CMGC_Track_OCS_Preconstruction_GPs_INDUSTRY_REVIEW_DRAFT.pdf

Request for Proposals for Construction Manager/General Contractor (CM/GC) for

Track and OCS

RFP No.:

Preconstruction Services

General Provisions

DRAFT SUBJECT TO CHANGE AND

AUTHORITY BOARD APPROVAL

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Table of Contents

1.0 OVERVIEW; RESPONSIBILITIES; APPROACH

1.1 Contract Overview and Purpose

1.2 Contractor’s General Obligations

1.3 Authority’s General Obligations

1.4 CM/GC Approach

1.5 Facilitated Partnering for the Preconstruction Contract

1.6 Co-Location and Meeting Space

2.0 DEFINITIONS; INTERPRETATION; CONTRACT DOCUMENTS; ORDER OF

PRECEDENCE

2.1 Definitions and Acronyms

2.2 Interpretation

2.3 Order of Precedence

2.4 Reference Materials

3.0 COMMENCEMENT OF PRECONSTRUCTION SERVICES

3.1 Notices to Proceed

3.2 Task Orders

4.0 PRECONSTRUCTION SERVICES

4.1 Scope

4.2 Design Review and Support Services

4.3 Cost Control

4.4 Performance of the Preconstruction Services

4.5 [Not Used]

4.6 Schedule; Meetings

4.7 Compliance with Law; Governmental Approvals

4.8 Standards

4.9 Licenses

4.10 No Work Guarantee

5.0 COOPERATION AND GOVERNANCE; INTEGRATION REQUIREMENTS

5.1 Cooperation and Governance

5.2 Integration Requirements

5.3 Communications with Track/OCS Design Services Consultant

6.0 AUTHORITY RIGHTS AND OBLIGATIONS

6.1 Inspection of Preconstruction Services

6.2 Contractor Site Access

6.3 Types of Authority Review

6.4 Standard of Review

6.5 Contractor not Relieved of its Obligation

7.0 COMPENSATION

7.1 Contract Price

7.2 Payment

7.3 Non-Appropriation; Non-Payment

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8.0 WORK PACKAGES

8.1 Phased Work

8.2 Work Package Proposals

8.3 Work Packages

8.4 Failure to Agree to Work Packages

8.5 Construction Contract

9.0 REPRESENTATIONS, WARRANTIES AND COVENANTS; ORGANIZATION

9.1 Representations, Warranties and Covenants

9.2 Organization

10.0 SUBCONTRACTS; CONTRACTOR PERSONNEL

10.1 Subcontracting

10.2 Key Personnel

10.3 Contractor-Related Entities

10.4 Standards of Conduct

11.0 CHANGES; FORCE MAJEURE

11.1 Definition of Change Order

11.2 Change Order Process and Contents

11.3 Unilateral Change Orders

11.4 Effect of Change Order

11.5 Force Majeure

12.0 HIGH-SPEED RAIL SMALL BUSINESS PROGRAM

13.0 INDEMNIFICATION; INSURANCE

13.1 Indemnification

13.2 Insurance

14.0 INTELLECTUAL PROPERTY; OWNERSHIP; LICENSES

14.1 Developed IP Ownership

14.2 Pre-Existing IP License

14.3 Title

15.0 CONFIDENTIALITY; AUDIT; RECORDS

15.1 Confidentiality

15.2 Public Records Act

15.3 Audit; Records

16.0 TERMINATION; SUSPENSION

16.1 Termination for Cause

16.2 Termination for Convenience

16.3 Obligations upon Termination

16.4 Suspension for Cause

16.5 Suspension for Convenience

16.6 Obligations upon Suspension

17.0 DISPUTES

18.0 ADDITIONAL REQUIREMENTS UNDER STATE LAW

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19.0 REQUIREMENTS UNDER FEDERAL LAW

20.0 MISCELLANEOUS

20.1 Amendments

20.2 Third Party Beneficiaries

20.3 Time is of Essence

20.4 Governing Law; Jurisdiction

20.5 Rights and Remedies; No Waiver

20.6 Successors and Assigns

20.7 Notices

20.8 Conflict of Interest

20.9 Authority/Contractor Relationship

20.10 Contingent Fee

20.11 California Environmental Quality Act

20.12 Severability

20.13 Entire Agreement

20.14 Survival

20.15 Counterparts

20.16 Sustainability

Exhibits

Exhibit A Definitions and Acronyms Exhibit B Scope of Work [provided separately] Exhibit C Key Personnel and Additional Expertise Exhibit D Principles for Estimating Exhibit E Payment Terms Exhibit F Payment and Invoicing Forms Exhibit G Requirements Under State Law Exhibit H Requirements Under Federal Law Exhibit I Draft Construction Contract [provided separately] Exhibit J Contractor’s Proposal

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CM/GC PRECONSTRUCTION CONTRACT

For Track and Overhead Contact Systems

General Provisions

1.0 OVERVIEW; RESPONSIBILITIES; APPROACH

1.1 Contract Overview and Purpose

The Preconstruction Contract is for construction manager/general contractor (CM/GC) Preconstruction Services on the Project, with an option to implement one or more Work Packages, via a Construction Contract, for Construction Work (including the procurement of Long-Lead Items).

The Preconstruction Contract covers Preconstruction Services for critical portions—primarily track and overhead contact system elements—of Authority’s 171-mile Early Operating Segment of the high-speed rail System in the Central Valley from Merced to Bakersfield. A description of the Preconstruction Services and the requirements related thereto is set forth in the Preconstruction Contract, including Section 4 (Preconstruction Services) and Exhibit B (Scope of Work).

The Parties recognize that the CM/GC delivery method aims to facilitate the timely delivery of the Preconstruction Services and Construction Work in a collaborative environment to encourage flexibility, efficiencies, risk mitigation, innovation and value opportunities, schedule and cost savings, an increased degree of certainty that the Construction Work is within budget, schedule certainty and control, and the reduction of Change Orders.

1.2 Contractor’s General Obligations

Contractor shall perform and complete the Preconstruction Services in accordance with Good Industry Practice and in an expeditious and economical manner consistent with the interests of Authority. Contractor shall fully collaborate and cooperate with Authority and Interfacing Contractors (including Track/OCS Design Services Consultant, Systems Contractor(s), Trainset Contractor, Facilities and Stations Design Consultant(s), Facilities and Stations Contractor(s)).

1.3 Authority’s General Obligations

Authority shall promote collaboration and cooperation among Authority, Contractor, Track/OCS Design Services Consultant, other Interfacing Contractors, and other Persons employed by Authority for the Project.

1.4 CM/GC Approach

The Preconstruction Contract covers the Preconstruction Services. As appropriate, the Parties will negotiate Work Packages for the performance of Construction Work using a phased approach. If such negotiations are successful, such Construction Work will be performed under a Construction Contract. In this respect, the Preconstruction Services and Construction Work are contemplated to be performed concurrently, following execution of the first Work Package and Construction Contract, rather than in entirely separate phases. The delivery of the Preconstruction Services will be phased through various NTPs and Task Orders. The

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/2 anticipated phasing of the Preconstruction Services is set forth in Section 3.1 (Notices to Proceed).

If the Parties are unable to agree to a Work Package, Authority may elect, among other options, to modify and renegotiate the Work Package with Contractor, perform the work through another contractor, or terminate all or a portion of the Preconstruction Contract and/or the Construction Contract.

1.5 Facilitated Partnering for the Preconstruction Contract

1.5.1 The Parties agree to establish a collaborative and facilitated partnering process for the implementation of the Preconstruction Services under this Preconstruction Contract and the Construction Work under the Construction Contract (if any), which shall be amended as necessary by agreement of the Parties including amendment prior to execution of the Construction Contract. 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 Preconstruction Contract at the lowest responsible management level.

1.5.2 As discussed in more detail in Section 5 (Cooperation and Governance; Integration Requirements), 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 Authority. The intra- Agreement facilitated partnering process established in this Section 1.5 will focus on the delivery of the Preconstruction Services under this Preconstruction Contract, whereas the Governance Framework will focus on the successful integration of all work being performed by all Interfacing Contractors.

1.5.3 At the Kick-off Meeting (see Scope of Work Section 3.2.4), the Parties will plan for and implement a Kick-off Partnering Workshop, where Authority and Contractor (and Facilitator if 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 Escalation Resolution Ladder.

Authority and Contractor shall mutually develop an escalation resolution ladder, retained by Authority’s Contract Manager, which is a stepped process that formalizes the negotiation between the Parties regarding issues and disputes that arise under this Preconstruction Contract or in relation to the Preconstruction Services (“Escalation Resolution Ladder”). 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 Preconstruction Contract issues to disrupt overall Preconstruction Contract 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. When the Parties utilize the Escalation Resolution Ladder and the result is

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/2 unsuccessful, the Contract Manager shall issue a written notice to the Parties confirming such.

1.5.4 The Partnering Team shall work cooperatively and in good faith, as soon as practicable after contract award, to select a professional neutral facilitator to assist in the facilitated partnering process throughout the Preconstruction Term, who has at least the following qualifications and experience:

1.5.4.1 Training and practice in the recognized principles of partnering.

1.5.4.2 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; and

1.5.4.3 Other attributes and qualifications mutually agreed upon by the Parties.

1.5.5 Contractor shall enter into a contract with the professional neutral facilitator that establishes a budget for fees and expenses of the facilitator and describes the facilitator’s role consistent with the requirements of this Section 1.5 and the Partnering Charter. The facilitator contract shall be amendable and terminable at will by mutual agreement of the Parties.

1.5.5.1 Authority will reimburse Contractor for direct costs of partnering, including approved fees and expenses of the professional neutral facilitator. Contractor shall not receive any mark-ups on these direct costs.

1.6 Co-Location and Meeting Space

1.6.1 To support the Facilitated Partnering process described above, and successful development and implementation of the Preconstruction Services¸ Contractor shall co-locate all Key Personnel at or near Authority’s Sacramento headquarters during the Preconstruction Term or until otherwise mutually agreed upon by the Parties.

Authority may require such co-location to occur at or within a close distance to the shared meeting space utilized by the Interfacing Contractors.

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

1.6.1.2 During performance of the Preconstruction Services and Construction Work, 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.

2.0 DEFINITIONS; INTERPRETATION; CONTRACT DOCUMENTS; ORDER OF

PRECEDENCE

2.1 Definitions and Acronyms

Unless the context otherwise requires, capitalized terms and acronyms used in the Preconstruction Contract have the meanings given in Exhibit A (Definitions and Acronyms).

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2.2 Interpretation

2.2.1 As used in the Preconstruction 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, section, or Article. 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 Preconstruction Contract defining the Preconstruction Services shall not be deemed all-inclusive; and unless otherwise specified, references to clauses and Articles include all sub-clauses and sub-Articles and references to clauses, paragraphs, Articles, 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 material or take such action.

2.2.2 The Preconstruction 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 Preconstruction Contract interpreted consistently with industry standards. Notwithstanding the order of precedence set forth in Section 2.3 (Contract Documents; Order of Precedence), in the event of any conflict, ambiguity or inconsistency between or among any of the provisions in the Preconstruction Contract, the provisions that establish the higher quality, manner or method of performing the Preconstruction Services, 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 standards, specifications, criteria, requirements, conditions, procedures, or other provisions applicable to the Preconstruction Services established by reference to a described manual or publication within the Preconstruction 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.

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

2.2.4 A reference to “$” is to U.S. dollars, and all monetary amounts and obligations in the Preconstruction Contract are expressed and payable in U.S. dollars.

2.2.5 Requirements contained in the Preconstruction Contract relating to actions to be taken in the event of an emergency and other requirements for which it is clear that performance is intended to occur on a non-Business Day, shall be performed as specified, even though the date in question may fall on a non-Business Day.

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2.2.6 Contractor shall not take advantage of any apparent Defect in the Preconstruction Contract. Should it appear that the Preconstruction Services to be done or any matter thereto is not sufficiently explained in the Preconstruction Contract or there is a Defect in the Preconstruction Contract, Contractor shall promptly notify Authority in writing of the insufficient explanation or Defect, shall obtain specific instructions in writing from Authority before proceeding with the Preconstruction Services affected thereby, and shall conform to the instructions provided.

2.2.7 With respect to any provision of the Preconstruction Contract which provides for 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 Authority’s Contract Manager or Authority’s Contract Manager’s authorized designee.

2.2.8 Contractor acknowledges and agrees that it had the opportunity and obligation, prior to submission of its Proposal, to review the Preconstruction Contract and to bring to Authority’s attention any apparent conflicts or ambiguities contained therein.

Contractor further acknowledges and agrees that it has independently reviewed the Preconstruction Contract with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the Preconstruction Contract. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of the Preconstruction Contract, the Preconstruction 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 Preconstruction Contract. They shall not be relevant in interpreting the Preconstruction Contract except as they may clarify provisions otherwise considered ambiguous.

2.3 Order of Precedence

The Preconstruction Contract is comprised of the following documents. Any inconsistencies in the Preconstruction Contract shall be resolved by giving precedence in the following order unless otherwise noted:

(a) Change Orders/Amendments

(b) Terms contained in the Signature Document and Signature Document Exhibits A through [X];

(c) General Provisions and General Provisions Exhibits A through [X];

(d) NTPs;

(e) Task Orders; and

(f) Contractor’s Proposal (provided that any commitments approved by Authority in its sole discretion are the highest order of precedence.

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2.4 Reference Materials

2.4.1 The Reference Materials are not part of the Preconstruction Contract. Contractor is not entitled to rely on the Reference Materials.

2.4.2 Contractor understands and agrees that Authority shall not be responsible or liable in any respect for any loss, damage, injury, liability, cost or cause of action whatsoever suffered by any Contractor-Related Entity, by reason of any use of any information contained in the Reference Materials, or any action or forbearance in reliance thereon. Contractor further acknowledges and agrees that (a) if and to the extent Contractor or anyone on Contractor’s behalf uses any of said information in any way, such use is made on the basis that Contractor, not Authority, has approved and is responsible for said information, and (b) Contractor is capable of conducting and obligated hereunder to conduct any and all studies, analyses and investigations as it deems advisable to verify or supplement said information, and that any use of said information is entirely at Contractor’s own risk and at its own discretion.

2.4.3 AUTHORITY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION

CONTAINED IN THE REFERENCE MATERIALS IS EITHER COMPLETE OR

ACCURATE OR THAT SUCH INFORMATION IS IN CONFORMITY WITH THE

REQUIREMENTS OF THE PRECONSTRUCTION CONTRACT.

3.0 COMMENCEMENT OF PRECONSTRUCTION SERVICES

3.1 Notices to Proceed

Contractor shall not perform or permit performance of any Preconstruction Services unless Authority, in its sole discretion, issues a Notice to Proceed (NTP) for such Preconstruction Services. Any Preconstruction Services performed by Contractor prior to issuance of a Notice to Proceed for such Preconstruction Services is at Contractor’s sole risk and expense and subject to the terms of the Preconstruction Contract except those terms inconsistent with Contractor’s assumption of such risk and expenses. Contractor shall promptly commence performance of the Preconstruction Services upon issuance by Authority of a Notice to Proceed therefor.

Authority anticipates issuing the following NTPs:

(i) NTP 1 authorizing Preconstruction Services to support: the Design Principles Stage for the Early Operating Segment and the Detailed Design Stage for the First Construction Section;

(ii) NTP 2 authorizing Preconstruction Services to support the Detailed Design Stage for M-M;

and

(iii) NTP 3 authorizing Preconstruction Services to support the Detailed Design Stage for LGA.

Contractor shall satisfy the following conditions before Authority will issue a Notice to Proceed:

(a) all Governmental Approvals necessary for the Preconstruction Services have been obtained and all conditions of such Governmental Approvals that are a prerequisite to the commencement of the Preconstruction Services have been performed;

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(b) unless otherwise provided in Section 13.2 (Insurance), all insurance policies or other documentation required under the Preconstruction Contract to be delivered to Authority for the Preconstruction Services have been submitted and approved as applicable and such insurance shall remain in full force and effect; and

(c) Contractor’s completion of any other conditions precedent to the issuance of the Notice to Proceed.

3.2 Task Orders

3.2.1 Contractor shall be assigned Preconstruction Services associated with each NTP through Task Orders issued by Authority in its sole discretion.

3.2.2 Each Task Order shall include, as applicable, the limits of the Preconstruction Services assigned to Contractor (including any geographic limits), the portions of the Scope of Work from which the Task Order authorizes the Preconstruction Services, the Preconstruction Services Contractor shall provide, a delivery date, and the maximum compensation for the Task Order.

3.2.3 Upon receipt of a draft Task Order, Contractor shall prepare a cost estimate in accordance with Authority direction, including, at a minimum, the names of the individuals Contractor proposes to work on the Task Order, each individual’s classification, the duties the individual shall perform, a written estimate of the cost of the services or activity including all incidental Preconstruction Services, performance targets and measures suitable for the Preconstruction Services to be performed, and an estimate of Small Business, Disadvantaged Business Enterprise, and Disabled Veteran Business Enterprise (SB/DBE/DVBE) utilization on the Task Order.

Authority may request other information from Contractor.

3.2.4 The rates for the Preconstruction Services to be performed under each Task Order shall be consistent with, and shall not exceed those identified in the [Cost Proposal/Rate Sheet] included as [ ].

3.2.5 After agreement by the Parties on a Task Order, the Task Order shall be executed by Contractor and Authority. No Preconstruction Services shall begin until a Task Order therefor has been executed by both Parties. Changes to executed Task Orders require written agreement and execution by both Parties. Contractor shall not invoice Authority for services or costs that are not included in an executed Task Order.

4.0 PRECONSTRUCTION SERVICES

4.1 Scope

4.1.1 The Preconstruction Services include the obligations set forth in Exhibit B (Scope of Work).

4.1.2 Authority may, in collaboration with Contractor, determine that the procurement of Long-Lead Items is beneficial to the Construction Work. Contractor shall advise Authority and make recommendations as to the items, quantities, and timing for such

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/2 procurement. The Parties shall implement such activities through Work Packages by following the process set forth in Section 8 (Work Packages).

4.1.3 Contractor shall, in collaboration with Authority, advise Authority and make recommendations as to any site investigations and other elements of Construction Work that are appropriate to support the Preconstruction Services. The Parties shall implement such activities through Work Packages by following the process set forth in Section 8 (Work Packages).

4.1.4 Contractor acknowledges that the Scope of Work may require updating and refining throughout the Preconstruction Term to the extent that it does not reflect all of the tasks and other efforts desired by Authority in connection with the Preconstruction Services.

4.2 Design Review and Support Services

4.2.1 If Contractor observes that portions of the Preconstruction Contract, including Design Submittals, are at variance with Applicable Law, Contractor shall promptly notify Authority in writing.

4.2.2 Contractor shall review the Design Submittals, attend such meetings as required by Authority and advise upon: constructability issues; the choice and availability of materials to be incorporated in the Preconstruction Services; equipment and/or packaging of the Preconstruction Services to advance construction; quantity calculations to verify quantities specified; the ability of the Design Submittals to address future operations and maintenance needs; any Defects it discovers; and the sufficiency and completeness of the Detailed Designs.

4.2.3 Contractor shall report to Authority of any inconsistencies between the Design Submittals and the Construction Budget and advise Authority how the scope of the Preconstruction Services can be modified to conform the cost of performing the Construction Work within the Construction Budget.

4.2.4 Contractor shall use the Design Submittals solely with respect to the Construction Work. No Contractor-Related Entity shall use the Design Submittals for any use outside the scope of the Project, without the specific prior written approval of Authority. Contractor warrants that, immediately after completing its use of Authority’s materials provided in connection with the Preconstruction Contract, it shall return all of the materials. Contractor authorizes Authority to inspect and verify Contractor’s compliance with this requirement. Contractor shall include, with the returned materials, a letter attesting to the return of all materials. Upon entering into the Preconstruction Contract, Contractor shall identify to Authority the individual to whom Contractor has assigned the responsibility of performing the obligations described in this Section 4.2.4. Any copies of Design Submittals made by Contractor, pursuant to prior written approval of Authority, shall bear a confidentiality notice.

4.3 Cost Control

4.3.1 Within 90 days after the Effective Date or upon completion of the Design Principles Stage, whichever is later, Contractor shall deliver to Authority the initial OPC for the

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Construction Work (or a portion thereof as directed by Authority) in accordance with Exhibit D (Principles for Estimating). The OPC shall identify all assumptions regarding the scope of the Construction Work. The Parties shall reconcile the OPC for the Construction Work, including all scope assumptions, with the Independent Cost Estimate.

4.3.2 Upon completion of the Detailed Design Stage, Contractor shall deliver to Authority an updated OPC for the Construction Work (or portion thereof as directed by Authority) in accordance with Exhibit D (Principles for Estimating). The OPC shall identify all assumptions regarding the scope of the Construction Work. The Parties shall reconcile the OPC for the Construction Work, including all scope assumptions, with the Independent Cost Estimate.

4.4 Performance of the Preconstruction Services

4.4.1 The Preconstruction Services shall be: (a) performed in accordance with Good Industry Practice; (b) performed in a good and workerlike manner; (c) suitable for its intended purpose (as set forth in the California Streets and Highways Code, Chapter 20, Article 2, section 2704.09 (except with Rolling Stock operation speeds of up to 220 mph)); and (d) free from defects and in accordance with the terms and conditions set forth in the Preconstruction Contract.

4.4.2 Contractor shall supervise and direct the Preconstruction Services.

4.4.3 If any Preconstruction Services performed contains Defects or otherwise does not comply with the Preconstruction Contract requirements, Contractor shall correct or replace the defective Preconstruction Services at Contractor’s sole expense.

4.5 [Not Used]

4.6 Schedule; Meetings

4.6.1 Contractor’s Contract Manager shall meet with Authority’s Contract Manager as needed to discuss progress on the Preconstruction Services.

4.6.2 Contractor shall attend meetings as required by the Governance Framework.

4.6.3 Within [120] days after NTP 1, Contractor shall provide to Authority for approval a detailed, comprehensive schedule for the Preconstruction Services and Construction Work in accordance with Scope of Work Section 3.2.5 (Project Schedules). This schedule shall identify all assumptions regarding the scope of the Construction Work and, once approved by Authority, shall be the Project Schedule.

4.6.4 Contractor shall provide to Authority for approval an update to the Project Schedule monthly and within three Business Days after Authority’s request, identifying issues and risk items impacting or are likely to impact the approved Project Schedule and proposed mitigation measures.

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4.7 Compliance with Law; Governmental Approvals

4.7.1 Contractor shall follow all Applicable Law in carrying out the Preconstruction Services.

4.7.2 Contractor shall comply with all Environmental Requirements.

4.7.3 Contractor shall provide evidence satisfactory to Authority that the Preconstruction Services complies with all Contract requirements, including all Applicable Law and Environmental Requirements.

4.7.4 Contractor shall secure all required Governmental Approvals, except for Authority- Provided Approvals. 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 Preconstruction Contract to another Person. Contractor shall provide or cause to be provided such information, documentation, and assistance as Authority may require, and shall take such actions as are reasonably required by Authority for Authority to obtain all Authority-Provided Approvals.

4.7.5 Authority will obtain, at no cost to Contractor, all Authority-Provided Approvals.

Contractor shall provide such information, documentation, and assistance as Authority may require, and shall take such actions as are reasonably required by Authority, in order for Authority to obtain all Authority-Provided Approvals.

4.7.6 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 all actions 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.

4.7.7 Contractor shall promptly give Authority copies of all documents (including Governmental Approvals and other notices) that any Governmental Person having jurisdiction over the Construction Services issues to Contractor.

4.8 Standards

If the Preconstruction Contract references a specific version or date for a standard, that version shall apply to the Preconstruction Services. Otherwise, the version in place on or before the date that is 30 days prior to the Effective Date shall apply.

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4.9 Licenses

4.9.1 Contractor shall be in good standing and qualified to conduct business in the State and at all times during the Preconstruction Term. Contractor shall obtain, at its sole expense, all license(s), certification(s), registration(s), and permit(s) required by law, to accomplish the Preconstruction Services, including professional licenses, registrations, and Certificates of Status/Good Standing. Contractor shall provide said documentation upon request by Authority.

4.9.2 If Contractor is located within the State, a business license or tax payment confirmation from the city/county in which Contractor is headquartered is necessary if so required to conduct business in that city/county. A copy of the entity documents filed with the California Secretary of State's Office and a Certificate of Good Status/Standing shall be provided to Authority upon request. If Contractor’s headquarters are located outside of the State, Authority requires a copy of a Certificate of Good Standing (or that state’s equivalent documentation) from the entity’s state of formation showing that the entity is in good standing in that state, and a Certificate of Good Status/Standing from the California Secretary of State as proof of registration as a foreign corporation qualified to do business in California.

4.9.3 In the event any license(s), certification(s), registration(s), and/or permit(s) required by law to accomplish the Preconstruction Services expire at any time during the Preconstruction Term, Contractor shall provide to Authority a copy of the renewed license(s), registrations(s), certifications(s), and/or permit(s) upon request. In the event Contractor fails to keep in effect at all times all required license(s), certification(s), registration(s), and permit(s), Authority may, in addition to any other remedies it may have, terminate the Preconstruction Contract upon occurrence of such event.

4.9.4 All Subcontractors shall be appropriately licensed for the Preconstruction Services they are conducting.

4.10 No Work Guarantee

Authority does not guarantee, either expressly or by implication, that any Preconstruction Services will be required under the Preconstruction Contract nor shall Authority be required to enter into a Construction Contract as a result of the Preconstruction Contract.

5.0 COOPERATION AND GOVERNANCE; INTEGRATION REQUIREMENTS

5.1 Cooperation and Governance

5.1.1 Contractor shall actively assist Authority, with the other Interfacing Contractors, to develop a common set of governance principles and procedures to facilitate collaborative delivery of the Project, and ultimately the System, across all contracts for the Interfacing Contractors, including, the track, systems, facilities, stations, operations, and trainsets scope components. Such governance principles and procedures, when developed and delivered by Authority to Contractor, shall become the “Governance Framework.” Contractor shall comply with the Governance Framework, as it may be revised from time to time.

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5.1.2 The core objectives of the Governance Framework are to facilitate:

(a) a proactive culture of collaboration and cooperation to deliver the Project, and ultimately the System;

(b) open and timely communication;

(c) informed decision-making;

(d) proactive identification and resolution of issues; and

(e) delivery and certification of the Project, and ultimately the System, consistent with Authority’s defined schedule.

5.1.3 A Governance Framework linking all interfacing parties will be developed in collaboration with all Interfacing Contractors to define:

(i) collaborative working relationship between Authority, the Interfacing Contractors, Authority support contractors, and any other persons directed to attend to proactively advance the work of Interfacing Contractors to deliver the Project and ultimately the System;

(ii) establishment, monitoring, review, and agreement on the sharing and distribution of information among Interfacing Contractors and other parties, as needed, to enable interface control across the Project and ultimately the System;

(iii) common process and monitoring to provide input on Project-wide development of integrated schedules, integrated designs, risk registers, and costs through inputs from each contract delivery group and the collaborative working groups;

(iv) discussion channels for resolution, where feasible, of any issues and opportunities relating to the Interfacing Contractors’ delivery of the Project;

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

(vi) establishing the administration of meetings.

5.1.4 The approach will rely on the creation of a hierarchy of working groups with different levels of proposition making, which will allow escalation of issues. The Governance Framework will define the principles to manage dispute, difference, or controversy arising from or related to proposals from these working groups. Ultimate approval will reside with Authority.

5.1.5 Authority reserves the right, in its sole discretion, to revise the Governance Framework from time to time. Upon Authority’s request, Contractor shall actively assist Authority and collaborate with the other Interfacing Contractors in such revisions. Upon delivery of a revised Governance Framework to Contractor, the

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5.2 Integration Requirements

5.2.1 Contractor shall follow Authority’s requirements, including the Authority Program Integration Policy, 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 throughout the course of the Project and ultimately the System.

5.2.2 Contractor shall work with Authority and the Interfacing Contractors to ensure a coordinated and integrated team for the efficient, effective, and professional delivery of the Program and ultimately, the System.

5.2.3 Program integration includes items such as schedule integration, organizational integration, process integration, systems integration, technology integration, and contract integration. Authority may choose to contract those obligations to one or more contractors, and Contractor shall work collaboratively with those contractors.

5.3 Communications with Track/OCS Design Services Consultant

5.3.1 Notwithstanding anything in the Preconstruction Contract to the contrary: (a) all submittals, [RFIs] and other communications that are required in the Preconstruction Contract to be provided by Contractor to Track/OCS Design Services Consultant (and other Authority consultants) shall be furnished by Contractor with a copy to Authority; (b) Authority may provide comments to submittals, RFIs or other communications through Track/OCS Design Services Consultant, but Authority will not provide a signature/stamp on such communication; (c) Track/OCS Design Services Consultant will return the submittal, RFI or other communication to Contractor, with a copy to Authority.

6.0 AUTHORITY RIGHTS AND OBLIGATIONS

6.1 Inspection of Preconstruction Services

If Authority observes Preconstruction Services that appears to not comply with the requirements of the Preconstruction Contract, Authority will have the authority to reject the Preconstruction Services.

6.2 Contractor Site Access

6.2.1 Authority shall handover all or a portion of the Site necessary to perform the Construction Work as part of Work Packages, as set forth in the Construction Contract.

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6.2.2 Contractor shall notify Authority to arrange for permission to enter upon any Authority ROW not previously handed over to Contractor. Contractor must obtain, at a minimum, written approval from Authority to enter upon such Authority ROW; such approval may include conditions, including the obligation to abide by access limitations and rules and to not unreasonably interfere with other Persons.

Contractor must provide 21 days prior notice to Authority for property access when Authority protection personnel are required. Prior to entering such Authority ROW, Contractor and its Subcontractors may be required to execute Authority’s then-current permit to enter or similar.

6.3 Types of Authority Review

Contractor shall submit all Preconstruction Deliverables for either Authority “review” or Authority “approval” as described in this Section 6.3 (unless the Preconstruction Contract requires otherwise). The approval process represents a hold point and Contractor may not proceed at its own risk. The review process does not represent a hold point and Contractor may proceed at its own risk. All submittals are for Authority review, unless the Preconstruction Contract expressly states that the submittal is subject to a different standard.

Unless otherwise specifically required by the Preconstruction Contract, Authority is not required to respond to submittals that are for Authority review.

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

(c) Statement of Objection with Comments

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

(i) Approved

(ii) Approved with Comments

(iii) Not Approved with Comments

Authority shall respond to any submittal for approval within 45 days after receipt, unless the Preconstruction Contract expressly provides a different response time.

When Authority returns a submittal “Not Approved with Comments” or “Statement Of Objection with Comments,” Authority will transmit the reasons to Contractor. Should Contractor not understand or agree with Authority’s comments, Contractor shall initiate correspondence with Authority regarding resolution of the matter within 15 days after Contractor’s receipt of the returned submittal bearing such comments. Contractor shall address Authority’s comments and resubmit the entire package within 30 days after Contractor’s receipt of the returned submittal;

partial resubmission will not be acceptable. For submissions returned “Statement Of No Objection with Comments” or “Approved with Comments,” Contractor shall as soon as possible, C M

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6.4 Standard of Review

In all cases where approval, acceptance, SONO or consent is required to be provided by Authority or Contractor under the Preconstruction Contract, such approval, acceptance, SONO or consent shall not be withheld unreasonably except in cases where a different standard (such as sole discretion) is specified. In cases where sole discretion is specified, the decision shall not be subject to dispute resolution hereunder.

6.5 Contractor not Relieved of its Obligation

Contractor shall not be relieved of its obligation to perform the Preconstruction Services in accordance with the Preconstruction Contract, including its responsibility to correct any Defects or update any content that has become invalid, or any of its other obligations under the Preconstruction Contract, by oversight, spot checks, assessments, reviews, tests, inspections, acceptances, SONOs, Statements of no Objection with Comments, Statements of Objection with Comments, approvals, commissioning, payment for any Preconstruction Services, including Non-Conforming Work, or by any failure of any Person to take such action. Such Authority actions or non-actions shall not make Authority liable or responsible for any aspect of the Preconstruction Services and do not constitute final acceptance of the particular material or Preconstruction Service, or waiver of any contractual, legal or equitable right with respect thereto, including Authority’s rights related to Non-Conforming Work under the Preconstruction Contract. Contractor shall update and resubmit any Preconstruction Deliverable if any content has become invalid after Authority approval with an explanation of why such update is required.

7.0 COMPENSATION

7.1 Contract Price

7.1.1 Preconstruction Services

7.1.1.1 In consideration of Contractor's performance of the Preconstruction Services, and in accordance with the Preconstruction Contract, Authority will pay Contractor an amount not to exceed $__________ (as such amount may be modified in accordance with the Preconstruction Contract, the “Preconstruction NTE Amount”).

7.1.1.2 The actual allowable costs, fees, profit and overhead as described in the Preconstruction Contract incurred in the performance of the Preconstruction Services and payable by Authority (“Preconstruction Contract Price”) may be less than the Preconstruction NTE Amount. There is no guarantee, either expressed or implied, as to the actual dollar amount that will be payable under the Preconstruction Contract.

7.1.1.3 Total compensation for all Preconstruction Services shall not exceed the Preconstruction NTE Amount, except as specified herein. Any costs incurred in excess of the Preconstruction NTE Amount without authorization under a Change

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Order or other provision will not be reimbursable under the Preconstruction Contract, will not be compensated by Authority, and will be at the sole expense of Contractor.

7.1.1.4 Authority and Contractor will negotiate, as part of the Task Order process, a performance-based fee structure including the details of performance criteria and the evaluation process. The performance-based fee structure is intended to incentivize Contractor to meet the identified targets in multiple areas to measure success.

(a) The Parties will develop a performance plan with targets, criteria, and measurable performance indicators that add significant value to the Project and may include such items as: collaboration with Interfacing Contractors, schedule, work quality, sustainability measures, and small business compliance.

(b) Performance targets and measures will relate to a specific deliverable, measurable activity, or milestone.

(c) The performance-based fee structure range shall be between X percent for satisfactory performance and Y percent for excellent performance, as set forth in Section -- of Exhibit E (Payment Terms) to the General Provisions.

7.1.2 Work Packages

If the Parties execute a Construction Contract for the performance of the Construction Work associated with a Work Package, Authority will pay Contractor the Work Package Price in accordance with the Construction Contract. The Construction Contract may then be amended to include additional Work Packages.

7.2 Payment

7.2.1 Progress Payments

7.2.1.1 Contractor shall submit all Applications for Progress Payments electronically to…