Addendum 5.pdf

TO:

FM:

SUBJECT:

DATE:

All Prospective Proposers

Maryland Department of Transportation (MDOT) / Maryland Transit Administration (MTA)

Addendum No. 05 MTR-21-014-RV Metro Tunnel Cellular Service

08/04/2021

Attached and effective this date is Addendum # 05 to the subject RFP. This addendum presents responses to vendor questions and a new bid submission deadline.

There will be another round of questions/answers released before the proposals are due.

The new due date for this RFP is August 18, 2021 at 1:00 p.m. Bids may be submitted by:

Email to my attention, Emma, Mail, Drop off.

The Offeror shall acknowledge receipt of this addendum by completing and returning this form with the proposal package.

All other terms and conditions remain unchanged.

Sincerely, Frank Conaway III Procurement Officer Dept. of Procurement Maryland Department of Transportation (MDOT) / Maryland Transit Administration (MTA)

ADDENDUM NO.: 05 RFP

NO.: MTR-21-014-RV

Acknowledgment of receipt of Addendum No. 05 to RFP No. MTR-21-014-RV.

Vendor Name:

Authorized Representative’s Signature Date

MTA Answers to Vendor Questions

Vendor Question 61: Can the waiver of subrogation in Section 14.2.3 be mutual?

MTA Response to Question 61: No. Section 14.2 is about the insurance MTA is requiring Licensee to procure – it is not about MTA’s own insurance

Vendor Question 62: Section 15.2 states that in no event may the cure period for default exceed 180 days. Due to the restricted access to the Premises, cure may not be possible within 180 days.

Can this time period be removed or extended provided Offeror is diligently prosecuting the cure to completion?

MTA Response to Question 62: No. The provision says “…in no case shall the cure period exceed one hundred eighty (180) days, unless agreed otherwise, in writing, by the parties”, so the provision already accounts for extending the cure period if agreed to by the parties.

Vendor Question 63: Section 23.1 states that MDOT MTA’s consent is required for any assignment or transfer of the Agreement. Can Licensee assign or transfer this agreement to Affiliates or in connection with a sale of all or substantially all of its assets or a merger without MDOT MTA’s consent?

MTA Response to Question 63: No. MTA, as a State agency, needs to consent to any transfer or assignment.

Vendor Question 64: Section 26.6 states that pending resolution of any disputes, Licensee shall proceed diligently with the performance of this Agreement in accordance with MDOT MTA’s decision. Can this provision be deleted?

MTA Response to Question 64: No. This is required by COMAR.

Vendor Question 65: Section 26.14 states that MDOT MTA may unilaterally order Licensee to suspend, delay or interrupt all work as MDOT MTA may determine to be appropriate for the convenience of the State. Is MDOT MTA willing to pay for remobilization costs incurred by Licensee due to such suspension of work?

MTA Response to Question 65: If such an event were to occur, a claim for remobilization costs would be processed in accordance with State law.

Vendor Question 66: Can the indemnification obligations in Section 13.1 be mutual?

MTA Response to Question 66: No, State cannot agree to indemnify Licensee.

Vendor Question 67: Section 7.1 states that all Sublicense Agreements with Providers shall be subject to the prior review and approval of MDOT MTA. Giving MDOT MTA approval rights over contract terms with Providers can slow down contract negotiations with Providers. Is this an absolute requirement?

MTA Response to Question 67: MTA should have prior review and approval of sublicense agreements.

Vendor Question 68: Section 7.1 states that MDOT MTA shall have the right to audit the records of Licensee and Providers related to payments made by Providers to Licensee and payments made by Licensee to MDOT MTA. Why does MTA need audit rights? The payments made by Providers to Licensee are confidential information.

MTA Response to Question 68: As a State agency, MTA needs the right to audit these payments

Vendor Question 69: Section 7.1 states that no amendments may be made to any Sublicense Agreements which adversely affect MDOT MTA’s interests without the prior consent of MDOT MTA, which may be withheld in MDOT MTA’s sole discretion. Is this an absolute requirement or can this be limited to MDOT MTA’s financial interests only? Offeror must have the flexibility to enter into amendments to Sublicense Agreements related to the ongoing operation and upgrades of the Network.

MTA Response to Question 69: MTA should have prior review and approval of sublicense agreements

Vendor Question 70: Section 7.1 states that Licensee conditionally assigns and shall be deemed to have conditionally assigned all of its rights to and under all Sublicense Agreements to MDOT MTA. What is the intent and purpose of this provision and is it an absolute requirement?

MTA Response to Question 70: The provision is intended to conditionally assign Licensees rights under the Sublicense Agreements in the event of Licensee default as further described in the last paragraph of this section.

Vendor Question 71: Section 7.1 states that the Sublicense Agreements shall require Providers to notify MDOT MTA of any uncured default by Licensee under the Sublicense Agreements and gives MDOT MTA the right to act as Licensee in the event of such uncured default. MDOT MTA can pursue its remedies against Licensee in the event of a default under the Agreement and any default by Licensee under the Sublicense Agreement will be governed by the Sublicense Agreements.

Can this provision be deleted?

MTA Response to Question 71: No

Vendor Question 72: Section 8.7 states that Licensee conditionally assigns and shall be deemed to have conditionally assigned all of its rights under the Plans and Specifications, the Construction Documents, and any permits or approvals necessary for the construction of the Cellular Network to MDOT MTA and that in the event of an uncured default by Licensee, MDOT MTA is authorized to act as Licensee. In the event of an uncured default by Licensee, MDOT MTA may terminate the Agreement. Can this provision be deleted?

MTA Response to Question 72: No

Vendor Question 73: Section 9.0 states that Licensee shall bear the costs of any MDOT MTA oversight due to Licensee’s or Providers’ improper action or inaction and that MDOT MTA has the right to require payment for such oversight prior to the commencement of such work.

Licensee cannot agree to pay uncapped oversight fees determined in MDOT MTA’s sole discretion. Can these provisions be deleted?

Are any of these stations off limits?

MTA Response to Question 73: No, imposing a cap would then uncap MTA’s costs and as a State agency, MTA cannot have an uncapped liability.

Vendor Question 74: Section 11.0 requires Licensee to pay for any MDOT MTA personnel required to accompany and assist Licensee while on the Premises. Can the hourly/daily cost of such personnel be capped and stated in the Agreement?

MTA Response to Question 74: No

Vendor Question 75: Section 11.0 requires Licensee to immediately repair any damage and gives MDOT MTA a self-help right. Can this provision be deleted? Licensee cannot access the Premises without 14 days prior approval and may not be able to repair any damage immediately. In addition, MDOT MTA may damage Offeror equipment by attempting to repair.

MTA Response to Question 75: Provision allows for “In emergency situations, Licensee shall provide as much notice as possible under the circumstances…”, so premise of question is incorrect.

Vendor Question 76: Section 18.1 states that the Agreement may be terminated if Hazardous Substances are encountered. Provided the Hazardous Substances were not brought onto the Premises by Licensee, is MDOT MTA willing to reimburse Licensee for the costs to build out the Cellular Network in the event of termination of the Agreement?

MTA Response to Question 76: No, the provision states “MDOT MTA shall not be responsible for any direct, indirect or consequential damages incurred by Licensee as a result of such adjustment or termination pursuant to this paragraph.”

Vendor Question 77: Section 22 states that MDOT MTA is not responsible for any damage to the Cellular Network unless caused by the gross negligence or willful misconduct of MDOT MTA. Can the standard be changed to negligence and not gross negligence?

MTA Response to Question 77: No