EXECUTION VERSION
MASTER COOPERATIVE AGREEMENT FOR THE DESIGN AND
CONSTRUCTION OF A PORTION OF THE LA RIVER PATH PROJECT
BETWEEN
THE CITY OF VERNON
AND
THE LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY ___________, 2023
EFFECTIVE DATE
EXECUTION VERSION
CONTENTS
ARTICLE PAGE
ARTICLE 1. SCOPE AND DURATION ............................................................................................................... 1 ARTICLE 2. GENERAL OBLIGATIONS .............................................................................................................. 2 ARTICLE 3. DESIGN .......................................................................................................................................... 7 ARTICLE 4. CONSTRUCTION ........................................................................................................................... 9 ARTICLE 5. BETTERMENTS ........................................................................................................................... 11 ARTICLE 6. OPERATION AND MAINTENANCE ............................................................................................. 11 ARTICLE 7. REIMBURSEMENT AND CREDITS ............................................................................................. 11 ARTICLE 8. INDEMNITY, WARRANTIES AND INSURANCE .......................................................................... 14 ARTICLE 9. RESOLUTION OF DISPUTES ...................................................................................................... 15 ARTICLE 10. MISCELLANEOUS .................................................................................................................... 17 ARTICLE 11. DEFINITIONS AND INTERPRETATION ................................................................................... 20 EXHIBIT 1 – PROJECT DESCRIPTION ................................................................................................................ 28 EXHIBIT 2 – PROJECT PHASES AND PROJECT SCHEDULE ........................................................................... 29 EXHIBIT 3 – PROJECT SITE................................................................................................................................. 31 EXHIBIT 4 – ROLES AND RESPONSIBILITIES .................................................................................................... 33 EXHIBIT 5 – DESIGN REQUIREMENTS ............................................................................................................... 36 EXHIBIT 6 – LACMTA SUBMITTAL REVIEW PROCEDURE ................................................................................ 38 EXHIBIT 7 – CONSTRUCTION REQUIREMENTS ................................................................................................ 40 EXHIBIT 8 – INSPECTION AND ACCEPTANCE PROCEDURE........................................................................... 44 EXHIBIT 9 – NOT USED ........................................................................................................................................ 46 EXHIBIT 10 – FORMS ........................................................................................................................................... 47 EXHIBIT 11 – LARP BASIS OF DESIGN ............................................................................................................... 51
EXECUTION VERSION
1 This Agreement is entered into by and between the City of Vernon (the "City"), and the Los Angeles County Metropolitan Transportation Authority ("LACMTA").
RECITALS
(A) LACMTA proposes to develop and open a new bicycle and pedestrian path along the Los Angeles River known as the LA River Path Project (as more fully defined in Article 11 (Definitions and Interpretation), the "LA River Path Project"). As at the date of this Agreement, the LA River Path Project is undergoing an environmental review process.
(B) The LA River Path Project will serve various cities and communities including the City and the City intends, by this Agreement, to facilitate the development and implementation of the LA River Path Project and in particular the City Portion of the LA River Path Project. (C) LACMTA and the City wish to enter into this Agreement in order to identify the rights and obligations between them in connection with the development and implementation of the LA River Path Project.
In consideration of the mutual covenants of the Parties as set out below, the Parties hereby agree as follows:
ARTICLE 1. SCOPE AND DURATION
1.1 Scope of Agreement
(a) The City has acknowledged the LA River Path Project as a high priority public works project to provide LACMTA with expedited review and approval procedures in connection with design, design reviews, permitting, property acquisition, and other authority to be exercised by the City relating to the LA River Path Project and/or this Agreement. The Parties acknowledge that this Agreement is being entered into while the environmental process is ongoing and the environmental documents are being prepared and the signing of this Agreement by the City does not prejudice its right to participate in the environmental process nor does it predetermine the outcome of that process. (b) The Parties have entered into this Agreement to:
(i) acknowledge the intended scope, schedule and site for the LA River Path Project as set out in EXHIBIT 1 (Project Description), EXHIBIT 2 (Project Phases and Project Schedule) and EXHIBIT 3 (Project Site) respectively; and
(ii) define the applicable procedures, manage the interfaces and regulate the roles and responsibilities and allocation of costs between LACMTA and the City, in respect of the design and construction of the LA River Path Project as it relates to the City Portion and any Rearrangements.
(iii) acknowledge that operations and maintenance of the Project will be the subject of an agreement (an "O&M Agreement") to be negotiated by the Parties in good faith and finalized at a later date in accordance with Article 6.
(c) LACMTA may procure the design and construction of the LA River Path Project, including the City Portion, under multiple procurements and contract packages and may self-perform parts of the design and construction of the LA River Path Project, including the City Portion. As at the date of this Agreement, LACMTA contemplates procuring the Project Scope by LACMTA Contractors under PS&E and CM/GC contracts.
(d) The City acknowledges and agrees that LACMTA may: (i) engage the LACMTA Contractor(s) to carry out Design and Construction work with respect to the City Portion including the Design and/or Construction of Rearrangements; and (ii) in each LACMTA Contract, require the LACMTA Contractor to comply with certain of LACMTA's obligations under this Agreement provided that nothing in this Agreement will create any contractual relationship between the City and any LACMTA Contractor and
EXECUTION VERSION
2 in accordance with Section 10.11 (Limitation on Third Party Beneficiaries), nothing contained in this Agreement is intended or will be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the City toward, any LACMTA Contractor. (e) The City acknowledges and agrees that LACMTA may change the contracting and procurement strategy and plan for the LA River Path Project, including the City Portion, described in Section 1.1(c) (Scope of Agreement) in its sole discretion. The City further acknowledges that as at the date of this Agreement, the LA River Path Project is in the Planning and Procurement Phase and LACMTA may elect: (i) not to proceed with the LA River Path Project; or (ii) to amend the scope of the LA River Path Project, each in its sole discretion.
(f) LACMTA shall promptly notify the City of any changes to its contracting and procurement strategy or to the scope of the LA River Path Project that has or is reasonably likely to have an impact on the scope, schedule or roles and responsibilities for the City Portion or the provisions and procedures set out under this Agreement. The Parties shall use good faith efforts to agree any amendments or supplements to this Agreement necessary to be made as a result of any such change notified by LACMTA to the City.
1.2 Duration of Agreement
This Agreement (and all of the rights and obligations under this Agreement) will come into effect on the Effective Date and continue until the first day on which the LA River Path Project is available for bicycle and pedestrian use, unless terminated earlier in accordance with the provisions of this Agreement (the "Term").
ARTICLE 2. GENERAL OBLIGATIONS
2.1 Governance
(a) The roles and responsibilities of the City and LACMTA are set out in EXHIBIT 4 (Roles and Responsibilities).
(b) The City and LACMTA shall each designate an individual or individuals who will be authorized to make decisions and bind the Parties on matters relating to this Agreement (the "City Representative" and "LACMTA Representative", respectively). EXHIBIT 4 (Roles and Responsibilities) provides initial designations. Either Party may change its designated representative by providing seven days' prior Notice to the other Party. (c) LACMTA may establish Working Groups in relation to the LA River Path Project or particular aspects of the LA River Path Project for the purposes of providing a non-binding forum for LACMTA, the LACMTA Contractors and other attendees to monitor the progress of the LA River Path Project, to consider issues, or potential issues, and to present, understand and discuss proposed solutions with respect to the LA River Path Project. On LACMTA's written request, the City shall ensure the attendance (in person or via videoconference or teleconference) of the City Representative (or a delegate) at any Working Group meeting held with respect to the City Portion during normal business hours and upon reasonable notice. Any Working Group meeting attended by the City Representative (or a delegate) is consultative and advisory only and nothing which occurs during any such Working Group meeting and no information that is presented during any such Working Group meeting will:
(i) affect the rights or obligations of either Party under this Agreement; (ii) entitle a Party to make any claim against the other; (iii) relieve a Party from, or alter or affect, a Party's liabilities or responsibilities whether under this Agreement or otherwise according to Applicable Law;
(iv) prejudice a Party's rights against the other Party whether under this Agreement or otherwise according to Applicable Law; or
EXECUTION VERSION
3 (v) be construed as a direction by a Party to do or not do anything.
2.2 Annual Work Plan
(a) LACMTA and the City will cooperate to develop an agreed Annual Work Plan for each LACMTA Fiscal Year during the Term, in accordance with the following provisions:
(i) not later than February 28 of each LACMTA Fiscal Year during the Term (or in the case of the first partial LACMTA Fiscal Year during the Term, no later than 30 days after the date of this Agreement), LACMTA shall provide the City with information with respect to anticipated Work Orders, including a list of each item of work or scope of activities or services that LACMTA anticipates to request or require from the City during the upcoming LACMTA Fiscal Year, and the estimated start and finish dates for the item of work or scope of activities or services that LACMTA anticipates to request or require from the City; (ii) within 30 days after the City's receipt of the required information from LACMTA pursuant to Section 2.2(a)(i) (Annual Work Plan), the City shall submit a preliminary annual work plan to LACMTA for the upcoming LACMTA Fiscal Year, which will include an estimate of the Costs under the anticipated Work Orders for which the City shall require reimbursement; (iii) promptly and in any event within 15 days' after LACMTA receives the preliminary annual work plan from the City pursuant to Section 2.2(a)(ii) (Annual Work Plan), the City and LACMTA will meet to review the preliminary work plan and negotiate in good faith such issues as are necessary in order to finalize and agree the annual work plan for the upcoming LACMTA Fiscal Year; and
(iv) not later than April 30 of the then current LACMTA Fiscal Year, LACMTA shall notify the City of the agreed annual work plan for the upcoming LACMTA Fiscal Year (each such agreed annual work plan, an "Annual Work Plan").
(b) Section 2.3(e) (Work Orders) shall apply notwithstanding that the Parties may agree an Annual Work Plan setting out the schedule of anticipated Work Orders.
2.3 Work Orders
(a) If the City is required to perform work and/or provide support and/or services under the provisions of this Agreement or LACMTA requests that the City perform work and/or provide support and/or services under the provisions of this Agreement, the City shall submit a Form 60 to LACMTA to estimate the total effort and Costs for which the City shall require reimbursement with respect to that scope of work.
(b) If LACMTA approves a Form 60 submitted to it by the City with respect to a scope of work under Section 2.3(a) (Work Orders) without requiring any changes or additions, LACMTA will issue a Work Order to the City for such scope of work and following receipt of that Work Order, the City must promptly commence the work authorized under that Work Order. (c) Each Work Order issued by LACMTA to the City in accordance with this Agreement shall specify the work authorized to be performed and any materials or equipment to be acquired, the amount of money that the City will be reimbursed for the authorized work as agreed under the applicable Form 60, and a schedule, including the estimated starting and finishing dates for the authorized work. (d) If LACMTA requests changes or additions (including any additional or supplemental provisions) to a Form 60 submitted to it by the City with respect to a scope of work under Section 2.3(a) (Work Orders) prior to issuing a Work Order, the Parties shall negotiate in good faith such changes or additions.
Upon agreement of any such changes or additions (and any necessary City council approval for such changes or additions), LACMTA will issue a Work Order to the City for the applicable scope of work, with the agreed changes or additions and following receipt of that Work Order, the City must promptly
EXECUTION VERSION
4 and without delay (and in any case within 10 days of issuance by LACMTA) accept any agreed changes or additions to the applicable Form 60 by counter-signing the Work Order or otherwise by written acceptance by the City Representative, in each case followed by prompt commencement of the work authorized under that Work Order. If the City fails to accept the Work Order within 10 days, the Work Order will be deemed to be accepted by the City. Nothing in this Section 2.3(c) shall prohibit LACMTA from approving a Form 60 under Section 2.3(b) (Work Orders) in part and authorizing the City to commence the approved part of the scope of work in accordance with that Form 60. (e) The City shall not be authorized to do any work and shall not be paid, credited or reimbursed for costs or expenses associated with any work performed in connection with a Rearrangement or the City Portion or otherwise under the provisions of this Agreement, that is not expressly authorized by a Work Order, as may be amended pursuant to Section 2.3(f) (Work Orders). (f) Except in the case of a change required due to an emergency (which notification may be given orally and any emergency work commenced before being confirmed in writing to LACTMA within three days), the City may submit proposed changes to a Work Order in writing to LACMTA for approval, such approval to not be unreasonably withheld or delayed. If approved, the City may perform the work in accordance with the authorized change.
(g) LACMTA may terminate any Work Order at any time at its sole discretion, provided that the City will be entitled to reimbursement in accordance with this Agreement for Costs, if any, already incurred. (h) The City shall promptly notify LACMTA if at any time it anticipates:
(i) exceeding 75% of the total estimated Costs under any Work Order within the next 60 days; (ii) that the total Costs under any Work Order will be in excess of 10% greater than previously estimated Costs; or
(iii) that the estimated finishing date will be later than the date stated in the Work Order, and shall request an amendment to such Work Order pursuant to Section 2.3(f) (Work Orders).
2.4 Project Schedule
(a) The City agrees to cooperate and coordinate with LACMTA in accordance with the provisions of this Agreement in order for LACMTA to achieve the Project Schedule and subject to LACMTA agreeing to the reimbursement of the cost of the applicable resources in accordance with Section 2.3 (Work Orders) and 7.1 (Reimbursements to the City), to allocate sufficient staff and other resources necessary to provide the level of service required to meet the scope of work and work schedules, review periods and timelines identified in this Agreement and any Work Orders. If the City determines that, notwithstanding its compliance with its obligations under this Section 2.4(a), additional personnel or other resources (including through the use of City Contractors) are required to mitigate the risk of delay in performing the scope of work within the defined schedule, the City may submit a proposed change to a Work Order in accordance with Section 2.3(f) (Work Orders). (b) If the City fails to carry out any work or obligations for which it is responsible under the provisions of this Agreement and/or any Work Order in accordance with the work schedules, review periods and timelines identified in this Agreement and the applicable Work Order, and such failure is attributable to the City, then, to the extent such delay directly causes: (i) LACMTA to incur additional costs; or (ii) a delay to the LA River Path Project, the City must reimburse LACMTA for all actual and documented costs and expenses incurred or arising out of such delay. The City shall pay such costs to LACMTA within 90 days of receiving an invoice from LACMTA. If the Parties agree, LACMTA may deduct the amount due from the City to LACMTA pursuant to this Section 2.4(b) from payment(s) due to the City. (c) Without limiting any other rights under this Section 2.4, if: (i) the City fails to carry out any work for which it is responsible under the provisions of this Agreement in accordance with the work schedules,
EXECUTION VERSION
5 review periods and timelines identified in this Agreement and the applicable Work Order; or (ii) LACMTA reasonably determines that the City will be unable to timely complete such work, LACMTA may by Notice to the City suspend the affected element of the City's work and LACMTA may perform the remaining work. If LACMTA takes over work in accordance with this Section 2.4(c), the City shall cooperate and assist LACMTA in accordance with the provisions of this Agreement. (d) To the extent a failure by LACMTA to perform its work and obligations in accordance with the work schedules, review periods and timelines identified in this Agreement and/or any Work Order results in a delay to the performance of the City's work under a Work Order, the City will be entitled to an equivalent extension to the affected deadline and any other relief expressly contemplated under the provisions of the applicable Work Order.
2.5 Permits
(a) The Parties acknowledge that pursuant to Applicable Law, LACMTA may not be subject to zoning, building or design review, or construction permitting ordinances of the City when constructing the City Portion.
(b) Without prejudice to Section 2.5(a) (Permits) or the requirements set out in EXHIBIT 7 (Construction Requirements):
(i) the City will issue a blanket Permit Notification to cover the City Portion; (ii) for those permits and fees set out in the Permit Notification, the City will not exercise or otherwise attempt to assert permitting authority over, and will not require the payment of fees or the posting of bonds for or insurance by LACMTA or any LACMTA Contractor for, any work contemplated in the City Portion or otherwise under the provisions of this Agreement; (iii) any processing procedures or timelines specified in the Permit Notification will be aligned with the procedures and timelines specified in this Agreement and will otherwise be streamlined as necessary to assist in the timely delivery of the City Portion in accordance with the Project Schedule; and
(iv) except for Cost reimbursement expressly provided under a Work Order, the City waives the payment of any permit Costs for permits identified in the Permit Notification. (c) To the extent any conflicts exist or arise between the provisions of the Permit Notification and the provisions of this Agreement, the provisions of this Agreement shall govern. (d) If requested by LACMTA, the City will provide reasonable assistance to LACMTA and the LACMTA Contractors in relation to any application by LACMTA or a LACMTA Contractor for a Governmental Approval or other Governmental Entity or third party approval relating to or arising from, the design or construction of the City Portion.
2.6 Coordination of Work
(a) Except in the case of Adjacent Work required as a result of an emergency (which notification and coordination may occur as soon as reasonably practicable after the occurrence of the emergency), the City will promptly notify LACMTA upon becoming aware of any proposed or planned Adjacent Work and will take all reasonable actions within its powers, to coordinate the design and performance of any Adjacent Work with LACMTA so that such Adjacent Work shall not pose a safety hazard or interfere with, disrupt or delay the design and construction of the City Portion including by:
(i) complying with the provisions of this Section 2.6 and LACMTA's standard procedures for Adjacent Works;
EXECUTION VERSION
6 (ii) to the extent requested by LACMTA following its initial screening taking into account proximity of the Adjacent Work to the City Portion, adjacency conditions, and the potential to impact the City Portion and otherwise conducted in accordance with LACMTA's standard procedures for Adjacent Works, delivering copies of designs and plans for the Adjacent Work to LACMTA and giving LACMTA the right to review and comment on the designs and plans for the Adjacent Work and to approve the final designs and plans for the Adjacent Work; and (iii) to the extent LACMTA reasonably determines and notifies the City that the Adjacent Work will, in whole or in part, pose a safety hazard or interfere with, disrupt or delay the design and construction of the City Portion, coordinating the Adjacent Work or suspending the Adjacent Work or the relevant part of the Adjacent Work (as applicable). (b) The City will, and will take all reasonable actions within its powers to ensure that any City Contractor or third party performing any Adjacent Work, City Construction Work or City Maintenance Work is obligated under contract and/or a permit process to:
(i) fully co-operate and coordinate with LACMTA and the LACMTA Contractors including:
(A) attending interface definition and coordination meetings upon reasonable request; and
(B) providing any other interface data reasonably requested by LACMTA or the relevant LACMTA Contractor and necessary to complete interface coordination; (ii) perform the Adjacent Work, City Construction Work or City Maintenance Work (as applicable) so as to minimize any interference with or disruption or delay to construction, operation or maintenance of the City Portion or any other part of the LA River Path Project; (iii) comply with LACMTA's or the relevant LACMTA Contractor's site access, work permit procedures and work health and safety policies and procedures; and (iv) promptly advise LACMTA of all matters arising out of the Adjacent Work, City Construction Work or City Maintenance Work (as applicable) that may interfere with, disrupt, delay or otherwise have an adverse effect upon the City Portion or any other part of the LA River Path Project.
2.7 Franchise Rights
(a) After receipt of a written request from LACMTA for the City to exercise its franchise rights with respect to a utility whose facilities conflict with the City Portion, the City will:
(i) within 10 days of receipt of such written request, coordinate with LACMTA to send written notice to the applicable utility owner instructing it to relocate or remove the conflicting utility at that utility owner’s expense pursuant to the City’s franchise rights; (ii) within the time periods required under the applicable local, state and/or federal government codes, send all such notices as are required to be submitted for each of the processing steps required by local, state, and federal government codes in order for the City to exercise its franchise rights with respect to that conflicting utility (including, at a minimum, a utility claim letter, record of investigations, draft utility agreements and/or utility certifications); and (iii) undertake subsequent enforcement actions to enforce its franchise rights with respect to that conflicting utility in the event no action is taken by the applicable utility owner in response to a notice issued under Section 2.7(a) (Franchise Rights). (b) LACMTA and the City shall co-operate and coordinate in executing the necessary documents for each step set out in Section 2.7(a) (Franchise Rights). Sections 2.22.3 (Annual Work Plan) and 2.3
EXECUTION VERSION
7 (Work Orders) will apply to any support and/or services required to be provided by the City under the provisions of this Section 2.7.
(c) Following the exercise of the City’s franchise rights with respect to a conflicting utility pursuant to Section 2.7(a) (Franchise Rights), the City will coordinate the design and performance of the utility relocation or removal work performed by the utility owner with LACMTA so that such utility relocation or removal work shall not interfere with, disrupt or delay the design, construction, operation or maintenance of the City Portion including by:
(i) delivering copies of all designs and plans for the utility relocation or removal work to LACMTA and giving LACMTA the right to review and comment on the designs and plans for the utility relocation or removal work and to approve the final designs and plans for the utility relocation or removal work; and
(ii) otherwise complying with Section 2.6 (Coordination of work) with respect to the coordination of the utility relocation or removal work.
(d) LACMTA’s approval of a utility owner’s design under Section 2.7(c)(i) (Franchise Rights) will not relieve the relevant utility owner or its contractors from professional liability (errors and omissions) as the design engineer of record for any utility relocation or removal work performed by the utility owner or its contractors.
2.8 Governmental and Lender Requirements
If the LA River Path Project is subject to financial assistance provided by loan agreements with the U.S.
Department of Transportation, Federal Transit Administration, Federal Highway Administration, other Governmental Entities, and/or financial institutions providing grants, funding or financing, the Parties will comply with any prescribed governmental and lender requirements set out in a Work Order or otherwise under the applicable grant, funding or financing agreements notified to the City.
2.9 Access
If, prior to LACMTA's scheduled date of commencement of Construction work in a part of the City Portion, any Rearrangement is necessary to eliminate a conflict, the City may grant to LACMTA and/or its designee sufficient rights, if necessary, to allow LACMTA to proceed with investigation of existing conditions and the Construction of that part of the City Portion in accordance with the Project Schedule; provided, however, that such grant does not unreasonably and adversely interfere with the provision of City’s services to the public, or affect public health and safety; and provided further, that the City is permitted under Applicable Law to grant such right.
2.10 Discretions
Except as otherwise expressly provided in this Agreement, all determinations, consents, waivers, or approvals of a Party under this Agreement must not be unreasonably withheld, conditioned, or delayed.
ARTICLE 3. DESIGN
3.1 Design Responsibilities
(a) Except to the extent of any Design work requested to be performed by the City under Section 3.1(b) (Design Responsibilities), LACMTA will (directly or through LACMTA Contractors) design the City Portion and all Rearrangements and produce all Design Documentation relevant to those works in accordance with the provisions of this Agreement. LACMTA shall be responsible for any errors and omissions in the Design Documentation prepared by LACMTA or a LACMTA Contractor. (b) LACMTA may request and authorize the City to perform Design work and/or provide support services with respect to the Design of the City Portion and the Rearrangements pursuant to the procedures
EXECUTION VERSION
8 set out under Section 2.3 (Work Orders). The City shall diligently perform and shall ensure that any City Contractor diligently performs, such Design-related activities in accordance with the provisions of the applicable Work Order and this Agreement. The City shall be responsible for any errors and omissions in any Design Documentation prepared by the City or a City Contractor.
3.2 Design Requirements
The Designs of the City Portion and the Rearrangements shall comply with the requirements set out in EXHIBIT 5 (Design Requirements).
3.3 Design Review Procedure
(a) LACMTA will submit, and will require that the LACMTA Contractors submit, the Designs for the City Portion and any Rearrangements to the City for review in accordance with the procedures set out in EXHIBIT 6 (LACMTA Submittal Review Procedure) and otherwise in accordance with the provisions of this Agreement and any applicable Work Orders.
(b) The City will carry out the review and approval of the Designs for the City Portion and the Rearrangements in accordance with the procedures and the review periods set out in EXHIBIT 6 (LACMTA Submittal Review Procedure) and otherwise in accordance with the provisions of this Agreement and any applicable Work Orders.
(c) LACMTA is exempt from submitting any Design for Construction work within the City Rights-of-Way to the City for City's review and approval where:
(i) LACMTA, a LACMTA Contractor, or a tenant or licensee of LACMTA owns and maintains the structure or physical element; or
(ii) the work is related to utility trenching and shoring within OSHA guidelines and the relevant LACMTA Contractor is OSHA certified.
and without prejudice to the foregoing, the City further acknowledges that as between LACMTA and the City, LACMTA has sole discretion to determine whether, and which, features or facilities are required in order for LACMTA to comply with its obligations under Applicable Law in connection with the LA River Path Project (whether or not situated within the City Rights-of-Way) including the ADA and in the case of its obligations under the ADA to determine whether matters are technically infeasible; provided, however, in making such determination, LACMTA shall utilize current rules and regulations promulgated under the ADA, and guidelines issued by federal agencies in accordance with the ADA, including but not limited to The ADA Best Practices Tool Kit for State and Local Governments published by Civil Rights Division of the U.S. Department of Justice.
3.4 Design Development
The Parties acknowledge and agree that:
(a) the Basis of Design will establish the detailed scope, limits of work, specifications and requirements applicable to the Designs for the City Portion and any Rearrangements; (b) the Design Documentation for the City Portion and any Rearrangements will be submitted for review progressively in Packages and LACMTA and the applicable LACMTA Contractor will retain responsibility for defining the scope and timing of delivery of the Packages at each stage of Design.
3.5 City Standards
(a) The City agrees that it shall not adopt any new City Standards or otherwise amend or supplement any existing City Standards or its interpretation or application of any existing City Standards, for the sole or primary purpose of affecting the LA River Path Project.
EXECUTION VERSION
9 (b) Subject to Section 3.5(a) and (c) (City Standards), the Parties acknowledge that the City may adopt new City Standards not listed in EXHIBIT 5 (Design Requirements) or amend or supplement existing City Standards listed in EXHIBIT 5 (Design Requirements) during the Term, provided that the City shall promptly (and in any case within 15 days of adoption) notify LACMTA of any changes or additions to the City Standards adopted during the Term. (c) Any changes or additions to the City Standards applicable to a Rearrangement after the establishment of the Basis of Design for that Rearrangement shall be considered a "Betterment" for the purposes of this Agreement.
(d) The City expressly acknowledges and agrees that, subject to the terms of this Agreement, the City Standards will apply to any Rearrangements only and the City agrees that the City and LACMTA will adopt the Basis of Design for the LA River Path Project, as described in Section 3 (LA River Path Project Basis of Design (LARP Basis of Design)) of EXHIBIT 5 (Design Requirements) for the Design of the City Portion.
3.6 Changes to Design
(a) If LACMTA wishes to amend the Final Design for the City Portion or a Rearrangement for which it is responsible prior to completion of Construction of the City Portion or that Rearrangement, it must submit the amended Design Documentation to the City and EXHIBIT 6 (LACMTA Submittal Review Procedure) will apply as if the Design Documentation is for the Final Design. (b) LACMTA may use or may allow the relevant LACMTA Contractor to use, the amended Final Design for Construction prior to approval by the City if and only if the amendment to the Final Design: (i) is minor; (ii) does not adversely impact the City Portion or the relevant Rearrangement; and (iii) is necessary to overcome an issue which has arisen or become evident since the Final Design was initially approved.
ARTICLE 4. CONSTRUCTION
4.1 Construction Responsibilities
(a) Except to the extent of any Construction work requested to be performed by the City under Section 4.1(b) (Construction Responsibilities), LACMTA (directly or through the LACMTA Contractors) will be responsible for the Construction of the City Portion and all Rearrangements and shall diligently perform and shall ensure that any LACMTA Contractor diligently performs, all such Construction in accordance with the provisions of this Agreement.
(b) LACMTA may request and authorize the City to perform Construction work with respect to the City Portion or a Rearrangement and/or provide Construction support services pursuant to the procedures set out under Section 2.3 (Work Orders). The City shall diligently perform and shall ensure that any City Contractor diligently performs, all such Construction work and/or support services in accordance with the provisions of the applicable Work Order and this Agreement.
4.2 Construction Requirements
The Construction of the City Portion and Rearrangements and any other Construction work performed in the City Rights-of-Way in connection with the LA River Path Project shall comply with the requirements set out in EXHIBIT 7 (Construction Requirements).
EXECUTION VERSION
10 4.3 Rights-of-Way
(a) The Parties acknowledge that pursuant to Applicable Law, LACMTA is permitted to use City Rightsof-Way to the same extent those rights and privileges relating to City Rights-of-Way are granted to the City.
(b) Replacement rights-of-way for the relocation of Conflicting Facilities shall be determined during the Design Phase and, if needed, may be acquired by LACMTA or the City following mutual agreement of the Parties of the location and type of such replacement rights-of-way. When reasonably possible and where the City Facilities being replaced are located in a public right-of-way, a Rearrangement of those City Facilities shall be located in existing public rights-of-way. The required replacement rightsof-way for the relocation of Conflicting Facilities shall be acquired so as not to impair the Project Schedule. If the City cannot acquire any necessary private rights-of-way for the relocation of Conflicting Facilities without out-of-pocket expense to itself, such private rights-of-way may be acquired by LACMTA. Upon acceptance of the applicable Replacement Facility, the City shall convey or relinquish to LACMTA or its designee, if permitted by Applicable Law and agreement, at no cost, all City real property interests being taken out of service by the Rearrangement, and for which replacement real property interests are provided.
(c) Subject to Section 4.3(b) (Rights-of-Way), the Parties acknowledge that LACMTA (or the LACMTA Contractors) shall be responsible for the acquisition of any temporary construction easements necessary for the Construction of the LA River Path Project. Upon reasonable request by LACMTA, the City shall provide reasonable assistance as may be required for LACMTA to obtain the temporary construction easements necessary to Construct the City Portion including considering reasonable requests by LACMTA to convey to LACMTA, at no cost to LACMTA, any City-owned temporary construction easements, street crossings, slivers, and surface easements that may be required for the temporary construction easements necessary for the Construction of the LA River Path Project without requiring LACMTA to go through the appraisal, negotiations, offer, closing and transfer process. Following any such reasonable request, LACMTA will prepare or cause to be prepared, the title documents and documents of conveyance and shall transmit such documents to the City Representative who shall process them through the required departments for execution and return them to LACMTA within 90 days after receipt, but in any event in accordance with the Project Schedule. If any private rights-of-way are necessary to Construct the City Portion, then the Parties will discuss proposed solutions for the acquisition of the private right-of-way. (d) The City agrees and acknowledges that this Agreement satisfies any LACMTA obligations to the City and otherwise relating to the certification of rights-of-way, and that the City shall cooperate with LACMTA, and assist LACMTA, with any right-of-way certification processes involving other entities or agencies.
(e) If, following a Rearrangement, a City Facility is located within the Project Right-of-Way, LACMTA shall provide the City with a license, in a form reasonably acceptable to the City, to operate, maintain, and/or remove such City Facility.
4.4 Inspection and Acceptance
The Parties agree that inspection and acceptance of the Construction of the City Portion and Rearrangements performed under this Agreement will be carried out in accordance with the procedure set out in EXHIBIT 8 (Inspection and Acceptance Procedure).
EXECUTION VERSION
11 ARTICLE 5. BETTERMENTS
5.1 The City shall inform LACMTA what Betterments, if any, the City requests be implemented as a part of the City Portion, including as a Rearrangement, or as a part of a Rearrangement, by submitting a completed Potential Notice of Betterment Form for LACMTA's review and approval. In addition:
(a) any Design furnished by the City under a Work Order shall specifically identify any Betterments included in such Design and where Betterments are identified, shall be accompanied by a completed Potential Notice of Betterment Form and submitted for LACMTA's review and approval; and (b) if a City comment to a LACMTA Submittal constitutes a Betterment, LACMTA will notify the City and within 10 days of delivery of that notice, the City will: (i) withdraw the relevant comment; or (ii) submit a request for the applicable Betterment by submitting a completed Potential Notice of Betterment Form for LACMTA's review and approval. If the City fails to respond within 10 days of a notice delivered by LACMTA under this Section 5.1(b), the comment will be deemed to be withdrawn provided that such deemed withdrawal shall be without prejudice to the City's right to submit the Betterment under a subsequent Potential Notice of Betterment under this Section 5.1.
5.2 Subject to Section 5.1(b) (Betterments), the City shall submit any Potential Notice of Betterment Forms to LACMTA promptly after identifying a potential Betterment and in any event shall, unless otherwise agreed by LACMTA, deliver all Potential Notice of Betterment Forms to LACMTA prior to the establishment of the Basis of Design for the Rearrangements.
5.3 No Betterment shall be constructed and LACMTA shall have the right to refuse and withhold approval for any Betterment, that:
(a) is incompatible with the LA River Path Project;
(b) cannot be performed within the constraints of Applicable Law, any applicable Governmental Approvals, and/or the Project Schedule; or
(c) is requested after the establishment of the Basis of Design for the Rearrangements.
5.4 If LACMTA approves a Betterment (with or without changes negotiated and agreed by LACMTA and the City):
(a) the LACMTA Representative shall counter-sign the Potential Notice of Betterment Form (updated to include any changes negotiated and agreed by LACMTA and the City); and (b) the City will be responsible for the cost of the Betterment.
5.5 LACMTA shall not be responsible for the cost of any Betterment. Such cost will be paid to LACMTA or credited to LACMTA in accordance with Section 7.2 (Reimbursement and Credits to LACMTA).
ARTICLE 6. OPERATION AND MAINTENANCE
6.1 Operation and maintenance of the LA River Path Project will be the subject of an O&M Agreement to be negotiated by the Parties in good faith and finalized at a later date.
6.2 The Parties shall initiate negotiations to enter into an O&M Agreement no later than 90 days following the execution of this Agreement.
ARTICLE 7. REIMBURSEMENT AND CREDITS
7.1 Reimbursements to the City
EXECUTION VERSION
12 (a) Except with respect to Betterments, LACMTA will reimburse the City for Costs incurred for work performed by the City or the City Contractors under a Work Order in accordance with this Section 7.1 and the provisions of the applicable Work Order.
(b) If a Rearrangement performed under a Work Order is limited to the removal or elimination of a City Facility, LACMTA will only be responsible for any Costs incurred in Abandoning such City Facility and will not be required to replace or compensate the City for the replacement of that City Facility. (c) As described in EXHIBIT 1 (Project Description), LACMTA (or its LACMTA Contractors) will be responsible for any environmental site assessments and any remediation of hazardous materials to be performed on the Project Site for the purposes of the LA River Path Project. LACMTA will not be responsible for any costs relating to the presence or existence of any environmental hazard on, in, under or about any City Facility, including but not limited to, any "hazardous substance" as that term is defined under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), unless LACMTA or any LACMTA Contractor caused the environmental hazard through its actions.
(d) The City shall use the following procedures for submission of its billings to LACMTA, on a progress basis, for work performed by the City under a Work Order:
(i) the City shall commence its monthly billing within no more than 60 days, following the commencement of work under a specific Work Order and shall bill monthly thereafter following the City’s standard billing procedures;
(ii) the City shall provide supporting documents to demonstrate the Costs incurred by the City with respect to a Work Order, including City Contractor invoices, and other data, to LACMTA upon request;
(iii) each billing statement shall: (A) be noted as either "progress" or "final"; (B) be addressed to the LACMTA Representative; (C) include a certification that the Costs identified in such billing were appropriate and necessary to the performance of the work under the Work Order and have not previously been billed or paid; and (D) reflect any applicable credits due to LACMTA under this Article 7;
(iv) the final billing, with a notation that all work covered by a given Work Order has been performed, shall be submitted to LACMTA within 60 days after completion of the work under the applicable Work Order, and shall summarize prior progress billings, show inclusive dates upon which work was performed, and include a certification that the Costs identified in such billing were appropriate and necessary to the performance of the work under the Work Order and have not previously been billed or paid; and
(v) after the expiration of the 60 day period described in Section 7.1(d)(iv) (Reimbursements to the City), LACMTA may notify the City in writing that the 60 day closing billing period has expired, and upon the City’s receipt of such Notice from LACMTA, the City shall have 30 days to submit its final invoice. If the City fails to submit an invoice within such 30 day period, then LACMTA shall have no further obligation for payment to the City with regard to any amounts due or payable under the applicable closed out Work Order. (e) On completion of the Construction of the City Portion, LACMTA will issue a Notice of closeout to the City. Within 90 days of receiving such Notice, the City must issue invoices to LACMTA for all outstanding work. If the City fails to submit an invoice not previously submitted within such 90 day period, then LACMTA shall have no further obligation for payment to the City with regard to any amounts due or payable under the applicable invoice.
7.2 Reimbursements and Credits to LACMTA
(a) LACMTA shall receive a credit, or payment for:
EXECUTION VERSION
13 (i) salvage for items recovered from existing City Facilities that the City intends to re-use in the performance of Construction work performed under the provisions of this Agreement where the amount of salvage credit or payment, if any, shall equal the depreciated value of like or similar materials as determined by agreement of the Parties, plus storage and transportation costs of such materials salvaged for the City’s use;
(ii) Betterments upon acceptance of physical work where:
(A) the amount of the Betterment payment shall be based upon the estimated cost of the Replacement Facility less the estimated cost of the Conflicting Facility; and (B) the amount of a Betterment credit, if any, shall be a fixed amount determined by the Parties during Design Development based upon estimates provided by the City and agreed to by LACMTA under a Potential Notice of Betterment Form; and (iii) the Expired Service Life Value of each Conflicting Facility being replaced if the Replacement Facility will have an expected period of useful service greater than the period that the existing Conflicting Facility would have had, had it remained in service and the Rearrangement not been made, where:
(A) the "Expired Service Life Value" shall be an amount determined by the Parties during Design Development based upon estimates provided by the City of the depreciated value of the Conflicting Facility (calculated by multiplying the cost of the Replacement Facility by a fraction, the numerator of which is the age of the Conflicting Facility and the denominator of which is the estimated overall service life of the Conflicting Facility); and
(B) the Expired Service Life Value shall be determined by the Parties in accordance with Section 7.2(a)(iii)(A) (Reimbursements and Credits to LACMTA) prior to the commencement of the applicable Rearrangement work and documented in the applicable Work Order.
(b) LACMTA shall receive:
(i) a credit (reflected on the applicable invoice(s) submitted by the City) for salvage, Betterments, and Expired Service Life Value of the City Facilities against work performed by the City, where the City performs the work under a Work Order; and
(ii) payment from the City for salvage, costs of Betterments, and Expired Service Life Value of the City Facilities where LACMTA performs the work invoiced and paid in accordance with this Article 7.
(c) The sum of credits and/or payments due to LACMTA for salvage shall be agreed by the Parties based on applicable books, records, documents and other data. In addition, LACMTA and the City may conduct an inspection survey of a Conflicting Facility during the Design Development process.
LACMTA may request and authorize the City to perform support services with respect to any such inspection survey pursuant to the procedures set out under Section 2.3 (Work Orders). (d) Where LACMTA is due a payment under this Article 7:
(i) LACMTA shall commence its monthly billing within no more than 60 days, following the commencement of the applicable work and shall bill monthly thereafter following LACMTA's standard billing procedures;
(ii) LACMTA shall provide supporting documents to demonstrate the costs incurred by LACMTA, including LACMTA Contractor invoices, and other data, to the City upon request;
EXECUTION VERSION
14 (iii) each billing statement shall: (A) be noted as either "progress" or "final"; (B) be addressed to the City Representative; and (C) include a certification that the Costs identified in such billing were appropriate and necessary to the performance of the applicable work and have not previously been billed or paid;
(iv) the final billing, with a notation that all applicable work has been performed, shall be submitted to the City within 60 days after completion of the applicable work, and shall summarize prior progress billings, show inclusive dates upon which work was performed, and include a certification that the costs identified in such billing were appropriate and necessary to the performance of the applicable work and have not previously been billed or paid; and (v) after the expiration of the 60 day period described in Section 7.1(d)(iv) (Reimbursements and Credits to LACMTA), the City may notify LACMTA in writing that the 60 day closing billing period has expired, and upon LACMTA's receipt of such Notice from the City, LACMTA shall have 30 days to its submit final invoice. If LACMTA fails to submit an invoice within such 30 day period, then the City shall have no further obligation for payment to LACMTA with regard to any amounts due or payable under the applicable work.
7.3 Payment of Billings
Payment of each invoice properly submitted pursuant to Section 7.1 (Reimbursements to the City) or 7.2 (Reimbursements and Credits to LACMTA) shall be due within 60 days of receipt; provided that: (a) all such payments shall be conditional, subject to post-audit adjustments; (b) final payment for the City Portion or a Rearrangement shall be contingent upon final inspection (and acceptance) of the work by the Party billed for such work, which inspection (and acceptance, where applicable), will not be unreasonably withheld or delayed; and (c) LACMTA may withhold payments in the amount of any credit amounts due to LACMTA if the City has not posted such credits within 60 days after submittal of requests for the same by LACMTA.
ARTICLE 8. INDEMNITY, WARRANTIES AND INSURANCE
8.1 Indemnity
(a) Each Party shall release, defend, indemnify, and hold harmless the other Party and its respective officers, agents, representatives, and employees from and against all liabilities, expenses (including legal fees and costs), claims, losses, suits, and actions of any kind, and for damages of any nature, including but not limited to, bodily injury, death, personal injury, or property damage arising from or connected with its performance under this Agreement.
(b) In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895 of the Government Code, the Parties, as between themselves, pursuant to Sections 895.4 and 895.6 of the Government Code, each assume the full liability imposed on them, or any of their officers, agents or employees, by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such Party would be responsible under Section 8.1(a) (Indemnity). The provisions of California Civil Code Section 2778 are made a part of this Agreement as if fully set out in this Agreement. (c) Each Party agrees to notify the other promptly upon receipt of any third-party claim for which a Party is entitled to indemnity under this Agreement.
8.2 Warranty
(a) In lieu of providing a bond, LACMTA warrants that any work affecting the structural stability of City Rights-of-Way shall be free from defect for a period of two years following City acceptance. Pursuant to this warranty and for the warranty period only, LACMTA, at its sole expense, shall remedy any damage to City Rights-of-Way to the extent caused by a failure of such structural support installed by LACMTA.
EXECUTION VERSION
15 (b) Solely with respect to work performed by LACMTA or the LACMTA Contractors and any work performed by the City or the City Contractors, the City and LACMTA each warrant to the other for a period of one year from and after acceptance of the work that any work performed by them shall be free from defect. Subject to Section 8.2(a) (Warranty), the limited warranty given under this Section
8.2(b) is the sole warranty given by the City and/or LACMTA, and, pursuant to this warranty, and for the warranty period only, the City or LACMTA, as the case may be, shall remedy any such discovered defect at its sole expense.
(c) In connection with work performed by LACMTA or the LACMTA Contractors and any work performed by the City or the City Contractors, warranties supplied by the LACMTA Contractors and City Contractors to LACMTA or the City (as applicable) shall be made for the benefit of both LACMTA and the City.
8.3 Insurance
(a) The Parties must ensure that any contract entered into in connection with performance of the work under this Agreement contains:
(i) a provision requiring the general contractor, as part of the liability insurance requirements, to provide an endorsement to each liability policy insurance naming the City and LACMTA as additional insureds and under the Contractors’ policy shall be primary and non-contributory and will not seek contribution from the City and LACMTA insurance or self-insurance.
Workers compensation/employer’s policy shall be endorsed to waive all rights of subrogation against the City and LACMTA; and
(ii) unless otherwise mutually agreed by the Parties, the requirement for: (A) construction general contractors to provide evidence of insurance in the following amounts: $5,000,000 in general liability; $1,000,000 in workers' compensation/employer's liability; and $2,000,000 in combined single limit (CSL) in auto liability; and (B) design contractors to provide evidence of insurance in the following amounts: $5,000,000 in general liability; $1,000,000 in workers' compensation/employer's liability; $2,000,000 (CSL) in auto liability; and $1,000,000 in professional liability.
(iii) Any umbrella or excess insurance coverage shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City and LACMTA before its own insurance or self-insurance shall be called upon. Any umbrella or excess liability policy shall contain a provision to the effect that, if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance. (b) Each Party must:
(i) give the other Party 20 days' Notice prior to any reduction in scope or cancellation or expiration of any insurance procured by it under this Section 8.3; (ii) give the other Party 20 days' Notice prior to it agreeing to a reduction in scope or the cancellation or expiration of any insurance procured by a LACMTA Contractor or City Contractor (as applicable) under this Section 8.3; and
(iii) notify the other Party within five days if it receives a Notice from a LACMTA Contractor or City Contractor (as applicable) of the expiration of any insurance procured under this Section 8.3.
ARTICLE 9. RESOLUTION OF DISPUTES
9.1 Attempt to Resolve
EXECUTION VERSION
16 In the event of dispute or difference arising under, out of or in connection with or relating to this Agreement, including any question regarding its existence, validity or termination ("Dispute"), the Parties shall make good faith efforts to resolve the Dispute through negotiation.
9.2 Arbitration – No Work Stoppage
(a) If the Parties are unable to resolve a Dispute pursuant to Section 9.1 (Attempt to Resolve), either Party may serve the other Party a demand for arbitration. Within 22 days (or such longer period as agreed by the Parties) of receipt of such demand, the Parties shall agree on a sole arbitrator. If the Parties are unable to agree to the appointment of a sole arbitrator within the 22 days (or any longer period as may be agreed), each Party shall select an arbitrator and those arbitrators shall select a qualified neutral third party to arbitrate with regard to the Dispute ("Neutral Arbitrator") to form a three-person panel. If either Party fails to designate its arbitrator within 22 days (or longer period as agreed) of delivery of the demand or if the two designated arbitrators are unable to select the Neutral Arbitrator within five days of their appointment, a Neutral Arbitrator shall be designated pursuant to Section 1281.6 of the California Code of Civil Procedure, who shall hear the matter as the sole arbitrator.
(b) The Parties acknowledge that Section 1283.05 of the California Code of Civil Procedure is applicable to those issues not involving work stoppage. A hearing date shall be set as promptly as possible following selection of the arbitrator in accordance with Section 9.2(a) (Arbitration – No Work Stoppage). The arbitrator's award shall follow promptly the hearing's conclusion, shall be supported by law and substantial evidence and the issuance of written findings of fact and conclusions of law.
The making of an award that does not comply with such requirements shall be deemed to be in excess of the arbitrator's power and the court shall vacate the award if after review it determines that the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
9.3 Arbitration – Work Stoppage
(a) In the event of a Dispute, neither Party is permitted to stop work, except: (i) for reasons of public health or safety; or (ii) where work is prevented from continuing pending resolution of the Dispute. In the event that work is stopped, the provisions of this Section 9.3 shall apply. Upon stoppage of work, either Party may serve the other Party a demand for arbitration. A Neutral Arbitrator who is able to hear the Dispute and render a decision within five days after being selected shall be immediately designated pursuant to Section 1281.6 of the California Code of Civil Procedure. (b) Notwithstanding Sections 1282.2(b) and Section 1282(e) of the California Code of Civil Procedure (regarding postponement of the hearing), where work is stopped, the Neutral Arbitrator may not postpone nor adjourn the hearing except upon the agreement of the Parties. The arbitration may proceed in the absence of a Party who, after due Notice, fails to appear. In addition to all other issues, the Neutral Arbitrator shall also determine whether it was absolutely necessary to stop and await resolution of the Dispute in order to continue the work. If it is determined that the work stoppage was not necessary, the Party that did not stop the work shall be entitled to damages (as determined by the Neutral Arbitrator) arising out of such work stoppage. Section 9.2(b) (Arbitration – No Work Stoppage) shall also apply.
9.4 Impartiality of Arbitrator
Any person who has any material financial or personal interest in the results of the arbitration shall be prohibited from acting as Neutral Arbitrator. Failure to disclose any such interest or relation shall be grounds for vacating an award handed down under Section 9.2 (Arbitration – No Work Stoppage) or 9.3 (Arbitration – Work Stoppage).
9.5 Compensation of the Arbitrator
EXECUTION VERSION
17 Each Party shall pay the expenses and fees of the arbitrator it selects. The expenses and fees of the Neutral Arbitrator shall be paid in accordance with the provisions of Section 1284.2 of the California Code of Civil Procedure.
9.6 Other Provisions
An arbitrator or panel appointed under this Article 9 shall have only the authority to issue a non-binding award to resolve the dispute of the Parties. Except as otherwise expressly provided in this Agreement, any arbitration under this Article 9 shall be governed by the California Arbitration Act.
9.7 Incorporation of Subcontracts
The City must ensure that any contract entered into in connection with performance of the work under this Agreement includes provisions equivalent to this Article 9.
ARTICLE 10. MISCELLANEOUS
10.1 Force Majeure
No Party may bring a claim for a breach of obligations under this Agreement by the other Party or incur any liability to the other Party for any losses or damages incurred by that other Party if a Force Majeure Event occurs and the affected Party is prevented from carrying out its obligations by that Force Majeure Event.
During the continuation of any Force Majeure Event, the affected Party shall be excused from performing those of its obligations directly affected by such Force Majeure Event provided that the occurrence or continuation of any Force Majeure Event shall not excuse any Party from performing any payment obligations contemplated under this Agreement. If a Force Majeure Event occurs, the City agrees, if requested by LACMTA pursuant to Section 2.3 (Work Orders), and if deemed possible and feasible by the City (acting reasonably), to accelerate the performance of its obligations under this Agreement and any Work Order to mitigate any delay arising from the Force Majeure Event provided that LACMTA agrees to reimburse the City for the incremental actual costs of such acceleration.
10.2 Existing Agreements
This Agreement does not negate or otherwise modify any existing easements, licenses or other use and/or occupancy agreements between the City and LACMTA or to which LACMTA has become or does become a successor either by assignment or by operation of law.
10.3 Audit and Inspection; Maintenance of Records
(a) Audit and Inspection. For the period commencing on the Effective Date and ending on the date falling three years after the end of the Term, each Party will have such rights to review and audit the other Party and its books, records and documents as may be deemed necessary for the purposes of verifying compliance with this Agreement and Applicable Law at all times during normal business hours, without charge. Each Party represents and warrants the completeness and accuracy in all material respects of all information it or its agents provides in connection with any audit by the other Party. If an audit shows that a financial adjustment is required, the Parties will use good faith efforts to agree such adjustment. The Parties must ensure that any contract entered into in connection with performance of the work under this Agreement contains provisions acknowledging the rights of the City or LACMTA (as applicable) under this Section 10.3(a). (b) Maintenance of Records. The City shall (and shall ensure that any City Contractor will) keep and maintain its books, records, and documents related to performance of the work under this Agreement (including all Costs incurred) for three years after the end of the Term; except that, all records that relate to Disputes being processed or actions brought under this Agreement must be retained and made available until any later date that such Disputes and actions are finally resolved. The City reserves the right to assert exemptions from disclosure of information that would be exempt under Applicable Law from disclosure or introduction into evidence in legal actions.
EXECUTION VERSION
18 10.4 Notices
(a) Each Notice under this Agreement must be in writing and: (i) delivered personally; (ii) sent by certified mail, return receipt requested; (iii) sent by a recognized overnight mail or courier service, with delivery receipt requested; or (iv) sent by email communication followed by a hard copy, to the following addresses (or to such other address as may from time to time be specified in writing by such person):
To the City:
City Administrator (or designee)
City of Vernon
___________________
___________________
With a copy to:
City Attorney
City of Vernon
___________________
___________________
With a copy to:
Director of Public Works (and/or the City Engineer),
City of Vernon
___________________
___________________
To LACMTA:
Chief Program Manager
Los Angeles County Metropolitan Transportation Authority One Gateway Plaza, 16th Floor
Los Angeles, California 90012
Facsimile No.: (213) 922-7382
Attn: Eduardo Cervantes or John Koo, Third Party Administration With a copy to:
Program Management
Los Angeles County Metropolitan Transportation Authority One Gateway Plaza
Los Angeles, CA 90012
Facsimile No.: (213) 922-7447
Attn: James Wei, Deputy Executive Officer
With a copy to:
County Counsel
Los Angeles County Metropolitan Transportation Authority One Gateway Plaza, 24th Floor
Los Angeles, CA 90012
Facsimile No.: (213) 922-7447
Attn: Teddy Low, Senior Deputy County Counsel
With a copy to:
EXECUTION VERSION
19 Metro Real Estate
Los Angeles County Metropolitan Transportation Authority One Gateway Plaza, 22nd Floor – Real Estate
Los Angeles, CA 90012
Facsimile No.: (213) 922-7447
Attn: John Potts, Executive Officer
(b) Any Notice sent personally will be deemed delivered upon receipt, and any notice sent by mail or courier service will be deemed delivered on the date of receipt or on the date receipt at the appropriate address is refused, as shown on the records of the U.S. Postal Service, courier service or other person making the delivery, and any notice sent by email communication will be deemed delivered on the date of receipt as shown on the received email transmission (provided the hard copy is also delivered pursuant to Section 10.4(a) (Notices)). All Notices (including by email communication) delivered after 5:00 p.m. PST will be deemed delivered on the first day following delivery that is not a Saturday, a Sunday, or a federal public holiday.
10.5 Assignment; Successors and Assigns
A Party cannot assign, novate, or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of the other Party unless this Agreement expressly provides otherwise. This Agreement is binding upon and will inure to the benefit of LACMTA and the City and their respective successors and permitted assigns.
10.6 Waiver
(a) No waiver of any term, covenant, or condition of this Agreement will be valid unless in writing and executed by the obligee Party.
(b) Either Party's waiver of any breach or failure to enforce any of the terms, covenants, conditions, or other provisions of this Agreement at any time will not in any way limit or waive that Party's right to subsequently enforce or compel strict compliance with every term, covenant, condition, or other provision of this Agreement, despite any course of dealing or custom of the trade (other than the waived breach or failure in accordance with the provisions of such waivers).
10.7 Amendments
This Agreement can only be amended or replaced by a written instrument duly executed by the Parties.
10.8 Governing Law and Jurisdiction
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California. The rights and remedies of LACMTA and the City for default in performance of this Agreement or any Work Order are in addition to any other rights or remedies provided by law.
10.9 Severability
If any provision of this Agreement is ruled invalid by a court having proper jurisdiction, such invalidity or unenforceability will not affect the validity or enforceability of the balance of this Agreement, which will be construed and enforced as if this Agreement did not contain such invalid or unenforceable clause, provision, Article, Section, subsection or part.
10.10 Counterparts
This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
10.11 Limitation on Third Party Beneficiaries
EXECUTION VERSION
20 Nothing contained in this Agreement is intended or will be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the Parties toward, any person not a party to this Agreement.
10.12 Survival
The representations, warranties, indemnities, waivers and any express obligations of the Parties following termination, set out in this Agreement shall survive the expiration or termination, for any reason, of this Agreement.
ARTICLE 11. DEFINITIONS AND INTERPRETATION
11.1 Definitions
Unless the context otherwise requires, capitalized terms and acronyms used in this Agreement have the meanings given in this Section 11.1.
"Abandon" means the permanent termination of service, or the removal of an existing City Facility or portion of it.
"ADA" means the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. "Adjacent Work" means any removal, demolition, repair, restoration, relocation or reconstruction of existing facilities and/or construction of new facilities and/or other physical works by the City or a third party: (a) that is performed or to be performed within, or within 100 feet of, the Project Site; or the performance of which is otherwise reasonably likely to conflict with the design, construction, operation or maintenance of the City Portion; and (b) in the case of works performed or to be performed by a third party, of which the City is aware or ought to be aware.
"Advanced Conceptual Engineering" means the phase of the Design process that advances the project scope from a conceptual state to a level of schematic design that describes the project technical and architectural approach in order to address environmental and community impacts, significant interfaces and operational characteristics to support environmental approvals. The plan percentage complete ranges generally from the initiation of Design (0%) to 15%.
"Agreement" means this agreement and any schedules, exhibits, attachments and annexures to it. "Annual Work Plan" means an annual work plan prepared and agreed by LACMTA and the City in accordance with Section 2.2 (Annual Work Plan).
"Applicable Law" means any statute, law, code, regulation, ordinance, rule, common law, judgment, judicial or administrative order, decree, directive, or other requirement having the force of law or other governmental restriction (including those resulting from the initiative or referendum process) or any similar form of decision of or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Entity which is applicable to the City Portion, Rearrangements, any work performed under this Agreement or any relevant person, whether taking effect before or after the date of this Agreement. Applicable Law excludes Governmental Approvals, customs, duties and tariffs. "Basis of Design" means:
(a) for any Rearrangements, the approval (or deemed approval) by the City under the provisions of this Agreement of the 60% Design Documentation for those Rearrangements; and (b) for the City Portion, the LARP Basis of Design.
"Betterment" means work performed in connection with the City Portion, including any Rearrangement or part of a Rearrangement:
EXECUTION VERSION
21 (a) comprising an upgrade, change or addition to a City Facility (or a part of a City Facility) requested by the City that provides for greater capacity, capability, durability, appearance, efficiency or function or other betterments of that City Facility over that which was provided by the City Facility prior to the Rearrangement; or
(b) for which the City Standards applicable to a Rearrangement are changed or added to after the establishment of the Basis of Design for that Rearrangement, provided that the term "Betterment" shall exclude:
(i) an upgrade, which the Parties agree, will be of direct and principal benefit to the construction, operation and/or maintenance of the LA River Path Project; (ii) an upgrade resulting from Design or Construction in accordance with: (A) in the case of the City Portion, the Basis of Design for the City Portion; or (B) in the case of a Rearrangement, the applicable City Standards notified to LACMTA prior to the establishment of the Basis of Design for the Rearrangement and that have not been adopted by the City in breach of Section 3.5(a) (City Standards);
(iii) measures to mitigate environmental impacts identified in the LA River Path Project’s Final Environmental Impact Report or Statement and any supplemental environmental reports for the LA River Path Project;
(iv) replacement of devices or materials no longer regularly manufactured with the next highest grade or size; and
(v) an upgrade that is the consequence of changes made by LACMTA or a LACMTA Contractor after the establishment of the applicable Basis of Design. "City" is defined in the Preamble. "City" shall also refer to any City owned or operated "water" and/or "power" departments.
"City Construction Work" means any Construction work and activities performed or to be performed by the City or a City Contractor pursuant to a Work Order.
"City Contractor" means any contractor, consultant, tradesperson, supplier or other person engaged or authorized by the City to perform any Adjacent Work, City Design Work, City Construction Work or any other work to be performed by the City under the provisions of this Agreement or otherwise on or about the Project Site but excluding LACMTA and the LACMTA Contractors.
"City Design Work" means any Design work and activities performed or to be performed by the City or a City Contractor pursuant to a Work Order.
"City Facility" means real or personal property located within or near the City Portion, such as structures, improvements, and other properties, which are under the ownership or operating jurisdiction of the City, and shall include, but not be limited to, public streets (any classification), highways, bridges, retaining walls, pedestrian/utility tunnels, alleys, storm drains, sanitary sewers, survey monuments, parking lots, parks, public landscaping and trees, traffic control devices, lighting and communications equipment (cameras, sensors, LTE, microwave receivers, etc.) and public buildings, police and fire department related improvements, as well as any dams or water storage tanks, systems, and appurtenances. City-owned airport and harbour facilities are not included in this definition.
"City Maintenance Work" means any maintenance work and activities performed or to be performed by the City or a City Contractor pursuant to a Work Order or under the provisions of this Agreement. "City Municipal Code" means the Vernon Municipal Code.
EXECUTION VERSION
22 "City Portion" means that portion of the LA River Path Project that will pass in, on, under, over or along public streets, highways, bridges, parks and other public right-of-way within the City, as shown in Part B of EXHIBIT 3 (Project Site).
"City Representative" is defined in Section 2.1(b) (Governance). "City Rights-of-Way" means the public streets, highways, bridges, parks and other public rights-of-way within the City.
"City Standards" means the City's design standards and ordinances which govern the design of all Rearrangements, as specified in EXHIBIT 5 (Design Requirements) or adopted by the City and notified to LACMTA in accordance with Section 3.5 (City Standards) specified in EXHIBIT 5 (Design Requirements) which govern the design of all Rearrangements.
"Compliance Comment" means a comment on, objection to or the withholding of approval to a LACMTA Submittal on the basis of one or more of the following:
(a) the LACMTA Submittal or Design work or Construction work that is the subject of the LACMTA Submittal fails to comply with (or is reasonably likely to fail to comply if implemented in accordance with the LACMTA Submittal) any applicable covenant, condition, requirement, term or provision of this Agreement; or
(b) LACMTA (or the relevant LACMTA Contractor (as applicable)) has not provided all content or information required with respect to the LACMTA Submittal. "Conflicting Facility" means an existing City Facility, which the Parties determine requires Rearrangement in order to construct, operate or maintain the LA River Path Project. "Construction" means all construction activities related to the City Portion that are necessary to complete and operate and maintain the LA River Path Project including the removal, demolition, replacement, restoration, alteration or realignment of existing facilities and the procurement, installation, inspection, and testing of new facilities including temporary and permanent materials, equipment, systems, software, and any components of such permanent materials, systems and software. "Construction Phase" means the phase of the LA River Path Project identified as such in EXHIBIT 2 (Project Phases and Project Schedule).
"Construction Staging Plan" has the meaning given in EXHIBIT 7 (Construction Requirements). "Cost" means all eligible direct and indirect costs actually incurred for activities or work performed or materials acquired in accordance with the provisions of this Agreement, less (in respect of the City) credits to LACMTA as provided in Article 7 (Reimbursement and Credits) where:
(a) eligible direct costs include allowable direct labor costs, materials costs, and storage and transportation costs of materials salvaged for the City's use in performing the applicable work; (b) eligible indirect costs shall be computed based upon the indirect cost rates approved annually for the City by its cognizant agency, and as noted on the Form 60, for allocation to federally funded or state funded contracts; and
(c) unless the Internal Revenue Service and the CPUC issue regulations or rulings to the contrary, the eligible direct and indirect costs shall not include taxes purportedly arising or resulting from LACMTA's payments to the City under this Agreement.
"CPUC" means the California Public Utilities Commission. "days" means, unless otherwise stated and whether or not capitalized, calendar days.
EXECUTION VERSION
23 "Design" means all activities related to the design, redesign, engineering or architecture of any Construction work.
"Design Development" means the phase of the Design process that occurs after Advanced Conceptual Engineering and that develops, on a progressive basis, a clear indication of the design solutions for the applicable requirements and the major features of the architectural and structural design and third party interfaces that are intended to form the basis for the Final Design. "Design Documentation" means all drawings (including plans, profiles, cross-sections, notes, elevations, typical sections, details and diagrams), specifications, reports, studies, working drawings, shop drawings, calculations, electronic files, records and submittals necessary for, or related to, the design of the City Portion and the Rearrangements.
"Design Phase" means the phase of the LA River Path Project identified as such in EXHIBIT 2 (Project Phases and Project Schedule).
"Dispute" is defined in Article 9 (Resolution of Disputes). "Effective Date" means the date stated as such on the first page of this Agreement, which shall be the date when this Agreement has been fully executed on behalf of the City and LACMTA. "Engineer of Record" means the individual, firm or entity that performs the Design, that imprints the engineer's/architect's seal on the drawings, and is responsible and liable for the Final Design. "Expired Service Life Value" is defined in Section 7.2(a)(iii)(A) (Reimbursements and Credits to LACMTA). "Final Design" means the phase of the Design process which provides the detailed design for all temporary and permanent project facilities and addresses and resolves all Design review Compliance Comments and finalizes all engineering, architectural and systems designs necessary for Construction. It ends with an approved-for-construction plan status and with the Design being signed and sealed by the 'Engineer of Record'.
"Force Majeure Event" means the occurrence of any of the following events after the date of this Agreement that directly causes either Party (the "affected Party") to be unable to comply with all or a material part of its obligations under this Agreement:
(a) war, civil war, invasion, violent act of foreign enemy or armed conflict or any act of terrorism; (b) nuclear, chemical or biological contamination unless the source or cause of the contamination is brought to or near the Project Site by the affected Party; (c) ionizing radiation unless the source or cause of the ionizing radiation is brought to or near the Project Site by the affected Party;
(d) any fire, explosion, unusually adverse weather, flood or earthquakes; (e) any named windstorm and ensuing storm surges, including the direct action of wind originating from a named windstorm;
(f) any riot or civil commotion;
(g) any blockade or embargo;
(h) epidemic, pandemic or quarantine; or
(i) any official or unofficial strike, lockout, go-slow or other dispute, generally affecting the construction industry or a significant sector of it,
EXECUTION VERSION
24 except, in each case, to the extent attributable to any breach of this Agreement or Applicable Law by, or any negligent act or negligent omission of, the affected Party. "Form 60" means Form 60 (Professional Services Cost/Price Summary) in the form attached as Part A of EXHIBIT 10 (Forms).
"Governmental Approval" means any approval, authorization, certification, consent, license, permit, registration or ruling, issued by any Governmental Entity required to carry out the Rearrangements, the City Portion or any other work to be performed under the provisions of this Agreement. "Governmental Entity" means any federal, state, or local government and any political subdivision or any governmental, quasi-governmental, judicial, public or statutory instrumentality, administrative agency, authority, body or entity (including the California Department of Transportation, CPUC and United States Army Corps of Engineers) other than LACMTA and the City. "LA River Path Project" is defined in Recital (A).
"LACMTA" is defined in the Preamble.
"LACMTA Contract" means any contract, subcontract or other form of agreement between LACMTA and a LACMTA Contractor or between a LACMTA Contractor and its lower tier subcontractor. "LACMTA Contractor" means any contractor, consultant, tradesperson, supplier, private developer, employee, member of staff, engineer, architect, agent, operator, or other person engaged or authorized by LACMTA to carry out works with respect to the City Portion, any Rearrangement or otherwise contemplated under the provisions of this Agreement and any other person with whom any LACMTA Contractor has further subcontracted part of such works.
"LACMTA Fiscal Year" means each one year period commencing on July 1 of a calendar year and terminating on June 30 of the following calendar year.
"LACMTA Representative" is defined in Section 2.1(b) (Governance). "LACMTA Retained Scope" means the LA River Path Project scope elements for which LACMTA intends to retain responsibility, as described in Part B of EXHIBIT 1 (Project Description). "LACMTA Submittal Review Period" means, for each LACMTA Submittal, a period of 30 days from the date of delivery of the LACMTA Submittal to the City under the provisions of this Agreement or such other period as the Parties may agree under the applicable Work Order. "LACMTA Submittals" means:
(a) Design Documentation for the City Portion or a Rearrangement (other than any Design Documentation for which the City is responsible under a Work Order); (b) Construction Management Plans for Construction work performed by LACMTA or a LACMTA Contractor within the City Rights-of-Way; and
(c) any other documents which LACMTA (or the LACMTA Contractors) must submit to the City in accordance with this Agreement.
"LARP Basis of Design" means the basis of design and design standards adopted for the LA River Path Project, as further defined in Section 3 (LA River Path Project Basis of Design (LARP Basis of Design)) of EXHIBIT 5 (Design Requirements).
"Neutral Arbitrator" is defined in Section 9.2(a) (Resolution of Disputes).
EXECUTION VERSION
25 "Non-conforming Work" means Design work or Construction work not in accordance with the requirements of this Agreement.
"Notice" means any communication under this Agreement including any notice, consent, approval, request, and demand.
"O&M Agreement" is defined in Section 1.1(b)(iii) (Scope of Agreement). "Package" means each package of Design Documentation submitted by LACMTA or a LACMTA Contractor to the City in accordance with this Agreement.
"Parties" means collectively the City and LACMTA, and each a "Party". "Permit Notification" means a blanket Permitting Process and Waiver of Certain Permit Fees issued by the City.
"Planning and Procurement Phase" means the phase of the LA River Path Project identified as such in EXHIBIT 2 (Project Phases and Project Schedule).
"Potential Notice of Betterment Form" means the form set out in Part B of EXHIBIT 10 (Forms). "Project Right-of-Way" means the permanent right-of-way for the LA River Path Project, as identified in Part A of EXHIBIT 3 (Project Site), or as notified by LACMTA to the City and compliant with the Project's environmental documents and any supplemental environmental reports for the LA River Path Project. "Project Schedule" means the schedule for the LA River Path Project including the City Portion set out in Part B of EXHIBIT 2 (Project Phases and Project Schedule). "Project Scope" means those elements of the LA River Path Project scope that LACMTA intends to procure under PS&E and CM/GC contracts, as described in Part B of EXHIBIT 1 (Project Description). "Project Site" means, collectively, the Project Right-of-Way and each temporary construction easement for the LA River Path Project, as identified in Part A of EXHIBIT 3 (Project Site). "Rearrangement" means the work of:
(a) removal, replacement, restoration, alteration, reconstruction, support, or relocation of all or a portion of a Conflicting Facility, whether permanent or temporary, which LACMTA determines in its sole discretion is necessary in order for the LA River Path Project to comply with Applicable Law or otherwise which LACMTA and the City mutually agree is necessary in order to construct, operate or maintain the LA River Path Project; or
(b) the installation of new and required City Facilities which LACMTA determines in its sole discretion is necessary in order for the LA River Path Project to comply with Applicable Law or otherwise which LACMTA and the City mutually agree is necessary as a result of the impact of the construction, operation or maintenance of the LA River Path Project.
"Replacement Facility" means a facility, which may be constructed or provided under this Agreement as a consequence of the Rearrangement of a Conflicting Facility or a part of it. "Temporary Facilities" means a facility constructed for the purpose of ensuring continued service while a City Facility is taken out of full or partial service for permanent Rearrangement and/or any work on a City Facility, which will be removed or restored to its original condition after such Construction activities are completed.
"Term" is defined in Section 1.2 (Duration of Agreement).
EXECUTION VERSION
26 "Traffic Control and Lighting Work" has the meaning given in EXHIBIT 5 (Design Requirements). "Traffic Management Plan" means a plan that addresses traffic control requirements in construction areas through a worksite traffic control plan and along detour routes through a traffic circulation plan. "Work Order" means a work request submitted by LACMTA to the City authorizing the performance of any work associated with the LA River Path Project and the associated purchase of required materials. "Working Group" means each working group established pursuant to Section 2.1(c) (Governance).
11.2 Interpretation
(a) In this Agreement unless otherwise expressly stated:
(i) headings are for convenience only and do not affect interpretation; (ii) a reference to this Agreement or any other agreement, instrument, or document is to this Agreement or such other agreement, instrument, or document as amended or supplemented from time to time;
(iii) a reference to this Agreement or any other agreement includes all exhibits, schedules, forms, appendices, addenda, attachments, or other documents attached to or otherwise expressly incorporated in this Agreement or any such other agreement (as applicable); (iv) subject to Section 11.2(a)(v) (Interpretation), a reference to an Article, Section, subsection, clause, Exhibit, schedule, form or appendix is to the Article, Section, subsection, clause, Exhibit, schedule, form, or appendix in or attached to this Agreement; (v) a reference in the main body of this Agreement, or in an Exhibit, to an Article, Section, subsection, or clause is to the Article, Section, subsection, or clause of the main body of this Agreement, or of that Exhibit (as applicable);
(vi) a reference to a person includes such person's permitted successors and assigns; (vii) a reference to a singular word includes the plural and vice versa (as the context may require); (viii) the words "including", "includes" and "include" mean "including, without limitation", "includes, without limitation" and "include, without limitation", respectively and the word "or" is not exclusive;
(ix) an obligation to do something "promptly" means an obligation to do so as soon as the circumstances permit, avoiding any delay and "shall" when stated is to be considered mandatory; and
(x) in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" mean "to and including". (b) This Agreement is not to be interpreted or construed against the interests of a Party merely because that Party proposed this Agreement or some provision of it, or because that Party relies on a provision of this Agreement to protect itself.
EXECUTION VERSION
27 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Effective Date.
APPROVED AS TO FORM
DAWYN R HARRISON,
ACTING County Counsel
By:_________________________
Teddy Low
Senior Deputy County Counsel
"LACMTA"
THE LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY, a California county
transportation authority existing under the Authority of §§ 130050.2 et seq. of the California Public Utilities
Code
By: ____________________________
Name: ____________________________
Its: _______________________________
APPROVED AS TO FORM
_________________________,
City Attorney
By:_________________________
Name: _________________________
City Attorney
ATTEST
By:_______________________
Name: _________________________
City Clerk
"CITY"
THE CITY OF VERNON,
a California municipal corporation
By: _____________________________
Name: _________________________
Its: City Administrator (or designee)
EXECUTION VERSION
28 EXHIBIT 1 – PROJECT DESCRIPTION
The LA River Path Project is an approximately 8-mile bicycle and pedestrian path proposed along the Los Angeles River from Elysian Valley through downtown Los Angeles and the City of Vernon to the City of Maywood. The northern limit of the project area is the terminus of the Los Angeles River Greenway Trail at Riverside Drive and the southern limit is at Atlantic Boulevard where the Los Angeles River Bicycle Path begins in the City of Maywood. The purpose of the LA River Path Project is to and that and.
The main goals of the LA River Path Project are to:
1. Close the longest remaining gap in the LA River Path
2. Create a safe and world-class active transportation corridor along the Los Angeles River
3. Enhance and provide recreational opportunities, liveability, regional and local connectivity
4. Provide an outstanding user experience, access to economic opportunity for historically under-invested communities, and separation from vehicular traffic for people of all ages and abilities
EXECUTION VERSION
29 EXHIBIT 2 – PROJECT PHASES AND PROJECT SCHEDULE
Part A: Phases As at the date of this Agreement, the phasing and time periods for the early phasing is anticipated to be as set out in this Part A. The phases described in this Part A may overlap and the time periods are subject to change.
EXECUTION VERSION
30 PHASE KEY ACTIVITIES
Planning & Advanced
Conceptual
Engineering
Key activities include:
Preparation of the environmental documents.
Approval by LACMTA Board of the locally preferred alternative (LPA) Preparation of Advanced Conceptual Engineering (15%) for the LA River Path Project
Certification of the environmental documents.
Issuance of the Record of Decision
Preparation of the Mitigation Monitoring and Reporting Plan (MMRP) Engineering &
Procurement
Key activities include:
Engineering and Design Development for the LA River Path Project by LACMTA and the LACMTA Contractors (including the City Portion and any Rearrangements included within that scope) through to Final Design Working with third parties to obtain third party approvals for the LA River Path Project, including the City of Los Angeles, the Los Angeles County Flood Control District, the United States Army Corps of Engineers, Metrolink, Caltrans, Union Pacific Railroad, BNSF Railway, Los Angeles Department of Water and Power, and private landowners
Procurement of LACMTA Contractor(s) to perform the work for the LA River Path Project
Construction Key activities include:
Construction of the LA River Path Project (including the City Portion and any related Rearrangements)
Operation and
Maintenance
Operation and maintenance of the LA River Path Project will be the subject of an O&M Agreement to be negotiated by the Parties in good faith and finalized at a later date. See Article 6
Part B: Project Schedule
As notified by LACMTA to the City or otherwise incorporated in an amendment of this Agreement.
EXECUTION VERSION
31 EXHIBIT 3 – PROJECT SITE
Part A: LA River Path Project Site
EXECUTION VERSION
32 Part B: City Portion
The drawing depicting the City Portion will be as notified by LACMTA to the City or otherwise incorporated in an amendment of this Agreement.
EXECUTION VERSION
33 EXHIBIT 4 – ROLES AND RESPONSIBILITIES
Part A: LACMTA Representative and City Representative
The initial designations of the LACMTA Representative and City Representative are as follows:
LACMTA Representative LACMTA Program Management or such other person, or the holder of a specified office or position, specified, from time to time, by LACMTA’s Chief Executive
Officer, or his/her designee
City Representative City Administrator or his/her designee Part B: Summary of Key Roles and Responsibilities
Phase LACMTA Retained City
General Performing its retained obligations and
ensuring that the LACMTA Contractors
(including the PS&E contractor and the
CM/GC contractor) comply with the provisions
of this Agreement
Performing all of City's obligations under this
Agreement and ensuring that all City
Contractors comply with the provisions of this
Agreement
Planning and
Advanced
Conceptual
Engineering
Managing the planning process and preparing
all environmental documents
Preparing Advanced Conceptual Engineering
for the LA River Path Project
Providing support and assistance to LACMTA
in obtaining Governmental Approvals and in
dealing with other third parties with respect to
the City Portion
Engineering &
Procurement
Preparing and submitting the Design for the
LA River Path Project to the City to the extent
required by this Agreement, up to and
including Final Design stage
Preparing the procurement documents and
managing the procurement for the LA River
Path Project
Reviewing and approving Designs submitted
to it in accordance with agreed procedures
Performing any other Design-related
obligations under any Work Orders
Providing assistance to LACMTA in procuring
any temporary construction easements
necessary for Construction of the City Portion
Construction Monitoring progress and performance of the LACMTA Contractor(s) responsible for the
work on the LA River Path Project
Performing its Construction-related
obligations under any Work Orders
Coordinating Adjacent Work, City
Construction Work, and City Maintenance
Work
Operation and
Maintenance
Operation and maintenance of the LA River
Path Project will be the subject of an O&M
Agreement to be negotiated by the Parties in
good faith and finalized at a later date (See
Article 6)
See Article 6
EXECUTION VERSION
34 Part C: Issue Resolution Ladder
The following City staff or its designees shall be responsible for coordinating among the applicable City departments and divisions as necessary to make the designated decision or approval.
City Team Partial List of Key Functions for Decision or Approval LACMTA Team City Administrator,
Director of Public
Works, Designated
Project Manager or
Designated
Representative
Spearhead council approval of all work outside of normal working hours including any night work variances, holiday work restrictions, police & fire department requests, peak hours exemptions, and other requests with potential shortterm impacts to the community (i.e. revised detours, temporary full street closures, revised haul routes)
LACMTA Chief Program
Manager
Director of Public
Works, City
Engineer, or
Designated
Representative
Approve all final Construction plans and related documents as required by this Agreement.
Provide overall leadership in timely resolution of Design, Construction, plan review, and related administrative
matters.
CA Professional Engineer Registration
LACMTA Senior
Executive Officer over
Designated Project
Manager
City Public Works
Construction
Department Head or
Designated
Representative
Provide Construction support as specified in this Agreement Manage assigned resources and coordinate interactions
between the City and LACMTA and the LACMTA
Contractors as it relates to Construction support.
Provide independent quality assurance (IQA) functions
where LACMTA performs work within City Right-of-Way
such as street improvement, signal, lighting, and utility work.
LACMTA Designated
Project Manager level
(Executive Officer or
Deputy Executive
Officer) or Designated
Construction Manager
(Deputy Executive
Officer or Senior
Director)
City Public Works
Permit Division
Head or Designated
Representative
Oversee and coordinate all plan reviews as specified in this Agreement
Manage and coordinate interaction of the City with LACMTA and the LACMTA Contractors as it relates to Design review and comment resolution.
Provide the necessary coordination in planning,
engineering, technical, analytical and administrative support services with respect to design approval including fire/life safety, police/public security, access, transportation
engineering, civil and structural engineering, street lighting engineering, drainage, sanitation, landscaping, and related maintenance requirements.
Skilled in change management and expedited approvals.
LACMTA Designated
Project Engineer
(Deputy Executive
Officer or Senior Director
levels), consultant CM,
and LACMTA Third
Party Admin Dept
Project Lead (Civil)
City Traffic Engineer
or Designated
Representative
Approve all worksite traffic control plans and any final design documents pertaining to both permanent and temporary
traffic controls (signals, striping, WATCH lane closures, MUTCD restrictions, lighting, etc. )
LACMTA Designated
Project Engineer
(Deputy Executive
Officer or Senior Director
levels), consultant CM,
LACMTA Third Party
Admin Dept Project Lead
EXECUTION VERSION
35 (Civil) and TE
consultants.
EXECUTION VERSION
36 EXHIBIT 5 – DESIGN REQUIREMENTS
1. GENERAL DESIGN CRITERIA
Any Design work for the City Portion and any Rearrangements shall be performed in accordance with:
(a) the Design requirements set out in this EXHIBIT 5 or otherwise under the provisions of this Agreement and the relevant Work Order (if applicable); and
(b) all Governmental Approvals and Applicable Law.
2. CITY STANDARDS FOR REARRANGEMENTS
The Parties agree that any Design work for the Rearrangements shall be performed in accordance with the City Standards and that the "City Standards" will be those City design standards and ordinances notified by the City to LACMTA or otherwise incorporated in an amendment of this Agreement in accordance with Section
3.5 (City Standards) of the Agreement.
3. LA RIVER PATH PROJECT BASIS OF DESIGN (LARP BASIS OF DESIGN) The Parties agree that any Design work for the City Portion shall be performed in accordance with the basis of design and design standards set out in EXHIBIT 11 (LARP Basis of Design) (the "LARP Basis of Design").
4. SPECIFIC DESIGN REQUIREMENTS
4.1 Surface Openings. To the extent operationally and fiscally practical, LACMTA shall locate surface openings, if any to mitigate: (a) the effect on existing features of landscape and improvements; and (b) public disruption; in each case after taking account of health and safety concerns. Placement of gratings in sidewalks will be avoided to the extent reasonably practicable; however, all other openings, such as mechanical access openings, shall be regularly permitted in sidewalks, provided such openings are enclosed.
4.2 Landscaping. Trees and landscaped areas under ownership or daily control of the City shall be preserved whenever practical. Trees in the Project Site, which are not being removed by LACMTA, shall be adequately protected. Trees that must be removed due to Rearrangements or work on the City Portion shall be replaced by LACMTA, if the City elects and right-of-way is available. Replacement work shall be in accordance with the landscaping requirements under the LARP Basis of Design (if the replacement trees will be located on the City Portion) or applicable City Standards (subject to Section 3.5 (City Standards) of this Agreement.
Landscaped areas removed due to Rearrangements or work on the City Portion shall be restored to the original condition to the extent practical as agreed to by the City and LACMTA.
4.3 Traffic Control Devices and Lighting Systems. If the City Portion or a Rearrangement requires the removal and reinstallation, or modification of existing or installation of new traffic control devices or lighting systems ("Traffic Control and Lighting Work"), then LACMTA must obtain the City's approval of LACMTA's Design for the Traffic Control and Lighting Work (which consent may not be unreasonably delayed or withheld).
4.4 Private Projections in Public Ways. If LACMTA determines that a private projection in, over or under any City Facilities or the City Rights-of-Way must be removed to accommodate the LA River Path Project, LACMTA will issue a Work Order to the City and the City shall take all reasonable actions within its powers to require the elimination of such projections by the time specified in the Work Order. If the City is not empowered to effect the removal of such projections, or if LACMTA otherwise elects, LACMTA will make its own arrangements for removal of such projections. The City will cooperate with LACMTA to minimize the cost to eliminate, move, remove or otherwise terminate projections.
4.5 City Communications Facilities. The relocation of any conflicting underground City communications facilities shall be done by employing intercept-style manholes at both ends of every conflicting communications conduit segment in question, directly on the alignment of existing conduit segment(s), and beyond the area of the conflicting communications facilities.
EXECUTION VERSION
37 5. PREPARATION AND SUBMISSION OF DESIGN DOCUMENTATION The City shall provide engineering review approval of up to four submittals including and not limited to the following:
1. Advanced Conceptual Engineering (ACE) - 30% design;
2. Preliminary Engineering and Draft Specifications (PE) – 60% design; and
3. Final Designs, Plans and Specifications (FD) - 100% design.
These submittals will be made by LACMTA's Contractor. Upon approval by the City, the City shall issue permits authorizing work on the City Portion, as appropriate. The City review period, from receipt of each submittal to transmittal of comments, shall not exceed thirty (30) calendar days provided the submittals include all information deemed necessary by the City. Within seven (7) calendar days after receipt of a design submittal, the City shall inform LACMTA if the submittal lacks necessary information to enable the City to review the submittal, and shall return the submittal to LACMTA, together with an identification of the missing information. LACMTA's Contractor shall address all the City review comments with each re-submittal.
EXECUTION VERSION
38 EXHIBIT 6 – LACMTA SUBMITTAL REVIEW PROCEDURE
1. GENERAL
1.1 The Parties agree that individuals undertaking Design review on behalf of the City under this Agreement shall, where reasonably possible, be consistent throughout the Design Phase. The City will ensure that any individual undertaking Design review on behalf of the City under this agreement has the appropriate qualifications, capability and experience to perform the review.
1.2 The procedures set out in this EXHIBIT 6 will govern all LACMTA Submittals to the City pursuant to this Agreement.
2. REVIEW PROCEDURE
2.1 The City shall notify LACMTA and the relevant LACMTA Contractor (if applicable) within 10 days of receipt of a LACMTA Submittal from LACMTA or a LACMTA Contractor if it considers (acting reasonably) that the LACMTA Submittal submitted is incomplete or deficient for the City's review purposes and requires resubmission, together with a detailed description of the information that it deems to be missing or deficient. If no such Notice is delivered by the City within such ten-day period, the LACMTA Submittal shall be deemed complete and acceptable for review purposes.
2.2 The City shall (or must require that the relevant City Contractor) within the LACMTA Submittal Review Period:
(a) review the LACMTA Submittal; and
(b) notify LACMTA and the relevant LACMTA Contractor (if applicable) that it:
(i) approves the LACMTA Submittal; or
(ii) rejects the LACMTA Submittal with detailed reasons including all Compliance Comments.
2.3 All Compliance Comments shall be transmitted in the form of a comment matrix, through the LACMTA 'Quality Management Oversight' database or through another equivalent format (in each case, as notified and provided by LACMTA) and shall be accompanied by an annotated LACMTA Submittal (if applicable). Where a database is used for transmission of comments, LACMTA will provide the City (and the relevant City Contractors) with user accounts and training for this purpose.
2.4 If no comments are received within the LACMTA Submittal Review Period, the LACMTA Submittal shall be deemed complete and approved by the City.
2.5 The Parties acknowledge that the LACMTA Submittal review process set out in this EXHIBIT 6 is intended to facilitate the LACMTA Submittal review process and be consistent (with necessary changes) with the LACMTA Guidelines on Enhanced Partnered Coordination and shall supersede the submittal / shop drawing review schedules specified in any standards referenced in this Agreement.
3. GROUNDS FOR OBJECTION OR COMMENT
3.1 The City will only be entitled to reject a LACMTA Submittal under Article 2 (Review Procedure) of this EXHIBIT 6 if such LACMTA Submittal fails to comply with the requirements set out in this Agreement, as specified in the City's Compliance Comments.
3.2 If the City rejects a LACMTA Submittal in accordance with Article 2 (Review Procedure) of this EXHIBIT 6, LACMTA must (or must require that the relevant LACMTA Contractor):
(a) address the Compliance Comments and re-submit the LACMTA Submittal for review; or
EXECUTION VERSION
39 (b) notify the City that it does not agree with the grounds for rejection. If LACMTA does not agree with the grounds for rejection on the basis that such grounds would constitute a Betterment, Article 5 (Betterments) of this Agreement shall apply.
3.3 The City agrees that during the Final Design stage, it shall not raise any new issues, or make any comments, which are inconsistent with its comments on earlier submittals, or with any changes already agreed to by the City.
3.4 The City's approval of the Final Design for the City Portion or any Rearrangement will not be withheld if the submittal is consistent with the most recent earlier submittal for the City Portion or such Rearrangement, modified as appropriate to respond to the City's Compliance Comments on such earlier submittal (to the extent such comments were made in accordance with the provisions of this Agreement) and to reflect any subsequent changes agreed to by the City and LACMTA.
4. NO COMMENCEMENT OF CONSTRUCTION WORK
LACMTA and the City must not commence or permit the commencement of any Construction work that is the subject of, governed by or dependent upon a LACMTA Submittal until LACMTA (or a LACMTA Contractor) has submitted the relevant LACMTA Submittal to the City in accordance with this EXHIBIT 6 and:
(a) within seven days of receiving a Notice from LACMTA (or the relevant LACMTA Contractor (as applicable)) that the City failed to respond to a LACMTA Submittal within the relevant LACMTA Submittal Review Period, the City fails to respond to such LACMTA Submittal; or (b) the City has notified LACMTA (and the relevant LACMTA Contractor (as applicable)) that it approves such LACMTA Submittal.
EXECUTION VERSION
40 EXHIBIT 7 – CONSTRUCTION REQUIREMENTS
1. GENERAL REQUIREMENTS
(a) Any Construction work for any Rearrangements or the City Portion to be performed within the City Rights-of-Way shall be performed in accordance with:
(i) the approved Final Design (including any changes agreed under Section 3.6 (Changes to Design) of this Agreement;
(ii) all Governmental Approvals, Applicable Law, and in the case of any Rearrangements, the City Standards (subject to Section 3.5 (City Standards) of this Agreement). (iii) the schedule for such Construction work agreed under the relevant Work Order (if applicable) or otherwise under the Project Schedule; and
(iv) all other Construction requirements set out in this EXHIBIT 7 or otherwise under the provisions of this Agreement and any relevant Work Order (if applicable). (b) In conjunction with its contractors, LACMTA will be responsible for conducting public outreach to provide proper notifications to the affected communities prior to and during Construction complying with the approved environmental documents.
2. EXTENDED WORKING HOURS
The Parties acknowledge that extended working hours (beyond the windows contemplated in the City's ordinances limiting work hours and including holiday or weekend working) may be necessary to facilitate Construction and operation of the City Portion. The Parties will agree such working hours following joint review of the schedule and activities to be carried out by LACMTA and the LACMTA Contractors. If a change is required to the agreed working hours, the Parties will negotiate in good faith to agree such change.
3. HAULAGE ROUTES
The Parties will agree haulage routes reasonably necessary to facilitate Construction and operation of the City Portion. If a change is required to an agreed haulage route, the Parties will negotiate in good faith to agree such change.
4. INTERRUPTIONS
(a) The Parties acknowledge that certain components of the work in the City Portion will require interruption of the City services. The Parties will agree a plan for any such interruptions and, subject to City approval of the plan, the City consents to scheduled interruption of services deemed necessary by LACMTA. LACMTA must provide the City prior Notice before the City services are interrupted. (b) LACMTA will notify affected parties, including residents, businesses, Council office, and other elected officials in advance of scheduled interruptions and will cooperate with the City to minimize interruption of the City services and resulting disruptions, provided that notification may be delayed where LACMTA is required to interrupt services in the event of emergency. Where the City determines that Temporary Facilities are necessary and appropriate, LACMTA shall accommodate this request.
5. CONSTRUCTION STAGING PLANS
5.1 General Requirements
(a) LACMTA or the LACMTA Contractors shall develop a construction staging plan ("Construction Staging Plan") for any Construction work to be performed within the City Rights-of-Way.
EXECUTION VERSION
41 (b) The City acknowledges that the Construction work to be performed by LACMTA or the LACMTA Contractors within the City Rights-of-Way is intended to be performed progressively under multiple contractual packages and the Construction Staging Plans described in this EXHIBIT 7 may, therefore, be prepared for each contractual package or for a portion of such Construction work. (c) A Construction Staging Plan shall provide, among other things, for:
(i) the handling of vehicular and pedestrian traffic on streets adjacent to the Construction with the Construction phasing showing street closures, detours, warning devices and other pertinent information specified on the plan (worksite traffic control plans); (ii) actions to maintain access to businesses adjacent to the Construction areas, as possible, and actions to ensure safe access and circulation for pedestrians and vehicular traffic as described in the worksite traffic control plans;
(iii) elements of public awareness as well as mechanisms to assist affected parties in complaint resolutions.
(d) The City understands that LACMTA requires flexibility in the execution of Construction phasing and traffic management planning during Construction, and agrees to impose only the minimum requirements for traffic management planning and Construction sequencing that are necessary in order to provide for public health and safety (including pedestrian and vehicular safety), and functionality (including public and business access and circulation).
5.2 Specific Requirements – Street Lighting Systems
LACMTA or the LACMTA Contractors shall develop street lighting Construction Staging Plans, which shall provide, among other things, for:
(a) the safety and security at night time of vehicular and pedestrian traffic on streets adjacent to Construction, with the street lighting Construction Staging Plans showing street closures, detours, lighting devices, circuit and power service connections, and other pertinent information; and (b) lighting levels to maintain safe access to businesses adjacent to the Construction areas, and to ensure safe circulation for pedestrian and vehicular traffic.
5.3 Specific Requirements – Traffic Management Plan
(a) LACMTA and the City may agree that a street, highway, bridge or the other City Rights-of-Way shall be temporarily or permanently closed for the necessity and convenience of the LA River Path Project.
If agreed to, a Traffic Management Plan must be developed and submitted by LACMTA or the LACMTA Contractors, which shall provide, among other things, for worksite traffic control plans, traffic circulation plans, and temporary traffic signal plans.
(b) WATCH Manual page references shall be acceptable as a form of traffic control plans and submittal. (c) The City’s traffic department staff involved in the review and approval process shall facilitate the City’s internal approvals regarding peak hour exemptions, holiday moratoriums, changes to existing parking restrictions in the work zone, night work, and noise variances.
5.4 Review and Implementation of Construction Staging Plans (a) LACMTA (or the relevant LACMTA Contractor (as applicable)) must submit each Construction Staging Plan to the City for review in accordance with EXHIBIT 6 (LACMTA Submittal Review Procedure).
EXECUTION VERSION
42 (b) LACMTA (or the relevant LACMTA Contractor (as applicable)) may update a Construction Staging Plan after it has been approved by the City and must promptly submit each updated Construction Staging Plan to the City for review in accordance with EXHIBIT 6 (LACMTA Submittal Review Procedure).
(c) LACMTA must, and must ensure that the LACMTA Contractors, implement and comply with each Construction Staging Plan which has been submitted to the City and which has been either approved (or deemed approved) under EXHIBIT 6 (LACMTA Submittal Review Procedure).
6. WORK IN STREETS
6.1 General Requirements
(a) The Parties acknowledge that the City has the duties of supervising, maintaining and controlling streets, highways, and the other City Rights-of-Way. Accordingly, LACMTA shall give the City 10 days' advance written Notice where Construction work is to be performed in the City Rights-of-Way. (b) LACMTA and the LACMTA Contractors shall take all appropriate actions to ensure safe performance of the Construction work within the City Rights-of-Way. The City reserves the right to stop work if public health and safety is or will be comprised by such work. (c) If LACMTA or a LACMTA Contractor fails to perform any Construction work within the City Rights-ofWay in accordance with the Final Design and/or Construction Staging Plans approved (or deemed approved) by the City under this Agreement then upon written Notice of the non-compliance from the City, LACMTA must cure or must ensure that the LACMTA Contractor cures, the non-compliance.
6.2 Traffic Control and Lighting
LACMTA must provide the City prior Notice before conducting the Traffic Control and Lighting Work that will result in an interruption to service of traffic control devices or lighting systems and LACMTA shall cooperate with the City to minimize such interruption.
6.3 City Communication Facilities
Construction of replacement conduit segments, inner ducts, and manholes that bypass the conflicting conduit segments shall be done prior to relocation of the communications cables. In addition, relocation/installation work of communications cables that carry live production traffic shall be scheduled during a maintenance window, in order to minimize system downtime and minimize the City network traffic disruption.
7. TEMPORARY AND PERMANENT STREET CLOSURES
Upon notification of a proposed temporary or permanent street closure, the City, as requested by LACMTA, shall initiate the appropriate proceedings and shall establish the necessary conditions for the closures.
8. TEMPORARY FACILITIES
8.1 LACMTA Facilities
Temporary Facilities may be necessary to facilitate Construction of the LA River Path Project (including the City Portion and Rearrangements). LACMTA or its designee may use, without cost, lands owned or controlled by the City for any Construction related purpose, including, but not limited to, the erection and use of Temporary Facilities thereon; provided that, the City shall first approve in writing the availability, location and duration of the Temporary Facilities, with the City’s approval not to be unreasonably withheld. Upon completion of the related Construction and LACMTA’s determination that the Temporary Facilities no longer are needed, LACMTA shall remove all Temporary Facilities and restore the area as nearly as practicable to its original condition unless LACMTA and the City agree to some other arrangement.
EXECUTION VERSION
43 8.2 City Facilities
In the event that Temporary Facilities are necessary to effect the City Portion or a Rearrangement being constructed by the City, the City or its designee may use, without cost, lands owned or controlled by LACMTA for the purpose of using or erecting Temporary Facilities thereon; provided that, LACMTA shall first approve in writing the availability, location and duration of the Temporary Facilities. Upon completion of the City Portion or the Rearrangement in its permanent location, the City shall remove all Temporary Facilities and restore the area as nearly as practicable to its original condition unless the City and LACMTA agree to some other arrangement.
9. UNDERGROUND SERVICE ALERT
Prior to any commencement of underground work by either Party, an "Underground Service Alert" shall be notified in accordance with California law by such Party or its contractor.
10. ENVIRONMENTAL CONTROLS
All Construction work performed by the City or City Contractors pursuant to this Agreement shall comply with the environmental controls established by LACMTA in the LACMTA Contracts, including construction noise and vibration control, pollution controls, archaeological coordination and paleontological coordination.
11. SALVAGED MATERIALS
The Parties may agree to salvage certain materials belonging to the City during the course of work on the City Portion or Rearrangement. If materials belonging to the City are to be reused, LACMTA’s contractor shall exercise reasonable care in removal and storage of such materials. Materials shall be inspected and stored until such time as the progress of work allows the reinstallation of such materials. Materials that are not to be reused in the City Portion or a Rearrangement, but which the City desires to reclaim, may be recovered by the City staff within an agreed time frame or shall be delivered by LACMTA to a location proximate to the salvage site and suitable to the City. Subject to acceptance by LACMTA, if materials removed by LACMTA are not reused and are not desired by the City, such materials shall become the property of LACMTA.
12. AS-BUILT DRAWINGS
12.1 LACMTA and the City shall each maintain a set of "as-built" plans of the City Portion and Rearrangements performed by LACMTA and the City during Construction. Red line mark-ups for temporary lighting systems, traffic signal systems, and other the City Facilities shall be submitted to the City and LACMTA within 15 days after completion of Construction. All Design changes shall be documented on RFI/RFC forms. Upon completion of the City Portion or Rearrangement work, the Party that performed the work shall furnish the other Party with reproducible "as-built" drawings showing all Replacement Facilities installed by the performing Party, within 75 days after completion of such work for each set of plans.
12.2 LACMTA and the City agree to provide the other with electronic files and full size paper hard copies of those final contract documents that they have prepared, or caused to be prepared, to govern the Construction of the City Portion or a given Rearrangement by their respective contractor so that each Party may compile a complete set of contract documents. Each Party shall prepare or cause to be prepared the contract documents for which it is responsible.
EXECUTION VERSION
44 EXHIBIT 8 – INSPECTION AND ACCEPTANCE PROCEDURE
1. INSPECTION DURING CONSTRUCTION
1.1 Each Party shall give the other Party at least 10 days' Notice prior to commencing work on the City Portion or a Rearrangement for which it is responsible to enable such other Party to make arrangements for inspection of such work.
1.2 Any Construction of the City Portion or Rearrangements performed by LACMTA (directly or through the LACMTA Contractors) under this Agreement shall be subject to inspection and final acceptance by the City provided that any such inspection carried out by the City (directly or through a City Contractor) shall be solely for the purposes of assessing whether the Construction work conforms with the requirements under this Agreement. Such inspection services shall be authorized by LACMTA under a Work Order issued in accordance with Section 2.3 (Work Orders) of this Agreement. If City inspection services are authorized under a Work Order, the City shall (or must require that the relevant City Contractor):
(a) provide inspectors at LACMTA's cost as needed to comply with the schedule for such inspections set out in the Work Order;
(b) cooperate and coordinate with the LACMTA Representative and the LACMTA Contractors to observe and inspect the City Portion, any Rearrangements, or new City Facilities so that upon completion of Construction, the City will have a basis for acceptance of the work; (c) ensure that all City inspectors submit copies of daily written inspection reports to LACMTA, each within 48 hours after such inspection; and
(d) remove and replace any inspector seven days after LACMTA's reasonable written request.
1.3 Any Construction work performed by the City or a City Contractor pursuant to a Work Order agreed under the provisions of this Agreement shall be subject to LACMTA inspection and final acceptance.
1.4 If, in carrying out an inspection, a Party identifies Non-conforming Work, the Party must provide the other Party with immediate Notice with detailed reasons (and in any event, no later than 48 hours from discovery).
The Party that performed the relevant work must rectify any Non-conforming Work.
1.5 The City shall not have any inspection rights with respect to any structures or physical elements that are owned and maintained by LACMTA, a LACMTA Contractor, or a tenant or licensee of LACMTA.
2. ACCEPTANCE PROCEDURE
2.1 Promptly following completion of the City Portion or any Rearrangement, the Party that performed the Construction shall notify the other Party that the City Portion or Rearrangement is ready for final inspection.
2.2 The final inspection shall be carried out within 10 days of receipt of a Notice under Section 2.1 (Acceptance Procedure) and within five days of the completion of the final inspection, the inspecting Party shall notify the other Party of any Non-conforming Work. If no Notice is received, the relevant work will be deemed accepted by the inspecting Party.
2.3 The City shall accept:
(a) the City Portion if it is in conformance with the LARP Basis of Design and the other requirements under this Agreement applicable to the City Portion; and (b) all Rearrangements that are in conformance with the City Standards.
EXECUTION VERSION
45 3. INDEPENDENT ENGINEER
The City acknowledges and agrees that LACMTA may delegate its inspection and acceptance rights under this EXHIBIT 8 to an independent engineer appointed under the provisions of any LACMTA Contract.
EXECUTION VERSION
46 EXHIBIT 9 – NOT USED
EXECUTION VERSION
47 EXHIBIT 10 – FORMS
Part A: Form 60
Name of Offeror/Contractor/Utility Company (Name of
Preparer):
Scope of Work/Deliverable (provide expanded
description on Form 60 page 2)
Home office address
Division(s) and Locations where Work is to be performed LACMTA Solicitation/Proposal/Contract Number/Work Order/Change Notice and/or Change
Order Reference Number(s):
NOTE: For proper calculations of cost elements link additional sheets to this summary page.
1. Direct Labor Est.
Hours
Rate Per
Hour
Est. Cost TOTAL
2. 0.00 $0.00 $0.00
3. 0.00 $0.00 $0.00
4. 0.00 $0.00 $0.00
5. TOTAL DIRECT LABOR HOURS 0.00 TOTAL DIRECT LABOR $0.00
6. Labor Overhead (O/H) O/H Rate x Base Est. Cost
7. 0% $0.00
8. TOTAL LABOR OVERHEAD $0.00
9. Direct Material Est. Cost
10. a. Purchase Parts $0.00
11. b. Subcontracted items $0.00
12. c. Other $0.00
13. TOTAL DIRECT MATERIAL $0.00
14. Equipment Unit Cost Est. Cost
15. $0.00 $0.00
16. $0.00 $0.00
17. TOTAL EQUIPMENT $0.00
18. Subcontractors* Est. Cost
19. $0.00
20. $0.00
21. $0.00
22. TOTAL SUBCONTRACTORS $0.00
23. TOTAL BURDENED COST (add lines 5, 8, 13, 17 and 22) $0.00
24. Other Direct Costs Est. Cost
25. $0.00
26. $0.00
27. $0.00
28. TOTAL OTHER DIRECT COSTS $0.00
29. Travel Est. Cost
30. a. Transportation $0.00
31. b. Per Diem or Subsistence $0.00
32. TOTAL TRAVEL $0.00
33. General and Administrative
Expense
Rate % % x Line 23
34. 0% $0.00
35. TOTAL GENERAL AND ADMINISTRATIVE EXPENSE $0.00
36. TOTAL ESTIMATED COSTS (Total Lines 23, 28, 32 and 35) $0.00
37. Profit/Fee Total Labor and
Overhead
(line 5 + line 8)
Rate % % x Total Labor and Overhead
38. ` 0% $0.00
39. TOTAL FEE $0.00
40. TOTAL ESTIMATED PRICE (Total of Lines 36 and 39) $0.00
EXECUTION VERSION
48 41. Milestone
/Task
Number
Milestones/Tasks Hours Completion
Date
Payment Amount
42. $0.00
43. $0.00
44. $0.00
45. TOTAL MILESTONES/TASKS (Must equal line 40) $0.00
* Attach Form 60 for all proposed subcontractors performing work under Form 60 Prime Contractor where applicable. Transfer Est. Cost to this Section.
46. Fill in applicable sections only
47. Has any Agency of the United States Government, State government, local public agency or the Los Angeles County Metropolitan Transportation Authority (LACMTA) performed any review of your account or records, overhead rates and general and administrative rates in connection with any public prime contract or subcontract within the past twelve months? Yes No If yes, when? Reference Contract No.
48.a. Agency Name/Address 48.b. Individual to contact/Telephone Number
49. As required by LACMTA, firms not audited, as described above, shall submit financial data and calculations in sufficient detail to support all proposed direct costs and subcontractor costs.
50. The proposal reflects our estimates and/or actual costs as of the date and by submitting this proposal, Proposer/Consultant grants to LACMTA Contracting Officer and authorized representative(s) the right to examine, at any time before award, those records, which include books, documents, accounting procedures and practices, and other supporting data, regardless of type and form or whether such supporting information is specifically referenced or included in the proposal as the basis for pricing, that will permit an adequate evaluation of such cost or pricing data, along with the computations and projections used therein, for the purpose of verifying the cost or pricing data submitted. This right may also be exercised in connection with any negotiations/discussions prior to contract award or execution of contract modification.
51. CERTIFICATE
The labor rates and overhead costs are current and other estimated costs have been determined by generally accepted accounting principles. Proposer/Consultant represents: (a) that it has , has not , employed or retained any company or person (other than a full time bona fide employee working solely for the Proposer/Consultant) to solicit or secure a contract, and (b) that it has , has not , paid or agreed to pay to any company or person (other than a full time bona fide employee working solely for the Proposer/Consultant) any fee, commission, percentage or brokerage fee, contingent upon or resulting from the award of this contract, and agrees to information relating to (a) and (b) above, as requested by the Contracting Officer.
52. CERTIFICATE OF CURRENT COST OR PRICING DATA
This is to certify that, to the best of my knowledge and belief, the cost or pricing data (as defined in Section 2.101 of the Federal Acquisition Regulations (FAR) and required under subsection 15.403-4) submitted, either actually or by specific identification in writing, to LACMTA's Contracting Officer or to LACMTA's Contracting Officer's representative in support of ______________________* are accurate, complete and current as of ________________________**. This certification includes the cost or pricing data supporting any advance agreements and forward pricing rate agreements between the Proposer/Consultant/Contractor and LACMTA that are a part of the proposal.
53. This proposal as submitted represents our best estimates and/or actual costs as of this date.
54. Type Name and Title of Authorized Representative Signature Date***
55. * Identify the proposal, quotation, request for price adjustment, or other submission involved, giving appropriate identifying number (e.g. Information For Bid No., Work Order No., Request for Proposal No., Change Order No., Modification No., etc.)
56. ** Insert the day, month and year when price negotiations were concluded and price agreement was reached.
57. *** Insert the day, month and year of signing (i.e., When price negotiations were concluded and mutual agreement was reached on contract price).
Form 60 Attachments (Applicable if Box is checked)
Scope of Work Expanded Description for which Cost Estimate is based on:
1 2
3 EXECUTION VERSION
49 4
Schedule in which Scope of Work is based on:
1 2
3 4
The Non-Disclosure Agreement (NDA) provisions (as set out in the NDA between City and LACMTA) are applicable to the following Form 60-specific items:
1 2
3 4
FORM 60 IS SIGNED AND EXECUTED WITH THE FOLLOWING ADDITIONAL ASSUMPTIONS:
1 CITY AS-BUILT RESEARCH BY CITY FOR METRO PROJECTS IN THE PLANNING PHASE SHALL BE
TREATED AS PART OF LABOR OVERHEAD PORTION OF COST
EXECUTION VERSION
50 Part B: LACMTA “Potential Notice of Betterment” Form The Word file of the latest version of this form is available upon request from LACMTA’s assigned Third Party Administration (TPA) Representative.
Alternatively, a written memorandum on City’s letterhead may be submitted to the TPA Representative with the following required information:
1. Scope: Describe in detail with reference to applicable sections of this Master Cooperative Agreement, LARP Basis of Design (as applicable), City Standards (as applicable), and Applicable Law including any relevant codes.
Note the following common reasons for denial:
(a) Scope is not per agreed City Standards (in the case of a Rearrangement) or the LARP Basis of Design (in the case of the City Portion) or a legal requirement. (b) Scope added after establishment of the applicable Basis of Design. (c) Scope is not endorsed by LACMTA as a LA River Path Project requirement. (d) Scope is not identified in the environmental documents.
2. Detailed Justification: Why does City believe the scope is not a Betterment? Cite specific prior cases, exceptions under Applicable Law including any relevant codes, project-specific reasons, etc.
3. Cost Estimate: Use Metro Form 60 to provide a detailed cost breakdown as proposed for the Betterment in question.
4. City’s Agreement: City agrees that scope is a Betterment and provides separate funding. The source of funds must be specified, City approved financial documents supporting validity and timing of funds must be provided, and a determination regarding whether City will commit to provide adequate front funding for cash-flow must be made.
5. Signatures: The form shall provide a signature block with 2 signatures from City Representatives agreeing to the information provided.
6. LACMTA Signatures: The form signature block area shall provide for LACMTA to countersign with 2 LACMTA Representative signatures with checkboxes indicating whether the Betterment proposal is denied or approved.
EXECUTION VERSION
51 EXHIBIT 11– LARP BASIS OF DESIGN (INCLUDING DESIGN CRITERIA)