2024-08-01_Draft_Traction_Power_General_Terms_and_Conditions.pdf

PDB Traction Power Procurement

RFP No.:

Request for Proposals for Progressive Design Build Services for Traction

Power, Solar Photovoltaic, and Battery Energy Storage Systems

General Terms and Conditions

DRAFT SUBJECT TO CHANGE AND

AUTHORITY BOARD APPROVAL

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California High-Speed Rail Authority Draft General Terms and Conditions – RFP No.:

DRAFT SUBJECT TO CHANGE AND AUTHORITY BOARD APPROVAL

Table of Contents

1. Interpretation of Documents and Order of Precedence

1.1 Contract Documents

1.2 Definitions and Acronyms

1.3 Interpretation

1.4 Order of Precedence

2. Overview, Approach to the Work and Facilitated Partnering

2.1 Overview

2.2 Phasing Approach to the Work:

2.3 Facilitated Partnering for the Contract

2.4 Co-location and Meeting Space

3. Contractor’s General Obligations for all Work

3.1 Responsibility for the Work

3.2 Compliance with Law and Governmental Approvals

3.3 Standard of Care

3.4 Performance Standards

3.5 Verification and Self-Certification

3.6 Governmental Approvals

3.7 Coordination/Integration

3.8 Reports and Submittals

3.9 Project Management Plan

3.10 Configuration Management Requirements

3.11 Third Parties

4. Subcontractors and Key Personnel

4.1 Subcontractors

4.2 Key Personnel

5. Contractor’s Special Obligations for Work Prior to Construction

5.1 Responsibility for Design

5.2 5.3

5.4 Design Submittals

5.5 Design Obligations

5.6 Reference Materials

5.7 Preconstruction Phase Milestones

5.8 Phase 1B – Detailed Design

5.9 GMP Amendments

5.10 Completion of Design

5.11 Failure to Agree Upon GMP Amendment

5.12 Project Design Requirements and HSR Contractors’ Designs

5.13 Other Preconstruction Work Prior to Construction

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6. Contractor’s Special Obligations for Construction Work

6.1 Means and Methods; Supervision and Superintendence

6.2 Early Work

6.3 Protection of Persons and Property

6.4 Existing Conditions

6.5

6.6 Construction Submittals

7. Authority’s Obligations

7.1 Authority Representatives

7.2 No Relief for Authority Inspections/Review

7.3 Authority-Provided Access

7.4 Facilitated Partnering Process

8. Contract Sum and Payments

8.1 Payments for Work Prior to Execution of GMP Amendments

8.2 Payments for Work Following Execution of GMP Amendments

8.3 Invoicing and Payment

8.4 Cost of the Work

8.5 Non-reimbursable Amounts

8.6 Transfer of Title

9. Schedule and Completion

9.1 Phase 1 Schedule

9.2 Construction Phase Schedule

9.3 Project Controls

9.4 Liquidated Damages

9.5 Testing, Inspection and Non-Conforming Work

9.6 Completion and Acceptance

10. Changes in the Work

10.1 Change Orders

10.2 Authority-Directed Changes

10.3 Authority Right to Price Deduction

10.4 Design Changes

10.5 Change in Applicable Laws or Standards

10.6 Governmental Approvals

10.7 Suspension of the Work

10.8 Hazardous Materials

10.9 Differing Site Conditions

10.10 Utility Relocations

10.11 Force Majeure Events

10.12 Contractor Right to Request Time Extension and Price Increase

10.13 Limitation on Acceptance Deadline Extensions

10.14 Limitation on Delay and Disruption Damages

10.15 Delivery of Notice

10.16 Change Order Proposal

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10.17 Importance of Timely Notice

10.18 Waiver

10.19 Change Order Processing and Pricing

10.20 Change Order Accounting

10.21

10.22 Time and Materials Change Orders

10.23 Time and Materials Records

10.24 Cost and Pricing Data

10.25 Failure to Agree on Change Order

10.26 Release of Claims

11. Default and Remedies

11.1 Default by Contractor

11.2 Default by Authority

11.3 Rights and Remedies

11.4 Work Unfit for Safe and Efficient Operation

11.5 Defects or Failures in Substantially Identical Parts

11.6 Failure to Meet RAM Commitment

11.7 Failure to Procure and Maintain Insurance

11.8 Authority Damages for Events of Default

11.9 Suspension of the Work

11.10 Waiver of Claims for Consequential and Punitive Damages

12. Intellectual Property, Ownership and Licenses

12.1

12.2 Contractor IP

12.3 Project IP

12.4 Third-Party IP

12.5 Authority IP and Authority Data

12.6 Delivery

12.7 Payment Inclusive

12.8 IP Escrow

13. Warranties 13.1

13.2 13.3

13.4

13.5 Warranty Service

14. Indemnification 14.1

14.2 14.3

14.4 14.5

14.6

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14.7 Indemnification Under Railroad Contracts

14.8 Survival

15. Insurance, Security and Bonds

16. Partnering and Dispute Resolution

16.1 Partnering First ................................................ Error! Bookmark not defined.

16.2 [RESERVED] ................................................. Error! Bookmark not defined.

16.3 Governance Process for Disputes Involving Other HSR Contractors. ...... Error!

Bookmark not defined.

16.4 Notice of Dispute ............................................. Error! Bookmark not defined.

16.5 Mediation ........................................................ Error! Bookmark not defined.

16.6 Cost of Mediation ............................................ Error! Bookmark not defined.

16.7 Arbitration. ...................................................... Error! Bookmark not defined.

16.8 Additional Requirements for Subcontractor Demands .... Error! Bookmark not defined.

16.9 Waiver. ............................................................ Error! Bookmark not defined.

16.10 Consolidation of Arbitrations and Joinder of Parties. ..... Error! Bookmark not defined.

16.11 Government Claims Act Compliance. .............. Error! Bookmark not defined.

17. Hazardous Materials

18. Environmental Requirements

18.1

18.2 Environmental Governmental Approvals

18.3 Contractor’s Responsibility for Final Authority-Provided

Governmental Approvals and Supplemental or Amended

Environmental Governmental Approvals

18.4 Initial Transfer of Environmental Information

18.5 Environmental Compliance Plan Requirements

18.6 Updates to the Environmental Compliance Plan and Related Maps

18.7 Monthly Environmental Reporting and Continuing Coordination

18.8 Contract Submittals

18.9 Change in Law Affecting Environmental Requirements

18.10 Environmental Compliance Team

18.11 Cultural Resources

19. Sustainability Requirements

19.1

19.2 Project Sustainability Goals

19.3 Project Sustainability Requirements

19.4 Sustainability Management Plan

19.5 Reporting

20. State Law Requirements

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21. Representations, Warranties and Covenants

22. Federal Law Requirements

23. Documents and Records

23.1 Escrowed Proposal Documents (EPD) [RESERVED]

23.2 Audits

23.3 Confidentiality and Public Records Requirements

23.4

24. Phase 2 Educational Programming and Public Involvement

24.1 Educational Programming

24.2 Public Involvement

24.3 Contractor’s Responsibilities

24.4 Business and Residential Impact Mitigation

24.5 Community Updates/Neighborhood Boards

24.6 Construction Tours

24.7 Media Relations

24.8 Special Events

24.9 Website

24.10 Emergency Communications Plan

25. Small and Disadvantaged Business Enterprise Program and Community

Benefits Agreement

25.1 Small and Disadvantaged Business Enterprise Program

25.2 Community Benefits Agreement and National Targeted Hiring

Initiative Plan

26. Miscellaneous

26.1 Successors and Assigns

26.2 Amendments

26.3 Third-Party Beneficiary

26.4 Governing Law

26.5 Notice Regarding Ability to Perform the Work

26.6 Joint and Several Liability

26.7 Authority/Contractor Relationship

26.8 Labor Disputes

26.9 Sensitive Security Information

26.10 Authority Obligations Under Applicable Law and Grants

26.11 Time is of the Essence

26.12 Severability

26.13 Rights and Remedies

26.14 Taxes

26.15 Return of Data

26.16 Introduction of Viruses

26.17 Conflict of Interest

26.18 Commencement of Claims Limitation Period... Error! Bookmark not defined.

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26.19 Requirements Under MOU with Signatory Labor Organizations

Appendix “A” – Definitions

Appendix “B” – Insurance, Security and Bonds

Appendix “C” – PV/BESS Requirements

Appendix “D” – State Law Requirements

Appendix “E” – Federal Law Requirements

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1. Interpretation of Documents and Order of Precedence

1.1 Contract Documents. The Contract is comprised of the following Contract Documents:

(a) the Signature Document and the Exhibits attached thereto;

(b) these General Terms and Conditions, and the Appendices attached hereto;

(c) the Scope of Work

(d) the Systems Development Life Cycle (“SDLC”) Requirements

(e) […]

1.2 Definitions and Acronyms. Unless the context otherwise requires, capitalized terms and acronyms used in the Contract have the meanings given in Appendix A.

1.3 Interpretation.

1.3.1 As used in the Contract, unless the context otherwise requires, the singular shall include the plural, and the masculine gender shall include the feminine and neutral genders and vice versa. References to statutes or regulations include all statutory or regulatory provisions consolidating, amending, or replacing the statute or regulation. The words “including,”

“includes,” and “include” shall be deemed to be followed by the words “without limitation.”

Words such as “herein,” “hereof,” and “hereunder” refer to the entire document in which they are contained and not to any particular clause, provision, or Section. Words not otherwise defined that have well-known technical or construction industry meanings are used in accordance with such recognized meanings. References to Persons include their respective permitted successors and assigns and, in the case of Governmental Persons, Persons succeeding to their respective functions and capacities. Unless otherwise specified, lists contained in the Contract defining the Work shall not be deemed all-inclusive; and unless otherwise specified, references to clauses and Sections include all sub-clauses and sub-sections and references to clauses, paragraphs, sections, appendices, attachments, schedules, and exhibits are to the document which contains such references. In sentences using the imperative, unless otherwise specifically stated, the subject “Contractor” is implied and it is understood that Contractor shall perform such work, comply with the requirements of, furnish such item or take such action.

1.3.2 The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases not otherwise defined in the Contract

Documents interpreted consistently with industry standards. Notwithstanding the order of precedence set forth in Section 1.4 (Order of Precedence), in the event of any conflict, ambiguity or inconsistency between or among any of the provisions in the Contract, the provisions that establish the higher quality, manner or method of performing the Work, or use more stringent standards will prevail. Additional details in a lower priority document shall be given effect except to the extent they irreconcilably conflict with requirements, provisions and practices contained in the higher priority document. In the event of any conflict among any

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Standards, specifications, criteria, requirements, conditions, procedures, or other provisions applicable to the Work established by reference to a described manual or publication within the Contract, the standard, specification, criterion, requirement, condition, procedure, or other provision offering higher quality or better performance will apply, unless Authority in its sole discretion approves otherwise in writing.

1.3.3 The headings are for convenience and shall not constitute a part of the Contract nor be considered interpretative hereof.

1.3.4 Contractor shall not take advantage of any apparent Error in the Contract. Should it appear that the Work to be done or any matter thereto is not sufficiently explained in the

Contract, Contractor shall promptly notify Authority in writing of the insufficient explanation, shall obtain specific instructions in writing from Authority before proceeding with the Work affected thereby, and shall conform to the instructions provided. Contractor shall promptly notify Authority in writing of all Errors that it may discover in the Contract, shall obtain specific instructions in writing from Authority before proceeding with the Work affected thereby, and shall conform to the instructions provided.

1.3.5 With respect to any provision of the Contract Documents which provides for the

Authority’s approval, consent, agreement, or authorization, such approval, consent, agreement, or authorization, as applicable, shall not be effective unless it is in writing and executed by an

Authority Representative.

1.3.6 Contractor acknowledges and agrees that it had the opportunity and obligation, prior to submission of its Proposal, to review the Contract and to bring to Authority’s attention any conflicts or ambiguities contained therein. Contractor further acknowledges and agrees that it has independently reviewed the Contract with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the Contract. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of the Contract, the Contract shall not be construed against the Person that prepared it and shall be considered as drafted by both Parties. Authority answers to questions and proposer inquiries provided during the solicitation shall in no event be deemed part of the

Contract. They shall not be relevant in interpreting the Contract except as they may clarify provisions otherwise considered ambiguous.

1.4 Order of Precedence. Any inconsistencies in the Contract shall be resolved by giving precedence in the following order unless otherwise noted, provided that Change Orders shall have priority just above the document that is being amended:

(a) Terms contained in the Signature Document and Signature Document Exhibits A through X, and, if amended, the amended Signature Documents and Exhibits A through

X;

(b) General Terms and Conditions;

(d) Exhibit XX;

(e) Exhibit XX;

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2. Overview, Approach to the Work and Facilitated Partnering

2.1 Overview.

2.1.1 The purpose of this Agreement is for the Contractor to provide services to design, build, test and maintain the traction power, Solar Photovoltaic (“PV”) and Battery Energy

Storage Systems (“BESS”) for the 171-mile Project segment between Merced and Bakersfield known as the Early Operating Segment (“EOS”).

2.1.2 The Scope of Work is set forth in Exhibit XX and further describes the Work (as defined in Appendix A hereto) to be performed by Contractor and the requirements related thereto.

2.1.3 Progressive Design-Build Approach. The Project will be delivered utilizing a progressive design-build delivery method that incorporates collaboration, facilitated partnering and open-book pricing. The Contractor will work lockstep with the Authority to achieve:

2.1.3.1 The highest level of in-person communication and collaboration that allows all parties to better assess and manage risk throughout the delivery of the Project;

2.1.3.2 A greater level of certainty that the Project is within budget through an open-book cost process of pricing the Project;

2.1.3.3 An increased degree of schedule certainty and control; and

2.1.3.4 Highest quality design outcomes through innovation and value engineering solutions that put the Project first.

2.2 Phasing Approach to the Work:

2.2.1 The Work shall be performed in a progressive manner by Contractor in two phases: (1) Phase 1 – Preconstruction Phase, consisting of (a) Phase 1A – Preliminary Design

(which may sometimes be referred to as the “Design Principles” Phase), and (b) Phase 1B –

Detailed Design; and (2) Phase 2 – Construction, Testing and Maintenance Phase, consisting of (a) Phase 2A – Construction and Testing, and (b) Phase 2B – Maintenance. Generally, the phases for the Project will proceed as follows:

(a) Phase 1 – Preconstruction Phase

(i) Phase 1A (Preliminary Design/Design Principles) commences upon issuance of a written notice to proceed (“NTP”) by the Authority following execution of the Contract and includes onboarding, development of early deliverables, development of Preliminary Design and Design Principles and outline design documentation for the Early Operating Segment (approximately 171 miles between Merced Station and Bakersfield Station), and the Work further described in the Scope of Work, Exhibit XX.

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(ii) Phase 1B (Detailed Design) commences upon issuance of the Authority’s approval of the Phase 1A Preliminary Design/Design Principles and includes the development of Detailed Design documents, and the Work and deliverables further described in the Scope of Work, Exhibit XX.

(b) Phase 2 – Construction, Testing, and Maintenance

(i) Phase 2A (Construction and Testing Phase) will commence upon the

Authority’s issuance of a written NTP for construction of each Work Package following acceptance of the applicable GMP Proposals, and includes all Work required to complete construction, commissioning and testing for each Work

Package, as applicable.

(ii) Phase 2B (Maintenance Phase) will commence upon the Authority’s issuance of a written NTP for maintenance of the Work as set forth in the Scope of

Work and the approved Maintenance Plan. Additional provisions governing the Maintenance Phase are set forth in Exhibit XX.

2.2.2 Incremental Authorization. Subject to change as the Project progresses, the

Authority currently anticipates that the first NTP for the Phase 1B Work issued pursuant to

Section 5.8.1 will apply only to the First Construction Section (approximately 119 miles). The

Authority may authorize commencement of the Phase 1B Work for the First Construction

Section, the Merced Extension, and the Bakersfield Extension pursuant to separate NTPs issued by the Authority in its discretion.

2.2.3 Work Packages. It is expected that Phase 2 Work will be divided into Work

Packages generally based on geographic segments of the HSR System and/or Scope of Work.

As soon as practicable following the issuance of the Phase 1A NTP, and consistent with the

Scope of Work, Contractor shall provide its recommendations to the Authority as to how each

Work Package should be defined with a focus on maximizing Project cost and schedule efficiencies. As part of the meeting, coordination, and reporting requirements of the Contract, the Contractor shall provide regular updates to such recommendations as the Project design is developed and meet with the Authority to discuss such recommendations. During Phase 1B, the Parties will identify all Work Packages not previously identified, and for which Contractor will submit GMP Proposals upon completion of Milestone 3 (approximately 90% completion of the Detailed Design documents), or other requisite level of design agreed to by the Parties.

Work Packages shall be developed and negotiated consistent with Section 5.8 and shall become amendments to the Contract upon finalization and Authority acceptance.

2.2.4 Physical Characteristics of the Project. [RESERVED]

2.3 Facilitated Partnering for the Contract.

2.3.1 The Parties agree to establish a collaborative and facilitated partnering process for the implementation of the Work under this Agreement. The facilitated partnering process will assist the Parties in developing a collaborative environment so that communication, coordination, and cooperation are engrained, and to encourage resolution of conflicts arising under the Contract at the lowest responsible management level. As discussed in more detail in

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Section 3.7, the Parties will also participate in a similar process with the Interfacing

Contractors that will be established in a Governance Framework developed mutually among all Interfacing Contractors and the Authority. The intra-Agreement facilitated partnering process established in this Section 2.3 will focus on the delivery of the Work under this

Agreement, whereas the Governance Framework will focus on the successful integration of all work being performed by all Interfacing Contractors.

2.3.1.1 Kick-off Partnering Workshop. Within 45 days of the initial NTP, the

Authority and Contractor shall meet for the Kick-off Partnering Workshop; determine the workshop site and duration, and other administrative details. At the Kick-off

Partnering Workshop, the Authority and Contractor (and Facilitator is already retained) shall meet to mutually develop a strategy for a successful partnering process. The Parties shall develop and execute a mutually developed Partnering Charter that establishes, at a minimum, the goals of the Parties, the type and cadence of meetings/workshop, team structures and the Escalation Resolution Ladder.

2.3.2 Escalation Resolution Ladder. The Authority and Contractor shall mutually develop an Escalation Resolution Ladder, which is a stepped process that formalizes the negotiation between the Parties regarding issues and disputes that arise under this Agreement or in relation to the Work. The intent of this ladder is to provide a process that elevates issues up the chain of command between the Parties. The objective is to resolve issues at the lowest practical level and to not allow individual Project issues to disrupt overall Project momentum.

When an issue is escalated to a level, it is expected that a special meeting focusing on the negotiated settlement for that issue will be called with the goal of reaching resolution as quickly as possible. The Escalation Resolution Ladder shall include as its top tier executives from each

Partnering Team member who have direct decision-making authority.

2.3.3 Selection of a Facilitator. The Partnering Team shall meet as soon as practicable after award of Contract to work cooperatively and in good faith to select a professional neutral facilitator who has at least the following qualifications and experience:

2.3.3.1 Training and practice in the recognized principles of partnering;

2.3.3.2 At least six years’ experience in partnering facilitation with a demonstrated track record on large-scale projects with alternative/integrated project delivery methods, including public sector projects;

2.3.3.3 A skill set that may include construction management, negotiations, labor-management mediation, and/or human relations;

2.3.3.4 Other attributes mutually agreed-upon by the Parties.

2.3.4 The Contractor shall enter into a contract with the professional neutral facilitator that establishes a budget for fees and expenses of the facilitator, workshop site costs, and describes the facilitator’s role consistent with the requirements of this Section 2.3 and the

Partnering Charter. The facilitator agreement shall be amendable and terminable at will by mutual agreement of the Parties.

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2.3.5 The Authority will reimburse Contractor for any direct costs of partnering, including actual fees and expenses of a professional neutral facilitator, the workshop site costs, and other pre-approved direct costs related to partnering. Contractor shall not receive any mark-ups on these direct costs. With the exception of the Facilitators’ fees and other direct costs described in this paragraph, all costs associated with the partnering participation, workshops, and sessions, partnering evaluation surveys, or partnering skills trainings are deemed to be a reimbursable cost during Phase 1 and shall be included in the GMP Amendment for Work Packages in Phase 2.

2.4 Co-location and Meeting Space.

2.4.1 To support the Facilitated Partnering process described above, and successful development and implementation of the Work, the Contractor shall co-locate all Key Personnel at or near the Authority’s Sacramento headquarters during the term of this Agreement, or until otherwise mutually agreed upon by the Parties.

2.4.1.1 Individuals filling Additional Expertise roles shall be readily available for same-day notice, in-person meetings at the request of the Authority.

2.4.1.2 During the Phase 2 the Authority may require certain Key Personnel and/or individuals filling Additional Expertise roles to be located in the geographical area of the EOS, including the possible establishment of a physical office space, for a period of time mutually agreed upon by the Parties.

2.4.1.3 Upon mutual agreement between the Parties, the Contractor will be allowed to have certain personnel telework during all or a part of the term of this Contract.

2.4.2 Sacramento meeting space requirements. The Contractor shall secure and maintain climate-controlled space appropriate to host and facilitate the following approximate configurations:

2.4.2.1 Large meeting space to flexibly accommodate 50 people: approximately

30 of whom shall have seated space at shared tables/work surfaces with space for an additional 20 seated individuals. This large meeting space shall have modern audio-visual and technology capabilities (at a minimum compatible with the Microsoft Office suite), allow for remote video participation by individuals, visual document/presentation sharing, and wall space for whiteboarding and physical presentation;

2.4.2.2 At least 3 spaces for break-out meetings at the same time the large meeting space is in use that can accommodate up to 15 individuals seated at shared tables/work surfaces and/or seated only;

2.4.2.3 The spaces identified above shall be in the same relative location and as close to the California State Capitol building as possible, but no more than 1.5 miles therefrom, unless otherwise agreed upon by the Authority.

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3. Contractor’s General Obligations for all Work

3.1 Responsibility for the Work. Contractor shall fully execute the Work described in the

Contract Documents, except work specifically indicated in the Contract Documents as the responsibility of the Authority or others. Generally the Work includes all design, engineering, and construction, general contracting and construction management services and associated labor, services, supervision, quality control, materials (except for those provided by the Authority or others), supplies, fixtures, tools, implements, equipment, transportation and those other items, necessary, and reasonably inferable from the Contract Documents to design, engineer, and construct and complete the Work described in the Contract Documents, including, without limitation, that related to the traction power systems, utility connections, traction power substations, switching stations, paralleling stations, Solar PV Systems, and BESS. It is understood and agreed that the Work includes, without limitation, systems integration, compliance with the connection requirements of third-party railroads, inspection, testing and confirmation that

Contractor has met all applicable requirements of the Contract Documents and has complied with all occupancy and/or encroachment permit requirements of Governmental Persons as they relate to the Work.

3.1.1 Except for materials, services and efforts otherwise specifically excluded from

Contractor’s scope of Work in the Contract, all materials, services and efforts necessary for the Authority to issue a Certificate of Final Acceptance of each Work Package by the applicable deadline, shall be Contractor’s sole responsibility; subject to Section […], the cost of all such materials, services and efforts are included in the Guaranteed Maximum Price specified in each GMP Amendment.

3.1.2 Contractor shall provide evidence satisfactory to Authority that the Work complies with all Contract Requirements, including all Applicable Laws.

3.1.3 Contractor shall be fully responsible to Authority for all acts and omissions of all

Contractor-Related Entities, and shall be specifically responsible for sufficient supervision and inspection to ensure compliance in every respect with the Contract Requirements, including without limitation, the Contractor-Related Entities’ compliance with Applicable Laws and

Standards of Care.

3.1.4 Contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by

Contractor under the Contract, regardless of whether certain conceptual design work occurred and/or specifications were provided to Contractor prior to the Effective Date. Contractor shall, without additional compensation, correct or revise any errors or deficiency in its designs, drawings, specifications, and other services, and perform any necessary rework or modifications, including damage to real or personal property, resulting from a design error or deficiency.

3.2 Compliance with Law and Governmental Approvals

3.2.1 In performing the Contract, Contractor shall comply with, and shall ensure that the Work complies with, all Applicable Laws.

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3.2.2 Contractor is responsible for designing the Project so that, as constructed, the

Project will comply with all Standards and Applicable Laws. If the Contract references a specific version or date for a Standard, that version shall apply to the Work; otherwise, the most recent version in effect during the Detailed Design Phase (with respect to the Project

Design) or Construction Phase (with respect to Standards applicable to the performance of construction Work) shall apply. At the request of the Authority, Contractor shall seek to resolve any inconsistency or ambiguity with the appropriate agency or body so that the Project complies with Applicable Laws and Standards. During the Phase 1 Design Phase and throughout the course of the Project, Contractor shall notify the Authority in writing of any proposed standards, laws, regulations, or requirements that have been enacted, published, or made available to Contractor which in Contractor’s professional judgment, and in consultation with appropriate Governmental Persons and other bodies responsible for publishing Standards, are likely to be adopted and become applicable to the Work (any of the foregoing being herein referred to as “Proposed Laws and Standards”). In providing such notice, Contractor shall include a reasonably detailed description of the Proposed Laws and Standards, the anticipated cost and time impacts associated with the change, and a proposed solution for addressing such change. Contractor shall then meet with the Authority to discuss the implementation of a solution as approved by the Authority. Contractor shall only be entitled to relief for changes in

Applicable Law or Standards to the extent provided in Section 10.5.

3.3 Standard of Care

3.3.1 Design Standard of Care. Contractor and its design Subcontractors will render their respective portion of the design Work in accordance with the degree of care, diligence, prudence, foresight, and skill used by competent, skilled, and experienced design professionals designing, and performing professional services in connection with the, systems and facilities of a similar nature, at the same time and under similar conditions in the same relative geographical region of the Project. Contractor and its design Subcontractors, as applicable, will sign and affix their respective professional seals on their respective portions of the Submittals to the extent required by Applicable Law or Governmental Persons. If requirements set forth in the Contract Documents impose a higher standard of care, the higher standard of care will apply with respect to the specific portion of Work subject to those requirements.

3.3.2 Construction Standard of Care. Contractor and its construction Subcontractors will render their services for their respective portions of the Work in accordance with the degree of care, diligence, prudence, foresight, and skill used by competent and skilled contractors experienced constructing systems and facilities of a similar nature, at the same time and under similar conditions in the same relative geographic region of the Project. If requirements set forth in the Contract Documents impose a higher standard of care, the higher standard of care will apply with respect to the specific portion of Work subject to those requirements.

3.4 Performance Standards. Contactor warrants that all Work shall be performed in accordance with and will meet the performance standards as set forth in the Scope of Work.

3.5 Verification and Validation. Contractor shall comply with all requirements for

Verification and Validation as set forth in the SDLC Requirements, Exhibit XX.

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3.6 Governmental Approvals. Except for the Authority-Provided Governmental Approvals identified in Exhibit XX, Contractor shall secure and pay for all required Governmental Approvals.

Contractor’s right to reimbursement for Governmental Approvals required to be obtained during the Preconstruction Phase shall be limited to reimbursement at cost on a dollar-for-dollar passthrough basis of the fees paid by Contractor to Governmental Persons to obtain such

Governmental Approvals. The costs of Governmental Approvals relating to Work to be performed pursuant to a Work Package, or required to be obtained after commencement of such Work, are included in the Guaranteed Maximum Price for such Work Package. Contractor shall 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 such responsibility is expressly assigned in the Contract to another Person or as otherwise agreed between the Parties.

3.6.1 For any Governmental Approvals required to be obtained by Contractor, Contractor shall, subject to Authority approval, prepare all information, analyses and materials, and otherwise undertake all efforts to obtain such Governmental Approvals, including execution and delivery of appropriate applications and other documentation in a form approved by Authority. Authority shall reasonably cooperate with Contractor in obtaining any such

Governmental Approvals. For Governmental Approvals that are the responsibility of

Contractor but are required to be issued in Authority’s name, Contractor shall undertake all actions required by, and necessary to obtain and maintain in full force and effect, such

Governmental Approvals. Authority shall reasonably cooperate with Contractor in obtaining and maintaining such Governmental Approvals. Contractor shall assist Authority in obtaining any Governmental Approvals that Authority may be obligated to obtain, including providing information requested by Authority and participating in meetings regarding such

Governmental Approvals.

3.7 Coordination/Integration

3.7.1 The Parties acknowledge and understand that the success of this Project and the

System will, in large part, depend on successful coordination and integration between the

Authority and its consultants and contractors, including but not limited to the Track/OCS

Design Services Consultant, Track/OCS Contractor, the Systems Contractor, Trainsets

Contractor, Facilities Contractor(s), Stations Contractor, Operator(s), and design and construction contractors identified by the Authority to perform work on the Project and ultimately the System (the “Interfacing Contractors”).

3.7.2 Governance Framework. Contractor shall be responsible for compliance with the

Governance Framework requirements, including participating in the development of a common set of governance principles and procedures to facilitate collaborative delivery of the

Early Operating Segment (EOS), including Trainsets, and ultimately the System, across all contracts for the Interfacing Contractors.

3.7.3 The Governance Framework will be developed in collaboration with each

Interfacing Contractor, the Authority, and the Authority’s support consultants (including the

Program Delivery Support and Rail Systems Engineering consultants). The result will be a

Governance Framework, maintained and ultimately approved by the Authority, to be followed

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i. a proactive culture of collaboration and cooperation to achieve the shared goal of successfully delivering the EOS and, ultimately the System;

ii. open and timely communication;

iii. informed decision-making delegated to the lowest appropriate level;

iv. proactive identification and resolution of issues;

v. the appropriate management of risk for all participants; and

vi. delivery and certification of the EOS, and ultimately the System, consistent with Authority’s defined schedule.

3.7.4 The Governance Framework shall be an overarching document linking all

Interfacing Contractors with the Authority (and its support consultants) to define:

(a) A collaborative working relationship between Authority, the Interfacing

Contractors, Authority support consultants, and any other persons directed to attend to proactively advance the work of Interfacing Contractors to deliver the EOS and ultimately the System;

(i) Such working relationships may include contract-specific delivery groups comprised of Authority and contractor staff specific to a contract or contracts and which focus on the delivery of:

(1) the track and overhead contact system elements;

(2) the systems, traction power, and communication elements;

(3) the trainsets;

(4) the facilities; and

(5) the stations.

(ii) Such working relationships may also include an EOS-wide group or groups comprised of senior individuals from the Authority (and its support consultants) and the contract delivery groups to address EOS-wide issues, interfaces, and integration matters.

(b) an efficient organizational governance structure which includes clearly defined roles and responsibilities for each participant;

(c) the establishment, monitoring, review, and agreement on the sharing and distribution of information between and among Interfacing Contractors and other

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System;

(d) a common process for monitoring and providing input on EOS-wide development of integrated schedules, integrated designs, risk registers, and costs through inputs from the collaborative working groups;

(e) discussion channels for resolution, where feasible, and escalation procedures when required, of any issues and opportunities relating to the Interfacing Contractors’ delivery of the EOS;

(f) way(s) to exercise collaborative leadership to reach decisions and outcomes, subject to Authority approval, that are in the best interest of the EOS and System as a whole; and

(g) the frequency and administration of meetings, including record keeping.

3.7.5 The approach will rely on the creation of a hierarchy of working groups with different levels of decision-making responsibilities and authority, which will allow escalation of issues. The Governance Framework will define the principles to manage disputes and differences arising from or related to proposals from these working groups. Ultimate approval authority will reside with Authority

3.7.6 Authority reserves the right to amend the Governance Framework as needed, following input from Interfacing Contractors. Nothing in this provision nor the Governance

Framework shall pre-empt Contractor’s collaboration requirements as described in other

Contract provisions. The Governance Framework is intended to complement and further define such collaboration obligations.

3.7.7 Program Integration Requirements.

3.7.7.1 Contractor shall follow Authority’s requirements to achieve the objective of a fully integrated System, including deliverables, processes, and the corresponding roles and responsibilities of Authority and Contractor. Authority has identified a number of areas and deliverables which are key to delivering successful program integration.

Such areas and deliverables will be developed in detail to include geographical scope and limitations as well as System functionality and limitations. Contractor shall support

Authority in developing and maintaining these areas and deliverables, which may be updated and amended by Authority policies or procedures, throughout the course of the

Project and ultimately the System.

3.7.7.2 Contractor shall work with Authority, its support consultants, and its

Interfacing Contractors to ensure a coordinated and integrated team for the efficient, effective, and professional delivery of the program and ultimately, the System.

3.7.7.3 Program integration includes items such as schedule integration, organizational integration, process integration, systems integration, technology integration, and contract integration.

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3.7.8 The Authority’s review of, or failure to identify, such issues shall not relieve

Contractor of its obligation to coordinate with the Authority and the Interfacing Contractors, to coordinate its Work with adjacent work performed by others (including, without limitation, utility relocations), and to ensure that all Systems included in the Work are properly integrated with other high-speed rail systems and components included in the Project.

3.7.9 The Authority will maintain a program schedule for the Project (“Program

Schedule”). Contractor will be required to update its Project Schedule and Work Package

Schedules on a timely basis to ensure the Program Schedule is maintained. Relevant components of the Program Schedule will be provided to the Contractor on a monthly basis.

Contractor is responsible to be an active participant with the Interfacing Contractors to ensure its work is properly and timely integrated with other high-speed rail components.

3.7.10 Contractor will identify interfaces within its scope of work and that of each of the

Interfacing Contractors and provide owner resolution to these interfaces such that the Project achieves full integration. Contractor shall be an active participant in coordination activities with all other Interfacing Contractors, including those set forth in the Governance Framework.

If there are conflicts between Contractor’s schedule for its Work and the schedule of any

Interfacing Contractor, the Authority shall endeavor to resolve the conflict with the cooperation of the Contractor. Without limiting the foregoing, as the Authority has selected Contractor as its systems Contractor traction power and electrification, Solar PV Systems, and BESS, Contractor has a unique and elevated responsibility to ensure the proper coordination and to the extent required integration among and between all of these components. Contractor’s integration obligations are further defined in the Scope of Work.

3.7.11 Contractor shall coordinate the Work with the work of the Interfacing Contractors directly and/or utilizing the Governance Framework. Contractor shall promptly notify

Authority in writing of any HSR Contractor that contacts Contractor seeking coordination.

Contractor’s Interface and Integration obligations under the Contract apply, without limitation, with respect to: (i) the Project Design and each Work Package; and (ii) all civil HSR

Contractors regarding all Civil Infrastructure Works, including portions of the Project for which Authority has not issued an NTP.

3.7.12 If any part of the Work is dependent in any way on the work of any HSR

Contractor (including its subcontractors and all other Persons for whom an HSR Contractor is legally or contractually responsible), Contractor shall visually inspect, including dimensional verification of interface points, the critical items of any such contractor's work, and review the

Contract Documents, and other documents and information made available to Contractor pertaining to such work, before relying on or incorporating such work into the Work. If, as a result of such visual inspection and review, Contractor reasonably believes that an HSR

Contractor’s work, or issues therewith, prevent the Contractor from meeting the technical and performance requirements of the Work, Contractor shall notify Authority, in writing, immediately upon such discovery, and in any event before relying on or incorporating such work into the Work or otherwise performing Work that is connected with or dependent upon such work. Except for latent construction defects (defects not reasonably discoverable by

Contractor’s visual inspection, including dimensional verification of interface points, and review of the Contract Documents, and other documents and information made available to

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Contractor pertaining to such work) in the Civil Infrastructure Works caused by an HSR

Contractor or other Persons for whom HSR Contractor is legally or contractually responsible, Contractor shall waive its right to any claims regarding any defects in such other contractor’s work if Contractor fails to timely notify Authority of any defects in such other contractor’s work that Contractor discovered or reasonably should have discovered during inspections performed as part of the handover process for the Civil Infrastructure Works under the Contract

Documents.

3.7.13 Contractor Right of Entry Agreements. Contractor shall execute the applicable

Contractor Right of Entry Agreement with BNSF, UPRR and SJVR, as needed, which contains additional insurance and indemnification obligations. Template forms of the Contractor Right of Entry Agreements are attached to the Contract as Exhibit XX.

3.8 Reports and Submittals

3.8.1 Contractor shall prepare and timely deliver reports related to the Work and other required Submittals in accordance with Exhibit XX.

3.8.2 Prior to submission of any Submittals, the Contractor shall prepare a Submittal and Design Schedule in accordance with Section 5.3, and shall submit the schedule for the

Authority’s approval. With each Submittal to the Authority, Contractor represents to the

Authority that it has (1) reviewed and approved the Submittal, (2) determined and verified materials, equipment, field measurements and field construction criteria therein or related thereto, or will do so and (3) checked and coordinated the information contained within such

Submittals with the requirements of the Contract, as well as the as-built conditions of the Civil

Infrastructure Works, if any, related to each such Submittal.

3.8.3 Contractor shall submit all drawings and other Submittals for either Authority

“review” or Authority “approval” as described in this Section 4.9 (unless the Contract requires otherwise). The approval process represents a hold point and Contractor may not proceed at its own risk. The review and SONO process does not represent a hold point and Contractor may proceed at its own risk. All submittals are for Authority review, unless the Contract or the Submittal and Design Schedule expressly states that the submittal is subject to a different standard. Design submittals shall be provided by Contractor in accordance with its Submittal and Design Schedule, as set forth in Section 5.3.

In response to a submittal for Authority review, Authority’s response, if any, will fall into one of the three following categories:

(a) Statement of No Objection (SONO)

(b) Statement of No Objection With Comments (SONOC)

(c) Statement of Objection With Comments (SOOC)

In response to a submittal for Authority approval, Authority’s response will fall into one of the three following categories:

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(d) Approved

(e) Approved With Comments

(f) Not Approved With Comments

Unless otherwise specifically required by the Contract, Authority is not required to respond to submittals that are for Authority review. Authority shall respond to any submittal for approval within 45 days after receipt, unless the Contract expressly provides a different response time.

For submissions returned SONOC or “Approved With Comments,” Contractor shall as soon as possible, but not later than 30 days after receipt of Authority’s response, address the comments, and provide written notice to Authority how it addressed the comments.

When Authority returns a submittal “Not Approved With Comments” or SOOC, Authority will transmit the reasons to Contractor. Should Contractor not understand or agree with

Authority’s comments, Contractor shall schedule a meeting with the relevant stakeholders for the purposed of conducting an over-the-shoulder review session to achieve understanding and resolve any open concerns. This the Parties are unable to resolve all open concerns at said meeting, the Contractor will initiate correspondence with Authority regarding resolution of the matter within 5 days after the meeting and the Parties will continue to regularly engage until all open issues are resolved. Once mutual agreement is reached regarding the open concerns, Contractor shall address Authority’s comments and resubmit the entire package within 20 days of said mutual agreement. A partial resubmission will not be acceptable.

Notwithstanding anything in the Contract Documents to the contrary, no submittal response, whether in the form of an approval, comments,…