7-05. FR2X Section 3 General Conditions.pdf

SECTION 3: GENERAL CONDITIONS

JULY 1, 2025

Utah Department of Transportation 20253 / Project No. S-ST99(835)

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Table of Contents

SECTION 3: GENERAL CONDITIONS

GC 1. Definitions, Interpretation Conventions, And Other Miscellaneous Matters GC 1.1 Definitions GC 1.2 Explanations, Omissions, And Mis-Descriptions GC 1.3 Federal Requirements

GC 2. Materials and Workmanship GC 3. Conformance with Specifications and Drawings GC 4. Inspection and Testing

GC 4.1 General

GC 4.1.1

GC 4.1.2

GC 4.1.3

GC 4.1.4

GC 4.1.5

GC 4.1.6

GC 4.2 Non-Conforming Work GC 4.3 Risk of Loss

GC 5. Title and Warranty of Title GC 6. Intellectual Property

GC 6.1 Intellectual Property Indemnification GC 6.2 Intellectual Property Warranty GC 6.3 Tooling Rights

GC 7. Data Rights GC 7.1 Proprietary Rights/Rights in Data GC 7.1.1 Uses GC 7.1.2 Limits GC 7.2 Software Escrow Account

GC 8. Changes GC 8.1 Contractor Changes GC 8.2 Department Changes

GC 9. Legal Clauses GC 9.1 Limitation of Liability GC 9.2 Indemnitee Negligence GC 9.2.1 Joint or Concurrent Negligence GC 9.3 Suspension of Work GC 9.4 Notice of Labor Dispute GC 9.5 Delays GC 9.5.1 Department Caused Delays GC 9.5.2 Force Majeure Delays

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GC 9.6 Termination GC 9.6.1 Termination for Convenience GC 9.6.2 Termination for Default GC 9.6.3 Any Termination GC 9.7 Reserved GC 9.8 Changes of Law GC 9.9 Reserved GC 9.10 Claims GC 9.10.1 Notice of Intent to Claim GC 9.10.2 Claim Submittal GC 9.10.3 Claims and Dispute Resolution Process GC 9.10.4 No Claims After Final Payment GC 9.11 Reserved GC 9.12 Confidential Information GC 9.13 Conflicts of Interest; Gratuities GC 9.14 General Nondiscrimination Clause GC 9.15 Reserved GC 9.16 Amendment and Waiver GC 9.16.1 Amendment GC 9.16.2 Waiver GC 9.17 Remedies Not Exclusive GC 9.18 Counterparts GC 9.19 Severability GC 9.20 Third-Party Beneficiaries GC 9.21 Assignment of Contract GC 9.22 Reserved GC 9.23 Reserved GC 9.24 Reserved

GC 10. Understanding of Operating Conditions and Environment GC 11. Submission of Documents Appendix 1 EXAMPLE OF A SOFTWARE ESCROW AGREEMENT

Exhibit A: Documentation Exhibit B: Certificate as to Deposit of Additional Source Codes Exhibit C: Fees Exhibit D: License Agreement

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GC 1. Definitions, Interpretation Conventions, And Other Miscellaneous Matters

GC 1.1 Definitions Agency, or Utah Transit Authority, or UTA: Utah Transit Authority, a public transit district under the laws of the State of Utah.

Authorized Signer: The person who is executing the Contract on behalf of the Contractor and who is authorized to bind the Contractor.

Award: Notification to the Contractor of acceptance by the Department of its Proposal.

Best and Final Offer (BAFO): The last Proposal made by a Proposer. If a BAFO is not specifically requested by the Department, or if the Proposer does not promptly respond to a request for BAFO, then the most recent, current Proposal is the BAFO.

Change Order: A written document, signed by the authorized representatives of the parties, that alters the scope of the Work to be performed by the Contractor, changes the schedule of performance of the Work, increases or decreases the Contract Price, increases or decreases any applicable schedule (including the Contract Time or the CPM Schedule), or makes any other change to the Contract.

Change Request: A document submitted by the Contractor to the Department requesting that a Change Order be issued. The document shall describe the proposed change, identify the Work that the Contractor proposes to change and state the reasons for the change, and include relevant circumstances, impacts on the Schedule and estimated cost impacts.

Changes of Law: Alterations in any statutes or regulations impacting the Work that become effective after the Proposal Due Date and results in changes that affect Contract Price.

Claim: A written demand by the Contractor, after a Change Request has been denied (in whole or in part) and after the Contractor has submitted a proper Notice of Intent to Claim, that seeks (1) the payment of money in a sum certain; (2) an extension of Contract Time; (3) an adjustment of Contract terms; and/or

(4) other relief arising under or relating to the Contract.

Component: Any element that is incorporated into a DMU or into any other Equipment to be delivered under the Contract, and Components include, but are not limited to, a unit, part, product, module, subcomponent, system, subsystem, assembly, subassembly, materials, software, firmware, structure, or other term indicating a part or portion of the Equipment.

Conditional Acceptance: A written certificate issued by the Department to a completely assembled DMU, located at the Department’s designated facilities or the designated vehicle acceptance facility, that has successfully completed tests outlined in accordance with Section 6: Technical Specifications, and is ready to run in revenue service except for minor Defects that require corrective action but that will not materially affect safety and or revenue service operations. Conditional Acceptance requires that all documentation for the DMU, including the Vehicle History Book, per Section 6: Technical Specifications, have been delivered to UTA or the Department, and accepted by the Department.

Contract: The complete set of written terms between the Department and the Contractor that sets forth the rights and obligations of the parties in connection with the Work, and which is stated in the Contract Documents (including their incorporated attachments, incorporated exhibits, matters incorporated by reference, Change Orders, authorized directives provided pursuant to them, and all provisions required by law to be inserted in the Contract, whether actually inserted or not). Whenever separate publications are referenced in the Contract, it is understood to mean the publications, as amended, which are current on the Proposal Due Date, unless otherwise noted.

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Contract Documents:

The following documents (including their incorporated attachments, incorporated exhibits, matters incorporated by reference, Change Orders, authorized directives provided pursuant to them, and all provisions required by law to be inserted in the Contract, whether actually inserted or not) as they may be modified from time to time by the parties:

• The Cover Agreement

• State of Utah Standard Terms and Conditions

• General Conditions (“GC”)

• Special Provisions (“SP”)

• Federal Clauses

• Technical Specifications (“TS”)

Warranty (which is part of the Contract Documents, and which as a requirement of this Contract the Contractor also must enter directly with UTA using the Warranty Agreement that is a part of the Contract Documents).

The Contractor’s Proposal as accepted by the Department and to the extent it is consistent with the Contract, and the Department’s Request for Proposals All accepted Drawings and Specifications

Contract Deliverable Requirements List (CDRL): The CDRL is a list of data and documentation requirements the Contractor is required to deliver as required by the RFP and Contract and is incorporated into the Technical Specifications as an attachment.

Contract Price: The price to be paid by the Department consistent with the Contract Documents for Contractor’s performance of the Work, as specified in Exhibit B to the Cover Agreement.

Contract Time: The number of days, or portion thereof, allowed for completion of the Work, including all authorized time extensions. The date specified in the Notice to Proceed shall be the date on which the Contract Time begins, and the Final Completion date shall be the date on which the Contract Time ends.

Contractor: The successful Proposer to whom a Contract is awarded and that, after Award, enters into the Contract to perform the Work.

Cover Agreement: The initial document in the Contract Documents that sets forth some of the Contract terms and that contains execution signatures.

Critical Path: The longest continuous sequence of activities through a schedule that establishes the minimal overall duration to completion.

Critical Path Method (CPM) Schedule: A schedule that includes the planned sequence of activities that comprise the Project, including a breakdown of all of the elements of the Work into individual tasks, the number of days required to perform each task, and their logical relationship. The CPM schedule includes the entire Contract Time, from Notice to Proceed 1 as described in SP 3.1.2.1 Notice to Procced 1 to the Final Completion date, and it is required under SP 3.2 CPM Schedule and Progress Reports.

Cure Notice: Written notice from the Department to the Contractor to cure a default, or Defective condition, or to correct Work performed not in conformance with the Contract.

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Days: Calendar days unless otherwise indicated. However, if the final date to perform any act specified in the Contract Documents (including dates when notices must be issued) falls on a non-working day, such act or notice may be timely performed on the next succeeding day which is a working day unless the action to be taken involves an emergency or urgent condition that requires prompt action to properly address.

Defect/Defective: Prior to Final Acceptance of a DMU or acceptance of any Equipment or during the period of any warranty, a condition of any part of the Work that does not meet the Contract requirements;

or causes a vehicle or a portion of the Work to cease operating or to operate in a degraded mode; or inflicts damage or harm on any other portion of a vehicle or the Work.

Department or UDOT: The Utah Department of Transportation.

Department Furnished Equipment: Any materials and equipment furnished by the Department or by UTA to the Contractor for use under the Contract.

Diesel Multiple Unit (DMU): The commuter rail vehicles the Contractor is to provide under the Contract Documents.

Disadvantaged Business Enterprise or “DBE”: A disadvantaged business enterprise, as such term is defined in 49 Code of Federal Regulations (CFR) Part 26.

Disadvantaged Business Enterprise Program or “DBE Program”: the Disadvantaged Business Enterprise program created pursuant to 49 CFR Part 26.

Drawings: All drawings necessary or required for the prosecution of the Work.

Equipment: Any and all manufactured products that are deliverables under the Contract. Equipment includes, but is not limited to, the following when one of the following is specified as an independent deliverable under the Contract (not a Component of a deliverable): machinery, DMUs (including all Components), products, material fittings, devices, appliances, accessories, fixtures, apparatus, and supplies and parts (including Spare Parts).

Extended Warranty: Any warranty associated with the Equipment or a Component that extends beyond the general warranty period listed in the Warranty section.

Federal Railroad Administration or “FRA": The Federal Railroad Administration of the U.S.

Department of Transportation.

Federal Transit Administration or “FTA”: The Federal Transit Administration of the United States Department of Transportation.

Field Modification Instruction (FMI): A formal document issued by manufacturers to outline specific changes or upgrades to equipment or systems, typically implemented in the field to address safety, performance, or reliability issues.

Final Acceptance of a DMU: A written certification issued by the Department acknowledging that the DMU has been completed in full accordance with the Technical Specifications and Contract Documents, including all testing, approved engineering submittals, and Change Orders; all corrective actions identified at the Conditional Acceptance stage have been completed, and all required documentation for the DMU has been received and approved by the Department. Final Acceptance does not affect the Contractor’s responsibility for latent defects or warranty obligations.

Final Completion: The Final Acceptance of all DMUs and the fulfillment and completion of all the Contractor’s Work and obligations under the Contract Documents, excluding latent defects, warranty, and option obligations.

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Final Payment: Payment made to the Contractor within 30 days of presentation of the Contactor’s final invoice and issuance after Notice of Final Completion by the Department.

Interim Change Notice: A Department response to a Change Request specifying the proposed change and action that the Contractor should undertake on an interim basis before final terms are established in an executed Change Order.

Latent Defect: A Defect in materials, workmanship, or design that was not discoverable through reasonable inspection or testing at the time of delivery or acceptance which manifests after the expiration of the warranty period specified in the Contract Documents, and is attributable to non-compliance with applicable specifications, Drawings, industry standards, or good engineering practices.

Mandatory Milestone: A discreet element of the Work to be delivered by the Contractor when and as described in SP 3.1.3 Schedule of Mandatory Milestones.

Milestone Payment Schedule: The schedule of events and deliverables triggering periodic payments under the Contract Documents.

Notice of Completion: The document issued to the Contractor upon the satisfactory inspection of Work making up a Mandatory Milestone as described in SP 4.7 Completion of Mandatory Milestones. The document signifies that the Mandatory Milestone is completed as per the Contract Documents and is ready for payment to the Contractor.

Notice of Intent to Claim: A written notice of a potential Claim submitted by the Contractor to the Department within the time limits and under the circumstances specified in the Contract Documents.

Notice to Proceed (NTP): Written authorization from the Department to the Contractor that establishes the date that the Contractor is to start Work, and the Period of Performance begins. A Notice to Proceed may be limited by the Department to certain elements of Work, may be subject to a limitation on the amount the Contractor may invoice for Work performed thereunder, and may be subject to other limitations and conditions stated in the notice.

Notice to Proceed 1 (NTP1): The first Notice to Proceed issued by the Department as defined in SP.3.1.2.1 Notice to Proceed 1.

Notice to Proceed 2 (NTP2): The Department will issue a Notice to Proceed for remaining Work as the Department may determine in its discretion and further defined in SP 3.1.2.2 Notice to Proceed 2.

Pass-Through Warranty: A warranty provided by the Contractor but administered directly with the Component Supplier.

Period of Performance: The total time period as set forth in the Contract Documents for the Contractor to complete all or a designated portion of the Work under the Contract.

Pilot Vehicle: The first two DMUs to be delivered under the Contract. “Pilot Vehicles” encompasses any reference to “pilot” throughout the Contract Documents.

Project: In this Contract, the term “Project” refers to performing all Work, including but not limited to delivering all DMUs ordered by UDOT in the manner required by the Contract Documents.

Project Manager or PM: The individual designated by the Department, or by the Contractor, to manage the Contract on a day-to-day basis. The Contract Documents may refer to a UDOT or Department PM and a Contractor PM.

Proposer: The legal entity that responds to the Department’s Request for Proposal.

Proposal: An offer submitted to the Department in response to the Department’s Request for Proposals (including any Best and Final Offers).

Proposal Due Date: The last date provided for receipt of Proposals.

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Related Defect: A Defect in materials, workmanship, or design that (a) occurs in or is caused by components, systems, or subsystems that are connected to or affected by the repair, replacement, or correction of another Defect, (b) results from or is exacerbated by actions taken during the repair, replacement, or correction of a Defect, including but not limited to disassembly, reassembly, or testing, or

(c) manifests due to an inherent or systemic issue within the rail vehicle design, manufacturing, or integration process.

Request for Proposals (RFP): The Document issued by the Department that solicits proposals to perform the Work under the Contract Documents.

Spare Parts: Components supplied by the Contractor intended for use in maintenance or repair of vehicles.

Special Tools: Any special tools, jigs, dies, fixtures, molds, castings, patterns, diagnostic equipment, test equipment, manufacturing drawings and similar items that are reasonably necessary to operate and maintain the DMUs and not commercially available.

Specifications: Project specific plans or provisions prepared by the Contractor for acceptance by the Department that describe the Project or elements of Work to be completed by the Contractor.

Subcontractor: Any person, firm, partnership, corporation or other entity, other than an employee of the Contractor, that contracts directly with the Contractor to perform any part of the Work (including but not limited to furnishing labor or materials), and any lower-tier subcontractor.

Submittal: Any document or sample prepared by or for the Contractor that is required by the Contract Documents to be submitted to the Department by the Contractor.

Superior Warranty: A warranty that is still in effect after all contractually required warranties have expired.

Supplier: Any person, firm, partnership, corporation, or other entity, other than an employee of the Contractor, that contracts directly with the Contractor to provide materials or products for use in the Work (but not labor or services other than delivery), and any lower-tier supplier.

Technical Specifications: Technical Specifications are those set forth in the Technical Specifications included in the Contract Documents. Technical Specifications, to the extent provided by the Department, are intended by the Department and Contractor to be performance specifications (as opposed to design specifications) and they carry no implied warranty of suitability regarding the resulting DMUs and associated Work, which is the Contractor’s responsibility.

Test Plan: The Inspection and Test Plan prepared by the Contractor and accepted by the Department pursuant to SP 9 Testing and the Technical Specifications to establish the procedures that the Contractor will use to test a DMU prior to its Conditional Acceptance.

Total Contract Price: The total compensation approved by UDOT's governing board to be paid to the Contractor in accordance with the successful meeting of the terms of the Contract, including all Amendments, Change Orders and other modifications thereto.

Work: All materials, activities, actions, and other efforts of any kind whatsoever that are needed to complete the performances required by the Contract Documents in a manner that is proper, timely, in compliance with the Contract Documents, and to the satisfaction of Department, including but not limited to: providing the completed new DMUs; providing all other items of Work indicated or referenced in the Contract Documents (including all alterations, amendments or extensions thereto made by Change Order); successfully completing all required tests and all reliability periods; and remedying all defects and completing all necessary repairs and modifications resulting from the tests, the reliability periods, and warranties.

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GC 1.2 Explanations, Omissions, And Mis-Descriptions The Contractor shall not take advantage of any apparent error or omission in the Contract Documents.

Should it appear that the Contract Documents, the Work or any matters relating thereto are not sufficiently detailed or explained, the Contractor shall apply to the Department in writing for such further written explanations as may be necessary and shall conform to the explanation provided. The Contractor shall promptly notify the Department of all errors, omissions, inconsistencies, ambiguities, or other defects (including inaccuracies) which it may discover in the Contract Documents and shall obtain specific instructions in writing regarding any such error, omission, inconsistency, ambiguity, or defect before proceeding with the Work affected thereby. If the Contract Documents omit or misdescribe any detail of any Work which is necessary to carry out the intent of the Contract Documents, or which is customarily performed, that fact will not relieve the Contractor from performing such omitted Work (no matter how extensive) or misdescribed detail of the Work, and it must be performed as if fully and correctly set forth and described in the Contract Documents.

GC 1.3 Federal Requirements Notwithstanding anything to the contrary contained herein, in the event of any direct conflict between any federal requirements and the other requirements of the Contract Documents, the federal requirements will prevail, take precedence, and be in force over and against any such conflicting provisions. The Contractor shall comply with the requirements of the FTA, as set forth in the Federal Clauses or elsewhere.

GC 2. Materials and Workmanship The Contractor shall be responsible for all Work, including but not limited to materials and workmanship in the construction of the DMUs and all other Equipment, whether the same are manufactured by the Contractor, a Subcontractor or purchased from a Supplier.

Unless specifically provided for in the Technical Specifications, all materials and parts furnished by the Contractor shall be new and free from Defects. Used, damaged, re-worked, obsolete, or demonstrator models will not be acceptable. All Components, Equipment or parts used for the same function or purpose must be interchangeable and identical in construction unless otherwise approved in writing by the Department.

The Department shall have the right to reject any material and workmanship that is not in conformance with the Contract or accepted industry practices.

Repeated rejections of material or workmanship by the Department shall be considered a failure of the Contractor’s quality assurance (QA) Program which, at the Department’s discretion, may be cause for stopping all Work until corrective measures have been implemented to the Department’s satisfaction.

Any Department Furnished Equipment that is contemplated by the Contract Documents will be delivered to the Contractor as agreed between the Parties. All unloading, transportation, handling, storage, protection, or installation from the agreed delivery point must be the responsibility of the Contractor.

The Contractor shall inspect Department Furnished Equipment and shall immediately notify the Department's PM, in writing, of any lost, missing, inferior, defective, inappropriate, or damaged materials. If any Department Furnished Equipment is lost or damaged from any cause after receipt by the Contractor, the Contractor shall be liable to the Department for the cost of replacing or repairing such Department Furnished Equipment and the cost thereof may be deducted from monies due, or to become due, to the Contractor.

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All loss or damage arising from any unforeseen obstruction or difficulties, either natural or artificial, which may be encountered in the prosecution of the Work or the furnishing of the Work, or from any act or omission not authorized by the Contract on the part of the Contractor or any agent or person employed by it, will be the responsibility of the Contractor.

Any part of the Work found to be damaged or Defective at the time of delivery by the Contractor must be repaired, replaced, or corrected by the Contractor hereunder without additional cost to the Department.

If the Contractor fails to comply with the Contract, the Department will, upon written notice to the Contractor, deduct the cost of non-conforming or Defective Work, and any costs incurred by the Department to remedy the non-conforming or Defective Work, from any compensation due or to become due to the Contractor.

GC 3. Conformance with Specifications and Drawings Materials furnished and Work performed by the Contractor shall conform to the requirements of the Technical Specifications and other Contract Documents. Technical Specifications, Drawings and any other data provided by the Department or by UTA are intended as performance specifications and criteria for the end product of DMU’s, Equipment and other items of Work and not as detailed instruction for how Contractor is to perform the Work or to achieve the end result for the DMU’s, Equipment and other items of Work contemplated by the Department. Such Department or UTA provided specifications or drawings involve no express or implied warranty of sufficiency of specifications. Notwithstanding the provision of Drawings, Technical Specifications or other data when furnished by the Department, the Contractor shall have the responsibility for employing its own skill, experience, and expertise, and supplying all Work (including designs and parts) that is required to make the DMUs, Equipment and other items of Work complete and ready for service even though such details may not be specifically mentioned in the Drawings and specifications. Any items that are installed by the Department shall not be the responsibility of the Contractor unless they are included in the Contract.

GC 4. Inspection and Testing

GC 4.1 General

GC 4.1.1

The Contractor has the sole responsibility under the Contract Documents for inspecting all Work provided and all materials furnished. The Department and its designated representatives may perform additional inspections at its discretion to verify the sufficiency of the Contractor’s quality control (QC) or for any other purpose. When designating representatives, the parties agree that the Department may designate UTA to act as a representative of the Department in connection with any inspection. Whether or not the Department has designated a representative, only the Department may accept or reject any Work or provide direction to the Contractor. Any inspections performed, or direction provided, by Department or by UTA are solely for Department’s benefit and do not relieve the Contractor of its responsibility to perform the Work in accordance with the Contract Documents. The Department reserves the right to reject materials or workmanship on the basis of Department-instituted inspections. The Department may inspect all or any part of the Work at any reasonable time. The Contractor shall give the Department and any person designated by Department access to the DMUs and other Equipment at any place or stage of their manufacture, preparation, shipment, or delivery.

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GC 4.1.2

The Department’s right to make inspections includes the right to order the Contractor to uncover concealed portions of the Work until Final Acceptance of a DMU. This right to order the Contractor to uncover concealed portions of the Work includes the removal of panels, plates, Components, or other aspects of finished Work that prevent the inspection of additional portions of the Work. Should the Work exposed or examined as the result of this Section prove to be in accordance with the Contract Documents, the inspection will be treated as additional Work requested by the Department, and the Department will issue a Change Order compensating the Contractor for its incremental costs (including any duplicative Work) required as the result of the inspection. Should the Work exposed or examined as the result of this Section prove not to be in accordance with the Contract Documents, the Contractor shall bear all costs related to both the inspection and all required corrective Work, and no Change Order will be issued.

GC 4.1.3

The Department shall at all times have access to the Work, the Contractor and, through the Contractor, its Subcontractors and Suppliers. The Contractor and its Subcontractors and Suppliers shall provide all access and assistance needed for ascertaining that the materials and the workmanship are in accordance with the requirements of the Contract Documents. All Work done shall be subject to the Department’s inspection and approval in accordance with the approved Work products developed as a result of the Contract Documents.

The Contractor shall, at no additional expense to the Department, provide the Department with private offices for the use of Department's PM, the Department's inspectors, and other field staff designated by Department from time to time. The Contractor shall provide offices at the following locations:

1. The Contractor’s engineering and design facility;

2. The Contractor’s manufacturing facility; and

3. The Contractor’s assembly facility.

The office space must include the use of a desk, telephone, and personal computer unless otherwise directed by the Department. The office space must also include access to an internet connection, color printers, file cabinets, copying machines, and other facilities necessary for the conduct of business as requested by the Department.

The Contractor will allow the Utah Transit Authority (UTA) the same access to the Work as the Department has.

GC 4.1.4

The Contractor shall inspect all materials, supplies and equipment that are to be used, or incorporated in the Work. In addition, Contractor shall conduct a continuous program satisfactory to the Department of quality control for all Work performed under the Contract. The Contractor shall have the primary responsibility for inspecting the Work. Any inspection by the Department is conducted in connection with the Department’s interests. Any observation, inspection, or approval of the Work by the Department shall not relieve the Contractor of any of its obligations to perform the Contract as prescribed. If, in the opinion of the Department, the Contractor fails to execute its responsibility for quality control and inspection on any part of the Work, then the Department may, at its option, conduct quality control and inspection activities in lieu of the Contractor at the Contractor’s expense. Such inspection shall not relieve the Contractor of its liability for defective or unsuitable Work, as described in GC 4.2 Non-Conforming Work. Work not meeting the requirements of the Contract shall be made acceptable, and unsuitable Work may be rejected, notwithstanding that payment for such Work may have been previously authorized and included in a payment. A deduction may be made from subsequent payments and withheld until such time

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GC 4.1.5

All Components to be incorporated into the Work will be subject to the testing requirements set forth in the Technical Specifications and other Contract Documents, and none of the foregoing will be incorporated into the DMUs or other Equipment unless the same has successfully passed the applicable test(s). The Contractor shall prepare a Test Plan for the DMUs (or other Equipment) as specified in SP 9 Testing and the Technical Specifications. The Test Plan must include, without limitation, the following information:

1. Each and every test point and its location in the manufacturing cycle; and

2. The test procedures and the forms to be used at each test point.

GC 4.1.6

The Test Plan must include not only the testing to be performed by the Contractor, but also all testing to be performed by Subcontractors and Suppliers. The Test Plan must be furnished to the Department for review and acceptance. The Test Plan, as reviewed and accepted by the Department, will become part of the Contract Documents and is incorporated herein, and the Contractor shall be required to perform in accordance with the test plan. The Test Plan may be revised and updated by the parties throughout the continuation of the Work. The Department must be apprised of all such tests in advance to be able to witness any testing at its discretion, whether witnessed by the Department or by its designated representative. The Contractor shall be responsible for any necessary corrective action and retesting until the applicable certified test results have been approved by Department. All testing must be performed by and at the expense of the Contractor and the Contractor shall furnish the necessary testing instruments and apparatuses.

GC 4.2 Non-Conforming Work Materials furnished and Work performed by the Contractor must conform to the requirements of the Technical Specifications and other Contract Documents. Materials furnished or Work performed which does not comply with such requirements will be considered non-conforming. Non-conformance includes, but is not limited to, the following:

1. Work performed or Materials furnished contrary to the Department’s instructions;

2. Work added, deleted, or changed to or from the requirements of the Contract Documents without the written authorization of the Department;

3. Defective Work;

4. Work which includes the incorporation of unapproved substitutions or unapproved Equipment; or

5. Work performed or materials furnished without the required testing, inspection, or other conformance documentation or without required warranties.

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If the Department determines that any materials, Equipment or workmanship proposed for or incorporated in the Work is non-conforming, then the Department shall have the right to reject such Work by giving the Contractor written notice that such Work is non-conforming. The Department, at its option, shall require the Contractor, within a designated time period as set forth by the Department, to either (1) promptly repair, replace or correct all Work not performed in accordance with the Contract at no cost to the Department; or (2) provide a suitable corrective action plan at no cost to the Department. Once accepted by the Department, the Contractor shall implement the corrective action plan at no cost to the Department. If the corrective action plan as accepted by the Department does not remedy the Defective or non-conforming Work, then the Contractor shall remain responsible for remedying the non-conforming Work to the Department’s satisfaction and at no additional cost to the Department. The Contractor shall also be responsible for repairing all property and Work damaged by the Contractor at no cost to the Department. Under no circumstances shall the Contractor be entitled to additional time or money for the correction of Defective or non-conforming Work, or for the repair of damaged property.

The Department’s inspection of the Work or right to reject non-conforming Work shall not relieve the Contractor of its full responsibility for performing the Work in full conformance with the Contract Documents. No failure or forbearance of the Department in notifying the Contractor of non-conforming Work shall relieve the Contractor of its Contract responsibility to ensure that the Work is performed in accordance with the Contract Documents.

GC 4.3 Risk of Loss From the receipt of any NTP until Conditional Acceptance, the Contractor shall assume the risk of loss or damage to the DMUs to the fullest extent permitted by law. The Contractor shall bear the risk of loss irrespective of whether such loss or damage arises from the acts or omissions of the Contractor, the Department, third parties, or from any other cause whatsoever (excepting loss or damage arising from the negligent acts or omissions of the Department or of UTA, to the extent that such loss or damage was caused by the negligent acts or omissions of the Department or of UTA, which will be borne by the Department or UTA, respectively). The risk of loss or damage to the DMUs will transfer to the Utah Transit Authority (UTA) at Conditional Acceptance, at which time UTA shall assume responsibility for the care, protection, and ordinary upkeep for a DMU. Nothing provided in this Section GC 4.3 will relieve the Contractor from the performance of open items of Work or warranty Work after Conditional Acceptance. From and after Conditional Acceptance, the Contractor shall also continue to bear the risk of any losses caused by the Contractor’s negligent or willful acts.

GC 5. Title and Warranty of Title Title to each vehicle shall vest in the Utah Transit Authority (UTA) upon Conditional Acceptance. The title received by UTA shall be considered full legal title with rights to unconditional possession and ownership. The Contractor, shall, within five (5) days after receipt of the notice of Conditional Acceptance with respect to any vehicle, deliver to the Department a bill of sale or other instrument that shall be evidence that UTA has acquired full title to such vehicle free and clear of all liens, claims, security interests or encumbrances of any kind. Contractor shall execute such further documents or perform such further actions as may be necessary to effect this transfer of title.

GC 6. Intellectual Property All provisions of this Section GC 6 shall survive any termination or expiration of the Contract.

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GC 6.1 Intellectual Property Indemnification The Contractor shall indemnify, defend and hold harmless the Department and UTA (and their officers, directors, agents or employees) to the maximum extent permitted by law from and against any and all claims, liabilities, losses, damages or expenses (including attorneys’ fees and related costs, whether or not litigation has commenced), whether direct or indirect, arising out of, relating to or in connection with any claim or allegation that the ownership, possession or use of any software, materials, equipment, devices, processes or other materials provided by the Contractor under this Contract infringe or violate the patent, copyright, trademark, trade-secret or other intellectual-property or proprietary rights of any third party.

The parties agree that if there are any limitations of Contractor’s liability, such limitations of liability will not apply to this section.

In case any such portion of the Work (including but not limited to software, materials, equipment, devices, processes or other materials) are held to constitute an infringement and its use is enjoined, then the Contractor, at the Contractor’s sole cost and expense, shall do one of the following:

• Secure for the Department or UTA the right to continue using the software, materials, Equipment, devices, processes, or other Work by suspension of the injunction or by procuring a royalty-free license or licenses.

• Replace such software, materials, Equipment, devices, processes or other Work with a non-infringing Approved Equal.

• Modify the Work so that it becomes non-infringing.

• Remove the enjoined portion of the Work (such as software materials, Equipment, devices or processes) and refund the sums paid for them without prejudice to any other rights of the Department or UTA.

If the amount of time necessary to proceed with one of these options is deemed excessive by the Department (or by UTA after Final Completion), then the Department or UTA may direct the Contractor to select another option or risk default.

The Department and the Contractor shall each advise the other if it receives or becomes aware of a lawsuit related to intellectual properties in connection with the Work and provide all information available. The Contractor is responsible at all times to secure all needed intellectual property-related rights.

GC 6.2 Intellectual Property Warranty The Contractor represents and warrants that any use of the Work, or any part thereof, by the Department, UTA (or their officers, directors, agents, employees or transit users) will not infringe or violate the patent, copyright, trademark, trade-secret or other intellectual-property or proprietary rights of any third party.

The Contractor further represents and warrants that it has or will have all appropriate licenses, agreements or ownership rights pertaining to all patent, copyright, trademark, trade-secret or other intellectual-property or proprietary rights needed for the performance of its obligations under the Contract — including without limitation that it will have all necessary rights to use patentable or copyrightable materials, equipment, devices or processes not furnished by the Department used on or incorporated in the Work under the Contract. The Contractor assumes all risks arising from the use of any such patented or copyrighted materials, equipment, devices, or processes.

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The Contractor shall grant to the Department and UTA, on the Contractor’s behalf, and on behalf of all Subcontractors and Suppliers, an irrevocable, perpetual, royalty-free, nonexclusive license to use all software and other patented, copyrighted, trademarked, or otherwise protected technology and processes that the Contractor incorporates into the DMUs. The Contractor shall bear all licensing fees and other costs arising from the use of software and other patented, copyrighted, trademarked, or otherwise protected technology and processes. The Contractor warrants that the DMUs will be delivered free and clear of any rightful claim of infringement by any party. The Contractor shall, to the full extent permitted by law, assume, protect, defend, indemnify, and hold the Department, UTA and their officers, employees, and agents, harmless from and with respect to any and all liabilities, damages, claims, demands, liens, encumbrances, judgments, awards, losses, costs, or expenses (including, reasonable expenses, costs, and attorneys’ fees incurred by the indemnified parties in the defense, settlement, or satisfaction of any suits, actions, or proceedings) relating to injuries, death, loss, or damage to persons or property of any kind whatsoever, arising out of or resulting from the Contractor’s breach of the intellectual property warranty set forth in this Section GC 6.2. The Department and the Contractor will promptly notify each other in writing of the notice or assertion of any infringement claim or other claim related to the Contractor’s alleged breach of the intellectual property warranty provided in this Section GC 6.2. Upon receipt of notice and if given authority, the Contractor shall settle at its expense or undertake at its own expense the defense of any such suit, action, or proceeding, including appeals, against the Department, UTA and their officers, employees, and agents relating to the Contractor’s alleged breach of the warranty provided in this Section GC 6.2. If it is established that any DMU or other Equipment contains technology or processes that constitute an infringement, or if an injunction is obtained ordering the Department or UTA to discontinue use of infringing technology or processes, the Contractor shall, at its own expense, take the following actions:

1. Secure for the Department or UTA the right to continue using that portion of the Work by lifting the injunction or by procuring a license or licenses;

2. Replace the infringing portion of the Work with non-infringing materials or processes; or

3. Modify the Work so that it becomes non-infringing.

GC 6.3 Tooling Rights The Contractor, its Subcontractors, and Suppliers shall not sell, destroy or otherwise dispose of their rights to the use of the unique castings, patterns and forming or extrusion dies after their use in the production of the DMUs without first offering them to the Department, with reasonable costs associated with the transfer to be borne by the Department, or, in the case of a proposed sale to another, without first offering them for sale to Department at a fair market price. If the Department does not accept an offer from Contractor, then Contractor shall make the same offer to UTA in respect to its rights to the use of the unique castings, patterns and forming or extrusions dies, with reasonable costs associated with the transfer to be borne by UTA. In the case of a proposed sale to another, Contractor will offer the rights to UTA if the Department does not accept Contractor’s offer. The Contractor shall be liable to the Department and/or UTA to the extent that the failure of the Contractor, its Subcontractor, or Supplier to comply with SP 11.1 Parts Availability Guarantee, causes the Department or UTA to incur costs to have the tooling replicated. This Section GC 6.3 shall survive any termination or expiration of the Contract.

For purposes of SP 11.1 Parts Availability Guarantee, the terms “sell” and “sale” shall not include transfer of these assets to a successor corporation or other entity that assumes the business and obligations of any Contractor, Subcontractor, Supplier or Contractor herein as long as the transfer to the successor also transfers obligations arising under the Contract.

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Upon Contractor’s offer of any of the materials described above and the Department and UTA’s refusal, the Contractor’s obligation under SP 11.1 Parts Availability Guarantee, as it relates to the specific materials offered and refused, shall cease.

GC 7. Data Rights All provisions of this Section GC 7 shall survive any termination or expiration of the Contract.

GC 7.1 Proprietary Rights/Rights in Data The Contractor, for itself and for its Subcontractors and Suppliers (as to whom the Contractor hereby represents and warrants that it has the power and authority to grant such sublicense), hereby grants to the Department and to UTA an irrevocable, perpetual, royalty-free, nonexclusive license and sublicense (collectively the “Technology License”) to use and to allow their agents to use, for the approved purposes described in GC 7.1.1 Uses, without recourse to the original Contractor, Subcontractor, or Supplier, all patented, copyrighted, trademarked, and unpatented technology, know-how, trade secrets and other proprietary rights held by the Contractor, Subcontractor, or Supplier that relate to the Work, and all such rights for manufacturing detailed Drawings and software as the same are separately defined and licensed pursuant to GC 7.2 Software Escrow Account, and documentation thereof (collectively the “Licensed Technology”). These rights apply to all Work, including but not limited to, all of the following: systems;

subsystems; assemblies; subassemblies; Components; Equipment; interface systems and controls which are necessary for operation, maintenance and repair; overhaul of any Work; and manufacture of parts which are unavailable for purchase.

GC 7.1.1 Uses

The Department’s and UTA’s rights under this Technology License shall be limited to its use for the following (collectively the “Approved Uses”):

1. Evaluation and qualification for the purposes of future procurements that relate to or must be compatible with the Work;

2. Preparation of specifications for future RFPs employing some or all of the Licensed Technology or that must be compatible with it;

3. Modifying or upgrading the DMUs or any other Work;

4. Maintenance and repair of any Work;

5. A part of the Work becomes inoperable and must be corrected.

6. Overhaul of any Work;

7. Manufacture of parts for any part of the Work that becomes unavailable for purchase. The term “unavailable for purchase” means that a part or other Work is no longer being manufactured; or an inventory of the part or other Work in sufficient quantities to meet the Department’s or UTA’s needs is not available for purchase; or no Supplier will sell a part to the Department or UTA or cannot supply the part according to a delivery schedule that meets the Department’s or UTA’s needs; or that no Supplier will offer the part at a commercially reasonable price.

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GC 7.1.2 Limits

The Department and UTA shall not have the right under this Technology License either to use the Licensed Technology to manufacture itself, or to have manufactured for it by a third party as a sub-licensee of the Department, a part of the Work that is subject to the Technology License, except for a use specified in GC 7.1.1Uses.

GC 7.2 Software Escrow Account This Section details Department’s and UTA’s rights to access software code or other confidential data of the Contractor, a Subcontractor and/or a Supplier under situations such as bankruptcy or a material breach of the Contract. The Contractor, for itself and acting as an agent with authority to commit its Subcontractors and Suppliers, agrees that UTA has, and the Department may provide to UTA, all of the rights in this Section GC 7.2 that the Contractor provides to the Department under this Section.

Prior to Conditional Acceptance of the first DMU, the Contractor shall provide the Department with a list of all software comprising proprietary works of any kind whatsoever that relate to the Work, which the Department may provide to UTA (the “Proprietary Software”). Source code for the Proprietary Software and all related documentation required for the use and modification thereof, and any revisions or derivative works based on the Proprietary Software developed pursuant to the Contractor’s performance of the Contract (collectively, “Escrow Materials”) shall be deposited in an escrow account with a third party that substantially conforms to the terms set forth in Example of a Software Escrow Agreement, which is attached as Appendix 1 to the General Conditions.