U S Department of Transportation Federal Transit Administration

U. S Department of Transportation Federal Transit Administration MTA Construction & Development Company FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 Essential Work Pursuant to Executive Order 202. 13, the NYS Empire State Development Corporation issued a determination that construction activities in support of transportation infrastructure an “essential” service. 2

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 Force Majeure – Contract Definition “Force Majeure” is defined by contract as “acts of God, fire, earthquake, explosion, epidemic, riots, civil disturbance, strike, war, injunctions of governmental entities, embargoes, blockades or excessive inclement weather…” 3

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 Extensions of Time To qualify as an Excusable Delay: • the delay must be on the critical path per the latest schedule update, and extend the Substantial Completion Date of the project; • the delay must be due to: (i) the act, neglect or failure of the Authority, another Authority Contractor, a utility or governmental entity; (ii) a differing site condition or (iii) a Force Majeure; 4

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 • the cause of the delay must have arisen after Notice of Award (and been unanticipated by the Contractor); • the Contractor must have taken all reasonable measures, including changes to the sequencing of the work, to avoid or mitigate the delay; • the Contractor must make a written request within 10 days of the delay event and provide appropriate documentation on the nature and expected duration of the delay. 5

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 Delay Damages An Excusable Delay associated with: (i) a failure to provide access to the Work Site; (ii) the issuance of a Change Order, or (iii) the issuance of a Stop Work Order, may entitle contractor to some limited categories of delay damages, IF: • the delays were not concurrent with non-excusable delays or excusable delays that were due to (e. g. ) the action of a governmental entity, and • the damages were actually, reasonably and necessarily incurred and verifiable by appropriate documentation. Damages for decreased productivity or efficiency, profits or indirect costs are disallowed by contract. 6

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 COVID Related Requests • Excusable delay • Excusable and compensable delay • Direct costs (e. g. , additional cleaning, cost of additional PPE, loss of productivity, additional costs associated with safety protocols and signage) 7

U. S Department of Transportation Federal Transit Administration FTA TRANSIT CONSTRUCTION WORKSHOP - VIRTUAL OCTOBER 20 – 21, 2020 Avoiding Claims and Promoting Safety The MTA has: • disseminated over 280 separate communications providing COVID related guidance/information. • developed a web app for daily project reporting including project status and PPE inventory. • developed worksite safety protocols for PPE usage, hygiene, and social distancing. • provided PPE, disinfectant, and hand sanitizer to project staff. • worked cooperatively with contractors to mitigate delay. • encouraged contractors to evaluate options for financial assistance such as the Coronavirus Aid, Relief, and Economic Security (CARES) Act, as well as other available Federal, State and Local government relief for businesses. 8