Attachment 17 RTD Pricing Conditions

Transcription

1 Attachment 17 RTD Pricing Conditions

2 1. General conditions Incurred Costs may be claimed by the Concessionaire under this Agreement only to the extent such Incurred Costs have been incurred in compliance with 48 CFR Part 31 (Federal Acquisition Regulation Contract Cost Principles and Procedures) (the FAR) and FTA Circular F Part VI (Third Party Contracting Guidance; Procedural Guidance for Open Market Procurements). Any Incurred Costs claimed by the Concessionaire from RTD under this Agreement shall be calculated in accordance with this Attachment Definitions For purposes of this Attachment 17: Base Wages means the actual unburdened wages paid to an employee exclusive of Indirect Costs. Blue Book means the Rental Rate Blue Book for Construction Equipment by Dataquest, Inc. Direct Costs means that portion of Incurred Costs identified and calculated as "Direct Costs" in accordance with Section 3. FAR has the meaning given to it in Section 1 (General conditions) of this Attachment 17. G&A means general and administrative expenses. Indirect Cost Rate means the rate (expressed as a percentage) for Indirect Costs for labor calculated as follows: (a) (b) for Professional Services, the relevant entity's undisputed FAR compliant indirect cost rate as determined in accordance with 49 U.S.C. 5325(b)(3)(C) and FTA Circular F Part VI 3.f.(5); or for non-professional Services, the rate established under the relevant entity's approved indirect cost rate agreement sufficient for purposes of FTA Circular F Part VI 6.a.(2) or, if the relevant entity does not have such an agreement, the applicable indirect cost rate as determined in accordance with FTA Circular F Part VI 6.a.(2), provided that if the Concessionaire is unable to demonstrate to RTD's satisfaction an Indirect Cost Rate in compliance with (a) or (b), as applicable, the rate shall be calculated (x) for non- Professional Services, as an audited labor surcharge equal to actual Indirect Costs not to exceed 50% of the Base Wages and (y) for Professional Services, as an audited labor surcharge equal to actual Indirect Costs not to exceed 140% of the Base Wages. Indirect Costs means that portion of Incurred Costs identified and calculated as "Indirect Costs" in accordance with Section 3. ODC means other Direct Cost. OH means overhead. Page 1

3 Professional Services means architectural and engineering services as defined in and subject to 40 U.S.C and any program management, architectural engineering, construction management, feasibility study, preliminary engineering, design, architectural, engineering, surveying, mapping or related services provided under a contract subject to 49 U.S.C. 5325(b). Specialized Equipment has the meaning given to it in Section 5(d) of this Attachment Calculation of Incurred Costs Incurred Costs except for Professional Services, shall be calculated in accordance with the formulae set forth in Table 1 (Incurred Costs except for Professional Services) below. Incurred Costs for Professional Services will be calculated in accordance with the formulae set forth in Table 2 (Incurred Costs for Professional Services) below. Direct Costs, Indirect Costs and permitted mark-ups in each of Table 1 and Table 2 below shall be determined as follows: (a) (b) (c) (d) Labor costs shall be determined in accordance with Section 4(a) (for Table 1) and Section 4(b) (for Table 2); Materials costs shall be determined in accordance with Sections 5(a) and 5(b); Equipment and specialized rental equipment costs shall be determined in accordance with Sections 5(c) and 5(d); ODCs shall be determined in accordance with Section 6; and (e) Mark-ups shall be determined in accordance with Section 7, provided that the following costs shall not be Incurred Costs: (x) loss of expected revenues; (y) Indirect Costs or loss of opportunity resulting from any agreement executed by the Concessionaire not in connection with the, including Concessionaire overheads, fines and liquidated damages; or (z) fines or liquidated damages arising from or out of the Eagle Project. Table 1: Incurred Costs except for Professional Services Labor Materials Equipment Subcontracts Expenses A Direct Costs Base Wages Per Invoice (incl. delivery) Blue Book Per Invoice ODCs B Indirect Costs (OH + G&A) Per Section 4(a) 2% (of A) 5% (of A) N/A N/A C Permitted 10% (of A+B) 10% (of A+B) 10% (of 5% (of A) 5% (of A) mark-up A+B) D Total A+B+C A+B+C A+B+C A+C A+C Page 2

4 Table 2: Incurred Costs for Professional Services Labor Materials Equipment Subcontracts Expenses A Direct Costs Base Wages Per Invoice (incl. delivery) Blue Book Per Invoice ODCs B Indirect Costs (OH + G&A) Per Section 4(b) N/A N/A N/A N/A C Permitted 10% (of A+B) 10% (of A) 10% (of A) 5% (of A) 5% (of A) mark-up D Total A+B+C A+C A+C A+C A+C 4. Labor Labor except for Professional Services (a) The Direct Cost and Indirect Cost of labor claimed by the Concessionaire as an element of Incurred Costs shall be calculated as follows (without duplication): Direct Costs: the Base Wages, plus Indirect Costs: a labor surcharge equal to the applicable Indirect Cost Rate multiplied by the Base Wages which surcharge shall constitute full compensation for overhead and general and administrative expenses, all state and federal payroll, unemployment and other taxes, insurance, fringe benefits (including health insurance, retirement plans, vacation, sick leave and bonuses) and all other payments made to, or on behalf of, the employees in excess of Base Wages; provided that (A) the Base Wages paid for Federally-funded construction-related work shall be those set forth in the applicable Davis-Bacon Wage Rate Schedules available online at as appropriate for the locality and type of work, which is in effect on the date on which the additional work is undertaken; (B) the Direct Costs attributable to the cost of labor shall include all classifications of worker up to foreworker and shall include foreworkers only when authorized by RTD and when foreworkers are engaged in the actual and direct performance of the additional work in connection with an Incurred Cost Event (which in each case shall not be separately counted as Indirect Costs under (C)), and (C) Indirect Costs shall include all charges for foreworkers not described in (B), assistant superintendents, superintendents, office personnel, timekeepers, and maintenance mechanics. Labor for Professional Services (b) The Direct Cost and Indirect Cost of labor for Professional Services claimed by the Concessionaire as an element of Incurred Costs shall be calculated as follows (without duplication): Direct Costs: the Base Wages, plus Page 3

5 Indirect Costs: a labor surcharge equal to the applicable Indirect Cost Rate multiplied by the Base Wages, which surcharge shall constitute full compensation for overhead and general and administrative expenses, all state and federal payroll, unemployment and other taxes, insurance, fringe benefits (including health insurance, retirement plans, vacation, sick leave and bonuses) and all other payments made to, or on behalf of, the employees in excess of Base Wages; provided that overhead for this purpose shall be deemed to include accessories such as computer-assisted drafting and design (CADD) systems, facsimile transmission machines, scanners, printers and plotters, and paper. 5. Materials, equipment and specialized equipment rental Materials (a) The cost of materials claimed by the Concessionaire as an element of Incurred Costs shall be the cost plus delivery costs of such materials and: without regard to whether the materials are procured by the purchaser (whether such materials are purchased by the Concessionaire, any Project Contractor or any Subcontractor or supplier thereof) by a direct purchase from and a direct billing by the actual source to such purchaser or otherwise by an indirect purchase through a supplier, the cost of such materials that may be claimed by the Concessionaire from RTD shall be: (A) (B) if the Concessionaire provides evidence satisfactory to RTD of the cost of materials from the actual source, the price paid to the actual source either directly by the purchaser or indirectly by the supplier to the purchaser in either case as determined by RTD; or if the Concessionaire does not provide evidence satisfactory to RTD of the cost of materials from the actual source, the lowest current wholesale price at which such materials are available in the quantities concerned, delivered to the jobsite, less any discounts received; (iii) if the materials are obtained from a supply or source owned wholly or in part by the purchaser or any of the Concessionaire, any Project Contractor or any Subcontractor, payment therefor will not exceed the price paid by the purchaser for similar materials furnished from said source on work pursuant to this Agreement, or the current wholesale price for such materials delivered to the jobsite, whichever price is lower; and Indirect Costs shall be calculated as a surcharge equal to 2% for the cost of materials. (b) The Concessionaire shall not be entitled to Incurred Costs relating to the cost of materials provided by RTD for incorporation into the in connection with an Incurred Cost Event. Page 4

6 Equipment rental (c) The cost of equipment rental claimed by the Concessionaire as an element of Incurred Costs shall be calculated on the basis of the rental rates listed for such equipment in the most recent and applicable publication of the Blue Book available at the time of rental, regardless of ownership and any rental or other agreement for the use of such equipment entered into by the Concessionaire and: (iii) (iv) (v) (vi) (vii) (viii) Indirect Costs shall be calculated as a surcharge equal to 5% for the cost of rental; unless otherwise specified, manufacturer's equipment capacity ratings and manufacturer-approved modifications affecting such ratings shall be used to classify equipment for the determination of applicable rental rates; in respect of those pieces of equipment with a rental rate of U.S.$15 per hour or less as listed in the Blue Book and which are rented from a local equipment rental agency (other than a rental agency owned or controlled by the Concessionaire, any Project Contractor, Subcontractor or any of their respective Affiliates), the Concessionaire will be paid Direct Costs at the hourly rate shown on the rental agency invoice or agreement for the time used for the additional work required in connection with the relevant Incurred Cost Event; the rental time to be claimed for equipment on each Site shall be the time the equipment is in operation and, as calculated in accordance with subparagraph (xi) below, the time required to move the equipment to location of the additional work and return such equipment to the original location or to another location (provided that the time to move to such other location shall be no greater than the time it would have taken to relocate to the original location); loading and transporting costs may be claimed as Incurred Costs, in lieu of moving time, where the equipment is moved by means other than its own power; if a minimum equipment rental amount is required by the local equipment rental agency (other than a rental agency owned or controlled by the Concessionaire, any Project Contractor, Subcontractor or any of their respective Affiliates), the actual amount charged will be paid as Direct Costs to the Concessionaire; if RTD agrees that it is necessary for the Concessionaire to use equipment not listed in the Blue Book, a suitable rental rate for such equipment will be agreed between the Concessionaire and RTD and the Concessionaire shall furnish all cost data as necessary to assist RTD in the establishment of such rental rate; all rental rates claimed as an element of Direct Costs shall be deemed to include the cost of fuel, oil, lubrication, supplies, small tools (which includes individual pieces of equipment or tools having a new value of U.S.$500 or less), necessary attachments, repairs and maintenance of all kinds, depreciation, storage, insurance, and all incidentals and no additional amount of Direct Costs may be claimed for such costs; Page 5

7 (ix) (x) (xi) the cost of any operator of equipment shall be claimed as a labor cost and not as an additional equipment rental cost; no claim may be made for Direct Costs attributable to equipment rental during periods when such equipment is inoperative due to breakdown; the Direct Costs relating to the use of equipment moved to any Site for the sole purpose of carrying out the additional work related to an Incurred Cost Event may include the cost of transporting the equipment to the location of the additional work and its return to its original location, all in accordance with the following provisions: (A) (B) (C) (D) (E) the original location of the equipment to be moved to the location of the additional work shall be as close as reasonably possible to the location of the work; the cost of transporting equipment shall not exceed the hourly rates charged by established carriers identified in advance by RTD, provided such carriers are reasonably available; the rental period shall begin at the time the equipment is unloaded at the location of the additional work, shall include each day that the equipment is at such location, excluding Saturdays and Sundays and other legal holidays unless the additional work is performed on such days, and shall terminate when the related work is completed; no amount of Direct Costs shall be claimed or payable for transporting, and loading and unloading equipment if the related equipment is used for any purpose other than the additional work for which Incurred Costs are payable; and the Concessionaire shall provide an analysis demonstrating that the price for negotiated equipment rentals was fair and reasonable. Specialized equipment rental (d) The hourly rate for fully maintained and operated rental equipment, the operation and maintenance of which requires a degree of specialized skill, including dump trucks, powered cranes, and similar vehicles or equipment (Specialized Equipment) claimed as Incurred Costs shall be the same hourly rental rate paid by the Concessionaire for use of fully maintained and operated Specialized Equipment in carrying out the Work during the Design/Build Period or, if not applicable, at a rate agreed between RTD and the Concessionaire based on prevailing market rates. The Concessionaire shall provide RTD with complete information on the hourly rental rates available for rental of fully maintained and operated Specialized Equipment and the rental rates listed for Specialized Equipment in the Blue Book for Contactors shall not apply. No separate mark-up shall be made for labor relating to the operation of Specialized Equipment in connection with an Incurred Cost Event. Page 6

8 6. ODCs The Concessionaire will be reimbursed for ODCs, including for the acquisition of Permits, which are not labor, materials, equipment, or subcontract Direct Costs or Indirect Costs, and which are incurred in connection with an Incurred Cost Event. The Concessionaire shall be reimbursed for travel, lodging and subsistence expenses incurred by professional personnel not temporarily or permanently resident in the Denver metropolitan area at the then current per-diem rates applicable to the location of the work as set forth by the U.S. General Services Administration. 7. Permitted mark-ups (profit) on costs The Concessionaire may apply the following percentage mark-up (profit) rates to labor, materials, equipment, subcontractor administration and other costs, as applicable, to cover all of the Concessionaire's, the Project Contractors' and any Subcontractor's profit related to any additional work undertaken in connection with an Incurred Cost Event: Labor: Materials: Equipment and specialized equipment rental: Subcontractors below Project Contractors: ODCs (Expenses, including Permits) 10% of Direct Costs and Indirect Costs 10% of Direct Costs and, for non- Professional Services, Indirect Costs 10% of Direct Costs and, for non- Professional Services, Indirect Costs 5% of Direct Costs 5% of Direct Costs provided the 5% mark-up for Subcontractors shall be applied to the Direct Cost incurred by the Concessionaire for Subcontracted work, which Direct Cost shall be equal to the total cost shown on all invoices submitted by all Subcontractors engaged in work performed in connection with an Incurred Cost Event. 8. Incurred Cost records Cost detail (a) The Concessionaire shall, and shall ensure that the Project Contractors and the Subcontractors shall, maintain and provide to RTD detailed pricing and cost information related to all Incurred Costs claimed by the Concessionaire. The cost details shall include identified labor hours and rates by job classification or discipline, direct material quantities and unit prices, and other detail as required by RTD. Labor (b) The Concessionaire shall, and shall ensure that the Project Contractors and the Subcontractors shall, implement and maintain labor charging (i.e. timecard or payroll) procedures that meet the following criteria: Page 7

9 all time records shall be in writing, recorded by the employee, and verified by the immediate supervisor. Such records shall be complete and shall record all activities of employees involved in an Incurred Cost Event, whether or not related to the additional work performed in connection with an Incurred Cost Event, within a given accounting period, and shall identify by means of cost codes what activities were being performed; and all charges for labor shall be identifiable to the nearest half-hour. (c) The Concessionaire shall maintain its records in such a manner as to provide a clear distinction between the Incurred Costs of additional work performed in connection with an Incurred Cost Event and the costs of other operations and Work performed pursuant to this Agreement. Daily records for time and materials work (d) In connection with any additional work in connection with an Incurred Cost Event carried out by the Concessionaire other than on a fixed price, fixed time basis, the Concessionaire shall provide to RTD daily report sheets setting out Direct Costs of additional work claimed or incurred in the previous day in a format acceptable to RTD. The daily report sheets shall be certified by an appropriate representative of the Concessionaire and shall itemize each item of Direct Costs claimed in respect of labor, materials, equipment and other activities claimed by the Concessionaire. The daily report sheets shall provide names or identifications and classifications of workers, the hourly rate of pay and hours worked, and also the size, type and identification number of equipment, and hours operated. The daily reports shall include invoices for any materials or manufactured items for which the Concessionaire is claiming Incurred Costs. If the Concessionaire fails to provide a verifiable vendor's invoice relating to a Incurred Cost within the earlier of 60 days of delivery of the material and 15 days after completion of the related additional work, RTD reserves the right to calculate the cost of such materials at the lowest current wholesale prices at which such materials are available in the relevant quantities less any cash or trade discounts applicable thereto. Incurred Cost records are Project Records (e) The Concessionaire's original cost records relating to any claim for Incurred Costs for additional work in connection with an Incurred Cost Event, including each type of record referenced in this Section 8, shall constitute "Project Records" as such term is used in Section 32 (Audit and Records). Page 8