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  • Section 62 Definitions applicable to Secs. 62 to 73

Section 62. As used in sections 62 to 73, inclusive, the following words shall have the following meanings, unless the context clearly requires otherwise:—

“Affected jurisdiction”, any city or town, or other unit of government within the commonwealth in which all or part of a transportation facility is located or any other public entity directly affected by the transportation facility.

“Architectural and engineering services”,: (1) professional services of an architectural or engineering nature, as defined by applicable state law, which are required to be performed or approved by a person licensed, registered or certified to provide such services as described in this definition; (2) professional services of an architectural or engineering nature performed by contract that are associated with research, planning, development, design, construction, alteration or repair of real property; and (3) such other professional services of an architectural or engineering nature or incidental services, which members of the architectural and engineering professions and employees thereof may logically or justifiably perform, including: studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual designs, plans and specifications, value engineering, construction phase services, soils engineering, drawing reviews, preparation of operating and maintenance manuals and other related services.

“Department”, the Massachusetts Department of Transportation.

“Construction”, the process of building, altering, repairing, improving or demolishing any transportation facility, including any structure, building or other improvements of any kind to real property. “Construction” shall not include the routine operation, routine repair or routine maintenance of any existing transportation facility, including structures, buildings or real property.

“Force majeure”, an uncontrollable force or natural disaster not within the power of the operator or the commonwealth.

“Contract”, any agreement, including a public-private agreement for the procurement, operation or disposal under sections 61 to 73, inclusive, of a transportation facility by the department.

“Contract modification”, any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity or other provisions of any contract accomplished by mutual action of the parties to the contract.

“Contractor”, any person having a contract with the department under sections 61 to 73, inclusive.

“Cooperative purchasing”, procurement conducted by, or on behalf of, an affected jurisdiction.

“Design-build-finance-operate-maintain”, a project delivery method in which the department enters into a single contract for design, construction, finance, maintenance and operation of a transportation facility over a contractually defined period. No public funds shall be appropriated to pay for any part of the services provided by the contractor during the contract period.

“Design-build-operate-maintain”, a project delivery method in which the department enters into a single contract for design, construction, maintenance and operation of a transportation facility over a contractually defined period. All or a portion of the funds required to pay for the services provided by the contractor during the contract period shall either be appropriated by the commonwealth or by the department prior to award of the contract or secured by the commonwealth or by the department through fare, toll or user charges.

“Design requirements”, the written description of the transportation facility or service to be procured under sections 61 to 73, inclusive, including:

(1) required features, functions, characteristics, qualities and properties required by the department;

(2) the anticipated schedule, including start, duration and completion; and

(3) estimated budgets as applicable to the specific procurement for design, construction, operation and maintenance; provided, however, that design requirements may include drawings and other documents illustrating the scale and relationship of the features, functions and characteristics of the project.

“Independent peer reviewer services”, additional architectural and engineering services provided to the department in design-build-operate-maintain or design-build-finance-operate-maintain procurements to confirm that the key elements of the professional engineering and architectural design provided by the contractor are in conformance with the applicable standard of care.

“Maintenance”, includes routine operation, routine maintenance, routine repair, rehabilitation, capital maintenance, maintenance replacement and any other categories of maintenance that may be designated by the department.

“Material default”, failure of a contractor to perform any duties under a public-private agreement which jeopardizes delivery of adequate service to the public and remains unsatisfied after a reasonable period of time and after the operator has received written notice from the department of the failure.

“Operate”, any action to operate, maintain, repair, rehabilitate, improve, equip or modify a transportation facility, including the design and construction of repairs, improvements or modifications to a transportation facility.

“Operator”, a private entity that has entered into a public-private agreement to provide design-build-finance-operate-maintain or design-build-operate-maintain services under sections 61 to 73, inclusive.

“Private entity”, a natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, non-profit entity or other business entity.

“Proposal development documents”, drawings and other design-related documents that are sufficient to fix and describe the size and character of a transportation facility as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate to the applicable project delivery method.

“Public-private agreement”, the contract between a private entity and the department that relates to the development, financing, maintenance or operation of a transportation facility subject to sections 61 to 73, inclusive.

“Request for proposals”, all documents, whether attached to or incorporated by reference, utilized for soliciting proposals for a transportation facility under sections 61 to 73, inclusive.

“Responsible bidder or offeror”, a person who has the capability in all respects to fully perform the contract requirements, and the integrity and reliability to assure good faith performance.

“Responsive bidder”, a person who has submitted a bid which conforms in all material respects to the invitation for bids.

“Transportation facility”, new or existing highway, road, bridge, tunnel, overpass, ferry, airport, public transportation facility, terminal facility, vehicle parking facility, seaport facility, rail facility, intermodal facility or similar facility open to the public and used for the transportation of persons or goods, and any building, structure or networks of buildings, structures, pipes, controls and equipment that provide transportation services, including rolling stock and equipment, and any building, structure, parking area, appurtenances or other property needed to operate such facility that is subject to a public-private agreement.

“User fees”, the rate, toll, fee or other charges imposed by an operator or by the department for use of all or part of a transportation facility.

“Utility”, a privately, publicly or cooperatively owned line, facility or system for producing, transmitting or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public.