P3C Balancing and Managing Risk From the Design Builder’s Point of View February 26, 2018

1. P3C Balancing and Managing Risk From the Design Builder’s Point of View February 26, 2018 February 3, 2017

2. Panel Moderator • Paul Monte, Partner, Peckar & Abramson Panel • Daniel Filer, Vice President of Business Development, Ferrovial • David Boss, Project Director, Skanska Infrastructure Development • Carol Stark, Director, Construction Services Group, Aon • Jack Callahan, Partner, Construction Practice Leader, CohnReznick • Karla Pascarella, Partner, Peckar & Abramson

3. Value for Money

4. Risk Transfer

5. Flow Down Or FLUSH Down?

6. Latent Defects in Existing Structures "Concessionaire shall be solely responsible for all costs, including Extra Work Costs and Delay Costs, associated with Structural Latent Defects in Pre-existing Bridges, except that … - the first $2M of Extra Work Costs ("Structural Latent Defects Deductible" directly attributable to repairing physical damage to Pre-existing Bridges caused by Structural Latent Defects shall be borne by Concessionaire … - Owner shall compensate Concessionaire for 100% of Extra Work Costs attributable to Structural Latent Defects in excess of the Structural Latent Defects Deductible … - Concessionaire shall not be entitled to Extra Work Costs covered by insurance … nor for Delay Costs of any kind …"

7. Delay costs “… the risk of financial loss to the Developer arising out of a delay between the Baseline Substantial Completion Target Date and the Substantial Completion Date should be borne by the Construction Contractor …”

8. Defect in DB Work "DB Work Defect means any Defect with respect to the DB D&C Work attributable to the Design-Builder, except a Defect a Defect due to improper O&M Work" "Defect means a defect or deficiency in the condition or performance of any component of the Construction Project, whether by design, construction…" What's the warranty and indemnity period?

9. Design & construction oversight culture

10. Professional Liability Insurance "For a total period of [___] years from the Financial Close Date … professional liability insurance, which may be written on a claims made form, with limits of liability not less than $[____] per claim and $[____] annual aggregate for engineering and design …"

11. Designer Limit of Liability "Designer's total aggregate liability to DB arising under this agreement … shall not exceed the maximum sum of [$___] …"

12. Index Insurance? "All Dollar figures in the Insurance Policy requirements … shall be indexed annually …"

13. Differing Site Conditions Type 1 - Conditions different than indicated (in plans, geotechnical documents, and specifications) or anticipate based on local experience. Type 2 - Conditions different than normally encountered in the type of environment and work under consideration. Type P3 – Who carries the cost of the risk?

14. Utility Delays "Concessionaire shall be entitled to seek compensation and a time extension under the Contract Documents for a Utility Owner Delay, provided that … Notwithstanding, Concessionaire shall not be entitled to any relief relating to a Utility Owner Delay for the following: 1. Extra Work Costs 2. Delay Costs of any kind 3. Utility Owner Delays that could have been mitigated" Utility Owner Delay means a Delay directly attributable to a Qualifying Utility Owner in performing its obligations …”

15. Don’t forget you’re other responsibilities • DBE • Safety • Local Hires • Prevailing Wage • Community Benefits

16. Choices

17. Risky Business