AGREEMENT FOR PROJECT MANAGEMENT SERVICES Design-Build MB 123 Project

Transcription

1 AGREEMENT FOR PROJECT MANAGEMENT SERVICES Design-Build MB 123 Project This Agreement is made this day of in the year between the Massachusetts Technology Park Corporation, 75 North Drive, Westborough, MA 01581, an independent public instrumentality of the Commonwealth of Massachusetts (the Commonwealth ), established, organized, and existing pursuant to Chapter 40J of the Massachusetts General Laws and doing business as the Massachusetts Technology Collaborative acting in accordance with G. L. c. 40J, 6B, hereinafter called "the Owner" and (Owner's Project Manager),,, (Street) (City) (State) (Zip Code) hereinafter called the "OPM" to provide the Project Management services required to complete the Basic and Extra Services described herein for design and installation of the Massachusetts Broadband Institute MassBroadband 123 Project, hereinafter called the Project. Page 1 of 67

2 TABLE OF CONTENTS Page Project description, fee and signatures... 1 ARTICLE 1: DEFINITIONS...4 ARTICLE 2: RELATIONSHIP OF THE PARTIES...7 ARTICLE 3: RESPONSIBILITIES OF THE OWNER...9 ARTICLE 4: RESPONSIBILITIES OF THE OPM...9 ARTICLE 5: SUBCONSULTANTS...11 ARTICLE 6: TERM AND TIMELY PERFORMANCE...12 ARTICLE 7: COMPENSATION...12 ARTICLE 8: BASIC SERVICES...13 ARTICLE 9: EXTRA SERVICES...34 ARTICLE 10: REIMBURSABLE EXPENSES...35 ARTICLE 11: RELEASE AND DISCHARGE...35 ARTICLE 12: ASSIGNMENT. SUSPENSION. TERMINATION...36 ARTICLE 13: NOTICES...37 ARTICLE 14: INDEMNIFICATION OF OWNER...37 ARTICLE 15: INSURANCE...38 ARTICLE 16: OWNERSHIP OF DOCUMENTS...40 ARTICLE 17: REGULATORY AND STATUTORY REQUIREMENTS...41 ARTICLE 18: DISPUTE RESOLUTION...44 ARTICLE 19: MISCELLANEOUS...46 ATTACHMENT A: PAYMENT SCHEDULE ATTACHMENT B: PROJECT SCOPE AND BUDGET Page 2 of 67

3 ATTACHMENT C: KEY PERSONNEL ATTACHMENT D: ATTACHMENT DATABASE ATTACHMENT E-1: THE MASSACHUSETTS TECHNOLOGY COLLABORATIVE POLICY AND PROCEDURES REGARDING SUBMISSION OF SENSITIVE INFORMATION ATTACHMENT E-2: MTC POLICY AND PROCEDURES FOR HOLDING PARTIES IN POSSESSION OF SENSITIVE INFORMATION ATTACHMENT F: SPECIAL TERMS AND CONDITIONS Page 3 of 67

4 ARTICLE 1: DEFINITIONS AGREEMENT - this Agreement, inclusive of all Attachments, between the Owner and the OPM; all written amendments to this Agreement; and all Approvals issued pursuant to this Agreement. APPROVAL - a written communication from the Owner approving either the work of a given Phase, as identified on Attachment A, or authorizing the OPM to proceed to the next Phase or approving the scope and compensation for either Extra Services or Reimbursable Expenses. ATTACHMENT DATABASE an electronic database of all Route Facilities along the route of the Network, to be used or considered for use on the Project. BASIC SERVICES - the minimum scope of services to be provided by the OPM under this Agreement, unless the Agreement is otherwise terminated pursuant to Article 12. BASIC SERVICES FEE CAP the amount stated in the first paragraph of Attachment A. COMMONWEALTH the Commonwealth of Massachusetts. CONSULTING ENGINEER - a person or entity employed or engaged by the OPM as a Subconsultant to provide advisory and inspectional services during design and construction. DoC the United States Department of Commerce. DESIGN-BUILDER - the person or entity with whom the Owner will contract to perform the final design and construction for this Project. EA the Environmental Assessment Consultant or their work product. ENGINEER - the person or entity with whom the Owner has contracted or will contract to perform the preliminary engineering and design services for this Project required in order to issue an RFQ and RFP for procurement of the Design-Builder in compliance with Mass. G.L. ch. 149A, and such other professional services as may be included in its contract. ENVIRONMENTAL ASSESSMENT CONSULTANT a person or entity engaged or to be engaged by the Owner to perform the environmental assessment(s) and to fulfill the environmental requirements of the Grant. EXTRA SERVICES - services requested by the Owner to be performed by the OPM but which are additional (or "extra") to the services performed as Basic Services. FEDERAL DEADLINES the dates by which all or a portion of the work of the Project must be substantially completed or fully completed in order to comply with the terms of the Grant. As stated in the Grant, the Network must be 67% substantially complete by June 30, 2012 and complete by June 30, In the event the terms of the Grant permit extensions of these deadlines and MBI avails itself of such extensions, the contract length may be adjusted. FEE FOR BASIC SERVICES - the fee to be paid to the OPM for satisfactorily performing, in the Owner's sole discretion, the Basic Services required under this Agreement, exclusive of the compensation to which the OPM is entitled pursuant to Articles 9 and 10. Page 4 of 67

5 GENERAL LAWS - the Massachusetts General Laws as amended, including any rules, regulations and administrative procedures implementing said laws. GRANT - the Financial Assistance Award made by the United States Department of Commerce to the Owner, numbered Award Number NT10BIX a copy of which has been made available to prospective bidders. GUIDELINES AND STANDARDS (i) The documents referenced in the Grant as governing, conditioning or otherwise requiring compliance on the part of the Owner; (ii) the standards and specifications identified in any Route Facility Agreement including but not limited to the latest editions of the Blue Book - Manual of Construction Procedures (Blue Book), published by Telcordia Technologies Inc.; the National Electrical Code (NEC), published by the National Fire Protection Association, Inc.; the National Electrical Safety Code (NESC), published by the Institute of Electrical and Electronics Engineers, Inc.; and rules and regulations of the U.S. Department of Labor issued pursuant to the Federal Occupational Safety and Health Act of 1970, as amended, (OSHA) or any governing authority having jurisdiction over the subject matter; (iii) the public interests related to the Grant and the statutory mission of the Massachusetts Broadband Institute, a division of the Owner; and (iv) any additional laws, codes, regulations, by-laws and ordinances applicable to the project.. MAKE-READY CONTRACTOR a person or entity engaged or to be engaged by the Owner and/or by a Route Facility Owner to perform Make-ready Work. If the Design-Build contract includes any such functions this term shall include the Design-Builder as applicable. MAKE-READY WORK work, including, but not limited to rearrangement and/or transfer of existing facilities, replacement of a pole or any other changes required to accommodate the attachment of Network fiber to a pole or other Route Facility or the installation of or use by Network fiber in, on or about any other Route Facility of a Route Facility Owner. NETWORK the network of middle mile fiber for broadband access to be constructed as part of the Project. NETWORK OPERATOR the person or entity engaged or to be engaged by the Owner to operate the Network. NTIA the National Telecommunications and Information Administration of the United States. NODE LOCATION each of approximately twenty-two locations where a Node of the Network is planned or situated, consisting of a utility cabinet from which an interconnection to the Network can be made. NOTICE to PROCEED - the written communication issued by the Owner to the Design-Builder authorizing it to proceed with the Design-Build contract and establishing the date for commencement of the contract time. OIG the Massachusetts Office of Inspector General. OWNER - Massachusetts Technology Collaborative, the entity identified as Owner on page one of this Agreement, or its authorized representative. Page 5 of 67

6 OPM - the individual, corporation, partnership, sole proprietorship, joint stock company, joint venture or other entity identified as such on page one of this Agreement performing the professional Project Management Services under this Agreement. PHASE - a distinct portion of the work of this Agreement and its associated duration, as identified on Attachment A. An Approval from the Owner is required in order to proceed with each Phase. FIELD DATA COLLECTOR a person or firm engaged or to be engaged by the Owner and/or by a Route Facility Owner to conduct field inspection of existing Route Facilities needed in order to determine any necessary Make-ready Work. If the Design-Build contract includes any such functions this term shall include the Design-Builder as applicable. PRINCIPALS - the owners and/or officers of the OPM who are actively involved in the management of the Project. PROJECT - all work that pertains to the study, planning, design, construction, reconstruction, installation, demolition, maintenance or repair, if any, as defined in the Project Scope and Budget. PROJECT BUDGET - a complete and full enumeration of all costs of the Project, as defined in the Owner Project Scope and Budget. PROJECT SCHEDULE - a complete list of all activities, time and sequence required to complete the Project, as defined in the Owner Project Scope and Budget. PROJECT SCOPE AND BUDGET - the document dated attached as Attachment B. PROJECT REPRESENTATIVE - the employee or a Subconsultant of the OPM, who shall be dedicated exclusively to the Project, on-site full-time during the Construction Phase in accordance with the requirements of Section PROJECT VENDOR each of the Consulting Engineer (unless employed as staff of the OPM), the Design-Builder, the Engineer, the Environmental Assessment Consultant, each Make-Ready Contractor, the Network Operator, each Field Data Collector, each vendor of fiber and/or network equipment to which the Owner directly issues or may issue a purchase order, the owner of the property at 1 Federal Street, Springfield where the Point of Presence is planned to be located, each Route Facility Owner and each municipality or other property owner on whose real property a Node Location is or is planned to be located. ROUTE FACILITY - a utility pole, anchor facility, conduit, node or other significant point along the route of the Network. ROUTE FACILITY AGREEMENT an agreement, including but not limited to a pole attachment agreement or conduit agreement, entered into or to be entered into between the Owner and a Route Facility Owner governing the terms and conditions under which the Owner will obtain licenses to attach any part of the Network to a utility pole or otherwise use any other Route Facility of the Route Facility Owner. ROUTE FACILITY LICENSE a license required by a Route Facility Owner prior to installation of any part of the Route at a Route Facility, including but not limited to Pole Attachment License, Conduit License and Grant of Use. Page 6 of 67

7 ROUTE FACILITY OWNER the utility, municipality or other person that owns, in whole or in part, any Route Facility to or through which any part of the Network will be or is under consideration to be attached or routed as part of the Project. SCHEDULE OF APPLICATIONS. Any Schedule set forth or to be set forth in an Appendix to a Route Facility Agreement, as it may from time to time be amended by further written agreement between the Owner and Route Facility Owner(s), pursuant to which they agree to coordinate their efforts and resources to ensure timely completion of the construction of the Network. SUBCONTRACTOR - a person or firm having a direct contractual relationship with the Design-Builder, who has the contract to perform the final design and/or construction of the Project, except as otherwise specifically provided or required herein or by Law. Subcontractor includes "Trade Subcontractor except when otherwise specified. SUBCONSULTANT - any individual, company, firm, or business having a direct contractual relationship with the OPM, who provides services on the Project. TRADE SUBCONTRACTOR - Subcontractors having a direct contractual relationship with the Design- Builder, to perform one or more sub-bid classes of work listed or to be listed in the bid form for the Design-Builder. ARTICLE 2: RELATIONSHIP OF THE PARTIES 2.1 The OPM shall act as an independent contractor of the Owner in providing the services required under this Agreement. 2.2 As of the date of this Agreement and of each amendment hereto, the OPM warrants, represents and certifies to the Owner under the pains and penalties of perjury as follows: That it has fully, completely and truthfully represented the qualifications and skills of the OPM, its Subconsultants, agents, servants and employees in the proposal submitted by the OPM and in all communications with the Owner relative to this Agreement and the services to be performed hereunder by the OPM, its Subconsultants, agents, servants and employees The OPM is duly authorized to enter into this Agreement, and the execution, delivery and performance of this Agreement will not conflict with any other agreement or instrument to which it is a party or by which it is bound and will not violate any law, regulation, order or other legal requirement by which the OPM or any of its assets is bound The OPM and all Project personnel of the OPM are fully capable and qualified to perform the described service(s) and other obligations of the OPM under this Agreement, and have obtained all requisite licenses and permits to perform such obligations The OPM and its Project personnel are familiar with, and are and will remain in compliance with, and will not take any actions contrary to the provisions of, any laws, rules, regulations, ordinances, orders or requirements of the Commonwealth and other Governmental Authorities applicable to or implicated by the subject matter of this Agreement. Page 7 of 67

8 2.2.5 The OPM and its employees are independent contractors of the Owner, and not employees, partners or joint-venturers of the Owner. The OPM will be solely responsible for withholding and paying all applicable payroll taxes of any nature, including social security and other social welfare taxes or contributions, that may be due on amounts paid to its employees. The OPM has filed and will continue to file all necessary state tax returns and reports, and has paid and will continue to pay all taxes and has complied and will continue to comply with all laws of the Commonwealth relating to contributions and payment in lieu of contributions to the Employment Security System, and with all laws of the Commonwealth relating to Worker's Compensation, Mass. G.L. ch The OPM shall not discriminate against any qualified employee or applicant for employment because of race, color, national origin, ancestry, age, sex, religion, physical or mental handicap, or sexual orientation. The OPM agrees to comply with all applicable Federal and State statutes, rules and regulations prohibiting discrimination in employment including but not limited to: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act of 1967; Section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; and Mass. G.L. ch. 151B All personnel supplied under this Agreement are eligible to work in the United States at the time of execution of this Agreement and that the OPM has a continuing obligation to ensure such status for the duration of the Agreement. 2.3 The Engineer is solely responsible for the design requirements and design criteria for the Project through the Design-Build Contract Award Phase (except to the extent specifically delegated to others) and for performing in accordance with the contract between the Owner and Engineer. 2.4 The Design-Builder shall be solely responsible for (a) the design requirements and design criteria for the Project after the Design-Build Contract Award Phase (except to the extent specifically delegated to others); (b) construction means, methods, techniques, sequences and procedures, the Design-Builder's schedules; (c) safety precautions and programs in connection with the Project; and (d) performing in accordance with the Design-Build Agreement. 2.5 Each other Project Vendor shall be solely responsible for performing in accordance its respective contract with the Owner or other contracting party. 2.6 The OPM shall be responsible for the OPM's negligent acts or omissions but shall not have control over or charge over acts or omissions of a Project Vendor or the Owner. The OPM shall be entitled to rely upon each Project Vendor for the proper performance of their obligations pursuant to their respective contracts with the Owner. Nothing in the Section shall relieve the OPM of its obligations to monitor the performance of Project Vendors and otherwise perform its own duties under this Agreement. 2.7 Nothing in this Agreement shall be construed as an assumption by the OPM of the responsibilities or duties of a Project Vendor except to the extent the Project Vendor is or becomes a Subconsultant to the OPM. The OPM's services shall be rendered compatibly and in coordination with the services provided by the Engineer and, after the Design-Build Contract Award Phase, with the design professionals and construction management personnel of the Design-Builder and the Consulting Engineer. It is not intended that the services of the OPM and Engineer be competitive or duplicative, but rather complementary. Page 8 of 67

9 ARTICLE 3: RESPONSIBILITIES OF THE OWNER 3.1 The Owner shall be responsible to oversee and monitor the performance of the OPM to ensure that it performs its obligations in a satisfactory manner. The Owner shall provide the necessary general direction and broad management coordination required to execute the Project. 3.2 The Owner shall designate an individual or individuals who shall have the authority to act on behalf of the Owner under this Agreement and who shall be responsible for day-to-day communication between the Owner and the OPM. 3.3 Upon satisfactory completion of services performed, the Owner shall make payments to the OPM as provided in Articles 7, 8, 9 and After notice from the OPM, or otherwise having actual knowledge, of noncompliance by any Project Vendor or Route Facility Owner with its contract obligations, the Owner shall be responsible for requiring the Project Vendor to comply with its contract obligations and to cooperate with the OPM. 3.5 The Owner shall provide timely information with respect to its requirements relative to the Project Schedule and the Project Budget, and shall further give timely notice to the OPM of any changes or modifications to the same. 3.6 To the extent such data is available, the Owner shall furnish to the OPM the Grant, the Owner s application for the Grant, the work product of any Project Vendor delivered to the Owner prior to the execution of this Agreement, existing surveys of the Project site, building plans, borings, test pits, structural, mechanical, chemical or other test data, tests for air and water pollution and for hazardous materials, photographs and utility information, that are in the custody or control of the Owner. The OPM shall be entitled to reasonably rely upon the sufficiency and accuracy of the information furnished under this Section 3.6, provided that the OPM shall notify the Owner in writing of any deficiencies in such data that the OPM becomes aware of. 3.7 Owner shall provide OPM office space at it principal offices in Westborough, Massachusetts, to accommodate two persons and equipped with internet access, except to the extent the OPM notifies the Owner reasonably in advance that the OPM elects to forego such space and the Owner agrees. The Owner's contract with the Design-Builder shall contain provisions requiring the Design-Builder to provide the OPM with reasonable field office space in reasonable proximity to the location(s) where the Design-Builder is working. ARTICLE 4: RESPONSIBILITIES OF THE OPM 4.1 The OPM shall provide project management services to monitor procurement procedures, design, construction and other related activities and to facilitate, coordinate and manage the Project with respect to timely performance in accordance with the Project Schedule, the Grant and other Guidelines and Standards, and monitor the quality of services and workmanship and shall recommend courses of action to the Owner when respective contractual requirements are not being fulfilled. Services shall continue through turnover of the Network to the Network Operator and the Project Close-out Phase as defined herein. As part of Basic Services, the OPM shall provide information as requested during final auditing as conducted by or on behalf of the Owner. 4.2 Subject to the terms and conditions herein contained, Owner hereby appoints the OPM to perform the Services as an independent contractor. The OPM hereby accepts such appointment on the Page 9 of 67

10 terms and conditions hereinafter set forth. The OPM shall have no right or authority, express or implied, to commit or otherwise obligate Owner or to encumber any property on which any part of the Project is installed or performed in any manner whatsoever except to the extent specifically provided herein or as otherwise approved in writing by Owner. The OPM is authorized to perform the services required by this Agreement through the OIG Approval Phase and, pending receipts of a written Approval to proceed from the Owner for each other Phase, the OPM may be authorized to perform services for the other Phases. 4.3 Nothing contained in this Agreement or in the relationship of the OPM and the Owner shall be deemed to constitute a partnership, joint venture, or any other relationship between the OPM and the Owner except as expressly set forth in and limited by the terms of this Agreement. The OPM s authority is limited to performing the services in accordance with the terms of this Agreement. Except only as may be approved by the Owner in writing or expressly authorized in this Agreement, the OPM does not have any authority to execute any contracts or agreements for or on behalf of the Owner, and is not granted any right or authority to assume or create any obligation or liability or make any representation, covenant, agreement or warranty, express or implied, on the Owner s behalf, or to bind the Owner in any manner whatsoever, and the OPM shall inform any party with whom it is dealing that it has no authority to bind the Owner in any respect or make any representation binding upon the Owner except as may be herein expressly provided. Except as otherwise provided in this Agreement, any consents, approvals, or instructions which may be required of the Owner may only be given, in writing, by the Owner s authorized representatives. Any press releases, publicity statements or promotional materials regarding the Project or this Agreement shall be subject to review and prior written approval of the Owner, which approval should not be unreasonably withheld, conditioned or delayed. 4.4 The OPM shall perform the services with the level and degree of skill and care exercised by similarly situated members of the OPM's profession on projects of substantial scale and complexity nationally. All costs of the OPM s personnel (including compensation, fringe benefits, insurance and taxes) shall be at the OPM s cost and shall not be reimbursable to the OPM by the Owner. The Owner acknowledges that, except for the services of the Consulting Engineer, the OPM has not been engaged to provide the services as an architect, engineer or contractor. Except for the services of the Consulting Engineer, the services that the OPM has agreed to perform shall be rendered only its capacity as an OPM. 4.5 The OPM shall perform the services required under this Agreement in conformance with applicable federal, state, and local laws, ordinances and regulations in effect on the date of this Agreement or hereafter promulgated during the term of this Agreement, and with all Guidelines and Standards, all without any additional compensation. The Owner shall reasonably compensate the OPM for complying with any such law, ordinance, regulation, Guideline or Standard, that was not provided to or was not readily available to the OPM prior to such services being performed and that materially impacts the OPM's scope, or other aspect of its services, fee, schedule, or any obligations and responsibilities under this Agreement. 4.6 Unless otherwise expressly stated in this Agreement or directed in writing by another authorized representative of the Owner, the OPM shall take the lead in coordinating and managing the activities of the Project, including where the services of the Owner s Project Manager are referred to herein as providing assistance to the Owner. 4.7 The OPM shall report to the Owner any act or inaction in connection with the Project which the OPM believes creates a substantial health or safely risk. Notwithstanding the immediately preceding sentence, the OPM shall not assume responsibility for safety precautions and programs Page 10 of 67

11 in connection with the Project, which shall remain the sole responsibility of each of the Design- Builder, Make-ready Contractor, Field Data Collector and other Project Vendor, respectively. 4.8 The OPM acknowledges the importance that the Owner attributes to the abilities and qualifications of the key members of the OPM's team, including Subconsultants, and the continuity of key members participation in the services to be provided under this Agreement. This Agreement has been entered into on the representation of the OPM that the individuals, consultants, assignments and responsibilities will be maintained throughout the duration of this engagement. No substitution or replacement of individuals or change in the Subconsultants listed in Attachment C shall take place without the prior written approval of the Owner except when necessitated by causes beyond the OPM's control. If the OPM proposes to replace one of the key members of the OPM's team, the OPM shall propose a person or consultant with qualifications at least equal to the person or firm the OPM proposes to replace. The Owner shall have the right to approve any substitution or replacement or change in status for the persons or Subconsultants listed in Attachment C, and such approval shall not be unreasonably withheld. At the request of the Owner, the OPM shall consult with the Owner to resolve any situation in which the Owner determines that a member of the OPM's team is failing to perform services in an acceptable manner to the Owner. The Owner shall have the right to direct the removal of any such person or consultant. No act or omission of the Owner made or permitted under this Section shall relieve the OPM of its responsibility for the performance of the services specified in this Agreement. 4.9 The OPM shall employ at all times professional and support personnel with requisite expertise and adequate numbers to assure the complete, timely and high quality performance of the obligations of the OPM The OPM shall be and shall remain liable to the Owner for all damages incurred by the Owner as a result of the failure of the OPM to perform in conformance with the terms and conditions of this Agreement The Owner reserves the right to reduce the scope of the OPM s services under this Agreement by issuing a written deductive amendment, signed by a representative of the Owner with authority to do so. ARTICLE 5: SUBCONSULTANTS 5.1 The OPM may employ Subconsultants, subject to the prior written approval of the Owner and subject to Paragraph 10.4, in order to perform services under this Agreement. Neither the employment of Subconsultants nor the Owner's approval of a Subconsultant shall in any way relieve the OPM from its responsibilities under this Agreement. 5.2 Upon request, the OPM shall provide the Owner copies of its agreements with Subconsultants, including amendments thereto, and shall consult with the Owner with respect to the inclusion therein of appropriate terms and conditions to assure timely, efficient and competent performance of the Subconsultants, and compliance with the requirements of the Grant. 5.3 No substitution of Subconsultants and no use of additional Subconsultants shall be made without prior written approval of the Owner, which approval shall not be unreasonably withheld. 5.4 No Subconsultant to the OPM shall have recourse against the Owner for payment of monies alleged to be owed to the Subconsultant by the OPM, and the OPM shall include in all contracts with its Subconsultants language so providing. Page 11 of 67

12 ARTICLE 6: TERM AND TIMELY PERFORMANCE 6.1 The OPM acknowledges that expeditious completion of the OPM's services and the Project is of the utmost importance to the Owner. The term of this Agreement shall commence on the date stipulated in an Approval from the Owner. The OPM shall complete the services required under this Agreement in a prompt and continuous manner. The OPM shall perform its services in a timely manner and shall not delay the work of the Engineer, the Design-Builder or any other Project Vendor. The OPM shall monitor the performance of the Engineer, the Design-Builder, Field Data Collector(s), Make-ready Contractors and all other Project Vendors in accordance with schedules of performance that are established under their respective contracts with the Owner. The OPM shall immediately advise the Owner, as well as the Engineer (until commencement of the Final Design and Buy-out Phase) or the Design-Builder (after commencement of the Final Design and Buy-out Phase), in writing, anytime the OPM determines that either the Engineer s or the Design-Builder's performance is jeopardizing the Project Schedule or the Project Budget. 6.2 Time is of the essence in the performance of the OPM's obligations under this Agreement and under any amendment. The OPM agrees that no other work in its organization will be permitted to interfere with its timely performance of the work required under this Agreement or any amendment. 6.3 The OPM's services are to be provided in accordance with the time schedule set forth in the Grant, in the Project Scope, Schedule and Budget Project Scope, Schedule and Budget attached as Attachment B. If the schedule changes causing the need for revisions to the OPM's services, the OPM shall notify the Owner of the revisions to its services. The Owner shall have the right to extend the term of this Agreement by amendment. All the rights and obligations of the parties for such extended periods shall be as set forth in this Agreement or in the amendment. ARTICLE 7: COMPENSATION 7.1 For the satisfactory performance of all services required pursuant to this Agreement, excluding those services specified under Articles 9 and 10, the OPM shall be compensated by the Owner in an amount up to the Basic Services Fee Cap, identified on Attachment A. The OPM shall submit invoices on a monthly basis in accordance with the Payment Schedule included as Attachment A. Invoices shall be accompanied by a complete breakdown listing the name, payroll title, date, number of hours by day, hourly rate and extended amount of Basic Services performed, by Phase, and shall separately identify any Extra Services included in the Invoice. The maximum amount the Owner may be obligated to pay for Basic Services in any one Phase shall not exceed by more than ten percent (10%) the Not-to-Exceed Fee listed for that Phase in Attachment A. The Owner will consider reasonable requests of the OPM to reallocate the amount of the Basic Services Fee Cap among Phases. The Owner shall make payments to the OPM within 45 days of the Owner's approval of the invoice, which approval shall not be unreasonably withheld or delayed. 7.2 If a deductive amendment removes an entire Phase from the scope of the OPM s services, the amount of the Basic Services Fee Cap shall be reduced by the amount of the Not-to-Exceed Fee shown in Attachment A for the Phase removed. If the deductive amendment removes less than an entire Phase from the scope of the OPM s services, the amount of the Basic Services Fee Cap and the Not-to-Exceed Fee listed for that Phase in Attachment A shall be equitably adjusted following submission by the OPM of a written proposal for the amount of the adjustment. 7.3 The Fee for Basic Services shall include, but not necessarily be limited to, all labor, overhead, profit, insurance, legal services, transportation, communication expenses, reasonable printing and Page 12 of 67

13 copying necessary for completion of the Project. The fee for Basic Services also shall include (a) the rebidding and resolicitation of general bids for either the Preliminary Engineering Award or the Design-Build Award if due to the fault of the OPM, and (b) assisting the Owner as provided by Section in litigation or resolution of claims or other administrative proceedings associated with a bid protest arising out of the Engineer s contract or the Design-Build contract and for assistance if such litigation or claims are due to the fault of the OPM. 7.4 When the OPM receives payment from the Owner, the OPM shall promptly make payment to each Subconsultant whose work was included in the work for which such payment was received, to the extent not paid earlier. 7.5 The Owner shall have the contractual right to investigate any breach of performance of a Subconsultant and to initiate corrective measures it determines are necessary and in the best interest of the Owner. 7.6 In the event any portion of the Fee for Basic Services remains unpaid at the end of the final Phase of services under this Agreement, the Owner shall make payment of such balance in accordance with Section 7.1. ARTICLE 8: BASIC SERVICES The OPM shall perform the following Basic Services: 8.1 Project Management (For All Phases) The OPM shall: Prepare a procedures manual, including but not limited to communication and document control procedure, for the duration of the Project. This manual shall detail, among other things, the responsibilities and lines of communication among all Project participants (Owner, OPM, Project Vendors, Subcontractors and other consultants, vendors or suppliers) and establish the procedure for correspondence, document control, Project Vendor submittal logs, change order reporting logs and other tracking logs, as needed. A draft of the procedures manual shall be submitted to the Owner for approval within 30 days of execution of this Agreement, and be further updated as needed no later than 30 days after Approval to proceed to the Final Design and Buy-out Phase Assist the Owner in the preparation of all information, material, documentation, and reports that may be required or requested by the Owner, including without limitation, documentation related to requests for reimbursement, periodic reports required in connection with the Grant and other Project funding sources, and audit materials Prepare agendas for and, unless requested by the Owner not to attend, shall attend meetings with other representatives of the Owner, Route Facility Owners, municipalities in which the Network is to be installed, Project Vendors and any other meetings relating to the Project as may be required. The OPM shall take minutes of all of the abovereferenced meetings, promptly distribute them in draft, for comments, to the Owner and to such other persons as Owner may designate, finalize the minutes and redistribute them Make appropriate personnel of the OPM available at the Owner s Westborough, Massachusetts offices on a reasonable work schedule to be approved by the Owner, to facilitate consultation, coordination and communication between the OPM and the Owner. Page 13 of 67

14 8.1.5 Receive all applications for payment, requisitions and invoices relating to the Project as submitted by any Project Vendor, review the same for appropriate level of detail, completeness, accuracy, correctness of billing rates, compliance with the applicable contract terms, absence of indicia of fraud, waste or abuse, and any other factor relating to entitlement to payment, and make recommendations to the Owner relative to amounts due Monitor and report to the Owner any changes to the Budget, Scope and Schedule. The OPM shall notify the Owner as soon as practical of any change in the Project Schedule indicating that one or more project participants must accelerate performance in order to meet the Federal Deadlines or any other applicable deadline for completion of the Project Monitor the performance of each Project Vendor, shall report promptly to the Owner any aspect of a Project Vendor s performance that the OPM believes not to be in full compliance with that Project Vendor s contract and shall make recommendations for possible corrective action to be taken by the Project Vendor and/or the Owner and/or other project participants in order to bring the Project Vendor into compliance Obtain from the Owner and deliver to each Project Vendor any available certificates of tax exemption, and verify that the invoices of Project Vendor do not include any taxes to which such exemption applies Receive, review and make recommendations to the Owner regarding approval of safety and quality control/quality assurance plans of each Project Vendor Implement procedures to manage and report to the Owner any instances of breakage, theft or other casualty loss, whether or not coverage by insurance of the Owner, the OPM, any Project Vendor or any other person and, if potentially covered by such insurance, manage any insurance claims arising therefrom Implement procedures designed to detect evidence that any Project Vendor, a principal, employee, agent, contractor, subrecipient, or subcontractor of the OPM or of any Project Vendor, or other person, has submitted a false claim under the False Claims Act or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving the Project or funds provided pursuant to the Grant, is engaging or has engaged in any conduct involving waste or abuse of the Owner s assets, funds or resources. The OPM shall report any such evidence promptly to the Owner in writing Assist the Owner in responding to requests by the DoC or any other federal or state agency with jurisdiction over the Grant or other source of funding for the Project, including gathering information, drafting responses and conferring with the Owner regarding such requests and responses Project Budget The OPM shall: Page 14 of 67

15 Take a lead role, in consultation with the Owner s financial accounting staff, to establish a plan for managing the funds for the Project in such a way as to comply with all terms and conditions on which the Owner has received or will receive the Project funds, including but not limited to the deadlines by which they may or must be spent and the categories of expenditures for which they may be used Take a lead role, in consultation with the Owner s financial accounting staff to establish protocols, procedures, forms, lines of communication and forms of reports for tracking, applying and accounting properly for all Project funds and expenditures on the Project Take a lead role, in consultation with the Owner's financial accounting staff, to prepare a detailed baseline Project Budget, in a form acceptable to the Owner, which will serve as the Project control against which all Engineer estimates, Design-Builder bids and other cost information will be measured. The OPM shall submit this detailed baseline Project Budget to the Owner for approval within 30 days of execution of this Agreement. The OPM shall maintain and update the Project Budget throughout the term of this Agreement. The OPM shall report any variances to the baseline Project Budget as part of the Monthly Progress Report and recommend corrective action to the Owner wherever appropriate Prepare revisions to the Project Budget, as needed, and submit them to the Owner for approval Cost Estimating The OPM shall prepare detailed independent cost estimates at appropriate times and in such detail as is appropriate to the stage of the Project. The OPM shall compare its cost estimates to those prepared by the Engineer or Design-Builder to identify and notify the Owner of any variances In the event that the cost as estimated by the Engineer or Design-Builder exceeds the construction cost in the Project Budget, the OPM shall consult with the Engineer and/or the Design-Builder and recommend to the Owner appropriate revisions to the scope of work The OPM shall provide cost estimating services, as may be required, to develop cash flows Project Schedule As soon as practicable after execution of this Agreement, but not later than 14 days thereafter, the OPM shall prepare a detailed baseline Project Schedule, from the Project Scope and Budget attached as Attachment B and from any other schedules provided by the Owner on or before the effective date of this Agreement, in a form acceptable to the Owner, which will serve as the Project control against which all Project progress will be measured. The Project Schedule shall identify the activities of and associated deadlines for each existing and prospective Project Vendor and Route Facility Owner, Page 15 of 67

16 and for the Owner or other Project Vendors with respect to the Grant and any and all municipal and other governmental permits required for installation of any work of the Project The OPM shall maintain and update the Project Schedule throughout the term of this Agreement. The OPM shall assess the actual progress of the Project relative to the baseline Project Schedule and report any variances from the baseline Project Schedule, as well as proposed schedule changes or remediation steps, as part of the formal Monthly Progress Report In the event that actual progress of the Project varies from the baseline Project Schedule, the OPM shall consult with the Engineer or the Design- Builder and, other Project Vendors as needed, and make appropriate recommendations to the Owner relative to actions that should be taken by the affected Project Vendors to achieve the baseline Project Schedule and/or recommend revisions to the Project Schedule. The OPM shall not be responsible for delays caused by the Engineer, Design-Builder, Subcontractors, other Project Vendors (except for the Consulting Engineer) or the employees, agents or subconsultants of any of them The OPM shall prepare revisions to the Project Schedule, as needed, and submit them to the Owner for approval Project Phasing The following subsections outline the conceptual phases of the Project and, although the starting dates for the respective Phases are generally sequential, the ending dates are not and there will be a high degree of overlap among the Phases after each Phase begins The OIG Approval Phase shall commence with execution of this Agreement and shall end with issuance of a Notice to Proceed with Design-Build Procurement by the OIG or, if the Owner determines that such a Notice to Proceed cannot be obtained, with a execution by the Owner and the OPM of an amendment to this Agreement based upon implementation of a procurement method other than design-build or issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase The Preliminary Engineering Award Phase shall commence with issuance by the Owner of an Approval to proceed with this Phase, which may occur before or after the end of the Phase above, and shall end with execution of a contract with the Engineer or issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase The Preliminary Engineering and Design Phase shall commence with execution of a contract with the Engineer and shall end with issuance by the Owner of public notice of the Project and solicitation of letters of interest from design build entities in accordance with Mass. G.L. ch. 149A Section 17(a) or issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase. Page 16 of 67

17 The Design-Build Contract Award Phase shall commence with issuance by the Owner of public notice of the Project and solicitation of letters of interest from design build entities in accordance with Mass. G.L. ch. 149A Section 17(a) and shall end with execution of a contract with a Design-Builder or issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase The Final Design and Buy-out Phase shall commence with execution of a contract with a Design-Builder and shall end with issuance by the Owner of a Notice to Proceed with the Construction Phase or issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase The Construction Phase shall commence with issuance by the Owner of a Notice to Proceed with the Construction Phase and shall end with either (i) the later to occur of issuance by the Owner of a Certificate of Final Completion and issuance by the Owner of a Notice to Proceed with the Project Close-out Phase, or (ii) issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase The Project Close-out shall commence with issuance by the Owner of a Certificate of Final Completion and shall end with the completion of all project close-out requirements, including final payment to all Project Vendors, final receipt of funding from the Grant and other funding sources, submission of all required reporting, and preparation for and participation in any final audits, issuance by the Owner of a Certificate of Completion of the Project Close-out Phase or issuance by the Owner of a Notice of Termination of this Agreement referencing this Phase, whichever occurs first The OPM shall develop recommendations to the Owner as to refinements, revisions and/or subdivisions or the Phases in order to enhance efficiency and maximize adherence to the baseline Project Schedule and compliance with the Federal Deadlines The OPM shall identify and recommend actions and contract provisions aimed at value engineering and other cost-saving opportunities The OPM shall assist the Owner and Engineer to define specific tasks that must be completed and standards that must be met by the Design-Builder in order to be entitled to issuance of the notices and certificates ending the Phases applicable to its work The OPM shall assist the Owner to define specific tasks that must be completed and standards that must be met by the Project Vendors other than the Design-Builder in order to be entitled to issuance of notices and certificates of completion under their respective contracts Construction Schedule The Design-Builder shall be responsible for preparing and updating its construction schedule on a bi-weekly basis. The OPM shall meet at least weekly with the Design-Builder to review and update its schedule, develop Page 17 of 67

18 the monthly progress information to support the Design-Builder's payment estimate, and monitor the Design-Builder's performance for compliance with its contract The OPM shall notify the Owner of and include in its Monthly Progress Report any significant changes or delays to the construction schedule. The OPM shall make appropriate recommendations to the Owner relative to the actions that should be taken by the Design-Builder and/or advise the Owner when liquidated damages, if included in the Design-Build contract, are anticipated to be incurred The OPM shall review other interim schedule updates and forecasts and advise the Owner of any issues Monthly Progress Report The OPM shall submit to the Owner no later than the fifth (5 th ) day of each calendar month a written Monthly Progress Report summarizing activity during the preceding calendar month. The Monthly Progress Report shall be submitted in a format acceptable to the Owner and shall describe work performed by all project participants (Owner, OPM, Project Vendors, Route Facility Owners and such other persons as the OPM may identify and recommend for inclusion) during the reporting period and work planned for the next reporting period. The report shall also address matters of schedule adherence (Project Schedule as well as individual completion percentages for design and construction), costs to date (updated Project Budget and actual expenses incurred), change orders and potential change orders, cash flow projections, Design-Builder's safety performance, QA/QC, Design-Builder's environmental compliance, community issues, applicable Project Vendor MBE/WBE activities, compliance by each Project Vendor with applicable Guidance and Standards, any issues that could result in additional time, additional costs, violation of any terms of the Grant, and any other anticipated problems/concerns together with recommended solutions Change Order and Claims Administration The OPM shall review all requests for changes, change orders and claims by any Project Vendor or by the Owner, and make specific document and processing recommendations to the Owner, consistent with the General Laws and the Design-Build or other applicable contract documents, which minimize change order and claims processing costs and time and shall provide the services described below Change Order Administration The OPM shall: Review all Project Vendor proposals for change orders and supporting schedules for time extension requests. For any single change order in excess of $100,000, prepare an independent cost estimate analysis with associated schedule impact Initiate, conduct, and document negotiations through a memorandum of negotiations with the affected Project Vendor(s). Page 18 of 67