract.
2. It is a condition of this contract, and shall be made a condition of each subcontract,
which the contractor enters into pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance of the contract, to work in
surroundings or under conditions which are unsanitary, hazardous or dangerous to
his/her health or safety, as determined under construction safety and health standards
(29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107
of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor
or authorized representative thereof, shall have right of entry to any site of contract
performance to inspect or investigate the matter of compliance with the construction
safety and health standards and to carry out the duties of the Secretary under Section
107 of the Contract Work Hours and Safety Standards Act (40 U.S.C.3704).
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 16 of 23 Federal Requirements
March 16, 2017
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VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
This provision is applicable to all Federal -aid construction contracts and to all related
subcontracts.
In order to assure high quality and durable construction in conformity with approved plans and
specifications and a high degree of reliability on statements and representations made by
engineers, contractors, suppliers, and workers on Federal -aid highway projects, it is essential
that all persons concerned with the project perform their functions as carefully, thoroughly, and
honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any
facts related to the project is a violation of Federal law. To prevent any misunderstanding
regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each
Federal -aid highway project (23 CFR 635) in one or more places where it is readily available to
all persons concerned with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory,
or whoever, whether a person, association, firm, or corporation, knowingly makes any false
statement, false representation, or false report as to the character, quality, quantity, or cost of
the material used or to be used, or the quantity or quality of the work performed or to be
performed, or the cost thereof in connection with the submission of plans, maps, specifications,
contracts, or costs of construction on any highway or related project submitted for approval to
the Secretary of Transportation; or
Whoever knowingly makes any false statement, false representation, false report or false claim
with respect to the character, quality, quantity, or cost of any work performed or to be
performed, or materials furnished or to be furnished, in connection with the construction of any
highway or related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false representation as to material fact in any
statement, certificate, or report submitted pursuant to provisions of the Federal -aid Roads Act
approved July 1, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined under this title or imprisoned not more than 5 years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION
CONTROL ACT
This provision is applicable to all Federal -aid construction contracts and to all related
subcontracts.
By submission of this bid/proposal or the execution of this contract, or subcontract, as
appropriate, the bidder, proposer, Federal -aid construction contractor, or subcontractor, as
appropriate, will be deemed to have stipulated as follows:
1. That any person who is or will be utilized in the performance of this contract is not
prohibited from receiving an award due to a violation of Section 508 of the Clean Water
Act or Section 306 of the Clean Air Act.
2. That the contractor agrees to include or cause to be included the requirements of
paragraph (1) of this Section X in every subcontract, and further agrees to take such
action as the contracting agency may direct as a means of enforcing such requirements.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to
Exhibit 14
Page 17 of 23
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND
VOLUNTARY EXCLUSION
This provision is applicable to all Federal -aid construction contracts, design -build contracts,
subcontracts, lower -tier subcontracts, purchase orders, lease agreements, consultant contracts
or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000
or more — as defined in 2 CFR Parts 180 and 1200.
1. Instructions for Certification — First Tier Participants:
a. By signing and submitting this proposal, the prospective first tier participant is
providing the certification set out below.
b. The inability of a person to provide the certification set out below will not
necessarily result in denial of participation in this covered transaction. The
prospective first tier participant shall submit an explanation of why it cannot
provide the certification set out below. The certification or explanation will be
considered in connection with the department or agency's determination whether
to enter into this transaction. However, failure of the prospective first tier
participant to furnish a certification or an explanation shall disqualify such a
person from participation in this transaction.
c. The certification in this clause is a material representation of fact upon which
reliance was placed when the contracting agency determined to enter into this
transaction. If it is later determined that the prospective participant knowingly
rendered an erroneous certification, in addition to other remedies available to the
Federal Government, the contracting agency may terminate this transaction for
cause of default.
d. The prospective first tier participant shall provide immediate written notice to the
contracting agency to whom this proposal is submitted if any time the prospective
first tier participant learns that its certification was erroneous when submitted or
has become erroneous by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended," "ineligible,"
"participant," "person," "principal," and "voluntarily excluded," as used in this
clause, are defined in 2 CFR Parts 180 and 1200. "First Tier Covered
Transactions" refers to any covered transaction between a grantee or subgrantee
of Federal funds and a participant (such as the prime or general contract). "Lower
Tier Covered Transactions" refers to any covered transaction under a First Tier
Covered Transaction (such as subcontracts). "First Tier Participant" refers to the
participant who has entered into a covered transaction with a grantee or
subgrantee of Federal funds (such as the prime or general contractor). "Lower
Tier Participant" refers any participant who has entered into a covered
transaction with a First Tier Participant or other Lower Tier Participants (such as
subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting this proposal that,
should the proposed covered transaction be entered into, it shall not knowingly
enter into any lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 18 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
g•
covered transaction, unless authorized by the department or agency entering into
this transaction.
The prospective first tier participant further agrees by submitting this proposal
that it will include the clause titled "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered
Transactions," provided by the department or contracting agency, entering into
this covered transaction, without modification, in all lower tier covered
transactions and in all solicitations for lower tier covered transactions exceeding
the $25,000 threshold.
h. A participant in a covered transaction may rely upon a certification of a
prospective participant in a lower tier covered transaction that is not debarred,
suspended, ineligible, or voluntarily excluded from the covered transaction,
unless it knows that the certification is erroneous. A participant is responsible for
ensuring that its principals are not suspended, debarred, or otherwise ineligible to
participate in covered transactions. To verify the eligibility of its principals, as well
as the eligibility of any lower tier prospective participants, each participant may,
but is not required to, check the System for Award Management
(https://www.sam.gov/), which is compiled by the General Services
Administration.
i. Nothing contained in the foregoing shall be construed to require the
establishment of a system of records in order to render in good faith the
certification required by this clause. The knowledge and information of the
prospective participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
j•
Except for transactions authorized under paragraph (f) of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other remedies
available to the Federal Government, the department or agency may terminate
this transaction for cause or default.
2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion — First Tier Participants:
a. The prospective first tier participant certifies to the best of its knowledge and
belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating in covered
transactions by any Federal department or agency;
(2) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal or
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 19 of 23 Federal Requirements
March 16, 2017
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(3)
State antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or
receiving stolen property;
Are not presently indicted for or otherwise criminally or civilly charged by
a governmental entity (Federal, State or local) with commission of any of
the offenses enumerated in paragraph (a)(2) of this certification; and
(4) Have not within a three-year period preceding this application/proposal
had one or more public transactions (Federal, State or local) terminated
for cause or default.
b. Where the prospective participant is unable to certify to any of the statements in
this certification, such prospective participant shall attach an explanation to this
proposal.
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior
FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200)
a. By signing and submitting this proposal, the prospective lower tier is providing
the certification set out below.
b. The certification in this clause is a material representation of fact upon which
reliance was placed when this transaction was entered into. If it is later
determined that the prospective lower tier participant knowingly rendered an
erroneous certification, in addition to other remedies available to the Federal
Government, the department, or agency with which this transaction originated
may pursue available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate written notice to
the person to which this proposal is submitted if at any time the prospective lower
tier participant learns that its certification was erroneous by reason of changed
circumstances.
d. The terms "covered transaction," "debarred," "suspended," "ineligible,"
"participant," "person," "principal," and "voluntarily excluded," as used in this
clause, are defined in 2 CFR Parts 180 and 1200. You may contact the person to
which this proposal is submitted for assistance in obtaining a copy of those
regulations. "First Tier Covered Transactions" refers to any covered transaction
between a grantee or subgrantee of Federal funds and a participant (such as the
prime or general contract). "Lower Tier Covered Transactions" refers to any
covered transaction under a First Tier Covered Transaction (such as
subcontracts). "First Tier Participant" refers to the participant who has entered
into a covered transaction with a grantee or subgrantee of Federal funds (such
as the prime or general contractor). "Lower Tier Participant" refers any participant
who has entered into a covered transaction with a First Tier Participant or other
Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting this proposal that,
should the proposed covered transaction be entered into, it shall not knowingly
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 20 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
enter into any lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this
covered transaction, unless authorized by the department or agency with which
this transaction originated.
f. The prospective lower tier participant further agrees by submitting this proposal
that it will include this clause titled "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered
Transaction," without modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions exceeding the $25,000 threshold.
g.
A participant in a covered transaction may rely upon a certification of a
prospective participant in a lower tier covered transaction that is not debarred,
suspended, ineligible, or voluntarily excluded from the covered transaction,
unless it knows that the certification is erroneous. A participant is responsible for
ensuring that its principals are not suspended, debarred, or otherwise ineligible to
participate in covered transactions. To verify the eligibility of its principals, as well
as the eligibility of any lower tier prospective participants, each participant may,
but is not required to, check the System for Award Management
(https://www.sam.gov/), which is compiled by the General Services
Administration.
h. Nothing contained in the foregoing shall be construed to require establishment of
a system of records in order to render in good faith the certification required by
this clause. The knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person in the ordinary
course of business dealings.
i. Except for transactions authorized under paragraph a of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other remedies
available to the Federal Government, the department or agency with which this
transaction originated may pursue available remedies, including suspension
and/or debarment.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --
Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal,
that neither it nor its principals is presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participating in
covered transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the
statements in this certification, such prospective participant shall attach an
explanation to this proposal.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 21 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
This provision is applicable to all Federal -aid construction contracts and to all related
subcontracts which exceed $100,000 (49 CFR 20).
1. The prospective participant certifies, by signing and submitting this bid or proposal, to
the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of
the undersigned, to any person for influencing or attempting to influence an
officer or employee of any Federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any Federal grant, the
making of any Federal loan, the entering into of any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with this Federal
contract, grant, loan, or cooperative agreement, the undersigned shall complete
and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any
person who fails to file the required certification shall be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid or proposal that the
participant shall require that the language of this certification be included in all lower tier
subcontracts, which exceed $100,000 and that all such recipients shall certify and
disclose accordingly.
ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN
DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD
CONTRACTS
This provision is applicable to all Federal -aid projects funded under the Appalachian Regional
Development Act of 1965.
1. During the performance of this contract, the contractor undertaking to do work
which is, or reasonably may be, done as on -site work, shall give preference to
qualified persons who regularly reside in the labor area as designated by the
DOL wherein the contract work is situated, or the subregion, or the Appalachian
counties of the State wherein the contract work is situated, except:
a. To the extent that qualified persons regularly residing in the area are not
available.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 22 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
b. For the reasonable needs of the contractor to employ supervisory or
specially experienced personnel necessary to assure an efficient
execution of the contract work.
c. For the obligation of the contractor to offer employment to present or
former employees as the result of a lawful collective bargaining contract,
provided that the number of nonresident persons employed under this
subparagraph (1c) shall not exceed 20 percent of the total number of
employees employed by the contractor on the contract work, except as
provided in subparagraph (4) below.
2. The contractor shall place a job order with the State Employment Service
indicating (a) the classifications of the laborers, mechanics and other employees
required to perform the contract work, (b) the number of employees required in
each classification, (c) the date on which the participant estimates such
employees will be required, and (d) any other pertinent information required by
the State Employment Service to complete the job order form. The job order may
be placed with the State Employment Service in writing or by telephone. If during
the course of the contract work, the information submitted by the contractor in the
original job order is substantially modified, the participant shall promptly notify the
State Employment Service.
3. The contractor shall give full consideration to all qualified job applicants referred
to him by the State Employment Service. The contractor is not required to grant
employment to any job applicants who, in his opinion, are not qualified to perform
the classification of work required.
4. If, within one week following the placing of a job order by the contractor with the
State Employment Service, the State Employment Service is unable to refer any
qualified job applicants to the contractor, or less than the number requested, the
State Employment Service will forward a certificate to the contractor indicating
the unavailability of applicants. Such certificate shall be made a part of the
contractor's permanent project records. Upon receipt of this certificate, the
contractor may employ persons who do not normally reside in the labor area to
fill positions covered by the certificate, notwithstanding the provisions of
subparagraph (1 c) above.
5. The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a
contractual preference for the use of mineral resource materials native to the
Appalachian region.
6. The contractor shall include the provision of Sections 1 through 4 of this
Attachment A in every subcontract for work which is, or reasonably may be, done
as on -site work.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 2 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 23 of 23 Federal Requirements
March 16, 2017
i n.znQa7 „�o
ATTACHMENT 3 TO EXHIBIT 14
FEDERAL PREVAILING WAGE RATE
(Subject to Change)
The federal prevailing wage rates for the Work through Final Acceptance shall be those
set forth under the general wage decision for highway construction projects in Riverside
County, California as published on the Davis -Bacon wage determination website on the
date that is ten days before the Proposal Submittal Deadline. Such prevailing wage rates
are incorporated in this Attachment 3.
[The wage decisions and labor classifications in this Attachment 3 to Exhibit 14 shall be updated
at or before execution of the Contract with the wage decisions and labor classifications in effect
ten days prior to the Proposal Submittal Deadline. DB Contractor is not entitled to any change
in the Contract Price due to the differences between the wage decisions and labor
classifications in this Attachment 3 to Exhibit 14 and those in effect ten days prior to the
Proposal Submittal Deadline.]
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 25 Federal Requirements
March 16, 2017
i n.znQa7 „�o
Gus,uL e I [}tti S_L`II Nuirhue ; CA1640A6 11 /1112016 CA3C
r172n, -.r.r it
State: CalifoLnia
Cgh� L rwrr1.1 pn T y1 2.1 : FT4hu w y {}1a:;Vy+ And Rrixt a 1nej) And
Highway
f'comF y; Ri verqicia C.:minty in Cr11 i ft-pr-ni�,
SU ILDiNG Dolmneucrtai AROJMCIS; tlREliaNC PROJECTS [floes nut
11-1c l y+gr1 4oppn. {LX V wok' K 1 i WINAW x LWV.--'l EuL J 1t49 Iffu W- L :A i r�l:las
NO I J a51 =11 yrLr 5r1 I F N t W 441 4Ei Lil iCL11 r I NNWA z coN`-'TRuf: IOU FRoxecT:3
04 te: Under Executive Urder b fi 5•5. a: •• nouray minimum wage
.7dLemelAt vain a ppjiw,1 to all Itemir.Y',tdKs
siai3 aut to t ht Da yi s-Dmillor A177 f no- 4ir1 L + he ro} ] i c i r a t i n WAN
ti riA pr1 on or 'I F r P• a- .3anilaa.ry 1, 21115, If th i er c:on t r ec.r i covPir d
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=leis i ! il_dL iorl i ix�ti11J uq 1_1V; 1J11A� Lmilie r Lon dt LtI�sL
.510.1L. 1•• S L 11r1 .1.14 l oA 1 151 ray L,: 112 L and vn { L i F. 1r,40f I
determination, if it is hictherI for all hours spent perfuuoiaq
on the contract In 12ale,sUal yeas 2016. The E.0 minimums wage .E,Lte
wi i L e.il u t riNd Anfltia.1. 1 1 y- Addy L t i ctla l i h rtirmA tinq on root xedt m r
t41:101 t+LmlilgtiAnd wo r kw t F1 F 11.IFd' Y irnJ undi r f At 1E0 iA +71.00- L4k*1
at www , dal ..rw/wheLlaaw.:,ntz ncr a .
ficodil i 4tiQn Ntilaldwr Puhliwtipn U:yl
0
1
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O 5/20/2016
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1 M AA/71R,Orri g
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13 11/11/20/6
AS 160005-002 0 7 / 04l20l.6
Pates PL Incle s
A4W2..-Ld2; L.)zimarA:lln,,+.LaLow
iincludes the application of
CI 1-154-•1 UL11Ly meat-_1412ar
pre,t,k t.1v,1- e:,W rri mpsr
cn�,r.i�5r1 r an=t r iIIi *AA L6 all
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Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
44ad panitt ra k ipas 1n 144114 r
f]r•+sr9r mr:Fl jngn and r-Nrt,in
walla) „ ... 2ti,15
ASBE0005-004 01 / 0412 016
_7,11
R,a Lea Fringes
Ao.b€ s t oa Re uoval
haud1 L [ i, l�lu4:r s
prop l aticf,r WrEti=hV ,
tripp f rt11, Kftmolm L r
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rr d i4:64Aping LPL 411
iRnuIat i r,n matrrriAlx frcm
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t h.Fy nor*ra i n ash o r%% or nok ] .. , , $ 1 F , 3R
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1r1,g2
BOILERMAKER ..
Rates
,...... $ 41,11
Ensiles
28,27
4 BRCA00114-011 05/0112016
Ratty Ftft5ye
❑L yrthr , Cid Ra LAkm, DhAl h tir-til l nor, Fort Irwin, Twin% y-Ninr
?a 1 ms r Nnvul i•►* 4Bd rs ` vw i a aaa< rim u.-_tle
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a tandard San Bernardino? Kive= ; i Je, Cculrivy ann r G Y wage 'EATS
rtprAnniit-n6A nafni f2n1g
RaLeg
TILE Fi N± 5BER , , , , , . S 24,5d 4.1J
TILL: LAYER.. • .. , ..$ 6a+Er9. 6.rai
BRCA001 a-016 cm/m.120 3
Tatty Fr 9 ngs_s
TERRAZZO DER/SETTER--.. $
EARpo.09.-nv3 1-131mizoI5
Rates Fringes
CARPENTER
1p carpenter, Cabinet
Lnara llerr Ln2U1AE1O
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 3 of 25 Federal Requirements
March 16, 2017
i nQns2a7G „Qo
Imo -oiler, Hardwood F 1 oor
Woi ker and acouot i va 1
,, ,,
(2) Millwright., .. ,$ 411.�+
(3) L'il dkiVLrL :L/L1 fLiu
Ba'"aE7f an r BL I g e OL J OCk
1 a ~
Rti4iG 1lorcperr in [it m x
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7 11) ' '}
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4i '
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(7) ' AA-..1 pi v.n.wii r f a x
1 4, JU
.OpPirator.. .. 4. 37.45 1l.59
FOOTNOTE: WeAk of i-orming la the oon2t roar ion of mpEa cut
oT ritrir-m drai ro. :print 3omq i rr whi oh jinn 7nTral
lagging i o used in conjunct Ian wi = h driven Or
I,L•1�C9, iu� lJSaL IPs:=1VLI ,1 3 i. 1.g
LL• En wLli agd i a t cculmE _e 18 poured, namely. as 3
�lJ7d�iLutt i gar bduk 1uxlae• [WiLieh musk ig Uy
p 1 1 r--ririve= j: ; U. f 3 peg (!S4lEC adds =i.onal.
CARPOOS-002 01101 /2006
Ra toth Fr i rtigers
Divrtr.
i3i Tro.n Qc . 4 3.23 _irk
9, R?
9- 02
9,13�
Amni.n r a in '13atFn' qo l umn h r. n nfi r Any
C'Ak'_'0.199-095 07 f 1 t /2015
Rd Les L! E let -ye }
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15..U3
7.L7
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Fi:r.nirusrr I n-tfil:rte 7_41
4LM0440-001 n.F/27/20.16
Rm reA rr i nffnn
E• LVrTk f C I LM
1N51[1 __-. :1,= 1AN... , , 36.56
SYSTEMS
35122.u1
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 4 of 25 Federal Requirements
March 16, 2017
inQnon7g „,e)
Ele-crt ri cian .. 5 .
• $ 21.42
23.11
22,84
W EE i. _ .: r-_ =_ L ,tone LOE Ja11 oon t r,xc too s
A.
▪ ^l13 ivitry r %r f^rwc-i LT 1.517m [fj i -hall mAA qi2 nn �al
hou * to the c;ia r En t wage o cale. tune (H.) 8hall to the ate
=t�'a the eao tern. per l ore Lef of 2,1ane ilne Nh112.I1. t' UELO
nnith and N•orn tF, bQgi nilrinrl At hi rtl r. hior oncin ?!.anyilm tiarl
✓ ernardlno i lAvera lde ui nF d r .now L h aL alonu c LIe
I'_oaohm13.1 Trinnm1 ar Cpicuarllr, a*mr Airrinannh and Mpia7c4
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..1 111 .+G5
SCOPL Of WORK:
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%1 C _ L L'. ti u.g C IYc t lent IIIi s slou and/or t ianal� f ehee vulce r
s�atw�i r v 1 Sl1_ u at_ti tut c'JILILIuccdai, eJuva L! until,
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• •I n �x•� r xL;iTly.; .mq1 Iar1 Lrrg raceway myritrlim,
:t172:T 14M r J 1 0M VO 1 t-ayilt ark i NIa n gomI SY7 L
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Cirdnnrl±. Term! SLot.inn.
------------
iE.C1241:-u0i 06M1/2015
Reel tea s Frt rtighi
LINE CONSTRUCTION
11Lineman; Cable opitcet . 4 5Z. n
[ Equipm nt speeizpliac
{c,peL{•.Leis CniAILet
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✓ ets YC lea, backhoeo,
▪ tree r. }}a7 �I rw arls,N (5t)
'.'� l ram) r a 1-1-.P rr1 c
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 5 of 25 Federal Requirements
March 16, 2017
i nQnQa7G „,v,
unctergroun 4i �t._iittion
line .equipment f .. $ 42.21 14.32
.11] Fumci-2uuatI S 43'1. L 9
HaLY LAYS ; New Year'l Gay, NA., f41 E`q: Day, Nemo T, al Day,
il�tle���l�tie[I c Uay. LdL..Jt Da.y r Uali, Than kag t Wln Day
=LIU Jay Uatir
ELEV0018-001 01/01/2015
Rates Eringes
ELEVATOR MECHANIC
S 49..90 26,2.
Ain VAi: NTION : 2mpiayea uunt i!tia t ev c t . egulai 1u��5ri Y
r +r� r w vr�c •, r i m phy f.nr OMpi rLyGIRa wish mn i r- iqm p 5
�} r f Ini GI f lr E wing hn to 9 yPar,a rf
N111.10i� ' tJa� ==: r' Limy. Y rurnximl UBy, 1ridpp=D4p[p = Lay,
7 e�r,7 ftl yr Vat s rAror flay, 7 hAra mgi vi n{] 1 n yd 120drl y A ft R r
th inklkl1 V' nnr inky i71- ri F.-TALA nay.
----------------------------
E.W;E 0i2-0.0•3 0710Lf2056
----------------------
;4,-�rn Rri nc{ns
;All other 1prsrk M
LKAIP2-..__-• •__-.. $ 41I.73 23_3
GROUP 3 _ .. S 41,112 2. 3 . 35.
GROUP d-------------------- $ .n-1A. 2.3_311
GROUP 0_. ._.. 3 dU.139 2.J-35
GROUP r: , _ .$ 42,E 9 i3. 35
GAP P'i...
GROUT 3: 5 4 2 - � 1
GROUP ---------- ..--------- $ 43.13 23.a5
GROUP 16-------------------- 43.26
GROUP lo.................... 8 43,73
GROUP 20.,..... .. ,..$ 43.96
GROUP Pi_.. $ 44_11:; 23_:}t
GROUP 2t.,,...,,..., ..$ 44.23 23.2'5
GROUP 23., $ 414.3d 23.15.
LROUr 26. , , 8 44.4G 2).25
OPEPATOR ¢ Pcwtir L'gviErmAd L
�Claseo r Pi iediwing 6
Rost Ling ]
MOW' f.,,,.., $ 43.20
22,15
22,15
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 6 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
t taL' _...... :::... S 44,n1
2.2.15
GROUP ---....---.:.---....$ 22.in
GROUP 7''' _3 44.d6. 22-1'5
GROUP E!........ .....8 d;,03 715
GROUP P i. $ 4 5. 2 n 22 _ 15
14.LaiLF ir, :: :: ... 5 16.20 22. L5
C;FIJ UP 11 $ 47_20 22.L5
takOW! 12 lE .29 22.15
14Fgimir 13. ........... S 49,2n 22-L5
OPERATOR: Cower Lquapmerit
(2uh Je! iWfJz ki
umoue 1 ...::: ::. .11. U
GROUP - $ V _W1 23A5
GROUP 4,__:::,,_.:::,_::,5 43.01 2j.3t
GROUP J:_-- j 43.7 23_:35
GROUT f .... $ 113,14 23.35
RC.FII OM
$.3.7- rc.r FL711r 5.h.111 i ha rlid inn 111 I''7Wqr ;:qu ipm1Pnt oprir1i7or
w uck ._n Loi lawnq M11 : 11..ary awwt«;= =11171a L.ok� Nowa1
Reserve, Ua n denhe rrl An, Flint A rgrae11 r, :'.r = ' y Nov.13 136,E,
Port 3 T5f ii ri=-bo Annex Marine Base, MaL l ne 4 c LI, IJogi otica
SNP Is mor ErNs rig Anr 2g Palms M.Ir ] r1 tape and 1:-.Imp
WoLker s yeduiltd i 1.1 salt up and 1.4*.E k il7 a hazardous waL• er kal
e »v i r, niltuh L 1 & . oa pt-2 r hula .ddi t eoha f . Ctim1b ena L3 , n wi xe r
ana operatoL an gur1] LF• Y:orx :ir131J L'F' class L f 1. S
4t2,1 a Lyr}rittttt1r ttinbi Sot mi ul*r noaratnr_
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wi Fnh F wi rr• 1 ri mi lar type ciTri pmanh f' icrirlitar
operrl txrr-i n 1 i- : nrlgineer rorkl'_ fi: oper�t o
1 i algl rran ; 1 1: 1 n Erwi t a r t yrlr 11 rider 5 r c,ns;
r_eneIat1}± t L. - _ _. _ _ _ : Gener.0 t o L r pump _ 1 = omot c.J sor plant
•7pera tvr: Puma npe1•atcir;
awIL7.5 J= J4N1111:•11I-1111,111_r .V-4.411.1 1.4+16 JlewraiJI4'1
COMe'Le to 1.Jpe.La LUL'.0 kly C uLLwc 1y4Ja Ve L 0 tar;
Fi tL2mau For tf [I. 14 eLdLLJr fiihrlude� f rJrJdr ] uiLi ,.1r s L1rLi ] at
typts r ! tuJtA p 1151dr ou t s tlt puwp op.= a L• or p allti _' f 4,J te.f
¢3E.11 Fb I L. 4J1" .=1114,r K_k =+.1111d. . :-]xl]L iyo1 IIG711IP., I :
.54uA L;Drivsey144 '*agni-rr+r .upwr+144s or
i m3 t a r kypetA j; Ski p k oariftr {*mit! type Lip t o 3/ 1 yd..
wi.LhpuC TuG puL d lZi04D; 4IMPLW4rY h6n ti LTIri
rtcWt 95mrsl.Frr rnirke:421*
c=1«Ue.W Alpha l t-rnbileri blend Npe rator: 1i1,117,1 y or s i mi 1 a r
F yFc• ({k 3 Ot-g0 s M a gilwpmonk. lur-Ari'r (rar•N S a P-rd
dragtype attachments); bel i copt ex radioman ( ground l. r
:A r.Ippi n7 n nd m..l fain i n �1 ia� r rI�JF�rd s
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 7 of 25 Federal Requirements
March 16, 2017
inQnon7g „Qo
GROUP 4 : A.gphal k plan Lpe t a _oL�ILa,1 Lx '�t
11h11aL Lyrae I ; Boi _ v2. _..s•.sL:_lIC LyL,Er1.4; E3wriod11. LIL in1xe11~A:
. . _ _�E•� i. a•�a�� wa�l�a• a �Faz� •�ti•s� r
r L•LI _ _ t C c ::11==J11cky dE'con t •3m:na t li.0 JfILl;2•11121e 1[aE13k LIL
I_'+JIL-: _t Lt Punt. pu>_Labl r r 0=11s_hu �•�[:iiw_
n re v.; r r•r a rma r 1 auger types i Te xnma Taper ecnn hma -- - •-cr
:•10.11,at _ypes - HL,ghea 100 •D Y 2U U -
dt_11Y_Ly d14•_21 uL 50I raxlenultlj p EquIp'W ftL • r a ims (tif aed
trrw.kp p vA r+• •^- .]r am, operor"-; Nigh 1'ne •=71n1 Ewdy
� l:�n.� Im�n � 5tir•Ir7-I•�r.minty•--ter � hrnrytr��r r F•'ll ^r•-�'llnn� I � nrs
I n,g l• 1741nmar a •-'.r i nn molohj ne•
cipera t r r: rower c norEte -3,314 operator: Power -driven 'Itirntq
orm o et Cet .opera or p Ebwe a r.'fi a =ner •,perato e r- Rock Wheel
:inw!•n. 1414•,I Mt ., ,1, J'1•Ij a `} a an1L sq s+l.1t0 I.
asphalt or concre e p : T ren ' ; iq m, dl l r,e cppera to tub to 6
ft.); Vacuum or muaY truck
151300P 51 Equipmen+ Greaser Grease Trunk f Mal1-1 151-1i f t t .
1ROUP 6= Arti!=g1�= in¢ ma arihl }1a+:1 ar.: irurphin17 p1 alnt
a n.TjnBc 1•r r3aF�n p]3„r Pi r ahirfvrhmr, I'tin+rare
macr in.17 ❑p nca,Erg- goonAt and ::i4•i lar L+ pp) j I.rFnCFr•�c•
plAwir .nrigra-nr; Dar4dy di gg.pr. 9n5i n$ cip rater;
Dmrr Lognibu (Lri I r kmid tWp0 r f47-1.1.ink opwreac•ro
R,L;1 L 1�S rl' r S ApNr, (cam) .o, LA 1 n4 nl, kr•, t, � 1,1111 lap r L ylf:L,
- wAtrnn I 0 pugrr nr s1 mi7hr Ity pr,r - `I'rx••,1na 3 r 54-X, •�r
i100 4 Lmi 5er typoto drs L I i nq 644)12) 4 5'
m1Lnipahr r R s .11 G17 'a4ti•rll L'JFP Ay d rocs rz,rxh io uvisdLk r
nlachi h1r npFrAtor fiK ra r pu tp I.}5 nut.d) e ei4tkAnh
WOnkAln#rr tr sar.LInr Lyphi Ko1eimo27 *Riteh Camp ', t•r
s tFLdf 1a; k ierar; MiP L i 130 up o ru L9Fs L{ILR'11.' • i :I i :.I • I ' i•. I L LJ 1 i
dapha I iJ ; hh 1 •c.. :•: I 1 . 1 _III.+r I.pArairst �_ I •. r
Cla 1 y-Lbnl inScih -al dpori l _rr.i Ye 1 j ; Ml uE u L unnc 1 9y� L•�In
jLr f•:i4i gi•i.land) ; NIValtiLhL L•LizakL1 cipmtdttl]t 4Eruck mDatJtL-d) ;
H041 . Vl J. 7nmcAl [lit upsr. zw, LtiC•1 LRr DnikrnEnt Litz-p a iL
La f lA d 2h) e i Lilibet- L i tad �•„ri tvg u.1eg1 t
c.r.ginvr, up Cu and 1r0ty LnJI m Elel ~-pYtip4ilieJd
tat plpeliallo 4 mazhine opera tilt r 3k1 L" oade • ope a i of
? t i ew lizs and whulA osltii 314 y3. and •gyp r. •: and
iVutUdi ng 1 -1 (2 Slip (rim ven 1 1 • . =1 i ipode1
drtiver_ nyelrau11c I *LL nl 1.1eVloe tot tt fms f r.
TruLLat' ��7'_ LJ'_. :'-Lu L l[►. Si e� t.1nt-LIL'lat.IL.L LI_ngiL J�OJ_lltl
IT to 1011 r i po:,eei and s1 m'_ lat typed, ap to mid
lnuluding D--a te__Lf olm±1aE typev 1 r '1'aligEL Jlolat Apefa Lot' it
Lawn); UlLLa L-Lese to wd.Lei jeL L'uL L1pg 11_x.11 ay.lLem
upnratoi: vacuum tia:ntanc} mmonan= LpeYatv1'
ilP4511p B; A rpliml t lr rnperrar•p npRrot:.7r ftAla i nil '71:
3 n i F.i nK1 Asaha 1 t Dav i na machine brat..} r ( Barber wreene
o f tyrr.10 : e'L�ph, 1C-1'L]bbef LLLat+lbll='_•:1� x�elat•Jrp
Hrirkhop -1p.wr4rov -•.rri i r;rindi nir 3eA 'rrl_ F, -mni 1 F rar
r;ase eim3 far: C;{ti --.. _,. are pipe laying mocthine
wr'rrr); .nTier ator t ml f-prop.71 1 e, LJ r '.:•,nt. e F -q. m per
riperlr.nl' 11•r'usnir r T1 am opFratr`r; 11'] 1 1 0.or tort
lir o.1 1-Lrw." m.Fuhi-nL, J.Ju k.L•C UV 4,19F2r OFIALw' 1
1 5n hras-.ket nr ekimi l.ar Typ?s - t 5on, 2.ou n n n a n I .
or !.imliar tvym; - TuM.Ima 71:10r 600 atiwr Lyjx4;1 -
4t'xl1 i 1 •.i� q L of 60' Imaximn ; Curvet i:ill girnde.r op4-ra Lol
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 8 of 25 Federal Requirements
March 16, 2017
i nQns2a7G „Qo
47.rradcyhe.ker� (3 racial l c��rwrir; i;ro:lkir,cp maEchine operarne�
heavy-d-a L v repairman: . .e6.V1? egol riment n:11)0 a iLi ,weLa o i
itd±ama ou L'c311_ zS'_a FEULL!•m. UL __ 2fJILL_ai I_y}'e; M.DIM _lJl OE_-
'rarlFr .in,i -1im; Lar ryri r Le 1-.ni -ne.ti:: hlgb--,nlp711 ;rnt ~r-
n imt lar >_v-r_; l.t'adEr mperatdv lAthev, Euc."I td, Sterra and.
Mln+i lur L po,l71; Kalp-irk Chippux Isr .uamil44 ? 0,14t;IJ pm0:14r �F
similar fIrpri ; F_1=_ al n` AAW Pw nmal-j r. rnry.Irpirc. pl a-7i ng
mowihl r,a npq raT r nr ni tni T a r k ypim ] t
Puropr_riFLh +lug L 1wt.ialurt P .:k Grill typrrni RI.A ary
r1F ; 1 , �... �lvr (9/0,74"diF1a ' Ilmr^FF 4yji ] : VIJIi+F 4r-' 1t -4
r.+57 ;.I •-r ,•:.Ilg Ihtilit rAtAnt. 1 • d C,t (t1 W 4: rk.neg I lira
Fnc I i I;o Athi-v i,'agyv N rs0 .; t ll1 i i m r i y11Jp r i �F1 haiy
dud Cola r 5Jrd1 : _ up U' r hri 5Q =•MJ -
'.�'I: .;'�1 ; Ii1,L�L'M1+ =T'11 • • I neiri.n-rinill nq a.mni F'rmnnr. rpnrmrnif
1• .1' I lot ' , 1'11 inelLxik,g 2S yris_ s�4.1sr#1r
r 1;!.. ' -L 1 r • 1 Yl_revarr padd I M alip tt
-J•.:_ _ =L L.E, 1Udi) and 1tLoy1= ul,11.E; 1E1L-
1 .' �g�t• 1 F •.. •: nr la flx,d Igu ttk Y Shin r ' I Tituagy;
i pluad J. aiw wheel Ewe ov s 1, i? 2 V!Ls
I_ and I r,cludifig 6=1! 2 yi.so .) i Sul]. ,. .me•dia LA uP, ptflr_
I I:.. L+ LJt =.J L' FL":.. t.LJ.•J and pl.Jhcr uivica L.,Jt•i Tla.12"_ut'
compL esoot tiri,! l comb ina t ion operator; Tractor operator
.any type !ards•r Mon L-h - 104) rlywxLeel U.p, and swerr J�
siimi Tar-hu dnxG.rr f ampnrr icrappr ctin.i 1LLflh t rarrnr
.enq i of a ; " r*or.o r opErarn r ( onom a t.rac nmwsr. o ] r f rava i r nd
pipe xrappi nd r cleaning and ter dni mai7hire apex ator;
' voni=hinq mac*inim tnpnrat•c,r drpth rAl,,w4t yrr
snzinnE.mrtr_lr•r l.s ro.t i nmi r t rinnrhir,rr PLu:h t rn with k,,n,i rnti ar•s
uLL4dlinev,FL 1ovvr Oittti 41q . p.ci:.*!Ju x.
wa1,+9-0.0 r511.ills] trN.11 W.Lt r ptlLl
kclmp:ltt i cm] Dperatvr
GRCUP l O s Lei i 1 ti i, f.ch = nv opc! L atd t , 13.n ILr_ t or ,sr}r_r types
S£K1ka Ld $uU Eh hvdka1t Lir t,mf Lar t ypnrx-Wut..ti m _ BUL? 'x11110
e ugeL as adaille x `_11. rJ =ti,1A4=3. t i alxotleL
iyEme-dz i ] libg doptfl ut Dual dt uiL mixo t r
aynamrc c r,pa c to r d or aim_ l i e Lypea ] : Monorail
2t'2uuUL1vE Jpei.aL,J. 41.11Boelr gaa • of a L;L•1!£l : ALL E
po L L IA-L,lu,.L_• !i3,1314L.terry iJ_t f i ML.iL Lulu LLn�i,,e
r<zrr r and M ml Ear sype-sxcepr. 1.?ri%Rd �
cry, E ; pe>
01-11-7in.Pe nV.FF =0 y,jn_-7111-10 PoIRUMATia 1-711111P;; r. -T
mnd tyr Wrapping 0.. 1 arnv
p,lhhPr-r i v.ad girth•-r n l .=-01i pmprlt
r•rygirwzr carer Rti_11J-I r k i rr •: Mnyiryr1
lacrni prnnt (ms_1 tiplr klic,l rAtnrC i T 1,1 r
and ktci l.a r o5nr 'en yids_ np i i '5U kfJ=: _ :I.1-1400, To,m,d
crests napa i rmrin r TrA4:1.1)r Loudon- Lxpaeatclr r,:1.1044r rind 4`•111{iR I
t or: coidt C- LIi retm.nu opq;aLLA innd Simi ] nr
�ut�pli i [ 11.1111 i rmu r11.5
Ct�S•F i l' ic:Li_
Gl cJIH 121 Au t. t tit age _ t•p,Y•dLv_; A u Luma Liu. slip L.L.E 1 •JCJE s _. _ .: ;
Gx i 11 _r1g tunas nt= bucA0 0•t d t ;Ca lwi. I,
o timer 200 CZ. t.r vim>:lar t ypen - *anon, a u.ger Erij00 or
7 JILL1•] { t ypezi - Blag s 2. 5apet Ucty, sYuieL 2 U.E' of
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 9 of 25 Federal Requirements
March 16, 2017
i nQoaa7g .,-,o
Twa•s - .iapth nF S75' ma Kimlm) r Kr7a TAr9 or �1i mi Tarr
vita :l rpraw r; Marx axna,vatar aparatnr 1 a no t ha 750 rr, _
vairdo, r1nion1ng mann171E operlrol'. mutes le rf�ClS
t L 44M irr s MIA-41I cpura L Dt Imtll L i-engi neO z
maihi nv i prt i a L+a; J R IbbPr- t i rud aAr th- movinu
rr UiNminn: aTieraLnt andinrr, EJ tiA, Cattrmi l La r
dnd Omi idt ty'ROir collor 'oG 20rur_kp F RObb—AT-U rind
NA I t- I rM.1110q strr,par cipftrel.Or {r,ard L*-vhft.r2-ftuger typo?
ailr-Lu��LiY,t} Lti<xr 42[ 'JL wr.JLr LISAAasj
▪ n 1 3: Mibber-tired earth moving eduipment ap rater
wer a F ing equipment with pu oM-pu l l a l+n t em engine,
up to and Lnaladl nq 25. yds - at rink F
!NCB'? 1 .11 e f.:ar,aj l inar cipavarrlr; r'alna] trj mmpar rer-prA-r.ro
Namnta- rant r n i am rtk -mnvi nq r rill j pmant ripal• atnr inpn rant a nq
4 rCnrJd t Lfriar a1 01.14L OMmt _ 1 _ij(F qi,r hSo4r .kiloS k ionAi 5 P
=;ROUP 1 {: 3itrFAWA-Elic-d e.duipmiz•nh 1 �:L d _+•�
- W1 1.1, xld ,n-1,i,1 1 ,i+ r!c!h (: i I'
sL =.1 ,111== r L•uClAd, Atht.
iJ Iti u 11 �• �_ �J :I Iles`=s! L t�4 _ 21.1 '.: r.l ._E LL. 1,0
▪ qr riirki ; k+51:,LPr-7t garl I -• -miwi ner ari15T!w r,- ..I ..• ,-.,r r
o pera:ing equipment 5 itn Fur. -pU11 aygtem
engine -up to and including ydo, otruckp
44R.01 . 16= l aimpr-t irr.,d rowir,lllr; I14 ultir�J-.�r.
up;orKiNal v quipmant watt' p02.:41-pu.1 1 .11(Amm (N ii.gr« lend (udto
rNr#r 5B yd+i. esLr111_0; Robbm—tirici diArEh-mNeloTF 4.til_s}shl*Bt
tirr, J aF rF r.JE,ri{gLinc3 wrplipmitint. tit r_LL pi.,411-0,0 r v}f•`J nl
(cJlL_L'j ugly .nC, LIIJVt: �� F.JLI_I L'1j �JL JIII _`_:ril:J :Vtr_ �4
tin is =AId nu it; 50 yd8.. x1 ruLkp
GROW' 1?: Rubber -Urea earth -moving equipment C u c x r
-}rtt �'�'_w� CLjL1i�+JIIr�1LL W 4IL sy t auJ. (nluit 13 1E
a,ar 15•�r 1�yt�•rl+i j j fie anri ziRi j are r,vAr yrEs_ Ardark] +
T*rlaw% ti-agtmt apRraLrrA- ;� *Arinq ,71-AwFar riepm rrmr.rnTa in
k aluism Oyor! 4 and L lip•. j
• 1 '= 1 1; r-t irrid tA4rt n-mnirinq gAp.;pmmnL �s r.ILrJs r
4A-1c:rat ing (Avta •ui 2:F, 1.1 3 14 dUmpt 4hd timi iaa
.epLI I i h .ln •r IIL>i I1zL 5 r,s r r_Jte S uel i nq EimmpAee L aw Liti, j t_7 -
Lu 4Lhd iiw 1k11ir,4 25 Ne-1z, o LJ: t.uka
G.10.0UP 1 +: } Ji t k uLJ I4:L a tr l uL .81M L4z .opt d 1 ;
L{umer-t i red ea rt n-moving equipment operar or, ope rat inq _n
tandem q ncra o r.s r belly dumpa and o imil a r t ypeo in Jiny
•,mlaanad lone in:cTLlddrg cpmpAct•ir-in Lani Cn - Cnl lr "�}li�mr
r=a1;orpil iar. lil, ] atl. FLti4ov ww;Fn n :rimi 1,41 wilEr 41.nv
lnd Pi3 T Irtilichm nTn rff.hF r ?5 yds rangy rk7 sr, ,end i n{1 i;.c41.nrj 511
d ij _ 9t1A - Rnbbk r-1 rdiA eil ra J,-mmV i hq 40.1.5 }iJmtirl F.
aTi*.roCtirr �FIRJ-._I_ing in I_nntivim (PJcryTl#r:lo k7LFl G limp!! mid
J'_IIIi laL LI1Ju iJ. JIIy I_ulhE-i naL iL.J,r exuldd LiLg IJVIIIpaeL_un
tIniI: - ltuLL'iFlv.2 4,1111:n4_, Ug to wind int1Udirtg 25 1.15 , rllckF
GROUP 21.P: Rubber -urea earth -moving equipment ape r a for r
•AFF=L L1t 1!ry i=e LandUla beiiy Loarp8 811u11e=
- �+r r• i r only rrombinat imr clodmmptinr. nnj*a -
n i nrG] - tn:7j attar 4wr 50 yrio r xtruckr: Rn ?r-ri rpd
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 10 of 25 Federal Requirements
March 16, 2017
inQnon7r „-v,
earth -moving equipment Yato3r, cpefa ki n in tandem
iocrapersr beliy dumps, and similar types in any
o nmbl na t io„, excluding compaction ur_ s [a T multiple engine,
k;ncA O, Lmtnrpi 1 iar and similar, ',vr:r ; 5 ydn i 1n4 qp 50
yrL•. ntrltr.k�
GPOUP ? 1 : R75i eiet r-t i !'dad 1;tA r 1•.h-imptr i nej kqu i pmAnii •apprr J L r. r r
v)psorattAg in tau6km [JoMpliN xhtiJ Mini 1.yr
types in any fp.:mF___ Q.•. _.:., ,noLudinr,i Compact lL n unitc -
Jrl�likiplC �77/y_Ly�r L'.1•_ __rLr ';bC=Y7DiiYbJ_' '▪ J1dl__61' =1L}-,
50 cm, win, str•.:r:)
I;RQUP $oubb.nr--i_-r-A r.arra-w%nvinq
Glquipmmwr
• 1.: w rat t pq QgFiilyilnrlrn t. wan t n UNE tanr.WW p';L1_;h-pn L J ::+1:: F said
1.; i.q:gFx *nthJ n*, OR Lo Lngl udknt3
C31 espipr.�:sL
. _.. i 141U__ m . ; • _ni.I F_ L putsp_�i�ul1 s5+� l �u1
*ami';.• - yri-1 . • 0 - •.hoanr-2l FesrFr 25 awl
4 ! 4•i 1 1 1 f +.aJ 1 1 t L• .
-44 t Lf, -mdv *J 1c.; tdquip ignk, dpm x r: r, L h•2 Land4Rl
pu;A-pu L J 29yatikm [my511-LpJ.a .4) Le) 4 )11 iMi4d1F14.3 25
jri.r `S `J LE'1Lkp
GRCUP 24 : T:ubbr_t - t l L ed to r th-m hri ng r{;�i� t spas ett x
apet as tng equipment with the sandem push-pul 3 sya nem
isiraie enrrine. over 50 yds. 117t-uck6s 123.laltrer-tired
Ik r-L n-moving izqu ipm nt opn at }r, vpt{a k i nd mqu i psicn L
L h t•andr:=u pLEA-pull n rci f11n Earl l a,
Capillaz and similar+ �'yer 25 yds- -and tip 50 ydn-
C" OM? 251 Conarete pump opera Tor, t ruck mounted: Rubber -tired
ea rt n -moving equipment upeia tope, operat i nq equipment with
t L7w !Divan -pull s y ste i (multiple engine, JiuCI1U,
I111trirpi 1 14r and s..mil ar ty�r•T rlvr••T 50 emu_ +inn _ a� n ck.)
CRANtS, P T LI-s RIVING MN0 ROT 4TTtivr EI T] LPMEWT CLASS Z F i CATT{1NS
GROUP it Er. i nel6r Feir�t F i ! e. 6prdrraLryt (Frp.7I UdrM 1 6Ardr
Dill Of sim lat kyp sp
ciRoir2 e 'Prn,k cram:. ni lrlr
14F:LIF l: A- f ramr: cor windh t rur_ k 1-107. r l r clr; Rnstsl r 7 r ri a r
✓ piiraILQr 1.1G+P-0 L0J
GROUP A ; U+_iII9e- Lyo L niuda L Ltu 1 L aIr E
H E.LILwL t=J. S:L`S•'L i_FCefdLUt
UMOUr 5 r Hydraw3 _r; k,,,,m tr;;ok: Sti SFr 17rainE6 4Anzitin-Wentern
rpr Mwri• it hn1117 np.pr.ar.or rivump
U RGER e r Dr1Liijr- 'Dr-u-,Li)rr 1,s441.ux t:r.nnr. nprrt7LIsrr FR irL
t'F+++rll r rCAlu4111., 179i:;. .. . Lyp46 F 4.-LLt whi l rt
u l_cE a! tic p Li E i Ai di, (Vay iNJi y dttd tFiekilei
typL'St, ma_ rem! n,1,03 ur man LIVE oparasor, vo ar
gantry crane cperatoir Seat Climbing scaffold for z mila=
t pep: ahoy?l, backfloe, dragline, clawsheJll operator foyer
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 11 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
3/ 4 yd, and tip to 5 cu. yala , mrc) ; rogier hoick opela Cor
WNW 7 ; Peue.xt al crane rep?ra tor: Shove 1 r tid a RTy� �r 4racO t.ne,
ckAmeihOl l opricato& 40y«€ !i t=LL_ 4JiL _ m0.2) ; ToWT-ir
tepAiY; Nel.w.itrar (3 thrum)
up.cor el , , :._ .. -:.r tap to ,3a7d 21) ton
1_A aar_•skyj; n iRrar-•r; 'Acirri-71; Vorg.P1
mphtn'c1r 1,1 1 n - ; ,.= 1 Lid' r� l_'J tiny r_•h_ •1._ k f 5y) ; Roo At
• vrias tiJT. i 1 �. s� _, 1111 1 In1 kyrt,1-2 (u r
and in4:ludinq 25 tcm capacity).! Shove1, backh,.8r drsg1isler
.71kwihal i r rNtr51_ irmg.r i r•n_ y la-. 61.R.r 4
GDGUP 7; Crerar 411.11•r r (r;uhr OU Luhm ti t71. ap U.' ntyd LhtLuiltt5ri
5i11 Long ut}; (t•wt•r 25 LoG3
d.nd mr O ; 1Li L11it = uu5 dokiuy
tjp;+r cipor, t.mr, .fs lnrl^. 'r4Y 4Intrir.0 -vnr
t rvur r pnm 1 tin :l i n -.1 w-1 1 n'g 50 tans pa rc 1 : K -L 1•.1_.(
u petakut; 11+7.1crL I =151_ 2.mi.•.tcktr'rp Stilt renting Loarcr [:Caul
1a ra`_ur maxJuum 1_LL_nu Ue(ad=i! Lam, Lund
L:pIWI' Lae CrA r npry r A -fir trnup r $f] tt,,rrf anri t1F. r ri 3111,f
i11andknig 100 t uni mrp) r PorgQ G1pmcalur 1•alveF ED
L• Li.128 Utr Lu and in. . u,lind L00 L,at12 ML.J M ; up t sl _ _Is r
sL r a t ❑errim€ CL S LM113£ type miter Du L 011 UD cc
and i.n cludlrLi.1 1130 s JIL.s mrc) r MDL UE Low.21. Jper LL =
5a trgn-y r Up t eJ and ini7l udi nsr 1 DG tom; M. R. i:. 1 ; 'Ps wO1
t rAnw werAi or and LQWu r gAnt r yr
G610.315 11: Grahe optlutor 11.30 tons and up to and
i ac Lodi rg 200 tcno mrc) .r Derrick ba rake nperatc r mover 1 u0
I “nh IT 4., And L'il i nai nrj ?nn I Fyn.: nil- = H�.i �sl f��tir v.)I if
ski l•rq r Goy dts r ir.k pr Sam i.4r :,ypw trtw*r 100 1-un up
Lo and itwluding 200 ot!3 fur t i pMpbile tuwEr• 42riale typ rak cw
(over ton3 up to and includan q 200 tons mrc p
t.:MVP 122 1.1' k t�E,mtrh.r.t.ku LCiSrncr O'D gyp I, I., ufJiIN4
3013 '.in m t r) ; Doi rY } c-k Ern rcp ,Timrmtu r (gli* r 200 frunl sip trr
and i ac Judi ni RIO ro s mrc) : H0l rat operatr, rr o t i 1`_ t Jew,
t-uyr derrick lor o imi lar t ypfs rover 200 timo r qp to and
inn 1 nA i ncr 340 t:-ino m rr.) ; Ecilifii4r 41ra nQpiRrAtor (i+ rst
2.[I D t r5Y54, 55p I.1� r C•y i 11.2 1 ,! 1 • 1 •i01a Tin 4 m t•1_ )
Gti .UF 13 : Crane • - _. I Syr' - onu) ; Geim ialr Image
rrpars7`rir 5100 opei-mtcir,
xriff 1rhgalr niuy dr•T-y-k 11-0.7ar 160 toirfa
F11.r1 :alti.n..
��1NNFte.I.P.5S 1 PI ATT UN
111.01.3F 1. ;51clp 1 rmi gr [Lir}r,r. . ryp ilA yr _ wa -nn•
a t tatThme•n t j
441.1 FP 2: P war-drivIgn fPrm nett.,ir :llr ratrr
Ili n kc<y r?= mpk CIRIIS *Qn tap t p And
int tiding 10 Lw1'3M
.1 t�trP 4 ; Air ah n r1. -•rigkrr p:.,..• i pmgin r grclo g.nr i rirAwm t rlic*j
pgMri :.. I : ri:r hyirAmlic
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 12 of 25 Federal Requirements
March 16, 2017
i nQns2a7G „Qo
device fol. ooncre t e forms � p T`agge e hoia 4 operator (1 dr Lim? P
n 1 1 acomctive ope t ator (civet 10 and up tc and including
30 tonal.
fILROUE 5= a.71740yor oplr;rata; 0.1p Cn artd ip.r_ltirij nq .3/4 yd. f.r
Smut i Fur[J. 'sat t.t YJ III=Jar; Drill u_Ict xr: Grout i:ty md.r_h inu
+},a� r n t11I r ilaed i niJ 'CL, 1 )1 ;i t.prr,.31_n t ; R.ri iktrrilit y
Tiaa•I}+1i Gralerati IK 1Ak.1144y , E,)c I td, y111.1-5-r_ xi III, L.ar F ytm.sj p
Nuckthq m chthe ul,et a tt t 1114 y L. r i UL]}. - _ : _ _ = wr Fail DE
act Ly1x? ; _'�urne=_c • _Lc plec_r.g e cILp LdtDY
(yhuk 1 ray4LrenswA I T r,r ra i l.w r t ype p : NFi nma r i r- hem 1l nu
Ah i r l ri-,7firlr 1- L i Ptiap -r.pto 4ty ropr.rA tnr p TrActnr 1ino.p Tn M,;n1
drill nrima+i nAri rm aprirati r Twgfir hoi :E up•xAtnt drlm l P
T uryft.F.1 1 1�14;cmr+41 vil wt rattrr [#suer r 34 t,nrts ]
GROUP 6 s Koavy D r_y Pik.pairmAft
GROUP 1 : Tuskuel mtli& firachlh weralut
FAZINEXTM
w r t i N In I}1 KERN, RI IEF3T E i SAN URNARINNO ;76.a It i lon qe;
d elis�t+1 ka==uw:
TkrJt diWaL 0 LLhfi, tklF_ tolitwirlq BuyJih in `_--an
�ern131'47 nr�{711 n L r approxi wi t,e 1 F i mi •! e 5 RS of the i n to ro-ne4It ion
of t-15 and the ll'a L i f,:irnia Stale Line at -hrht f}177 nr whirh is
Ehc NW forrRr of .wrt ion 1, 73.7Nrm ;;ix; 12,-wrp4rdinc.
Mr.rtdisn. Cc.nt hoot W in a 2..t raiyhE ] '.no to 1.1141- poinC wh.Lgh JF�
Lhv pQrrmr uJ- thgr nvrthwie. TAwrio¢u of Smw4 iron Go T;y ,
nvEr Mt. PLAIN MJLr i-1LAil. ^tinLi F71, _ rf,rtl, Lek LLL ihi_r_r+_-r-uL.i um
With t i.wi Try eu �.1k.r ty E-uuhi#� r} at that plA h t Which i 2,; title NT
corner at pmn tern halt of tse northe nn quartet of Section
r T253, RA 2E, MGM. tbnt inve W along Like 1 nv& and San
in fnarquitCy GulJnty noundory Vr_ill the ti 17 CELSEOLlut_ 5tllt LL Ke.11
r:clup yr 1a rhAt E1rtiLpt wr}yimh In l qen SP; cntnr-r trf nnat j mn 30,
▪ k 4OK, Mkt. d_unT inkm. W 11-.0 I n yr, i nd 10;rn Cum.nt y
LSeandri ry anti! thft inrct octl r h u; r}, ^d Lary 17:1315M at thait
✓ O nl rll I r_II 1! KN. -W et.Ith,tr .r1 1 1h. 2F, 1141.mrl n r of ;Irtr 1 tin .32 t
T2 a 9 r R37 F.r MDM _ W +s I ra r1 F_F r• Wn r h 411•1 TIi I a t v Cmli*,t y
bl U1zdaL y, U., L is U a L [xllhL who u!y AS ! IIc RN uuLn i u E
v2 uL_Lut• f:U=•=J lot' U i
'1'411.7r I'_i=F.� ohm, 1-nnrir W -,. thr NW 17r 1•r 1
f+nA, • "a-sT,LpF r n the W r=1•,rn-1mr 1f 71n:', r 711M_ 1'r nr i mim
W 7 z;111 rr1rp r nF rEnarMr r. ."--act j r11 :, , - WPF•..r %WM_
1 :IsT1 r 1 �Ft1ir C o �w 1}:r i rom r 1 1 04, Kim) .1iL _ _ r1.yu - 1
lkintA?% h.-"MPE ICV r1l 711N, SW L. 34 crnknmr F 'iti•. . - • .
13_1 :1EEUr= 5 Lu SW ul `_Ujtd, _
st�uL3Y bduttd,ary ul 19Nr 1 TM, L.__, sam.
CutI Llnuti S mi oCla t1r=;7 L ! 1 l, SMr t u r_y dn!_ w
line :it thT M4' cotneY - f TISSr 111, •ry d+I, x' intsnaF A1.7nrr gnalrm
6rn,ndAry of T9 vo !.;41 iloi vvv i de I : 1 line r n sV rnrs,nmrr
laravGial Cnuhl.y lino; y: Lh1t r_Itirro.1 T , RIQG, 4.13M.
r21-41l i Ri.P. W 4 1 c.n4 im1u.rl a 4411 F l ti .. , .: id r_0414 L k Limit nit Lc. NW
1�LrJ�ti 1 d = 9:7 r R5E, 5BEIL Com J:u+x_ Blurry Lite L.IulLimidty L L L we•et
ISff c r i m t d r,u ,sn uLmg c. 1_onnt i cs r al ag roc N4dr etJg¢ ri Lws r
• tc the Deuid] Ixeund ar: y of Impel tal C oun cTiCad i forn_i a o tat e
line. Follow rile California rate line weat to Arizona a Late
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 13 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
]inn, t has nmr t h tn. raRvRti n 7tx• 1 1 nGi r tna n rJnnt i nNi ng h f hm n k
to rtvn paint whinh in thr NW .7ornfi= of 5fictinn I,
11.71,1r Pk , ista
$ l : 041 cvdd i t iono l L .4J r hour for poi t i ui.n cif SAM LUIS USIS10.,
WP.M. F t.1191. AAI#19ARA i IINIT!]RA AA aP t 1 nacl hm I rAr e
; }Ix- .era within -hs fnl i oNi ng R.1410ri ry: Regin np1raximilt'FLy 5
�i I Irk 1.11;r1.h cpm1nMh i I_;+ dt rn tho MnA army C=fillnLy
qIr! 76L_ 'La OJ]Fa(, L�r1{i•lk I},r,�. r.. r .•i' k... � +-L [114a �� T� }.r
R1 E8, Nt . Dia/Au Jet lclicLLL. C.J::J_ 1_rut r 5}LI Ll� �1�1,r_t '_I:t •d1=.81 a E 1tr
LYi P ba Lu the 5W .cornea �1 t305, Ml bEr MOM, Cunt! ..ue E L L.
rrmner at r:Pv, , 1.21Sar L47M. r%401-lnure S 1-0 91 rorneE of 7:il.5r
R1r7Er JMPii•• ' % 1 J.n ur,. t Ly RIMS, NIUM-
Contsnwia r_ I 1:3 1 t L : i 'aZ isnr 1NJ Li:; it rru'.gar, in10 5AR
1Sm (40. rliirlr ••• • 1 _Huh CGuIali*O Fly u ra.l r},5 12,.f mpoi: pUON _ r j l ur
the. wee.t _i RA.W. .SW.! Lt' LLL= Sn L"1=r.t. 1_'1 W9N, 10.30W. 611, ,
C un L_J_U.e i mloug L lit J•1•s LJJ t- t L L ! L_'Nr nkbE Sah L a
emr17; rm r: nnnt y anJi ,fir--ntur a 1 ,nunt'y bn.upda ry at thm r po i nr alh:'ry
in rhr_ :=4J i=p rp - = r: :. I' = 'Jr. '. d _ ��1iJ r R2 4',ir 4 •_1M. =%n r i nur A Iarig
(he V+'r" 1 ., 1 i .1r . iti :l J i 1r 1. i r_lti I h- :'}¢ _ergr. 1 r..F
fj141 YEI.1•:! I "a4= +7C1n 7/, r'rtT, P.24W,
alrlt,y L I I• _ r L 11 I_ Llgc {J i T1N+ SEIM tc Lt_t SE _1 1 I ! I., R21 W,
9f1M, I "..rr nt % r...%P a 1 onX f `aAt of 1P21 W, ::-a County
.rots Kern t.ounry I. unaa ry ar s nE n l rner r, r Y : : W,
{;r1n r:tka W 41 r,ng r hP. YarF71411-R r'r1n nt y mind Orarq tannndarir trr
* h6F Sr? cal rttftr c t T sl 4 W.1 lrr . Continuo+ Ild tt h L h* 17:(42.; t. ndym
' r4-119, 31We t- th& Act cnrtm-r I.•f 11214, 11e1 , 4T!M_ C, n i num
r1= yti:.ltl L3,t hy1Lth .e411)T144, dM LO lSit SE WLues •r+
REIM. In214 2..ibM in a think otrip k,erweet 71.111 BEN
nnLi r. MrA41 , r,nn - i r•ne rik: rth a komq the &?131- ME cif P S 1 E=, 1+JE1M
1 Z 5;;4 k2 L.. r KM. Writ o Lon q Lhia 1:' !.4111 L Y and 6 wun
C.LamuLy Lea andar r 4Rr_11 LLY= LCL _eLaeti LJ«Jn u f Sea GU}iaj.�'
Tuut! r }' : C.L.h L iLl ual: 1i:U L5.e Couh t y+ •att.1 `.isiJ.L L11i.
,AJ18�•Q '_J i[LC}' DO UUdr 5y 1uLe.tAec Ls•7R 01 _ h C]C 7 t r E•y
Ena jr , C!nnri nnc Whni 11.1n.r[J Car, Mrnrr.roy bitt 1F y :.
ij tkway bc.mnd.Lr,y 1:1". 4 h krr,giranlhq pDinl
▪ L Tt5E, MD].
:2, 011 L,.idi ti final Tyr hcorr {nr I ran Ara t nrm f_'},ar.,-:8r ,µ.^ tha
r7r:r7hc•1-n rr:rr ir.n P.WWMAIrr1,}Jr7 ••:ti1•n=1,• am • 0.Fi nerd r:r 7.tiar
T h3'. AMA within T_hg. to L 1 nw i nee geomida r v: 13A i +)
intr=rtv=et i r. n of the nt..rth&kn itit}undaryr rtt Milo County uad thr_
_41 J. VL11 —LL a L�Ln ? s_Jt• u L Ll�t• aJtJ_JJ.L •JJILJJ J.— L It, 1r_u 1. = _ 1Yi
S ect e.T. 10, T10Nr f0.22E, iw1L. DiaLito Meridian. 12.0nLinue 8 then
� L 4 iupy k hg, wn t i .r-• way: L• rrral 1xl4nriq ry rah ML•}r14 Lint. L 1 a F
twr_12.I01,1 Top.. 17nurL* Iki di Lhr point why. t. irS Ow NE ehrhur of I.I.•
R'Mv Lem hAlf '1G L17ae Err Twr Liar IJ j 2, TPne R244E, Mr,M_
C uL LiiJua S&L aluity. 11Le CtLLLt� kt � L t1�y i•LJueLtJ�_ _ . _ 1[::. . ,
un L'S C Ube InLet.s ctiun %I 1. i{exu Cuua Ll1 aL Ltw _.
tha. 1414 cnrnnr r_f Chn 5i1! 1)4 of %matiwn 32. T241i_
ia1nr . n n 411 mhg rhP ] nyt. and i(r;fi 120Rn ny hLlundA ry+ u n r i ] r hr
inlcr27.1Dck iun witL 5nh liikrnar4inr, r'unnky 4t I ;..°
thu 58 C:Jt.t1L•L ni zettlun T2.4Ze PAGE, mrm. • 1. .1;11•. _ J
whi r_h in the ME: 1}oriler of the WE rat rn 1— 1 f ., - _ NW illia rt _ T ' r
fr 1-256, la . ;741r Moog, r.- I..•ir7 whi,4
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 14 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
7W 1- •7 Y7ft.r ed. tile NW r34.'.mrtkr 01 .r`liv:r i • Sri �5, F'L7¥_
F a stLeiyltt I : rti 1E6 the 11.4! r - , _
rro- u , ,. ry nA nt wn cn , tfie Nw
. • ,r i ,
. t Nr Leroari ll.no McYlaan . Iheu vun L Lu uc RA
The c Late 1.1ne to the atart ihr# whiah is [ he center o t
LWct�cdri 16, a 1O0o R22Er M1111-
REMAIN I Na AREA ROT DEV INRU MOVE REC I EYES DoWE F?ftTE
E147 0012-(ri)+1 08 /01 / 2015
OPERATOR: P,wet r Equ ipmirl L
(DREDGING)
Fringw..
rmaJ,,...,...,..,...,$ 45,50
{ 2 p C11-1:Ldq? Ariae r , , . . , „ , $
Wines. eTc.r•3rnv tc-arn
,rjri�'17 0r1 arst044)+----------- w 42'-61
{ �(' Fi r+eman—Oi 54sier
Grp k!»t�flr J cL Olt L
23.60
22,,fn
'."YCCr:dJJU a . . - a . . - . . - 4� .
4i0-0371-002 47/01/2016
RAJ h.erf Ft i ngAn
i rnnwn rYimrat
irrnairroraalr r nfor a n�
fikrugtural--. r .$ $21-75
21.1.6.1
2g_$0
PREMIUM PAY:
$6,0U additional per hour at the following locations;
China LaRe Nava' Teat Ereat 7 on r Chocolate Mo ntaino Naval
R+.Yr;ur�-V11anOr
Edward ALM. ForL Irwin Mi i i Lmi4 StaiLiun_ Fort T um is Trdininy
ht,r s=G= 1dttoftmo Set, 1761tHchLm rilLat,dr Bab Ni itlu.ilas 7Elandr
R�98rl�riliti Fudts=l Px1sJn. 29 P-AmS WdYiJlt• r`.-JE J, U.B.
L� 15 a t t0iro r Nd w.t1 Fir CaLt= fitly ArE5
E14, 00 additional per hour a. the fallowing ] oad:Li am:
Army 17t f #aft Lo ricpudipe I n_.t i W I * Nollite r OYo Fa L I inn Air Oa 5.k r
Tovri: 'Gradua 4ri - AUsn 4rerthy r YlorMP M r i ntz
Cci 1 L tL
$2. nn pPr .170711r a` th.} fnl 1 wirrr 1 nr.atior.�.=
Pc-.rt Himpicema r N-,rt MITI, 11.s. EnAs r I;nA rd St 7,-inn - Twn Finnic
-----------------------
i 030.6-085 01/01/2016
----------------------
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 15 of 25 Federal Requirements
March 16, 2017
i nQoaa7G „Qo
Rates niujea
15Alp n r nQ Rrslcaray t Llahnrn r _ _ _ . $ M.43 16.4)7
!;fY7L''s C?F 'Nng.Fc i11r-111.11-•t �i"r• -1L1i '• i k.�1h ir�11r i11ii i,+l +ti I��
1 li:•mnupr ph-1 ,dr.-_L' Yrenr relmu+td3 L1E �tL7e1s1 a�= r,tyi- inLa
tIldt;L _=1 �]_ t1J]:i1� 4r��tir 1. 11 :tl = ".1dL iL ]�r uis�i��LLtt d11
a1 alnimmt nn- % 1 • wit Sri i l n and rr•x i r
1y I, I Ti r1 IIIL14•,,J 11r-I }'1JJ IILfr
tabri LNLi un 1J[ L'umltilltAry Wru]dah Wrrihr:c 617th ,3_5_101n]bj y 1•[
dulx] ,17-,m i nrl F_ i c]:1 Odi t_11;')h N .
-------------------------
LA.B00i45=0U1 4lf03f2416
---
----------------
k:� ties ?r i r_pi-r•
LABORER IGUN LTE]
fAkOUP 1 , , ..... , , . $ 31.09.
c-[raUr �.,..,.., ,.., ,..,.., ,.
1.4r1.91.1P .3 „$ 3A.40
-n_511
FOOTNOTE: GUNITE PREKTUM RAV r 94t r krr tins kt nu L z OM
e osri' ri r £hh i t ar SU spr_hded ' t rito d t rlie at cable a he 1 1
iCr ihlu 44 uun11 p4=L hVul caltIVC Lhi lolua_Finy �F,plil-�b1�
e ia.saJ f1 rat i 17n rate.m . Workers dr l na 7UF11 }n,lin e
xh�rm'r to wnvk in aL t1:p na l aha 3 t rr,r_ri i u❑ 3; .7..11t. par 1717191-
' ];"r foZWIUill4r appLi-uok'iv r1.4454;i ie:o,iem Fa:,sr �sJ#Gi
: r rLmI-tA-,Drl_d! L'ya:i!%_ ;LAW Wrr% p*Itirrmnd cm, in L)r
d :,,3r tnurkt. aneitkr 2 t.e]reyg+.J! h_Lw-unh.L�r Or MmL ISV
• , u _ a tack=u=c o 'awn bush u =rut turc al la mac El a of
aLlome 1),J,J.E _Level ...Ad wiLi ci_ MuL K Mist lre pee i umed in
whuI a us- in Asir morn Thom 51 -1:1" 4S619� Lpq nn �c,nal r ci;a r
w1J41k 174 : 4•J CIftod t1.120v.P1 111.4 75 "-Lr' 1 N V■ l =Lfw 11 hip s•im[ ommia 4 p4
Pon OA per not-r arAivr trip aps4 a 44.P;4.:
•-_;les_iIicrakiuka 4�'eg r3it.
]+140,]WiR c hl6i S 1 rtcWri nN
i• MUF 1 e RrAmr:n r Nn T 4 fimrKn
:MOW r;unimm
1,AR31104-041 r.';: . . ' 1.
katea FLingea
DLIMCT I0NAL
d 1 l .-ur
4.2[ tllictic J1 7aturfH.LUivt.$ 33,tLF
431 .1'1t`Liz4.111Ld_ _11! •_t . s.tatL�l
Or- 1 1 _ . _ _ . . _ _ . _ _ . , , $
11_Of
13.105
t or_e Lar
T+abavikri : (RTR7FTN?M1]RR
5 71_Ce 13.99
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 16 of 25 Federal Requirements
March 16, 2017
i nansya7G „Qo
UAL)
CROUP 1--------------------- 5 17-03
I.0,301' 2 .. , . . . 3 c5 . a F 17.0
GROUP 3..................... 3B.re
GROUP 4....,,,..,...,..,.. 39.51 11.a3
LABORERS - STRI B I E'4 ULA�57F7 r.:AT7 lF.
GROUP l r F r ns.wr_t_ k va. :or, t I orb, pF51MAmFeMSt r] nc_ I ud I Ng
r+lp441. Arlo ri $ 1 1nq r'r cracks ray nrw 011 rimy Nur1A0q.
in VELI UNI 1Vtk5 r game Ov.uii aS and [. Layk Lwuntl2; I_dikS L _L=i
upeiat ion ell all aeta t ed mncnin,, y an4 Equi nt? equlplM`ent
repair te-chnicioa
1-44C I' R i traffic mmrgAou OhT4e1..i.W VLOPLaZI p4t tynd1#r -
rAil �� a L ] i:Lhrn ,,11cj pla rk :d nw; by aoy m 101,be,r#
0,w417[-1.11;A9r ;-9 �. ""Jr Irt•• ] -rJ
pt ibam.aLiub _1f qua [ate cclnk ir_gs. Teaffie. mynttito1
ppr-rin: rs nTr•-111 inn rinri t marsh brrin
Arvi mrrvi ng rlaslj rape: Npn rm r i nn cif all
r� ▪ } Ar�ci m+ 0.: upn y an. p -rn rman .
GROUP :31 i M•Fi r f i c dev i li4 apv 1 5 cator I Layout and
application pavement markers, delineating uia7n sr rumple
a nA t Ia f t by bars, guld a mai ker s F
de iirea t ina devioe4 ir,c= oalnd t rat t is cane rr,l . r1 I La
L a=inTary all traElit 41,orf4cmr ppeparrl
1-I•IF Inn Led, FIFrhI.4 iris, riFINihe!) .ILI r...71 .I 515a+
Aril l•:L=1 1-r. rxt,Le Tcbific F r 11 a=r lire 'klintialiLos Syskr_m
1U1 LrJa Lr� r i?52i E_ul r U tOd N=-11 L 15r
at111k.ed pui klLuy 5ie Lltlea� L i ad= 1 L _ 1�"
"I' •'ll+1r '+a. dr nlla..0 r� r +Il4r.1l+l I HI Ir `I �I �115.r n11111:•r
mnm.mar}t c'.i rk.; r?; r.r.n ra-inn nF Ali rr intr• I ,#ncl
Eu i crK=•.' e i r: •I •ul :-PdtpiepAC
GRCOP ^kr hpecr: l.,r•%.uw and .91•2-1 :•1Y kriu of T ratf 1 !flr r I pl-m
and ma L king::: tot therm .; %ape t c a f t ti c tLs el pe : and
markinwr i.rcrly.dino traffic r41, 1- rlar, IYt -III
rltla.Lnd machi nr,ry dnel
LABD1104-002 1.1 r •.:.: 2U16
P*ra, rrinrpm
LABORER (TUNNEL]
GROUP 1 3F3_11J 19_or
GROUP }.............. $ 35.41 P.1.07
'AMP 3. .... , .. .... , ... $ 38:3.7 19,0
f;R U11, 4, ,. ,,., , ,,., ,„S 3.9.5E lg,f'7
LABORER
GR0Up 1..................... 32.34
?..................... j3.11 SS' .
GkOUP , ,..,.., ,..,.., ,.., ,.$ '3fr, `'1 1.1. '
1;Mp la............ , ........$ '35.3+4 1{I,
14511H3F inn r_ 11X-1- 1 = L.rL-• I Urfa
GROUP i; C2Ludhiat3 dud Lv6hdliHq ul Vderd . '
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 17 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
s=•erra,di nth L it 1•01.1gh C_ontrr.:.ier 7J37.+cr :IJr. ncjp
i11V-.ram#, T14., byi 'C U VnTvr^w.'I 1'1 -
140ti er part, rMitg any other dambl itinn work, And
-he .cl ean1 ad or J 47rber: ri re wa 4: the r F pi.mbrr.r r bruoh Loactex r
pi l p r and Styr'- 9 h it¢ r r F ]ors T,r•nc,fi o 1;.i n, 01 1 Anal wr
rul.u; 1-•1l4.1mi LuM l kr•'4 r�r i-�Lu+Fr a •Ir•I'!5•I . - I �LIL a ��:�a{l.L�
I.I. Line * p Idbuirskr, nw ndorpt J tiro ce v . ' r _:1 r qw*irr r.= 1
✓ Lr an-dp; Latorotr 1 oudAmapi ng; Ldl ti: r jnE L ina; Lahat.nt e
empnra ' water and air Iimeo; Materia: .cue aperitc,
(wal! nF °labs; floors anck decko f; ?Ito: Ding, tilling :f' obee
1 k11 i 1w l*=F i vrY pot ki 11q Sri rx.1.2t rt _r+; m 4 j,7 t.rnApw,Q r
✓ iolpo E r k rFirlS Fewr$Iim and r An h irdni `iL.rrerI.r:.sr !Inca rr_: 1 1-und
t n�trrFLrinn Fr,+rt 1Ah.'1r,-rds: iranin..l And x1eihA1 iehl:
� lltJ iL LOL r.aln.ts r' Iat ,LE_ri mci Cat; 1 ool ,Drib L•L L r Jl house
140orex : '1' L o f is = c I=ont roi by any 1rteI h,sd r W ndow , ..tearer r
Wi rF mp'-1 h pn 1 1 w nq - all nv9rr1-ist.p rirnn F' nci rppi git i r ry Q
GROUP as. AhOLa L i. r41-.4 141 1rr t Gilrtnl. h 1. diemptk r {..irk 1 yd . .Fr i.a r qti r
1w1xEi and hand21!�g bulk cemerl L [ ; dlgget and
I n v rA. 1Ea: tlim cktender: Urki t o hand) a r F canctetek
the han li ro c• E the chute trim rea.dymi x t rucko, ouch as
4.1wOrr r Flour=r Cc'unibt lone C.301-ingL;r uuaqr
9 u ▪ I. S.k rh. dud .Vap rt r i mrri ttki mq ml+tab rAnm
and Lone Cut L 1 nyj taro]) wpers t om i dtmoli Ll oh h r rine
yiade y'r highway. and s t r ee L alrpoL t, r Linwa yr dud
3 imi isr tyre heavy con of ruct i on D 1:1a*I F oil arAilor wd i 4 t
wr:apL, u - Lerndwf [ uFM per_ a fli Gu ii:r:;;
11Lut.r;rkl,ArA r;tarh ' 44rhal C J 1-+ba3.t r, F u:rkkna r_.d
dnd MtmL1L ar,t wapi m 1J,rLr F eL 1n2S Ldllt'L Pl-rrt L
b ic.Ge sweepe L oms Ll E ; k Ilorap otonepaweE r pia ulna _' i .unt
wet o3ched .717In re to F 14.']LO n oxaber and tiller; Sa nc N.:.•nte r
Lpnt Lc illaFJ r ISTri s= C111g 01.91c4" ln=r d L I Lr s I unar r 1.1a1JG
:Ifalk: _ m;n1r-rl T;r.rr L'1J13brrt, C411frsr _1.4w
▪ 1,tLd L LrL ai L L :� 1Ly1u cLipuet amd. uimilai t }LPL bt UAL_
u breddeiit Underground lit pure1, Intl udInd CKk1 :JtiJlL belLuwE L
.R~ n ? 32 HL1q3Yar'ba l e Fo r r.an; r._iDnc rt_L c mating t ur:'li; Cono r vt c
pi;. :• lr l ; Di ;194AG'r j•iL-kP,,,erurr�'r 2-1JJ2 it - Oril i ataN] cJr
1 J._• L�. yr ..- ,,wl ;., r=+Y.
tirlff� j1�tu b-1'__, ..Luy LItAiude iJ _ dnd
Alijh [1l105.udiinq LLT i311CL Lr1 e f ; Hydro 'm.eder
Inl.; ainlalr+r typo-'o 'dranah rrult i-pI4tvr Kc'rq.lr pnroont
pa. Tv rnoi7 rprm 4p y,al F AlNp1J4 - , 1 ay-v.' r
ctieci tits, Yinit Ldli t.ia and similar ! ypi: mdt.tiLjsl�
rapplying bL ubill t.ag 11 1J{LL LLiLI
al J UCh Mal te21 dl3 Loi u4c. 55 iappiniJ ar:-1 wu F erpk oul u ] ;
OTLnrAlr•r,T nf psinnmar i c, g,;ar olr•r-tri^ to:,l n, VairAl-i n9
� a=fGl��rrt povq:A n l�4r' ski �, its hlaut Ingr r_�71nr--tij uryrxs, an J
�Lm1Ldt nv71=11.mmitidti Lt _'15 nut �►st mtic.1.y L-_qs iiltd
I Eii- I y3 � � I N 'cis. k kj. riµl v. lir ixi.41 dirk_ ert bird 1 lirk, mAr.r i hu ..r
oini s F e i1 lny, um-s1 kiera, tihdpt= iuq dud iiJu lUL1lud L ubbt_
911.47r. F I ni ns'Er pri n F i ng And Any A.arE ..l F c t iyr r 4r.Tvi m -7 T
gook NaLarY zi•=arifleir a$ mull ; l r I • iol7C r•k..
L •.1. - _• •ar
; ampL _ , lid L ku, s'id is kL-r ..knd = SGY.+LY d 1 t'yoL ; Tro,slir 1 LitLg and L'__1J c e
Lid:: L:�;aL L•�lt 31t LFt
'WOLF A! AApilm. i t radcpr, a nt a pr r inn, 1 rrnrcr, r, ;lisp
par n.Dr, r =hit a*phla ] t 4p rursd `r 1:115xot i a J L typr:: 1 o CeaY r_ tikt i
tith .
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 18 of 25 Federal Requirements
March 16, 2017
inQnon7g „-v,
Concrete saw person, :rotting wail* o1 1 1 a L work, �‹..or _nrii
o id Or new eon4 r et e: Cribber, sha£e'1 r lagging, sheeting and
tttalci. L-tau Lrrg, SNahLt•-g3i dx2d 1aIggihq halulul_ r: Iliad tl u_k
ai ti Jlger ; Laboie i , iiS J:ul'_ - rubber 1]t-J t perzun
LaEti i L i ale In ::onftuliLL.A.t1 1. s lai:ut eq 2 I O t t k; �}wei si •_
COnCKGti wilD A-r L J11 I IIDS yy l rarr.X ` lairmil'�3°ty'
pmtLr�iming Ali in 1-'51_ Leying can! i1LeLai liaL iL n �t
plpm (run Ll;w rni nt pi pm i r, the. Oh tell 41rr� i L
u untilE L IL1n ahy and at 1 Uiw,v L•1
tij rill j ar mArArl a I r unrAlr rrr r 1 pro- I ndn-m mr..A a 1 s s-r
dohJui L and any oLEsd_x Lype o tLllzvlat r1��Ji��
112Ar I do% ur my vuiJ�r.ahcci or r. L.iriont, wll�.r.M��ct
w a+e, r, A mhrrtolir 11(l) 1,1 Oa*, a f F . r gt.hm X pt od%Im-7 What3.-0wlr t
apd wi 1'rullt rirslirta 1;1 r_rM. halthrf_ or rhntt•r i a L 'rc: whi r_h Lher
Lubb Lat trbtFti q L i A rAbrj?:.0.0rd) FT6-10i311. pip* And :l-.r iltipi nq
ur rwme.r ErrtiCziktFir.:a,,d JIonllca n sxlrld.044lAm.r
ve.el .o , wit-_s 6:.r.1^ i r.Lr, Pmrtm
GROUP 'h.: ALAMLort piewdo:r r ALI 1.44 •rk pf Lerhdh ng Fte,le r
o,114 1;1 1 a=K ing 01. yF 14 140w44« u ni4 0* tvis u 1 wk.a luvrt r
7-4m.T rrf ] Am m of mnt himA fnw whOl l rran 1 nq .and pl ani nqr
DriLlay: Ail F.1aw1.dr s I a r,, wt ludj4N j:_c-k1F,orrimrr wlmtlmr
rx�rn ra mennri w�al�n F ra.- k r mnt r i p l r• m• I I, ..nri Amy and all
uth■r t fp-:1 ur mmc:hmn ica J dr i 1 ] m w.i l.hdoL r hyp.t a this i t.rm
rsf ant w• pnwr}r; Tc.x i s wa r n r Rgnux l
TONNE.LL LABORER +'LASSI DZ CAT ] 4 O
C4RO11 P 1 e Va t ch 1 zrt7 l abrsrri r ; J kumn
per;riu: Num per;nn Swampar ibrAke pernna and
swatch pa3rocn oin tunnel we r k p p TUnnei ma t er is 1 s hand i tng
pera-in; H pper: linr sender, wiin7 martin 7T •.tr.Er MAT:PTialil
for exams le, iput not by Kay of limit -idol'', shor c ret e, etc.'
i .1fra rti ^ t'��•r-3�.p=1', r'-1.I77==D.7GS; 1-L3r1�� 3^S� �1L1'•t7 •� _ ^O
Au zta LuL zar.JJ : Vibi a tvf jack lJflllllll= l+ pne umA L l u
a.xCept driller) r Rull trans maker, Traci:
ConcretE Drewi including ro der and surreal r
GkPOPJJ? !:.tlaa to , driller, puwd0=1 persmw Chemical grunt lie:
p1=L ur. i CJJF_ L Ly Lrl_r :xus,; 'l_ moL L pux Son p GEwhil m LJs� t
per c....ew 'rout :pump pei.co t: Jaokied miner„! pe r ap d r
K.zmpr and uL It s prtuLimaLic I , r 'r ::r uplataCur i riirltr,
L r t Mcl1<<g miLdeetFmdLiLaJICt<p . J gtL�uu 4pLime.L
k-u:R.j 1 F: i ML I eu-r::l Lr &lnehm I.J::k.t_r 1 Ftx:c 1
'-.rm Lai�ur cl.nd nx1.1e=_ i 71rabl •.L lx istyn, - •: LimUut rt'LAu L,
w ipr;d Tilin xt! E Cr)nr-rt.te f�ni sltit r
,'i OUP 4 ; DIAIMrtrtri [It S J Ikr; SAndbl ANtiftrp sh3« Arid tni�at xxirk
-------------------
L,AR01184-004 O71.01 Y7.O1£
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F F}nrf ar aaa---{aFaa--
LAB-00411-DM (PH/073/2016
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 19 of 25 Federal Requirements
March 16, 2017
inQnon7g „,e)
Rat 8 Fr it g
LA &DJ
PLASTER CLEAN-UP LABORER, .. , $ 31.60
PLASTER TENDER ., , . , 5 34.35
19_29
19.28
Wc.i dS on a siwing; g.t Algc 41o4f C.01 d. per hour additional -
tAINOU38-001 V-+{U1{2U15
Rd eers Fri ftgwF
Painters: lincludinq Lead
Ahztamr.nL F
(i ] Ri/Latot (1_XCib i Sek 1
(7j All rFr hfir Wnrk 79
12 3
19 n1
REPAINT wlr day pi&v iemolg pai211,ed Exc EJ l icrl •.:
wrmrk i nvn 1 vi r q t ha glerconac.P. brAwmri lmr r
11.1'1 • 1 q..1 ■ i am. , r i11r r.a m.,,I., 11EuI, n. W
crIMMLrcdel cei6%i LAIMuht8 es ,art a! hcotn L 20e111dcr ahrt
'S �+•JL �� Laui11+ itr�s
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PA1N0036-008 30/01/2015
a tt ;
17P.T}]r O3-015 Qu/01 /'2U1f
kNOWTkk= NalationAl $L-25 Rev •r.r•nr for work in A r_nninGr
L aw the L hitd p r.]] a.tid up A dit 1orLal Z 1-2! 13.1.
IraiLIL fuL we s k um 'Are uu La de. tLe aum. a 51... ng
A t ark& or a n yr ouspancleck znntr ilig nr:e, ['Tom the ground up
----a----fr+--ria--------:--------
PAIN1241-f502 05161f201A
Rei tAN Fr L rge
FLI S0200-003. 0810W201 .
Ro 1.4.tu Frk ng*o
V1.AAIMIRF.k_r r , r, ,.r, r,a 1.3,17
PLAS0500-002 017101/2016
RA tpfir i ncps.
CEMENT MASCM/CONCRETE FINISUER...$ 33.30
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 20 of 25 Federal Requirements
March 16, 2017
in9noa7g „99
W.filk11141:1E-0411 51,1C11 ,e:?:) I
P1.11,6ERER, FIVER TT7P.R
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h. I reri-1,,- vr. k ,xr.c1--
5iktel*
i-5 1%,
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exArropir .7i a t..Frrion7.
imrornmid-w-vT A,M refre..sile4
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WOUE 11P.T6
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IhriLr2•5 1,.ciJetzu
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Pt WILLER k
T t.7.gior $ 29_2 •
▪ & Skci.Erm %lug 33 .2 I
......
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I
17.13
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--------- ----- -4.07 14-10
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1:0111-C .-:1" 1.
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!L7PRTNEFAR VITRA ----- 4 WAR 20_2$
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• • 7.57-e-::-.1.5m1 • : I I, . .... --7fTRY •- r ..1
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 21 of 25 Federal Requirements
March 16, 2017
in.znQa7o
F411,w4 : L'-:4}#2;
(1)uuut_
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GROUP 3: ToPive.r of vrthi^1ti'_ :'_r ;7-fambinAtir,1- - 3
Rnnt pmrsnr..; f:eviert r.-ntr_^"7-nn-r11.171c; Frf1
driVE,V: :A3=,017- rrErk -
' 9ird3:3 Fri`'}ti Qfl c`I'.1 r' I L] I
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 22 of 25 Federal Requirements
March 16, 2017
inrznsza7 „�,
GLRO1P .1: Driver of trarpolz riLx trucK, 'ender ya2.1 bumparete
trunk, iPg.F
51'tikr tr=4.1. or mtg. AH1441; TW=4 gricA:Ak and -1..:Lor
10.5q Arottinletml leyr• Kir* parrftbn)F Amd
______y livuLLoma LLILuL tiitwti, iL12ludJIL.N LittOL uud
zuelano ilmitee pLpeline arid ura_ity work;
InY tvvink Mrivc.c
:-IP;77P 7r4:ttlt nitx ...Nit- r 'T.or*F Duincrict* tril.ote
o wukiL Aud
- 4 4..-L Q1A-Le,! Oil LlEiA; i.auEto
yea . l vao. water level
QVC-AD '1: A Fvwm, wiod,L4h 9( 411-ivitr;
MTH' 6: Dump Liu-.Ar 21; yda. Lu yd2. reu_z 41.L.Juk
K-UPir FCLN0,1: W pIll - ciglue‘2 wr‘idrx
CPCIJP 9: Truck repair peraon/weider: Lew bed (1=iver, axle.2
f.Lc Q
GROJP 10; JALmii rd,. i L :114J.AU WeLtr2i
pull - uluta with u_LdeJAmdc:L
:.4414YJV LI: W4.4-':L pulZ - r;Liapiml.? IA:MLA FLLL - ,i1;411
w1;1; filiArtti - $1-25 41dAi,1Qadl
wben azT.L.tItm..2hts
22: Buvm uuvi uIFuv.e.
VULDER.:3 - Le5r y..I'Ll.w=mi;lc
upuLciLiti;, 1.4.F witi2.1. we.-1,liag ix
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awatd bray =s girtvidel Lft thc. _abet sraftd.rds t.brItza:.1-t elauseJEr
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11:31uil RaLt.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 23 of 25 Federal Requirements
March 16, 2017
in.znQa7o
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Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 24 of 25 Federal Requirements
March 16, 2017
i n•znsza7 „� i
1 , Ban there been an initial decision in the matter: This can
be.
w an a xi at i ng pub] ished wage de to rmina L Lon
4 a Wage and !lour Diu i a iotl let ter setting forth a position oh
a wage determination matter
4 a cc,n f ormanc a (additional classification and rats) ruling
'fir. stir+ j+ Fal4tod mat tcr!..r 514i t t.nl 0114t4 t,. itWitidsng
tor summaries of surveys, should be with the 'Wage and Hour
Regtonal Office for the area in which the s ux vL so was conducted
t I1rs�1a RtiffiOnAi Ot t Srtrirri ril.$pon$ ii.)11 f 4 i.or t hiR
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interested party (those affected Ey the ac t sor0 can request
rev Less 41115 rr.cemairierAt ion l rr0 the W.4a1y An4 Rcou Admini!-k rAt 1 o.
CRRa 1=,11-- 1.R Rold I11-14 PAY— 7y tgvi rF to e
whVit a h0 Neu r Ad01;l i� t-r a'tOr
0.8. Department of Labor
200 Constitution Avenue, M.W.
14,”115.1100n r DC 7D71 0
the request a*xou 1.d oe accmpaniee by a Lull statement or the
iriCikx*ytitd 14rtyi $ F:10�1.tioo 4nd by 'any iralwmat iun (Kayak
payment data, n.roject description, area practice matttial,
�t theft t`f=_-�ttebtes elkm,1146 re1t+i,157 Ce t19,
_,) If the decision of the Administrator in not favorable, an
farierente-d pasty rdd+r .41emeu1 dirlutt ly I , r}1► Ar.minitrAr ivot
6k Sri + 13 rd itormy rh Worm i}ppra1 _. I n _
AdNi n i.;t rat tvr: RwitiAw WAsd
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200 Constitution Avenue, N.W.
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4, AIL -decisions by the Admiriatrative Review Guard are final.
END OF iaENERALr riLrt=1 S [ OV
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 3 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 25 of 25 Federal Requirements
March 16, 2017
1 nQ115:2a7G „QO
ATTACHMENT 4 TO EXHIBIT 14
EQUAL EMPLOYMENT OPPORTUNITY
SPECIAL PROVISION
000-001
Standard Federal Equal Employment Opportunity
Construction Contract Specifications (Executive Order 11246)
1 As used in these specifications:
a. "Covered area" means the geographical area described in the solicitation from
which this contract resulted;
b. "Director" means Director, Office of Federal Contract Compliance Programs,
United States Department of Labor, or any person to whom the Director
delegates authority;
c. "Employer identification number" means the Federal Social Security number
used on the Employer's Quarterly Federal Tax Return, U.S. Treasury Department
Form 941.
d. "Minority" includes:
i. Black (all persons having origins in any of the Black African racial groups
not of Hispanic origin);
ii. Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South
American or other Spanish Culture or origin, regardless of race);
Asian and Pacific Islander (all persons having origins in any of the original
peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the
Pacific Islands); and
iv. American Indian or Alaskan Native (all persons having origins in any of
the original peoples of North America and maintaining identifiable tribal
affiliations through membership and participation or community
identification).
2. Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of the
work involving any construction trade, it shall physically include in each subcontract in
excess of $10,000 the provisions of these specifications and the Notice which contains
the applicable goals for minority and female participation and which is set forth in the
solicitations from which this contract resulted.
3. If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan
approved by the U. S. Department of Labor in the covered area either individually or
through an association, its affirmative action obligations on all work in the Hometown
Plan area (including goals and timetables) shall be in accordance with that plan for those
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 4 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 6 Federal Requirements
March 16, 2017
i n.znQa7 „�o
trades which have unions participating in the Hometown Plan. Contractors must be able
to demonstrate their participation in and compliance with the provisions of any such
Hometown Plan. Each contractor or subcontractor participating in an approved
Hometown Plan is individually required to comply with its obligations under the EEO
clause, and to make a good faith effort to achieve each goal under the Hometown Plan
in each trade in which it has employees. The overall good faith performance by other
contractors or subcontractors toward a goal in an approved Hometown Plan does not
excuse any covered contractor's or subcontractor's failure to take good faith efforts to
achieve the Hometown Plan goals and timetables.
4. The contractor shall implement the specific affirmative action standards provided in
paragraphs 7a through p of these specifications. The goals set forth in the solicitation
from which this contract resulted are expressed as percentages of the total hours of
employment and training of minority and female utilization the contractor should
reasonably be able to achieve in each construction trade in which it has employees in
the covered area. Covered construction contractors performing construction work in
geographical areas where they do not have a Federal or federally assisted construction
contract shall apply the minority and female goals established for the geographical area
where the work is being performed. Goals are published periodically in the Federal
Register in notice form and such notices may be obtained from any Office of Federal
Contract Compliance Programs office or from Federal procurement contracting officers.
The contractor is expected to make substantially uniform progress in meeting its goals in
each craft during the period specified.
5. 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 either
minorities or women shall excuse the contractor's obligations under these specifications,
Executive Order 11246, or the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in
meeting the goals, 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.
7 The contractor shall take specific affirmative actions to ensure equal employment
opportunity. 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
shall document these efforts fully, and shall implement affirmative action steps at least
as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and
coercion at all sites, and in all facilities at which the contractor's employees are
assigned to work. The contractor, where possible, will assign two or more women
to each construction project. The contractor shall specifically ensure that all
foremen, superintendents, and other on -site supervisory personnel are aware of
and carry out the contractor's obligation to maintain such a working environment,
with specific attention to minority or female individuals working at such sites or in
such facilities.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 4 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 6 Federal Requirements
March 16, 2017
i n.znQa7 „�o
b. Establish and maintain a current list of minority and female recruitment sources,
provide written notification to minority and female recruitment sources and to
community organizations when the contractor or its unions have employment
opportunities available, and maintain a record of the organizations' responses.
c. Maintain a current file of the names, addresses and telephone numbers of each
minority and female off -the -street applicant and minority or female referral from a
union, a recruitment source or community organization and of what action was
taken with respect to each such individual. If such individual was sent to the
union hiring hall for referral and was not referred back to the contractor by the
union or, if referred, not employed by the contractor, this shall be documented in
the file with the reason therefor, along with whatever additional actions the
contractor may have taken.
d. Provide immediate written notification to the Director when the union or unions
with which the contractor has a collective bargaining agreement has not referred
to the contractor a minority person or woman sent by the contractor, or when the
contractor has other information that the union referral process has impeded the
contractor's efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs
for the area which expressly include minorities and women, including upgrading
programs and apprenticeship and trainee programs relevant to the contractor's
employment needs, especially those programs funded or approved by the
Department of Labor. The contractor shall provide notice of these programs to
the sources compiled under 7b above.
f. Disseminate the contractor's EEO policy by providing notice of the policy to
unions and training programs and requesting their cooperation in assisting the
contractor in meeting its EEO obligations; by including it in any policy manual and
collective bargaining agreement; by publicizing it in the company newspaper,
annual report, etc.; by specific review of the policy with all management
personnel and with all minority and female employees at least once a year; and
by posting the contractor's EEO policy on bulletin boards accessible to all
employees at each location where construction work is performed.
g•
Review, at least annually, the contractor's EEO policy and affirmative action
obligations under these specifications with all employees having any
responsibility for hiring, assignment, layoff, termination or other employment
decisions including specific review of these items with onsite supervisory
personnel such as Superintendents, General Foremen, etc., prior to the initiation
of construction work at any job site. A written record shall be made and
maintained identifying the time and place of these meetings, persons attending,
subject matter discussed, and disposition of the subject matter.
h. Disseminate the contractor's EEO policy externally by including it in any
advertising in the news media, specifically including minority and female news
media, and providing written notification to and discussing the contractor's EEO
policy with other contractors and subcontractors with whom the contractor does
or anticipates doing business.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 4 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 3 of 6 Federal Requirements
March 16, 2017
i n.znQa7 „�o
i. Direct its recruitment efforts, both oral and written, to minority, female and
community organizations, to schools with minority and female students and to
minority and female recruitment and training organizations serving the contract
recruitment area and employment needs. Not later than one month prior to the
date for the acceptance of applications for apprenticeship or other training by any
recruitment source, the contractor shall send written notification to organizations
such as the above, describing the openings, screening procedures, and tests to
be used in the selection process.
Encourage present minority and female employees to recruit other minority
persons and women and, where reasonable, provide after school, summer and
vacation employment to minority and female youth both on the site and in other
areas of a contractor's workforce.
k. Validate all tests and other selection requirements where there is an obligation to
do so under 41 CFR Part 60-3.
I. Conduct, at least annually, an inventory and evaluation at least of all minority and
female personnel for promotional opportunities and encourage these employees
to seek or to prepare for, through appropriate training, etc., such opportunities.
m. 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 contractor's
EEO policy and the contractor's obligations under these specifications are being
carried out.
n. Ensure that all facilities and company activities are non -segregated except that
separate or single -user toilet and necessary changing facilities shall be provided
to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from
minority and female construction contractors and suppliers, including circulation
of solicitations to minority and female contractor associations and other business
associations.
p. Conduct a review, at least annually, of all supervisors' adherence to and
performance under the contractor's EEO policies and affirmative action
obligations.
8. Contractors are encouraged to participate in voluntary associations which assist in
fulfilling one or more of their affirmative action obligations (7a through p). 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 7a through p of these specifications provided
that the contractor actively participates in the group, makes every effort to assure that
the group has a positive impact on the employment of minorities and women in the
industry, ensures that the concrete benefits of the program are reflected in the
contractor's minority and female workforce participation, makes a good faith effort to
meet its individual goals and timetables, and can provide access to documentation which
demonstrates the effectiveness of actions taken on behalf of the contractor. The
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 4 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 4 of 6 Federal Requirements
March 16, 2017
i n.znQa7 „�o
obligation to comply, however, is the contractor's and failure of such a group to fulfill an
obligation shall not be a defense for the contractor's noncompliance.
9. A single goal for minorities and a separate single goal for women have been established.
The contractor, however, is required to provide equal employment opportunity and to
take affirmative action for all minority groups, both male and female, and all women, both
minority and non -minority. Consequently, the contractor may be in violation of the
Executive Order if a particular group is employed in a substantially disparate manner (for
example, even though the contractor has achieved its goals for women generally, the
contractor may be in violation of the Executive Order if a specific minority group of
women is underutilized).
10. The contractor shall not use the goals and timetables or affirmative action standards to
discriminate against any person because of race, color, religion, sex, or national origin.
11. The contractor shall not enter into any subcontract with any person or firm debarred from
Government contracts pursuant to Executive Order 11246.
12. The contractor shall carry out such sanctions and penalties for violation of these
specifications and of the Equal Opportunity Clause, including suspension, termination
and cancellation of existing subcontracts as may be imposed or ordered pursuant to
Executive Order 11246, as amended, and its implementing regulations, by the Office of
Federal Contract Compliance Programs. Any contractor who fails to carry out such
sanctions and penalties shall be in violation of these specifications and Executive Order
11246, as amended.
13. The contractor, in fulfilling its obligations under these specifications, shall implement
specific affirmative action steps, at least as extensive as those standards prescribed in
paragraph 7 of these specifications, so as to achieve maximum results from its efforts to
ensure equal employment opportunity. If the contractor fails to comply with the
requirements of the Executive Order, the implementing regulations, or these
specifications, the Director shall proceed in accordance with 41 CFR 60-4.8.
14. The contractor shall designate a responsible official to monitor all employment related
activity to ensure that the company EEO policy is being carried out, to submit reports
relating to the provisions hereof as may be required by the Government 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, social security number, race, sex, 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 an easily understandable and retrievable form; however, to the
degree that existing records satisfy this requirement, contractors shall not be required to
maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of other
laws which establish different standards of compliance or upon the application of
requirements for the hiring of local or other area residents (e.g., those under the Public
Works Employment Act of 1977 and the Community Development Block Grant
Program).
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 4 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 5 of 6 Federal Requirements
March 16, 2017
i n.znQa7 „�o
16. In addition to the reporting requirements set forth elsewhere in this contract, the
contractor and the subcontractors holding subcontracts, not including material suppliers,
of $10,000 or more, shall submit an annual report each July for the duration of the
project, indicating employment data as contained under Form PR 1391 (Appendix C to
23 CFR, Part 230), and in accordance with the instructions included thereon.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 4 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 6 of 6 Federal Requirements
March 16, 2017
i n.znQa7 „�o
ATTACHMENT 5 TO EXHIBIT 14
AFFIRMATIVE ACTION
SPECIAL PROVISION
000-1981
Notice of Requirement for Affirmative Action to
Ensure Equal Employment Opportunity (Executive Order 11246)
1. General.
In addition to the affirmative action requirements of the Special Provision titled "Standard
Federal Equal Employment Opportunity Construction Contract Specifications" as set
forth elsewhere in this proposal, the contractor's attention is directed to the specific
requirements for utilization of minorities and females as set forth below.
2. Goals.
a. Goals for minority and female participation are hereby established in accordance
with 41 CFR 60-4.
b. The goals for minority and female participation expressed in percentage terms for
the contractor's aggregate work force in each trade on all construction work in
the covered area, are as follows:
Goals for minority
participation in each
trade (percent)
Goals for female
participation in each
trade (percent)
See Table 1 6.9%
c. These goals are applicable to all the contractor's construction work (whether or
not it is Federal or federally assisted) performed in the covered area. If the
contractor performs construction work in a geographical area located outside of
the covered area, it shall apply the goals established for such geographical area
where the work is actually performed. With regard to this second area, the
contractor also is subject to the goals for both its federally involved and non -
federally involved construction. The contractor's compliance with the Executive
Order and the regulations in 41 CFR Part 60-4 shall be based on its
implementation of the Standard Federal Equal Employment Opportunity
Construction Contract Specifications Special Provision and its efforts to meet the
goals. The hours of minority and female employment and training must be
substantially uniform throughout the length of the contract, and in each trade, and
the contractor shall make a good faith effort to employ minorities and women
evenly on each of its projects. The transfer of minority and female employees or
trainees from contractor to contractor or from project to project for the sole
purpose of meeting the contractor's goals shall be a violation of the contract, the
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 5 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 4 Federal Requirements
March 16, 2017
i n.znQa7 „�o
Executive Order and the regulations in 41 CFR Part 60-4. Compliance with the
goals will be measured against the total work hours performed.
d. A contractor or subcontractor will be considered in compliance with these
provisions by participation in the RCTC "Affirmative Action Policy." Provided that
each contractor or subcontractor participating in this plan must individually
comply with the equal opportunity clause set forth in 41 CFR 60-1.4 and must
make a good faith effort to achieve the goals set forth for each participating trade
in the plan in which it has employees. The overall good performance of other
contractors and subcontractors toward a goal in an approved plan does not
excuse any covered contractor's or subcontractor's failure to make good faith
efforts to achieve the goals contained in these provisions. Contractors or
subcontractors participating in the plan must be able to demonstrate their
participation and document their compliance with the provisions of this plan.
3. Subcontracting.
The contractor shall provide written notification to RCTC within ten Business Days of award of
any construction subcontract in excess of $10,000 at any tier for construction work under the
contract resulting from this solicitation pending concurrence of RCTC in the award. The
notification shall list the names, address and telephone number of the subcontractor; employer
identification number; estimated dollar amount of the subcontract; estimated starting and
completion dates of the subcontract; and the geographical area in which the contract is to be
performed.
4. Covered area.
As used in this special provision, and in the contract resulting from this solicitation, the
geographical area covered by these goals for female participation is the State of California. The
geographical area covered by these goals for other minorities are the counties in the State of
California as indicated in Table 1.
5. Reports.
The contractor is hereby notified that he may be subject to the Office of Federal Contract
Compliance Programs (OFCCP) reporting and record keeping requirements as provided for
under Executive Order 11246 as amended. OFCCP will provide direct notice to the contractor
as to the specific reporting requirements that he will be expected to fulfill.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 5 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 4 Federal Requirements
March 16, 2017
i n.znQa7 „�o
TABLE 1
FEDERAL -AID MINORITY GOALS
CALIFORNIA ECONOMIC AREA
174 Redding, CA: 6.8%
Non-SMSA Counties:
CA Lassen; CA Modoc; CA Plumas; CA; Shasta;
CA Siskiyou; CA Tehama.
175 Eureka, CA:
Non-SMSA Counties:
CA Del Norte; CA Humboldt; CA Trinity.
176 San Francisco -Oakland -San Jose, CA:
SMSA Counties:
6.6%
28.9%
7120 Salinas -Seaside -Monterey, CA
CA Monterey.
7360 San Francisco -Oakland, CA 25.6%
CA Alameda; CA Contra Costa; CA Marin;
San Francisco; CA San Mateo.
7400 San Jose, CA 19.6%
CA Santa Clara.
7485 Santa Cruz, CA 14.9%
CA Santa Cruz.
7500 Santa Rosa, CA 9.1 %
CA Sonoma.
8720 Vallejo -Fairfield -Napa, CA 17.1 %
CA Napa; CA Solano
Non-SMSA Counties: 23.2%
CA Lake; CA Mendocino; CA San Benito.
177 Sacramento, CA
SMSA Counties:
6920 Sacramento, CA 16.1 %
CA Placer; CA Sacramento; CA Yolo.
Non-SMSA Counties: 14.3%
CA Butte; CA Colusa; CA El Dorado; CA Glenn;
CA Nevada; CA Sierra; CA Sutter; CA Yuba.
178 Stockton -Modesto, CA:
SMSA Counties:
5170 Modesto, CA
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 5 to
Exhibit 14
Page 3 of 4
12.3%
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
CA Stanislaus.
8120 Stockton, CA
CA San Joaquin.
Non-SMSA Counties:
CA Alpine; CA Amador; CA Calaveras; CA Mariposa;
CA Merced, CA Tuolumne.
179 Fresno -Bakersfield, CA:
SMSA Counties:
24.3%
19.8%
0680 Bakersfield, CA 19.1 %
CA Kent
2840 Fresno, CA 26.1 %
CA Fresno
Non-SMSA Counties: 23.6%
CA Kings; CA Madera; CA Tulare.
180 Los Angeles, CA:
SMSA Counties: 11.9%
0360 Anaheim -Santa Ana -Garden Grove, CA
CA Orange
4480 Los Angeles -Long Beach, CA 28.3%
CA Los Angeles
6000 Oxnard -Simi Valley -Ventura, CA 21.5%
CA Ventura
6780 Riverside -San Bernardino -Ontario, CA 19.0%
CA Riverside; CA San Bernardino
7480 Santa Barbara -Santa Maria -Lompoc, CA 19.7%
CA Santa Barbara
Non-SMSA Counties: 24.6%
CA Inyo; CA Mono; CA San Luis Obispo.
181 San Diego, CA:
SMSA Counties:
7320 San Diego, CA 16.9%
CA San Diego.
Non-SMSA Counties: 16.2%
CA Imperial
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 5 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 4 of 4 Federal Requirements
March 16, 2017
i n.znQa7 „�o
ATTACHMENT 6 TO EXHIBIT 14
CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
By signing and submitting its proposal or bid, and by executing the Contract or Subcontract,
each prospective DB Contractor and subcontractor (at all tiers) shall be deemed to have signed
and delivered the following:
1. The prospective DB Contractor/subcontractor certifies, to the best of its
knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any Federal agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal
loan, the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any Federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-
LLL, "Disclosure Form to Report Lobbying," in accordance with its
instructions, and shall include a copy of said form in its proposal or bid, or
submit it with the executed Contract or Subcontract.
2. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed
by 31 U.S.C. 1352. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
3. DB Contractor/subcontractor shall require that the language of this certification
be included in all lower tier Subcontracts which exceed $100,000 and that all
such recipients shall certify and disclose accordingly.
4. The undersigned certifies or affirms the truthfulness and accuracy of each
statement of its certification and disclosure, if any. In addition, the undersigned
understands and agrees that the provisions of 31 U.S.C. §3801, et seq., apply to
this certification and disclosure, if any.
[Note: Pursuant to 31 U.S.C. §1352(c)(1)-(2)(A), any person who makes a prohibited
expenditure or fails to file or amend a required certification or disclosure form shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each expenditure or
failure.]
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 6 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 1 Federal Requirements
March 16, 2017
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ATTACHMENT 7 TO EXHIBIT 14
COMPLIANCE WITH BUY AMERICA REQUIREMENTS
DB Contractor shall comply with the Federal Highway Administration (FHWA) Buy America
Requirement in 23 CFR 635.410, which permits FHWA participation in the Contract only if
domestic steel and iron will be used on the Project. To be considered domestic, all steel and
iron used and all products manufactured from steel and iron must be produced in the United
States and all manufacturing processes for these materials must occur in the United States, with
the exception that pig iron and processed, pelletized and reduced iron ore manufactured outside
of the United States may be used in the domestic manufacturing process for such steel and iron
materials. The application of coatings, such as epoxy coating, galvanizing, painting and other
coating that protects or enhances the value of steel or iron materials shall be considered a
manufacturing process subject to Buy America requirements. This requirement does not
preclude a minimal use of foreign steel and iron materials, provided the cost of such materials
does not exceed 0.1 % of the contract price under the Contract.
A Certificate of Compliance shall be furnished for steel and iron materials. The certificates, in
addition to certifying that the materials comply with the specifications, shall specifically certify
that all manufacturing processes for the materials occurred in the United States, except as for
the above exception.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 7 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 2 Federal Requirements
March 16, 2017
10308675.v32
BUY AMERICA CERTIFICATE
Certificate of Compliance
DB Contractor hereby certifies that it will comply with the requirements of 23 U.S.C. 313, and
the applicable regulations in 23 CFR 635.410.
Date:
Signature:
DB Contractor's Name: Skanska-Ames a Joint Venture
Title:
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 7 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 2 Federal Requirements
March 16, 2017
10308675.v32
ATTACHMENT 8 TO EXHIBIT 14
TRAINING SPECIAL PROVISIONS
This Training Special Provisions supersedes subparagraph 6b of Section II, "Nondiscrimination,"
of the Required Contract Provisions, Federal -Aid Construction Contracts (Attachment 2 to
Exhibit 14), and is in implementation of 23 U.S.C. § 140(a).
As part of the DB Contractor's equal employment opportunity affirmative action program,
training shall be provided as follows:
The DB Contractor shall provide on-the-job training aimed at developing full journeymen in the
type of trade or job classification involved.
The number of trainees to be trained under the special provision will be 48.
In the event that a DB Contractor subcontracts a portion of the contract work, they shall
determine how many, if any, of the trainees are to be trained by the Subcontractor, provided,
however, that the DB Contractor shall retain the primary responsibility for meeting the training
requirements imposed by this special provision. The DB Contractor shall also ensure that this
training special provision is made applicable to such subcontract. Where feasible, 25 percent of
apprentices or trainees in each occupation shall be in their first year of apprenticeship or
training.
The number of trainees shall be distributed among the work classifications on the basis of the
DB Contractor's needs and the availability of journeymen in the various classifications within a
reasonable area of recruitment. Prior to commencing construction, the DB Contractor shall
submit to the State highway agency for approval the number of trainees to be trained in each
selected classification and training program to be used. Furthermore, the DB Contractor shall
specify the starting time for training in each of the classifications. The DB Contractor will be
credited for each trainee employed by him on the contract work who is currently enrolled or
becomes enrolled in an approved program and will be reimbursed for such trainees as provided
hereinafter.
Training and upgrading of minorities and women toward journeyman status is a primary
objective of this Training Special Provision. Accordingly, the DB Contractor shall make every
effort to enroll minority trainees and women (e.g., by conducting systematic and direct
recruitment through public and private likely to yield minority and women trainees) to the extent
that such persons are available within a reasonable area of recruitment. The DB Contractor will
be responsible for demonstrating the steps that they have taken in pursuance thereof, prior to a
determination as to whether the DB Contractor is in compliance with this Training Special
Provision. This training commitment is not intended, and shall not be used, to discriminate
against any applicant for training, whether a member of a minority group or not.
No employee shall be employed as a trainee in any classification in which they have
successfully completed a training course leading to journeyman status or in which they have
been employed as a journeyman. The DB Contractor should satisfy this requirement by
including appropriate questions in the employee application or by other suitable means.
Regardless of the method used, the DB Contractor's records should document the findings in
each case.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 8 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 1 of 3 Federal Requirements
March 16, 2017
i n.znQa7 „�o
The minimum length and type of training for each classification will be as established in the
training program selected by the DB Contractor and approved by the State highway agency and
the Federal Highway Administration. The State highway agency and the Federal Highway
Administration shall approve a program if it is reasonably calculated to meet the equal
employment opportunity obligations of the DB Contractor and to qualify the average trainee for
journeyman status in the classification concerned by the end of the training period.
Furthermore, apprenticeship programs registered with the U.S. Department of Labor, Bureau of
Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau
and training programs approved but not necessarily sponsored by the U.S. Department of
Labor, Manpower Administration, Bureau of Apprenticeship and training shall also be
considered acceptable provided it is being administered in a manner consistent with the equal
employment obligations of Federal -aid highway construction contracts. Approval or acceptance
of a training program shall be obtained from the State prior to commencing work on the
classification covered by the program. It is the intention of these provisions that training is to be
provided in the construction crafts rather than clerk -typists or secretarial -type positions.
Training is permissible in lower level management positions such as office engineers,
estimators, timekeepers, etc., where the training is oriented toward construction applications.
Training in the laborer classification may be permitted provided that significant and meaningful
training is provided and approved by the division office. Some off -site training is permissible as
long as the training is an integral part of an approved training program and does not comprise a
significant part of the overall training.
Except as otherwise noted below, the DB Contractor will be reimbursed 80 cents per hour of
training given an employee on this contract in accordance with an approved training program.
As approved by the engineer, reimbursement will be made for training persons in excess of the
number specified herein. This reimbursement will be made even though the DB Contractor
receives additional training program funds from other sources provided such other source does
not specifically prohibit the DB Contractor from receiving other reimbursement. Reimbursement
for off -site training indicated above may only be made to the DB Contractor where they do one
or more of the following and the trainees are concurrently employed on a Federal -aid project;
contributes to the cost of the training, provides the instruction to the trainee, or pays the
trainee's wages during the off -site training period.
No payment shall be made to the DB Contractor if either the failure to provide the required
training, or the failure to hire the trainee as a journeyman, is caused by the DB Contractor and
evidences a lack of good faith on the part of the DB Contractor in meeting the requirements of
this Training Special Provision. It is normally expected that a trainee will begin his training on
the project as soon as feasible after start of work utilizing the skill involved and remain on the
project as long as training opportunities exist in his work classification or until he has completed
his training program. It is not required that all trainees be on board for the entire length of the
contract. DB Contractors will have fulfilled their responsibilities under this Training Special
Provision if they have provided acceptable training to the number of trainees specified. The
number trained shall be determined on the basis of the total number enrolled on the contract for
a significant period.
Trainees will be paid at least 60 percent of the appropriate minimum journeyman's rate specified
in the contract for the first half of the training period, 75 percent for the third quarter of the
training period, and 90 percent for the last quarter of the training period, unless apprentices or
trainees in an approved existing program are enrolled as trainees on this project. In that case,
the appropriate rates approved by the Departments of Labor or Transportation in connection
with the existing program shall apply to all trainees being trained for the same classification who
are covered by this Training Special Provision.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 8 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 2 of 3 Federal Requirements
March 16, 2017
i n.znQa7 „�o
DB Contractors shall furnish the trainee a copy of the program the DB Contractor will follow in
providing the training. The DB Contractor shall provide each trainee with a certification showing
the type and length of training satisfactorily completed.
The DB Contractor will provide for the maintenance of records and furnish periodic reports
documenting their performance under this Training Special Provision.
Riverside County Transportation Commission
1-15 Express Lanes Project
Attachment 8 to RFP Number: 16-31-057-00
Exhibit 14 Draft Execution Version - Design -Build Contract Exhibits
Page 3 of 3 Federal Requirements
March 16, 2017
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EXHIBIT 15
FORM OF GUARANTY
[EXECUTED COPIES OF GUARANTEES TO REPLACE THIS FORM PRIOR TO EXECUTION
OF THE CONTRACT]
GUARANTY
This Guaranty (the "Guaranty") is made Skanska USA Civil Inc. ("Guarantor"), in favor of the
Riverside County Transportation Commission ("RCTC").
WHEREAS, Skanska-Ames, a Joint Venture, as DB Contractor ("DB Contractor"), and
RCTC are parties to that certain DB Contract (the "Contract") pursuant to which the DB
Contractor has agreed to develop, design, and construct the Project. Unless the context
otherwise requires, capitalized terms used but not separately defined in this Guaranty will have
the meaning given to them in the Contract.
To induce RCTC to (i) enter into the Contract; and (ii) consummate the transactions
contemplated thereby, Guarantor has agreed to enter into this Guaranty.
DB Contractor is a Joint Venture. The Guarantor is corporation. The execution of the
Contract by RCTC and the consummation of the transactions contemplated by the Contract will
materially benefit Guarantor. Without this Guaranty, RCTC would not have entered into the
Contract with DB Contractor. In consideration of RCTC's execution of the Contract and
consummation of the transactions contemplated by the Contract, Guarantor has agreed to
execute this Guaranty.
NOW, THEREFORE, in consideration of the foregoing Recitals, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor agrees as follows:
1. Guaranty.
a. Guarantor guarantees to RCTC and its successors and assigns the full and
prompt payment and performance when due of all of the obligations of the DB Contractor arising
out of, in connection with, under or related to the Contract (including, without limitation, the DB
Contractor's obligation to make payment to RCTC for Liquidated Damages and indemnity). The
obligations guaranteed pursuant to this Guaranty are collectively referred to in this Guaranty as
the "Guaranteed Obligations."
b. Guarantor covenants to RCTC that if at any time the DB Contractor should
default in the performance when due of, observance when due of, or should commit a breach of,
any of the Guaranteed Obligations, Guarantor shall promptly, upon written notice by RCTC,
perform or pay the Guaranteed Obligations or cause the performance or payment of the
Guaranteed Obligations.
c. Guarantor agrees that, to the extent Guarantor's obligations under this Guaranty
relate to obligations of the DB Contractor which require performance other than the payment of
money, RCTC may proceed against Guarantor to effect specific performance of such
obligations (to the extent that such relief is available). Guarantor agrees to assume or to
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
Page 1 of 10
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
procure the assumption of the Contract, and to perform or to procure the performance of all of
the terms and conditions under the Contract should the Contract be disaffirmed or rejected by a
trustee or court in a bankruptcy proceeding involving the DB Contractor, or, at the option of
RCTC, Guarantor shall, in the event of the DB Contractor's bankruptcy, make and enter into or
have made and entered into, by one or more entities reasonably satisfactory to RCTC, new
contract documents for the balance of the term of the Contract, which new contract documents
shall be in form and substance identical to the replaced Contract.
2. Unconditional Obligations. This Guaranty is a guaranty of payment and performance
and not of collection. Except as provided in Section 20, this Guaranty is an absolute,
unconditional and irrevocable guarantee of the full and prompt payment and performance when
due of all of the Guaranteed Obligations, whether or not from time to time reduced or
extinguished or hereafter increased or incurred, and whether or not enforceable against the DB
Contractor. If any payment made by the DB Contractor or any other Person and applied to the
Guaranteed Obligations is at any time annulled, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be repaid or refunded, then, to the extent of
such payment or repayment, the liability of Guarantor will be and remain in full force and effect
as fully as if such payment had never been made. Guarantor covenants that this Guaranty will
not be fulfilled or discharged, except by the complete payment and performance of the
Guaranteed Obligations, whether by the primary obligor or Guarantor under this Guaranty.
Without limiting the generality of the foregoing, Guarantor's obligations under this Guaranty will
not be released, discharged or otherwise affected by:
a. except as to applicable statutes of limitation, failure, omission, delay, waiver or
refusal by DB Contractor to exercise, in whole or in part, any right or remedy held by DB
Contractor with respect to the Contract or any transaction under the Contract;
b. any change in the Contract or the obligations under the Contract, any change in
the existence, structure or ownership of Guarantor or the DB Contractor, or any dissolution,
winding up, liquidation, insolvency, bankruptcy, reorganization or similar proceeding affecting
the DB Contractor, Guarantor or their respective assets or any defense that may arise in
connection with or as a result of such dissolution, winding up, liquidation, insolvency,
bankruptcy, reorganization or other proceeding;
c. the existence of any Claim or set-off which the DB Contractor has or Guarantor
may have against RCTC, whether in connection with this Guaranty or any unrelated transaction,
provided that nothing in this Guaranty will be deemed a waiver by Guarantor of any Claim or
prevent the assertion of any Claim by separate suit;
d. any release of DB Contractor from any liability with respect to the Contract;
e. any failure of consideration or lack of authority of the DB Contractor, any lack of
validity or enforceability, illegality or defect or deficiency, or any other defense to formation of
the Contract (or any term, condition or covenant thereof);
f. any change in the time, manner, terms, place of payment of, or any other term of
all or any of the Guaranteed Obligations, or any other amendment, waiver of, or any consent to
departure from any Contract executed in connection therewith;
g. the incapacity or lack of power or authority of, or dissolution or change in, the
members or shareholders of the DB Contractor;
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
Page 2 of 10
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
h. any release or subordination of any collateral then held by RCTC as security for
the performance by DB Contractor of the Guaranteed Obligations; or
i. any other circumstance that might otherwise constitute a defense available to, or
a discharge of, Guarantor with respect to the Guaranteed Obligations, other than performance
or payment in full of the Guaranteed Obligations.
This Guaranty will in all respects be a continuing, absolute, and unconditional guaranty
irrespective of the genuineness, validity, regularity or enforceability of the Contract, Guaranteed
Obligations or any part thereof or any instrument or agreement evidencing any of the
Guaranteed Obligations or relating thereto, or the existence, validity, enforceability, perfection,
or extent of any collateral therefor or any other circumstances relating to the Guaranteed
Obligations, except as provided in Section 20.
3. Independent Obligations. Guarantor agrees that the Guaranteed Obligations are
independent of the obligations of the DB Contractor and if any default occurs under this
Guaranty, a separate action or actions may be brought and prosecuted against Guarantor
whether or not the DB Contractor is joined therein. RCTC may maintain successive actions for
other defaults of Guarantor. RCTC's rights under this Guaranty will not be exhausted by the
exercise of any of its rights or remedies or by any such action or by any number of successive
actions until and unless all Guaranteed Obligations have been indefeasibly paid and fully
performed.
a. Guarantor agrees that RCTC may enforce this Guaranty, at any time and from
time to time, without the necessity of resorting to or exhausting any security or collateral and
without the necessity of proceeding against the DB Contractor. Guarantor waives the right to
require RCTC to proceed against the DB Contractor, to exercise any right or remedy under any
of the Contract or to pursue any other remedy or to enforce any other right.
b. Guarantor will continue to be subject to this Guaranty notwithstanding: (i) any
modification, agreement or stipulation between the DB Contractor and RCTC or their respective
successors and assigns, with respect to any of the Contract or the Guaranteed Obligations;
(ii) any waiver of or failure to enforce the Guaranteed Obligations or any of the terms, covenants
or conditions contained in any of the Contract or any modification thereof; (iii) any release of the
DB Contractor from any liability with respect to any of the Contract; or (iv) any release or
subordination of any collateral then held by RCTC as security for the performance by the DB
Contractor of the Guaranteed Obligations.
c. The Guaranteed Obligations are not conditional or contingent upon the
genuineness, validity, regularity or enforceability of any of the Contract or the pursuit by RCTC
of any remedies which RCTC either now has or may hereafter have with respect thereto under
any of the Contract.
d. DB Contractor and Guarantor acknowledge and agree that Guarantor's
obligations and undertakings under this Guaranty are derivative of, and not in excess of, the
Guaranteed Obligations and Guarantor shall be entitled to all rights and defenses of DB
Contractor except as previously waived or disclaimed in this Guaranty. Notwithstanding any
other term or provision of this Guaranty, in the event that the DB Contractor's obligations have
been changed by any modification, agreement or stipulation between DB Contractor and RCTC
or their respective successors or assigns, the term "Guaranteed Obligations" as used in this
Guaranty shall mean the Guaranteed Obligations as so changed, except that the Guaranteed
Obligations shall be determined without regard to the effect of any such modification, agreement
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
Page 3 of 10
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
or stipulation in the context of a bankruptcy or insolvency proceeding in which DB Contractor is
the debtor, unless otherwise specified in the modification, agreement or stipulation.
4. Liability of Guarantor.
a. RCTC may enforce this Guaranty upon the occurrence of a breach by the DB
Contractor of any of the Guaranteed Obligations, notwithstanding the existence of any dispute
between RCTC and the DB Contractor with respect to the existence of such a breach.
b. Guarantor's performance of some, but not all, of the Guaranteed Obligations will
in no way limit, affect, modify or abridge Guarantor's liability for those Guaranteed Obligations
that have not been performed.
c. RCTC, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability of this Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of Guarantor's liability under this Guaranty, from
time to time may (i) with respect to the financial obligations of the DB Contractor, if and as
permitted by the Contract, renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of financial obligations that are
Guaranteed Obligations, and/or subordinate the payment of the same to the payment of any
other obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement
relating thereto, (iii) request and accept other guarantees of the Guaranteed Obligations and
take and hold security for the payment and performance of this Guaranty or the Guaranteed
Obligations, (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive,
alter, subordinate or modify, with or without consideration, any security for performance of the
Guaranteed Obligations, any other guarantees of the Guaranteed Obligations, or any other
obligation of any Person with respect to the Guaranteed Obligations, (v) enforce and apply any
security hereafter held by or for the benefit of RCTC in respect of this Guaranty or the
Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other
right or remedy that RCTC may have against any such security, as RCTC in its discretion may
determine, and (vi) exercise any other rights available to it under the Contract.
d. This Guaranty and the obligations of Guarantor under this Guaranty will be valid
and enforceable and will not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than indefeasible performance in full of the Guaranteed
Obligations), including without limitation the occurrence of any of the following, whether or not
Guarantor will have had notice or knowledge of any of them: (i) any failure or omission to assert
or enforce an agreement or election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of, any Claim or demand
or any right, power or remedy (whether arising under the Contract, at law, in equity or otherwise)
with respect to the Guaranteed Obligations or any agreement or instrument relating thereto;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including without limitation provisions relating to events of default) of
the Contract or any agreement or instrument executed pursuant thereto; (iii) RCTC's knowledge
of or consent to the change, reorganization or termination of the corporate structure or existence
of the DB Contractor; (iv) any defenses, set -offs or counterclaims that the DB Contractor may
allege or assert against RCTC in respect of the Guaranteed Obligations, except as provided in
Section 20.
5. Waivers. To the fullest extent permitted by law, Guarantor hereby waives and agrees
not to assert or take advantage of:
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
Page 4 of 10
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
a. any right to require RCTC to proceed against the DB Contractor or any other
Person or to proceed against or exhaust any security held by RCTC at any time or to pursue
any right or remedy under any of the Contract or any other remedy in RCTC's power before
proceeding against Guarantor;
b. any defense that may arise by reason of the incapacity, lack of authority, death or
disability of, or revocation hereby by Guarantor, the DB Contractor or any other Person or the
failure of RCTC to file or enforce a claim against the estate (either in administration, bankruptcy
or any other proceeding) of any such Person;
c. any defense that may arise by reason of any presentment, demand for payment
or performance or otherwise, protest or notice of any other kind or lack thereof;
d. any right or defense arising out of an election of remedies by RCTC even though
the election of remedies, such as non -judicial foreclosure with respect to any security for the
Guaranteed Obligations, has destroyed the Guarantor's rights of subrogation and
reimbursement against the DB Contractor by the operation of Section 580d of the California
Code of Civil Procedure or otherwise;
e. all notices to Guarantor or to any other Person, including, but not limited to,
notices of the acceptance of this Guaranty or the creation, renewal, extension, modification,
accrual of any of the obligations of the DB Contractor under any of the Contract, or of default in
the payment or performance of any such obligations, enforcement of any right or remedy with
respect thereto or notice of any other matters relating thereto;
f. any defense based upon any act or omission of RCTC which directly or indirectly
results in or aids the discharge or release of the DB Contractor, Guarantor or any security given
or held by RCTC in connection with the Guaranteed Obligations;
g. any duty on the part of RCTC to disclose to Guarantor any facts RCTC may now
or hereafter know about the DB Contractor, regardless of whether RCTC has reason to believe
that any such facts materially increase the risk beyond that which Guarantor intends to assume,
has reason to believe that such facts are unknown to Guarantor, or has a reasonable
opportunity to communicate such facts to Guarantor. Guarantor acknowledges that it is fully
responsible for being and keeping informed of the financial condition of the DB Contractor and
of all circumstances bearing on the risk of non-payment of any Guaranteed Obligations;
h. [the fact that Guarantor may at any time in the future dispose of all or part of its
direct or indirect ownership or economic interests in the DB Contractor]; and
i. any and all suretyship defenses under applicable law.
6. Waiver of Subrogation and Rights of Reimbursement. Until the Guaranteed
Obligations have been indefeasibly paid in full, Guarantor waives any claim, right or remedy
which it may now have or may hereafter acquire against the DB Contractor that arises from the
performance of Guarantor under this Guaranty, including, without limitation, any claim, right or
remedy of subrogation, reimbursement, exoneration, contribution, or indemnification, or
participation in any claim, right or remedy of RCTC against the DB Contractor, or any other
security or collateral that RCTC now has or hereafter acquires, whether or not such claim, right
or remedy arises in equity, under contract, by statute, under common law or otherwise. All
existing or future indebtedness of the DB Contractor or any shareholders, partners, members,
joint venturers of the DB Contractor to Guarantor is subordinated to all of the Guaranteed
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
Page 5 of 10
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Federal Requirements
March 16, 2017
i n.znQa7 „�o
Obligations until such time as all Guaranteed Obligations shall have been indefeasibly paid in
full. Whenever and for so long as the DB Contractor shall be in default in the performance of a
Guaranteed Obligation, no payments with respect to any such indebtedness shall be made by
the DB Contractor or any shareholders, partners, members, joint venturers of the DB Contractor
to Guarantor without the prior written consent of RCTC. Any payment by the DB Contractor or
any shareholders, partners, members, joint venturers of the DB Contractor to Guarantor in
violation of this provision shall be deemed to have been received by Guarantor as trustee for
RCTC.
7. Cumulative Rights. All rights, powers and remedies of RCTC under this Guaranty will
be in addition to and not in lieu of all other rights, powers and remedies given to RCTC, whether
at law, in equity or otherwise.
8. Notices. All demands, notices and other communications provided for under this
Guaranty shall, unless otherwise specifically provided herein, comply with Section 27.11.1 of the
Contract.
9. No Waiver. Any forbearance or failure to exercise, and any delay by RCTC in
exercising, any right, power or remedy under this Guaranty will not impair any such right, power
or remedy or be construed to be a waiver thereof, nor will it preclude the further exercise of any
such right, power or remedy.
10. Assignability. This Guaranty is binding upon and inures to the benefit of the
successors and assigns of Guarantor and RCTC, but is not assignable by Guarantor without the
prior written consent of RCTC, which consent may be granted or withheld in RCTC's sole
discretion. Any assignment by Guarantor effected in accordance with this Section 15 will not
relieve Guarantor of its obligations and liabilities under this Guaranty.
11. Amendments. No amendment of this Guaranty shall be effective unless in writing and
signed by Guarantor and RCTC. No waiver of any provision of this Guaranty nor consent to any
departure by Guarantor therefrom shall in any event be effective unless such waiver shall be in
writing and signed by RCTC. Any such waiver shall be effective only in the specific instance
and for the specific purpose for which it was given.
12. Captions. The captions in this Guaranty are for convenience only and shall not be
deemed part of this Guaranty or considered in construing this Guaranty.
13. Construction of Agreement. Ambiguities or uncertainties in the wording of this
Guaranty will not be construed for or against any party, but will be construed in the manner that
most accurately reflects the parties' intent as of the date hereof.
14. Representations and Warranties. In addition to the representations and warranties
with respect to solvency set forth in Section 17, Guarantor represents and warrants that:
a. it is a corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and qualified to do business and is in good standing under the
laws of the State of California;
b. it has full power, right and authority to execute, deliver and perform this
Guaranty;
c. the execution, delivery, and performance by Guarantor of this Guaranty have
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Exhibit 15
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been duly authorized by all necessary corporate action on the part of Guarantor and proof of
such authorization will be provided with the execution of this Guaranty;
d. this Guaranty has been duly executed and delivered and constitutes the legal,
valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its
terms;
e. neither the execution nor delivery of this Guaranty nor compliance with or
fulfillment of the terms, conditions, and provisions hereof, will conflict with, result in a material
breach or violation of the terms, conditions, or provisions of, or constitute a material default, an
event of default, or an event creating rights of acceleration, termination, or cancellation, or a
loss of rights under: (1) the certificate of incorporation or by-laws of Guarantor, (2) any
judgment, decree, order, contract, agreement, indenture, instrument, note, mortgage, lease,
governmental permit, or other authorization, right, restriction, or obligation to which Guarantor is
a party or any of its property is subject or by which Guarantor is bound, or (3) any federal, state,
or local law, statute, ordinance, rule or regulation applicable to Guarantor;
f. it now has and will continue to have full and complete access to any and all
information concerning the transactions contemplated by the Contract or referred to therein, the
financial status of the DB Contractor and the ability of the DB Contractor to pay and perform the
Guaranteed Obligations;
g. it has reviewed and approved copies of the Contract and is fully informed of the
remedies RCTC may pursue, with or without notice to the DB Contractor or any other Person, in
the event of default of any of the Guaranteed Obligations;
h. it has made and so long as the Guaranteed Obligations (or any portion thereof)
remain unsatisfied, it will make its own credit analysis of the DB Contractor and will keep itself
fully informed as to all aspects of the financial condition of the DB Contractor, the performance
of the Guaranteed Obligations and of all circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations. Guarantor hereby waives and relinquishes any
duty on the part of RCTC to disclose any matter, fact or thing relating to the business,
operations or conditions of the DB Contractor now known or hereafter known by ROTC;
i. no consent, authorization, approval, order, license, certificate, or permit or act of
or from, or declaration or filing with, any governmental authority or any party to any contract,
agreement, instrument, lease, or license to which Guarantor is a party or by which Guarantor is
bound, is required for the execution, delivery, or compliance with the terms hereof by Guarantor,
except as have been obtained prior to the date of this Guaranty;
j. there is no pending or, to the best of its knowledge, threatened action, suit,
proceeding, arbitration, litigation, or investigation of or before any Governmental Entity which
challenges the validity or enforceability of this Guaranty;
k. it is not subject to any outstanding judgment, rule, writ, injunction or decree of
any Governmental Entity that adversely affects its ability to perform its obligations under this
Guaranty; and
I. it derives a substantial direct or indirect economic benefit from the Contract.
15. Limitation by Law. All rights, remedies and powers provided in this Guaranty may be
exercised only to the extent that such exercise does not violate any applicable provision of law,
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Exhibit 15
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and all the provisions of this Guaranty are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent necessary so that they
will not render this Guaranty invalid, unenforceable, in whole or in part, or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
16. Bankruptcy; Post -Petition Interest; Reinstatement of Guaranty; Solvency.
a. The obligations of Guarantor under this Guaranty will not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of the DB Contractor or by any defense which the DB Contractor may have by
reason of the order, decree or decision of any court or administrative body resulting from any
such proceeding. RCTC is not obligated to file any claim relating to the Guaranteed Obligations
if the DB Contractor becomes subject to a bankruptcy, reorganization, or similar proceeding,
and the failure of RCTC so to file will not affect Guarantor's obligations under this Guaranty.
b. Guarantor acknowledges and agrees that any interest on any portion of the
Guaranteed Obligations which accrues after the commencement of any proceeding referred to
in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to
accrue by operation of law by reason of the commencement of said proceeding, such interest as
would have accrued on such portion of the Guaranteed Obligations if said proceedings had not
been commenced) will be included in the Guaranteed Obligations because it is the intention of
Guarantor and RCTC that the Guaranteed Obligations should be determined without regard to
any rule of law or order which may relieve the DB Contractor of any portion of such Guaranteed
Obligations. Guarantor will permit any trustee in bankruptcy, receiver, debtor in possession,
assignee for the benefit of creditors or any similar person to pay RCTC, or allow the claim of
RCTC in respect of, any such interest accruing after the date on which such proceeding is
commenced.
17. Governing Law. This Guaranty shall be governed by and construed in accordance with
the law of the State of California, without regard to conflict of law principles. The venue of any
court, judicial or referee proceeding under this Contract shall be in Riverside County, California,
unless changed by the judicial officer.
18. Attorneys' Fees. Guarantor agrees to pay to RCTC without demand reasonable
attorneys' fees and all costs and other expenses (whether by lawsuit or otherwise, and including
such fees and costs of litigation, arbitration and bankruptcy, and including appeals) incurred by
RCTC in enforcing, collecting or compromising any Guaranteed Obligation or enforcing or
collecting this Guaranty against Guarantor or in attempting to do any or all of the foregoing.
19. Joint and Several Liability. If the Guarantor is comprised of more than one individual
and/or entity, such individuals and/or entities, as applicable, shall be jointly and severally liable
for the Guaranteed Obligations. If more than one guaranty is executed with respect to the DB
Contractor and the Project, each guarantor under such a guaranty shall be jointly and severally
liable with the other guarantors with respect to the obligations guaranteed under such
guaranties.
20. Defenses. Notwithstanding any other provision to the contrary, Guarantor shall be
entitled to the benefit of all defenses available to the DB Contractor under the Contract except
(a) those expressly waived in this Guaranty, (b) failure of consideration, lack of authority of the
DB Contractor and any other defense to formation of the Contract, and (c) defenses available to
the DB Contractor under any federal or state law respecting bankruptcy, arrangement,
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Exhibit 15
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reorganization or similar relief of debtors. Action against Guarantor under this Guaranty shall be
subject to no prior notice or demand.
21. Entire Agreement. This Guaranty contains the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements, understandings,
statements, representations and negotiations between the parties with respect to their subject
matter.
22. Severability. If any clause, provision, section or part of this Guaranty is ruled invalid by
a court having proper jurisdiction, it will be adjusted rather than voided, to achieve the intent of
the parties. The invalidity or unenforceability of any such clause, provision, section or part shall
not affect the validity or enforceability of the balance of this Guaranty, which shall be construed
and enforced as if this Guaranty did not contain such invalid or unenforceable clause, provision,
section or part.
23. Additional Guarantor Waivers and Acknowledgements.
a. Guarantor hereby waives any and all defenses it might have that liquidated
damages or stipulated damages constitute a penalty or that they do not bear a reasonable
relation to the actual damages.
b. GUARANTOR ACKNOWLEDGES HAVING READ ALL OF THE PROVISIONS
OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, GUARANTOR
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON EXECUTION OF THIS
GUARANTY. NO FORMAL ACCEPTANCE BY RCTC IS NECESSARY TO MAKE THIS
GUARANTY EFFECTIVE. THIS GUARANTY IS EFFECTIVE AS OF THE DATE HEREOF.
[SIGNATURES ON NEXT PAGE]
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed and
delivered by its duly authorized officer effective as of this 22nd day of February 2017.
Skanska USA Civil Inc.
By:
Name: Jari Mantyla
Title: Chief Financial Officer
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 15
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EXHIBIT 16
LABOR CODE REQUIREMENTS
A. Worker's Compensation
DB Contractor shall comply with the provisions of Section 3700 of the California Labor Code
which require every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that Code.
B. Prevailing Wages
Pursuant to the provisions of Section 1773 of the State Labor Code, RCTC has obtained the
general prevailing rate of wages (which rate includes employer payments for health and welfare,
pension, vacation, travel time and subsistence pay as provided for in Section 1773.1 of said
Code, apprenticeship or other training programs authorized by Section 3093 of said Code,
worker protection and assistance programs or committees established under the Federal Labor
Management Cooperation Act of 1978, industry advancement and collective bargaining
agreements administrative fees, provided that these payments are required under a collective
bargaining agreement pertaining to the particular craft, classification, or type of work within the
locality or the nearest labor market area at issue and other similar purposes applicable to the
Work to be done, for straight time, overtime, Saturday, Sunday, and holiday work. The holiday
wage rate listed shall be applicable to all holidays recognized in the collective bargaining
agreement of the particular craft, classification or type of worker concerned; provided that if the
prevailing wage rate is not based on a collectively bargained rate, the holidays upon which the
prevailing rate shall be paid shall be as provided in Section 6700 of the California Government
Code. Copies of the prevailing rates of wages are on file at RCTC's offices, and will be
furnished to DB Contractor and other interested parties on request. For crafts or classifications
not shown on the prevailing wage determinations, DB Contractor may be required to pay the
wage rate of the most closely related craft or classification shown in such determinations for
design -build work.
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 Department of
Industrial Relations (DIR) for similar classifications of labor, DB Contractor shall pay and cause
its Subcontractors to 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 rate
determinations do not contain the State wage rate determination otherwise available for use by
the DB Contractor and Subcontractors, the DB Contractor shall pay and cause its
subcontractors to pay not less than the Federal minimum wage rate which most closely
approximates the duties of the employees in question.
If the Division of Labor Standards Enforcement determines that employees of any Subcontractor
were not paid the general prevailing rate of per diem wages, DB Contractor shall withhold an
amount of moneys due to the Subcontractor sufficient to pay those employees the general
prevailing wage rate of per diem wages if requested by the Division of Labor Standards
Enforcement. DB Contractor shall pay any money retained from and owed such Subcontractor
upon receipt of notification by the Division of Labor Standards Enforcement that the wage
complaint has been resolved. Pursuant to Section 1773.2 of the Labor Code, DB Contractor
shall post prevailing wage rates at a prominent place at the Site.
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1-15 Express Lanes Project
Exhibit 16
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C. Hours of Work
Eight hours labor constitutes a legal day's work.
D. Apprenticeship
DB Contractor shall comply with the provisions of Labor Code Sections 1777.5 and 1777.6, and
Title 8, Code of Regulations, Sections 200 et. seq., relating to apprentice employment and
training. DB Contractor shall assume full responsibility for compliance with said sections with
respect to all apprenticeable occupations on the Project. To ensure compliance and complete
understanding of the law regarding apprentices, and specifically the required ratio thereunder,
DB Contractor should, where some question exists, contact the Division of Apprenticeship
Standards, Los Angeles Office, 320 West 4th Street, Suite 830, Los Angeles, CA 90013, prior to
commencement of the Work.
E. Specific Labor Code Provisions
DB Contractor's attention is directed to the following requirements of the Labor Code. A copy of
each such Code section (except 1810, 1811 and 1812) shall be included in each Subcontract
hereunder:
Labor Code Section 1725.5
1725.5. A contractor shall be registered pursuant to this section to be qualified to bid on,
be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract
Code, or engage in the performance of any public work contract that is subject to the
requirements of this chapter. For the purposes of this section, "contractor" includes a
subcontractor as defined by Section 1722.1.
(a) To qualify for registration under this section, a contractor shall do all of the following:
(1) Beginning July 1, 2014, register with the Department of Industrial Relations in the
manner prescribed by the department and pay an initial nonrefundable application fee of three
hundred dollars ($300) to qualify for registration under this section and an annual renewal fee
on or before July 1 of each year thereafter. The annual renewal fee shall be in a uniform amount
set by the Director of Industrial Relations, and the initial registration and renewal fees may be
adjusted no more than annually by the director to support the costs specified in Section 1771.3.
(2) Provide evidence, disclosures, or releases as are necessary to establish all of the
following:
(A) Workers' Compensation coverage that meets the requirements of Division 4
(commencing with Section 3200) and includes sufficient coverage for any worker whom the
contractor employs to perform work that is subject to prevailing wage requirements other than a
contractor who is separately registered under this section. Coverage may be evidenced by a
current and valid certificate of workers' compensation Insurance or certification of self-insurance
required under Section 7125 of the Business and Professions Code.
(B) If applicable, the contractor is licensed in accordance with Chapter 9 (commencing
with Section 7000) of the Business and Professions Code.
(C) The contractor does not have any delinquent liability to an employee or the state for
any assessment of back wages or related damages, interest, fines, or penalties pursuant to any
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1-15 Express Lanes Project
Exhibit 16
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final judgment, order, or determination by a court or any federal, state, or local administrative
agency, including a confirmed arbitration award. However, for purposes of this paragraph, the
contractor shall not be disqualified for any judgment, order, or determination that is under
appeal, provided that the contractor has secured the payment of any amount eventually found
due through a bond or other appropriate means.
(D) The contractor is not currently debarred under Section 1777.1 or under any other
federal or state law providing for the debarment of contractors from public works.
(E) The contractor has not bid on a public works contract, been listed in a bid proposal,
or engaged in the performance of a contract for public works without being lawfully registered in
accordance with this section, within the preceding 12 months or since the effective date of the
requirements set forth in subdivision (e), whichever is earlier. If a contractor is found to be in
violation of the requirements of this paragraph, the period of disqualification shall be waived if
both of the following are true:
(i) The contractor has not previously been found to be in violation of the requirements of
this paragraph within the preceding 12 months.
(ii) The contractor pays an additional nonrefundable penalty registration fee of two
thousand dollars ($2,000).
(b) Fees received pursuant to this section shall be deposited in the State Public Works
Enforcement Fund established by Section 1771.3 and shall be used only for the purposes
specified in that section.
(c) A contractor who fails to pay the renewal fee required under paragraph (1) of
subdivision (a) on or before the expiration of any prior period of registration shall be prohibited
from bidding on or engaging in the performance of any contract for public work until once again
registered pursuant to this section. If the failure to pay the renewal fee was inadvertent, the
contractor may renew its registration retroactively by paying an additional nonrefundable penalty
renewal fee equal to the amount of the renewal fee within 90 days of the due date of the
renewal fee.
(d) If, after a body awarding a contract accepts the contractor's bid or awards the
contract, the work covered by the bid or contract is determined to be a public work to which
Section 1771 applies, either as the result of a determination by the director pursuant to Section
1773.5 or a court decision, the requirements of this section shall not apply, subject to the
following requirements:
(1) The body that awarded the contract failed, in the bid specification or in the contract
documents, to identify as a public work that portion of the work that the determination or
decision subsequently classifies as a public work.
(2) Within 20 days following service of notice on the awarding body of a determination by
the Director of Industrial Relations pursuant to Section 1773.5 or a decision by a court that the
contract was for public work as defined in this chapter, the contractor and any subcontractors
are registered under this section or are replaced by a contractor or subcontractors who are
registered under this section.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
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(3) The requirements of this section shall apply prospectively only to any subsequent
bid, bid proposal, contract, or work performed after the awarding body is served with notice of
the determination or decision referred to in paragraph (2) of this subdivision.
(e) The requirements of this section shall apply to any bid proposal submitted on or after
March 1, 2015, and any contract for public work, as defined in this chapter, entered into on or
after April 1, 2015.
Labor Code Section 1771
1771. Except for public works projects of one thousand dollars ($1,000) or less, not less
than the general prevailing rate of per diem wages for work of a similar character in the locality
in which the public work is performed, and not less than the general prevailing rate of per diem
wages for holiday and overtime work fixed as provided in this chapter, shall be paid to all
workers employed on public works.
This section is applicable to contracts let for maintenance work.
Labor Code Section 1775
1775. (a) (1) The contractor and any subcontractor under the contractor shall, as a
penalty to the state or political subdivision on whose behalf the contract is made or awarded,
forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for
each worker paid less than the prevailing wage rates as determined by the director for the work
or craft in which the worker is employed for any public work done under the contract by the
contractor or, except as provided in subdivision (b), by any subcontractor under the contractor.
(2) (A) The amount of the penalty shall be determined by the Labor Commissioner based
on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per
diem wages was a good faith mistake and, if so, the error was promptly and voluntarily
corrected when brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its
prevailing wage obligations.
(B) (i) The penalty may not be less than forty dollars ($40) for each calendar day, or
portion thereof, for each worker paid less than the prevailing wage rate, unless the failure of the
contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake
and, if so, the error was promptly and voluntarily corrected when brought to the attention of the
contractor or subcontractor.
(ii) The penalty may not be less than eighty dollars ($80) for each calendar day, or
portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or
subcontractor has been assessed penalties within the previous three years for failing to meet its
prevailing wage obligations on a separate contract, unless those penalties were subsequently
withdrawn or overturned.
(iii) The penalty may not be less than one hundred twenty dollars ($120) for each
calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the
Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of
Section 1777.1.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
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(C) If the amount due under this section is collected from the contractor or subcontractor,
any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 against that contractor or subcontractor shall be satisfied before applying that amount
to the penalty imposed on that contractor or subcontractor pursuant to this section.
(D) The determination of the Labor Commissioner as to the amount of the penalty shall
be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid to each
worker for each calendar day or portion thereof for which each worker was paid less than the
prevailing wage rate shall be paid to each worker by the contractor or subcontractor, and the
body awarding the contract shall cause to be inserted in the contract a stipulation that this
section will be complied with.
(b) If a worker employed by a subcontractor on a public works project is not paid the
general prevailing rate of per diem wages by the subcontractor, the prime contractor of the
project is not liable for any penalties under subdivision (a) unless the prime contractor had
knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to
those workers or unless the prime contractor fails to comply with all of the following
requirements:
(1) The contract executed between the contractor and the subcontractor for the
performance of work on the public works project shall include a copy of the provisions of
Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general prevailing rate of
per diem wages by the subcontractor to the employees, by periodic review of the certified
payroll records of the subcontractor.
(3) Upon becoming aware of the failure of the subcontractor to pay his or her workers
the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt
or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor
for work performed on the public works project.
(4) Prior to making final payment to the subcontractor for work performed on the public
works project, the contractor shall obtain an affidavit signed under penalty of perjury from the
subcontractor that the subcontractor has paid the specified general prevailing rate of per diem
wages to his or her employees on the public works project and any amounts due pursuant to
Section 1813.
(c) The Division of Labor Standards Enforcement shall notify the contractor on a public
works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a
complaint of the failure of a subcontractor on that public works project to pay workers the
general prevailing rate of per diem wages.
Labor Code Section 1776
1776. (a) Each contractor and subcontractor shall keep accurate payroll records,
showing the name, address, social security number, work classification, straight time and
overtime hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by him or her in connection with
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
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the public work. Each payroll record shall contain or be verified by a written declaration that it is
made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct.
(2) The employer has complied with the requirements of Sections 1771, 1811, and 1815
for any work performed by his or her employees on the public works project.
(b) The payroll records enumerated under subdivision (a) shall be certified and shall be
available for inspection at all reasonable hours at the principal office of the contractor on the
following basis:
(1) A certified copy of an employee's payroll record shall be made available for
inspection or furnished to the employee or his or her authorized representative on request.
(2) A certified copy of all payroll records enumerated in subdivision (a) shall be made
available for inspection or furnished upon request to a representative of the body awarding the
contract, the Division of Labor Standards Enforcement, and the Division of Apprenticeship
Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subdivision (a) shall be made
available upon request by the public for inspection or for copies thereof. However, a request by
the public shall be made through either the body awarding the contract, the Division of
Apprenticeship Standards, or the Division of Labor Standards Enforcement. If the requested
payroll records have not been provided pursuant to paragraph (2), the requesting party shall,
prior to being provided the records, reimburse the costs of preparation by the contractor,
subcontractors, and the entity through which the request was made. The public may not be
given access to the records at the principal office of the contractor.
(c) Unless required to be furnished directly to the Labor Commissioner in accordance
with paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on
forms provided by the Division of Labor Standards Enforcement or shall contain the same
information as the forms provided by the division. The payroll records may consist of printouts of
payroll data that are maintained as computer records, if the printouts contain the same
information as the forms provided by the division and the printouts are verified in the manner
specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in
subdivision (a) with the entity that requested the records within 10 days after receipt of a written
request.
(e) Except as provided in subdivision (f), any copy of records made available for
inspection as copies and furnished upon request to the public or any public agency by the
awarding body or the Division of Labor Standards Enforcement shall be marked or obliterated to
prevent disclosure of an individual's name, address, and social security number. The name and
address of the contractor awarded the contract or the subcontractor performing the contract
shall not be marked or obliterated. Any copy of records made available for inspection by, or
furnished to, a multiemployer Taft -Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) that requests the
records for the purposes of allocating contributions to participants shall be marked or obliterated
only to prevent disclosure of an individual's full social security number, but shall provide the last
four digits of the social security number. Any copy of records made available for inspection by,
or furnished to, a joint labor-management committee established pursuant to the federal Labor
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Exhibit 16
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Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only
to prevent disclosure of an individual's social security number.
(f)(1) Notwithstanding any other provision of law, agencies that are included in the Joint
Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of
the Unemployment Insurance Code and other law enforcement agencies investigating violations
of law shall, upon request, be provided nonredacted copies of certified payroll records. Any
copies of records or certified payroll made available for inspection and furnished upon request
to the public by an agency included in the Joint Enforcement Strike Force on the Underground
Economy or to a law enforcement agency investigating a violation of law shall be marked or
redacted to prevent disclosure of an individual's name, address, and social security number.
(2) An employer shall not be liable for damages in a civil action for any reasonable
act or omission taken in good faith in compliance with this subdivision.
(g) The contractor shall inform the body awarding the contract of the location of the
records enumerated under subdivision (a), including the street address, city, and county, and
shall, within five working days, provide a notice of a change of location and address.
(h) The contractor or subcontractor has 10 days in which to comply subsequent to
receipt of a written notice requesting the records enumerated in subdivision (a). In the event that
the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a
penalty to the state or political subdivision on whose behalf the contract is made or awarded,
forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker,
until strict compliance is effectuated. Upon the request of the Division of Apprenticeship
Standards or the Division of Labor Standards Enforcement, these penalties shall be withheld
from progress payments then due. A contractor is not subject to a penalty assessment pursuant
to this section due to the failure of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations
to effectuate this section.
(j) The director shall adopt rules consistent with the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)
and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of
Division 3 of the Civil Code) governing the release of these records, including the establishment
of reasonable fees to be charged for reproducing copies of records required by this section.
Regulations implementing Labor Code Section 1776 are located in Sections 16000, 16400,
16401, 16402, 16403, and 16500 of Title 8, California Code of Regulations.
Labor Code Section 1777.5
1777.5. (a) Nothing in this chapter shall prevent the employment of properly registered
apprentices upon public works.
(b) Every apprentice employed upon public works shall be paid the prevailing rate of per
diem wages for apprentices in the trade to which he or she is registered and shall be employed
only at the work of the craft or trade to which he or she is registered.
(c) Only apprentices, as defined in Section 3077, who are in training under
apprenticeship standards that have been approved by the Chief of the Division of
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
Page 7 of 12
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Labor Code Requirements
March 16, 2017
i n.znQa7 „�o
Apprenticeship Standards and who are parties to written apprentice agreements under Chapter
4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice
wage rate on public works. The employment and training of each apprentice shall be in
accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is
training.
(2) The rules and regulations of the California Apprenticeship Council.
(d) When the contractor to whom the contract is awarded by the state or any political
subdivision, in performing any of the work under the contract, employs workers in any
apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set
forth in this Section and may apply to any apprenticeship program in the craft or trade that can
provide apprentices to the site of the public work for a certificate approving the contractor under
the apprenticeship standards for the employment and training of apprentices in the area or
industry affected. However, the decision of the apprenticeship program to approve or deny a
certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship
program or programs, upon approving the contractor, shall arrange for the dispatch of
apprentices to the contractor. A contractor covered by an apprenticeship program's standards
shall not be required to submit any additional application in order to include additional public
works contracts under that program.
"Apprenticeable craft or trade," as used in this section, means a craft or trade
determined as an apprenticeable occupation in accordance with rules and regulations
prescribed by the California Apprenticeship Council. As used in this section, "contractor"
includes any subcontractor under a contractor who performs any public works not excluded by
subdivision (o).
(e) Prior to commencing work on a contract for public works, every contractor shall
submit contract award information to an applicable apprenticeship program that can supply
apprentices to the site of the public work. The information submitted shall include an estimate
of journeyman hours to be performed under the contract, the number of apprentices proposed to
be employed, and the approximate dates the apprentices would be employed. A copy of this
information shall also be submitted to the awarding body if requested by the awarding body.
Within 60 days after concluding work on the contract, each contractor and subcontractor
shall submit to the awarding body, if requested, and to the apprenticeship program a verified
statement of the journeyman and apprentice hours performed on the contract. The information
under this subdivision shall be public. The apprenticeship programs shall retain this information
for 12 months.
(f) The apprenticeship program that can supply apprentices to the area of the site of the
public work shall ensure equal employment and affirmative action in apprenticeship for women
and minorities.
(g) The ratio of work performed by apprentices to journeymen employed in a particular
craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship
standards under which the apprenticeship program operates where the contractor agrees to be
bound by those standards, but, except as otherwise provided in this section, in no case shall the
ratio be less than one hour of apprentice work for every five hours of journeyman work.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
Page 8 of 12
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Labor Code Requirements
March 16, 2017
i n.znQa7 „�o
(h) This ratio of apprentice work to journeyman work shall apply during any day or
portion of a day when any journeyman is employed at the jobsite and shall be computed on the
basis of the hours worked during the day by journeymen so employed. Any work performed by
a journeyman in excess of eight hours per day or 40 hours per week shall not be used to
calculate the ratio. The contractor shall employ apprentices for the number of hours computed
as above before the end of the contract or, in the case of a subcontractor, before the end of the
subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ
apprentices during the same time period that the journeymen in the same craft or trade are
employed at the jobsite. Where an hourly apprenticeship ratio is not feasible for a particular
craft or trade, the Chief of the Division of Apprenticeship Standards, upon application of an
apprenticeship program, may order a minimum ratio of not less than one apprentice for each
five journeymen in a craft or trade classification.
(i) A contractor covered by this Section that has agreed to be covered by an
apprenticeship program's standards upon the issuance of the approval certificate, or that has
been previously approved for an apprenticeship program in the craft or trade, shall employ the
number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable
apprenticeship standards, but in no event less than the 1-to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a
particular craft or trade in the state on all of his or her contracts on an annual average of not
less than one hour of apprentice work for every five hours of labor performed by journeymen,
the Chief of the Division of Apprenticeship Standards may grant a certificate exempting the
contractor from the 1-to-5 hourly ratio, as set forth in this Section for that craft or trade.
(k) An apprenticeship program has the discretion to grant to a participating contractor or
contractor association a certificate, which shall be subject to the approval of the Administrator of
Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this Section when it
finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average
of 15 percent.
(2) The number of apprentices in training in the area exceeds a ratio of 1 to 5.
(3) There is a showing that the apprenticeable craft or trade is replacing at least one -
thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis
or on a local basis.
(4) Assignment of an apprentice to any work performed under a public works contract
would create a condition that would jeopardize his or her life or the life, safety, or property of
fellow employees or the public at large, or the specific task to which the apprentice is to be
assigned is of a nature that training cannot be provided by a journeyman.
(I) When an exemption is granted pursuant to subdivision (k) to an organization that
represents contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the
member contractors shall not be required to submit individual applications for approval to local
joint apprenticeship committees, if they are already covered by the local apprenticeship
standards.
(m) (1) A contractor to whom a contract is awarded, who, in performing any of the work
under the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
Page 9 of 12
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Labor Code Requirements
March 16, 2017
i n.znQa7 „�o
contribute to the California Apprenticeship Council the same amount that the director
determines is the prevailing amount of apprenticeship training contributions in the area of the
public works site. A contractor may take as a credit for payments to the council any amounts
paid by the contractor to an approved apprenticeship program that can supply apprentices to
the site of the public works project. The contractor may add the amount of the contributions in
computing his or her bid for the contract.
(2) At the conclusion of the 2002-03 fiscal year and each fiscal year thereafter, the
California Apprenticeship Council shall distribute training contributions received by the council
under this subdivision, less the expenses of the Division of Apprenticeship Standards for
administering this subdivision, by making grants to approved apprenticeship programs for the
purpose of training apprentices. The funds shall be distributed as follows:
(A) If there is an approved multiemployer apprenticeship program serving the same craft
or trade and geographic area for which the training contributions were made to the council, a
grant to that program shall be made.
(B) If there are two or more approved multiemployer apprenticeship programs serving
the same craft or trade and geographic area for which the training contributions were made to
the council, the grant shall be divided among those programs based on the number of
apprentices registered in each program.
(C) All training contributions not distributed under subparagraphs (A) and (B) shall be
used to defray the future expenses of the Department of Industrial Relations for the
administration and enforcement of apprenticeship standards and requirements under this code.
(3) All training contributions received pursuant to this subdivision shall be deposited in
the Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury.
Upon appropriation by the Legislature, all moneys in the Apprenticeship Training Contribution
Fund shall be used for the purpose of carrying out this subdivision and to pay the expenses of
the Department of Industrial Relations.
(n) The body awarding the contract shall cause to be inserted in the contract stipulations
to effectuate this section. The stipulations shall fix the responsibility of compliance with this
Section for all apprenticeable occupations with the prime contractor.
(o) This Section does not apply to contracts of general contractors or to contracts of
specialty contractors not bidding for work through a general or prime contractor when the
contracts of general contractors or those specialty contractors involve less than thirty thousand
dollars ($30,000).
(p) An awarding body that implements an approved labor compliance program in
accordance with subdivision (b) of Section 1771.5 may, with the approval of the director, assist
in the enforcement of this section under the terms and conditions prescribed by the director.
3081.
All decisions of an apprenticeship program under this Section are subject to Section
Labor Code Section 1810
1810. Eight hours labor constitutes a legal day's work in all cases where the same is
performed under the authority of any law of this State, or under the direction, or control, or by
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
Page 10 of 12
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Labor Code Requirements
March 16, 2017
i n.znQa7 „�o
the authority of any officer of this State acting in his official capacity, or under the direction, or
control or by the authority of any municipal corporation, or of any officer thereof. A stipulation to
that effect shall be made a part of all contracts to which the State or any municipal corporation
therein is a party.
Labor Code Section 1811
1811. The time of service of any workman employed upon public work is limited and
restricted to 8 hours during any one calendar day, and 40 hours during any one calendar week,
except as hereinafter provided for under Section 1815.
Labor Code Section 1812
1812. Every contractor and subcontractor shall keep an accurate record showing the
name of and actual hours worked each calendar day and each calendar week by each worker
employed by him or her in connection with the public work. The record shall be kept open at all
reasonable hours to the inspection of the awarding body and to the Division of Labor Standards
Enforcement.
Labor Code Section 1813
1813. The contractor or subcontractor shall, as a penalty to the state or political
subdivision on whose behalf the contract is made or awarded, forfeit twenty-five dollars ($25) for
each worker employed in the execution of the contract by the respective contractor or
subcontractor for each calendar day during which the worker is required or permitted to work
more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation
of the provisions of this article. In awarding any contract for public work, the awarding body shall
cause to be inserted in the contract a stipulation to this effect. The awarding body shall take
cognizance of all violations of this article committed in the course of the execution of the
contract, and shall report them to the Division of Labor Standards Enforcement.
Labor Code Section 1815
1815. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code,
and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said
sections, work performed by employees of contractors in excess of 8 hours per day, and 40
hours during any one week, shall be permitted upon public work upon compensation for all
hours worked in excess of 8 hours per day at not less than 11/2 times the basic rate of pay.
F. Labor Nondiscrimination
DB Contractor's attention is directed to Section 1735 of the Labor Code, which reads as follows:
"A contractor shall not discriminate in the employment of persons upon public works on
any basis listed in subdivision (a) of Section 12940 of the Government Code, as those
bases are defined in Sections 12926 and 12926.1 of the Government Code, except as
otherwise provided in Section 12940 of the Government Code. Every contractor for
public works who violates this section is subject to all the penalties imposed for a
violation of this chapter."
DB Contractor's attention is directed to the following "Nondiscrimination Clause" that is required
by Chapter 5 of Division 4 of Title 2, California Code of Regulations.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
Page 11 of 12
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Labor Code Requirements
March 16, 2017
i n.znQa7 „�o
Nondiscrimination Clause
1. During the performance of this contract, contractor and its subcontractors shall not
unlawfully discriminate against any employee or applicant for employment because of race,
religion, color, national origin, ancestry, physical handicap, medical condition, marital status,
age (over 40) or sex. Contractors and subcontractors shall insure that the evaluation and
treatment of their employees and applicants for employment are free of such discrimination.
Contractors and subcontractors shall comply with the provisions of the Fair Employment and
Housing Act (Gov. Code, Section 12900 et seq.) and the applicable regulations promulgated
thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.). The applicable regulations of the
Fair Employment and Housing Commission implementing Government Code, Section 12990,
set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are
incorporated into this contract by reference and made a part hereof as if set forth in full.
Contractor and its subcontractors shall give written notice of their obligations under this clause
to labor organizations with which they have a collective bargaining or other agreement.
2. This Contractor shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under the contract.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 16
Page 12 of 12
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Labor Code Requirements
March 16, 2017
i n.znQa7 „�o
EXHIBIT 17
MAXIMUM PAYMENT SCHEDULE
Number of
Months after
NTP2
Proposed Monthly
Draw
Proposed Maximum
Payment Schedule
1
$8,748,055.56
$8,748,055.56
2
$3,955,000.00
$12,703,055.56
3
$4,288,333.33
$16,991,388.89
4
$4,288,333.33
$21,279,722.22
5
$6,342,500.00
$27,622,222.22
6
$7,049,396.55
$34,671,618.77
7
$6,491,063.22
$41,162,681.99
8
$8,203,834.96
$49,366,516.95
9
$8,203,834.96
$57,570,351.91
10
$8,202,446.07
$65,772,797.98
11
$9,725,362.74
$75,498,160.71
12
$9,725,362.74
$85,223,523.45
13
$8,033,696.07
$93,257,219.52
14
$8,033,696.07
$101,290,915.58
15
$8,033,696.07
$109,324,611.65
16
$8,367,029.40
$117,691,641.05
17
$8,367,029.40
$126,058,670.46
18
$8,367,029.40
$134,425,699.86
19
$8,367,029.40
$142,792,729.26
20
$8,367,029.40
$151,159,758.66
21
$9,992,029.40
$161,151,788.06
22
$7,454,529.40
$168,606,317.47
23
$7,454,529.40
$176,060,846.87
24
$7,298,279.40
$183,359,126.27
25
$7,298,279.40
$190,657,405.67
26
$7,631,612.74
$198,289,018.41
27
$4,090,640.51
$202,379,658.92
28
$4,090,640.51
$206,470,299.43
29
$4,090,640.51
$210,560,939.95
30
$4,090,640.51
$214,651,580.46
31
$2,687,452.11
$217,339,032.57
32
$2,687,452.11
$220,026,484.67
33
$5,224,952.11
$225,251,436.78
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 17
Page 1 of 2
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Maximum Payment Schedule
March 16, 2017
i n.znQa7 „�o
34
$2,687,452.11
$227,938,888.89
35
$1,980,555.56
$229,919,444.44
36
$1,980,555.56
$231,900,000.00
37
$231,900,000.00
Total
$231,900,000.00
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 17
Page 2 of 2
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Maximum Payment Schedule
March 16, 2017
i n.znQa7 „�o
EXHIBIT 18
FORM OF REQUEST FOR CHANGE ORDER
CHANGE ORDER REQUEST NO.
SECTION I:
Name:
Title:
CONTRACT NO.
Date:
Company Name:
Description:
Additions/Deletions/Modifications to Contract requirements:
Contract Requirement: Addition/Deletion/Modification:
Scope:
Reason for Request for Change Order:
Is this Request for Change Order for a RCTC-Directed Change?
❑ Yes ❑ No
Please Explain:
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 18
Page 1 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Request for Change Order
March 16, 2017
i n.znQa7 „�o
Riverside County Transportation Commission
1-15 Express Lanes Project
DB Contractor Project Manager
Date:
Exhibit 18
Page 2 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Request for Change Order
March 16, 2017
i n.znQa7 „�o
SECTION II: COST ESTIMATE
The total cost estimate of this Change Order is $ . Documentation supporting
this Request for Change Order is attached as Exhibits through
Payment Schedule Items Added/Deducted:
Activity No.:
Description: Amount:
This Request for Change Order is for (check the applicable categories below):
A lump sum, negotiated price Change Order (provide information in Section II.A below)
A unit price/quantities Change Order (provide information in Section II.B below)
A Time and Materials Change Order (provide information in Section II.0 below)
SECTION II.A:
Lump sum price is $
Section II.B:
UNIT PRICE ITEM
UNIT PRICE
QUANTITY
PRICE
(Unit Price x
Quantity)
Total of all items in above Table: $
SECTION II.C: (REFERENCE CONTRACT EXHIBIT 3, MODIFIED STANDARD
SPECIFICATIONS, 9-1.04 FOR GUIDANCE)
Summary of Request for Change Order by Categories: [Additives/(Credits)]
A. DB Contractor Labor (construction)
1. Wages $
2. Labor benefits (% of A.1) $
3. Subsistence and travel for craft labor $
4. Employer payment to supervisors $
B. DB Contractor and Subcontractor Labor (professional services)
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 18
Page 3 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Request for Change Order
March 16, 2017
i n.znQa7 „�o
1. Wages (Raw) $
2. Labor benefits (150% of B.1, which includes
overhead and profit) $
3. Off -duty peace officers and patrol
cruisers $
C. Materials (with taxes, freight and discounts) $
D. Equipment' $
E. Subcontracts (Time and Materials cost) $
F. Utility Direct Costs $
G. Overhead and Profit
1. Labor (35% of A) $
2. Traffic Control (5% of B.3) $
3. Materials (15% of C) $
4. Subcontracts (5% of E) $
5. Utility Direct Costs (5% of F) $
H. Grand Total $
Subcontractor quotes are attached as Exhibits through in
accordance with Section 16.3.3 of the Contract. [To be provided to the extent work is to be
performed by Subcontractors.]
SECTION III: DELAY ANALYSIS
The status of Substantial Completion is as follows:
❑ Unaffected by this Request for Change Order
❑ Affected by (increasing) (decreasing) the date of Substantial Completion by
calendar days.
❑ Affected by (increasing) (decreasing) the Float by calendar days.
The status of Project Completion is as follows:
❑ Unaffected by this Request for Change Order
❑ Affected by (increasing) (decreasing) the date of Project Completion by
calendar days.
❑ Affected by (increasing) (decreasing) the Float by calendar days.
The status of Final Acceptance is as follows:
❑ Unaffected by this Request for Change Order
❑ Affected by (increasing) (decreasing) the date of Final Acceptance by
calendar days.
❑ Affected by (increasing) (decreasing) the Float by calendar days.
Enter full compensation amount including markup for type of equipment per Contract Exhibit 2,
Section 9-1.04D(2) through 9-1.04D(5)
Riverside County Transportation Commission Exhibit 18
1-15 Express Lanes Project Page 4 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Request for Change Order
March 16, 2017
i n.znQa7 „�o
Accordingly, the summary of the dates of Substantial Completion, Project Completion and Final
Acceptance and Float are as follows:
1. Substantial Completion:
(+ or - days from base of
calendar days after NTP2)
2. Project Completion:
(+ or - days from base of calendar days after NTP2)
3. Final Acceptance:
(+ or - days from base of calendar days after NTP2)
4. Number of days of Project Float
A Delay Analysis Report is attached as Exhibit in accordance with Sections 16.4.3(a)(v)
and 16.5.1(b)(iii) of the Contract. [To be provided to the extent that DB Contractor is
claiming an event, situation or change affects a Critical Path.]
SECTION IV: JUSTIFICATION
Justification for this Request for Change Order with reference to the Contract and in accordance
with Section 16.4.3(a)(i) of the Contract:
SECTION V: CERTIFICATION
Each Request for Change Order shall contain the following certification:
I, , the Authorized Representative of DB Contractor, hereby certify under
penalty of perjury that the above four sections represent a true, accurate and complete
summary of all aspects of this Request for Change Order, and that (a) the amount of time
and/or compensation requested is justified as to entitlement and amount, (b) the amount of time
and/or compensation requested includes all known and anticipated impacts or amounts, direct,
indirect and consequential, which have been or may be incurred as a result of the event,
occurrence or matter giving rise to the proposed change (and includes all Subcontractor and
Supplier amounts), and (c) the cost and pricing data forming the basis for this Request for
Change Order is complete, accurate and current.
If the foregoing Request for Change Order includes claims of Subcontractors or Suppliers, the
undersigned certifies that I have reviewed such claims and have determined in good faith that
the claims are justified as to both entitlement and amount, and that any Subcontractor pricing
data required to be provided has been provided in accordance with Section 25.2 of the Contract.
Riverside County Transportation Commission
1-15 Express Lanes Project
DB Contractor Authorized Representative
Date:
Exhibit 18
Page 5 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Request for Change Order
March 16, 2017
i n.znQa7 „�o
Any pricing data provided by a Subcontractor in connection with a Request for Change Order
shall include the certification required to be provided by Subcontractor under Section 25.2 of the
Contract.
SECTION VI: REVIEWED BY
Comments:
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 18
Page 6 of 6
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Request for Change Order
March 16, 2017
i n.znQa7 „�o
EXHIBIT 19
GP LANE CLOSURE CHARGES
In accordance with Contract Section 20.2.2(a), Permitted GP Lane Closures at the locations and
during the periods identified in TP Attachment 18-1 shall be at no charge to DB Contractor
provided the Lane Closure complies with the requirements for Lane Closures set forth in the
Contract.
For Unpermitted GP Lane Closures, the applicable GP Lane Closure Charges shall consist of
liquidated damages determined as follows:
Type of facility
Route
Direction or
segment
Period
GP Lane Closure
Charges
prior to the Revenue
Service
Commencement
Date
GP Lane Closure
Charges
/from the Revenue
Service
Commencement
Date and for the
remainder of the
Warranty Period
Mainline
15
NB 34.70-41.97
1st half hour
2nd half hour
2nd hour and beyond
$3650/10 minutes
$4975/10 minutes
$5300/10 minutes
$2650/10 minutes
$3975/10 minutes
$5300/10 minutes
Mainline
15
NB 41.97-43.62
1st half hour
2nd half hour
2nd hour and beyond
$2400/10 minutes
$3100/10 minutes
$2800/10 minutes
$1400/10 minutes
$2100/10 minutes
$2800/10 minutes
Mainline
15
NB 43.62-51.36
1st half hour
2nd half hour
2nd hour and beyond
$3150/10 minutes
$4225/10 minutes
$4300/10 minutes
$2150/10 minutes
$3225/10 minutes
$4300/10 minutes
Mainline
15
NB 51.36-SBd
1.30
1st half hour
2nd half hour
2nd hour and beyond
$3500/10 minutes
$4750/10 minutes
$5000/10 minutes
$2500/10 minutes
$3750/10 minutes
$5000/10 minutes
Mainline
15
SB 34.70-38.06
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 38.06-41.25
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 41.25-41.85
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 41.85-43.50
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000/10 minutes
Mainline
15
SB 43.50-51.77
1st half hour
2nd half hour
2nd hour and beyond
$1950/10 minutes
$2425/10 minutes
$1900/10 minutes
$950/10 minutes
$1425/10 minutes
$1900/10 minutes
Mainline
15
SB 51.77-SBd
1.30
1st half hour
2nd half hour
2nd hour and beyond
$2850/10 minutes
$3775/10 minutes
$3700/10 minutes
$1850/10 minutes
$2775/10 minutes
$3700/10 minutes
Mainline
91
EB 6.34-9.18
1st half hour
2nd half hour
2nd hour and beyond
$2750/10 minutes
$3625/10 minutes
$3500/10 minutes
$1750/10 minutes
$2625/10 minutes
$3500/10 minutes
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 19 RFP Number: 16-31-057-00
Page 1 of 2Draft Execution Version - Design -Build Contract Appendices
GP Lane Closure Charges
March 16, 2017
10308675.v32
Mainline
91
WB 6.34-9.18
1st half hour
2nd half hour
2nd hour and beyond
$3500/10 minutes
$4750/10 minutes
$5000/10 minutes
$2500/10 minutes
$3750/10 minutes
$5000/10 minutes
Connector
15
SB 15 on from
WB 91
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000 /10 minutes
$1000/10 minutes
Connector
15
NB 15 off to
Wg/Eg
91
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2125/10 minutes
$1500/10 minutes
$1000/10 minutes
$1125 /10 minutes
$1500/10 minutes
Connector
15
NB 15 off to WB
60
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000 /10 minutes
$1000/10 minutes
Connector
15
NB 15 on from
WB
60
1st half hour
2nd half hour
2nd hour and beyond
$2000/10 minutes
$2000/10 minutes
$1000/10 minutes
$1000/10 minutes
$1000 /10 minutes
$1000/10 minutes
The 10-minute increments listed in the table above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 19 RFP Number: 16-31-057-00
Page 2 of 2Draft Execution Version - Design -Build Contract Appendices
GP Lane Closure Charges
March 16, 2017
10308675.v32
EXHIBIT 20
1-15 EL LANE CLOSURE CHARGES
Chart 20-1
1-15 EL Lane Closure Charges for
Permitted 1-15 EL Lane Closures
Travel Direction
Time Frame
1-15 EL Lane Closure
Charge* prior to the
Revenue Service
Commencement
Date
1-15 EL Lane
Closure Charge*
from the Revenue
Service
Commencement
Date and for the
remainder of the
Warranty Period
Northbound
Weekday Period:
• Sunday 10:00 p.m. through Monday
4:00 a.m.
• Monday 10:00 p.m. through Tuesday
4:00 a.m.
• Tuesday 10:00 p.m. through
Wednesday 4:00 a.m.
• Wednesday 10:00 p.m. through
Thursday 4:00 a.m.
• Thursday 10:00 p.m. through Friday
4:00 a.m.
Weekend Period:
• Friday 11:00 p.m. through Saturday
5:00 a.m.
• Saturday 11:00 p.m. through Sunday
5:00 a.m.
No charge
No charge
Stipulated Damages
(subject to
Northbound /
Southbound limited
exception below)
Stipulated Damages
Southbound
Weekday Period:
• Sunday 10:00 p.m. through Monday
4:00 a.m.
• Monday 10:00 p.m. through Tuesday
4:00 a.m.
• Tuesday 11:00 p.m. through
Wednesday 4:00 a.m.
• Wednesday 11:00 p.m. through
Thursday 4:00 a.m.
• Thursday 11:00 p.m. through Friday
4:00 a.m.
Weekend Period:
• Friday 11:00 p.m. through Saturday
5:00 a.m.
• Saturday 11:00 p.m. through Sunday
5:00 a.m.
Riverside County Transportation Commission
1-15 Express Lanes Project
No charge
No charge
Stipulated Damages
Stipulated Damages
Exhibit 20 RFP Number: 16-31-057-00
Page 1 of 4Draft Execution Version - Design -Build Contract Appendices
1-15 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 20 RFP Number: 16-31-057-00
Page 2 of 4Draft Execution Version - Design -Build Contract Appendices
1-15 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
1-15 EL LANE CLOSURE CHARGES
Chart 20-2
1-15 EL Lane Closure Charges for
Unpermitted 1-15 EL Lane Closures
Travel Direction
Time Frame
1-15 EL Lane Closure
Charge* prior to the
Revenue Service
Commencement
Date
1-15 EL Lane
Closure Charge*
from the Revenue
Service
Commencement
Date and for the
remainder of the
Warranty Period
Northbound
Weekday Period:
• Monday 4:00 a.m. through 10:00 p.m.
• Tuesday 4:00 a.m. through 10:00 p.m.
• Wednesday 4:00 a.m. through 10:00 p.m.
• Thursday 4:00 a.m. through 10:00 p.m.
• Friday 4:00 a.m. through 11:00 p.m.
Weekend Period:
• Saturday 5:00 a.m. through 11:00 p.m.
• Sunday 5:00 a.m. through 11:00 p.m.
No charge
The sum of
(i) Stipulated
Damages** for that
Segment plus
(ii) $3,000.00 per
affected Segment
for every partial or
full 10 minute
increment
The sum of (i)
Stipulated
Damages** for the
affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
Southbound
Weekday Period:
• Monday 4:00 a.m. through 10:00 p.m.
• Tuesday 4:00 a.m. through 10:00 p.m.
• Wednesday 4:00 a.m. through 10:00 p.m.
• Thursday 4:00 a.m. through 10:00 p.m.
• Friday 4:00 a.m. through 11:00 p.m.
Weekend Period:
• Saturday 5:00 a.m. through 11:00 p.m.
• Sunday 5:00 a.m. through 11:00 p.m.
No charge
The sum of
(i) Stipulated
Damages** for the
affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
The sum of
(i) Stipulated
Damages** for the
affected Segment
plus (ii) $3,000.00
per affected
Segment for every
partial or full 10
minute increment
The 10 minute increments listed in the tables above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 20 RFP Number: 16-31-057-00
Page 3 of 4Draft Execution Version - Design -Build Contract Appendices
1-15 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
*Lane Closures will be measured on the basis of direction and Segment. The 1-15 EL Lane
Closure Charge shall be assessed for any closure of any portion of a lane within a Segment in
any direction. A closure that affects more than one Segment shall result in a charge for each
affected Segment. For instance, a closure of a portion of one lane in two Northbound Segments
and one Southbound Segment shall result in a charge of Stipulated Damages for the three
affected Segments plus $2,700 for every partial or full 10 minute increment.
The 10 minute increments listed in Charts 20-1 and 20-2 are for partial or full increments,
meaning that, for example, an 11 minute period would be considered two increments.
**Stipulated damages shall be determined by using a comparison of the number of transactions
identified by the Collection System during the period of the partial or complete 1-15 EL Lane
Closure and the number of transactions identified by the Collection System during a comparable
prior period determined by RCTC. Determination of a comparable period shall be made by
RCTC, acting reasonably, and shall consider the day, month, time of day, location, season,
whether the day is a weekday, weekend or holiday, and such other factors as RCTC shall
reasonably determine. During the first six (6) months following Revenue Service
Commencement for Interstate 15, stipulated damages shall be determined by reference to the
traffic and revenue study estimates for the Interstate 15 during the period of time in question
and may also consider available live traffic data from the Collection System. For example, if,
during the period of the 1-15 EL Lane Closure, the Collection System identifies 100 transactions,
and during a comparable prior period where there is no 1-15 EL Lane Closure, the Collection
System identifies 1000 transactions, the stipulated damages for the duration of the 1-15 EL Lane
Closure would be the value of the difference in the number of transactions (i.e., an amount
equal to 900) multiplied by the toll rate(s) applicable to such transactions. The calculation of
stipulated damages can never be a negative number or result in DB Contractor being entitled to
additional payment from RCTC
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 20 RFP Number: 16-31-057-00
Page 4 of 4Draft Execution Version - Design -Build Contract Appendices
1-15 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
EXHIBIT 21
SR-91 EL LANE CLOSURE CHARGES
CHART 21-1
SR-91 EL Lane Closure Charges for Permitted SR-91 EL Lane Closures
(including SR 91 to 1-15 Express Lane Flyover Connector)
Prior to the Revenue Service From the Revenue Service
Commencement Date Commencement Date and for
the remainder of the Warranty
Period
Travel
Direction
Time Frame
SR-91 EL SR-91 to 1-15 SR-91 EL SR-91 to 1-15
Lane Closure Flyover Lane Closure Flyover
Charge Connector Charge Connector
(excluding Lane Closure (excluding Lane
Flyover Charge Flyover Closure
Connector) Connector) Charge
Westbound Weekday Period: Stipulated Stipulated Stipulated Stipulated
• Sunday 10:00 p.m. through Damages Damages Damages Damages
or Monday 4:00 a.m. (except for
certain Sundays identified in
Northbound Section 18.3.3.2.1 of the
to Technical Provisions)
Westbound • Monday 10:00 p.m. through
Tuesday 4:00 a.m.
• Tuesday 10:00 p.m. through
Wednesday 4:00 a.m.
• Wednesday 10:00 p.m. through
Thursday 4:00 a.m.
• Thursday 10:00 p.m. through
Friday 4:00 a.m.
Weekend Period: Stipulated Stipulated Stipulated Stipulated
• Friday 11:00 p.m. through Damages Damages Damages Damages
Saturday 5:00 a.m.
• Saturday 11:00 p.m. through
Saturday 5:00 a.m. (except for
certain Sundays identified in
Section 18.3.3.2.1 of the
Technical Provisions)
Portions of certain Sundays identified
in Section 18.3.3.2.1 of the Technical
Provisions
No Charge
Eastbound
or Weekday Period: Stipulated Stipulated Stipulated Stipulated
• Sunday 10:00 p.m. through Damages Damages Damages Damages
Eastbound to
Southbound
Monday 4:00 a.m. (except for
certain Sundays identified in
Section 18.3.3.2.1 of the
Technical Provisions)
• Monday 10:00 p.m. through
Tuesday 4:00 a.m.
Riverside County Transportation Commission Exhibit 21
1-15 Express Lanes Project Page 1 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
SR-91 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
" T u e s d a y 1 0 : 0 0 p . m . t h r o u g h
W e d n e s d a y 4 : 0 0 a . m .
" W e d n e s d a y 1 0 : 0 0 p . m . t h r o u g h
T h u r s d a y 4 : 0 0 a . m .
" T h u r s d a y 1 0 : 0 0 p . m . t h r o u g h
F r i d a y 4 : 0 0 a . m .
W e e k e n d P e r i o d : S t i p u l a t e d S t i p u l a t e d S t i p u l a t e d S t i p u l a t e d
" F r i d a y 1 1 : 0 0 p . m . t h r o u g h D a m a g e s D a m a g e s D a m a g e s D a m a g e s
S a t u r d a y 5 : 0 0 a . m .
" S a t u r d a y 1 1 : 0 0 p . m . t h r o u g h
S u n d a y 5 : 0 0 a . m . ( e x c e p t f o r
c e r t a i n S u n d a y s i d e n t i f i e d i n
S e c t i o n 1 8 . 3 . 3 . 2 . 1 o f t h e
T e c h n i c a l P r o v i s i o n s )
P o r t i o n s o f c e r t a i n S u n d a y s i d e n t i f i e d
i n S e c t i o n 1 8 . 3 . 3 . 2 . 1 o f t h e T e c h n i c a l
P r o v i s i o n s
N o C h a r g e
R i v e r s i d e C o u n t y T r a n s p o r t a t i o n C o m m i s s i o n
1 - 1 5 E x p r e s s L a n e s P r o j e c t
E x h i b i t 2 1
P a g e 2 o f 4
R F P N u m b e r : 1 6 - 3 1 - 0 5 7 - 0 0
D r a f t E x e c u t i o n V e r s i o n - D e s i g n - B u i l d C o n t r a c t E x h i b i t s
S R - 9 1 E L L a n e C l o s u r e C h a r g e s
M a r c h 1 6 , 2 0 1 7
i n . z n Q a 7 ��o
CHART 21-2
SR-91 EL Lane Closure Charges for Unpermitted SR-91 EL Lane Closures
(including SR 91 to 1-15 Express Lane Flyover Connector)
Prior to the Revenue Service From the Revenue Service
Commencement Date Commencement Date and for
the remainder of the Warranty
Period
Travel
Direction
Time Frame
SR-91 EL
Lane Closure
Charge
(excluding
Flyover
Connector)
SR-91 to 1-15
Flyover
Connector
Lane Closure
Charge
SR-91 EL
Lane Closure
Charge
(excluding
Flyover
Connector)
SR-91 to 1-15
Flyover
Connector
Lane Closure
Charge
Westbound Weekday Period:
Monday 4:00 a.m. through
or 10:00 p.m.
• Tuesday 4:00 a.m. through
10:00 p.m.
• Wednesday 4:00 a.m. through
10:00 p.m.
• Thursday 4:00 a.m. through
10:00 p.m.
Friday 4:00 a.m. through 10:00
p.m.
Northbound
to
Westbound
Weekend Period:
• Saturday 5:00 a.m. through
11:00 p.m.
• Sunday 5:00 a.m. through
11:00 p.m.
The sum of The sum of The sum of
(i) Stipulated (i) Stipulated (i) Stipulated
Damages" plusDamages* plusDamages* plus
(ii) $10,000 for (ii) $10,000 for (ii) $10,000 for
every partial or every partial or every partial or
full 10 minute full 10 minute full 10 minute
increment increment increment
The sum of The sum of The sum of
(i) Stipulated (i) Stipulated (i) Stipulated
Damages' plusDamages* plusDamages* plus
(ii) $10,000 for (ii) $10,000 for (ii) $10,000 for
every partial or every partial or every partial or
full 10 minute full 10 minute full 10 minute
increment increment increment
The sum of
(i) Stipulated
Damages" plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages" plus
(ii) $10,000 for
every partial or
full 10 minute
increment
Eastbound
or Weekday Period:
Monday 4:00 a.m. through
Eastbound to 10:00 p.m.
Southbound • Tuesday 4:00 a.m. through
10:00 p.m.
• Wednesday 4:00 a.m. through
10:00 p.m.
• Thursday 4:00 a.m. through
10:00 p.m.
• Friday 5:00 a.m. through 10:00
p.m.
Weekend Period:
• Saturday 5:00 a.m. through
11:00 p.m.
• Sunday 5:00 a.m. through
11:00 p.m.
The sum of The sum of The sum of
(i) Stipulated (i) Stipulated (i) Stipulated
Damages" plusDamages* plusDamages* plus
(ii) $10,000 for (ii) $10,000 for (ii) $10,000 for
every partial or every partial or every partial or
full 10 minute full 10 minute full 10 minute
increment increment increment
The sum of The sum of The sum of
(i) Stipulated (i) Stipulated (i) Stipulated
Damages" plusDamages* plusDamages* plus
(ii) $10,000 for (ii) $10,000 for (ii) $10,000 for
every partial or every partial or every partial or
full 10 minute full 10 minute full 10 minute
increment increment increment
The sum of
(i) Stipulated
Damages" plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The sum of
(i) Stipulated
Damages" plus
(ii) $10,000 for
every partial or
full 10 minute
increment
The 10 minute increments listed in the tables above are for partial or full increments, meaning
that, for example, an 11 minute period would be considered two increments.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 21
Page 3 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
SR-91 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
*Stipulated damages shall be determined by using a comparison of the number of transactions
identified by the toll collection system for the SR-91 during the period of the partial or complete
I-SR-91 EL Lane Closure and the number of transactions identified by the toll collection system
for the SR-91 during a comparable prior period determined by RCTC. Determination of a
comparable period shall be made by RCTC, acting reasonably, and shall consider the day,
month, time of day, location, season, whether the day is a weekday, weekend or holiday, and
such other factors as RCTC shall reasonably determine. During the first six (6) months
following revenue service commencement for the SR-91 ELs, stipulated damages shall be
determined by reference to the traffic and revenue study estimates for theSR-91 ELs during the
period of time in question and may also consider available live traffic data from the toll collection
system for the SR-91. For example, if, during the period of the SR-91 EL Lane Closure, the toll
collection system for the SR-91 identifies 100 transactions, and during a comparable prior period
where there is no SR-91 EL Lane Closure, the toll collection system for the SR-91 dentifies 1000
transactions, the stipulated damages for the duration of the SR-91 EL Lane Closure would be
the value of the difference in the number of transactions (i.e., an amount equal to 900) multiplied
by the toll rate(s) applicable to such transactions. The calculation of stipulated damages can
never be a negative number or result in DB Contractor being entitled to additional payment from
RCTC.
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 21
Page 4 of 4
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
SR-91 EL Lane Closure Charges
March 16, 2017
i n.znQa7 „�o
EXHIBIT 22
FORM OF ACKNOWLEDGEMENT AND CONSENT TO ASSIGNMENT
Reference is made to the Design -Build Contract dated as of _ _, 201_ (as amended, the "DB
Contract"), by and between Riverside County Transportation Commission ("Borrower") and
Skanska-Ames a Joint Venture ("DB Contractor"). Unless the context otherwise requires,
capitalized terms used but not separately defined in this Acknowledgement and Consent have
the meaning given to them in the Contract.
DB Contractor hereby acknowledges receipt of that certain Collateral Assignment of DB
Contract dated as of [ , 20 ] (the "Assignment") by and between/among the Borrower
and [insert name of Financing Entities] ("Financing Entities") and irrevocably consents thereto
and agrees that, upon receipt of written notice from Financing Entities of an event of default on
the part of Borrower under any of the financing agreements listed in Exhibit A-1 to this
Acknowledgement and Consent (the "Start Date"), DB Contractor shall take direction from
Financing Entities and acknowledges Financing Entities' right to exercise any and all rights of
Borrower under the Contract and shall owe its obligations under the Contract to Financing
Entities and shall cause all payments required to be made by the DB Contractor pursuant to the
terms of the Contract to be made directly to Financing Entities, its successors and/or assigns, in
accordance with written instructions (but subject to the terms of the Assignment) to be delivered
by Financing Entities, its successors and/or assigns, to DB Contractor at the address set forth
below without offset, abatement, withholding or reduction to the extent so provided under the
terms and conditions of the Contract until such time as (a) the event of default by Borrower
under the financing agreement has been cured or waived and Financing Entities delivers Notice
to DB Contractor to that effect in the form of Exhibit A-2 to this Acknowledgment and Consent,
or (b) the Assignment is terminated or otherwise canceled (the first to occur of (a) and (b) being
the "End Date"), at which time DB Contractor will be instructed to make payments to or on
behalf of Borrower and to perform its obligations under the Contract at the direction and for the
benefit of Borrower. The undersigned agrees that, in relation to Borrower's obligations arising
before the Start Date or after the End Date, it shall look only to the Borrower for the
performance of the Borrower's obligations under the Contract, from and after the Start Date and
until the End Date. Notices under the Contract from DB Contractor to the Borrower shall be
deemed given by the DB Contractor if delivered to [insert Financing Entities' point of contact
and address; Attn: ; Fax: ; Email:
DB Contractor acknowledges and agrees that the following in and of themselves shall not
constitute a default by Borrower under the Contract or result in a termination thereof: (a)
assignment of the Contract pursuant to the Assignment and Financing Entities' exercise of the
Borrower's rights under the Contract upon Financing Entities' election to do so following the
occurrence and continuance of an event of default on the part of Borrower under the financing
agreement, (b) foreclosure or any other enforcement of the financing agreement by Financing
Entities, or (c) acquisition of the rights of Borrower under the Contract in foreclosure by
Financing Entities (or acceptance of an absolute assignment of the Contract in lieu of
foreclosure).
The undersigned acknowledges and agrees that in the event Financing Entities elect to exercise
the Borrower's rights under the Contract, Financing Entities shall have no obligations to DB
Contractor greater than those of Borrower under the Contract; DB Contractor agrees that
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 22
Page 1 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Acknowledgment and Consent to Assignment
March 16, 2017
i n.znQa7 „�o
Financing Entities shall not be obligated to cure any default by Borrower which may only be
cured by Borrower or which Financing Entities do not have sufficient legal authority to cure.
The undersigned agrees to deliver to Financing Entities, concurrently with the delivery thereof to
Borrower, a duplicate or copy of each demand relating to a default or notice of default and, from
the Start Date to the End Date, each other material notice or demand or request made by the
DB Contractor to Borrower pursuant to the Contract. Failure by the DB Contractor to provide
notice to Financing Entities as provided herein shall not be construed as a waiver nor shall it
prejudice the rights of Financing Entities under the Assignment.
Without affecting Financing Entities' rights under the Assignment and as provided herein, DB
Contractor acknowledges that the exercise of rights and remedies by Financing Entities as
provided in the financing agreement shall not require the consent of DB Contractor.
DB Contractor hereby represents and warrants as follows:
(1) DB Contractor has all requisite power and authority to enter into and to perform its
obligations under the Assignment and this Acknowledgement and Consent, and to carry out the
terms hereof and thereof and the transactions contemplated hereby and thereby.
(2) The execution, delivery and performance by the DB Contractor of this Acknowledgement
and Consent and the Assignment and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on its part and do not
and will not require any approval or consent of any person or entity, except approvals or
consents which have previously been obtained and will not result in any violation of, breach of
or default under any term of its formation or governance documents, or of any contract or
agreement to which it is a party or by which it or its property is bound, or any license, permit,
franchise, judgment, writ, injunction, decree, order, charter, law, ordinance, rule or regulation
applicable to it.
(3) This Acknowledgement and Consent is in full force and effect, has been duly executed
and delivered on behalf of DB Contractor by an authorized representative of the DB Contractor
and constitutes the legal, valid and binding obligation of DB Contractor, enforceable against DB
Contractor in accordance with its terms, except as the enforceability thereof may be limited by
(a) bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of
creditor's rights generally and (b) general equitable principles (whether considered in a
proceeding in equity or at law).
(4) There is no legislation, litigation, action, suit, proceeding or investigation pending or, to
the best knowledge of DB Contractor after due inquiry, threatened against DB Contractor before
or by any court, administrative agency, arbitrator or governmental authority, body or agency
which, if adversely determined, individually or in the aggregate, (a) could adversely affect this
Acknowledgement and Consent or the Assignment, or (b) could have a material adverse effect
on DB Contractor's ability to perform its obligations under the Assignment or this
Acknowledgement and Consent.
(5) There are no Events of Default or events or conditions which with notice and the
passage of time would constitute an event of default under the Contract on the part of DB
Contractor or the Borrower.
DB Contractor's consent to the Assignment is expressly limited to Financing Entities, as secured
parties under the note, the financing agreement and the other loan documents and DB
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 22
Page 2 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Acknowledgment and Consent to Assignment
March 16, 2017
i n.znQa7 „�o
Contractor does not consent to the further sale or transfer by Financing Entities of Borrower's
rights under the Contract (other than to a successor and/or assignee of Financing Entities under
the note, the financing agreement and the other loan documents, acting in that capacity), it
being specifically understood that any sale, assignment, transfer or other disposition of the
Borrower's rights under the Contract which is not made in connection with any sale,
assignment, transfer or other disposition of the loan, including, without limitation, in connection
with the exercise of any foreclosure rights or other default remedies under the note, the
financing agreement and the other loan documents, is subject to the further consent of DB
Contractor. The undersigned agrees that it shall not terminate the Contract except as allowed
by the Contract and without giving reasonable prior written notice to Financing Entities.
This Consent shall be governed by and construed in accordance with the laws of the State of
California (without giving effect to the principles thereof relating to conflicts of law).
This Consent may not be amended, modified, supplemented or waived without the written
consent of the Borrower and the Financing Entities.
DB CONTRACTOR:
SKANSKA-AMES A JOINT VENTURE
By:
Name:
Title:
Riverside County Transportation Commission
1-15 Express Lanes Project
Address:
Exhibit 22
Page 3 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Acknowledgment and Consent to Assignment
March 16, 2017
i n.znQa7 „�o
EXHIBIT A-1
NOTICE OF EVENT OF DEFAULT UNDER FINANCING AGREEMENT AND EXERCISE OF
RIGHTS UNDER COLLATERAL ASSIGNMENT OF DB CONTRACT
TO: [__], a [__]
Pursuant to that certain Collateral Assignment of DB Contract dated , 20 ] (the
"Collateral Assignment"), by and between/among the [insert name of Financing Entities]
("Financing Entities") and the Riverside County Transportation Commission ("BORROWER"),
the undersigned, a duly authorized officer of Financing Entities, hereby gives notice that an
event of default under that certain financing agreement by and between Financing Entities and
Borrower dated as of [ , 20 ] (the "Financing Agreement") has occurred and is
continuing and that Financing Entities are exercising their rights as assignee under the
Collateral Assignment effective as of the date of this Notice.
Dated: , 20
[Insert name of Financing Entities]
By:
Its:
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 22
Page 4 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Acknowledgment and Consent to Assignment
March 16, 2017
i n.znQa7 „�o
EXHIBIT A-2
NOTICE OF CURE OF EVENT OF DEFAULT UNDER FINANCING AGREEMENT
TO: [__], a [__]
Riverside County Transportation Commission
1-15 Express Lanes Project
Exhibit 22
Page 5 of 5
RFP Number: 16-31-057-00
Draft Execution Version - Design -Build Contract Exhibits
Form of Acknowledgment and Consent to Assignment
March 16, 2017
i n.znQa7 „�o
RIVERSIDE CODS 1111
EXPRESS LANES
1-15 Express Lanes Project
Design -Build Contract
March 27, 2017
-- - 1-15 Express Lanes Project
EXPRESS LANES Limits
LOS ANGELES CO
ORANGE CO
�t
Pr ect Limits
14.6 MILES
111/ Ontari'
r
Ea stva I e
•
111Pr
15 .. ...
. RIVERSIDE CO
Corona
U
•Jurupa Valley
Riverside •
• Norco
of
ROTC
_ Design -Build Procurement:
Authority and Rationale
EXPRESS LINES
Use of Public Contract Code s.6820 — "Design -Build Law"
Evaluates both bid price and qualitative technical factors
Obtain best value for the Commission
Proven industry method including RCTC's 91 Project
Aids in securing project financing (e.g. lump sum price)
Appropriate risk transfer from RCTC to contractor
Fosters innovation and efficiencies between design and construction
_ Design -Build Procurement
Process
EXPRESS LINES
Two-step
procurement
process
STEP 1: Issue a
Request for
Qualifications
• Evaluate responses
and shortlist
qualified teams
STEP 2: Issue a
Request for
Proposal
• Evaluate price and
technical proposal
responses
• Select the team
offering the best -
value
ROTC
_ Design -Build Contract
Scope of Work
EXPRESS LINES
Final design of express
lanes, bridges, storm
drains, and other work
Construction of
pavement, bridges,
walls, storm drains,
signs, striping
Construction of toll
structures, electrical
conduit, and related
toll infrastructure
Compliance with
environmental permits,
railroad working
windows, agency
standards, ordinances
Implementation of
temporary traffic
control measures and
communication of
traffic impacts
1A;a1-
Procurement Activity
EXPRESS LINES
Request for Qualifications Issued
1/8/2016
Statement of Qualifications Received
2/18/2016
Qualified Firms Shortlisted
3/25/2016
Issued Request for Proposals
8/1/2016
Proposals Received 1/10/2017
Best -Value Proposer Selected 2/17/2017
WRCPP Committee Contract Award Action 3/27/2017
Commission Contract Award Action 4/12/2017
EXPRESS LANES
a
i
Short-listed Firms
Express Lane Builders
Flatiron West, Inc.
Skanska-Ames, a Joint Venture
ROTC
Proposal Evaluation
EXPRESS LANES
Separation of technical and price proposal submittals
- Separate technical proposal
- Separate price proposal submitted confidentially
Independent evaluations of each proposal
- Separate evaluation committees for technical and price
- No information sharing between committees
Proposal Scoring
EXPRESS LANES
= Price Score (max 80 pts) + Technical Score (max 20 pts)
Price Score = (Lowest Adjusted Price / Proposer's Adjusted Price) X 80
Technical Score = (Proposer's Tech. Evaluation / Highest Tech. Evaluation) X 20
Note: See the agenda report for a more comprehensive description
EXPRESS LANES
...and the winner is
...Skanska-Ames
Skanska-Ames, a Joint Venture
Express Lanes Builders
Price
Score
(80 points
max.)
80.00
75.85
Technical
Score
(20 points
max.)
16.72
20.00
Total Proposal
Score
(100 points
max.)
96.72
95.85
EXPRESS LANES
Alk_
The Skanska-Ames Team
roject Role
Skanska-Ames, A Joint Venture
Design -Builder
Aztec Engineering Group, Inc.
Lead Engineering Firm/Design
Betkon, Inc.
Public Outreach
Coastal Engineering, Inc.
Utilities Coordination
Diaz-Yourman & Associates
Geotechnical
Kimley-Horn and Associates, Inc.
Traffic Management Sys./Toll Coll. Sys.
Leighton Consulting, Inc.
Geotechnical
Lynn Capouya, Inc.
Landscape Architecture
NCM Engineering Corporation
Structures
Security Paving Company, Inc.
Concrete Paving
Vandermost Consulting Services, Inc.
Environmental
Wagner Engineering & Survey, Inc.
Land Surveying
Wilson & Company, Inc.
Traffic/Structures/Roadway/Drainage
Agreement Structure
EXPRESS LANES
• Notice to Proceed 1
• Subject to WRCPP Committee and Board approval of
agreement
• Estimated to be issued on or about April 12, 2017
• Authorizes $5.25M for select early activities
• Establish a co -located office
• Mobilize staff
• Start final design/engineering work
• Existing utility mapping, existing storm drain assessment, etc.
• Prepare project schedule, quality plan, project management
plan
Agreement Structure
EXPRESS LANES
• Notice to Proceed 2
• Timed to occur just after a successful RCTC financing
• Estimated to be issued late -July 2017
• Authorizes all remaining work for the design -build
contract
Staff Recommendation
EXPRESS LANES
• Award Agreement No. 16-31-057-00 to Skanska-Ames in
the amount of $263,412,000, which includes an 8 percent
contingency
• Authorize the Chair or Executive Director to execute
agreement
• Authorize Executive Director or her designee to approve
contingency work as required by the project
• Authorize issuance of Notice to Proceed No. 1 upon
execution of the contract
• Authorize issuance of Notice to Proceed No. 2 after
financial close
• Forward to the Commission for final action
AGENDA ITEM 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
March 27, 2017
TO:
Western Riverside County Programs and Projects Committee
FROM:
Mark Lancaster, Right of Way Manager
THROUGH:
Michael Blomquist, Toll Program Director
SUBJECT:
Interstate 15 Express Lanes Project — AT&T Utility Agreement
STAFF RECOMMENDATION:
This item is for the Committee to:
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.
BACKGROUND INFORMATION:
The Commission, in cooperation with Caltrans, proposes to improve the existing 1-15 freeway
corridor to include construction of new toll express lanes from Cajalco Road to State Route 60, a
distance of approximately 14.6 miles through the cities of Corona, Norco, Eastvale, and Jurupa
Valley, as well as portions of unincorporated Riverside County, California. The proposed project
is anticipated to improve mobility on 1-15 by enhancing operations and capacity with the addition
of the tolling facilities. The project limits extend from approximately PM 36.8 in the city of Corona
to PM 51.4 at the 15/60 freeway interchange.
The 1-15 Express Lanes project will require a utility agreement with AT&T to design relocation
plans and to relocate underground telecommunications facilities located at the I-15/6h Street
undercrossing in the city of Corona. As a part of establishing liability for the cost of the utility
relocations, a prior rights check is performed by the utility owner and verified by the
Commission's utility coordinator. The utility facilities will be relocated prior to the
commencement of construction activities.
Those utility facilities subject to the terms of the Caltrans agreement will generally be relocated
at a 50/50 cost proration, excepting those installed pursuant to an encroachment permit (100
percent owner) or an easement (100 percent Commission). In this case, the facilities will be
Agenda Item 7
9
relocated using the 50/50 cost proration. The estimated cost for the Commission's share of the
engineering and construction for the AT&T relocation effort is $296,524. Staff recommends the
Commission authorize the Executive Director to execute the utility agreement on behalf of the
Commission and approve the use of a $29,652 contingency as may be required by the project.
Financial Impact
The utility relocation costs of $326,176, including contingency, will be included in the FY 2017/18
budget.
Financial Information
In Fiscal Year Budget:
N/A
Year:
FY 2017/18
Amount:
$326,176
Source of Funds:
Sales Tax Revenue Bonds and federal
TIFIA Loan
Budget Adjustment:
N/A
GL/Project Accounting No.:
003027 81402 00000 0000 262
3181402
Fiscal Procedures Approved:
\liff4z4AA,1424PA
Date:
03/07/2017
Attachment: Utility Agreement 17-31-080-00 (Draft)
Agenda Item 7
10
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
UTILITY AGREEMENT
(RCTC AGREEMENT NO: 17-31-080-00)
Page 1 of 5
DISTRICT
08
COUNTY
Riv
ROUTE
15
POST MILE
08-Riv-15-34.7/R1.3
EA
OJ0800
FEDERAL AID NUMBER
N/A
OWNER'S FILE NUMBER
AOOGE5M
FEDERAL PARTICIPATION
On the project ® YES ❑ NO On the Utilities ® YES ❑ NO
UTILITY AGREEMENT NO. 24266 DATE
The Riverside County Transportation Commission, herein after called "RCTC", proposes to
widen existing 1-15 from the Cajalco Rd interchange to the SR 60/1-15 interchange in Riverside County.
And
Pacific Bell Telephone Company d/b/a AT&T CALIFORNIA
C/O: Darlene Russo
Manager — Government Liaison
AT&T California
3939 E. Coronado St, 2nd floor
Anaheim, CA, 92807
hereinafter called "OWNER," owns and maintains
overhead and underground telecommunications facilities along Interstate 15
within the limits of RCTC's project which requires
relocation of an underground telecommunication facilities along Interstate 15
to accommodate RCTC's project
It is hereby mutually agreed that:
I. WORK TO BE DONE
In accordance with Notice to Owner No. 24266 to be issued at a later date, OWNER shall
relocate existing underground telecommunications line along 6t" Street under Interstate 15 in
the City of Corona. All work shall be performed substantially in accordance with the ATT Plan
per ATT work order AOOGE5M, a copy of which is on file at the District office of the Department
of Transportation (Caltrans), at 464 W. 4t" Street, San Bernardino CA 92401-1400 and the
Riverside County Transportation Commission, at 4080 Lemon Street, Riverside, Ca. 92502-
2208.
Deviations from the OWNER's plan described above initiated by either RCTC or the OWNER,
shall be agreed upon by both parties hereto under a Revised Notice to Owner. Such Revised
Notices to Owner, approved by RCTC and agreed to/acknowledged by the OWNER, will
constitute an approved revision of the OWNER's plan described above and are hereby made
a part hereof. No work under said deviation shall commence prior to written execution by the
OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an
amendment to this Agreement in addition to the revised Notice to Owner.
11
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
UTILITY AGREEMENT (Cont.)
II. LIABILITY FOR WORK
(RCTC AGREEMENT NO: 17-31-080-00)
Page 2 of 5
The existing facilities described in Section I above will be relocated at 50% RCTC expense
and 50% OWNER expense in accordance with Section 5 (C) of the Master Contract dated
November 15, 2004.
III PERFORMANCE OF WORK
OWNER agrees to perform the herein described work with its own forces or to cause the
herein described work to be performed by the OWNER's contractor, employed by written
contract on a continuing basis to perform work of this type, and to provide and furnish all
necessary labor, materials, tools, and equipment required therefor, and to prosecute said
work diligently to completion.
Alternatively, OWNER agrees to cause the herein described work to be performed by a
contract with the lowest qualified bidder, selected pursuant to a valid competitive bidding
procedure, and to furnish or cause to be furnished all necessary labor, materials, tools, and
equipment required therefore, and to prosecute said work diligently to completion.
Use of out-of-state personnel (or personnel requiring lodging and meal "per diem" expenses)
will not be allowed without prior written authorization by RCTC's representative. Requests for
such authorization must be contained in OWNER's estimate of actual and necessary
relocation costs. OWNER shall include an explanation why local employee or contract labor
is not considered adequate for the relocation work proposed. Per Diem expenses shall not
exceed the per diem expense amounts allowed under the State's Department of Personnel
Administration travel expense guidelines.
Work performed directly by Owner's employees falls within the exception of Labor Code
Section 1720(a)(1) and does not constitute a public work under Section 1720(a)(2) and is not
subject to prevailing wages. OWNER shall verify compliance with this requirement in the
administration of its contracts referenced above.
IV. PAYMENT FOR WORK
RCTC shall pay its share of the actual and necessary cost of the herein described work within
45 days after receipt of OWNER's itemized bill, signed by a responsible official of OWNER's
organization and prepared on OWNER's letterhead, compiled on the basis of the actual and
necessary cost and expense incurred and charged or allocated to said work in accordance
with the uniform system of accounts prescribed for OWNER by the California Public Utilities
Commission, Federal Energy Regulatory Commission or Federal Communications
Commission, whichever is applicable.
It is understood and agreed that RCTC will not pay for any betterment or increase in capacity
of OWNER's facilities in the new location and that OWNER shall give credit to RCTC for the
accrued depreciation of the replaced facilities and for the salvage value of any material or
parts salvaged and retained or sold by OWNER.
12
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
UTILITY AGREEMENT (Cont.)
(RCTC AGREEMENT NO: 17-31-080-00)
Page 3 of 5
Not more frequently than once a month, but at least quarterly, OWNER will prepare and
submit itemized progress bills for costs incurred not to exceed OWNER's recorded costs as
of the billing date less estimated credits applicable to completed work. Payment of progress
bills not to exceed the amount of this agreement may be made under the terms of this
Agreement. Payment of progress bills which exceed the amount of this Agreement may be
made after receipt and approval by RCTC of documentation supporting the cost increase and
after an Amendment to this Agreement has been executed by the parties to this Agreement.
The OWNER shall submit a final bill to RCTC within 360 days after the completion of the work
described in Section I above. If RCTC has not received a final bill within 360 days after
notification of completion of OWNER's work described in Section I of this Agreement, and
RCTC has delivered to OWNER fully executed Director's Deeds, Consents to Common Use
or Joint Use Agreements for OWNER's facilities (if required), RCTC will provide written
notification to OWNER of its intent to close its file within 30 days and OWNER hereby
acknowledges, to the extent allowed by law, that all remaining costs will be deemed to have
been abandoned. If RCTC processes a final bill for payment more than 360 days after
notification of completion of OWNER's work, payment of the late bill may be subject to
allocation and/or approval by RCTC.
The final billing shall be in the form of an itemized statement of the total costs charged to the
project, less the credits provided for in this Agreement, and less any amounts covered by
progress billings. However, RCTC shall not pay final bills which exceed the estimated cost of
this Agreement without documentation of the reason for the increase of said cost from the
OWNER and approval of documentation by RCTC. Except, if the final bill exceeds the
OWNER's estimated costs solely as the result of a revised Notice to Owner as provided for in
Section I, a copy of said revised Notice to Owner shall suffice as documentation. In either
case, payment of the amount over the estimated cost of this Agreement may be subject to
allocation and/or approval by RCTC.
In any event if the final bill exceeds 125% of the estimated cost of this Agreement, an
Amended Agreement shall be executed by the parties to this Agreement prior to the payment
of the OWNER'S final bill. Any and all increases in costs that are the direct result of deviations
from the work described in Section I of this Agreement, shall have the prior concurrence of
RCTC.
Detailed records from which the billing is compiled shall be retained by the OWNER for a
period of three years from the date of the final payment and will be available for audit by State
and/or Federal auditors. In performing work under this Agreement, OWNER agrees to comply
with the Uniform System of Accounts for Public Utilities found at 18 CFR, Parts 101, 201, et
al., to the extent they are applicable to OWNER doing work on the project that is the subject
of this agreement, the contract cost principles and procedures as set forth in 48 CFR, Chapter
1, Part 31, et seq., 23 CFR, Chapter 1, Part 645 and 2 CFR, Part 200, et al. If a subsequent
RCTC, State and/or Federal audit determines payments to be unallowable, OWNER agrees
to reimburse RCTC upon receipt of RCTC billing. If OWNER is subject to repayment due to
failure by RCTC to comply with applicable laws, regulations, and ordinances, then RCTC will
ensure that OWNER is compensated for actual cost in performing work under this agreement.
13
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
UTILITY AGREEMENT (Cont.)
V. GENERAL CONDITIONS
(RCTC AGREEMENT NO: 17-31-080-00)
Page 4 of 5
All costs accrued by OWNER as a result of RCTC's request of August 18, 2016 to review,
study and/or prepare relocation plans and estimates for the project associated with this
Agreement may be billed pursuant to the terms and conditions of this Agreement.
If RCTC's project which precipitated this Agreement is canceled or modified so as to eliminate
the necessity of work by OWNER, RCTC will notify OWNER in writing and RCTC reserves
the right to terminate this Agreement by Amendment. The Amendment shall provide mutually
acceptable terms and conditions for terminating the Agreement.
OWNER shall submit a Notice of Completion to RCTC within 30 days of the completion of the
work described herein.
It is understood that said highway is a Federal aid highway and accordingly, 23 CFR,
Chapter 1, Part 645 is hereby incorporated into this Agreement by reference; provided,
however, that the provisions of any agreements entered into between RCTC and the OWNER
pursuant to State law for apportioning the obligations and costs to be borne by each, or the
use of accounting procedures prescribed by the applicable Federal or State regulatory body
and approved by the Federal Highway Administration, shall govern in lieu of the requirements
of said 23 CFR 645.
In addition, the provisions of 23 CFR 635.410, Buy America, are also incorporated into this
agreement. The Buy America requirements are further specified in Moving Ahead for
Progress in the 21 st Century (MAP-21), section 1518; 23 CFR 635.410 requires that all
manufacturing processes have occurred in the United States for steel and iron products
(including the application of coatings) installed on a project receiving funding from the FHWA.
OWNER understands and acknowledges that this project is subject to the requirements of the
Buy America law (23 U.S.C., Section 313) and applicable regulations, including 23 CFR
635.410 and FHWA guidance. OWNER hereby certifies that in the performance of this
Agreement, for products where Buy America requirements apply, it shall use only such
products for which it has received a certification from its supplier, or provider of construction
services that procures the product certifying Buy America compliance. This does not include
products for which waivers have been granted under 23 CFR 635.410 or other applicable
provisions or excluded material cited in the Department's guidelines for the implementation of
Buy America requirements for utility relocations issued on December 3, 2013.
THE ESTIMATED COST TO RCTC FOR THE ABOVE DESCRIBED WORK IS $296,523.55
14
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
UTILITY AGREEMENT (Cont.)
(RCTC AGREEMENT NO: 17-31-080-00)
Page 5 of 5
SIGNATURE PAGE
TO
UTILITY AGREEMENT NUMBER 24266
IN WITNESS WHEREOF, the above parties have executed this Agreement the day and year above
written.
RCTC :
OWNER:
PACIFIC BELL TELEPHONE COMPANY
D/B/A
AT&T CALIFORNIA
By By
Riverside County Transportation Commission /Date
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
By
General Counsel
Riverside County Transportation Commission
APPROVAL RECOMMENDED:
By
Jeff Dietzler
Utility Coordinator
Parsons Corporation
Date
NAME Date
Title
15
AGENDA ITEM 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE:
March 27, 2017
TO:
Western Riverside County Programs and Projects Committee
FROM:
Edda Rosso, Capital Projects Manager
THROUGH:
Marlin Feenstra, Project Delivery Director
SUBJECT:
Amendment to Agreement with HDR Engineering Inc. for Construction
Management Services for the Perris Valley Line Project
STAFF RECOMMENDATION:
This item is for the Commission to:
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.
BACKGROUND INFORMATION:
At its July 14, 2010 meeting, the Commission approved the selection process and awarded
Agreement No. 10-31-058-00 to HDR to provide construction management services for the PVL
project for the amount of $15,950,146, plus contingency of $1.6 million, for a total amount not
to exceed $17,550,146. At that time, it was anticipated the project would be advertised for
construction in early 2011. Due to the extension of the environmental process as a result of
California Environmental Quality Act litigation, the actual start of construction did not occur until
October 2013.
In June 2013, Agreement No. 10-31-058-01, Amendment No. 1 to Agreement No. 10-31-058-00,
was executed to extend the term of the agreement to a date six months after issuance of a notice
of final acceptance or December 31, 2016, whichever occurs earlier. There was no cost impact
related to this amendment.
In August 2014, Agreement No. 10-31-058-02, Amendment No. 2 to Agreement No.
10-31-058-00, was executed to add consultant and subconsultant classifications and ranges.
There was no cost impact related to this amendment.
Agenda Item 8
16
In June 2015, the Commission approved Agreement No. 10-31-058-03, Amendment No. 3 to
Agreement No. 10-31-058-00, to include additional funding of $5.2 million for office rental,
Native American monitoring, quality control services, additional surveying, and impacts of time
extension due to delays in the contractor's schedule.
In January 2016, the Commission approved Agreement No. 10-31-058-04, Amendment No. 4 to
Agreement No. 10-31-058-00, to include additional funding of $2.3 million for office rental,
Native American monitoring, quality control services, additional surveying, new drainage issues,
new power service at South Perris, impacts of time extension due to delays in the contractor's
schedule, and to extend the term of the agreement to an estimated date of March 31, 2017.
In March 2017, Agreement No. 10-31-058-05, Amendment No. 5 to Agreement
No. 10-31-058-00, was executed for $200,000 using available contingency. The amendment
included additional funding for impacts of time extension due to delays in the contractor's
schedule and extended the term of the agreement to April 30, 2018.
The authorized total amount not to exceed through Amendment No. 5 is $25,050,146, as
summarized below:
Commission Authorization,
including Contingency
Contract Amount Description
Date Amount
Original
7/14/2010
$ 17,550,146
$ 15,735,352
Construction management services for PVL
project
Amendment No. 1
N/A
N/A
Term extension to earlier of six months after
notice of final acceptance or December 31, 2016
Amendment No. 2
N/A
N/A
-
Additional classifications and ranges
Amendment No. 3
6/10/2015
5,200,000
6,514,794
Additional construction management services,
including impacts of time extension related to
construction
Amendment No. 4
1/13/2016
2,300,000
2,600,000
Additional construction management services,
including impacts of time extension related to
construction; extend term to March 31, 2017
Amendment No. 5
N/A
N/A
200,000
Impacts of time extension due to construction
delays; extend term to April 30, 2018
Subtotal
25,050,146
25,050,146
Amendment No. 6
(proposed)
4/12/2017
2,000,000
1,700,000
Additional construction management services
Total
$ 27,050,146 $ 26,750,146
DISCUSSION:
At this time, additional funding is needed for office rental, defending claims submitted by the
contractor, and extension of construction management services, primarily due to the fact that it
Agenda Item 8
17
has taken longer for the contractor to complete the project than was anticipated last January.
The contractor is still completing contract work and remedial work. At this time, the HDR team
has reduced monthly costs as much as possible, but it continues its construction management
services by responding to requests for information and providing non -legal technical support to
the Commission and legal counsel. These additional services are required and were not
envisioned; however, they are consistent with the original scope. Accordingly, staff requests
approval of Amendment No. 6. The amendment is necessary since the duration of construction
will be longer than originally anticipated.
HDR provided a detailed scope of work, cost, and schedule for the proposed Amendment No. 6.
The information provided was reviewed in detail by staff, and negotiations were held with HDR
to obtain the best value for the proposed work. Staff determined the cost to be fair and
reasonable. The cost for the proposed services is $1.7 million. Staff requests approval for
$1.7 million, plus a contingency of $300,000, for an additional amount of $2 million. Accordingly,
the total authorized not to exceed amount for the agreement will be $27,050,146. These
additional costs are eligible for and will be funded with Congestion Mitigation and Air Quality
(CMAQ) and State Transportation Improvement Program (STIP) funds, which are already
programmed on this project.
Financial Information
Yes
FY 2016/17
$ 500,000
In Fiscal Year Budget:
N/A
Year:
FY 2017/18
Amount:
$1,500,000
No
Source of Funds:
CMAQ (federal), STIP (state)
Budget Adjustment:
N/A
003823 414 41403 221 33 41401 $1,770,600 (federal revenues)
GL/Project
003823 415 41502 221 33 41501 $229,400 (state revenues)
Accounting Nos.:
003823 81302 221 33 81301 $2,000,000 (expenditures)
Fiscal Procedures Approved:
\1414z4€4,1424
Date:
03/15/2017
Attachment: Draft HDR Agreement No. 10-31-058-06
Agenda Item 8
18
Agreement No. 10-31-058-06
AMENDMENT NO. 6 TO
AGREEMENT FOR CONSTRUCTION MANAGEMENT,
MATERIALS TESTING AND CONSTRUCTION
SURVEYING SERVICES
FOR THE
PERRIS VALLEY LINE METROLINK IMPROVEMENT PROJECT
1 PARTIES AND DATE
This Amendment No. 6 to the Agreement for Construction Management, Materials
Testing and Construction Surveying Services is made and entered into as of this
day of , 2017, by and between the RIVERSIDE COUNTY
TRANSPORTATION COMMISSION ("Commission") and HDR ENGINEERING, INC.
("Consultant"), a Nebraska corporation.
2. RECITALS
2.1 The Commission and the Consultant have entered into an agreement dated
September 8, 2010, ("Master Agreement") for the purpose of providing
construction management, materials testing and construction surveying
services for the Perris Valley Line Metrolink Improvement Project (the
"Project").
2.2 The Commission and the Consultant have entered into an Amendment No.
1 to the Master Agreement, dated June 13, 2013, for the purpose of
extending the term.
2.3 The Commission and the Consultant have entered into an Amendment No.
2 to the Master Agreement, dated August 1, 2014, for the purpose of
including additional classifications.
2.4 The Commission and the Consultant have entered into an Amendment No.
3 to the Master Agreement, dated July 20, 2015, for the purpose of
allocating funding to effectuate a budget adjustment resulting from the
extended preconstruction phase of the Project, revising and extending the
Scope of Services and providing additional compensation for the continued
provision of construction management, materials testing and construction
surveying services for the Project.
2.5 The Commission and the Consultant have entered into an Amendment No.
4 to the Master Agreement, dated March 11, 2016, for the purpose of
17336.02300\24433881.1
19
revising and the Scope of Services to complete the project, providing
additional compensation for the continued Services, clarifying the hourly
rate for subconsultant David Evans and Associates, Inc.'s land surveyors to
reflect new prevailing wage rates, and extending the term of the Master
Agreement
2.6 The Commission and the Consultant have entered into an Amendment No.
5 to the Master Agreement for the purpose of extending the term of the
Master Agreement and for providing additional compensation for continued
construction management services.
2.7 The parties now desire to amend the Master Agreement in order to provide
additional compensation for the continued provision of construction
management, materials testing and construction surveying services for the
Project.
3. TERMS
3.1 The total not -to -exceed amount of this Amendment No. 6 is One Million
Seven Hundred Thousand Dollars ($1,700,000). Work shall be performed
at the rates set forth in the Master Agreement, as previously amended.
3.2 The total not -to -exceed amount of the Master Agreement, as amended by
this Amendment No. 6, shall be increased from Twenty -Five Million Fifty
Thousand One Hundred Forty -Six Dollars ($25,050,146) to Twenty -Six
Million Seven Hundred Fifty Thousand One Hundred Forty -Six Dollars
($26,750,146).
3.3 Except as amended by this Amendment No. 6, all provisions of the Master
Agreement, as amended by Amendment Nos. 1 through 5, including without
limitation the indemnity and insurance provisions, shall remain in full force
and effect and shall govern the actions of the parties under this Amendment
No. 6.
17336.02300\24433881.1
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement No.
10-31-058-06 on the date first herein above written.
RIVERSIDE COUNTY HDR ENGINEERING, INC.
TRANSPORTATION COMMISSION a Nebraska Corporation
By: By:
John F Tavaglione, Chair Signature
Name
Title
APPROVED AS TO FORM: ATTEST:
By: By:
Best Best & Krieger LLP
Counsel to the Riverside County Its:
Transportation Commission
* A corporation requires the signatures of two corporate officers.
One signature shall be that of the chairman of board, the president or any vice president and the second
signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer
or any assistant treasurer of such corporation.
If the above persons are not the intended signators, evidence of signature authority shall be provided to
RCTC.
17336.02300\24433881.1
21
��4 o Y E A R S 1 9 7 6 E s t .
1 1 1 . 1 1 1 1 M M E N
R i v e r s i d e C o u n t y T r a n s p o r t o i i o n C o m m i s s i o n
A m e n d m e n t t o H D R A g r e e m e n t f o r
C o n s t r u c t i o n M a n a g e m e n t S e r v i c e s
A g e n d a I t e m N o . 0 8
.� ���'� r
11,5±. ' -
Riverside (aunty Transportation Commission
Atwio A trian�jyC "dSl
�aihsf
7x
Cenini Ave.
2 Arfinglrn Ave.
elm raa A�olum66a ve.
Ave
HUNTER PARK AREA STATION
RIVERSIDE
rNlvc
CR STATION (FUTURE)
locust Ave.
Sonnymeari e
Blvd. — m — —
v� MORENO VALLEY/ a s
MARCH FIELD STATION
MarXham Sl.
Cactus be
MARCH AIR
RESERVE BASE
RAMONA STATION (FUTURE). C
PERRIS
orange Rue. e
Nueva RA.
San Jr,: San Jacinto Ave.
PERRIS STATION
Ellis A+r
MORENO
VALLEY
Ramona Expressway
A SOUTH PERRIS STATION
NleGaVl VA.
d°,
Sm nsan n1
A
�s
9,.
Hunter Park Station
i
,.>, „gd'dllill'I�Illu;!� ENSII 11�
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Est. 1976
Riverside (aunty Trans
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.
Passenger
Information
Telephone
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Est. 1976
RCTC
Tra on Com an—
41
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nR+
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Station
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RCTC
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on Com ion—
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l
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Station
RCTC
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South Perris Station
40 YEARS
Est. 1976
RCTC
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on Com ion—
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I
Columbia Avenue Crossin
40 YEARS
Est. 1976
Riverside County Transportation Commission
RCTC
(9r
•.. •
ril:1011
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t
Blaine Street Crossing
40 YEARS
551.1976
(Ir
•.. •
ri1:0°11
RIBS
•
, t
t,tR
Poarch Road Crossing
0 YEARS
Est. 1976
-11 am
RCTC
Riverside County Tronsporlotion Commission
HDR Agreement for Construction
Management Services
• Amendment No. 1 : Amount N/A
— Term extension
• Amendment No. 2: Amount N/A
— Additional classification and ranges; new salary rates
• Amendment No. 3: Amount $5,200,000
— Additional construction management services; revised scope of services
• Amendment No. 4: Amount $2,300,000
— Additional construction management services; term extension; prevailing wage
• Amendment No. 5: Amount N/A
— Time extension due to construction delays
-- -413-Yr.
Est.1976
L ``
Riverside County Transportation Commission
HDR Agreement for Construction
Management Services
• Amendment No. 6 to HDR Engineering Inc. to provide additional
construction management services for the Perris Valley Line 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.
40 YEARS
Est. 1976
Riverside County Transportation Commission
i
Staff Recommendation
40 YEARS
Est. 1976
RCTC
mmission
• 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;
• Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement
on behalf of the Commission;
• 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
• Forward to the Commission for final action.