Construction Manager – Hydrogen Fueling Station

VICTOR VALLEY TRANSIT AUTHORITY Representing the communities of Adelanto, Apple Valley, Barstow, Hesperia, Victorville, and San Bernardino County. RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION Re-Release June 26, 2023 NOTICE INVITING PROPOSALS – 2023-04 1. Purpose of the Procurement and Period of Performance The Victor Valley Transit Authority (VVTA) is seeking proposals from experienced and qualified individuals or firms to serve a construction manager for the Design Build construction of its new Hydrogen Fueling station located in Hesperia, CA. Period of performance will be for 18 months. 2. Obtaining the Proposal Document Proposal documents may be obtained from Victor Valley Transit Authority electronically at cplasting@vvta.org, www.publicpurchase.com, or

target="_blank">www.vvta.org/procurement . Proposals requested by courier or via USPS mail shall be packaged and sent only at the Proposers’ expense. 3. Proposal Due Date and Submittal Requirements Proposals must be received by 3:00 PM on (Pacific Daylight Time) (PDT) Thursday, August 3, 2023. 3.1 Sealed Proposals shall be delivered to the following address: Victor Valley Transit Authority Attn: Christine Plasting, CPPB Procurement Manager 17150 Smoke Tree Street Hesperia, CA 92345 3.2 Envelopes or boxes containing proposals shall be sealed and clearly labeled with VVTA’s RFP number and the solicitation title: “VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION” The Technical Proposal and Price Proposal shall be in separate sealed envelopes clearly marked “Technical Proposal,” and “Price Proposal.” 3.3 Proposers are requested to submit to VVTA one (1) original and one (1) electronic copy via DVD/CD or thumb/flash drive of the proposals. As an alternative, Proposers may submit their proposals electronically via www.publicpurchase.com. The Technical Proposal and Pricing Proposal must be separate uploaded files on publicpurchase.com. A Proposal is deemed to be late if it is received by VVTA after the deadline stated above. Proposals received after the submission deadline shall be returned unopened to the Proposer. It is the Proposer’s sole responsibility to ensure that the Proposals are received by the Procurement Manager by the date and time stated above. 4. Prevailing Wage Minimum wage rates for this project have been predetermined by the US Department of Labor (Davis Bacon Act) and the California Secretary of Labor. If there is a difference between the minimum wage rates predetermined by the US Department of Labor and the prevailing wage rates as determined by the California State Secretary of Labor for similar classifications of labor, the Contractor and his subcontractors shall pay not less than the higher wage rate. In accordance with provisions of Section 1773.2 (amended 1977) of the California Labor Code copies of the prevailing rate of per diem wages as determined by the State Director of Industrial Relations and are available at the California Department of Industrial Relations' Internet web site at https://www.dir.ca.gov/Public-Works/Prevailing-Wage.html. Future effective general prevailing wage rates, which have been predetermined and are on file with the California Department of Industrial Relations are referenced but not printed. Copies of the prevailing wage rates are on file with VVTA and available upon request. Davis Bacon Prevailing Wages, please visit : http://www.wagehour.dol.gov and https://www.dol.gov/agencies/whd/government-contracts/construction/surveys 5. Vendor Registration with the California Department of Industrial Relations California SB 854 Compliance -VVTA will not accept a Proposal from or enter a Contract with a Proposer, without proof that the Proposer and its Subcontractors are registered with the California Department of Industrial Relations (DIR) to perform public work under Labor Code Section 1725.5, subject to limited legal exceptions. The Proposal shall enter DIR Registration Number on the Proposal. mailto:cplasting@vvta.org, http://www.publicpurchase.com/ http://www.vvta.org/procurement http://www.publicpurchase.com/ https://www.dir.ca.gov/Public-Works/Prevailing-Wage.html http://www.wagehour.dol.gov/ https://www.dol.gov/agencies/whd/government-contracts/construction/surveys 6. Validity of Proposals Proposals and subsequent offers shall be valid for a period of ninety (90) days. An award may be made without further discussion. VVTA reserves the right to withdraw or cancel this RFP at any time without prior notice and VVTA makes no representation that any contract will be awarded to a proposer responding to this RFP. 7. Pre-proposal Meeting and Questions There will not be a pre-proposal meeting, however, the deadline for questions is at 5:00 PM (PDT), Friday, July 21, 2023. Prospective bidders are requested to submit written questions to the Procurement Manager at cplasting@vvta.org. Responses shall be shared with all known prospective proposers by written addenda only. The successful Proposer will be required to comply with all applicable Equal Opportunity Laws and Regulations. mailto:cplasting@vvta.org VVTA RFP 2023-04 Page 4 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION TABLE OF CONTENTS INSTRUCTIONS TO PROPOSERS..................................................................... 5 A. TIMELINE ................................................................................................. 5 B. PURPOSE................................................................................................. 5 C. BACKGROUND ......................................................................................... 6 D. PERIOD OF PERFORMANCE...................................................................... 6 E. EXAMINATION OF DOCUMENTS.................................................................. 6 F. VENDOR CONTACT.................................................................................. 6 G. ADDENDA TO RFP..................................................................................... 7 H EXCEPTIONS / DEVIATIONS ... ................................................................. 7 I. FORMAT OF PROPOSALS ......................................................................... 7 J. PROPOSAL PACKAGING REQUIRMENTS.................................................... 9 K. PRE-CONTRACTUAL EXPENSES.................................................................. 10 L. JOINT PROPOSALS .................................................................................. 10 M. TAXES ... ................................................................................................. 10 N. MODIFICATION OR WITHDRAWAL OF PROPOSALS....................................... 10 O. SUBCONTRACTORS AND ASSIGNMENTS..................................................... 11 P. DISADVANTAGED BUSINESS ENTERPRISE ................................................. 12 Q. CONFIDENTIALITY AND PUBLIC RECORDS ACT......................................... 12 R ACCEPTANCE / REJECTION OF PROPOSALS................................................ 14 S. SINGLE RESPONSE................................................................................. 14 T. CANCELLATION OF PROCUREMENT............................................................. 15 U. AVAILABILITY OF FUNDS............................................................................. 15 V. VVTA’S RIGHTS........................................................................................ 15 W. CONFLICT OF INTEREST AND CODE OF CONDUCT .................................... 16 X. EVALUATION, NEGOTIATION AND SELECTION........................................... 16 ATTACHMENT A – SCOPE OF WORK ATTACHMENT B – FEDERAL REGULATIONS ATTACHMENT C - SAMPLE CONTRACT ATTACHMENT D – PROTEST POLICY ATTACHMENT E – REQURED FORMS ATTACHMENT F – PREVAILING WAGE REQUIREMENTS VVTA RFP 2023-04 Page 5 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION INSTRUCTIONS TO PROPOSERS A. PROPOSAL TIMELINE Date of RFP: June 26, 2023 Agency: VICTOR VALLEY TRANSIT AUTHORITY Address of Agency: 17150 SMOKE TREE ST., HESPERIA, CA 92345-8305 Contracting Officer: Christine Plasting, CPPB, Procurement Manager Telephone No: (760) 995-3583 FAX No: (760) 948-1380 Email Address: cplasting@vvta.org Pre-proposal Conference (Non-Mandatory) Not for this solicitation Last Day for Questions 5:00 p.m. (PDT), Friday, July 21, 2023 Addenda and Answers to questions 2:00 p.m. (PDT), Thursday, July 27, 2023 Proposals Due Date 3:00 p.m. (PDT), Thursday, August 3, 2023 Anticipated Award Date August 21, 2023 B. PURPOSE The Victor Valley Transit Authority (VVTA) is seeking proposals from experienced and qualified Construction Management Contractors. VVTA is seeking an experienced individual or firm to serve as the construction manager for the Design Build construction of its new Hydrogen fueling station. The project will consist of one station located in Hesperia CA. Station will be equipped with two (2) 350 BAR (H35) dispensers and one (1) 700/350 BAR (H70/H35) dispenser for light duty and heavy-duty applications. The station will be designed with the ability to fuel 2000+ kg per day and be accessible for both public and private use. Liquid hydrogen will be delivered on an as needed basis, up to daily. Hydrogen production will not be utilized for this project. The design-build project will include the design and construction of the station and its equipment, all fencing, walls, concrete, and path of travel. It will also include a maintenance contract and liquid hydrogen deliveries. The facility is to be constructed on the southern portion of VVTA’s property located at the corners of E Avenue and Live Oak Street, just north of the VVTA Hesperia Maintenance and Operations Facility located at 17150 Smoke Tree St. Hesperia, CA 92345. mailto:cplasting@vvta.org VVTA RFP 2023-04 Page 6 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION C. BACKGROUND 1. VVTA is a Joint Powers Authority (JPA) created in 1992 to provide comprehensive public transit services to six incorporated towns and several unincorporated communities (represented by the San Bernardino County Board of Supervisors) – all member jurisdictions are located in San Bernardino County, a region that covers an area of approximately 950 square miles. 2. VVTA serves the Victor Valley, a sub region of Southern California north of the Cajon Pass, east of the Los Angeles County line, incorporating much of the Northern portion of the Mojave Desert in San Bernardino County. Victor Valley is part of the Inland Empire, a sub region of the Greater Los Angeles Area. 3. In addition to fixed route, rural routes, and complementary paratransit service, VVTA operates its BV Link – which provides intercity service from Barstow to Victorville and down into the San Bernardino Valley; its NTC Commuter service which operates from Victorville and Barstow to the National Training Center at Fort Irwin; a Micro-Transit pilot program; and a turnkey vanpool operation. 4. VVTA has been designated as a Consolidated Transportation Services Agency (CTSA) for the North Desert Region of San Bernardino County - a very large geographic area including responsibility for volunteer driver transportation services in Trona and Big River. D. PERIOD OF PERFORMANCE VVTA intends to award a Fixed Price based contract for a period of 18 months. VVTA reserves the right to award the contract at a time other than stated in the proposed schedule. E. EXAMINATION OF DOCUMENTS By submitting a proposal, the Proposer represents that it has thoroughly examined and become familiar with the work required and documents included under the RFP. F. VENDOR CONTACT 1. All correspondence, communication and/or contact with regard to any aspect of this solicitation is authorized only with the designated Contracting Officer identified in “A. Proposal Schedule” above, or their designated representative. Proposers and their representatives shall not make any contact with or communicate with any employees of VVTA, or its directors and consultants, other than the Contracting Officer with regard to any aspect of this solicitation or offers. Ex parte’ communications with members of VVTA’s Board of Directors or any person responsible for awarding a contract, including the Contracting Officer is prohibited under California Public Contract Code Section 20216. All communications shall be in writing and will be made public. 2. If it should appear to a prospective Proposer that the performance of the Work under the contract, or any of the matters relating thereto, is not sufficiently described or explained in the RFP or Contract Documents, or that any conflict or discrepancy exists between different parts thereof or with any federal, state, local or Agency law, ordinance, rule, regulation, or other standard or requirement, then the Proposer shall submit a written VVTA RFP 2023-04 Page 7 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION request for clarification to VVTA within the time period specified above. G. ADDENDA TO RFP VVTA reserves the right to amend the RFP at any time. Any amendments to or interpretations of the RFP shall be described in the written addendum. VVTA shall provide copies of Addenda to all prospective Proposers officially known to have received the RFP, as well as post to the VVTA website: www.vvta.org/bids. Prospective Proposers, or their agents, shall be responsible to collect the addendum at the address provided in “Contracting Officer” (Section A. above) or receive t h e same otherwise. Notification of the addendum will also be electronically delivered to all such prospective Proposers officially known to have received the RFP and to the address provided by each prospective Proposer. Failure of any prospective Proposer to receive the notification or addendum shall not relieve the Proposer from any obligation under its proposal as submitted or under the RFP, as clarified, interpreted, or modified. All addenda issued shall become part of the RFP. Prospective Proposers shall acknowledge the receipt of each individual addendum and all prior addendum in their proposals. Failure to acknowledge in their proposals receipt of addendum may, at VVTA’s sole option, disqualify the proposal. If VVTA determines that the addendum may require significant changes in the preparation of proposals, the deadline for submitting the proposals may be postponed by the number of days that VVTA determines will allow Proposer sufficient time to revise their proposals. Any new Due Date shall be included in the addendum. H. EXCEPTIONS / DEVIATIONS Using the Form for Proposal Deviation – Attachment E – State any exceptions to or deviations from the requirements of this RFP, segregating “technical” exceptions from “contractual” exceptions. Where the proposer wishes to propose alternative approaches to meet VVTA’s technical or contractual requirements, these should be thoroughly explained. If no contractual exceptions are noted, the proposer will be deemed to have accepted the contract requirements as set form in the Scope of Work. I. FORMAT OF PROPOSALS 1. Proposals must be submitted and organized in the order listed below. The proposal shall include, at a minimum, the following: a. Cover letter – Proposer must include a letter of introduction. b. Title Page c. Table of Contents d. Profile of Firm (History, Experience, Changes) – This section should include details regarding the proposer’s ability and experience to operate the project as specified in the RFP. The following information should be included: I. Corporate hierarchy – i.e., President, Vice President, Corporate Officers, etc.... http://www.vvta.org/bids VVTA RFP 2023-04 Page 8 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION II. Corporate overview of services or activities performed. • History of firm – Include a brief history of the firm • Founding Date (month and year) • Firm size – staff and client base • Firm’s vision and mission statement III. Employment practices – policies and procedures, training, including safety training and affiliation/accreditation. IV. Location of the office from which the work will be provided and the staff allocation at that office. e. Identify Project team including, but not limited to: I. Size of Project Team II. Education, qualifications, and specific experience in performing the work that is being solicited in this RFP, especially related to the construction of a fueling station – hydrogen preferred. III. Project Organization Chart. f. Resumes of Key Personnel g. Commitment that key personnel will be available throughout the contract and will not be removed without prior approval of VVTA. h. Proposer’s approach to accomplish the Scope of Work Requirements. I. Description of proposer’s approach to performing services. Proposals must include a description of the services to be rendered per the scope of work including a detailed proposal. II. Provide a work plan or description of how the work will be performed by the contractor. (e.g. – outline a proposed work plan and methodologies that will be employed to accomplish the work) III. The name of the Project Manager / Liaison and a list of personnel to be assigned to the project and the roles and qualifications. IV. Indicate whether your firm will be subcontracting portion(s) of the work. If so, indicate the name of the subcontractor, the portion of the work to be subcontracted, and their State of CA Contractor’s License Number (if applicable). V. Describe your firm’s approach to resolving problems that may be encountered in the field. i. Summary of Contracted Services I. Proposer must identify all areas that will be subcontracted and name of the firms VVTA RFP 2023-04 Page 9 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION performing such work. List their key personnel and their qualifications. II. Proposer must list all services, equipment, and facilities that the proposer has provided and/or operated under contract during the past five (5) years. Include company name, address, phone number, and contact. III. VVTA reserves the right to interview any organization and visit any of the facilities listed as subcontractors. j. Required Forms (See Attachment E) k. Any other information required by this RFP or its addenda which may not be listed above. l. Cost/Price Proposal – Proposers shall submit proposed pricing to provide the products/services for the work described in Attachment A – Scope of Work. 2. Firms may include additional information, however, do NOT attach terms and conditions that conflict with the RFP, as your firms’ proposal may be deemed non- responsive. J. PROPOSAL PACKAGING REQUIREMENTS 1. Please note that all addenda must be acknowledged. The proposer is instructed to use Attachment E – Acknowledgement of Addenda – to acknowledge all addenda released during this solicitation. 2. Sealed original proposal plus one (1) electronic copy, OR via www.publicpurchase.com, must be received at the address shown in “Proposal Schedule” (Section A) not later than 3:00 PM (PDT) on Thursday, August, 2023. All labor, equipment, materials, and training shall be furnished in strict accordance with the delivery schedule and the Contract terms and conditions. All Proposals shall be valid for a period of ninety (90) days. 3. Proposals received after the time and date due will be rejected without consideration or evaluation and returned, unopened, to the return address on the package received. Under no circumstances will any proposal be accepted after the due date and time in accordance with PCC 10168. 4. Proposer shall submit the Cost/Price Proposal (Attachment E) in a separate sealed envelope marked “Pricing Proposal”. Prices are to be quoted excluding of California State and Local Sales Tax. Proposer shall pay all taxes which are legally enacted at the time bid is submitted and shall secure and pay for all permits and government fees, licenses, and inspections necessary for the proper execution and completion of the Contract. 6. Proposals including all submittal documents and including price elements shall be submitted by the due date specified, in two sealed packages identified as “VVTA RFP 2023-04 CONSTRUCTION MANAGER HYDROGEN FUELING STATION – TECHNICAL PROPOSAL” and “VVTA RFP 2023-04 – COST/PRICE PROPOSAL” http://www.publicpurchase.com/ VVTA RFP 2023-04 Page 10 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION On Publicpurchase.com, please upload the technical proposal and the Cost/Price proposal as two SEPARATE documents in the portal. 7. NO COST, PRICE OR FINANCIAL INFORMATION OF ANY KIND SHALL BE INCLUDED IN PACKAGE NO. 1, NOR IN ANY OF THE PROPOSAL DOCUMENTS THAT WILL BE INLUCDED IN THIS PACKAGE. 8. If a Proposer is submitting their proposal electronically through publicpurchase.com, a copy of any required originals (notarized document, bonds, etc....) must be included with their proposal. The original documents must be received by VVTA not later than 5 business days after the Proposal Due Date. K. PRE-CONTRACTUAL EXPENSES 1. VVTA shall not be liable for any pre-contractual expenses incurred by any Proposer in preparation of its proposal. Proposer shall not include any such expenses as part of their proposal. 2. pre-contractual expenses are defined as expenses incurred by the proposer in: a. Preparing a proposal in response to this RFP; b. Submitting that proposal to VVTA; c. Negotiating with VVTA any matter related to this proposal; and d. Any other expenses incurred by proposer prior to date of award, if any, of the Agreement. L. JOINT PROPOSALS Where two or more firms desire to submit a single proposal in response to this RFP, they should do so on a prime-subcontractor basis rather than as a joint venture. M. TAXES Proposals are subject to State and Local sales taxes. However, VVTA is exempt from the payment of Federal Excise and Transportation Taxes. Proposer is responsible for payment of all taxes for any goods, services, processes, and operations incidental to or involved in the contract. N. MODIFICATION OR WITHDRAWAL OR PROPOSALS 1. A modification of a proposal already received will be accepted by VVTA only if the modification is received prior to the Proposal Due Date or is specifically requested by VVTA. All modifications shall be made in writing and executed and submitted in the same form and manner as the original proposal. 2. A Proposer may withdraw a proposal already received prior to the Proposal Due Date by submitting, in the same manner as the original proposal, to VVTA a written request for withdrawal executed by the Proposer’s authorized representative, in accordance with (California Public Contract Code) PCC 10169. After the proposal Due Date, a proposal may be withdrawn only if VVTA fails to award the contract within the proposal validity VVTA RFP 2023-04 Page 11 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION period prescribed in “Due Date” or any agreed upon extension thereof. The withdrawal of a proposal does not prejudice the right of a Proposer to submit another proposal within the time set for receipt of proposals. PCC Section 10169 does not authorize the withdrawal of any bid after the time fixed in the Public Notice for the opening of bids. 3. This provision for modification and withdrawal of proposals may not be used by a Proposer as a means to submit a late proposal and, as such, will not alter VVTA’s right to reject a proposal. O. SUBCONTRACTORS AND ASSIGNMENTS 1. Pursuant to the provisions of PCC 4104, every proposer shall in the proposal set forth: a. The name and location of the place of business (address) of each subcontractor who will perform work or labor or render service to the proposer in or about the work in an amount in excess of one-half of one percent of the proposer’s total proposal; and b. The portion of the work that will be done by each subcontractor. The proposer shall list only one subcontractor for each portion of work as defined by the proposer in its proposal. c. The dollar amount of the work which will be done by each such subcontractor 2. Proposer shall complete form entitled “List of Subcontractors (Attachment E)” with the above requested information. 3. If the proposer fails to specify a subcontractor for any portion of the work to be performed under the contract in excess of one-half of one percent of the proposer’s total Proposal, or if the proposer specified more than one subcontractor for the same portion of the work to be performed under the contract in excess of one-half of one percent of the proposer’s total proposal, the proposer agrees to perform that portion. 4. The successful proposer shall not, without the express written consent of VVTA, either: a. Substitute any person, firm, or corporation as subcontractor in place of the subcontractor designated in the original Proposal; or b. Permit any subcontract to be assigned or transferred; or c. Allow it to be performed by anyone other than the original subcontractor listed in the Proposal. 5. Each proposer shall set forth in its proposal the name and location of the place of business (address) of each subcontractor certified as a disadvantaged business enterprise who will perform work or labor or render a commercially useful function to the prime contractor in connection with the performance of the contract. 6. Proposer shall not assign any interest it may have in any Agreement/Contract with VVTA, nor shall proposer assign any portion of the work under any such Agreement with a value VVTA RFP 2023-04 Page 12 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION in excess of one-half of one percent of Agreement price to be sub- contracted to anyone other than these subcontractors listed in the “List of Subcontracts,” except by prior written consent of VVTA. VVTA’s consent to any assignment shall not be deemed to relieve proposer of its obligations to fully comply with its obligations under its Agreement with VVTA. Proposer with its own forces shall perform a minimum of ten percent (10%) (Calculated as a percentage of the total cost of the project) of the work under this Agreement. Proposer shall also include in its subcontract agreements the provisions of its Agreement with VVTA including the stipulation that each subcontractor shall maintain adequate insurance coverage compatible to the insurance coverage required of the proposer. P. DISADVANTAGED BUSINESS ENTERPRISE This project is subject to Title 49, Code of Federal Regulations (CFR), Part 26, entitled “Participation by Disadvantaged Business Enterprises (DBE) in Department of Transportation Financial Assistance Programs (“Regulations”).” The Regulations in their entirety are incorporated herein by this reference. VVTA has established a Race Neutral Federal Transportation Administrations (FTA) DBE program and as such, there is no DBE goal on this project. However, it is the policy of VVTA to ensure non-discrimination in the award and administration of all contracts and to create a level playing field on which DBEs can compete fairly for contracts and subcontracts. VVTA highly encourages the participation of DBE contractors and the utilization of DBE subcontractors in this project. If a DBE participates as a contractor or includes a DBE subcontract, 5 additional points will be added to the Proposer’s Evaluation Score. Q. CONFIDENTIALITY AND PUBLIC RECORDS ACT Access to government records is governed by the State of California Public Records Act. (Government Code Section 6250 et. seq.) Except as otherwise required by state law, VVTA will exempt from disclosure proprietary information, trade secrets and confidential commercial and financial information submitted in the proposal. Any such proprietary information, trade secrets of confidential commercial and financial information, which a Proposer believes should be exempted from disclosure, shall be specifically identified, and marked as such. Blanket- type identification by designating whole pages or sections as containing proprietary information, trade secrets or confidential commercial and financial information will not assure confidentiality. The specific proprietary information, trade secrets or confidential commercial and financial information must be clearly identified as such. Proposer fully understands the scope of work/specifications and has carefully checked all words and figures inserted in said RFP and further understands that VVTA will no way be responsible for any errors or submissions in the preparation of this proposal. 1. Exclusive Property a. Responses to this Proposal become the exclusive property of VVTA and are subject to the California Public Records Act. b. Those elements of each Proposal that are trade secrets, as the term is defined in California Civil Code section 3426.1 (d) or otherwise exempt by law from disclosure and which are not prominently marked as TRADE SECRET, CONFIDENTIAL or VVTA RFP 2023-04 Page 13 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION PROPRIETARY may be subject to disclosure. 2. Disclosure of Records a. Upon a request for records from a third party regarding this proposal VVTA will notify in writing the party involved. The party involved must respond within twenty (20) calendar days with the identification of any and all “proprietary, trade secret, or confidential commercial or financial” information and the party involved shall agree to indemnify VVTA for its defense costs, (Including reasonable attorney fees) associated with its refusal to produce such identified information; otherwise, the requested information may be released and VVTA shall not be held liable for complying with the records request. b. If disclosure is deemed to be required by law or by an order of the court, VVTA shall not, in any way, be liable or responsible for the disclosure of any such records including without limitation those so marked. c. Any documents that are not marked “TRADE SECRET” or “CONFIDENTIAL” or “PROPRIETARY,” will be made available. 3. Exemption from Disclosure May Be Deemed Unresponsive a. VVTA will take into consideration documents that the Proposer deems exempt from disclosure which must be marked “TRADE SECRET” or “CONFIDENTIAL” or “PROPRIETARY.” b. Proposers who indiscriminately identify all or most of their proposals as exempt from disclosure without justification may be deemed non-responsive. 4. Indemnification of VVTA by Proposer a. The Proposer agrees to indemnify, hold harmless and defend VVTA and each of its board members, officers, officials, employees and agents from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of a Public Records Act request for any of the contents of a Proposal labeled as protected information and identified as, among other things, “TRADE SECRET” or “CONFIDENTIAL” or “PROPRIETARY.” This obligation shall survive the RFP process, including the awarding of the Contract b. Proposer agrees to absorb all costs and expenses, including attorneys’’ fees, in any action or liability arising under the California Public Records Act pertaining to protected information contained and labeled as such in the proposer’s proposal. 5. Public Interest a. The public interest exemption of the California Public Records Act provides that an agency may withhold the disclosure of a record by showing that the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. VVTA RFP 2023-04 Page 14 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION b. To protect the integrity of the proposal process, in most instances, price proposals and information regarding the contents of a Proposal, will not be released or made available to other Proposers or the public until contract award is made by VVTA’s Board of Directors and after the conclusion of any protest. c. VVTA shall employ sound business practices no less diligent than those used for VVTA’s own confidential information to protect the confidence of all licensed technology, software, documentation, drawings, schematics, manuals, data and other information and material provided by Proposers and the Contractor pursuant to the Contract which contain confidential commercial or financial information, trade secrets or proprietary information as defined in or pursuant to the state law against disclosure of such information and material to third parties except as permitted by the Contract. The Contractor shall be responsible for ensuring that confidential commercial or financial information, trade secrets or proprietary information, with such determinations to be made by VVTA in its sole discretion, bears appropriate notices relating to its confidential character. R. ACCEPTANCE / REJECTION OF PROPOSALS 1. VVTA reserves the right to reject any or all proposals for sound business reasons, to undertake contract negotiations with one or more Proposers, and to accept that proposal, which in its judgment, will be most advantageous to VVTA, price and other evaluation criteria considered. VVTA reserves the right to consider any specific proposal, which is conditional or not prepared in accordance with the instructions and requirements of this RFP to be non- responsive. VVTA reserves the right to waive any defects, or minor informalities or irregularities in any proposal which do not materially affect the proposal or prejudice other Proposers. 2. If there is any evidence indicating that two or more Proposers are in collusion to restrict competition or otherwise engaged in anti-competitive practices, the proposals of all such Proposers shall be rejected and such evidence may be a cause for disqualification of the participants in any future solicitations undertaken by VVTA. 3. VVTA reserves the right to reject a proposal that includes unacceptable conditions, exceptions, and deviations. S. SINGLE PROPOSAL RESPONSE If only one proposal is received in response to this RFP and it is found by VVTA to be acceptable, a detailed price/cost proposal may be requested of the single Proposer. A price or cost analysis, or both, possibly including an audit, may be performed by or for VVTA of the detailed price/cost proposal in order to determine if the price is fair and reasonable. The Proposer has agreed to such analysis by submitting a proposal in response to this RFP. A price analysis is an evaluation of a proposed price that does not involve an in-depth evaluation of all the separate cost elements and the profit factors that comprise a Proposer’s price proposal. It should be recognized that a price analysis through comparison to other similar procurements must be based on an established or competitive price of the elements used in the comparison. The comparison must be made to a purchase of a similar quantity, involving similar specifications and in a similar time frame. Where a difference exists, a detailed analysis must be made of this difference and the VVTA RFP 2023-04 Page 15 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION costs attached thereto. Where it is impossible to obtain a valid price analysis, it may be necessary to conduct a cost analysis of the proposed price. A cost analysis is a more detailed evaluation of the cost elements in the Proposer’s Offer to perform. It is conducted to form an opinion as to the degree to which the proposed costs represent what the Proposer’s performance should cost. A cost analysis is generally conducted to determine whether the Proposer is applying sound management in proposing the application of resources to the contracted effort and whether costs are allowable, allocable, and reasonable. Any such analyses and the results therefrom shall not obligate VVTA to accept such a single proposal; and VVTA may reject such proposal at its sole discretion. T. CANCELLATION OF PROCUREMENT VVTA reserves the right to cancel the procurement, for any reason, at any time before the Contract is fully executed and approved on behalf of VVTA. U. AVAILABILITY OF FUNDS This procurement is subject to the availability of funding. VVTA’s obligation hereunder is contingent upon the availability of appropriated funds from which payment for the contract purposes can be made. No legal liability on the part of VVTA for any payment shall arise until funds are made available to the Contracting Officer for this contract and until the Contracting Officer receives notice of such availability, by issuance of a written Notice to Proceed by the Contracting Officer. Any award of Contract hereunder is conditioned upon said availability of funds for the Contract. V. VVTA’S RIGHTS 1. Each Proposal will be received with the understanding that acceptance by VVTA of the Proposal to provide services described herein shall constitute a contract between the Proposer and VVTA which shall bind the Proposer on its part to furnish and deliver at the prices given and in accordance with conditions of said accepted Proposal and specifications. 2. VVTA reserves the right, in its sole discretion to: a. Accept or reject any and all Proposals, or any item or part thereof, or to waive any informalities or irregularities in Proposals. b. Withdraw or cancel this RFP at any time without prior notice. VVTA makes no representations that any contract will be awarded to any Proposer responding to this RFP. c. Issue a new RFP for the project. d. To postpone the Proposal opening for its own convenience. e. Investigate the qualifications of any Proposer, and/or require additional evidence or qualifications to perform the work. VVTA RFP 2023-04 Page 16 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION W. CONFLICT OF INTEREST AND CODE OF CONDUCT 1. POLICY OVERVIEW Federal regulations require VVTA to prevent conflicts of interest in contract awards. VVTA also seeks to avoid any appearance of conflicts of interest. VVTA personnel and Contractors are expected to avoid conflicts of interest or appearances thereof and actions which could result in favoritism or appearances thereof. 2. GUIDELINES FOR CONTRACTOR RELATIONSHIPS To avoid conflict whether real or apparent, the following shall apply to employees of any Contractor providing services to VVTA. No Contract Management personnel or support staff shall: (a) Make recommendations or be involved in preparation of specifications for any contracts for which that Contract personnel may bid or propose. (b) Be involved in any aspect of evaluation, selection, or award of a contract for which that Contract personnel may bid. (c) Be involved in any aspect of contract administration of a contract or subcontract which has been awarded to Contract personnel. X. EVALUATION, NEGOTIATION AND SELECTION The award for this solicitation shall be to the Proposer whose evaluation score is the highest. 1. OPENING OF PROPOSALS Proposal will be reviewed and evaluated in accordance with the criteria and procedures described in this document. Proposers determined to be within a competitive range and that have a reasonable chance of receiving a contract may be contacted to schedule a meeting with VVTA to carry out further negotiations and discussions. VVTA reserves the right to award to a proposer without further discussions, negotiations, or it may determine that no proposer meets the needs of VVTA. 2. EVALUATION TEAM An evaluation team will be assembled by the VVTA Executive Director or designee. The team may be made up of staff of VVTA and may include representatives of other nearby government agencies affected by or have specific knowledge of this type of procurement. 3. PROPOSAL SELECTION PROCESS a. The following describes the process by which proposals will be evaluated and a selection made for a potential award. Upon receipt of the proposals, copies will be distributed to the evaluation team members, together with scoring sheets, which VVTA RFP 2023-04 Page 17 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION include the evaluation criteria, and the points assigned to each category. b. Each team member will review the Proposers’ submittals in conjunction with the criteria contained in Section X.5., below. All Proposals shall be evaluated and ranked for the purpose of determining the competitive range and to select a proposal determined to be the most advantageous to VVTA. c. Proposals that do not comply with the instructions contained in these RFP documents and do not include the required information shall be rejected as non-responsive and shall not be considered for the competitive range. VVTA reserves the right to waive technical defects, discrepancies, and minor irregularities in an RFP and/or submitted proposal(s). VVTA reserves the right to award any alternatives set forth in the solicitation documents in its sole discretion. Submitted proposals may be rejected if there is any alteration of the RFP forms, additions not called for, conditional proposals, incomplete proposals, or irregularities of any kind. VVTA reserves the right to reject any proposal not in compliance with the solicitation documents or prescribed public contracting procedures and requirements. Written notice of rejection of all submitted proposals shall be sent to all Proposers. ALL UNSIGNED PROPOSALS SHALL BE REJECTED. d. Submittal of a proposal shall mean that the Proposer has accepted the VVTA Contract Documents in their entirety without exception. e. When the individual members of the evaluation teams have completed their evaluations, the entire team will meet to discuss and review the proposals. Once the discussions have been completed, members will have an opportunity to revise their scores independently. A final consensus meeting shall be held to confirm the most technically qualified and best value proposal submitted for award. The VVTA Contracting Officer, or designee, shall serve as Facilitator of the Evaluation Committee. f. Proposals that have been determined not to be in the competitive range and cannot be reasonably made to be within the competitive range, will be notified in writing, that they are no longer under consideration. 4. QUALIFICATION REQUIREMENTS a. The Proposers, whose proposals have been determined by the evaluation process t o b e i n t h e competitive range, may be notified and scheduled to meet with VVTA for further discussions, clarifications, and negotiations. The meeting will only occur if further discussion is required by the Evaluation Committee. VVTA reserves the right to award and contract to a Proposer without any meeting or further discussions. b. Any Proposal deviations submitted by the Proposer will be discussed as part of the negotiations process. However, VVTA at its discretion may in its best interest, reject any and all such conditions, exceptions, and deviations. Any proposal which fails to comply with the VVTA instructions and requirements listed in the solicitation documents shall be deemed non-responsive and their proposal shall be rejected. c. As part of the negotiation process, VVTA reserves the right to conduct factory visits to inspect the Proposer’s facilities. VVTA shall also have the right to contact other p a VVTA RFP 2023-04 Page 18 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION r t y with whom the Proposer has experience with this type of request, and other relevant references which the Proposer has listed. d. At the conclusion of the discussion and negotiation processes, each of the Proposers still determined by VVTA to be within the competitive range will be afforded the opportunity to submit a revised proposal with a clear understanding that VVTA will then choose that proposal, which it finds to be most advantageous based upon the evaluation criteria and final scoring. The results of the evaluations and the selection of a proposal for any award will be documented in a report to the final approval authority within VVTA. 5. PROPOSAL EVALUATION CRITERIA AND SCORING a. Listed below is the point scale system by which proposals from responsible Proposers will be evaluated and ranked for the purpose of determining any competitive range and to make any selection of a proposal for a potential award. VVTA RFP 2023-04 Page 19 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION TOTAL POSSIBLE POINTS 145 b. The cost factor will be made up of two components. Technical scores up to One Hundred twenty (120) base technical points; and Price twenty-five (25) Base Price points. The maximum 145 base points available will be awarded to the Proposer with the highest Technical and price score, combined. Price points will be calculated by dividing the lowest price offered by the proposal price being scored and multiplying the quotient of EVALUATION CRITERIA MAXIMUM POINTS RESPONSIBILITY AND RESONSIVENESS DETERMINATIONS PASS/FAIL 1. MINIMUM QUALIFICATIONS: • 5 years Construction Mgmt overseeing Fueling stations – Hydrogen preferred 15 2. DESIRED KNOWLEDGE, SKILLS, EXPERIENCE: Construction Management – All items listed on the SOW Attachment A. 15 2. STAFFING AND PERSONNEL/PROGRAM OPERATIONS: Qualifications and experience of management and staff and other personnel, comprehensiveness of plan and team’s familiarity with the provision of Construction Management for a fueling Station, preferably Hydrogen or CNG. 30 3. APPROACH: The proposal shall contain a detailed explanation of the project and not a reiteration of the RFP itself. The information offered should be a compendium of the Proposer’s knowledge of the standards outlined in the Scope of Work. 35 4. DBE PARTICIPATION: The Proposer or subcontract who is a certified as Disadvantaged Business Enterprise. Proof of Certification required to be considered. 5 5. REFERENCES: Based on the references provided in Proposal, Procurement will check references and score them. 20 6. PRICE PROPOSAL A. Total Projects Costs. (All inclusive) B. Project Breakdown. Provide a detailed listing for all task items with total project amount. 25 VVTA RFP 2023-04 Page 20 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION the calculation by (25); (Low offer divided by next highest offer) times 25 points. The Price Proposals, DBE and References will be evaluated by the RFP Facilitator. c. The balance of the evaluation criteria will be scored on the evaluator’s assessment in the areas described in the Table above, based on the following system: Exceptional: Fully compliant with the solicitation requirements and with desirable strengths or betterments; no errors, omissions, discrepancies, weakness, or potential risks. Proposals judged to fall within these parameters will receive 90 to 100% of the points available for the category. Good to Superior: Compliant with requirements of the solicitation; some minor errors, omissions, discrepancies, weakness, or risks. Proposals in this range will receive 80 to 89% of the points available for the category. Adequate: Minimally compliant with solicitation requirement; with errors, omissions, discrepancies, weakness, or risks; which may be possible to correct and make acceptable. Proposals in this range will receive 70 to 79% of the points available for the category. Poor to Deficient: Non-compliant with solicitation requirements; contains errors, omissions, discrepancies, weaknesses, or risks which would be difficult to correct or make acceptable. Proposals in this range will receive 60 to 69% of the points available for the category. Unacceptable: Totally deficient and non-compliant with requirements; contains major non-correctable errors, omissions, discrepancies, weaknesses, or risks. Proposals in this range will receive 0 to 59% of the points available for the category. There is the possibility of an extra 20 points for those proposers whose scores are within the competitive range and are asked to present an oral presentation. Each proposer’s final score will be an average score based on the scores given by the evaluation committee. 6. EVALUATION PROCEDURES a. All aspects of the evaluations of the proposals and any discussions and/or negotiations, including documentation, correspondence, and meetings, will be kept confidential during the evaluation and negotiation process. b. Proposals will be analyzed for conformance with the instructions and requirements of the RFP and Contract documents. Any proposal which fails to comply with the VVTA instructions and requirements listed in the solicitation documents shall be deemed non- responsive and their proposal shall be rejected. Proposers are advised that the detailed evaluation forms and procedures will follow the same proposal format and organization specified in Section I. Therefore, Proposer shall pay close attention to and strictly follow all instructions and requirements. Submittal of a proposal means that the Proposer has accepted all of the Contract documents, except such conditions, exceptions, reservations, or understandings explicitly, fully, and separately stated on the forms and according to the instructions of “Form for Proposal Deviation” (Attachment E). Any VVTA RFP 2023-04 Page 21 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION such conditions, exceptions, reservations or understanding which do not result in the rejection of the proposal are subject to evaluation under the criteria of “Proposal Evaluation Criteria” (Section X.5.) c. Evaluations will be made in strict accordance with all of the evaluation criteria and procedures specified in “Proposal Selection Process” (Section X .3.) above. VVTA shall select for any award the highest ranked proposal from a responsible Proposer, qualified under “Qualification Requirements” (Section X.4.), which does not render this procurement financially infeasible and is judged to be most advantageous to VVTA based on consideration of the evaluation “Proposal Evaluation Criteria” (X.5.). 7. QUALIFICATION OF RESPONSIBLE PROPOSERS Proposals will be evaluated in accordance with requirements of “Qualification Requirements” (Section X.4.) to determine the responsibility of Proposers. Any proposals from Proposers whom VVTA finds not to be responsible and finds cannot be made to be responsible may not be considered for the competitive range. Final determination of a Proposer’s responsibility will be made upon the basis of initial information submitted in the proposal, any information submitted upon request by VVTA, and information resulting from Agency inquiry of Proposer’s references, and its own knowledge of the Proposer. 8. DETAILED EVALUATION OF PROPOSALS AND DETERMINATION OF COMPETITIVE RANGE a. Each proposal will be evaluated in accordance with the requirements and criteria specified in “Proposal Selection Process” (Section X.3.) b. The following are the minimum requirements that must be met for a proposal to be considered responsive for inclusion in the competitive range. All of these requirements must be met; therefore, they are not listed in any particular order of importance. Any proposal that VVTA finds not to meet these requirements and that cannot be remedied as part of the negotiation process will be determined to be non-responsive and will not be included in the competitive range. The minimum requirements are as follows: i. Proposer is initially evaluated as responsible in accordance with the requirements of “Qualification Requirements” (Section X.4.) Final determination of responsibility will be made through the evaluation process. ii. Proposer has demonstrated its responsiveness by following the instructions of the RFP and included sufficient detail information, such that the proposal can be evaluated. Any informalities in regard shall be determined by VVTA to be either a defect and non- responsive or an informality that VVTA will waive in accordance with “Acceptance/Rejection of Proposals” (Section R) iii. Proposal price would not render this procurement financially infeasible, or it is reasonable that such proposal price might be reduced to render the procurement financially feasible. c. VVTA will document its evaluations in accordance with the criteria and procedures of “Proposal Selection Process” (X.3.). Any proposal deficiencies which may render a proposal non-responsible and non- responsive will be documented. VVTA will make VVTA RFP 2023-04 Page 22 of 22 (Rev. 06/2023) CONSTRUCTION MANAGER – HYDROGEN FUELING STATION specific notes of questions, issues, concerns, and areas requiring clarification by Proposers and to be discussed through any contact with Proposers, which VVTA finds to be within the competitive range. Rankings and spreads of the proposals against the evaluation criteria will then be made by VVTA as a means of judging the overall relative spread between proposals and of determining which proposals are within the competitive range or may be reasonably made to be within the competitive range. 9. PROPOSALS NOT WITHIN THE COMPETITIVE RANGE Proposers of any proposals that have been determined by VVTA as not in the competitive range will be notified in writing. 10. DISCUSSIONS WITH PROPOSERS IN THE COMPETITIVE RANGE a. The Proposers, whose proposals are found by VVTA to be within the competitive range, will be notified and any questions and/or requests for clarifications provided to them in writing. Each such Proposer may be contacted with VVTA to discuss answers to written or oral questions, clarifications, and any facet of its proposal. b. In the event that a proposal, which has been included in the competitive range, contains conditions, exceptions, reservations, or understandings to any Contract requirements as provided in “Form for Proposal Deviation” (Attachment E), said conditions, exceptions, reservations, or understandings may be negotiated during contract negotiations. However, VVTA shall have the right to reject any and all such conditions and/or exceptions, which fail to comply with the VVTA instructions and requirements listed in the solicitation documents may be deemed non-responsive and their proposal to be outside the competitive range and rejected. c. No information, financial or otherwise, will be provided to any Proposer about any of the proposals from other Proposers. Proposers will not be given a specific price or specific financial requirements they must meet to gain further consideration, except that proposed prices may be considered to be too high with respect to the marketplace or unacceptable. Proposers will not be told of their rankings among the other Proposers. d. Best Offers. VVTA expects that all responsible and responsive Proposers shall submit their Best Offer upon initial submission in response to this solicitation. e. VVTA reserves the right to make an award to a Proposer whose proposal it judges to be most advantageous to VVTA based upon the evaluation criteria, without conducting any written or oral discussions with any Proposers or solicitation of any BAFO. **** End of Instructions to Proposers **** VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT A – SCOPE OF WORK VVTA RFP 2023-04 Page 1 of 6 Rev. 06/2023 ATTACHMENT A – SCOPE OF WORK INTRODUCTION The Victor Valley Transit Authority (VVTA) is seeking an experienced firm to serve as the construction manager for the Design Build construction of VVTA’s Hydrogen Fueling Station located on the corner of E Ave. and Live Oak Street in Hesperia, CA. The awarded construction management individual and/or firm will assist in planning and implementing the Project. Although VVTA is the primary decision maker, the construction management firm will advise VVTA by providing recommendations. PROJECT DESCRIPTION The project will consist of one station located in Hesperia CA. The station will be equipped with three (3) dispensers, two (2) private 350 BAR (H35) dispensers for VVTA’s fleet, and a 350 BAR (H35)/700 BAR (H70) dispenser for light duty and heavy- duty applications. The station will be designed and built to fuel 60 buses and more than 20 passenger cars per day. The station will include an 18,000-25,000-gallon liquid hydrogen storage tank, and all necessary equipment to operate the station to meet the needs of the agency; liquid hydrogen will be delivered on an as needed basis. The facility is to be constructed on the southern portion of VVTA’s property located at the corners of E Avenue and Live Oak Street, just north of the VVTA Hesperia Maintenance and Operations Facility located at 17150 Smoke Tree St. Hesperia, CA 92345. VVTA is in the process of soliciting a Design-Build team for the construction of the facility. Specifications and drawings will be provided to the selected construction manager upon completion. The construction management contractor will serve as VVTA’s advocate to represent VVTA’s best interests with members of VVTA Staff. As VVTA is a public agency, the Hydrogen Fueling Station is subject to public works laws. SCOPE OF WORK The selected construction management consultant will provide construction management services for the Project. The tasks expected in each phase of the project include, but are not limited to: General Services: • Provide overall Project coordination with VVTA and the Design Build Team • Monitor the Project team performance relative to contractual obligations. • Provide regular Project budgeting, scheduling, cost accounting and reporting (with input from others as required). • Communicate regularly with VVTA staff through the duration of the Project. VVTA RFP 2022-02 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT A – SCOPE OF WORK VVTA RFP 2023-04 Page 2 of 6 Rev. 02/2023 ATTACHMENT A – SCOPE OF WORK • Advise VVTA by providing recommendations, including assessment of options, considerations, and efficiencies. • Serve as VVTA’s advocate to represent VVTA’s best interests with members of the Design-Build team. • Prepare monthly reports addressing Project progress and issues. • Propose, develop, and implement a Project quality assurance plan (e.g., testing and inspection program, etc.). Schedule and conduct Weekly or Bi-Weekly progress meetings and issue minutes and action lists as required. • Maintain Project files and records, including a Project directory with names, addresses, phone and fax numbers and responsibilities of all individuals and organizations associated with the Design/Build Project. • Maintain a complete and current record of Project contracts, drawings, and specifications. • Develop and implement a procedure for the review and preparation for payment of contractors’ payment requests. • Provide advice and assistance in resolving claims and disputes. • Recommend and monitor appropriate levels of budget contingency required during all phases of the Project. • In conjunction with VVTA Staff and Hydrogen Consultant, monitor, guide and advise VVTA as to compliance with applicable requirements of public works projects. Prepare paperwork for compliance as required. • The Design/Build project is federally funded and subject to Buy America, Davis Bacon, and other Federal Requirements: o Assist VVTA staff with the review of the products included in the construction that are subject to Buy America Regulations. o Assist VVTA with the review of Employee data sheets, Certified Payrolls, employee interviews in relation to the Davis Bacon rules and regulations o Assist VVTA with any other monitoring required as mandated by the FTA, State of CA, and County of San Bernardino. • Develop master schedule and Project plan with input from VVTA for space planning. • Cost estimating. VVTA RFP 2022-02 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT A – SCOPE OF WORK VVTA RFP 2023-04 Page 3 of 6 Rev. 02/2023 ATTACHMENT A – SCOPE OF WORK • Coordinate communications for all members of the Project team. Planning: • Ensure adherence to applicable requirements of Federal and State of CA public works projects. • Ensure that the Design Build Team posts in a prominent place at the site of the Project (Job Site) a list of the State of CA and Davis Bacon prevailing wages in the area for the work to be performed on the Project, as required pursuant to the California Labor Code Section 1770 et seq. o Check all certified payroll forms for conformance to the prevailing wage rates on a weekly basis. o Verify that all trade personnel listed in the daily log are also listed in the certified payroll. o Conduct weekly employee interviews, one for each trade, and submit verification with the monthly progress payments. • Forward to the VVTA Procurement Department all original preliminary notices, stop notices and renewals of insurance certificates. • Obtain from the Design Build Team, and review for completeness and quantity, all required shop drawings, product data, samples, and other submittals (Submittals). If applicable, ensure that the Submittals are consistent with the information contained in related documents. In collaboration with the Design- Build Team, establish and implement procedures for expediting the processing and approval of Submittals. • Require that the Design-Build Team ensure that each subcontractor provides written certification that required safety program(s) are in place and effective prior to initiating work on the Project and obtain a written copy of their safety programs for the file. • Require that each subcontractor confirm, in writing, as a condition of submitting its payment request(s), that it has continuously administered and enforced its published safety program throughout the preceding reporting period, including monthly safety meetings. • Observe work in progress for conformance with plans and specifications and report defects and deficiencies. • Coordinate the work of separate contractors engaged by VVTA. VVTA RFP 2022-02 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT A – SCOPE OF WORK VVTA RFP 2023-04 Page 4 of 6 Rev. 02/2023 ATTACHMENT A – SCOPE OF WORK • Assist in the selection of independent testing agencies. Coordinate their work, review their reports, and make recommendations regarding their findings. • Maintain a complete and current record of Project contracts, drawings and specifications, progress photos, testing, and inspection reports, etc. Maintain a file of all Project correspondence, directives, and meeting minutes. • Maintain or cause to be maintained daily Job Site reports recording weather, numbers of workers, equipment in use, general activities completed and special occurrences (e.g., accidents, injuries, etc.). • Monitor delivery and review of shop drawings and submittals and expedite approvals of same. Maintain (or cause to be maintained) submittal/approval logs and sets of all such documents and samples. • Monitor and coordinate Design-Build team site visits and responses to requests for information. • Monitor Design-Build Team performance as to cost, quality, and schedule. • Attend regular Job Site meetings with all Design-Build Team representatives and VVTA Staff as appropriate; discuss job progress, track and record key actions and decisions and review meeting minutes as required. • Visit off-site fabrication facilities as required (out-of-pocket cost of such trips is a reimbursable expense). (If applicable) • Prepare monthly reports addressing project progress and any quality, cost, and schedule issues. • Identify and attempt to resolve construction issues/disputes as they arise and prior to engagement of VVTA Staff to handle the matter. • Support VVTA in the defense and resolution of any claims related to the Project. Assemble and analyze data as required for such defense. • Assist in the processing of any claims, payments, and rebates. • Review Design Build Team’s schedule of values for use in processing payments. • Develop and implement a system for the preparation, review and processing of construction change directives and change orders. Estimate the cost of all change orders and negotiate them with the Design-Build Team on behalf of VVTA. VVTA RFP 2022-02 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT A – SCOPE OF WORK VVTA RFP 2023-04 Page 5 of 6 Rev. 02/2023 ATTACHMENT A – SCOPE OF WORK • Identify and recommend to VVTA changes that will save time, money and/or improve quality. • Retain material and field-testing agencies as required on behalf of VVTA (cost of testing is a reimbursable expense). • Recommend and oversee corrective and recovery measures, as required. • Review all Furniture Fixtures & Equipment (FF&E) documents and purchase orders for design and budget compliance. • Coordinate construction activities with FF&E delivery and installation. • Maintain an accurate, up-to-date construction cost accounting system. Include costs of contracts, directly purchased materials and other appropriate items. Make revisions to incorporate approved changes as they occur. Closeout • In collaboration with the Design-Build Team, develop a detailed schedule of close-out activities, including punch lists, equipment testing, start-up procedures, and occupancy. Incorporate such schedule into the master schedule and distribute it to all Project team members as appropriate. • Monitor and confirm Design-Build compliance with all turnover requirements. • Schedule and direct inspections to develop punch lists. Establish dates of substantial and final completion. • Coordinate, catalog and confirm delivery to VVTA of all keys, manuals, warranties, as-built drawings, plans and specifications, lien releases, attic stock materials, etc. • Work with the Design-Build Team to monitor the completion of punch list items and to finalize all outstanding changes in their scope of work. Verify the payment of retainages. • Monitor all product and equipment demonstrations and training. Monitor initial start-up and testing of all systems to confirm compliance with specifications. • Coordinate performance of corrective and warranty work. Minimum and Desired Qualifications: The ideal proposer will possess the following qualifications and skills related to project and construction management: Minimum Requirement • Five (5) years of project and construction management experience overseeing VVTA RFP 2022-02 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT A – SCOPE OF WORK VVTA RFP 2023-04 Page 6 of 6 Rev. 02/2023 ATTACHMENT A – SCOPE OF WORK Hydrogen Fueling Station construction projects Desired Knowledge, Skills and Experience: • Construction management of comparable Hydrogen Fuel Facility projects for public agencies. • Field supervisory experience. • Strong administrative and management skills, including contract management • Knowledge of construction materials and methods. • Good communication and negotiation skills. • Ability to prepare and review detailed cost estimates. • Ability to develop and review detailed schedules. • Experience applying legal requirements for Federally Funded public works projects. • Experience with construction. If the proposal includes the use of subcontractors, proposer shall identify specific subcontractors and the specific requirements of this RFP for which each proposed subcontractor would perform services. If a subcontract exceeds $25,000, the subcontract shall contain all required provisions of the prime contract. Additional Tasks: It is the responsibility of the Proposer to fulfill the following requirements. These tasks may be performed by a responsible and qualified Sub-contractor: • Materials Testing and Inspection: ▪ Materials testing and special inspection is as required by the awarded construction documents. These tests and inspections may include but not be limited to the following materials: concrete, wood, soils, masonry, rebar, roofing, welding and steel. • Geotechnical Survey of the property where construction is to take place: o The testing of soil consistency and structure, groundwater level, and making recommendations for the project based on the results. The duties include, but are not limited to, the drilling of boreholes at the site and samples taken from the ground to be analyzed in a lab. RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT B – FEDERAL REGULATORY REQUIREMENTS RFP 2023-04 Page 1 of 1 Rev. 04/2023 ATTACHMENT B – REGULATORY REQUIREMENTS THE RESULTING CONTRACT FROM THIS RFP SHALL BE FINANCED WITH FEDERAL FUNDS The links below are attached to this RFP and are herein incorporated. By submitting a proposal, the PROPOSER agrees to compliance with all reference Federal Regulatory Requirements. It is the responsibility of the Proposer to ensure compliance with all of the regulations that are applicable to this solicitation and resulting contract. The federal regulations Check List – a listing by Contract Dollar amount showing the applicable regulations for any Federally Funded contract: http://vvta.org/wp- content/uploads/2023/03/VVTA_PROCUREMENT_FEDERAL-CLAUSE- CHECKLIST_20230301.pdf The following is “Appendix A” of the Federal Procurement Best Practices Manual and includes the full text for all of the clauses included in the above checklist: http://vvta.org/wp- content/uploads/2023/03/FTA_Required_Clauses_23.03.01-1.pdf http://vvta.org/wp-content/uploads/2023/03/VVTA_PROCUREMENT_FEDERAL-CLAUSE-CHECKLIST_20230301.pdf http://vvta.org/wp-content/uploads/2023/03/VVTA_PROCUREMENT_FEDERAL-CLAUSE-CHECKLIST_20230301.pdf http://vvta.org/wp-content/uploads/2023/03/VVTA_PROCUREMENT_FEDERAL-CLAUSE-CHECKLIST_20230301.pdf http://vvta.org/wp-content/uploads/2023/03/FTA_Required_Clauses_23.03.01-1.pdf http://vvta.org/wp-content/uploads/2023/03/FTA_Required_Clauses_23.03.01-1.pdf VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 1 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT THIS AGREEMENT is made and entered into this ___ day of ____, 20__, by and between the VICTOR VALLEY TRANSIT AUTHORITY, a Joint Powers authority, created pursuant to the laws of the State of California (“VVTA” OR “Agency”) and ______________________ (“CONTRACTOR”). RECITALS WHEREAS VVTA circulated and distributed a Request for Proposal (“RFP”) from qualified firms who can provide the products and services needed to provide Construction Management, a copy which is attached herein as Exhibit 1 (RFP); and WHEREAS, CONTRACTOR submitted a proposal to provide the required services per the Scope of Work described in the RFP, a copy which is attached herein as Exhibit 2: and WHEREAS, CONTRACTOR has represented and warrants to VVTA that it has the necessary training, experience, expertise, physical manufacturing capacity and staff competency to provide the services, goods and materials that are described in this Agreement, at a cost to VVTA as herein specified and that it will be able to perform the herein described services for VVTA by virtue of its current resources and specialized knowledge of relevant data, issues, and conditions: and WHEREAS CONTRACTOR represents and warrants that neither CONTRACTOR, nor any of its officers, agents, employees, contractors, subcontractors, volunteers, or five percent owners, is excluded or debarred from participating in or being paid for participation in any Federal or State program; and WHEREAS CONTRACTOR further represents and warrants that no conditions or events now exist which give rise to CONTRACTOR, or any of its officers, agents, employees, contractors, subcontractors, volunteers, or five percent owners being excluded or debarred from any Federal or State program; and WHEREAS CONTRACTOR understands that VVTA is relying upon these representations in entering into this Agreement. NOW, THEREFORE, in consideration of the mutual promises and conditions herein contained, VVTA and CONTRACTOR hereby agree as follows: 1. SCOPE OF WORK A. CONTRACTOR will perform the Work and related tasks as described in Attachment A, Scope of Work (Exhibit 2) hereto and is incorporated by reference into and made a part of this Agreement. B. This is a non-exclusive Agreement, whereby VVTA may, at its sole discretion, augment or supplant the Work with its own forces or forces of another contractor or entity. CONTRACTOR will cooperate fully with VVTA’s staff or other contractor or entity that may be providing similar or the VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 2 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT same Work for VVTA. 2. CONTRACT DOCUMENTS The complete Contract between the parties shall consist of the following component parts: This Agreement; A. Exhibit 1 – RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION, including Addenda and all Attachments; B. Exhibit 2 – RFP SCOPE OF WORK C. Exhibit 3 – CONTRACTOR’s PROPOSAL Submission dated _________________ D. Exhibit 4 – CONTRACTOR’s Proof of Insurance dated _______________________ E. Exhibit 5 – CONTRACTOR’s Price Proposal dated _________________________ F. Exhibit 6 – Completed, signed, and notarized (if applicable) forms as required by the Solicitation. All the Exhibits mentioned in this Agreement are attached and are herein incorporated. This Agreement and the other Exhibits mentioned constitute the entire Contractual Agreement between the parties. In the event of any conflict between any of the provisions of this Agreement and Exhibits, the provision that requires the highest level of performance from CONTRACTOR for VVTA’s benefit shall prevail. Proposer shall execute and submit Certifications as required in the RFP and shall be submitted separately in each Proposer’s Price Bid. In the event of any conflict between the final contract and the provisions included in the attachments, the negotiated terms of the final contract shall prevail. 3. PERIOD OF PERFORMANCE This Agreement shall commence on ____________ and shall continue in full force and effect through _______________,unless earlier terminated or extended as provided in this Agreement. 4. TOTAL CONSIDERATION A. In accordance with the terms and conditions of this Contract, VVTA shall pay CONTRACTOR for its obligations under this Agreement. VVTA shall pay CONTRACTOR on a FIXED PRICE basis at the fully burdened fixed rates stated herein in accordance with the provisions, of this Section, and subject to the maximum cumulative payment obligation VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 3 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT RATES B. VVTA’s maximum cumulative payment obligation under this Agreement shall not exceed ___________________ ($___________.__), including all amounts payable to CONTRACTOR for all costs, including but not limited to direct labor, other direct costs, subcontracts, indirect costs including, but not limited to, leases, materials, taxes, insurance, and profit. 5. INVOICING AND PAYMENT A. CONTRACTOR shall invoice VVTA on a monthly basis, during the course of the construction. CONTRACTOR shall furnish information as may be requested by VVTA to substantiate the validity of an invoice. CONTRACTOR shall submit invoices to: VICTOR VALLEY TRANSIT AUTHORITY ATTN: ACCOUNTS PAYABLE 17150 SMOKE TREE STREET HESPERIA, CA 92345-8305 Each invoice shall include, at a minimum, the following information: • Contract number/Purchase Order number • Invoice number • Description of service • Construction Milestones completed • Unit Price, extended price, and applicable taxes • Information as requested by VVTA B. VVTA shall remit payment within Thirty (30) calendar days of approval of the invoices by VVTA Senior Staff. VVTA does encourage the CONTRACTOR to accept discount terms of 2% 10, net 30, in the event the CONTRACTOR needs expedited terms. 6. AUDIT AND INSPECTION OF RECORDS In accordance with 49 C.F.R. § 18.36(i), 49 C.F.R. § 19.48(d), and 49 U.S.C. § 5325(a), provided VVTA is the FTA Recipient or a sub-grantee of the FTA Recipient, the Contractor agrees to provide VVTA, FTA, the Comptroller General of the United States, the Secretary of the U.S. Department of Transportation, or any of their duly authorized representatives access to any books documents, papers, and records of the Contractor which are directly pertinent to or relate to this Contract (1) for the purpose of making audits, examinations, excerpts, and transcriptions and (2) when conducting an audit and inspection. A. In the event of a sole source Contract, or single Offer, single responsive Offer, or competitive negotiated procurement, the Contractor shall maintain and VVTA, the U.S. Department of Transportation (if applicable), or the representatives thereof, shall have the VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 4 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT right to examine all books, records, documents, and other cost and pricing data related to the Contract price, unless such pricing is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, or combinations thereof. Data related to the negotiation or performance of Contract shall be made available for the purpose of evaluating the accuracy, completeness, and currency of the cost or pricing data. The right of examination shall extend to all documents necessary for adequate evaluation of the cost or pricing data, along with the computations and projections used therein, including review of accounting principles and practices that reflect properly all direct and indirect costs anticipated for the performance of the Contract. B. For Contract Amendments, the VVTA, the U.S. Department of Transportation (if applicable), or their representatives shall have the right to examine all books, records, documents, and other cost and pricing data related to a Contract Amendment, unless such pricing is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, or combinations thereof. Data related to the negotiation or performance of the Contract Amendment shall be made available for the purpose of evaluating the accuracy, completeness, and currency of the cost or pricing data. The right of examination shall extend to all documents necessary for adequate evaluation of the cost or pricing data, along with the computations and projections used therein, either before or after execution of the Contract Amendment for the purpose of conducting a cost analysis. If an examination made after execution of the Contract Amendment reveals inaccurate, incomplete, or out-of- date data, the VVTA may renegotiate the Contract Amendment and VVTA shall be entitled to any reductions in the price that would result from the application of accurate, complete, or up-to-date data. 7. NOTIFICATION All notices hereunder concerning this Agreement and the Work to be performed shall be physically transmitted by courier, overnight, registered, or certified mail, return receipt requested, postage prepaid and addressed as follows: To VVTA: To CONTRACTOR: Attn: Procurement Manager Victor Valley Transit Authority 17150 Smoke Tree Street Hesperia, CA 92345-8305 8. VVTA AND CONTRACTOR’S REPRESENTATIVES A. VVTA VVTA’s Executive Director has been delegated the authority to execute contracts on behalf VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 5 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT of VVTA. Except as expressly specified in this Agreement, the Executive Director may exercise any powers, rights and /or privileges that have been lawfully delegated by VVTA. Nothing in this Agreement should be construed to bind VVTA for acts of its officers, employees, and/or agents that exceed the delegation of authority specified herein. The Executive Director or his/her designee is empowered to: 1. Have general oversight of the Work and this Agreement, including the power to enforce compliance with this Agreement. 2. Reserve the right to remove any portion of the Work from CONTRACTOR which have not been performed to VVTA’s satisfaction. 3. Subject to the review and acceptance by VVTA, negotiate with CONTRACTOR all adjustments pertaining to this Agreement for revision. 4. In addition to the foregoing, the Executive Director shall have those rights and powers expressly set forth in other sections of this Agreement. B. Contractor’s Key Personnel The following are CONTRACTOR’s key personnel and their associated roles in the Work to be provided: Name Role ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ Any propose/substitution or replacement by Contractor of Contractor’s key personnel shall ensure that such person possesses the same or better expertise and experience than the key personnel being substituted or replaced. VVTA reserves the right to interview such person to ascertain and verify if such proposed substitution or replacement does indeed possess such expertise and experience. VVTA awarded this Agreement to CONTRACTOR based on VVTA’s confidence and reliance on the expertise of CONTRACTOR’s key personnel described above. CONTRACTOR shall no reassign key personnel or assign other personnel to key personnel roles until CONTRACTOR obtains prior written approval from VVTA. VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 6 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT 9. TERMINATION OF CONTRACT A. TERMINATION FOR CONVENIENCE 1. The performance of Work under this Contract may be terminated for in whole, or from time to time in part, by VVTA for the convenience of VVTA whenever VVTA determines that such termination for convenience is in the best interest of VVTA and the other procuring agencies. Any such termination for convenience shall be executed by delivery to the Contractor of a written Notice of Termination specifying the extent to which performance of Work under the Contract is terminated, and the date upon which such termination becomes effective. After receipt of a Notice of Termination for Convenience, and except as otherwise directed by VVTA, the Contractor must: (a) Stop the Work under the Contract on the date and to the extent specified in the Notice of Termination for Convenience. (b) Place no further orders or subcontracts for materials, services, or facilities, except as may be necessary for completion of such portion of the Work under the Contract as is not terminated. (c) Terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated as set out in the Notice of Termination for convenience. (d) Assign to VVTA in the manner, at the times, and to the extent directed by VVTA, all of the right, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case VVTA shall have the right, in its discretion, to settle or pay and or all claims arising out of the termination of such orders and subcontracts. (e) Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of VVTA, to the extent he/she may require, which approval or ratification shall be final for all the purposes of this Section. (f) Transfer title to VVTA and deliver in the manner, at the times, and to the extent, if any, directed by VVTA the fabricated or un-fabricated parts, work in process, completed work, supplies, and other material produced as part of, or acquired in connection with the performance of, the Work terminated, and the completed or partially completed plans, drawings, information, and other property which, if the Contract had been completed, would have been required to be furnished to VVTA. VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 7 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT (g) Complete performance of such part of the Work as shall not have been terminated by the Notice of Termination for Convenience; and (h) Take such action as may be necessary, or as VVTA may direct, for the protection or preservation of the property related to this Contract which is in the possession of the Contractor and in which VVTA has or may acquire an interest. 2. A f t e r receipt of a Notice of Termination for Convenience, the Contractor shall submit to VVTA its termination claim, in the form and with certification prescribed by VVTA. Such claim shall be submitted promptly but in no event later than six months from the effective date of termination, unless one or more extensions in writing are granted by VVTA, upon request of the Contractor made in writing within such six months period or authorized extension thereof. However, if VVTA determines that the facts justify such action, it may receive and act upon any such termination claim at any time after such six months period or any extension thereof. Upon failure of the Contractor to submit its termination claim within the time allowed, VVTA may determine, on the basis of information available, the amount, if any, due the Contractor by reason of the termination and will thereupon pay the Contractor the amount so determined. 3. Subject to the provisions of subsection 2 above, the Contractor and VVTA may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination or work pursuant to this Section, which amount or amounts may include an allowance for profit on work done; provided that such agreed amount or amounts exclusive of settlement costs, shall not exceed the total Contract Consideration as reduced by the amount of payments otherwise made and as further reduced by the Contract price of work not terminated. The Contract will be amended accordingly, and the Contractor will be paid the agreed amount. 4. In the event of failure of the Contractor and VVTA to agree, as provided in subsection 3, upon the amount to be paid the Contractor by reason of the termination of Work pursuant to this Section, VVTA will pay the Contractor the amounts determined by VVTA as follows, but without duplication of any amounts agreed in accordance with subsection: With respect to Contract Work performed prior to the effective date of the Notice Termination, the total (without duplication of any items) of: (a) The costs of such Work. (b) The cost of settling and paying claims arising out of the termination of Work under subcontracts or orders as provided in subsection 1(e) above, exclusive of the amounts paid or payable on account of supplies or material VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 8 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT delivered or services furnished by the subcontractor prior to the effective date of the Notice of Termination of Work under this Contract, which amounts shall be included in the costs on account of which payment is made under 2 above. (c) A sum, as profit on 4(a) above, determined by VVTA to be fair and reasonable; provided, however, that if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, no profit shall be included or allowed under this subsection 4(c) and an appropriate adjustment shall be made by reducing the amount of the settlement to reflect the indicated rate of loss; and (d) The reasonable cost of preservation and protection of property incurred pursuant to subsection A (9) and any other reasonable cost incidental to termination of work under this Contract, including expense incidental to the determination of the amount due to the Contractor as the result of the termination of Work under this Contract. 5. The total sum to be paid to the Contractor under subsection 4 will not exceed the total Contract Consideration as reduced by the number of payments otherwise made and as further reduced by the Contract price of Work not terminated. Except for normal spoilage, and except to the extent that VVTA will have otherwise expressly assumed the risk of loss, there will be excluded from the amounts payable to the Contractor under subsection 4 the fair value, as determined by the VVTA, of property, which is destroyed, lost, stolen, or damaged so as to become undeliverable to VVTA, or to a purchaser pursuant to subsection 1 (g) of this Section. 6. In arriving at the amount due the Contractor under this Section, there will be deducted: (a) The amount of any claim which VVTA has against the Contractor in connection with the Contract; and (b) The agreed price for, or the proceeds of sale of materials, supplies, or other items acquired by the Contractor or sold, pursuant to the provision of this Section, and not otherwise recovered by or credited to VVTA. 7. If the termination for convenience hereunder is partial, prior to the settlement of the terminated portion of the Contract, the Contractor may file with VVTA a written request for an adjustment of the price or prices specified in the Contract relating to the continued portion of the Contract (the portion not terminated by the Notice of Termination), and such adjustment as may be agreed will be made in the price or prices. VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 9 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT 8. VVTA may from time to time, at its sole discretion and under terms and conditions it may prescribe, make partial payments and payments on account against cost incurred by the Contractor in connection with the terminated portion of the Contract whenever, in the opinion of VVTA, the aggregate of payments does not exceed the amount to which the Contractor will be entitled hereunder. If the total of the payments is in excess of the amount finally agreed or determined to be due under this Section, the excess shall be paid by the Contractor to VVTA upon demand, together with interest at the rate of 10 percent per annum or the maximum rate permitted by applicable law, whichever is less, for the period from the date the excess payment is received by the Contractor to the date on which the excess payment is repaid to VVTA. 9. Unless otherwise provided for in this Contract, or by applicable statute, the Contractor, from the effective date of termination and for a period of three years after final settlement under this Contract, shall preserve and make available to VVTA at all reasonable times at the office of the Contractor but without direct charge to VVTA, all its books, records, documents, and other evidence bearing on the costs and expenses of the Contractor under this Contract and relating to the Work terminated hereunder, or to the extent approved by VVTA, photographs, microphotographs, or other authentic reproductions thereof. 10. The Contractor shall insert in all subcontracts that the Subcontractor or Supplier shall stop work on the date of and to the extent specified in a Notice of Termination from VVTA and shall require that any tier subcontractor to insert the same provision in any tier subcontract. 11. The Contractor shall communicate immediately upon receipt thereof, any Notice of Termination issued by VVTA to the affected Subcontractors and Suppliers of any tier. 12. Under no circumstances is the Contractor entitled to anticipatory, unearned profits or consequential damages as a result of a termination or partial termination under this Section. The payment to the Contractor determined in accordance with this Section constitutes exclusive remedy for a termination hereunder. 13. Anything contained in the Contract to the contrary notwithstanding, a termination under this Section shall not waive any right or claim to damages which VVTA may have and VVTA may pursue any course of action it may have under the Contract. B. TERMINATION FOR CAUSE (1) By written Notice of Termination for Cause to the Contractor, VVTA and the other procuring agencies may cancel the whole or any part of the Contract in any one of the following circumstances: VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 10 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT (a) If the Contractor fails to perform the Work within the time specified or any extension thereof. (b) If the Contractor fails to perform any of the provisions of the Contract, or so fails to make progress s o as to endanger performance of the Contract in accordance with its terms, and in either of these two later circumstances, does not cure such failure within a period of the 10) calendar days (or such additional time as may be specified in the notice) after VVTA gives notice to Contractor of the failure. (c) The Contractor or Subcontractor or Supplier has violated an authorized order or requirement of VVTA; (d) Abandonment of the Contract; (e) Assignment of subcontracting of the Contract or any Work under the Contract without approval by VVTA; (f) Bankruptcy or appointment of a receiver for the Contractor’s property; (g) Performance by the Contractor in bad faith; (h) Contractor allowing any final judgment to stand (unsatisfied) for a period of 48 hours (excluding weekends and legal holiday(s); (i) Material failure to comply with the law, ordinance, rule, regulation, or order of a legal authority applicable to the Contract, the Work, the Contractor, or the goods; or (j) Failure to indemnify any party which the Contractor is obligated to indemnify under the Section 2.7.5, Indemnification, or elsewhere under the Contract. (2) The Contractor shall be provided a period of ten (10) days to cure such failure (or such longer period as VVTA may authorize in writing) after receipt of notice from VVTA specifying such failure. (3) In the event the Contractor does not cure the breach to the satisfaction of VVTA within the time period specified by VVTA, VVTA will send the Contractor a written notice of failure to cure the breach. Upon receipt of such written notice from VVTA, Contractor shall: (a) Stop Work on the date of, and to the extent specified in, the Notice of Termination for Cause; (b) Place no further orders or subcontracts for materials, equipment, services, or VVTA RFP 2023-04 CONSTRUCTION MANAGER – HYDROGEN FUELING STATION ATTACHMENT C – SAMPLE CONTRACT VVTA RFP 2023-04 Page 11 of 26 Rev. 06/2023 ATTACHMENT C – SAMPLE CONTRACT facilities, except that which is necessary to complete the portion of the Work which is expressly not cancelled under the Notice of Termination for Cause; (c) Cancel all orders or subcontracts to the extent that they relate to the performance of Work cancelled under the Notice of Termination; and (d) Comply with all other requirements of VVTA specified in the Notice of Termination for Cause. (4) If the Contract is cancelled as provided in this Section, VVTA may require Contractor to transfer title and deliver to VVTA, as directed by VVTA, the following: (a) Any completed supplies or equipment furnished by VVTA; and (b) Such partially completed supplies and materials, installations, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter called “manufacturing materials”) that the Contractor has specifically produced or acquired for the cancelled portion of this Contract. The Contractor shall also protect and preserve property in its possession in which VVTA has an interest at the Contractor’s sole expense. (5) Upon VVTA’s Termination of the Contractor’s right to proceed with the Work because of the Contractor’s default under the Contract, VVTA will have the right to complete the Work by whatever means and method it deems advisable. VVTA will not be required to obtain the lowest prices for completing the Work but shall make such expenditures as, in VVTA’s sole judgment, best accomplish such completion. (6) The expense of completing the Work, together with a reasonable charge for engineering, managerial and administrative services, as certified by the Lead Procuring Agency, will be charged, and will be deducted by VVTA out of such monies as may be due or may at any time thereafter become due to the Contractor. In case such expense is in excess of the sum which otherwise would have been payable to the Contractor under the Contract, then the Contractor or its surety shall promptly pay the amount of such excess to VVTA upon notice of the excess so due. VVTA may, in its sole discretion, withhold all or any part of any progress payments otherwise due the Contractor until completion and final settlement of the Work covered by the Notice of Termination of Contractor’s right to proceed. (7) Contractor shall insert in all subcontracts that the Subcontractor or Supplier will stop work on the date of or to the extent specified in a Notice of Termination for Ca