MASTER COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE PHASE 2B BY AND BETWEEN THE SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY AND

Transcription

1 DRAFT 05/02/18 MASTER COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE PHASE 2B BY AND BETWEEN THE SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY AND THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY

2 TABLE OF CONTENTS ARTICLE 1 - SCOPE AND DEFINITIONS Scope of Agreement Duration of the Agreement Definitions General Approach to Construction of the Project SCRRA Participation Generally SCRRA Jurisdiction within the Right-of-Way ARTICLE 2 - DESIGN AND CONSTRUCTION OF THE PROJECT AND REVIEW Engineering and Construction Coordination Review of Design/Build Procurement Documents Design Criteria and Standards Review of the Design/Build Contractor Submittals Work to be Performed by SCRRA Project Management Plan ( PMP ) Hazardous Materials Protected Cultural Materials "As-Built" Drawings and Handover Documentation of Freight Trackway Rearrangements Disposition of Salvaged Materials Construction Authority Procurement and Delivery of Spare Parts ARTICLE 3 - CONSTRUCTION AUTHORITY ACCESS Construction Authority Access to Right-of-Way ARTICLE 4 - WORK AUTHORIZATION AND BILLINGS i-

3 4.0 Work Authorizations Work Performed by SCRRA Issuance of Work Authorizations, Cost Management and Not-to-Exceed Amount Work Authorization Changes Termination of Work Authorizations Preparation of Billings Procedures for Payments to SCRRA by Construction Authority Audit and Inspection ARTICLE 5 - DISPUTES RESOLUTION Disputes Dispute Notice Provisional Remedies Discussion and Mediation Institution of Legal Actions Continuing Performance Implementation Cooperation ARTICLE 6 - BETTERMENTS Betterments Generally Non-Betterment Items Payments for Betterments ARTICLE 7 - FREIGHT TRACKWAY REARRANGEMENT General Dispatching and Train Operations Project Activities with Potential to Foul or Obstruct the Freight Trackway ii-

4 7.3 Roadway Worker On Track Safety Operational Inspection and Maintenance of the Freight Trackway Right of Entry Process Rearrangement of Freight Trackway Station Operations ARTICLE 8 - TESTING AND START-UP General Contractual Testing Pre-Turnback Operations SCRRA Addition of Punch List Items Turnback of the Freight Trackway ARTICLE 9 - INDEMNIFICATION AND WARRANTIES Indemnification of SCRRA by Construction Authority Indemnification of Construction Authority by SCRRA Indemnification of Both SCRRA and Construction Authority Insurance Program Warranties Contractor Bonds ARTICLE 10 - MISCELLANEOUS PROVISIONS Approvals Further Documents... Error! Bookmark not defined Counterparts Survival of Rights Severability Notification or Notices iii-

5 10.6 Alternate Notice Statutory References Construction Section Headings Governing Law Time of the Essence Legal Rights Bonds/Fees Further Actions Force Majeure Third-Party Beneficiaries Delegation to Design/Build Contractor Exhibits Entire Agreement Damage to Property Authority of Parties Binding Obligation Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Project Description Work Authorization Form Additional Technical Terms SCRRA Design Criteria and Standards / SCRRA Guidelines and Manuals SCRRA Maintenance Instructions Positive Train Control Implementation & Exclusive Work Windows -iv-

6 MASTER COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE PHASE 2B BY AND BETWEEN THE SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY AND THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY THIS MASTER COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE, dated [ ], 2018 (henceforth referred to as the Agreement ) is made by and between the Metro Gold Line Foothill Extension Construction Authority, a public entity of the State of California ( Construction Authority ), and the Southern California Regional Rail Authority, a Joint Powers Authority existing under the laws of the State of California ( SCRRA ). RECITALS WHEREAS, Construction Authority is a public entity created by the California State Legislature pursuant to Section , et seq. of the Public Utilities Code ( PUC ) for the purpose of completing the Los Angeles-Pasadena Foothill Extension Gold Line light rail project, formerly known as the Los Angeles-Pasadena Metro Blue Line, extending from Union Station in the City of Los Angeles to Sierra Madre Villa Boulevard in the City of Pasadena and any mass transit guideway that may be planned east of Sierra Madre Villa Boulevard along the rail right-of-way extending to the City of Montclair, including the design and construction thereof; Phase I of which is defined as the approximately 13.7 mile line from Union Station in the City of Los Angeles to Sierra Madre Villa Boulevard in the City of Pasadena ( Phase I ), and Phase II of which is defined as any extension east of Sierra Madre Villa Boulevard to the City of Montclair, a distance of approximately 24 miles ( Phase II ); WHEREAS, Phase I has been in operation since July 2003; WHEREAS, Phase II has been planned for construction in two phases or segments, from Pasadena to Azusa ( Phase 2A ) and from Azusa to Montclair ( Phase 2B ); WHEREAS, Phase 2A has been in operation since March of 2016; WHEREAS, the Project for purposes of this Agreement is Phase 2B; WHEREAS, upon completion of Design and Construction, the Project will be turned over to the Los Angeles County Metropolitan Transportation Authority ( LACMTA ) for its use and operation as part of its overall transit system; -1-

7 WHEREAS, the Project s Right-of-Way in Los Angeles County within the Pasadena Subdivision is owned by Construction Authority in trust for the LACMTA until completion of Project; WHEREAS, SCRRA is a five-county joint powers authority, created pursuant to California Public Utilities Code Section and California Government Code Section 6500 et seq., to maintain, administer, and operate the METROLINK commuter train system on railroad rights-of-way owned by the five-county member agencies, or in the case of the Project on the Pasadena Subdivision right-of-way owned by the Construction Authority. The five-county member agencies are the following: LACMTA, Ventura County Transportation Commission ( VCTC ), Orange County Transportation Authority ( OCTA ), San Bernardino County Transportation Authority ( SBCTA ), and Riverside County Transportation Commission ( RCTC ); WHEREAS, SCRRA has an agreement with LACMTA for SCRRA to operate, maintain, dispatch and perform other functions related to the Freight Trackway, as those terms are defined herein; WHEREAS, Rearrangement of the Freight Trackway is necessary for completion of the Project; WHEREAS, Construction Authority and SCRRA desire to cooperate to ensure the Project is successful and meets the requirements of the Parties as set forth herein. NOW THEREFORE, the Parties agree as follows: 1.0 Scope of Agreement ARTICLE 1 - SCOPE AND DEFINITIONS The foregoing recitals are incorporated into this Agreement by this reference. This Agreement specifies the procedures that Construction Authority and SCRRA will follow in implementing their respective roles and responsibilities in the Design and Construction of the Project. A brief summary of the Project is attached as Exhibit A. Both Construction Authority and SCRRA agree that each will cooperate and coordinate with the other in all activities as set forth herein. 1.1 Duration of the Agreement Unless extended in writing by the mutual agreement of the Parties, this Agreement shall automatically terminate 180 Days following Construction Authority s written notice to SCRRA that: (a) all Project Construction has been completed and that all SCRRA Construction punch list items have been completed, or (b) Construction Authority has otherwise determined to terminate this Agreement. Upon termination, Construction Authority shall reimburse SCRRA for all Costs incurred prior to the notice of termination to the extent SCRRA is entitled to such reimbursement pursuant to Article 4 of this Agreement. In the event this Agreement is terminated prior to the completion of all Project Construction within SCRRA s jurisdiction, such Construction shall thereafter be subject to SCRRA's usual and customary permitting procedures and processes applicable to other contractors; except that, such permitting procedures and processes shall not apply if Construction Authority otherwise is exempted therefrom. -2-

8 1.2 Definitions For the purpose of this Agreement, the following terms shall have the meanings set forth below: Advanced Conceptual Engineering (ACE) means that certain conceptual engineering approved by the Construction Authority s Board of Directors on September 26, 2016 as revised by the verification set of such conceptual engineering issued on June 15, Alignment Design/Build Contract means, in the case of multiple Design/Build Contracts for the Project, the primary Design/Build Contract for the Project, exclusive of any components that are the subject of other Design/Build Contracts. Alignment Design/Build Contractor means the Design/Build Contractor awarded the Alignment Design/Build Contract. Approval means written approval by SCRRA Representative or Construction Authority Representative, whichever is applicable. Approval shall not, unless specifically indicated in writing by SCRRA Representative or Construction Authority Representative, whichever is granting the Approval, constitute a waiver of any standard, code, or other requirement in this Agreement. Baseline Documents shall mean the Conformed Contract Documents, and any change orders to the Conformed Contract Documents. Betterment means, except as set forth in Section 6.1, a change requested by SCRRA that will improve the level of service and/or capacity, capability, appearance, efficiency or function over that which is provided by the Baseline Documents. BNSF means Burlington Northern Santa Fe railway. Conformed Contract Documents means the final executed contract documents for Construction and/or Design, which includes, without limitation, all of the following documents: the adopted Final Environmental Impact Report, the Advanced Conceptual Engineering, the performance specifications, the prescriptive requirements of SCRRA Design Criteria and Standards, and the Design/Build Contractor s proposal as may be amended by the Design/Build Contractor s best and final offer. Construction means the work of removal, demolition, replacement, alteration, realignment, building, and fabrication of all new fixed facilities, and procurement and installation of systems and equipment, that are necessary to operate and maintain the Project in accordance with the Baseline Documents. Construction Authority has the meaning set forth in the Recitals to this Agreement. Construction Authority Designee shall mean an employee of one of the contractors or consultants working for Construction Authority on the Project, which employee is designated by Construction Authority or the Alignment Design/Build Contractor for the performance of certain duties as described herein. -3-

9 Construction Authority Representative means the Chief Executive Officer of Construction Authority, or his/her authorized representative (as designated in a writing executed by the Chief Executive Officer). The Construction Authority Representative has the authority to, including: conduct meetings and reviews, and approve actions as required by this Agreement. Construction Inspection means the process and procedure used by Construction Authority to determine that the Project is being, and has been, constructed and tested in accordance with the terms and conditions of the Design/Build Contract. Construction Index means the index of changes in material prices, wage rates, and supplements combined, excluding fuel as reported in the Association of American Railroads Cost Index, Quarterly Indexes of Chare Out Prices and Wage Rates (West). Construction Period means the duration from when Construction Authority assumes responsibility for the Freight Trackway until Substantial Completion of the Project. Costs means all allowable Direct Costs and Indirect Costs for work performed by SCRRA pursuant to Section 4.1 [Work Performed SCRRA], or work performed by Construction Authority pursuant to Section 6.0 [Betterments Generally]. Current Scope of the Project means the Project as described in the Final Environmental Impact Report (FEIR). Day(s) means calendar days, including Saturdays, Sundays, and legal holidays. See also definition of Working Days. Design means that engineering, architectural and other design work and the resulting maps, plans, specifications, special provisions, drawings, calculations, computer software, and estimates which are needed to construct the Project. Design/Build Contract means the agreement between Construction Authority and a contractor to Design, perform Construction, fabricate, install, and prepare for operations all or any portion of the Project (less the rail cars and other equipment provided by LACMTA). Design/Build Contractor (DB Contractor) means the contractor(s) and/or team(s) of consultants and contractors that are awarded the Design/Build Contract(s) by Construction Authority. Design/Build Procurement Documents means the entire package of documents to be sent to potential proposers that may be interested in submitting a proposal for award of a Design/Build Contract, including: requests for qualifications; cooperative agreements with the cities, utilities and SCRRA; SBE program; bonding requirements; change order & payment provisions; bidding and proposal requirements; environmental mitigation and requirements; scope of work; technical drawings and specifications; Design and Construction document reviews, procedures & approvals; quality control; safety program; and Construction procedures. Design Review means the process of critical evaluation by Construction Authority, SCRRA and others as specified in this Agreement, and any additional review specified by Construction -4-

10 Authority, of plans and specifications that are developed by consultants and/or the Design/Build Contractor for the Construction of the Project. Direct Costs means labor costs and costs of purchasing equipment and/or materials, without markup or overhead of any kind. Dispute has the meaning set forth in Article 5.0. Effective Date shall mean the date set forth in the preamble to this Agreement. Exclusive Work Window shall mean a period of time for the performance of work, separate from and in addition to the work windows and work periods described in Section 7.6, during which no train service of any kind shall occur. Facility means real or personal property now or in the future to be located within the Right-of- Way as part of the Project, including roadways, stations, parking, pipes, mains, services, meters, regulators, and structures, and any equipment, apparatus and/or structure appurtenant thereto or associated therewith. Final Design means the technical engineering work required of the Design/Build Contractor to complete the engineering necessary to sign and seal drawings and specifications. Final Environmental Impact Report (FEIR) means the Final Environmental Impact Report that analyzes and evaluates the environmental impacts of the Project and recommends measures to mitigate the potential adverse impacts, and includes any past or future addendum, supplement, or subsequent EIR. As of the date of this Agreement, Construction Authority certified the FEIR for Phase 2B in March 2013 and adopted a First Addendum in May 2014, a Second Addendum in December 2014, a Third Addendum in March 2016, and a Fourth Addendum in September FRA means the Federal Railroad Administration. Freight Track(s) means the railroad tracks where freight service occurs within the Right-of- Way and the railroad tracks on which SCRRA operates Metrolink commuter rail service. Freight Trackway means the portion of Right-of-Way immediately adjacent to and including the Freight Tracks and directly related facilities, and excluding Transit Trackway; however, upon completion of the Rearrangement, the Freight Trackway will be limited to (a) the area between the inter-track fence or inter-track soundwall and Right-of-Way line fence in which the Freight Tracks are located, and (b) in the case of grade crossings, the area between a line drawn from the two endpoints of the inter-track fence or soundwall on either side of the intersection and a line drawn from the two endpoints of the Right-of-Way line fence or soundwall in which the Freight Tracks are located on either side of the intersection. (See also Transit Trackway ). Freight Trackway Work means the work required to complete the Freight Trackway and the grade crossings in the Transit Trackway. -5-

11 Governmental Authority means any government or political subdivision, whether Federal, State, or local, or any agency or instrument of any such government or political subdivision, or any Federal, State, or local court, other than SCRRA, LACMTA or Construction Authority. Hazardous Materials means Hazardous substances or pollutants or contaminants as those terms are identified pursuant to the Comprehensive Response, Compensation and Liability Act of 1980, also commonly known as the Superfund law, as amended (42 U.S.C. Sections 9601 at seq.) ( CERCLA ), or as identified pursuant to Section of the California Health and Safety Code; and any hazardous waste listed pursuant to Section of the California Health and Safety Code; any asbestos or asbestos-containing materials; and petroleum, including crude oil or any fraction thereof, natural gas or natural gas as liquids, if discovered in the course of any Design, investigation or Construction of Project Facilities. Indirect Costs means all costs that are not Direct Costs, including Construction Authority s or SCRRA s administration (such as overhead, salaries and benefits), legal, community outreach, SBE program, insurance, program management, ROW acquisition and management, utilities, environmental, special programs, Construction, procurement, and financing. Industry Review means the period of review by selected construction and engineering firms and other stakeholders of final draft documents before they are released as part of the Design/Build Procurement Documents. Los Angeles County Metropolitan Transportation Authority (LACMTA) means the public entity created by the California Legislature pursuant to PUC Section et seq. for, among other things, the design, construction and operation of rail and bus transit systems and facilities in Los Angeles County. Laws means any law, rule, regulation, ordinance, statute, code or other requirement of any Governmental Authority. Maintenance means the repair or renewal of track, signals, communications, passenger platforms and appurtenances or otherwise the maintaining of the Freight Trackway in good and working order in accordance with FRA requirements, CPUC requirements, and the prescriptive requirements of the SCRRA Maintenance Standards. NTE Amount has the meaning set forth in Section 4.2(d) of this Agreement. On Track Safety is the condition of being free of risk of injury due to the movement of trains or on-track equipment, as defined in 49 C.F.R Operational Inspection means the process and procedure of examining track, signal, communications, passenger platforms and appurtenance facilities of the operating Freight Trackway, as specified by applicable Federal and State regulations or the prescriptive requirements of the SCRRA Maintenance Standards. In those provisions of this Agreement directly relating to continuing operation of trains on the Freight Trackway, the use of the term Operational Inspection shall mean inspection as specified in the applicable Federal regulations. Parties means SCRRA and Construction Authority collectively. -6-

12 Party means SCRRA and/or Construction Authority, individually. Pasadena Subdivision means the trackage with limits at the east end of Control Point Cambridge and on the west end at Mile Post in the City of Irwindale. Phase II means Phase 2A and Phase 2B. Phase 2A means the portion of Phase II from the interface with Phase I in Pasadena to the end of the tail tracks for the Azusa Citrus station. Phase 2B means the portion of Phase II from the interface with Phase 2A in Azusa to the end of the tail tracks for the Montclair station. Positive Train Control (PTC) is a GPS-based safety technology that can stop a train and prevent train-to-train collisions, over-speed derailments, and unauthorized train movements. Pre-Turnback Operations means the activities described in Section 8.2. Project means the Design, Construction, relocation and maintenance of the Freight Trackway, and all other activities necessary to complete Phase 2B. Rearrangement means the alteration, removal, replacement, reconstruction, support or relocation of the Freight Trackway or portion thereof, whether permanent or temporary, which Construction Authority determines must be rearranged in order to complete the Project. Right-of-Way (ROW) means the real property required to construct, operate, and maintain the Facilities and systems that comprise the Project. Right(s) of Entry is the permission of Construction Authority or SCRRA for persons or firms to perform work within the Right-of-Way. San Gabriel Subdivision means the Metrolink San Bernardino Line, spanning from downtown Los Angeles to downtown San Bernardino. SCRRA has the meaning set forth in the Preamble to this Agreement. SCRRA Designee shall mean an employee of SCRRA or an employee of any contractor or consultant working on the Project for SCRRA, who is designated by SCRRA for the performance of certain duties as described herein. SCRRA Design Criteria and Standards means that set of design criteria and standards in effect as of February 2018 set forth in Exhibit D under the heading SCRRA Design Criteria and Standards. SCRRA Guidelines and Manuals means that set of design guidelines and manuals formally adopted by SCRRA as of February 2018 set forth in Exhibit D under the heading SCRRA Guidelines and Manuals. -7-

13 SCRRA Maintenance Standards means that set of guidelines and manuals formally adopted by SCRRA as of April 2018 set forth in Exhibit E under the heading, SCRRA Maintenance Instructions. SCRRA Representative means its Chief Executive Officer, or his/her designated representative (as designated in a writing executed by the Chief Executive Officer). The SCRRA Representative has the authority to, including: conduct reviews, assign SCRRA staff, and make Approvals as required by this Agreement. Significant Change means any change of mode or technology from the Baseline Documents that would directly affect the Freight Tracks on which Metrolink operates, or any other substantive change that directly affects the connectivity and operation of the Freight Tracks on which Metrolink operates, or any combination of those things. Design and Construction of the Project that is consistent with the Baseline Documents or that does not directly and materially affect the Freight Tracks on which Metrolink operates shall not be deemed to be a Significant Change. Substantial Completion shall have the meaning set forth in the Design/Build Contract and may be applied to increments of work and to the Project as a whole. Track Bulletin means a notice of conditions affecting the movement of trains or use of the track issued by the train dispatcher. For a complete definition of this term and instructions on how Track Bulletins are used in the operation of the Freight Track(s), refer to the current General Code of Operating Rules, current SCRRA Timetable, and current SCRRA General Order. Track Warrant means an authorization issued by the dispatcher for the use of the Freight Track(s) by a specific train or work group. For a complete definition of this term and instructions on how Track Warrants are used in the operation of the Freight Track(s), refer to the current General Code of Operating Rules, current SCRRA Timetable, and current SCRRA General Order. Transit Trackway means track and related facilities where the Construction Authority has jurisdiction, including the portions of Right-of-Way required for LACMTA rail passenger operations. (See also Freight Trackway ). Trust means the Trust established pursuant to the Property Trust Agreement between Construction Authority and the LACMTA. Turnback means the process by which Construction Authority turns over the Freight Trackway to SCRRA, as more particularly described in Section 8.4. Turnback Date means the date on which the Construction Authority meets the requirements set forth in Section 8.4. Work Authorization means the document(s) that Construction Authority will issue upon agreement by the Parties as to Scope of Work and Direct Costs and Indirect Costs, which document authorizes SCRRA to perform any work, and to be reimbursed therefore, on the preparation and/or Review of design plans, operation plans, or other agreed to work plans, and to -8-

14 provide materials, labor inspection, and/or Rearrangements under the terms and conditions of this Agreement. Working Day(s) means Days, excluding Saturdays, Sundays, and the following thirteen (13) legal holidays: New Years Day, Martin Luther King Jr. Day, President s Day, Cesar Chavez Day, Memorial Day, Fourth of July, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve Day, and Christmas Day. 1.3 General Approach to Construction of the Project The Construction Authority contemplates entering into one or two Design/Build Contracts for Phase 2B. The Alignment Design/Build Contract will be one of the Design/Build Contracts and the various parking facilities required for the Project may or may not be included as a separate agreement. The Construction Authority may also enter into other contracts for the construction and/or design/build of portions of the Project. Any Design/Build Contract and any contract entered into by the Construction Authority for the construction of the Project that would require a contractor to enter into the Freight Trackway is subject to this Agreement. 1.4 SCRRA Participation Generally SCRRA shall participate in the Project, and Construction Authority will provide the opportunity for SCRRA to participate, in the areas set forth below and as more particularly described in this Agreement. The purpose of such SCRRA participation is to ensure that the Rearrangement of Freight Trackway will be compatible, functionally connected and operative with the existing Freight Trackway system. Subject to the procedures set forth in this Agreement, SCRRA s participation in the Project consists of: Design Review and comment Significant Change approval Coordination meetings Inspection rights Participation in Construction and Operational Inspections Implementation of Positive Train Control modifications Coordination and implementation of work windows Implementation of network critical integration cut-overs Receipt of status reports Train dispatching Issuance of Track Bulletins and Track Warrants Oversight of Construction Authority s On Track Safety program Oversight of Construction Authority s Operational Inspection and Maintenance program Oversight of Construction Authority s Right of Entry process Oversight of Construction Authority s rearrangement of the Freight Trackway Training of Construction Authority Designees Pre-Turnback Operations Turnback process -9-

15 Participation in the Substantial Completion walk through inspections for incremental and final stages of completion and final acceptance process for the Project 1.5 SCRRA Jurisdiction within the Right-of-Way At the time this Agreement is executed, SCRRA is the railroad of record of the Freight Trackway within the meaning of most Federal and State safety regulations; if this designation changes, this Agreement will be revised to adjust roles and responsibilities accordingly. Subject to the terms of this Agreement, SCRRA is responsible for certain administration, dispatch, maintenance and operation of existing Freight Trackway which provides freight service within the Right-of-Way; SCRRA s administration responsibility includes the granting of access/rights of Entry into the Freight Trackway. ARTICLE 2 - DESIGN AND CONSTRUCTION OF THE PROJECT AND REVIEW 2.0 Engineering and Construction Coordination The review process described below in Sections 2.1 through 2.4 will constitute the Design Review process for SCRRA and Construction Authority. Notwithstanding the foregoing sentence, SCRRA shall have the right to review, comment, and approve any Significant Change and if SCRRA disagrees with Construction Authority s response to such comment(s), the Parties may pursue their disagreement in accordance with Article Review of Design/Build Procurement Documents SCRRA agrees to review and comment on the Industry Review drafts of the Design/Build Procurement Documents during Industry Review. SCRRA shall have the right to review, comment on, and approve Significant Changes to the Design/Build Procurement Documents that are issued, within 30 Days after the Design/Build Procurement Documents are issued, and within 10 Days after any addenda thereto are issued. The provisions of this Section 2.1 shall not apply to any Design/Build Procurement Documents issued by Construction Authority prior to execution of this Agreement, except for the rights to review any addenda to those Design/Build Procurement Documents that may be issued after this Agreement is executed. 2.2 Design Criteria and Standards A. To ensure that the final Rearrangement of Freight Trackway meets the requirements of the Current Scope of the Project and the expectations of Construction Authority and SCRRA, Construction Authority and its consultants and contractors will comply with the additional technical terms attached hereto as Exhibit C and the prescriptive requirements of SCRRA Design Criteria and Standards, except as waived in writing by SCRRA. B. Notwithstanding anything in this Agreement to the contrary, (i) if Construction Authority determines that the SCRRA Design Criteria and Standards or SCRRA Maintenance Standards are contradictory or ambiguous, the Parties will follow the process set forth in Article 5 to determine which requirements, if any, should be followed and the best manner to proceed; and (ii) Construction Authority will seek to follow SCRRA -10-

16 Guidelines and Manuals whenever Construction Authority determines it is reasonably feasible and advisable to do so, and when Construction Authority determines not to follow SCRRA Guidelines and Manuals, Construction Authority will document the basis of its determination and provide said documentation to SCRRA. SCRRA will not seek or encourage any grade separation unless such grade separation is specifically identified by the CPUC as required. The SCRRA Design Criteria and Standards and SCRRA Maintenance Standards will be contained in the performance specifications of the Design/Build Procurement Documents. 2.3 Review of the Design/Build Contractor Submittals A. SCRRA shall have 21 Days to review and comment on Design submittals, construction phasing plans, and any other documents mutually agreed by the Parties directly related to Freight Trackway at each level, up to and including 100% Design submittals. B. Construction Authority may deem SCRRA to have no comment on the Project Design submittal to have occurred only after SCRRA s review period has expired with no substantive comment(s). C. SCRRA s comments on any document are limited to commenting on consistency with applicable FRA requirements, CPUC requirements, SCRRA Design Criteria and Standards, SCRRA Maintenance Standards, and maintaining SCRRA s operational level of service. D. If during the Design Review process SCRRA requests changes to the submittals and such changes result in a change order under the Design/Build Contract, Construction Authority will not be obligated to make such change unless SCRRA agrees it shall be responsible for paying the cost of such change and any delay claim associated with the SCRRA requested change. If, however, the Construction Authority determines that a change is required to comply with applicable FRA requirements, CPUC requirements, the prescriptive requirements of SCRRA Design Criteria and Standards, or the prescriptive requirements of SCRRA Maintenance Standards, then Construction Authority shall pay for such change order. E. In addition to SCRRA s rights regarding Significant Changes, Construction Authority shall not implement any alternative technical concepts or value engineering changes that are not a Significant Change without SCRRA s ability to comment on the proposed change. 2.4 Work to be Performed by SCRRA SCRRA will work cooperatively with Construction Authority to complete the Project. SCRRA will have the following major responsibilities in relation to the Design/Build program: Participation in the Organizations and Process SCRRA will formally designate a member of its senior staff as SCRRA s Representative and inform the Construction Authority Representative upon making the designation. SCRRA s -11-

17 Representative will be the focal point of coordination and communication with Construction Authority s Representative. In addition, when requested by Construction Authority, SCRRA will designate individuals to participate in the working groups and technical subcommittees formed by Construction Authority to address the issues and subjects which arise as part of the Design Review process described in Sections 2.1 through 2.4 herein Cooperatively Implement the Design Review Process SCRRA will provide comments in a timely manner and will work with Construction Authority to suggest ways to resolve various issues that arise. The SCRRA Representative will work closely with the Construction Authority Representative in the Design Review process as it directly relates to operations issues, systems compatibility, connectivity, and compliance with SCRRA Design Criteria and Standards and SCRRA Maintenance Standards as set forth herein Provide Requested Technical Support and Third-Party Interface & Communications Technical Support. When requested, SCRRA will provide technical support to Construction Authority, at the cost and expense of Construction Authority, throughout the Design and Construction period of the Project. The support may take many forms. For example, SCRRA will support the Construction Authority s efforts to obtain approvals from the California Public Utilities Commission and SCRRA will assist the Construction Authority with obtaining permits where SCRRA is the only Party with standing to obtain particular licenses or permits. Third-Party Interface & Communications. Construction Authority shall be the single point of communication regarding the Project. Unless requested or approved by the Construction Authority, SCRRA will not interface or communicate with any third-parties regarding the Project except as may be required to comply with regulatory requirements such as FRA requirements or CPUC requirements and to the extent authorized pursuant to Article 5. Subject to the preceding two sentences, in order to ensure consistency and accuracy of information being disseminated to the public, the Construction Authority shall be responsible for providing all Project and Construction-related outreach and communication; while SCRRA shall provide all outreach and communication regarding Metrolink operations and operational activities. The two agencies shall coordinate regarding any issues that will impact the other, to ensure that both agencies are aware of activities that may affect construction and/or operations and how those activities might impact the traveling public and/or surrounding area and neighbors Assist with Construction Inspection and Supervision Upon request of the Construction Authority Representative and as mutually agreed with SCRRA, SCRRA will provide as-needed assistance to Construction Authority for the supervision and/or -12-

18 Construction Inspection of Construction by the Design/Build Contractor. This assistance will be in addition to the NTE Amount. In addition, SCRRA will conduct a final inspection of the Freight Trackway prior to Turnback. SCRRA will generate a punch list of all outstanding items in accordance with Section Support Integrated Testing and Start-Up Upon request of the Construction Authority Representative and upon terms mutually agreed by the parties, SCRRA will provide personnel and equipment such as geometry and rail flaw inspection vehicles necessary to support final inspection of the Freight Trackway as described in Article 7. This support will be in addition to the NTE Amount. SCRRA will provide personnel and equipment as necessary to implement the final testing and integration of critical systems into SCRRA s network as described in Article Meetings The Construction Authority Representative or his/her designee, and/or Construction Authority Designee(s), shall hold monthly, or at a mutually agreed frequency, meetings with the SCRRA Representative or his/her designee at which SCRRA will be provided with, at a minimum, a look-ahead schedule and updates on any major changes to the project SCRRA Inspection Rights SCRRA shall have the right to participate in the Construction Inspection and Operational Inspection of the Freight Trackway at any time, in accordance with this Section. SCRRA shall address all concerns and issues directly with Construction Authority field staff and not with the Design/Build Contractor. (a) (b) (c) SCRRA may, at its election, participate in Construction Authority s Operational Inspection program for the Freight Trackway elements with proper coordination with the appropriate Construction Authority field staff. SCRRA may, at its election, participate in pre-construction activities directly related to the Freight Trackway, including review of Construction Work Plans directly related to the Freight Trackway. Construction Authority will notify SCRRA of systems factory testing, local field tests, and integration tests directly relating to the Freight Trackway. Construction Authority does not need to notify SCRRA of daily, ongoing material testing Integrated Project Office (a) Construction Authority will, at the request of SCRRA, provide SCRRA with one desk, a phone and internet connection in the field office. -13-

19 (b) Construction Authority has the right to remove any SCRRA person or persons assigned to work at the integrated project office. Such right shall not be exercised unreasonably Positive Train Control (PTC) (a) The Parties shall perform PTC-related work in accordance with Exhibit F. (b) (c) The Construction Authority will ensure compliance with the prescriptive requirements set forth in Exhibit F. Notwithstanding Sections 2.4.9(b) and (c), if the Construction Authority determines that the terms included in Exhibit F are contradictory or ambiguous, the Parties will follow the process set forth in Article 5 to determine which requirements, if any, should be followed and the best manner to proceed. 2.5 Project Management Plan ( PMP ) Construction Authority shall provide SCRRA with copies of any Design/Build Contractor s Project Management Plan ( PMP ) and any amendments thereto, directly relating to the Freight Trackway. 2.6 Hazardous Materials Investigation of Sites Except for Betterments, Construction Authority shall be responsible, at Construction Authority expense, for the investigation of potential Hazardous Materials sites within the Project Right-of- Way Responsibility for Remediation Except for Betterments, if a finding is made that, as a result of Project activities, applicable Laws require remediation or removal of Hazardous Materials, Construction Authority shall be responsible, at Construction Authority expense, for any remedial or removal action required as a result of proceeding with Project, including the development of the necessary Project mitigation and remedial plans and designs. Locations subject to protection or remediation include any utility relocation work undertaken by Construction Authority. Remedial or protective actions proposed by Construction Authority shall be performed in accordance with the requirements of Federal and State regulatory agencies having jurisdiction. 2.7 Protected Cultural Materials Responsibility for Remedial Action Except for Betterments, if a finding is made that protected cultural material is present and would be impacted as a result of Project activities, Construction Authority shall be responsible, at -14-

20 Construction Authority expense, for any protective, custodial, managerial, or remedial action required as a result of proceeding with Project. Locations subject to protection or remediation include any utility relocation work undertaken by Construction Authority Development of Remedial Plans Except for Betterments, Construction Authority shall be responsible for protective remedial action and responsible for all development of the necessary Project mitigation and remedial plans and designs, at no cost to SCRRA. Remedial or protective actions proposed by Construction Authority shall be performed in accordance with Federal and State regulatory agencies having jurisdiction. 2.8 "As-Built" Drawings and Handover Documentation of Freight Trackway Rearrangements Construction Authority shall maintain a set of "As-Built" drawings of Freight Trackway Rearrangements performed by Construction Authority during the progress of Construction. Within sixty (60) Days following the completion of the Freight Trackway Work, the Construction Authority shall furnish SCRRA with full size As-Built plans, together with electronic files, showing all Facilities installed and all contract records, including system test certifications compliant with FRA regulations, Quality Control records, material and supplier compliance certifications, Operation and Maintenance manuals and spare parts. As-Built plans shall be signed by a Qualified Engineer licensed in the State of California. Electronic files including CADD drawings and PDFs of the plans and specifications shall be included. The As- Built drawings and specifications shall comply with SCRRA s procedures and requirements for record documents and plans. 2.9 Disposition of Salvaged Materials Construction Authority may salvage certain materials currently being used by SCRRA during the course of the Project. If salvage is to be reused, materials removed shall be stored by Construction Authority until such time as the progress of work allows the reinstallation of such materials. Materials which are not to be reused and which SCRRA desires to retain will be delivered to SCRRA at a mutually suitable location. Construction Authority may reuse salvaged rail and dispose of all other track material at no cost to SCRRA Construction Authority Procurement and Delivery of Spare Parts Construction Authority shall deliver to SCRRA, at a mutually suitable location, spare parts in an amount not to exceed $500,000 for any components or systems installed by the Construction Authority in completion of the Freight Trackway that are technologically more advanced, or additional to, SCRRA current Design Criteria or SCRRA Maintenance Standards. ARTICLE 3 - CONSTRUCTION AUTHORITY ACCESS -15-

21 3.0 Construction Authority Access to Right-of-Way During the Construction Period, SCRRA shall grant to Construction Authority and its agents, including its Design/Build Contractor, full access into the Project Right-of-Way within SCRRA s jurisdiction. The Construction Authority, Design/Build Contractor and any third-party shall comply with SCRRA s track access, Right of Entry, and requirements including training, procedures, and operating rules, when accessing the Freight Trackway. The Construction Period starts upon notification by Construction Authority to SCRRA. Construction Authority affirms that all engineering, inspection, and Construction activity within the Right-of-Way, that has the potential to foul or obstruct the Freight Trackway, shall be performed in accordance with the On Track Safety and Right of Entry processes defined in Section 7.4 herein for the Freight Trackway. 4.0 Work Authorizations ARTICLE 4 - WORK AUTHORIZATION AND BILLINGS Subject to Section 4.2(d), the Construction Authority will provide funding to reimburse SCRRA for applicable work and/or services directly related to the Project through one or more Work Authorizations. The Parties agree that SCRRA has no obligation to perform any of the activities described in this Agreement prior to the issuance of a properly conforming and fully executed Work Authorization. Construction Authority also acknowledges that it may not refuse to issue a Work Authorization to SCRRA for purposes of preventing SCRRA from receiving copies of documents and providing comments to documents as described in this Agreement. If SCRRA has already been paid the NTE Amount, the Work Authorization may describe work but indicate $0.00 in funding from the Construction Authority. Construction Authority shall issue annual Work Authorizations to SCRRA to authorize the performance of all work including SCRRA Design Review, Construction review and inspection work required under the terms and conditions of this Agreement. SCRRA or SCRRA s contractors or consultants may perform any work so authorized. Each Work Authorization issued under the terms of this Agreement shall specify the work to be performed and any materials or equipment to be acquired, the maximum amount of money which SCRRA may expend therefor and the estimated starting and finishing dates for work so authorized. Should SCRRA refuse or be unable to perform the work as required in a Work Authorization, Construction Authority may perform the work and SCRRA shall cooperate with and assist Construction Authority as herein provided. 4.1 Work Performed by SCRRA Work to be performed by SCRRA under this Agreement shall coincide, as closely as possible, with Construction Authority's Project schedule. SCRRA agrees to commit sufficient resources necessary to provide the level of service required to meet those schedules. To assist SCRRA in estimating the level of support to be provided for the Project, Construction Authority shall submit to SCRRA annually beginning within thirty (30) Days of the Effective Date, and on March 31 in succeeding years, a work plan setting forth each item of work and the -16-

22 documentation associated therewith including corresponding start and finish dates for all milestone activities that Construction Authority anticipates it will request SCRRA to perform. In return, SCRRA will provide, no later than thirty (30) Days after receipt of the work plan, a Cost and price analysis of its estimated Costs to perform the work. As required, Construction Authority and SCRRA will negotiate the final pricing of the work to be performed by SCRRA before the start of work. 4.2 Issuance of Work Authorizations, Cost Management and Not-to- Exceed Amount (a) (b) (c) (d) Construction Authority shall issue annual Work Authorizations to SCRRA on the form provided in Exhibit B. Each Work Authorization to SCRRA will authorize the Direct Costs and Indirect Costs involved in the performance of one or more tasks and/or the purchase of materials and equipment required under the terms and conditions of this Agreement. The issuance of a Work Authorization shall obligate Construction Authority to reimburse SCRRA up to the amount stated in the Work Authorization, subject to the provisions of Section 5.1 and Section 4.2(d) of this Agreement, for all activity or work performed or materials acquired for each Rearrangement and for SCRRA s oversight and inspection work as described in this Agreement. Such reimbursement shall be for all Direct Costs and Indirect Costs incurred by SCRRA for such activities or work performed or materials acquired under the terms of this Agreement. SCRRA shall maintain its standard form of records showing actual time expended and costs incurred under each Work Authorization. No profit or administrative fees on Direct Costs or Indirect Costs shall be allowed on work performed by SCRRA Designees. SCRRA consultants and contractors may perform any work so authorized. Consultants and contractors engaged by SCRRA to perform work covered by this Agreement shall comply with all applicable labor and other laws, grants, and agreements. SCRRA shall cooperate with Construction Authority and take such action as Construction Authority may reasonably request to ensure such compliance. Notwithstanding anything else in this Agreement to the contrary, and except as to any amounts authorized prior to the date of this Agreement, in no case shall Work Authorizations exceed the amount of $4,929,370 for the entire Project (the NTE Amount ), except that the NTE Amount shall increase to pay SCRRA for additional work required by a Significant Change, for additional assistance as described in Articles 2.4.4, 2.4.5, and or for additional work required in the event the Project achieves Substantial Completion later than 2,555 days following the issuance of the Notice to Proceed for the Design/Build Contract. The Construction Authority shall not issue Work Authorizations exceeding the NTE Amount. Any work performed by SCRRA in excess of the NTE Amount shall be performed entirely at the cost of SCRRA. SCRRA will continue to work and perform its obligations under this Agreement regardless of whether SCRRA has already been paid the NTE Amount. SCRRA will manage and perform the -17-

23 scope of work and responsibilities set forth in this Agreement within the NTE Amount and the not-to-exceed amount set forth in each Work Authorization and shall adjust and/or control its labor and materials expenditures accordingly. (e) For so long as the Construction Authority performs Maintenance of the Freight Trackway, SCRRA shall pay to the Construction Authority the amounts set forth below: If the City of Claremont is the terminus, then $856,965 annually. If the City of Montclair is the terminus, then $886,379 annually Such amounts shall be adjusted annually by increases or decreases in the Construction Index, commencing as of April 1, 2018 and each April 1 thereafter, as reported for the most recently published Construction Index. These payments shall be made in equal monthly installments on the 15 th day of each month for the period the Construction Authority performs Maintenance of the Freight Trackway. The final payment to the Construction Authority shall be prorated to a daily rate. 4.3 Work Authorization Changes Any proposed changes in a Work Authorization issued under this Agreement shall be submitted in writing to Construction Authority for its prior Approval; provided, however, that any proposed change occasioned by an emergency may be submitted to Construction Authority for its prior Approval orally or by telephone and later confirmed in writing within fifteen (15) Working Days by SCRRA and following such verbal approval, Construction Authority agrees to act on such oral request immediately. Whenever practicable, SCRRA will notify Construction Authority formally in writing at least fifteen (15) Working Days prior to the scheduled submission date when it has reason to believe the estimated completion date of a task, a report, or a deliverable will be later than the date set forth in the Work Authorization. SCRRA agrees promptly to notify Construction Authority and request written revisions of Work Authorization estimated costs and completion dates in the event of unanticipated cost overruns or completion delays. 4.4 Termination of Work Authorizations Construction Authority may terminate any Work Authorization at any time, after providing a written notice. Upon receiving such notice work pursuant to the Work Authorization shall cease immediately, but Construction Authority shall be liable to SCRRA for reimbursement in accordance with this Agreement of (a) Costs already incurred, if any, as well as (b) any Costs incurred to terminate the work, if any. SCRRA will invoice Construction Authority for all actual Costs incurred within sixty (60) Days after such Costs have been incurred and, subject to the terms of this Agreement, Construction Authority agrees to pay the Costs within forty-five (45) Days after receipt of the invoice. -18-

24 4.5 Preparation of Billings SCRRA, its contractors and subcontractors agree to comply with Federal procedures in accordance with the following: (a) Office of Management and Budget Circular A-87, Cost Principles for State and Local Governments; (b) 49 C.F.R., Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments; (c) Title 21, California Code of Regulations, Section 2500 et seq; and (d) requirements resulting from other matters connected with the performance of SCRRA's contracts with third-parties pursuant to Government Code Section Any Costs for which SCRRA has received payment that are determined by subsequent audit to be unallowable under the Office of Management and Budget Circular A-87 or 49 C.F.R., Part 18, or under this Agreement, are subject to repayment by SCRRA to Construction Authority. The Parties agree that the following procedures will be observed for submission of monthly billings by SCRRA to Construction Authority on a progress basis for work performed by SCRRA under a specific Work Authorization requiring monthly billings. SCRRA s billings shall begin as soon as practicable following the commencement of a specific Rearrangement or other work under a given Work Authorization. Billings shall specify Costs incurred for that billing, shall bear Construction Authority s Work Authorization number, shall be submitted every month (within sixty (60) Days of when expenses incurred) but not more than once per month, and shall be supported by copies of invoices, timesheets and other cost data that detail hourly rates via payroll register and details overhead rates and shall be maintained for audit on file in SCRRA s accounting center and shall be addressed to Construction Authority Representative. Each billing shall be noted as either progress or final. The final billing, with a notation that all work covered by a given Work Authorization has been performed, shall be submitted to Construction Authority as soon as practicable following the completion of the Rearrangement, including resolution of all Construction contractor claims, and shall recapitulate prior progress billings and shall show inclusive dates upon which work billed therein was performed. 4.6 Procedures for Payments to SCRRA by Construction Authority Within sixty (60) Days after receipt by Construction Authority of each billing in compliance with the provisions outlined in Section 4.5, Construction Authority shall pay SCRRA the amount of the invoice approved for payment less any applicable amounts which Construction Authority is otherwise entitled to withhold. Such payments shall be subject to post-audit adjustments. 4.7 Audit and Inspection All accounting records and other supporting papers of SCRRA, its contractors and subcontractors connected with the performance under this Agreement shall be maintained for a minimum of three years from the date of Project completion and shall be held open for inspection and audit by representatives of Construction Authority, the Federal Transportation Administration, the California State Auditor, representatives of SCRRA and auditors of the Federal or California Government. SCRRA shall have the right to inspect and audit Construction Authority records pertaining to Construction Authority s performance under this -19-

25 Agreement at any time for a like period to that permitted for Construction Authority to audit SCRRA records. 5.0 Disputes ARTICLE 5 - DISPUTES RESOLUTION In the event of any dispute, controversy or claim arising between SCRRA and Construction Authority in connection with or relating to this Agreement ("Dispute"), the Parties shall make good faith efforts to resolve the Dispute through application of this Article 5. This Article 5 shall survive the termination or expiration of this Agreement as to any Dispute the facts of which originated before this Agreement expired or was terminated. 5.1 Dispute Notice In the event of any Dispute arising out of or relating to this Agreement, the complaining Party shall provide a notice of the Dispute ("Dispute Notice") to the other Party. The Dispute Notice shall describe the facts surrounding the Dispute in sufficient detail to apprise the other Party of the nature of the complaint. The complaining Party may, but will not be required to, aggregate the Dispute with other Disputes into one Dispute Notice. Except for Design and Construction defects which manifest themselves following the conclusion of the Project, the Dispute Notice must be delivered to the other Party no later than sixty (60) Days after the Turnback Date. 5.2 Provisional Remedies Notwithstanding the requirements of this Article 5, a Party may seek from the Los Angeles County Superior Court any interim or provisional relief that may be necessary to protect the rights or property of that Party ("Provisional Relief") without first serving a Dispute Notice or first attempting to settle the Dispute through discussion and mediation. Notwithstanding the foregoing sentence, no Provisional Relief or provisional remedy of any type or nature shall be available to stop or otherwise interfere with any Construction relating to the Project, or any portion thereof, unless requested by Construction Authority, or required to prevent imminent danger to public health or safety. 5.3 Discussion and Mediation In the event of a Dispute, the Parties shall first attempt to resolve the situation by good faith discussions between the Construction Authority s Chief Project Officer and SCRRA s Deputy Chief Executive Officer. If the Dispute is not resolved within 15 days after one Party has provided a Dispute Notice to the other, then either Party may provide written notice to the other Party requesting an executive resolution meeting wherein the Chief Executive Officers for both Parties shall meet together in person to discuss and seek resolution of the Dispute within 10 days after the written notice was provided. If the Dispute is not resolved in the executive resolution meeting or in any event has not been resolved within 25 days following the date on which the Dispute Notice was provided, either Party may request mediation by notifying the other Party in writing of its desire to submit the matter to mediation. -20-

26 Within seven (7) days following the date on which a Party provided written notice requesting mediation (the Mediation Notice Date ), the Parties shall jointly select, appoint and arrange to meet with an impartial person who can mediate and facilitate the Parties toward a resolution of the Dispute using a confidential process. Should the Parties be unable to agree upon a mediator within such period of time, they will utilize the services and procedures of the Judicial Arbitration and Mediation Service (JAMS) to select a JAMS mediator. Mediation shall be conducted within 30 days following the Mediation Notice Date; provided, however, that should the selected mediator not be available within such 30 day period, the mediation shall take place on the first day thereafter that the mediator is available unless the Parties otherwise agree in writing to a different date. The mediator cannot impose binding decisions on the Parties. The Parties must agree to the terms of any settlement arising out of the mediation process in order for such settlement to become binding. The Parties shall bear their own costs of the mediation but the Parties shall share equally the costs of the mediator and the mediation facilities. Either Party may terminate the mediation if the Parties have been unable to resolve the Dispute within 10 days from the date of the first mediation meeting or within 45 days following the Mediation Notice Date. Upon such termination, either Party may pursue any and all remedies available at law or at equity. 5.4 Institution of Legal Actions In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, any party may institute an action at law or equity to seek specific performance of the terms of this Agreement, or to resolve any Dispute. Such legal actions must be instituted in the Superior Court of the County of Los Angeles, State of California. Except with respect to the Provisional Relief that may be available pursuant to Section 5.2, compliance with Section 5.1 and Section 5.3 hereof shall be a condition precedent to the filing of any legal action involving a Dispute. 5.5 Continuing Performance No Construction or other work or activity relating to the Project shall be stopped, or interfered with in any manner, by reason of a Dispute or otherwise, except at the direction of Construction Authority, or for reasons of imminent danger to public health or safety and in such latter case only to the extent absolutely necessary. Without limiting the generality of the foregoing, the Parties agree that they will continue their respective performance required hereunder notwithstanding any Dispute, and that such continued performance shall not be construed as a waiver of any rights or defenses. 5.6 Implementation Each Party promptly will take any action required of it in order to implement an agreed upon Dispute resolution, or a final judgment entered pursuant to the provision of this Agreement. 5.7 Cooperation The Parties shall diligently cooperate with each other, and shall perform such acts as may be necessary, to ensure an efficient and expeditious resolution to each Dispute. -21-

27 ARTICLE 6 - BETTERMENTS 6.0 Betterments Generally If during the Design Review process SCRRA requests changes to the submittals and such changes result in a Betterment, Construction Authority will not be obligated to make such a change unless Construction Authority determines in its sole discretion that it is advisable to do so, and unless SCRRA agrees it shall be responsible for paying the cost increase to the Project as a result of the Betterment and any delay claim attributable to the Betterment. If at any time during the term of the Project, non-scrra third-parties request the inclusion of Betterments into the Freight Trackway, Construction Authority shall forward such request to SCRRA, which shall have the right to review and comment on the proposed Betterments, or to approve the proposed Betterment if it is also a Significant Change, to ensure it conforms to SCRRA s Design Criteria and Standards and will not interfere with the safe operation of the Freight Trackway. Construction Authority shall be responsible for negotiating the cost and method of payment for any approved third-party Betterments. 6.1 Non-Betterment Items The following shall not be considered as Betterments: An upgrade which the Parties mutually agree should be completed at no cost to SCRRA; or Construction in accordance with the prescriptive requirements of SCRRA Design Criteria and Standards; or Construction in accordance with the SCRRA Guidelines and Manuals; or As the Construction Authority may so determine, construction in accordance with the Baseline Documents, applicable State and Federal Regulations, or applicable CPUC requirements. 6.2 Payments for Betterments Construction Authority shall be paid by SCRRA for work performed under this Agreement for any Betterments requested by SCRRA. The amount of the payments for Betterments, if any, shall be estimated by Construction Authority based on SCRRA s request(s), but such estimate shall not determine the final amount of the payments. After SCRRA has reviewed the estimated cost of a SCRRA requested Betterment, SCRRA s Representative shall inform Construction Authority s Representative of any of the proposed SCRRA Betterments SCRRA wants included in the Project. SCRRA shall commit to provide funds to implement the Betterments. Should SCRRA request inclusion of a Betterment during the time period between 85% drawings and Final Design, Construction Authority shall cause the -22-

28 Design/Build Contractor to provide Construction Authority and SCRRA with an analysis of all anticipated impacts to the Project Schedule associated with such a change. SCRRA shall pay one half of the estimated cost of each Betterment to Construction Authority in advance, prior to commencement of Construction of the Betterment. The remainder shall be paid to Construction Authority within thirty (30) Days after SCRRA receives (a) notice that the Betterment has been completed and (b) an invoice stating the final cost of the work, including support for any costs that exceed the estimated cost provided by the Construction Authority. Construction Authority shall earn no profit or overhead fee, based on the cost of the Betterments requested by SCRRA, but may charge for actual administrative costs incurred. SCRRA shall fully compensate Construction Authority for the Direct Costs and Indirect Costs of the Betterments. However, given the administrative effort required to track, compile, and audit the Costs for Construction Authority personnel and Construction Authority's consultants, SCRRA and Construction Authority have the option to agree, in advance, on a flat compensation of 10% of the Cost of all Betterments, in lieu of payment of the actual administrative costs incurred in completing the Betterment(s). 7.0 General ARTICLE 7 - FREIGHT TRACKWAY REARRANGEMENT BNSF Railway and SCRRA will operate trains on all or a portion of the Freight Trackway, throughout the Construction of the Project. Train service may be suspended by prior arrangement, with SCRRA and BNSF, for short periods in order to facilitate work on, or which has the potential to foul or obstruct, the Freight Trackway. In order to efficiently manage the Project Construction process, SCRRA will delegate to Construction Authority the responsibility for granting and managing Rights of Entry, providing On Track Safety, performing Operational Inspection, and performing construction and Maintenance functions. Construction Authority will perform these functions and the Rearrangement of the Freight Trackway so as to provide a continuously acceptable Freight Trackway during the Construction process. 7.1 Dispatching and Train Operations Dispatching Subject to the other provisions of this Agreement, including but not limited to Sections 7.5 and 7.6, SCRRA dispatcher will control access to the Freight Trackway by all parties; SCRRA dispatcher will issue on-track protection (e.g., Form B, track and time, Track Warrants, etc.) to authorize the movement of trains and equipment on the track and to grant track occupancy to construction, inspection or maintenance employees of SCRRA or Construction Authority. SCRRA dispatcher will issue Form B whenever possible, and the Project has first priority for the issuance of Form Bs and other track bulletins consistent with maintaining Freight Track railroad service levels. SCRRA dispatcher will issue Track Bulletins as requested by Construction Authority and/or SCRRA Designees to provide for locally authorized track occupancy, for -23-

29 temporary or permanent changes to authorized train speed, or for temporary or permanent track configurations or operating conditions. SCRRA dispatcher will serve as the real time point of communication, via the Employee-In-Charge, for all issues that affect the safety of train operations or the safety of the general public adjacent to the Right-of-Way Train Operations SCRRA dispatcher will be the real time point of contact for BNSF and Metrolink commuter rail employees for matters directly related to train operation, train safety, and the safety of the general public adjacent to the Right-of-Way. Subject to the other provisions of this Agreement, including but not limited to Sections 7.5 and 7.6, SCRRA will coordinate work windows including suspension of train operations as needed to accomplish the Project consistent with maintaining SCRRA operational service levels as much as reasonably possible. If the Parties agree that a bus bridge is required to maintain Metrolink operations, the Construction Authority shall pay the costs of such bus bridge; such costs shall be in addition to the NTE Amount. 7.2 Project Activities with Potential to Foul or Obstruct the Freight Trackway Safety is a top priority for both Parties. The Parties will cooperate to establish work procedures and On Track Safety procedures to minimize potential interference between train operations and Project work. 7.3 Roadway Worker On Track Safety On Track Safety Construction Authority is responsible for the administration of the Roadway Worker On Track Safety program for the Freight Trackway as defined by 49 C.F.R. 214 with SCRRA providing oversight of such program On Track Safety Training SCRRA shall train, test, and qualify four Construction Authority Designees and such others as the Construction Authority may reasonably request to be territory qualified and to perform Employee-In-Charge (EIC) duties as defined by 49 C.F.R SCRRA costs associated with training, testing, and qualifying more than four EICs will be reimbursed by Construction Authority in addition to the NTE Amount. Construction Authority Designees so qualified will provide training and additional qualifications as deemed necessary by the Construction Authority to complete the Project. Construction Authority Designees will also control work in the Rightof-Way by Construction Authority Design/Build Contractor and subcontractors, third-party contractors engaged in Project work, and parties making deliveries onto the Right-of-Way for any of these contractors. Construction Authority will be responsible for the administration, tracking, and reporting of on track safety for Construction Authority employees and contractors completing the Project or providing maintenance services. Construction Authority will retain -24-

30 records of these qualifications, will furnish to SCRRA and make them available upon request to Federal or State railroad safety regulatory agency officers. The Construction Authority will provide all necessary Employee(s)-in-Charge (EIC). The Construction Authority will ensure all employees upon the railroad right-of-way are Roadway Worker Protection (RWP) trained and hold current certification On Track Safety records SCRRA may inspect, audit, and/or forward to Federal or State regulatory agencies records and documents directly related to On Track Safety. Construction Authority shall comply with all regulatory requirements regarding the creation and storage of On Track Safety records Fines and Penalties for On Track Safety Citations SCRRA shall collect from Construction Authority any fines or penalties assessed by Federal or State railroad safety regulatory agencies for citations of alleged violations of On Track Safety procedures issued to SCRRA for work managed by Construction Authority Designees providing On Track Safety functions. SCRRA costs associated with handling such violations will be reimbursed by Construction Authority in addition to the NTE Amount SCRRA Oversight of Construction Authority On Track Safety SCRRA may periodically inspect, review, audit, and observe the performance of Construction Authority Designees engaged in providing On Track Safety to assure that SCRRA policies and government regulations are being complied with and that the safety of train operations and the general public is being afforded. These inspections may be made jointly with Construction Authority Designees or may be made solely by SCRRA Designees after SCRRA first provides notice to the Construction Authority in advance of such inspection and providing Construction Authority the opportunity to participate jointly Disqualification of Construction Authority On Track Safety Designees SCRRA may immediately remove from the work and disqualify, with good cause, any Construction Authority Designee previously qualified to provide On Track Safety found to be in violation of SCRRA On Track Safety program. SCRRA will not be liable for any claims of loss of productivity due to the suspension of work due to the removal/disqualification of a Construction Authority Designee for this cause. Such removal and disqualification may be remedied by re-training and re-qualification of the employee at the sole expense of Construction Authority or by permanent disqualification and replacement by other qualified Construction Authority Designee(s), if permitted by SCRRA rules SCRRA may Supplement Construction Authority On Track Safety Upon request by Construction Authority and as mutually agreed by SCRRA, SCRRA may supplement Construction Authority Designees providing On Track Safety. SCRRA costs -25-

31 associated with supplementing Construction Authority Designees will be reimbursed by Construction Authority in addition to the NTE Amount. 7.4 Operational Inspection and Maintenance of the Freight Trackway Operational Inspection is Not Construction Inspection This section covers the process and procedure for ensuring that the Freight Trackway is maintained, inspected, and operated during the Construction period in a manner that is in conformance with applicable Federal and State regulations, the prescriptive requirements of the SCRRA Design Criteria, the prescriptive requirements of the SCRRA Maintenance Standards, and in a manner generally consistent with general railroad operating practices. The term inspection and inspector, within Section 7.4, shall have the meanings used in the applicable Federal and State regulations for the process of inspecting the track, signals, and related infrastructure to assure continued safe operation of the railroad line and the qualified persons who perform those inspections and make records of those inspections. The term inspection, within Section 7.4, is not to be construed as Construction Authority s process and procedure for determining whether the Contractor has conformed with the Construction documents during the Project Construction, but rather that the Freight Trackway has been inspected and is in a state of safe operability for train movements even though all of the specified work may not be complete Freight Trackway is Part of the General System of Railroad Transportation The Freight Trackway will continue to function as a part of the General System of Railroad Transportation within the meaning of Federal and State railroad safety regulations throughout the Construction Period and the Freight Trackway must at all times be inspected and maintained in accordance with these regulations SCRRA to Train and Qualify Construction Authority Designees for Operational Inspection and Maintenance Within 30 days after receiving a request from Construction Authority, SCRRA will review the qualifications and approve qualified Construction Authority Designees to perform Operational Inspections and to supervise the Maintenance of the Freight Trackway (including directly related facilities such as, but not limited to track, signals, communications, bridges, grade crossings, signage, and drainage facilities). SCRRA will retain records of these qualifications and will make them available upon request to Federal or State railroad safety regulatory agency officers. Construction Authority Designees are responsible for compliance with all federal and state regulatory requirements for the construction of the Project and Maintenance of the Freight Trackway until Freight Trackway Work is completed. A mutually agreed period of time will be determined to allow overlapping of SCRRA and Construction Authority Operational Inspection and maintenance staffs to ensure that a full understanding of the characteristics of the territory, SCRRA maintenance standards, channels of communication, resources for repairs deemed necessary by inspectors, resources for night and weekend Operational Inspection and repair, and procedures for inspection and repair record creation and retention are attained by the Construction Authority Designees assigned to these duties. -26-

32 7.4.4 Construction Authority Designee to Perform Operational Inspection and Maintenance Construction Authority Designee will perform Operational Inspections and Maintenance of the Freight Trackway within the limits set forth immediately below until Pre-Turnback Operations commences. a) If the City of Claremont is the terminus, then within the Pasadena Subdivision from CP Cambridge (MP ) up to but not including the Pasadena Ave at-grade crossing (MP ); and within the San Gabriel Subdivision to Claremont from the east limits of CP Vista (MP 34.1) up to but not including Intermediate Signal (MP 29.3). b) If the City of Montclair is the terminus, then within the Pasadena Subdivision from CP Cambridge (MP ) up to but not including the Pasadena Ave at-grade crossing (MP ); and within the San Gabriel Subdivision to Montclair from the east limits of CP Central (MP 34.6) up to but not including Intermediate Signal (MP 29.3). Documentation of Operational Inspections and Maintenance will be compiled by Construction Authority Designees and will be furnished to Federal or State regulatory agency officers or to SCRRA Designees upon request and will be furnished to SCRRA on a mutually acceptable schedule throughout the duration of the Project. At the conclusion of each increment of work to perform Construction of the Rearrangement and before the resumption of train operations, Construction Authority Designees qualified per Section will perform an Operational Inspection of the track and signals to verify that the Freight Trackway is in compliance with the prescriptive requirements of the SCRRA Design Criteria, the prescriptive requirements of the SCRRA Maintenance Standards, and with Federal and State safety regulations. Construction Authority Designee will communicate with SCRRA dispatcher to certify that the Freight Trackway is serviceable and whether any temporary instructions or Track Bulletins are required for safe train operations SCRRA Oversight of Construction Authority Operational Inspection and Maintenance SCRRA may perform periodic observations, inspections, audits, and tests of the Freight Trackway physical condition and the Operational Inspection and Maintenance records. SCRRA may perform periodic observations of the work performance of Construction Authority Designees engaged in the Operational Inspection and Maintenance of the Freight Trackway. These inspections and observations may be made jointly with Construction Authority Designees or may be made solely by SCRRA Designees after SCRRA first provides notice to the Construction Authority in advance of such inspection and providing Construction Authority the opportunity to participate jointly SCRRA Disqualification of Construction Authority Operational Inspection and Maintenance Designees SCRRA may immediately remove from the work and disqualify, with good cause, any Construction Authority Designee previously qualified to perform Operational Inspections or to supervise repairs found to be in violation of material prescriptive requirements set forth in the -27-

33 SCRRA Maintenance Standards or the Federal or State railroad safety regulations. SCRRA shall notify the Construction Authority Representative within twenty-four (24) hours of any such removal and disqualification. SCRRA will not be liable for any claims of loss of productivity due to the suspension of work due to the removal/disqualification of a Construction Authority Designee for this cause. Such removal and disqualification may be remedied by re-training and re-qualification of the employee at the sole expense of Construction Authority or by permanent disqualification and replacement by other qualified Construction Authority Designee(s), if permitted by SCRRA rules Fines and Penalties for Track or Signal Safety Citations SCRRA shall collect from Construction Authority any fines or penalties assessed by Federal or State railroad safety regulatory agencies for citations of alleged violations of regulations pertaining to the Operational Inspection and Maintenance of the Freight Trackway performed by Construction Authority Designees. SCRRA costs associated with handling such violations will be reimbursed by Construction Authority in addition to the NTE Amount SCRRA May Replace Construction Authority Operational Inspection or Maintenance Designees Upon five (5) Working Days prior written notice to the Construction Authority Representative and a showing of good cause, and only if the Construction Authority is unable to provide a replacement Construction Authority Designee, SCRRA may replace a previously qualified Construction Authority Designee engaged in Freight Trackway Operational Inspection or Maintenance with an SCRRA Designee until such time as Construction Authority is able to provide a replacement Construction Authority Designee, if reasonably deemed necessary by SCRRA to protect the safety of train operations, the safety of the general public adjacent to the Right-of-Way, or to assure compliance with SCRRA maintenance policies or Federal or State regulations concerning railroad safety Support of Regulatory Agency Operational Inspections SCRRA and Construction Authority will jointly assist and support Operational Inspections of the Freight Trackway and documents related to the Operational Inspection and Maintenance thereof by Federal and/or State railroad safety agency officers. 7.5 Right of Entry Process In order to facilitate Construction Authority s management of the Construction process SCRRA will delegate to Construction Authority the management of the Right of Entry process on the Freight Trackway for the duration of the Project. SCRRA will rely on Construction Authority management of this process to document the perpetual records of alterations to the Freight Trackway right of way by the permitted Construction activities. SCRRA shall provide training and shall qualify Construction Authority Designees to manage SCRRA s Right of Entry Process. SCRRA shall furnish Construction Authority with examples of forms and formats used to grant Right of Entry Construction Authority to Follow SCRRA Policies, Procedures, and Formats -28-

34 Construction Authority will follow SCRRA s policies, procedures, forms, and Engineering Standards when granting Right of Entry to the Design/Build Contractor and Subcontractors and to third-parties who will perform work on the Freight Trackway. Construction Authority shall make no substantive changes to SCRRA s forms without prior written approval of the SCRRA Representative. Construction Authority shall be responsible for ensuring that in the vicinity of any intrusive work within the railroad right-of-way, all SCRRA signal and communication system cable locations are physically marked on site and pot-holed to confirm location in advance of intrusive work commencing. All markings to be refreshed at a maximum of every 30 days SCRRA to Train Construction Authority Designees to Manage Right of Entry SCRRA will train and qualify Construction Authority Designees to manage the Right of Entry Process and will furnish Construction Authority with samples of forms of agreement and formats for compiling Right of Entry and Project completion data Maintenance of Right of Entry Documents Construction Authority will furnish, on a mutually agreeable schedule, and/or upon request, and upon Project completion, copies of Right of Entry documents in any stage of completion to SCRRA SCRRA Oversight of Construction Authority Right of Entry Process SCRRA may perform periodic observations, inspections, audits, and tests of Construction Authority s Right of Entry forms, correspondence, and records and Construction activities. SCRRA may perform periodic observations of the work performance of Construction Authority Designees engaged in management of the Right of Entry process. These inspections and observations may be made jointly with Construction Authority Designees or may be made solely by SCRRA Designees after SCRRA first provides notice to the Construction Authority at least 24 hours in advance of such inspection and providing Construction Authority the opportunity to participate jointly SCRRA May Disqualify and/or Replace Construction Authority Right of Entry Designees Upon five (5) Working Days prior written notice to the Construction Authority Representative and a showing of good cause SCRRA may disqualify a Construction Authority Designee managing the Right of Entry process and, only if the Construction Authority is unable to provide a replacement Construction Authority Designee, replace a previously qualified Construction Authority Designee engaged in the management of the Right of Entry process with an SCRRA Designee until such time as Construction Authority is able to provide a replacement Construction Authority Designee, if reasonably deemed necessary by SCRRA to protect the safety of train operations, the safety of the general public adjacent to the Right-of-Way, or to assure compliance with SCRRA engineering or maintenance policies or Federal or State regulations concerning railroad safety. -29-

35 7.6 Rearrangement of Freight Trackway Construction Authority shall manage the Rearrangement of the Freight Trackway in accordance with this Agreement. Construction Authority Designees will perform Construction and rearrangement of the Freight Trackway Work Periods (a) Generally. SCRRA personnel will not access the Freight Trackway where work is being performed during the arranged work periods except to carry out the terms of this Agreement, in the case of a documented emergency, or as mutually agreed by the Parties. Work periods will be arranged with reasonable consideration given to the need to provide reliable railroad transportation, the need to accomplish the Project, and the need to provide On Track Safety for employees engaged in Freight Trackway and other Project work. The Parties recognize that some work periods will occur during nights and on weekends or holidays. (b) For the Project area from the West end of Project to White Avenue: Work in the ROW will be performed during work periods arranged by the Construction Authority with input from SCRRA. (c) For the Project area from White Avenue to Towne Avenue: On the Pasadena Subdivision, on-site work will be performed during work periods arranged by the Construction Authority with input from SCRRA. No EIC is required on the adjacent San Gabriel Subdivision at any time where K-rail barrier with fencing is installed at least 25ft from center of San Gabriel Subdivision Track 1. Notwithstanding the preceding sentence, EIC(s) are required for the San Gabriel Subdivision where work has the potential to foul the San Gabriel Subdivision tracks. On the San Gabriel Subdivision, all on-site work will be performed in accordance with the work windows set forth in Exhibit C, or as otherwise mutually agreed by the Parties. (d) For the Project area from Towne Avenue to the east end of Project: All on-site work will be performed in accordance with the work windows set forth in Exhibit C, or as otherwise mutually agreed by the Parties. Notwithstanding the preceding sentence, no EIC is required at any time where K-rail barrier with fencing is installed 15ft from center of the closest Metrolink track. Notwithstanding the preceding sentence, EIC(s) are required where work has the potential to foul Freight Trackway on which SCRRA and/or BNSF are operating Work Performed by Construction Authority Designees Freight Trackway Construction and/or Rearrangement will be performed exclusively under the direction of qualified Construction Authority Designees and will be inspected by such qualified Construction Authority Designees for conformance with the prescriptive requirements of the -30-

36 SCRRA Design Criteria, the prescriptive requirements of the SCRRA Maintenance Standards, and Federal and State railroad safety regulations before they authorize the resumption of train operations Interim Configuration of Freight Trackway Construction and Rearrangement of the Freight Trackway will be accomplished in increments and train operations will be conducted on the track in these interim configurations pending completion of the work. Segments of the work that are placed into interim configurations before they are placed into their final design configuration must meet all SCRRA maintenance criteria and all applicable Federal and State railroad safety regulations before resumption of train operations, but do not have to wholly comply with SCRRA engineering and design standards or Construction Authority Project Documents until the completion of the Freight Trackway Work. Notwithstanding the statement above, Construction Authority work shall be consistent with safety and maintaining Freight Track operational service levels as much as reasonably possible. Interim configuration of the Freight Trackway must comply with the terms set forth in Exhibit C as indicated therein SCRRA Oversight of Freight Trackway Rearrangement SCRRA may perform periodic observations of the work performance of Construction Authority Designees engaged in the Construction of the Project. These inspections and observations may be made jointly with Construction Authority Designees or may be made solely by SCRRA Designees after SCRRA first provides notice to the Construction Authority in advance of such inspection and providing Construction Authority the opportunity to participate jointly. 7.7 Station Operations Construction Authority shall ensure at all times during SCRRA operational service that: (a) (b) (c) All station platforms, facilities, services, information systems, signage and access routes are to be maintained in full service, free of obstruction; Safe, unobstructed, ADA compliant and adequately illuminated access is provided from parking lots to platforms and along and between platforms; The existing Metrolink Claremont Station remain fully functional and in operational service for passengers until the date upon which the new, relocated Metrolink Claremont Station is placed into operational service At the new Metrolink Claremont Station the Construction Authority shall: (a) (b) Install and connect and test power to 2 new Ticket Vending Machines (TVMs) compliant with SCRRA standards; Install 2 new Passenger Information Phones (PIPs), locations to be agreed with SCRRA, compliant with SCRRA standards. -31-

37 7.7.3 At the new Metrolink Claremont station SCRRA shall: (a) (b) (c) Provide fiber connection from new TVMs to new Communication Shelter and test and integrate TVMs into SCRRA network; Perform final configuration for PIPs into SCRRA network; and Procure 2 new TVMs and 2 new PIPs. ARTICLE 8 - TESTING AND START-UP 8.0 General For purposes of this Article 8, the terms Design/Build Contractor and Design/Build Contract shall refer to the Alignment Design/Build Contractor and the Alignment Design/Build Contract, respectively, if there is more than one Design/Build Contractor and Design/Build Contract for the Project. 8.1 Contractual Testing The roles and responsibilities for testing are as follows: Design/Build Contractor Construction Authority shall require in the Design/Build Contract that the Design/Build Contractor be responsible for successfully completing three types of tests as follows: Factory Tests Construction Tests Systems Integration Tests Design/Build Contractor s tests for Freight Trackway facilities will be based on SCRRA test standards and procedures and consistent with standard industry practice. The Design/Build Contractor will be responsible for coordinating with SCRRA during the tests and for providing training to SCRRA staff in the areas of system familiarization and configuration, equipment operation and equipment maintenance Construction Authority Construction Authority is responsible for overseeing the Design/Build Contractor throughout Design, Construction and testing, and for ensuring adherence to SCRRA test standards and procedures as set forth in Section Construction Authority shall monitor testing performed by the Design/Build Contractor, and shall make available to SCRRA all testing schedules, procedures, and results. -32-

38 8.1.3 SCRRA Construction Authority shall cause the Design/Build Contractor to provide SCRRA the opportunity to monitor any testing of components and systems directly related to train operations and maintenance of trains and property Critical Network Integration SCRRA shall provide personnel and equipment to perform final tests and integration of all systems that critically affect SCRRA s network, including: Fiber cut-overs into SCRRA s fiber backbone : Communication Shelter cut-overs: Customer Information System (CIS); TVMs; and PIPs Construction Authority shall provide to SCRRA a minimum of 30 days advance notice as to when critical system installation will be completed and tested ready for SCRRA to perform integration. All system component test results are to be provided to SCRRA in advance of integration. Construction Authority shall ensure that its contractor(s) support final integration testing as requested by SCRRA. 8.2 Pre-Turnback Operations Pre-Turnback Operations Period The Pre-Turnback Operations period provides SCRRA the opportunity to inspect, operate geometry and/or rail flaw inspection vehicle(s) and familiarize its operating staff with the Freight Trackway. Pre-Turnback Operations shall commence upon receipt by SCRRA of written notice from Construction Authority that Freight Trackway Work has been completed and shall continue for a period of 60 Days thereafter, or as mutually agreed by the Parties. Construction Authority notice of commencement of Pre-Turnback Operations shall include As-Built items listed in Section Design/Build Contractor Design/Build Contractor shall have completed training of four SCRRA personnel on the performance of system maintenance by the time Pre-Turnback Operations begins. The Design/Build Contractor s activities include completing punch list items, providing limited and reasonable support to SCRRA s performance of system maintenance, and other related activities Construction Authority Eight weeks prior to the expected date of Pre-Turnback Operations, Construction Authority will issue a letter to SCRRA requesting a Pre-Turnback Readiness Meeting to determine Project readiness to enter Pre-Turnback Operations. These meetings shall occur a minimum of four weeks prior to the scheduled date when Pre-Turnback Operations will begin. Construction -33-

39 Authority shall cause the Design/Build Contractor to actively participate in this meeting and implement any identified tasks required to begin Pre-Turnback Operations SCRRA During the Pre-Turnback Operations period, SCRRA shall be responsible for all train operations and activity within the Freight Trackway and shall provide reasonable access to the Design/Build Contractor to perform work. 8.3 SCRRA Addition of Punch List Items For the Alignment Design/Build Contract, SCRRA may add punch list items in accordance with the terms of the Alignment Design/Build Contract until Turnback Date, after which point no punch list items can be added. 8.4 Turnback of the Freight Trackway Turnback Process Turnback is the process through which Construction Authority and its Design/Build Contractor complete various activities and turn over the Freight Trackway to SCRRA. The Construction Authority shall complete the following activities in order to complete its obligations for Turnback: (a) (b) Construction Authority has reviewed the actions of the Design/Build Contractor(s) to determine that the Freight Trackway Work is complete in accordance with its own Project requirements. Construction Authority has determined that the Freight Trackway Work is ready for Turnback and will state in writing to SCRRA. Upon the completion of items a and b above, Construction Authority shall issue to SCRRA its written notice of Turnback. Upon receiving the written notification of Turnback, SCRRA shall issue its acknowledgement of Turnback. Following receipt of such acknowledgement from SCRRA, which will not be unreasonably withheld, Construction Authority shall have no further responsibilities or liability for the Freight Trackway, except for the requirements listed in Article 9. At the completion of the Project SCRRA shall assume the duties of controlling access to the Freight Trackway Obligations after Turnback Following Turnback, except as otherwise provided in this Agreement, work performed by Construction Authority to complete the Project must not materially interfere with operations of the Freight Trackway or cause a violation of the prescriptive requirements of SCRRA Design Criteria and Standards within the Freight Trackway on which Metrolink operates. ARTICLE 9 - INDEMNIFICATION AND WARRANTIES -34-

40 9.0 Indemnification of SCRRA by Construction Authority To the fullest extent permitted by law, Construction Authority shall indemnify, defend and hold harmless SCRRA, its Board members, member agencies, and its officers, agents and employees harmless from and against any liability and expenses, including without limitation, defense costs, any costs or liability on account of bodily injury, death or personal injury of any person or for damage to or loss of property, any environmental obligation, any legal fees and any claims for damages of any nature whatsoever, arising out of Construction Authority s actions pursuant to this Agreement and attributable to the fault of Construction Authority, except to the extent caused by the sole active (but not passive) negligence or willful misconduct of SCRRA. Following a determination of the percentage of fault and or liability by agreement between the Parties or a court of competent jurisdiction, Construction Authority will indemnify SCRRA for the percentage of liability determined. Any rights of Construction Authority hereunder to inspect, review and/or approve any Design or Construction performed by SCRRA or its subcontractors or agents shall not be deemed to render such Design or Construction under the management or control of Construction Authority. Construction Authority's obligations under this Section 9.0 shall not supersede any obligations of SCRRA to pay costs and expenses as may be expressly set forth elsewhere in this Agreement. Construction Authority's obligations under this Section 9.0 shall survive the termination or expiration of this Agreement, unless specified otherwise. 9.1 Indemnification of Construction Authority by SCRRA To the fullest extent permitted by law, SCRRA shall indemnify, defend and hold harmless Construction Authority, its Board members, and its officers, agents and employees harmless from and against any liability and expenses, including without limitation, defense costs, any costs or liability on account of bodily injury, death or personal injury of any person or for damage to or loss of property, any environmental obligation, any legal fees and any claims for damages of any nature whatsoever, arising out of SCRRA s actions pursuant to this Agreement and attributable to the fault of SCRRA, except to the extent caused by the sole active (but not passive) negligence or willful misconduct of Construction Authority. Following a determination of the percentage of fault and or liability by agreement between the Parties or a court of competent jurisdiction, SCRRA will indemnify Construction Authority for the percentage of liability determined. Any rights of SCRRA included in this Agreement to inspect, review and grant Approval of any Design or Construction performed by Construction Authority or its subcontractors or agents shall not be deemed to render such Design or Construction under the management or control of SCRRA. SCRRA s obligations under this Section 9.1 shall not supersede any obligations of Construction Authority to pay costs and expenses as may be expressly set forth elsewhere in this Agreement. SCRRA's obligations under this Section 9.1 shall survive the termination or expiration of this Agreement, unless specified otherwise. 9.2 Indemnification of Both SCRRA and Construction Authority In contemplation of the provisions of Section of the Government Code of SCRRA of California imposing certain tort liability jointly upon public entities solely by reason of such -35-

41 entities being parties to an agreement as defined by Government Code Section 895 of the Code, the Parties hereto, as between themselves and pursuant to the authorization contained in Government Code Sections and of that Code, will each indemnify and defend the other for the full liability imposed upon it, or any of its 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 Sections 9.0 and 9.1 hereof. The provisions of Section 2778 of the California Civil Code are a part hereof as if fully set forth herein. 9.3 Insurance Program Construction Authority will obtain and maintain in effect throughout the Construction Period a Contractor Controlled Insurance Program (CCIP) for the Design and Construction of the Project, will include SCRRA as a named insured or an additional insured in the CCIP, and will include, in addition to other policies, an umbrella or excess liability insurance policy with limits of not less than $200 million. 9.4 Warranties Warranties supplied by the Design/Build Contractor shall be made for the benefit of both SCRRA for work in Rights-of-Way and on SCRRA Facilities, and Construction Authority. The warranty period shall commence at Turnback and continue for one year thereafter. 9.5 Contractor Bonds SCRRA and Construction Authority shall require their respective contractors to secure payment and performance bonds, or other equivalent sureties, naming both SCRRA and Construction Authority as an additional obligee or co-beneficiary, as appropriate. Such bonds shall be issued by a California licensed surety Approvals ARTICLE 10 - MISCELLANEOUS PROVISIONS Except as otherwise provided herein, where this Agreement requires approval, consent, permission, satisfaction, agreement or authorization by either Party, such approval, consent, permission, satisfaction, agreement or authorization shall not be unreasonably withheld Counterparts This Agreement may be executed in several counterparts, and all counterparts so executed shall constitute one Agreement, binding on all of the Parties hereto, notwithstanding that all of the Parties are not signatory to the original or the same counterpart. -36-

42 10.2 Survival of Rights Neither Party shall have the right to assign any of its rights, interests or obligations under this Agreement, without the consent of the other Party, except to the extent Construction Authority transfers the Project or any portion thereof to LACMTA. This Agreement shall be binding upon, and, as to permitted successors or permitted assigns, inure to the benefit of, SCRRA and Construction Authority and their respective successors in all cases whether by merger, operation of law or otherwise Severability In the event any Section, or any sentence, clause or phrase within any Section, is declared by a court of competent jurisdiction to be void or unenforceable, such sentence, clause, phrase or Section shall be deemed severed from the remainder of this Agreement and the balance of this Agreement shall remain in full force and effect Notification or Notices Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given if personally delivered, transmitted by facsimile (with mechanical confirmation of transmission), or deposited in the United States mail, registered or certified, postage prepaid, addressed to the Parties addresses set forth below. Notices given in the manner provided in this Section 10.4 shall be deemed effective on the third Day following deposit in the mail or on the day of transmission or delivery if given by facsimile or by hand. Notices must be addressed to the Parties hereto at the following addresses, unless the same shall have been changed by notice in accordance herewith: If to SCRRA: Southern California Regional Rail Authority 900 Wilshire Blvd., Suite 1500 Los Angeles, CA Attn: Arthur T. Leahy Chief Executive Officer Fax: (213) If to Construction Authority: Metro Gold Line Foothill Extension Construction Authority 406 E. Huntington Drive, Suite 202 Monrovia, California Attn: Mr. Habib F. Balian, Chief Executive Officer Fax: (909) With a Copy to: Nossaman LLP 777 South Figueroa St., 34 th Floor -37-

43 Los Angeles, CA Attn: Alfred E. Smith, II, General Counsel to the Construction Authority Fax: (213) Alternate Notice The Parties may also designate other procedures for the giving of notice as required or permitted under the terms of this Agreement, but each such alternate procedure shall be described in writing and signed by a designated Representative of the Parties Statutory References All statutory references in this Agreement shall be construed to refer to that statutory section mentioned, related successor sections, and corresponding provisions of subsequent law, including all amendments Construction The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties; the singular includes the plural and vice versa; references to statutes or regulations include all statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referenced; and the words including, includes and include shall be deemed to be followed by the words without limitation. Words such as herein, hereof and hereunder shall refer to the entire document in which they are contained and not to any particular provision or section; words not otherwise defined that have well-known technical or construction industry meanings are used in accordance with such recognized meanings; references to persons or entities include their respective permitted successors and assigns and, in the case of governmental entities, any such governmental entity succeeding to their respective functions and capacities; and words of any gender used herein shall include each other gender where appropriate Section Headings The captions of the Articles or Sections in this Agreement are for convenience only and in no way define, limit, extend or describe the scope or intent of any of the provisions hereof Governing Law This Agreement has been executed by Construction Authority and SCRRA in the State of California and this Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to the principles of conflicts of law thereof Time of the Essence Except as otherwise provided herein, time is of the essence in connection with each and every provision of this Agreement. -38-

44 10.11 Legal Rights The rights and remedies of Construction Authority and SCRRA for default in performance under this Agreement, the permitting process, or any Work Authorization are in addition to any other rights or remedies provided by law Bonds/Fees Except as specifically agreed to in this Agreement, SCRRA waives and relinquishes all of its rights, if any, to seek or obtain bonds, fees or other security or payments from Construction Authority or its contractors Further Actions SCRRA and Construction Authority hereby agree to execute, acknowledge and deliver such additional documents, agreements, instruments and notices, and take such further actions, as may reasonably be required from time to time to carry out each of the provisions, and the intent, of this Agreement Force Majeure Neither Party shall be held liable for any loss or damage due to delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence; such causes may include acts of God, acts of civil or military authority, government regulations (except those promulgated by the Party seeking the benefit of this section), embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances or unusually severe weather conditions. Lack of funds or funding shall not be considered to be a cause beyond a Party's control and without its fault or negligence Third-Party Beneficiaries There are no third-party beneficiaries of this Agreement. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement Delegation to Design/Build Contractor SCRRA hereby approves the delegation by Construction Authority to the Alignment Design/Build Contractor or any other contractor in Construction Authority s sole discretion of any or all of Construction Authority s obligations pursuant to this Agreement. No such delegation shall relieve Construction Authority of its responsibility to cause the satisfaction of those obligations. -39-

45 10.17 Exhibits Every exhibit to which reference is made in this Agreement is hereby incorporated in this Agreement by this reference Entire Agreement This Agreement constitutes the entire agreement of the Parties with respect to, and supersedes all prior written and oral agreements, understandings, and negotiations with respect to, the subject matter hereof. Any and all prior agreements, understandings or representations relating to the transactions referred to herein are hereby terminated and canceled in their entirety and are of no further force and effect. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the Parties hereto Damage to Property Construction Authority shall be responsible for restoring to original condition, damage to public or private property occurring as a result of Construction activity on the Project performed by Construction Authority or its designee Authority of Parties Each of the Parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this Agreement, and has taken all actions necessary to authorize the execution and delivery of this Agreement. Each Party further agrees and represents and warrants that the execution, delivery, and performance by it of this Agreement does not and will not: require any consent or approval not heretofore obtained of any person or judicial or administrative body; violate any order, writ, judgment, injunction, decree, determination or award having applicability to such Party; result in a breach of or constitute a default under, cause or permit the acceleration of any obligation owed under, or require any consent under, any indenture or any agreement, contract, lease, or instrument to which such Party is bound or affected; or there are no orders, judgments, injunctions, awards, decrees, rulings, charges or writs of any Governmental Authority in effect preventing the consummation of, nor any pleadings filed in connection with any actions seeking an injunction against, any of the transactions contemplated by this Agreement. -40-

46 10.21 Binding Obligation This Agreement, when executed and delivered, is the legal, valid and binding obligation of the Parties hereto Order of Precedence Notwithstanding anything to the contrary, in the event of a conflict between the provisions of this Agreement and those of any other document, guideline, manual, standard, criteria or policy referenced herein, the provisions of this Agreement shall control except as the Parties otherwise mutually agree. [Signature Page Follows] -41-

47 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Effective Date. SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY By: Date: Arthur T. Leahy Chief Executive Officer APPROVED AS TO FORM: By: Don Del Rio General Counsel METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY By: Date: Habib F. Balian Chief Executive Officer APPROVED AS TO FORM: NOSSAMAN, LLP By: Alfred E. Smith, II General Counsel -42-

48 Exhibit A PROJECT DESCRIPTION In March 2013, the Metro Gold Line Foothill Extension Board of Directors certified the Final Environmental Impact Report (FEIR). The Project is a 12.3-mile extension of the Metro Gold Line Light-Rail Transit (LRT) alignment to the east, with service anticipated from the Azusa-Citrus Station to the Montclair Transcenter. It is a dual track system with overhead catenary lines for power. At this time the Project includes six stations: Glendora, San Dimas, La Verne, Pomona, Claremont, and Montclair. Each station includes parking facilities (surface or structures) for riders arriving by car. The LRT track would be generally at-grade and would be generally within the existing Authority rightof-way in a corridor that is shared with Burlington Northern Santa Fe (BNSF) and, in part, Metrolink trains. East of the City of Pomona, the LRT tracks would be placed adjacent to tracks currently used by BNSF Railway freight trains and Metrolink commuter trains. It is anticipated that the Project will require only limited land acquisitions. To the extent possible, design standards used in the Pasadena to Azusa phase of the Metro Gold Line extension were used to develop the Project, including a minimum 18- foot (30-foot desired) track separation between LRT and BNSF/Metrolink. Traction power supply substations (TPSS) will be located every 1.0 to 1.5 miles along the tracks. At this time, there are 28 existing at-grade road crossings in the corridor. The Project will also have several grade separations and new bridges. All stations would be constructed with center platforms (placed between the two LRT tracks) that would be 270 feet long, 16 feet and 2 inches wide (min), and 39 inches high (as measured from top of rail). Exhibit A

49 Exhibit B WORK AUTHORIZATION

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