BOOK 1 DESIGN-BUILD CONTRACT

Transcription

1 BOOK 1 DESIGN-BUILD CONTRACT FUNDING PARTNERS: US DEPARTMENT OF TRANSPORTATION CALTRANS PORT OF LONG BEACH METRO Contract No. HD-7961 Federal Project Numbers: BRLS 5108 (137); ACNH (807) Project Identification Number: FINAL FOR EXECUTION

2 TABLE OF CONTENTS 1. CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT DOCUMENTS Certain Definitions Contract Documents; Order of Precedence Interpretations Referenced Standards and Specifications Omission of Details; Clarification by Port Computation of Time Periods; Agreement to Change Time Periods Standard for Approvals Federal Requirements OBLIGATIONS OF DESIGN-BUILDER Performance Requirements General Obligations of Design-Builder Representations, Warranties and Covenants Design Requirements Alternative Technical Concepts Governmental Approvals Progression of Work Design and Engineering Personnel INFORMATION SUPPLIED TO CONTRACTOR; RESPONSIBILITY FOR DESIGN Information Supplied Responsibility for Design No Liability Regarding RID Professional Licensing Laws Notification of Third-Party Claims...15 PORT OF LONG BEACH Page i Final for Execution

3 4. TIME WITHIN WHICH PROJECT SHALL BE COMPLETED Notices to Proceed Completion Deadlines Contract Schedule Prerequisites to Start of Construction for Specific Design Packages CONTROL OF WORK Control and Coordination of Work Safety Process to be Followed for Discovery of Certain Site Conditions Obligation to Minimize Impacts Quality Management Effect of Oversight, Spot Checks, Audits, Tests, Acceptances, and Approvals Nonconforming Work SITE ACCESS; RELOCATIONS; ENVIRONMENTAL COMPLIANCE Access to Site Utility Relocations Environmental Compliance EQUAL EMPLOYMENT OPPORTUNITY; SUBCONTRACTS; LABOR Equal Employment Opportunity Disadvantaged Business Enterprises Subcontracting Requirements Key Personnel; Character of Workers Project Labor Agreement SURETY BONDS Payment and Performance Bonds...40 PORT OF LONG BEACH Page ii Final for Execution

4 8.2 Utility Work Not Used No Relief of Liability INSURANCE General Insurance Requirements Design-Builder Provided Insurance RISK OF LOSS Site Security Protection and Repair of the Work and other Property Builder s Risk Insurance Title PAYMENT Contract Price Invoices and Payment Limitations on Payment Mobilization Deductions Final Payment Payments to Subcontractors Interest on Late Payments Disputes CHANGES IN THE WORK Circumstances under which Change Orders May Be Issued Procedure for Port-Initiated Change Orders Procedure for Design-Builder Initiated Change Orders...58 PORT OF LONG BEACH Page iii Final for Execution

5 12.4 Contents of Change Orders Completion Deadline and Contract Price Adjustments; Certain Limitations Negotiated Price Change Orders Time and Materials Change Orders Differing Site Conditions Contaminated Materials Management Matters Not Eligible for Change Orders Waiver Disputed Contract Price and/or Completion Deadline Changes No Release or Waiver SUSPENSION OF WORK Suspension for Convenience Suspension for Cause Design-Builder Responsibilities During Suspension TERMINATION FOR CONVENIENCE Notice of Termination Design-Builder s Responsibilities Upon Termination Responsibility After Notice of Termination Negotiated Termination Settlement Determination of Settlement Amount If Negotiations Fail Partial Termination Reduction in Amount of Claim Partial Payments Inclusion in Subcontracts Limitation on Payments to Subcontractor...78 PORT OF LONG BEACH Page iv Final for Execution

6 14.11 No Unearned Profits or Consequential Damages No Waiver Dispute Resolution Suspension of Work Termination Due to Non-Appropriation of Funds DEFAULT Default By Design-Builder Remedies Right to Stop Work If Undisputed Payment Is Not Made Notice and Opportunity to Cure Other Types of Port Breaches DAMAGES Liquidated Damages Offset; Waiver Payment of Liquidated Damages INDEMNIFICATION Indemnifications by Design-Builder Responsibility of Port for Certain Contaminated Materials No Effect on Other Rights CERCLA Agreement Intent of Indemnity for Breach of Contract PARTNERING, CLAIMS FOR ADJUSTMENT AND DISPUTES Partnering Disputes Resolution Process ACCEPTANCE OF PROJECT Substantial Completion PORT OF LONG BEACH Page v Final for Execution

7 19.2 Final Acceptance Opening the Project to Traffic WARRANTIES Warranties by Design-Builder Warranty of Corrected Work Subcontractor and Supplier Warranties No Limitation of Liability Warranty Beneficiaries Remedies for Breach of Warranty Disputes DOCUMENTS AND RECORDS Escrowed Proposal Documents Subcontractor and Supplier Pricing Documents Project Records Retention of Records California Public Records Act Intellectual Property MISCELLANEOUS PROVISIONS Amendments Waiver Independent Contractor Successors and Assigns Designation of and Cooperation with Representatives Officials Not to Benefit Survival PORT OF LONG BEACH Page vi Final for Execution

8 22.8 Limitation on Third-Party Beneficiaries No Personal Liability Notices and Communications Taxes Assignment of Causes of Action under Section 4 of Clayton Act Gratuities and Conflicts of Interest Further Assurances Severability Headings Governing Law Entire Agreement Counterparts PORT OF LONG BEACH Page vii Final for Execution

9 EXHIBITS Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K Exhibit L Acronyms and Definitions Major Permits Design-Builder s Proposal Commitments (see Exhibit C for table of contents) Labor Code Requirements Disadvantaged Business Enterprise (DBE) Special Provisions for Design-Build Projects Federal Requirements Exhibit F-1 Federal Requirements for Federal-Aid Construction Projects Exhibit F-2 FHWA Form 1273 Exhibit F-3 Exhibit F-4 Exhibit F-5 Key Personnel Federal and State Prevailing Wage Rates Equal Employment Opportunity Special Training Provisions Designation of Initial Representatives Disputes Review Board Agreement Project Labor Agreement Use Tax Form List of Established Documents PORT OF LONG BEACH Page viii Final for Execution

10 THIS Design-Build Contract is entered into by and between the City of Long Beach, acting by and through its Board of Harbor Commissioners, commonly known as the Port of Long Beach ( Port ) and Shimmick Construction Company, Inc. / FCC Construcción S.A. / Impregilo S.p.A., a Joint Venture ( Design-Builder ), effective as of the last date set forth on the signature page hereto, with reference to the definitions contained in Exhibit A hereto and the following facts: Recitals A. The Project is located in Los Angeles County, California, within the City of Long Beach and generally consists of the design and construction of a replacement Bridge and associated approach and ramp network for the existing Gerald Desmond Bridge. B. Port and Department collaborated to procure this Contract as one of the ten design-build projects Department is authorized to procure under the Design-Build Demonstration Program found in Public Contract Code section 6800 et seq. ( Section 6800 ). C. On November 3, 2010, pursuant to Section 6800, the California Transportation Commission, at a regularly scheduled public hearing, approved Port and Department s implementation of the Project through a design-build method of procurement. D. Port and Department issued a Request for Qualifications for the Project on November 5, E. Port and Department received seven Statements of Qualifications on January 20, 2011, and subsequently prequalified five Proposers. F. On September 2, 2011 Port and Department issued the Request for Proposals to the Proposers. G. On March 2, 2012, Port and Department received responses to the RFP from the Proposers, including the Proposal from Design-Builder. H. An RFP evaluation committee determined that the Proposal was the response to the RFP that provided best value to Port and Department, which ultimately led the Board of Harbor Commissioners to award this Contract to Design-Builder. I. This Contract and the other Contract Documents collectively constitute a part of the designbuild contract as contemplated under Section 6800, and are entered into in accordance with the provisions of the RFP. J. The Parties intend for the Contract to be a lump-sum design-build contract obligating Design-Builder to perform all work necessary to complete the Project by the deadlines specified herein, for the Contract Price, subject only to certain specified limited exceptions. To allow Port to budget for the Project and to reduce the risk of cost overruns, the Contract includes restrictions affecting Design-Builder s ability to make claims for an increase to the Contract Price or an extension of the Completion Deadlines. Except for changes expressly allowed under the Design-Build Contract, Design-Builder has agreed in the Contract to assume such responsibilities, risks and restrictions and has reflected the assumption of such responsibilities, risks and restrictions in the Contract Price. PORT OF LONG BEACH 1 Final for Execution

11 K. If Design-Builder fails to complete the Project by one or more of the Completion Deadlines, then Port will suffer substantial losses and damages. The Contract Documents therefore provide that Design-Builder shall pay Port liquidated damages if such Completion Deadlines are delayed. L. Port has provided the Basic Configuration to Design-Builder for the purpose of defining certain aspects of the Project. Port has also provided Reference Information Documents (RID) to Design-Builder. Design-Builder has no right to rely on the RID except to the extent specifically permitted in the Contract Documents. Port and Design-Builder both intend for Design-Builder to assume full responsibility and liability with respect to the design of the Project, including correction of any Errors in the Basic Configuration or RID, and Port and Design-Builder both intend for Design-Builder to indemnify and hold harmless Port and others with respect to any defects in the Project which may relate to Errors in the Basic Configuration or RID. NOW, THEREFORE, in consideration of the sums to be paid to Design-Builder by Port, the foregoing premises and the covenants and agreements set forth herein, the Parties hereby agree as follows. PORT OF LONG BEACH 2 Final for Execution

12 1. CONTRACT COMPONENTS; INTERPRETATION OF CONTRACT DOCUMENTS 1.1 Certain Definitions Exhibit A hereto contains the meaning of various terms used in the Contract Documents. 1.2 Contract Documents; Order of Precedence Each of the Contract Documents is an essential part of the Contract, and a requirement occurring in one is as binding as though occurring in all. The Contract Documents are those documents listed in Section 1.2.1, including all exhibits thereto, intended to be complementary and to describe and provide for a complete contract Order of Precedence Except as provided in Section 1.2.2, in the event of any conflict among the Contract Documents, the order of precedence, from highest to lowest, shall be as set forth below: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Amendments, including Change Orders, to Book 1, including all Exhibits (Design-Build Contract), as executed by Port and Design-Builder, except amendments to Exhibit C which have a lower order of precedence; Book 1, as executed by Port and Design-Builder, including all Exhibits (Design-Build Contract), except Exhibit C which has a lower order of precedence; Amendments, including Change Orders, to Exhibit C-20 (Alternative Technical Concepts); Exhibit C-20 (Alternative Technical Concepts); Amendments, including Change Orders, to Book 2 (Project Requirements); Book 2 (Project Requirements); Amendments, including Change Orders, to Book 3 (Applicable Standards); Book 3 (Applicable Standards); Amendments, including Change Orders, to Exhibit C (Design-Builder s Proposal Commitments), except amendments to Exhibit C-20; and Exhibit C (Design-Builder s Proposal Commitments), except Exhibit C Conflicts Among Contract Document Provisions Notwithstanding the order of precedence among Contract Documents set forth in this Section 1.2, in the event of any conflict, ambiguity or inconsistency between or among any of the provisions in this Contract, or between provisions in this Contract and any other Contract Document, the provisions that establish the higher quality, manner or method of performing the Work, exceed Good Industry Practice or use more stringent standards will prevail. If Design- Builder s Proposal Commitments include statements, terms, concepts or designs that can PORT OF LONG BEACH 3 Final for Execution

13 reasonably be interpreted as offering to provide higher quality items than otherwise required by the Contract Documents or to perform services or meet standards in addition to or better than those otherwise required, then Design-Builder s obligations hereunder shall include compliance with all such statements, terms, concepts and designs. Additional details in a lower priority Contract Document shall be given effect except to the extent they irreconcilably conflict with requirements, provisions and practices contained in the higher priority Contract Document Conflicts Among Referenced Standards Notwithstanding Sections and 1.2.2, in the event of conflicting standards incorporated by reference into the Contract Documents, including the standards listed in Book 3, Port shall have the right to determine which standard applies. Port shall first refer the order of precedence set forth for these standards in individual sections of Book 2 to resolve the conflict. If Port determines that the order of precedence for standards in Book 2 does not resolve the conflict, then Port shall have the right to determine, in its sole discretion, which standard applies. Design-Builder shall request Port s determination respecting the order of precedence among conflicting standards promptly upon becoming aware of any such conflict Modification to Documents Since Addendum 11 The Parties agree that if a Contract Document listed in Exhibit L is different in any manner from the version of that document established through Addendum 11 of the Contract procurement process, then the version of that document established through Addendum 11 of the procurement process shall govern. This Section shall not apply to differences in the Exhibit L documents that result from amendments to the Contract that are mutually agreed to in writing by the Parties pursuant to Section Interpretations In the Contract Documents, where appropriate: the singular includes the plural and vice versa; references to statutes or regulations include all statutory or regulatory provisions consolidating, amending, or replacing the statute or regulation referred to; the words including, included, includes, and include are deemed to be followed by the words without limitation ; unless the context requires otherwise, in phrases involving performance by a Person, the word shall indicates a requirement imposed on the Person; unless otherwise indicated, references to sections, appendices and exhibits are to the document which contains such references; words such as herein, hereof, and hereunder refer to the entire document in which they are contained and not to any particular provision or Section; words not otherwise defined that have well-known technical or construction industry meanings are used in accordance with such recognized meanings; references to Persons include their respective permitted successors and assigns and, in the case of Governmental Persons, Persons succeeding to their respective functions and capacities; and words of any gender used herein include each other gender where appropriate. Unless otherwise specified, lists contained in the Contract Documents defining the Project or the Work shall not be deemed all-inclusive. Design-Builder acknowledges and agrees that it has independently reviewed the Contract Documents with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the Contract Documents. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of the Contract Documents, the Contract Documents shall not be construed against the Person who prepared them, and instead other rules of interpretation shall be used. Port and Department's answers to questions posed during the PORT OF LONG BEACH 4 Final for Execution

14 proposal process for the Contract shall in no event be deemed part of the Contract Documents and shall not be relevant in interpreting the Contract Documents. 1.4 Referenced Standards and Specifications Except as otherwise specified in the Contract Documents or otherwise directed by Port, Work specified by the number, symbol or title of any standard established by reference to a described publication affecting any portion of the Project shall comply with the latest edition or revision thereof and amendments and supplements thereto in effect on September 2, Omission of Details; Clarification by Port Design-Builder shall not take advantage of any apparent Error in the Contract. If it is discovered that the Work to be done or any matter relative thereto is not sufficiently detailed or explained in the Contract Documents, Design-Builder shall apply to Port in writing for such further written explanations as may be necessary and shall conform to the explanation provided. Design- Builder shall promptly notify Port of all Errors which it may discover in the Contract Documents, and shall obtain specific instructions in writing regarding any such Error before proceeding with the Work affected thereby. The fact that the Contract Documents omit any details of any Work which are necessary to carry out the intent of the Contract Documents, or which are customarily performed under similar circumstances, shall not relieve Design-Builder from performing such omitted Work and they shall be performed as if fully and correctly set forth and described in the Contract Documents, without entitlement to a Change Order hereunder except as specifically allowed under Section Computation of Time Periods; Agreement to Change Time Periods References to days or Days contained in the Contract Documents shall mean Calendar Days unless otherwise specified, provided that if the date to perform any act or give any notice specified in the Contract Documents (including the last date for performance or provision of notice within a specified time period) falls on a non-working Day, such act or notice may be timely performed on the next succeeding day which is a Working Day. Notwithstanding the foregoing, requirements contained in the Contract Documents relating to actions to be taken in the event of an emergency, requirements contained in Section 5.3 and any other requirements for which it is clear that performance is intended to occur on a non-working Day, shall be required to be performed as specified, even though the date in question may fall on a non- Working Day. The Parties may mutually agree to increase or decrease any time periods or to otherwise modify any deadline in the Contract Documents. 1.7 Standard for Approvals In all cases where approvals, acceptances or consents are required to be provided by Port or Design-Builder hereunder, such approvals, acceptances or consents shall not be withheld unreasonably except in cases where a different standard (such as sole discretion) is specified, and shall not be unreasonably delayed if no response time is specified. In cases where sole discretion is specified, the decision shall not be subject to dispute resolution or other legal challenge; provided, however, the issue of whether the decision was arbitrary or capricious shall be subject to dispute resolution hereunder. PORT OF LONG BEACH 5 Final for Execution

15 1.8 Federal Requirements Notwithstanding anything to the contrary contained herein, in the event of any conflict between any Federal Requirement and the other requirements of the Contract Documents, the Federal Requirements shall prevail, take precedence and be in force over and against any such conflicting provisions. PORT OF LONG BEACH 6 Final for Execution

16 2. OBLIGATIONS OF DESIGN-BUILDER 2.1 Performance Requirements Performance of Work All materials, services and efforts necessary to achieve Substantial Completion and Final Acceptance on or before the applicable Completion Deadline shall be Design-Builder s sole responsibility, except as otherwise specifically provided in the Contract Documents. Subject to the terms of Section 12, the costs of all such materials, services and efforts are included in the Contract Price Performance as Directed At all times during the term hereof, including during the course of, and notwithstanding the existence of, any Dispute, Design-Builder shall perform as directed in writing by Port in a diligent manner and without delay, shall abide by Port s decision or order, and shall comply with all applicable provisions of the Contract Documents. If a Dispute arises regarding such performance or direction, the Dispute shall be resolved in accordance with Section General Obligations of Design-Builder Design-Builder, in addition to performing all other requirements of the Contract Documents, shall: (a) (b) (c) furnish all design and other services, provide all materials and labor and undertake all efforts necessary or appropriate (excluding only those services, materials and efforts which the Contract Documents specify will be undertaken by other Persons): (i) to construct the Project and maintain it during construction in accordance with the Contract Documents, all Laws, all Governmental Approvals, Good Industry Practice, and all other applicable safety, environmental, licensing and other requirements, taking into account the R/W Work Map and other constraints affecting the Project, so as to achieve Substantial Completion and Final Acceptance by the applicable Completion Deadlines; (ii) to construct the Project free from material defects except to the extent that such defects are inherent in prescriptive specifications included in the Contract Documents, unless (a) Design-Builder has actual or constructive knowledge of such defects and (b) Design-Builder fails to notify Port of the defect in accordance with Section 1.5; and (iii) otherwise to do everything required by and in accordance with the Contract Documents; at all times provide Design-Builder s Project Manager, who (i) will have full responsibility for the prosecution of the Work, (ii) will act as agent and be a single point of contact in all matters on behalf of Design-Builder, (iii) will be present (or its Approved designee will be present) at the Site at all times that Work is performed, and (iv) will have authority to bind Design-Builder on all matters relating to the Project; obtain all Governmental Approvals (other than the Environmental Approvals and certain New Environmental Approvals as provided in Section , but specifically including any Governmental Approvals required to implement any Approved ATCs incorporated in the Contract Documents), including any revision, modification, amendment, supplement, renewal or extension of Governmental Approvals, required in connection with the Project or the Work; PORT OF LONG BEACH 7 Final for Execution

17 (d) (e) 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, including implementation of all environmental mitigation measures required by the Governmental Approvals and Contract Documents, except to the extent that such responsibility is expressly assigned in the Contract Documents to another Person; provide such assistance as is reasonably requested by Port in dealing with any Person and/or in prosecuting and defending lawsuits in any and all matters relating to the Project, which may include providing information and reports regarding the Project, executing declarations and attending meetings and hearings, but which shall in no event be deemed to require Design-Builder to provide legal services; (f) comply with the Quality Manual requirements in Book 2, Section 2.4; (g) (h) (i) (j) cooperate with Port and Governmental Persons with jurisdiction over the Project in the review and oversight of the Project and other matters relating to the Work; supervise and be responsible to Port for acts and omissions of all Design-Builder- Related Entities, as though all such Persons were directly employed by Design-Builder; mitigate delay to the Project and mitigate damages due to delay to the extent possible, including by resequencing, reallocating or redeploying Design-Builder s forces to other work, as appropriate; and pay all applicable federal, State and local sales, consumer, use and similar taxes, property taxes and any other taxes, fees, charges or levies imposed by a Governmental Person, whether direct or indirect, relating to, or incurred in connection with, the performance of the Work. 2.3 Representations, Warranties and Covenants Design-Builder represents, warrants and covenants to Port as described in this Section 2.3. The representations, warranties and covenants in this Section shall survive expiration or earlier termination of the Contract Maintenance of Professional Qualifications Design-Builder and its design Subcontractor(s) have maintained, and throughout the term of the Contract and its design Subcontract(s) shall maintain, all required authority, license status, professional ability, skills and capacity to perform the Work, and shall perform them in accordance with the requirements of the Contract Documents Evaluation of Constraints Design-Builder has evaluated the constraints affecting delivery of the Project, including the R/W Work Map and Basic Configuration as well as the conditions of the Environmental Approvals and has reasonable grounds for believing and does believe that the Project can be delivered within such constraints to the extent those constraints were accurately represented and/or consistent with Approved ATCs, if any. PORT OF LONG BEACH 8 Final for Execution

18 2.3.3 Feasibility of Performance Design-Builder has evaluated the feasibility of performing the Work by the Completion Deadlines and for the Contract Price, and has reasonable grounds for believing and does believe that such performance is feasible and practicable Review of Site Information To the extent Design-Builder deems it necessary or advisable for submittal of a Proposal, Design-Builder has, prior to submitting its Proposal, in accordance Good Industry Practice, undertaken appropriate activities sufficient to familiarize itself with surface conditions and subsurface conditions that may be discernible from the surface. Said activities have included inspection and examination of the Site and surrounding locations, to the extent possible. Based on its review, inspection, examination and other activities, Design-Builder is familiar with and accepts the physical requirements of the Work, subject to the right to receive a Change Order for Differing Site Conditions as specified in Section 12. Before commencing any Work on a particular aspect of the Project, Design-Builder shall verify all governing dimensions and conditions at the Site and shall examine all adjoining work which may have an impact on such Work. Design-Builder shall be responsible for ensuring that the Design Documents and Construction Documents accurately depict all governing and adjoining dimensions and conditions Governmental Approvals Obtained by Design-Builder After due consideration of all relevant factors, Design-Builder believes that all Governmental Approvals it is responsible for obtaining will be granted in due course and will thereafter remain in effect so as to enable the Work to proceed in accordance with the Contract Documents Organization Design-Builder is a joint venture duly organized and validly existing under the laws of the State of California with all requisite power to own its properties and assets and carry on its business as now conducted or proposed to be conducted. Design-Builder is duly qualified to do business, and is in good standing, in the State, and will remain in good standing throughout the term of the Contract and for as long thereafter as any obligations remain outstanding under the Contract Documents Authorization The execution, delivery and performance of the Contract have been duly authorized by all necessary actions of Design-Builder, and, if applicable, Design-Builder s members, and will not result in a breach or a default under the organizational documents of any such Person or any indenture, loan, credit agreement, or other material agreement or instrument to which any such Person is a party or by which their properties and assets may be bound or affected Legal, Valid and Binding Obligation The Contract constitutes the legal, valid and binding obligation of Design-Builder and, if applicable, of each member of Design-Builder, enforceable in accordance with its terms. PORT OF LONG BEACH 9 Final for Execution

19 2.3.9 False or Fraudulent Statements and Claims Design-Builder recognizes that the requirements of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. section 3801 et seq., the USDOT regulations, Program Fraud Civil Remedies, 49 C.F.R. Part 31, and the California False Claims Act, California Government Code section et seq., apply to its actions hereunder. Accordingly, by signing the Contract, Design-Builder certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, or it may make pertaining to its performance of the Work. In addition to other penalties that may be applicable under State Law, Design-Builder also acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification, the federal government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, on Design-Builder to the extent the federal government deems appropriate. 2.4 Design Requirements Required Approval Approval by Port is required prior to commencing any Work that would necessitate a modification to the Basic Configuration, regardless of whether the modification is required by a Governmental Approval or is desired by Design-Builder for its benefit or for any other reason. Design-Builder acknowledges and agrees that constraints set forth in the Contract Documents, as well as Site conditions, the R/W Work Map and the requirement to obtain Approval, will impact Design-Builder s ability to revise the Basic Configuration Design Review Process; Compliance with Design Design Review Process Design-Builder shall furnish the Released for Construction Documents and other Design Documents to Port in accordance with Book 2, Section 2.4. Design-Builder shall obtain Port s Approval of the Released for Construction Documents in accordance with Book 2, Section 2.4 and shall not commence any Construction Work covered by a Released for Construction Document until it receives that Approval. If required, Design-Builder shall obtain Port s Acceptance or Approval of the other Design Documents (as applicable) in accordance with Book 2. Port shall have the right to review and comment on all Released for Construction Documents and other Design Documents for compliance with the requirements of the Contract Documents in accordance with Book 2, Section 2.4. Design-Builder shall notify Port in writing within 14 Days after receipt of any such comments if Design-Builder believes incorporation of the comments would cause the Released for Construction Documents, other Design Documents or any Contract Documents to contain Errors in any respect or which would otherwise adversely affect in any manner the design or construction of the Project or the Contract Schedule, and Port shall have the right to modify its comments. Any failure of Design-Builder to so notify Port shall constitute Design-Builder s full acceptance of all responsibility for changes made to the Released for Construction Documents and other Design Documents in response to such Port comments and will be treated for all purposes hereunder as if Design-Builder had initiated such changes. Within 14 Days of receipt of Port s comments (including Port s modifications to previous comments) or such longer period as may be allowed by Port, Design-Builder shall revise and modify the Released for Construction Documents and other Design Documents, as applicable, to fully reflect the comments. PORT OF LONG BEACH 10 Final for Execution

20 Design Reviews Required by Third Parties Design-Builder, working with Port, shall be responsible for giving and obtaining all design reviews required by Utility Owners, Governmental Persons, Railroad owners and any other Persons other than Port, as applicable Compliance with Contract Documents and Design Design-Builder shall deliver the Project in accordance with and otherwise meet the requirements of the Contract Documents and Design Documents. To the extent of any conflicts between the Contract Documents and the Design Documents, the Contract Documents shall have precedence over the Design Documents Ownership of Design Subject to Section 21.6, all data, sketches, charts, calculations, plans, specifications, electronic files, correspondence, reports, analyses, studies and other documents and materials created or collected under the terms of the Contract Documents shall be considered works made for hire for which Port owns the copyright. Released for Construction Documents and other Design Documents become Port s property upon preparation. Subject to Section 21.6, other documents prepared or obtained by Design-Builder in connection with the performance of its obligations under the Contract, including Construction Documents, studies, manuals, as-built drawings, calculations, digital electronic program data, source code and output files, technical and other reports and the like, become Port s property upon Final Acceptance. 2.5 Alternative Technical Concepts Third-Party Alternative Technical Concept Approvals Design-Builder shall be solely responsible to obtain any approvals from Persons other than Port required to implement Approved Alternative Technical Concepts (ATC) incorporated in the Contract Documents. These Persons may disapprove such approvals for any reason (or for no stated reason). Design-Builder agrees that if Design-Builder fails to obtain any such approval, Design-Builder shall comply with the corresponding baseline requirements (unmodified by the ATC) without any increase in the Contract Price or extension of the Completion Deadlines Additional Real Property or Utility Work Notwithstanding anything herein to the contrary, if implementation of an ATC will require additional real property or Utility Work, Design-Builder shall have full responsibility for paying for any such real property and any other related costs, including costs to obtain any necessary Governmental Approvals (including New Environmental Approvals, as described in Section ) or for performing and paying for any related Utility Work, without the right to a Change Order. 2.6 Governmental Approvals General Prior to the Effective Date, Port undertook certain efforts and activities to secure specific Governmental Approvals as described in Book 2, Section 4. Notwithstanding such efforts and PORT OF LONG BEACH 11 Final for Execution

21 activities, Design-Builder shall comply with the requirements of Sections 2.2(c) and (d). Builder shall not be entitled to submit a Claim associated with securing and obtaining Governmental Approvals, except with regard to Design-Builder s rights to submit a Claim for delays in obtaining Major Permits as provided under Section Design-Builder shall not be in default and shall not be required to pay liquidated damages under Section 16.1 for failing to meet a Completion Deadline due to delays in obtaining Governmental Approvals, provided that (a) the delays are beyond the reasonable control of Design-Builder-Related Entities, (b) Design-Builder has made diligent efforts to obtain the delayed Governmental Approvals and (c) the delays could not have been mitigated by Design-Builder Governmental Approvals Issued in Port s Name If any of the Governmental Approvals that Design-Builder is responsible for obtaining must formally be issued in the name of Port, Design-Builder shall undertake all efforts to obtain such approvals, subject to Port s reasonable cooperation with Design-Builder, including execution and delivery of appropriate applications and other documentation in a form Approved by Port. Design-Builder shall assist Port in obtaining any Governmental Approvals which Port may be obligated to obtain, including providing information requested by Port and participating in meetings regarding such approvals Design-Builder Maintenance of Governmental Approvals Design-Builder shall take all actions necessary to comply with and to maintain in full force and effect all Governmental Approvals, including performance of all measures required by the Contract Documents or Governmental Approvals, except to the extent that responsibility for performance of such measures is expressly assigned to Port in the Contract Documents Major Permit Delays Design-Builder shall be entitled to submit a Claim under the Contract Documents due to delays in obtaining a Major Permit by the applicable Major Permits Deadline, provided that such delays are beyond the reasonable control of Design-Builder. Notwithstanding the above, Design- Builder shall not be entitled to any relief relating to delays in obtaining Major Permits if (a) the delays could have been mitigated by Design-Builder as described in Section 2.2(i) or (b) the delays are due to differences in the Basic Configuration and Design-Builder s final design Changes to Governmental Approvals Not Obtained by Design-Builder If Design-Builder s proposed Project design is inconsistent with any Governmental Approval obtained by Port, Department or another Governmental Person for the Project, then Design- Builder shall be solely responsible to obtain (or to provide the resources and work with the applicable Governmental Person to obtain) an amendment, revision, update or re-issuance, as applicable, of the Governmental Approval. Design-Builder shall not be entitled to any relief for increased costs or Delays associated with this responsibility. If, however, the inconsistency described in this section is solely caused by a failure of a Governmental Approval obtained by Port or Department prior to the Effective Date to be in agreement with the Basic Configuration or R/W Work Map, then Port shall be responsible to obtain the amendment, revision, update or reissuance, as applicable, to correct that inconsistency and any Delay directly resulting from that inconsistency shall be considered a Port-Caused Delay. PORT OF LONG BEACH 12 Final for Execution

22 2.7 Progression of Work Design-Builder shall at all times schedule and direct its Work to provide an orderly progression of the Work to achieve Substantial Completion and Final Acceptance by the applicable Completion Deadlines and in accordance with Exhibits C-15 and C-16, including furnishing such employees, materials, facilities and equipment and working such hours (including extra shifts and overtime operations) as may be necessary to achieve such goals, all at Design-Builder s own expense, except as otherwise specifically provided in Section Design and Engineering Personnel All design and engineering Work furnished by Design-Builder shall be performed by or under the supervision of Persons licensed to practice architecture, engineering or surveying (as applicable) in the State, and by personnel who are careful, skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the Contract Documents, and who shall assume professional responsibility for the accuracy and completeness of the Design Documents and Construction Documents prepared or checked by them. PORT OF LONG BEACH 13 Final for Execution

23 3. INFORMATION SUPPLIED TO CONTRACTOR; RESPONSIBILITY FOR DESIGN 3.1 Information Supplied Port has made available to Design-Builder information which is described in the Contract Documents and certain Reference Information Documents regarding the Project, and has allowed Design-Builder access to the Site for purposes of inspection and testing. 3.2 Responsibility for Design Design-Builder agrees that it has full responsibility for preparation and submission of the Design Documents. Design-Builder specifically acknowledges and agrees that: (a) (b) (c) (d) The Basic Configuration is preliminary and conceptual in nature. Design-Builder is not entitled to rely on and has not relied on (i) the RID or (ii) any other documents or information provided by Port, except to the extent specifically permitted in the Contract Documents. Design-Builder is responsible for correcting any Errors in the Basic Configuration through the design and/or construction process as set forth in Book 2 without any increase in the Contract Price or extension of a Completion Deadline. Design-Builder s Warranties and indemnities hereunder cover Errors in the Project even though they may be related to Errors in the Basic Configuration or RID. 3.3 No Liability Regarding RID Port does not represent or warrant that the information contained in the RID is either complete or accurate or that such information conforms with the requirements of the Contract Documents. Design-Builder understands and agrees that Port shall not be responsible or liable in any respect for any loss, damage, injury, liability, cost or cause of action whatsoever suffered by any Design-Builder-Related Entity by reason of any use of any information contained in the RID or any action or forbearance in reliance thereon, except to the extent that Port has specifically agreed herein that Design-Builder shall be entitled to an increase in the Contract Price and/or extension of a Completion Deadline with respect to such matter. Design-Builder further acknowledges and agrees that (a) if and to the extent Design-Builder or anyone on Design- Builder s behalf uses any of said information in any way, such use is made on the basis that Design-Builder, not Port, has approved and is responsible for said information, and (b) Design- Builder is capable of conducting and is 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 Design-Builder s own risk and at its own discretion. 3.4 Professional Licensing Laws Port does not intend to contract for, pay for, or receive any design services which are in violation of any professional licensing laws, and by execution of the Contract, Design-Builder acknowledges that Port has no such intent. It is the intent of the Parties that Design-Builder is fully responsible for furnishing the design of the Project, although the fully licensed design firm(s) or individuals designated herein will perform the design services required by the Contract PORT OF LONG BEACH 14 Final for Execution

24 Documents. Any references in the Contract Documents to Design-Builder s responsibilities or obligations to perform the design portions of the Work shall be deemed to mean that Design- Builder shall furnish the design for the Project. The terms and provisions of this Section 3.4 shall control and supersede every other provision of the Contract Documents with respect to this issue. 3.5 Notification of Third-Party Claims Port and Design-Builder shall each provide timely written notification to the other Party of the receipt of any third-party claim relating to, arising out of, or connected with work performed by or on behalf of Design-Builder under this Contract. PORT OF LONG BEACH 15 Final for Execution

25 4. TIME WITHIN WHICH PROJECT SHALL BE COMPLETED 4.1 Notices to Proceed Issuance of NTP1 Upon the satisfaction of the conditions set forth in this section, Port shall issue NTP1 to Design- Builder authorizing Design-Builder to commence the following Work: the Design Work; mobilization; temporary construction activities; tree removal; clearing and grubbing; coordination with Utility Owners; soil borings; test piles; test shafts; and other items specifically authorized in writing by Port. Design-Builder shall not commence any such Work prior to issuance of NTP1. Port anticipates that it will issue NTP1 within 14 Days after all the following events have been fully satisfied: (a) (b) (c) (d) (e) (f) Design-Builder has obtained and delivered to Port certified conformed copies of the Payment Bond and Performance Bond, and Port has Accepted or Approved as applicable those bonds; Design-Builder has obtained and Port has Approved all insurance policies or, as described in Section 9.1.1, insurance binders required to be delivered to Port pursuant to Section 9 for the Work to be performed pursuant to NTP1, and all such policies remain in full force and effect; Design-Builder and/or Port, as applicable, have obtained all necessary rights of access for such portion of the Project; Design-Builder has developed and delivered to Port and Port has Accepted a preliminary 120-Day schedule, which schedule Design-Builder prepared in accordance with Exhibit 2-2-C of Book 2, Section 2; Design-Builder has developed and delivered to Port and Port has Accepted or Approved Design-Builder s DBE/UDBE Performance Plan for the Project; and Design-Builder has developed and delivered to Port and Port has Approved an initial version of Design-Builder s Quality Manual for the Project (described in Book 2, Section ) that includes a detailed description of the quality processes Design- Builder will use for Work under NTP1 and a conceptual description of the quality processes Design-Builder will use for Work under NTP Issuance of NTP2 Upon the satisfaction of the conditions set forth in this section, Port shall issue NTP2 to Design- Builder authorizing Design-Builder to commence the remainder of the Work not covered by NTP1, provided that Design-Builder must seek and obtain authorization to commence Construction Work pursuant to Section 4.4 for specific design packages. Design-Builder shall not commence any such Work prior to issuance of NTP2. Port anticipates that it will issue NTP2 within 14 Days after all of the following events have been fully satisfied: (a) The Payment Bond and Performance Bond delivered by Design-Builder to Port in accordance with Section 8.1 remain in full force and effect; PORT OF LONG BEACH 16 Final for Execution

26 (b) (c) (d) Design-Builder has obtained and Port has Approved all insurance policies or, as described in Section 9.1.1, insurance binders required to be delivered to Port pursuant to Section 9 for the Work to be performed pursuant to NTP2, and all such policies remain in full force and effect, provided that this requirement does not extend to any insurance policies that Design-Builder is not required to provide until a later date pursuant to Section 9; All Governmental Approvals necessary to begin the applicable portions of the Construction Work have been obtained and Design-Builder has furnished to Port fully executed copies of such Governmental Approvals; Design-Builder has satisfied all applicable pre-construction requirements contained in the Environmental Approvals, New Environmental Approvals and other Governmental Approvals for the applicable portion of the Construction Work; (e) Port s Approval of the Environmental Management Plan in accordance with Book 2, Section 4; (f) Port s Approval of the Traffic Management Plan in accordance with Book 2, Section 18; (g) (h) Design-Builder has developed and delivered to Port and Port has Accepted the Baseline Schedule, which schedule Design-Builder prepared in accordance with Exhibit 2-2-C of Book 2, Section 2; and Design-Builder has developed and delivered to Port and Port has Approved Design- Builder s Quality Manual for the Project (described in Book 2, Section ). 4.2 Completion Deadlines Substantial Completion Deadline Design-Builder shall achieve Substantial Completion by the Substantial Completion Deadline. Said deadline for Substantial Completion, is referred to herein as the Substantial Completion Deadline Final Acceptance Deadline Design-Builder shall achieve Final Acceptance by the Final Acceptance Deadline, which deadline may be extended hereunder No Time Extensions Except as otherwise specifically provided in Section 12, Port shall have no obligation to extend any Completion Deadline and Design-Builder shall not be relieved of its obligation to comply with the Contract Schedule and achieve Substantial Completion and Final Acceptance by the applicable Completion Deadlines for any reason. PORT OF LONG BEACH 17 Final for Execution