Liability of Design-Builders for Design, Construction, and Acquisition Claims (2015)

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A-1 APPENDIX A: RIGHT-OF-WAY REQUIREMENTS AND CONTRACT TERMS FOR CERTAIN DESIGN–BUILD AND PUBLIC–PRIVATE PARTNERSHIP PROJECTS The following charts summarize right-of-way (ROW) requirements and contract terms for certain design–build and public–private partnership projects: Design–Build Projects Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments ADOT (Loop 202 South Mountain Freeway) (from RFP) Est. $1,200 Est. 377 parcels required. Total acquisition estimated to exceed 1800 acres. As of June 12, 2015, ADOT owned approximately 12% of the parcels, or ~40% of the estimated acreage. Contract includes outside dates for ADOT to acquire a number of “Retained Parcels,” which include certain single family residential parcels and parcels with lengthy relocation times. Anticipated that ADOT will pay for all permanent property interests for the project, except for additional properties required due to developer’s design decisions. Anticipated that developer will pay for utility and temporary construction easements. Since issuance of the ROD, ADOT has been pursuing acquisitions of approximately 250 parcels, which are primarily full takes. ADOT will continue ROW acquisitions until it awards the DBM contract. Following award, ADOT anticipates developer will take responsibility for professional ROW acquisition and relocation services for all not-yet- acquired parcels, except certain “Retained Parcels” identified in the contract. Developer must, at its cost, provide acquisition services for any utility easements required for utilities identified in the RFP. Anticipated that developer may obtain at its own expense. As of June 12, 2015, project is in procurement for a design–build– maintain contract. Contract award expected in first quarter of 2016.

A-2 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments Alameda Corridor Transportation Authority (1998) $700 ~90% of project ROW already in hand prior to contract award, much of it obtained through negotiations with railroad operators. Hundreds of parcels required, approximately 50 of which impacted the DB schedule. Contract includes outside dates for acquisition of each parcel within the project envelope that was not already acquired by the Authority prior to NTP2. For parcels not identified in contract, Authority has 50 days after receipt of a property binder to make a determination whether to acquire, then 210 days thereafter to provide access to unimproved parcels and 270 days for improved parcels. Authority pays for all permanent property interests for the project. Authority responsible for acquisition of major portion of ROW. Authority identified certain “advanced acquisition” parcels and committed to provide them by a specified date. For other parcels, contractor responsible, at its cost, for preparing property binders and other acquisition services for parcels to be acquired post-NTP2. Contractor also responsible for providing expert witness services for condemnation actions. Contractor must, at its cost, provide acquisition services for any utility easement for which the applicable Master Agreement makes Authority responsible. Contractor reimburses Authority for all costs it incurs in acquiring utility easements, except for any city-owned utilities and any utilities for which the utility owner bears cost responsibility. Contractor may obtain at own expense with Authority’s approval. Contract required completed subgrade in the North and South Ends to be turned over to the contractor by October 15, 2001. In fact the vast majority of the project was turned over early. Several parcels were not acquired by the deadline, but the contractor was able to work around them.

A-3 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments CDOT/RTD (T-REX) (2001) $1,161 Approx. 30% of ROW acquired as of proposal date. Over 100 parcels still required as of contract award. Contract includes outside dates for acquisition of parcels identified in the RFP. CDOT/RTD pays for all ROW identified in RFP and any additional parcels acquired due to CDOT- directed change or necessary design change. Contractor pays for all other property. CDOT/RTD responsible for acquisition services for ROW identified in RFP and any additional parcels acquired due to CDOT- directed change or necessary design change, at its cost. Contractor responsible for acquisition services for additional property, at its cost. CDOT/RDT responsible for costs of acquiring replacements for utility easements located within ROW boundaries (unless the utility owner has cost responsibility). Contractor responsible for costs of other utility easements (unless the utility owner has cost responsibility). Contractor may obtain at own expense with CDOT/RTD’s approval. Contractor may request CDOT/RTD’s assistance. The information provided with regard to this project is based on a review of the relevant provisions in the DB Contract only.

A-4 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments Eastern Toll Road (1995) $678 24-mi, 6-lane corridor. The majority of the ROW was acquired from The Irvine Company, with a significant number of parcels acquired from other property owners. Determined after receipt of property binders from design–builder, depending on whether the property is to be acquired through dedication or not and whether or not condemnation is required. Owner pays for ROW required within the agency- provided construction limits, mitigation areas, the utility easements, property to be used for the Agency Administration Building and the Caltrans Regional Maintenance Facility, and property necessary for arterial improvements included in the project. Design–builder provides property binders and certain other services including provision of expert witnesses; Owner negotiates acquisitions and is responsible for litigation. Owner acquires. Design–builder responsible for TCEs; may request owner to acquire. MnDOT (TH 212) (2004) $238 Book 2 of the contract documents includes a R/W Work Map identifying parcels owned and to be MnDOT and contractor to mutually determine which parcels are on the critical path and establish dates to be included in the baseline schedule for activities associated with provision of access. MnDOT. Mn/DOT shall provide access to the ROW identified on the R/W Work Map. The cost of obtaining any ROW not identified on the R/W Work Map associated with a Value Engineering Change Proposal will be considered in determining the contract price adjustment. Subject to MnDOT approval, contractor shall reimburse MnDOT. Contractor. Contractor. For purposes of the contract, construction easements are defined as “Non- permanent easements, other than those provided by Mn/DOT in accordance with the R/W Work

A-5 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments acquired by MnDOT. MnDOT for any costs (including attorneys’, accountants’, and expert witness fees and costs) of acquiring any real property that is not MnDOT’s responsibility under which contractor determines is necessary or advisable in order to complete the project, including obtaining any construction easements. Map, that Contractor determines are desirable to perform the Work.” SCDOT (U.S. 701 Bridge Replacements) (2015) $48 Inf. not available. Contractor sets schedule. Contractor responsible for ROW services and ROW acquisition costs. SCDOT responsible for premium ROW costs and cost of second appraisals, with certain exceptions. (Premium ROW acquisition costs are the amount awarded or settlement amount exceeding “Just compensation.”) Contractor is responsible for acquisition services and costs of acquisitions and relocations, except as noted below, and must follow procedures approved by SCDOT. Contractor acts as an agent on behalf of the State of South Carolina in the acquisitions. State provides legal services for cases going to trial and will provide a representative to make timely decisions regarding just compensation, For those utilities that have prior rights SCDOT is responsible for permanent relocation costs. Contractor is responsible for all contacts with landowners for ROW or construction items. Contractor is required to use ROW consultants on SCDOT’s “on call” list.

A-6 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments approve relocation benefits, and approve administrative settlements. SCDOT is responsible for “premium” ROW costs (costs exceeding just compensation) and cost of second appraisals, excluding any additional property identified by contractor for acquisition. TxDOT (Grand Parkway Segments F-1, F-2, and G) $1,007 Over 400 parcels to be acquired. Contractor sets schedule TxDOT pays for all real property within the ROW lines depicted in the NEPA approvals. Developer responsible for costs of acquiring any additional real property necessitated by contractor’s design. Contractor is responsible for acquisition services, including preparation of acquisition packages and condemnation packages, surveys, condemnation support, offers and relocation assistance, and the costs of acquisitions. TxDOT is responsible for approval of acquisition packages and condemnation packages, clearing title, and providing access within 365 days after approval of a condemnation package. Contractor is responsible for acquiring and costs of acquiring utility easements. Contractor is responsible for acquiring and costs of acquiring temporary construction easements.

A-7 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments Attorney General provides legal services for condemnation actions. UDOT (I-15 CORE) (2009) $1,725 Contract includes a ROW schedule identifying parcels to be acquired. According to UDOT 2012 Efficiencies Report, 287 parcels were acquired. ROW schedule shows the minimum dates UDOT reserved for acquiring access to the parcels identified on the ROW plans. Prior to NTP2 and concurrent with development of the project schedule, design–builder may request UDOT to reprioritize the sequence of ROW acquisition to better accommodate the performance of work. UDOT pays for all real property depicted in the ROW plans. Design–builder must reimburse UDOT for any costs of acquiring any real property that is not identified in the ROW plans. UDOT responsible for services related to acquisition within the ROW plans. UDOT responsible for providing access to property not identified on the ROW plans, provided that design–builder delivers the necessary property acquisition instruments and UDOT determines, in its sole discretion, that such property is required for the project. UDOT responsible for acquiring, and the cost of acquiring, all utility easements located within the ROW depicted in the contract drawings, whether or not such utility easements are actually shown in the contract drawings. UDOT also responsible for acquiring, and the cost of acquiring, utility easements for which a replacement easement is necessary to meet the requirements of the contract documents. UDOT may provide temporary interest in property not identified on the ROW plans if UDOT decides, in its sole discretion, that such temporary interest in property is required for the project. Design–Builder responsible for any costs incurred by UDOT in acquiring any such temporary interest in property. Per UDOT 2012 Efficiencies Report: ROW acquisition posed significant delay risk. Allowing sufficient time for proper acquisition, documentation, appraisals, and negotiation is critical to project success. UDOT’s ROW team worked closely with UDOT’s designers to identify ROW needs during pre-proposal period. This allows ROW agents an early start to develop ROW documents and negotiate and acquire property based upon conceptual design.

A-8 Agency/Project; Contract Price (in millions); ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments Design–builder responsible for, and shall reimburse UDOT for any costs related to, the acquisition of all other utility easements. DB was required to design and construct within the provided boundary. If improvements could not be accommodated within ROW provided, UDOT paid for the ROW. UDOT ROW team worked closely with DB designers during final design to further refine and sometimes eliminate ROW impacts.

A-9 Public–Private Partnership Project Project; Contract Price (in millions); Project ROW needs Schedule for ROW acquisitions Responsibility for ROW land cost Responsibility for ROW acquisition-related activities Utility easements Temporary construction easements Comments FDOT (I-4 Ultimate Project) (2014) $2,300 Most of the Project ROW already in hand prior to contract award. FDOT to acquire 39 additional parcels listed in a table in the technical requirements. Identified parcels are to be made available by FDOT to concessionaire by the project ROW certification deadline. FDOT responsible for the cost of acquiring the project ROW identified in the project ROW maps and any additional project ROW necessitated by an FDOT change or an FDOT- caused delay caused by an error in preliminary design that cannot be corrected through a waiver, deviation, or design exception from the contract requirements. Concessionaire responsible for all costs incurred by FDOT in the acquisition of any other additional project ROW that the concessionaire requests and FDOT approves. FDOT responsible for the acquisition of the project ROW identified in the project ROW maps and any additional project ROW necessitated by an FDOT change or an FDOT-caused delay caused by an error in preliminary design that cannot be corrected through a waiver, deviation, or design exception from the contract requirements. FDOT responsible for acquiring any other additional project ROW that the concessionaire requests and FDOT approves. Concessionaire responsible for the cost of such acquisitions and bears the sole risk and cost of any time and cost impacts to the work related to such acquisitions. Utility easements are not specifically addressed in the contract, but the definition of project ROW is broadly written and therefore includes utility easements. Concessionaire responsible for obtaining any real property that is not project ROW that concessionaire deems desirable for the project, including temporary permits and leases needed for construction staging. The I-4 Ultimate Project is a Design– Build–Finance– Operate–Maintain project. The information provided with regard to this project is based on a review of the relevant provisions in the Concession Agreement only.