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03 March 25, 2019 Western Riverside County Programs and Projects Comments are welcomed by the Commission. If you wish to provide comments to the Commission, please complete and submit a Speaker Card to the Clerk of the Board. MEETING AGENDA Western Riverside County Programs and Projects Committee Time: 1:30 p.m. Date: March 25, 2019 Location: BOARD ROOM County of Riverside Administration Center 4080 Lemon St, First Floor, Riverside CA 92501 COMMITTEE MEMBERS Brian Berkson, Vice Chair/Chris Barajas, City of Jurupa Valley Clint Lorimore/Todd Rigby, City of Eastvale Wes Speake/Jim Steiner, City of Corona Bill Zimmerman/Dean Deines, City of Menifee Victoria Baca/Carla Thornton, City of Moreno Valley Scott Vinton/Randon Lane, City of Murrieta Berwin Hanna/Ted Hoffman, City of Norco Michael Vargas/Rita Rogers, City of Perris Andrew Kotyuk/Russ Utz, City of San Jacinto Ben J. Benoit/Joseph Morabito, City of Wildomar Kevin Jeffries, County of Riverside, District I Jeff Hewitt, County of Riverside, District V STAFF Anne Mayer, Executive Director John Standiford, Deputy Executive Director AREAS OF RESPONSIBILITY Air Quality, Capital Projects, Communications and Outreach Programs, Intermodal Programs, Motorist Services, New Corridors, Regional Agencies/Regional Planning, Regional Transportation Improvement Program (RTIP), Specific Transit Projects, State Transportation Improvement Program (STIP) Transportation Uniform Mitigation Fee (TUMF) Program, and Provide Policy Direction on Transportation Programs and Projects related to Western Riverside County and other areas as may be prescribed by the Commission. TO: Riverside County Transportation Commission FROM: Lisa Mobley, Clerk of the Board DATE: March 20, 2019 SUBJECT: G.C. 84308 Compliance – Potential Conflict of Interest California Government Code 84308 states a Commissioner may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from a bidder or bidder’s agent. This prohibition does not apply to the awarding of contracts that are competitively bid. The Commission’s procurement division asks potential vendors to disclose any contributions made to the campaigns of any Commissioner as part of their submitted bid packets. As an additional precaution, those entities are included below in an effort to give Commissioners opportunity to review their campaign statements for potential conflicts. Please note the entities listed in this memo are not encompassing of all potential conflicts and are in addition to any personal conflicts of interest such as those disclosed on Statement of Economic Interests – Form 700 or prohibited by Government Code Section 1090. Please contact me should you have any questions. Agenda Item No 7: Agreements for On-Call Right of Way Support Services Consultant(s): Epic Land Solutions, Inc. Karen Starr, President 3850 Vine Street, Suite 200 Riverside, CA 92507 Overland, Pacific & Cutler, LLC Mark La Bonte, Sr. Vice President 3750 Schaufele Avenue, Suite 150 Long Beach, CA 90808 Agenda Item No 8: Agreement for On-Call Right of Way Engineering and Surveying Services Consultant(s): Psomas Cliff Simental, Vice President 1500 Iowa Avenue, Suite 210 Riverside, CA 92507 RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 1:30 p.m. Monday, March 25, 2019 BOARD ROOM County Administrative Center 4080 Lemon Street, First Floor Riverside, California In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission’s website, www.rctc.org. In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, and the Federal Transit Administration Title VI, please contact the Clerk of the Board at (951) 787-7141 if special assistance is needed to participate in a Commission meeting, including accessibility and translation services. Assistance is provided free of charge. Notification of at least 48 hours prior to the meeting time will assist staff in assuring reasonable arrangements can be made to provide assistance at the meeting. 1. CALL TO ORDER 2. ROLL CALL 3. PLEDGE OF ALLEGIANCE 4. PUBLIC COMMENTS – Each individual speaker is limited to speak three (3) continuous minutes or less. The Committee may, either at the direction of the Chair or by majority vote of the Committee, waive this three minute time limitation. Depending on the number of items on the Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of each speaker to two (2) continuous minutes. Also, the Committee may terminate public comments if such comments become repetitious. In addition, the maximum time for public comment for any individual item or topic is thirty (30) minutes. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Committee shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items. Under the Brown Act, the Board should not take action on or discuss matters raised during public comment portion of the agenda which are not listed on the agenda. Board members may refer such matters to staff for factual information or to be placed on the subsequent agenda for consideration. Western Riverside County Programs and Projects Committee March 25, 2019 Page 2 5. APPROVAL OF MINUTES – NOVEMBER 26, 2018 6. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 7. AGREEMENTS FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES Page 1 Overview This item is for the Committee to: 1) Award the following agreements to provide on-call right of way support services for a three-year term in an amount not to exceed an aggregate value of $3 million: a) Agreement No. 19-31-045-00 to Epic Land Solutions; b) Agreement No. 19-31-046-00 to Overland, Pacific, & Cutler; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the consultants under the terms of the agreements; and 4) Forward to the Commission for final action. 8. AGREEMENT FOR ON-CALL RIGHT OF WAY ENGINEERING AND SURVEYING SERVICES Page 49 Overview This item is for the Committee to: 1) Award Agreement 19-31-013-00 to Psomas to provide on-call right of way engineering and surveying services for a three-year term, in an amount not to exceed an aggregate value of $480,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the consultant under the terms of the agreement; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee March 25, 2019 Page 3 9. RIVERSIDE TRANSIT AGENCY FISCAL YEAR 2018/19 SHORT RANGE TRANSIT PLAN AMENDMENT Page 94 Overview This item is for the Committee to: 1) Approve an increase to Riverside Transit Agency’s (RTA) Fiscal Year (FY) 2018/19 Local Transportation Fund (LTF) operating assistance allocation in the amount of $1.6 million; 2) Approve reductions to RTA’s FY 2018/19 2009 Measure A Western County Public Transit-Intercity Bus operating assistance allocation in the amount of $1,208,510 and 2009 Measure A Western County Public Transit-Consolidated Transportation Service Agency (CTSA) operating assistance allocation in the amount of $391,490; 3) Approve adjustments to the FY 2018/19 budget to increase LTF transit operating expenditures by $1.6 million and to decrease 2009 Measure A Western County Public Transit-Intercity Bus and Public Transit-CTSA transit operating expenditures by $1,208,510 and $391,490, respectively; 4) Approve an amendment to RTA’s FY 2018/19 Short Range Transit Plan (SRTP) to reflect the swap of $1.6 million in 2009 Measure A Western County Public Transit funds with $1.6 million of available LTF; and 5) Forward to the Commission for final action. 10. ELECTION OF OFFICERS FOR THE WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Page 100 Overview This item is for the Western Riverside County Programs and Projects Committee to conduct an election of officers for 2019 – Chair and Vice Chair. 11. COMMISSIONERS / STAFF REPORT Overview This item provides the opportunity for the Commissioners and staff to report on attended and upcoming meeting/conferences and issues related to Commission activities. 12. ADJOURNMENT AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, November 26, 2018 MINUTES 1. CALL TO ORDER/ ROLL CALL The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Adam Rush at 1:31 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. ROLL CALL 3. PLEDGE OF ALLEGIANCE At this time, Commissioner Brian Berkson led the Western Riverside County Programs and Projects Committee in a flag salute. Members/Alternates Present Members Absent Marion Ashley Andrew Kotyuk Victoria Baca Ben Benoit Brian Berkson Randy Fox Deborah Franklin Berwin Hanna Kevin Jeffries Adam Rush Michael Vargas* Bill Zimmerman *arrived after meeting was called to order 4. PUBLIC COMMENTS There were no requests to speak from the public. 5. APPROVAL OF MINUTES – OCTOBER 22, 2018 M/S/C (Baca/Ashley) to approve the minutes as submitted. RCTC WRC Programs and Projects Committee Minutes November 26, 2018 Page 2 6. ADDITIONS/REVISIONS There were no additions or revisions at this time. 7. REVISED EXPRESS LANES PRIVACY POLICY Jennifer Crosson, Toll Operations Manager, presented the details of the revised express lanes privacy policy. M/S/C (Benoit/Baca) to: 1) Adopt Resolution No. 18-017, “Resolution of the Riverside County Transportation Commission Regarding the Revised Express Lanes Privacy Policy”; and 2) Forward to the Commission for final action. 8. 91 Express Lanes Traffic and Revenue Study Update Michael Blomquist, Toll Program Director, presented the details of the 91 Express Lanes traffic and revenue study update. Sheldon Mar, Stantec, presented the details of the study findings. At this time, Commissioner Michael Vargas arrived. Commissioner Deborah Franklin asked if the trend for the aging population was taken into consideration and if there is a model that looks at autonomous vehicles. Sheldon Mar stated he does not know if there is an aging trend to look into along with the other socioeconomic models. Autonomous vehicles are not part of the forecast. It would be a separate model and is very speculative at this moment. Michael Blomquist added there is too much speculation regarding autonomous vehicles to add them to the forecast models at this time. Michael Blomquist clarified for Commissioner Randy Fox the ultimate project is to complete a general purpose lane westbound from the SR-71 to SR-241 and also an eastbound lane from the SR-241 to the SR-71. It also includes widening lanes to standard widths. Mr. Ned Ibrahim, Corona resident, expressed his concerns regarding the traffic and revenue study update. Chair Rush asked about the sensitivity cases and why these projects were not part of the scope of the original study. RCTC WRC Programs and Projects Committee Minutes November 26, 2018 Page 3 Michael Blomquist replied that its not an oversight that some of these projects are on the sensitivity analysis. They were added to determine the impact of traffic and revenue in the future. He then discussed the gross potential revenues and what they would be used for after all debts and maintenance are paid. Anne Mayer added the commitments the Commission made need to be met before any revenues can be considered surplus. The Commission will have to use those funds to prepay debt. M/S/C (Baca/Benoit) to: 1) Adopt the study results of the RCTC 91 Express Lanes Investment Grade Traffic and Revenue Study, Investment Grade Study Refresh 2018; and 2) Forward to the Commission for final action. 9. STATE ROUTE 91 CORRIDOR OPERATIONS PROJECT IMPROVEMENTS REPORTS AND REQUEST FOR VARIOUS AUTHORIZATIONS David Thomas, Toll Project Manager, presented the details of the SR-91 Corridor Operations Project improvements reports and request for various authorizations. Sheldon Mar, Stantec, presented the data collected for the ramp meter study. Chair Rush announced email comments were received by Commissioners and opened the floor to public comments. Wes Speake, Corona resident, spoke in support of Option 4. Karen Alexander, Corona resident, spoke in support of Option 4. Jim Steiner, Corona resident, expressed his concerns regarding the traffic along Green River Road. Don Fuller, Corona resident, spoke in support of Option 4. Amie Kinne, Corona resident, spoke in support of Option 4. Michele Wentworth, Corona resident, expressed her concerns regarding the amount of traffic going through the city of Corona. Matt Woody, Corona resident, expressed his concerns regarding the amount of traffic going through the city of Corona. RCTC WRC Programs and Projects Committee Minutes November 26, 2018 Page 4 Commissioner Fox commented on the project and its impacts on the region. Anne Mayer explained for Chair Rush that at this time we do not have the funding and do not know where the funding will come from. As with all the other projects, we move forward in the process by doing the environmental and design so we are ready to go to construction when funding becomes available. Anne Mayer clarified for Commissioner Kevin Jeffries that the money spent to date has been excess toll revenues. Excess toll revenue is being used for various projects in the region. Dave Thomas clarified for Commissioner Berwin Hanna that the project is for a length of 2 miles. M/S/C (Berkson/Baca) to: 1) Receive a report on the implementation of the following State Route 91 Corridor Operations Project (91 COP) improvements previously approved by the Commission: a) Interstate 15 northbound 91 Express Lanes Ingress Improvement Option No. 1 (I-15 NB EL Option 1); and b) SR-91 westbound General Purpose Lane Improvement Option No. 3 (91 WB GP Option 3); 2) Receive a report on the Ramp Meter Study at the SR-91 westbound Green River Road On-Ramp; 3) Authorize implementation of the construction phase of the SR-91 westbound General Purpose Lane Improvement modified Option No. 4 (91 WB GP Option 4M) after completing environmental and design approvals; 4) Authorize the inclusion of the 91 WB GP Option 4 in the list of Commission projects for prioritization and funding determination; 5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute all necessary agency agreements or amendments to existing agency agreements for the Construction of the 91 WB GP Option 4 project; and 6) Forward to the Commission for final action. 10. AGREEMENT WITH FALCON ENGINEERING FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE CONSTRUCTION OF THE STATE ROUTE 60 TRUCK LANES PROJECT Patti Castillo, Capital Projects Manager, presented the scope of the agreement with Falcon Engineering for construction management services for the construction of the SR-60 Truck Lanes Project. M/S/C (Benoit/Vargas) to: RCTC WRC Programs and Projects Committee Minutes November 26, 2018 Page 5 1) Award Agreement No. 18-31-164-00 to Falcon Engineering to provide construction management (CM), materials testing, construction surveying and environmental monitoring services for the State Route 60 (SR-60) Truck Climbing Lanes project, in the amount of $15,920,498, plus a contingency amount of $1,592,050, for a total amount not to exceed $17,512,548; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director, or designee, to approve contingency work as may be required for the project; and 4) Forward to the Commission for final action. At this time, Commissioner Jeffries left the meeting. 11. COOPERATIVE AGREEMENT NO. 19-33-004-00 BETWEEN THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY FOR CONSTRUCTION OF THE RIVERSIDE LAYOVER FACILITY IMPROVEMENT PROJECT Marlin Feenstra, Project Delivery Director, presented the scope of the Cooperative Agreement between the Riverside County Transportation Commission and Southern California Regional Rail Authority for construction of the Riverside Layover Facility improvement project. Marlin Feenstra clarified for Chair Rush that the grant for this project is currently being managed by the Commission. Marlin Feenstra clarified for Commissioner Franklin there will be no impact on customers. The project should be completed by next winter. M/S/C (Berkson/Baca) to: 1) Approve Cooperative Agreement No. 19-33-004-00 between the Commission and Southern California Regional Rail Authority (SCRRA) for the construction of the Riverside Layover Facility Improvement project (Project) for an amount not to exceed $156,200, plus a contingency amount of $15,800, for a total amount not to exceed $172,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the cooperative agreement on behalf of the Commission; 3) Authorize the Executive Director or designee to approve the use of a contingency, as may be required for these services; and 4) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes November 26, 2018 Page 6 12. COMMISSIONERS / STAFF REPORT Anne Mayer announced: a) The Festival of Lights trains will be running again this year. b) The California Transportation Commission reception will be held on December 5 in the CAC atrium. 13. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 3:12 p.m. Respectfully submitted, Lisa Mobley Clerk of the Board AGENDA ITEM 7 Agenda Item 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 25, 2019 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreements for On-Call Right of Way Support Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award the following agreements to provide on-call right of way support services for a three-year term in an amount not to exceed an aggregate value of $3 million: a) Agreement No. 19-31-045-00 to Epic Land Solutions; b) Agreement No. 19-31-046-00 to Overland, Pacific, & Cutler; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the consultants under the terms of the agreements; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: Right of way services are necessary to support current Commission projects and future highway and rail projects. The services provide include appraisal coordination, title/escrow services, acquisition, residential/business relocation, utility relocation coordination, eminent domain coordination, property management, right of way certification, and project closeout. In order to meet project schedules, control costs, and assure compliance with federal and state regulations and requirements related to right of way acquisition, staff recommends awarding contracts for on-call right of way support services with the work to be issued on an as-needed task order basis. Due to the amount of potential right of way support services required at this time, staff determined an award to two firms was in the Commission’s best interest. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement as it allows the Commission to identify the most advantageous proposals with price and other factors considered. Non-price factors include elements such as qualifications of firm, personnel, and the ability to respond to the Commission’s needs for on-call right of way 1 Agenda Item 7 support services as set forth under the terms of the Request for Proposals (RFP) No. 19-31-045-00. RFP No. 19-31-045-00 for on-call right of way support services was released by staff on January 17. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Through PlanetBids, 46 firms downloaded the RFP; 7 of these firms are located in Riverside County. A pre-proposal conference was held on January 29 and attended by 6 firms. Staff responded to all questions submitted by potential proposers prior to the February 5 clarification deadline date. Six firms – Associated Right of Way Services (Pleasant Hill); Briggs Field Services (Fresno); Continental Field Service (San Bernardino); Epic Land Solutions (Riverside); Overland, Pacific & Cutler (Riverside); and Paragon Partners (Cypress) – submitted responsive and responsible proposals prior to the submittal deadline on February 19. Utilizing the evaluation criteria set forth in the RFP, the 6 proposals were evaluated and scored by an evaluation committee comprised of Commission staff. As a result of the evaluation committee’s assessment of the written proposals, the evaluation committee determined two firms – Epic Land Solutions and Overland, Pacific & Cutler – to be the most qualified firms to provide on-call right of way support services. The evaluation committee recommends contract awards to these two firms for a three-year term in the aggregate amount of $3 million, as these firms earned the highest total evaluation scores. The overall evaluation ranking, based on highest to lowest total evaluation score, and the average hourly rate are presented in the following table: Firm Price* Overall Ranking Overland, Pacific & Cutler $130.00 1 Epic Land Solutions $123.06 2 Paragon Partners $125.00 3 Associated Right of Way Services $191.66 4 Continental Field Service $137.50 5 Briggs Field Services $125.94 6 *Prices reflect average hourly rate for key personnel. The multiple award, on-call, indefinite delivery/indefinite quantity task order type contracts do not guarantee work to any of the awardees; therefore, no funds are guaranteed to any consultant. Pre-qualified consultants will be selected for specific tasks based on qualification information contained in their proposals and/or competitive fee proposals for the specific tasks. Services will be provided through the Commission’s issuance of contract task orders to the consultants on an as-needed basis. The Commission’s model on-call professional services agreement will be entered into with each consultant firm, pursuant to legal counsel review. Staff oversight of the contracts and task orders will maximize the effectiveness of the consultants and minimize costs to the Commission. 2 Agenda Item 7 Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2018/19 FY 2019/20+ Amount: $ 250,000 $ 2,750,000 Source of Funds: 2009 Measure A, State Transportation Improvement Program, Federal, and Transportation Uniform Mitigation Fee funds Budget Adjustment: No N/A GL/Project Accounting No.: 002302 81403 00000 0000 210 73 81403 005104 81403 00000 0000 210 72 81403 005127 81403 00000 0000 210 72 81403 002317 81403 00000 0000 261 31 81403 003001 81403 00000 0000 222 31 81403 003038 81403 00000 0000 222 31 81403 003021 81403 00000 0000 262 31 81403 622402 81403 00000 0000 262 31 81403 004027 81403 00000 0000 265 33 81403 652402 81403 00000 0000 265 33 81403 653822 81403 00000 0000 265 33 81403 007201 81403 00000 0000 720 67 81403 007202 81403 00000 0000 720 67 81403 Fiscal Procedures Approved: Date: 03/11/2019 Attachment: Draft On-Call Professional Services Agreement 3 17336.00603\31171937.1 Agreement No. __-__-__- __ PROFESSIONAL SERVICES AGREEMENT WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH [___CONSULTANT___] FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES Parties and Date. This Agreement is made and entered into this ___ day of _______, 2018, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and [___NAME OF FIRM___] ("Consultant"), a [___LEGAL STATUS OF CONSULTANT e.g., CORPORATION___]. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A. On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). B. Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. C. On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. D. A source of funding for payment for on-call professional consulting services provided under this Agreement may be State Proposition 1B funds, Federal Highway Administration Funds (“FHWA”) administered by the California Department of Transportation (“Caltrans”), and/or funds from the Federal Transit Administration (“FTA”). E. Consultant desires to perform and assume responsibility for the provision of certain on-call right of way support services in the County of Riverside, California. Services shall be provided on the terms and conditions set forth in this Agreement and in the task order(s) to be issued pursuant to this Agreement and executed by the Commission and the Consultant (“Task Order”). Consultant represents that it is experienced in providing such 4 17336.00603\31171937.1 3 services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. F. The Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein and in each Task Order (each such project shall be designated a “Project” under this Agreement). Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the on-call right of way support services for the Projects ("Services"). The Services are generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Commencement of Services. [___USE THIS PARAGRAPH IF NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED___] Commission has authorized Consultant to commence performance of the Services by a “Notice to Proceed” or "Limited Notice to Proceed" dated _____________. Consultant agrees that Services already performed pursuant to the “Notice to Proceed” or "Limited Notice to Proceed" shall be governed by all the provisions of this Agreement, including all indemnification and insurance provisions. [___USE THIS SENTENCE IF NO NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED___] The Consultant shall commence work upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from Commission. 3. Pre-Award Audit. As a result of the federal funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The federal aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate Federal and State process reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal agency, may require that prior to performance of any work for which Federal 5 17336.00603\31171937.1 4 reimbursement is requested and provided, that said federal agency or Caltrans must give to Commission an “Authorization to Proceed”. 4. Audit Procedures. Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 23 and 24 of this Agreement. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end three years from the date set forth above, unless extended by contract amendment. In no case shall the term of this Agreement exceed three (3) years. All Task Order work should be completed within the term. 5.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission's Contract Administrator. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement ("Commission’s Contract Administrator"). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of Consultant's 6 17336.00603\31171937.1 5 work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 7. Consultant's Representative. Consultant hereby designates [___INSERT NAME OR TITLE___] to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission’s Contract Administrator. 8. Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions herein. The key personnel for performance of this Agreement are: [___LIST NAMES AND TITLES___], or as otherwise identified in the Task Order. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. Any employee of Consultant or its sub-consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from 7 17336.00603\31171937.1 6 the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 10. Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 11. Task Orders; Commencement of Services; Schedule of Services. Consultant shall commence Services under a Task Order within five (5) days of receiving a fully executed Task Order from the Commission. Task Orders shall be in substantially the form set forth in Exhibit “B” attached hereto and incorporated herein by reference. Each Task Order shall identify the funding source(s) to be used to fund the Services under the relevant Task Order, and Consultant shall comply with the requirements specified herein, and in the attached exhibits, applicable to the identified funding source(s). Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with any schedule of Services set forth in a Task Order (“Schedule”). Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission’s Contract Administrator, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 11.1 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission’s Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation 8 17336.00603\31171937.1 7 and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 13. Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission’s Contract Administrator in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission’s Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this Agreement, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be 9 17336.00603\31171937.1 8 required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator, Caltrans and FHWA to inspect or review Consultant's work in progress at any reasonable time. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby 10 17336.00603\31171937.1 9 acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 18. Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 19. Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “C” and incorporated herein by reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless additional reimbursement is provided for by written amendment. The overhead rates included in the attached Exhibit “C” shall be fixed for the term of the Master Agreement, and shall not be subject to adjustment, unless required by the applicable funding source. In In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in Section 19.8 shall not be exceeded, unless authorized by a written amendment. 11 17336.00603\31171937.1 10 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee to be set forth in each Task Order (“Fixed Fee”). The Fixed Fee is nonadjustable for each Task Order, except in the event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. In addition, payments to Consultant for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non-represented State employees under current State Department of Personnel Administration (DPA) rules, unless otherwise authorized by Commission. If the rates invoiced are in excess of those authorized DPA rates, and Commission has not otherwise approved said rates, then Consultant is responsible for the cost difference and any overpayments shall be reimbursed to the Commission on demand. 19.4 When milestone cost estimates are included in the approved Cost Proposal for a Task Order, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 21, Termination. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 12 17336.00603\31171937.1 11 19.8 The total amount payable by Commission, including the Fixed Fee, shall not exceed the amount set forth in each Task Order. 19.9 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 19.10 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.11 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. 21. Termination. 21.1 Commission reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant, for any or no reason, with the reasons for termination stated in the notice. Commission may terminate Services under a Task Order, at any time, for any or no reason, with the effective date of termination to be specified in the notice of termination of Task Order. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In 13 17336.00603\31171937.1 12 such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission’s Contract Administrator to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination 21.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 21.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 21.8 Consultant may not terminate this Agreement except for cause. 22. Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 14 17336.00603\31171937.1 13 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23. Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of this Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement, including but not limited to, the costs of administering this Agreement. All parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under this Agreement. The State, State Auditor, Commission, FHWA, or any duly authorized representative of the State or Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to this Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this provision. 23.1 Accounting System. Consultant and its subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate expenditures by line item for the Services. The accounting system of Consultant and its subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review shall be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its 15 17336.00603\31171937.1 14 subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 25.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “C” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “C” shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “C” or in a Task Order. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. 26. Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the 16 17336.00603\31171937.1 15 sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27. Labor Code Requirements. 27.1 Prevailing Wages. (a) Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b) Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. (c) When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 17 17336.00603\31171937.1 16 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 27.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). 18 17336.00603\31171937.1 17 Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 28.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property 19 17336.00603\31171937.1 18 otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 29. Indemnification. To the fullest extent permitted by law, Consultant shall defend (with counsel of Commission’s choosing), indemnify and hold Commission, Caltrans and their directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission, Caltrans or their directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by 20 17336.00603\31171937.1 19 Commission, Caltrans, their directors, officials officers, employees, consultants, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. Consultant’s obligations as set forth in this Section shall survive expiration or termination of this Agreement. 30. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, Caltrans and their directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, inverse condemnation, and any claims related to property acquisition and relocation rules or failure to detect or abate hazardous materials, which are brought by a third party, and which , in any manner arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, Caltrans, and their directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission, Caltrans or their directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s obligations as set forth in this Section 29 shall survive expiration or termination of this Agreement. 21 17336.00603\31171937.1 20 31. Insurance. 31.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this Section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this Section. 31.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 31.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. Subconsultants of 22 17336.00603\31171937.1 21 Consultant shall obtain such insurance in an amount not less than $2,000,000 per claim. Notwithstanding the foregoing, the Commission may consider written requests to lower or dispense with the errors and omissions liability insurance requirement contained in this Section for certain subconsultants of Consultant, on a case-by-case basis, depending on the nature and scope of the Services to be provided by the subconsultant. Approval of such request shall be in writing, signed by the Commission’s Contract Administrator. 31.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall be required by the Commission. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 31.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (b) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, Caltrans and 23 17336.00603\31171937.1 22 their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (c) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required 24 17336.00603\31171937.1 23 coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 31.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 31.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 31.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this 25 17336.00603\31171937.1 24 Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 31.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 31.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 32. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 33. Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission’s Executive Director may make a change to the Agreement, 26 17336.00603\31171937.1 25 other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a change which is “outside the scope” of the Agreement; in other words, work which should not be regarded as having been fairly and reasonably within the contemplation of the parties when the Agreement was entered into. An example of a change which is not a Cardinal Change would be where, in a contract to construct a building there are many changes in the materials used, but the size and layout of the building remains the same. Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 34. Prohibited Interests. 34.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 34.2 Consultant Conflict of Interest (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. 27 17336.00603\31171937.1 26 (c) Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all of the provisions of this Article. (d) Consultant hereby certifies that neither Consultant, nor any firm affiliated with Consultant will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. An affiliated firm is one, which is subject to the control of the same persons through joint-ownership, or otherwise. (e) Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this contract shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. 34.3 Commission Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 34.4 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 34.5 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to the terms herein, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 34.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to terminate this Agreement without liability; to pay only for the value of the work actually 28 17336.00603\31171937.1 27 performed; or to deduct from the Agreement price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 34.7 Covenant Against Expenditure of Commission, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. (a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "G", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 34.8 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 35. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 29 17336.00603\31171937.1 28 36. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 37. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 38. Disputes; Attorneys' Fees. 38.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 38.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys' fees and, all other costs of such actions. 39. Time of Essence. Time is of the essence for each and every provision of this Agreement. 40. Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 41. Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor ______________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 42. Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the 30 17336.00603\31171937.1 29 Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 43. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 44. Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. 45. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 46. Provisions Applicable When State Funds or Federal Funds Are Involved. When funding for the Services under a Task Order is provided by this Agreement are provided, in whole or in part, from the United States Department of Transportation, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Department of Transportation Requirements and California Department of Transportation (Caltrans) DBE program requirements) attached hereto and incorporated herein by reference. When funding for the Services under a Task Order is provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “F” (FTA Requirements) attached hereto and incorporated herein by reference 47. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 48. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 49. Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 50. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 51. Attorney Client Privilege. The Parties recognize that, during the Project, the Commission and its attorneys will engage in communication that gives rise to an attorney client privilege of confidentiality (“Confidential Communication”). Given the nature of the work done by Consultant for the Commission, it may be necessary for the Consultant to participate in Confidential Communications. To the extent that (i) the Consultant is a party to any Confidential Communication, and (ii) a third party seeks discovery of such 31 17336.00603\31171937.1 30 communications, then the Consultant shall be deemed to be an agent of the Commission solely for purposes of preserving any attorney client privilege in the relevant Confidential Communication. Any such attorney client privilege shall be held by the Commission and the Consultant is not authorized to waive that privilege or, otherwise, disclose such Confidential Communication except as set forth below. This Section is intended to maintain the privilege in any privileged Confidential Communications that are (1) between and among Commission, Consultant, and Commission’s attorneys; (2) between Consultant (on behalf of the Commission) and Commission’s attorneys; (3) Confidential Communications that occur in Closed Session meetings wherein the Commission, the Commission’s attorneys and Consultant are present; and (4) between Commission and Consultant wherein the substance of the Confidential Communication is conveyed to/from the Consultant. Consultant may disclose a Confidential Communication to the extent such disclosure is required by legal process, by a court of competent jurisdiction or by any other governmental authority, provided that any such disclosure shall be limited to the specific part of the Confidential Communication required to be disclosed and provided that Consultant first comply with the requirements set forth in this paragraph. As soon as practicable after Consultant becomes aware that it is required, or may become required, to disclose the Confidential Communication for such reason, Consultant shall notify the Commission in writing, in order to allow the Commission to pursue legal remedies designed to limit the Confidential Communication required to be disclosed or to assure the confidential treatment of the disclosed information following its disclosure. Consultant shall cooperate with the Commission, on a reimbursable basis, to assist the Commission in limiting the scope of disclosure or assuring the confidential treatment of any disclosed information. 52. Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 53. Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 54. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 55. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 32 17336.00603\31171937.1 31 56. No W aiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. [Signatures on following page] 33 17336.00603\31171937.1 32 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE FOR RIGHT OF WAY SUPPORT SERVICES IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Anne Mayer Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT [INSERT NAME OF CONSULTANT] By: Signature Name Title ATTEST: By: Its: ___________________________ * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to RCTC. 34 Exhibit A 17336.00603\31171937.1 TO BE INSERTED FROM RFP: EXHIBIT "A" - SCOPE OF SERVICES EXHIBIT "E" - CONSULTANT DBE COMMITMENT EXHIBIT "F" - FTA PROVISIONS EXHIBIT “G” – LOBBYING ACTIVITIES DISCLOSURE TO BE INSERTED FROM CONSULTANT PROPOSAL: EXHIBIT "C"- COMPENSATION AND PAYMENT 35 Exhibit B-1 17336.00603\31171937.1 EXHIBIT "B" SAMPLE TASK ORDER FORM ON--CALL RIGHT OF WAY SUPPORT SERVICES REQUEST FOR TASK ORDER PROPOSAL Background The Riverside County Transportation Commission (the “Commission”) issued Request for Proposal No. 19-31-045-00 (the “RFP”), on January 17, 2019, to seek out a bench of qualified consultants to provide on-call right of way support services. Pursuant to the RFP, the Commission selected __ qualified firms to serve as on-call consultants for various right of way support services (“Consultants”). The RFP specified that the Commission will seek proposals from the selected firms for right of way support consulting projects, as needed. The selected firms are: _______________________________________________________________________. This Right of Way Support Services Request for Task Order Proposal (“Task Order RFP”) seeks the following services: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Process Timeline The Commission intends to award a rail/transit operations consulting services task order for the above described services (“Task Order”) pursuant to this Task Order RFP to the highest ranked proposal, subject to limitations, in accordance with the following timeline: a. Requests for Clarification The deadline for requests for clarification regarding this Task Order RFP is (INSERT DATE). Requests for clarification shall be submitted via email to ______________. b. Proposal Deadline Date i. The Commission will accept proposals submitted to the Commission office prior to (INSERT DATE and Time). ii. Proposals must be submitted to _______________ in _____________ format. Submittal Requirements Each proposal submitted in response to this Task Order RFP must include the following information 36 Exhibit B-2 17336.00603\31171937.1 in the order specified below. The proposal content and format is as follows: a. Proposals shall be typed and submitted on 8.5 x 11 inch paper. Charts and schedules may be included in 11” x 17” format, which will be counted as 2 pages and included in the total page count. Proposals should not exceed ___ pages in length, excluding any RCTC-provided forms or attachments. The beginning of a section must be clearly indicated between sections on a page. b. Proposals must include the following sections, organized as indicated. SECTION 1 – PROPOSAL LETTER Proposal Letter: This letter must be signed by a person or persons authorized to legally bind the Consultant to enter into the Task Order. SECTION 2 – QUALIFICATIONS OF FIRM AND PERSONNEL This section should identify the qualifications of the firm, the individuals and any subconsultants proposed to provide the Task Order services. These must be individuals proposed by Consultant in the original RFP. ii. Provide qualification information regarding your firm’s and the proposed personnel’s qualifications, descriptions of relevant projects previously performed and references for this particular Task Order RFP, including: (A) experience of your firm in performing similar services, and examples of such services, including references. Include any information that may be of value to the Commission in evaluating your firm’s qualifications for the Task Order services; (B) each key person who will perform the required services and their key role(s); (C) descriptions of the experience and qualifications of proposed key personnel; (D) descriptions of relevant projects previously performed by the proposed key personnel. Include what services were performed, the date of the project, and unique features of the project which would be beneficial to the Commission; and (E) a written assurance that the key individuals listed and identified will 37 Exhibit B-3 17336.00603\31171937.1 perform the work and will not be substituted with other personnel without the Commission’s prior approval. SECTION 3 – UNDERSTANDING AND APPROACH Describe the services and activities that your firm proposes to provide to the Commission. Include the following information: Demonstrate your firm’s understanding of the nature of the work and the approach to be taken. Provide an explanation of the approach to providing the services requested under this Task Order RFP. Describe how Consultant would tailor its services to meet the needs of the Commission addressing the tasks and discussing the deliverables. Include a detailed proposed timeline for completing the services. Provide a list of documents and/or information your firm anticipates needing from the Commission and its consultants to perform the services. SECTION 4 – PROPOSAL PRICING Proposal Pricing Form. Provide a proposed price for this Task Order request. Pricing shall itemize all items that will be charged to this Task Order, including anticipated mileage, printing or other direct cost categories previously identified in your firm’s Schedule of Other Direct Costs. Costs shall be segregated to show staff hours, rates, classifications, administrative overhead, and other direct costs, if any. Hourly rates must not exceed rates for classifications noted in the original RFP Evaluation Process a. Basis of Award Proposals will be evaluated in accordance with the stated evaluation criteria. The Commission reserves the right to award the contract not to a proposer with the highest ranked proposal, but to the proposal who will provide the best overall match to the task order requirements. The Commission also reserves the right to postpone a decision, request follow up material, or cancel or withdraw this request in its sole and absolute discretion. The Commission will award the Task Order to the best overall match to the Task Order RFP requirements and who serves the Commission’s interest. b. Evaluation Criteria – 100 total points possible 1. Qualifications of Firm and Personnel (INSERT NUMBER points max) Experience in performing work similar in nature and/or related to the work described in this Task Order RFP; appropriateness of personnel to their assigned work tasks; logic of project organization; adequacy of labor commitment. 38 Exhibit B-4 17336.00603\31171937.1 2. Understanding & Approach (INSERT NUMBER points max) Depth of Offeror’s understanding of Commission’s requirements listed in this Task Order RFP; understanding of the project issues and potential conflicts; and ability to meet deadlines. 3. Cost (INSERT NUMBER points max) Reasonableness of the total cost based on anticipated requirements; adequacy of data in support of figures quoted; basis on which prices are quotes. Proposer Price Score = Lowest Price Proposed X ____ Points Proposer’s Price Commission Rights a) The Commission shall not be liable for proposal preparation related expenses. b) The Commission retains the right to negotiate with the highest scoring Consultant if it chooses not to accept the proposal as offered. c) The Commission retains the right to consider any other factors it deems necessary to comply with federal and/or state law. d) The Commission retains the right to accept or reject any and all proposals, or any part thereof, at its discretion. e) The Commission retains the right to cancel, amend or withdraw the entire Task Order RFP. VI. Notification and Debriefing Consultants submitting a proposal pursuant to this Task Order RFP shall be informed of the Commission’s decision regarding award of the Task Order. Any Consultant not awarded a Task Order pursuant to this Task Order RFP may request an explanation regarding the strengths and weaknesses of its proposal. Such request must be made within ten (10) days of notification of Task Order award. 39 Exhibit D-1 17336.00603\31171937.1 EXHIBIT "D" FHWA/ CALTRANS REQUIREMENTS 1. STATEMENT OF COMPLIANCE. A. Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California that CONSULTANT has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B. During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. C. If this Agreement is federally funded, the Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest. D. If this Agreement is federally funded, the Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, 40 Exhibit D-2 17336.00603\31171937.1 including employment practices when the Agreement covers a program whose goal is employment. 2. DEBARMENT AND SUSPENSION CERTIFICATION CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to COMMISSION. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining CONSULTANT responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. 3. DISCRIMINATION The Commission shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the implementation of the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. Consultant or subcontractor shall not discriminate on the basis of race, color, national origin, of sex in the performance of this Agreement. Consultant or subcontractor shall carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award and administration of DOT-assisted contracts, as further set forth below. Failure by the Consultant or subcontractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy, as the Commission deems appropriate. 4. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the 41 Exhibit D-3 17336.00603\31171937.1 prime contractor receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. This clause applies to both DBE and non-DBE subcontractors. 5. RELEASE OF RETAINAGE No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultants and subconsultants. 6. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either Party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 7. DBE PARTICIPATION Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The requirements and procedures, as applicable, of the Caltrans DBE program are hereby incorporated by reference into this Agreement. Even if no DBE participation will be reported, Consultant shall complete Exhibits "E" of this Agreement in compliance with the Caltrans DBE program, a final utilization report in the form provided by the Commission, and any other Caltrans required DBE forms. A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.” By obtaining DBE participation on this Agreement, Consultant will assist Caltrans in meeting its federally mandated statewide overall DBE goal. 42 Exhibit D-4 17336.00603\31171937.1 B. This Agreement does not have a DBE goal, but DBE goals may be included with each task order request for proposals. If a DBE subconsultant is unable to perform, the Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE is a firm meeting the definition of a DBE as specified in 49 CFR. C. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are encouraged to participate in the performance of agreements financed in whole or in part with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT- assisted agreements. Failure by the contractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the Commission, Caltrans or the Department of Transportation deems appropriate. D. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section. E. A DBE may be terminated only with prior written approval from the Commission and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting Commission consent for the termination, the prime consultant must meet the procedural requirements specified in 49 CFR 26.53(f). 8. DBE PARTICIPATION GENERAL INFORMATION It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Caltrans DBE program. Particular attention is directed to the following: A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP). B. A certified DBE may participate as a prime contractor, subcontractor, joint venture partner, as a vendor of material or supplies, or as a trucking company. C. A DBE joint-venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint-venture commensurate with its ownership interest. D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55 that is, must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work, as more fully described in section 8 below. 43 Exhibit D-5 17336.00603\31171937.1 E. The Consultant shall list only one subcontractor for each portion of work as defined in the Consultant's bid/proposal and all DBE subcontractors should be listed in the Consultant's bid/cost proposal list of subcontractors. F. A Consultant who is a certified DBE is eligible to claim all of the work in the Agreement toward the DBE participation except that portion of the work to be performed by non-DBE subcontractors. 9 . COMMERCIALLY USEFUL FUNCTION A. A DBE performs a commercially useful function when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, evaluate the amount of work subcontracted, industry practices; whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors. B. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, Agreement, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate. C. If a DBE does not perform or exercise responsibility for at least thirty percent of the total cost of its Agreement with its own work force, or the DBE subcontracts a greater portion of the work of the Agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a commercially useful function. 10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS If a DBE subcontractor is decertified during the life of the Agreement, the decertified subcontractor shall notify the Contractor in writing with the date of de-certification. If a subcontractor becomes a certified DBE during the life of the Agreement, the subcontractor shall notify the Contractor in writing with the date of certification. Any changes should be reported to the Commission’s Contract Administrator within 30 days. 11. DBE RECORDS A. The Contractor shall maintain records of materials purchased and/or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each 44 Exhibit D-6 17336.00603\31171937.1 DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime Contractors shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. B. Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the most current version of the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of the LAPM), certified correct by the Contractor or the Contractor’s authorized representative and shall be furnished to the Commission’s Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty- five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to the Contractor when a satisfactory “Final Report Utilization of Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract Administrator. a. Prior to the fifteenth of each month, the Contractor shall submit documentation to the Commission’s Contract Administrator showing the amount paid to DBE trucking companies. The Contractor shall also obtain and submit documentation to the Commission’s Contract Administrator showing the amount paid by DBE trucking companies to all firms, including owner-operators, for the leasing of trucks. If the DBE leases trucks from a non-DBE, the Contractor may count only the fee or commission the DBE receives as a result of the lease arrangement. b. The Contractor shall also submit to the Commission’s Contract Administrator documentation showing the truck number, name of owner, California Highway Patrol CA number, and if applicable, the DBE certification number of the truck owner for all trucks used during that month. This documentation shall be submitted on the Caltrans ”Monthly DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the Commission’s Contract Administrator. 12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs When Reporting DBE Participation, Material or Supplies purchased from DBEs may count as follows: A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the cost of the materials or supplies will count toward the DBE participation. A DBE manufacturer is a firm that operates or maintains a factory or establishment that produces on the premises, the materials, supplies, articles, or equipment required under the Agreement and of the general character described by the specifications. B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Agreement, are bought, kept in stock, and regularly 45 Exhibit D-7 17336.00603\31171937.1 sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section. C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution equipment, shall be by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section. D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services. 13. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES When Reporting DBE Participation, Participation of DBE trucking companies may count as follows: A. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible. B. The DBE must itself own and operate at least one fully licensed, insure, and operational truck used on the Agreement. C. The DBE receives credit for the total value of the transportation services it provides on the Agreement using trucks it owns, insures, and operates using drivers it employs. D. The DBE may lease trucks from another DBE firm including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Agreement. E. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the DBE. F. For the purposes of this section, a lease must indicate that the DBE has exclusive use and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, as long as the lease gives 46 Exhibit D-8 17336.00603\31171937.1 the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. 14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY EXCLUSION In accordance with 49 CFR Part 29, which by this reference is incorporated herein, Consultant’s subconsultants completed and submitted the Certificate of subconsultant Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants knowingly rendered an erroneous Certificate, the Commission may, among other remedies, terminate this Agreement. 15. ENVIRONMENTAL COMPLIANCE A. Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000). B. Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871). 16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, and by signing this Agreement, Consultant certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 47 Exhibit E-1 17336.00603\31171937.1 EXHIBIT "E" CONSULTANT DBE COMMITMENT Consultant to Complete this Section 1. Local Agency Name: ________________________________________________________________________________________ 2. Project Location: ___________________________________________________________________________________________ 3. Project Description: _________________________________________________________________________________________ 4. Consultant Name: __________________________________________________________________________________________ 5. Contract DBE Goal %: ________________ DBE Commitment Information 6. Description of Services to be Provided 7. DBE Firm Contact Information 8. DBE Cert. Number 9. DBE % 48 AGENDA ITEM 8 Agenda Item 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 25, 2019 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement for On-Call Right of Way Engineering and Surveying Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement 19-31-013-00 to Psomas to provide on-call right of way engineering and surveying services for a three-year term, in an amount not to exceed an aggregate value of $480,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the consultant under the terms of the agreement; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: Right of way engineering and surveying companies provide boundary maps, monumentation maps, survey control maps, records of survey, parcel or appraisal maps, lot line adjustments, and legal descriptions and plat maps, among other services. These companies also meet the requirements of Caltrans in providing base mapping and pre-construction and post-construction monumentation. The Commission utilizes these services when acquiring property for projects or to determine property boundaries on property already owned by the Commission. Often, the Commission will call on these companies to stake or mark the areas of a property that are proposed to be acquired, obtaining useful information for the Commission’s appraisers, right of way agents, and the property owners. The current on-call right of way engineering and surveying services contract will be expiring at the end of April 2019, hence staff is procuring a new on-call contract. Procurement Process Pursuant to Government Code 4525 et seq, selection of architect, engineer, and related services shall be on the basis of demonstrated competence and on professional qualifications necessary 49 Agenda Item 8 for the satisfactory performance of the services required. Therefore, staff used the qualification method of selection for the procurement. Evaluation criteria included elements such as qualifications of firm, staffing and project organization, project understanding and approach, and the ability to respond to the requirements set forth under the terms of a request for qualifications (RFQ). RFQ No. 19-31-013-00 for on-call right of way engineering and surveying services was released by staff on December 11, 2018. A public notice was advertised in the Press Enterprise, and the RFQ was posted on the Commission’s Planet Bids website, which is accessible through the Commission’s website. Through Planet Bids, 37 firms downloaded the RFQ; 6 of these firms are located in Riverside County. A pre-submittal meeting was held on December 18 and attended by 12 firms. Staff responded to all questions submitted by potential proposers prior to the January 15 clarification deadline. Ten firms – David Evans and Associates (Ontario); Guida Surveying (Irvine); Hernandez, Kroone & Associates (San Bernardino); Huitt-Zollars (Ontario); MNS Engineers (Santa Barbara); Michael Baker International (Ontario); Overland, Pacific & Cutler (Long Beach); Psomas (Riverside); WestLand Group (Ontario); and Willdan Engineering (Anaheim) – submitted responsive and responsible statements of qualifications prior to the 2:00 p.m. submittal deadline on January 29. Based on the evaluation criteria set forth in the RFQ, the firms were evaluated and scored by an evaluation committee comprised of Commission staff. As a result of the evaluation committee’s assessment of the written statements of qualifications, the evaluation committee shortlisted and invited two firms – Huitt-Zollars and Psomas – to the interview phase of the evaluation and selection process. Interviews were conducted on February 19. Subsequently, the evaluation committee determined Psomas to be the most qualified firm to provide on-call engineering and surveying services. As a result of the evaluation committee’s assessment of the written statements of qualifications and interviews, the evaluation committee recommends contract award to Psomas for a three- year term in the aggregate amount of $480,000, as this firm earned the highest total evaluation score. The on-call, indefinite delivery/quantity task order type contract does not guarantee work to the awardee; therefore, no funds are guaranteed to the consultant. Services will be provided through the Commission’s issuance of contract task orders to the consultant on an as-needed basis. Staff will review the task orders by analyzing costs and comparing consultant’s level of effort with similar task orders performed in the past. To ensure the consultant’s price is fair and reasonable, staff submitted the consultant’s cost proposal to Caltrans for approval of the consultant’s indirect cost rate. Additionally, the Commission’s internal auditor is auditing the consultant’s wages and other direct costs. The Commission’s model on-call professional services agreement will be entered into with the consultant firm, subject to any changes approved by the Executive Director and pursuant to legal 50 Agenda Item 8 counsel review. Staff oversight of the contract and task orders will maximize the effectiveness of the consultant and minimize costs to the Commission. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2018/19 FY 2019/20+ Amount: $ 50,000 $430,000 Source of Funds: 2009 Measure A, State Transportation Improvement Program, Federal, and Transportation Uniform Mitigation Fee funds Budget Adjustment: No N/A GL/Project Accounting No.: 002302 81403 00000 0000 210 73 81403 005104 81403 00000 0000 210 72 81403 005127 81403 00000 0000 210 72 81403 002317 81403 00000 0000 261 31 81403 003001 81403 00000 0000 222 31 81403 003038 81403 00000 0000 222 31 81403 003021 81403 00000 0000 262 31 81403 622402 81403 00000 0000 262 31 81403 004027 81403 00000 0000 265 33 81403 652402 81403 00000 0000 265 33 81403 653822 81403 00000 0000 265 33 81403 007201 81403 00000 0000 720 67 81403 007202 81403 00000 0000 720 67 81403 Fiscal Procedures Approved: Date: 03/11/2019 Attachment: Draft On-Call Professional Services Agreement 51 BLANK 17336.00603\31171937.1 Agreement No. 19-31-013-00 PROFESSIONAL SERVICES AGREEMENT WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH PSOMAS FOR ON-CALL RIGHT OF WAY ENGINEERING AND SURVEYING SERVICES Parties and Date. This Agreement is made and entered into this ___ day of _______, 2019, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and PSOMAS ("Consultant"), a CORPORATION. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A. On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). B. Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. C. On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. D. A source of funding for payment for on-call professional consulting services provided under this Agreement may be State Proposition 1B funds, Federal Highway Administration Funds (“FHWA”) administered by the California Department of Transportation (“Caltrans”), and/or funds from the Federal Transit Administration (“FTA”). E. Consultant desires to perform and assume responsibility for the provision of certain on-call right of way engineering and surveying services in the County of Riverside, California. Services shall be provided on the terms and conditions set forth in this Agreement and in the task order(s) to be issued pursuant to this Agreement and executed by the Commission and the Consultant (“Task Order”). Consultant represents that it is experienced in providing such services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 52 17336.00603\31171937.1 F. The Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein and in each Task Order (each such project shall be designated a “Project” under this Agreement). Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the on-call right of way engineering and surveying services for the Projects ("Services"). The Services are generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Commencement of Services. [___USE THIS PARAGRAPH IF NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED___] Commission has authorized Consultant to commence performance of the Services by a “Notice to Proceed” or "Limited Notice to Proceed" dated _____________. Consultant agrees that Services already performed pursuant to the “Notice to Proceed” or "Limited Notice to Proceed" shall be governed by all the provisions of this Agreement, including all indemnification and insurance provisions. [___USE THIS SENTENCE IF NO NOTICE TO PROCEED OR LIMITED NOTICE TO PROCEED HAS BEEN ISSUED___] The Consultant shall commence work upon receipt of a written "Notice to Proceed" or "Limited Notice to Proceed" from Commission. 3. Pre-Award Audit. As a result of the federal funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The federal aid provided under this Agreement is contingent on meeting all Federal requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate Federal and State process reviews. In addition, the applicable federal agency, or Caltrans acting in behalf of a federal agency, may require that prior to performance of any work for which Federal reimbursement is requested and provided, that said federal agency or Caltrans must give to Commission an “Authorization to Proceed”. 53 17336.00603\31171937.1 4. Audit Procedures. Consultant and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 23 and 24 of this Agreement. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end three years from the date set forth above, unless extended by contract amendment. All Task Order work should be completed within the term. 5.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission's Contract Administrator. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement ("Commission’s Contract Administrator"). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 54 17336.00603\31171937.1 7. Consultant's Representative. Consultant hereby designates [___INSERT NAME OR TITLE___] to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission’s Contract Administrator. 8. Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions herein. The key personnel for performance of this Agreement are: [___LIST NAMES AND TITLES___], or as otherwise identified in the Task Order. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. Any employee of Consultant or its sub-consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 55 17336.00603\31171937.1 10. Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 11. Task Orders; Commencement of Services; Schedule of Services. Consultant shall commence Services under a Task Order within five (5) days of receiving a fully executed Task Order from the Commission. Task Orders shall be in substantially the form set forth in Exhibit “B” attached hereto and incorporated herein by reference. Each Task Order shall identify the funding source(s) to be used to fund the Services under the relevant Task Order, and Consultant shall comply with the requirements specified herein, and in the attached exhibits, applicable to the identified funding source(s). Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with any schedule of Services set forth in a Task Order (“Schedule”). Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission’s Contract Administrator, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 11.1 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission’s Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 56 17336.00603\31171937.1 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 13. Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission’s Contract Administrator in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission’s Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this Agreement, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 57 17336.00603\31171937.1 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator, Caltrans and FHWA to inspect or review Consultant's work in progress at any reasonable time. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 58 17336.00603\31171937.1 18. Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 19. Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “C” and incorporated herein by reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless additional reimbursement is provided for by written amendment. The overhead rates included in the attached Exhibit “C” shall be fixed for the term of the Master Agreement, and shall not be subject to adjustment, unless required by the applicable funding source. In In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in Section 19.8 shall not be exceeded, unless authorized by a written amendment. 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee to be set forth in each Task Order (“Fixed Fee”). The Fixed Fee is nonadjustable for each Task Order, except in the event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 59 17336.00603\31171937.1 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. In addition, payments to Consultant for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non-represented State employees under current State Department of Personnel Administration (DPA) rules, unless otherwise authorized by Commission. If the rates invoiced are in excess of those authorized DPA rates, and Commission has not otherwise approved said rates, then Consultant is responsible for the cost difference and any overpayments shall be reimbursed to the Commission on demand. 19.4 When milestone cost estimates are included in the approved Cost Proposal for a Task Order, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 21, Termination. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 19.8 The total amount payable by Commission, including the Fixed Fee, shall not exceed the amount set forth in each Task Order. 19.9 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s 60 17336.00603\31171937.1 Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 19.10 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.11 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. 21. Termination. 21.1 Commission reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant, for any or no reason, with the reasons for termination stated in the notice. Commission may terminate Services under a Task Order, at any time, for any or no reason, with the effective date of termination to be specified in the notice of termination of Task Order. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by 61 17336.00603\31171937.1 Commission’s Contract Administrator to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination 21.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 21.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 21.8 Consultant may not terminate this Agreement except for cause. 22. Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23. Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California 62 17336.00603\31171937.1 Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of this Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement, including but not limited to, the costs of administering this Agreement. All parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under this Agreement. The State, State Auditor, Commission, FHWA, or any duly authorized representative of the State or Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to this Agreement and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this provision. 23.1 Accounting System. Consultant and its subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate expenditures by line item for the Services. The accounting system of Consultant and its subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review shall be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 63 17336.00603\31171937.1 25.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “C” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “C” shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “C” or in a Task Order. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. 26. Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 64 17336.00603\31171937.1 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27. Labor Code Requirements. 27.1 Prevailing Wages. (a) Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b) Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. (c) When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are 65 17336.00603\31171937.1 not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 27.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were 66 17336.00603\31171937.1 prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 28.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by 67 17336.00603\31171937.1 Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 29. Indemnification. To the fullest extent permitted by law, Consultant shall defend (with counsel of Commission’s choosing), indemnify and hold Commission, Caltrans and their directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission, Caltrans or their directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans, their directors, officials officers, employees, consultants, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful 68 17336.00603\31171937.1 misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. Consultant’s obligations as set forth in this Section shall survive expiration or termination of this Agreement. 30. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, Caltrans and their directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, inverse condemnation, and any claims related to property acquisition and relocation rules or failure to detect or abate hazardous materials, which are brought by a third party, and which , in any manner arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, Caltrans, and their directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission, Caltrans or their directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s obligations as set forth in this Section 29 shall survive expiration or termination of this Agreement. 69 17336.00603\31171937.1 31. Insurance. 31.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this Section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this Section. 31.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 31.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. Subconsultants of 70 17336.00603\31171937.1 Consultant shall obtain such insurance in an amount not less than $2,000,000 per claim. Notwithstanding the foregoing, the Commission may consider written requests to lower or dispense with the errors and omissions liability insurance requirement contained in this Section for certain subconsultants of Consultant, on a case-by-case basis, depending on the nature and scope of the Services to be provided by the subconsultant. Approval of such request shall be in writing, signed by the Commission’s Contract Administrator. 31.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall be required by the Commission. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 31.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (b) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, Caltrans and 71 17336.00603\31171937.1 their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (c) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required 72 17336.00603\31171937.1 coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 31.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 31.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 31.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this 73 17336.00603\31171937.1 Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 31.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 31.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 32. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 33. Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission’s Executive Director may make a change to the Agreement, 74 17336.00603\31171937.1 other than a Cardinal Change. For purposes of this Agreement, a Cardinal Change is a change which is “outside the scope” of the Agreement; in other words, work which should not be regarded as having been fairly and reasonably within the contemplation of the parties when the Agreement was entered into. An example of a change which is not a Cardinal Change would be where, in a contract to construct a building there are many changes in the materials used, but the size and layout of the building remains the same. Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 34. Prohibited Interests. 34.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 34.2 Consultant Conflict of Interest (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. 75 17336.00603\31171937.1 (c) Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all of the provisions of this Article. (d) Consultant hereby certifies that neither Consultant, nor any firm affiliated with Consultant will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. An affiliated firm is one, which is subject to the control of the same persons through joint-ownership, or otherwise. (e) Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this contract shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. 34.3 Commission Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 34.4 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 34.5 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to the terms herein, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 34.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to terminate this Agreement without liability; to pay only for the value of the work actually 76 17336.00603\31171937.1 performed; or to deduct from the Agreement price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 34.7 Covenant Against Expenditure of Commission, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. (a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "G", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 34.8 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 35. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 77 17336.00603\31171937.1 36. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 37. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 38. Disputes; Attorneys' Fees. 38.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 38.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys' fees and, all other costs of such actions. 39. Time of Essence. Time is of the essence for each and every provision of this Agreement. 40. Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 41. Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor ______________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 42. Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the 78 17336.00603\31171937.1 Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 43. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 44. Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, agreements or understandings. 45. Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 46. Provisions Applicable When State Funds or Federal Funds Are Involved. When funding for the Services under a Task Order is provided by this Agreement are provided, in whole or in part, from the United States Department of Transportation, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Department of Transportation Requirements and California Department of Transportation (Caltrans) DBE program requirements) attached hereto and incorporated herein by reference. When funding for the Services under a Task Order is provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “F” (FTA Requirements) attached hereto and incorporated herein by reference 47. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 48. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 49. Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 50. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 51. Attorney Client Privilege. The Parties recognize that, during the Project, the Commission and its attorneys will engage in communication that gives rise to an attorney client privilege of confidentiality (“Confidential Communication”). Given the nature of the work done by Consultant for the Commission, it may be necessary for the Consultant to participate in Confidential Communications. To the extent that (i) the Consultant is a party to any Confidential Communication, and (ii) a third party seeks discovery of such 79 17336.00603\31171937.1 communications, then the Consultant shall be deemed to be an agent of the Commission solely for purposes of preserving any attorney client privilege in the relevant Confidential Communication. Any such attorney client privilege shall be held by the Commission and the Consultant is not authorized to waive that privilege or, otherwise, disclose such Confidential Communication except as set forth below. This Section is intended to maintain the privilege in any privileged Confidential Communications that are (1) between and among Commission, Consultant, and Commission’s attorneys; (2) between Consultant (on behalf of the Commission) and Commission’s attorneys; (3) Confidential Communications that occur in Closed Session meetings wherein the Commission, the Commission’s attorneys and Consultant are present; and (4) between Commission and Consultant wherein the substance of the Confidential Communication is conveyed to/from the Consultant. Consultant may disclose a Confidential Communication to the extent such disclosure is required by legal process, by a court of competent jurisdiction or by any other governmental authority, provided that any such disclosure shall be limited to the specific part of the Confidential Communication required to be disclosed and provided that Consultant first comply with the requirements set forth in this paragraph. As soon as practicable after Consultant becomes aware that it is required, or may become required, to disclose the Confidential Communication for such reason, Consultant shall notify the Commission in writing, in order to allow the Commission to pursue legal remedies designed to limit the Confidential Communication required to be disclosed or to assure the confidential treatment of the disclosed information following its disclosure. Consultant shall cooperate with the Commission, on a reimbursable basis, to assist the Commission in limiting the scope of disclosure or assuring the confidential treatment of any disclosed information. 52. Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 53. Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 54. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 55. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 80 17336.00603\31171937.1 56. No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. [Signatures on following page] 81 17336.00603\31171937.1 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH PROPOSITION 1B, FTA AND FHWA FUNDING ASSISTANCE FOR RIGHT OF WAY ENGINEERING AND SURVEYING SERVICES IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Anne Mayer Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT [INSERT NAME OF CONSULTANT] By: Signature Name Title ATTEST: By: Its: ___________________________ * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to RCTC. 82 Exhibit A 17336.00603\31171937.1 TO BE INSERTED FROM RFP: EXHIBIT "A" - SCOPE OF SERVICES EXHIBIT "E" - CONSULTANT DBE COMMITMENT EXHIBIT "F" - FTA PROVISIONS EXHIBIT “G” – LOBBYING ACTIVITIES DISCLOSURE TO BE INSERTED FROM CONSULTANT PROPOSAL: EXHIBIT "C"- COMPENSATION AND PAYMENT 83 Exhibit B-1 17336.00603\31171937.1 EXHIBIT "B" SAMPLE TASK ORDER FORM Task Order No. _______ Contract: [INSERT NAME OF CONTRACT] Consultant: [INSERT NAME OF CONSULTANT] The Consultant is hereby authorized to perform the following work subject to the provisions of the Contract identified above: List funding sources: ______________ List any attachments: (Please provide if any.) Dollar Amount of Task Order: Not to exceed $_____,_____.00 Completion Date: _____________, 201__ The undersigned consultant hereby agrees that it will provide all equipment, furnish all materials, except as may be otherwise noted above, and perform all services for the work above specified in accordance with the Contract identified above and will accept as full payment therefore the amount shown above. Riverside County Transportation Commission Consultant Dated: _________________ Dated: _________________ By: ________________________ By:________________________ 84 Exhibit D-1 17336.00603\31171937.1 EXHIBIT "D" FHWA/ CALTRANS REQUIREMENTS 1. STATEMENT OF COMPLIANCE. A. Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California that CONSULTANT has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B. During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. C. If this Agreement is federally funded, the Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest. D. If this Agreement is federally funded, the Consultant, with regard to the work performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, 85 Exhibit D-2 17336.00603\31171937.1 including employment practices when the Agreement covers a program whose goal is employment. 2. DEBARMENT AND SUSPENSION CERTIFICATION CONSULTANT’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to COMMISSION. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining CONSULTANT responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. 3. DISCRIMINATION The Commission shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the implementation of the Caltrans DBE program or the requirements of 49 CFR Part 26. The Commission shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. Consultant or subcontractor shall not discriminate on the basis of race, color, national origin, of sex in the performance of this Agreement. Consultant or subcontractor shall carry out applicable requirements of 49 CFR Part 26 and the Caltrans DBE program in the award and administration of DOT-assisted contracts, as further set forth below. Failure by the Consultant or subcontractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy, as the Commission deems appropriate. 4. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the 86 Exhibit D-3 17336.00603\31171937.1 prime contractor receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. This clause applies to both DBE and non-DBE subcontractors. 5. RELEASE OF RETAINAGE No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultants and subconsultants. 6. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either Party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 7. DBE PARTICIPATION Caltrans has developed a statewide DBE program pursuant to 49 C.F.R. Part 26. The requirements and procedures, as applicable, of the Caltrans DBE program are hereby incorporated by reference into this Agreement. Even if no DBE participation will be reported, Consultant shall complete Exhibits "E" of this Agreement in compliance with the Caltrans DBE program, a final utilization report in the form provided by the Commission, and any other Caltrans required DBE forms. A. This Agreement is subject to Title 49, Part 26 of the Code of Federal Regulations entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.” By obtaining DBE participation on this Agreement, Consultant will assist Caltrans in meeting its federally mandated statewide overall DBE goal. 87 Exhibit D-4 17336.00603\31171937.1 B. This Agreement does not have a DBE goal, but DBE goals may be included with each task order request for proposals. If a DBE subconsultant is unable to perform, the Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE is a firm meeting the definition of a DBE as specified in 49 CFR. C. DBE and other small businesses (SB), as defined in Title 49 CFR, Part 26 are encouraged to participate in the performance of agreements financed in whole or in part with federal funds. The Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT- assisted agreements. Failure by the contractor to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the Commission, Caltrans or the Department of Transportation deems appropriate. D. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section. E. A DBE may be terminated only with prior written approval from the Commission and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting Commission consent for the termination, the prime consultant must meet the procedural requirements specified in 49 CFR 26.53(f). 8. DBE PARTICIPATION GENERAL INFORMATION It is Consultant's responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Caltrans DBE program. Particular attention is directed to the following: A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP). B. A certified DBE may participate as a prime contractor, subcontractor, joint venture partner, as a vendor of material or supplies, or as a trucking company. C. A DBE joint-venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint-venture commensurate with its ownership interest. D. A DBE must perform a commercially useful function, pursuant to 49 CFR 26.55 that is, must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work, as more fully described in section 8 below. 88 Exhibit D-5 17336.00603\31171937.1 E. The Consultant shall list only one subcontractor for each portion of work as defined in the Consultant's bid/proposal and all DBE subcontractors should be listed in the Consultant's bid/cost proposal list of subcontractors. F. A Consultant who is a certified DBE is eligible to claim all of the work in the Agreement toward the DBE participation except that portion of the work to be performed by non-DBE subcontractors. 9 . COMMERCIALLY USEFUL FUNCTION A. A DBE performs a commercially useful function when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, evaluate the amount of work subcontracted, industry practices; whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors. B. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, Agreement, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate. C. If a DBE does not perform or exercise responsibility for at least thirty percent of the total cost of its Agreement with its own work force, or the DBE subcontracts a greater portion of the work of the Agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a commercially useful function. 10. DBE CERTIFICATION AND DE-CERTIFICATION STATUS If a DBE subcontractor is decertified during the life of the Agreement, the decertified subcontractor shall notify the Contractor in writing with the date of de-certification. If a subcontractor becomes a certified DBE during the life of the Agreement, the subcontractor shall notify the Contractor in writing with the date of certification. Any changes should be reported to the Commission’s Contract Administrator within 30 days. 11. DBE RECORDS A. The Contractor shall maintain records of materials purchased and/or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each 89 Exhibit D-6 17336.00603\31171937.1 DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime Contractors shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. B. Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the most current version of the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprises (DBE),” CEM- 2402F (Exhibit 17-F in Chapter 17 of the LAPM), certified correct by the Contractor or the Contractor’s authorized representative and shall be furnished to the Commission’s Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty- five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to the Contractor when a satisfactory “Final Report Utilization of Disadvantaged Business Enterprises (DBE)” is submitted to the Commission’s Contract Administrator. a. Prior to the fifteenth of each month, the Contractor shall submit documentation to the Commission’s Contract Administrator showing the amount paid to DBE trucking companies. The Contractor shall also obtain and submit documentation to the Commission’s Contract Administrator showing the amount paid by DBE trucking companies to all firms, including owner-operators, for the leasing of trucks. If the DBE leases trucks from a non-DBE, the Contractor may count only the fee or commission the DBE receives as a result of the lease arrangement. b. The Contractor shall also submit to the Commission’s Contract Administrator documentation showing the truck number, name of owner, California Highway Patrol CA number, and if applicable, the DBE certification number of the truck owner for all trucks used during that month. This documentation shall be submitted on the Caltrans ”Monthly DBE Trucking Verification,” CEM-2404(F) form provided to the Contractor by the Commission’s Contract Administrator. 12. REPORTING MATERIAL OR SUPPLIES PURCHASED FROM DBEs When Reporting DBE Participation, Material or Supplies purchased from DBEs may count as follows: A. If the materials or supplies are obtained from a DBE manufacturer, 100 % of the cost of the materials or supplies will count toward the DBE participation. A DBE manufacturer is a firm that operates or maintains a factory or establishment that produces on the premises, the materials, supplies, articles, or equipment required under the Agreement and of the general character described by the specifications. B. If the materials or supplies purchased from a DBE regular dealer, count 60 % of the cost of the materials or supplies toward DBE goals. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Agreement, are bought, kept in stock, and regularly 90 Exhibit D-7 17336.00603\31171937.1 sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section. C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution equipment, shall be by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section. D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services. 13. REPORTING PARTICIPATION OF DBE TRUCKING COMPANIES When Reporting DBE Participation, Participation of DBE trucking companies may count as follows: A. The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible. B. The DBE must itself own and operate at least one fully licensed, insure, and operational truck used on the Agreement. C. The DBE receives credit for the total value of the transportation services it provides on the Agreement using trucks it owns, insures, and operates using drivers it employs. D. The DBE may lease trucks from another DBE firm including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Agreement. E. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by the DBE. F. For the purposes of this section, a lease must indicate that the DBE has exclusive use and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, as long as the lease gives 91 Exhibit D-8 17336.00603\31171937.1 the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. 14. DEBARMENT, SUSPENSION AND OTHER INELIGIBILITY AND VOLUNTARY EXCLUSION In accordance with 49 CFR Part 29, which by this reference is incorporated herein, Consultant’s subconsultants completed and submitted the Certificate of subconsultant Regarding Debarment, Suspension and Other Ineligibility and Voluntary Exclusion as part of the Consultant’s proposal. If it is later determined that Consultant’s subconsultants knowingly rendered an erroneous Certificate, the Commission may, among other remedies, terminate this Agreement. 15. ENVIRONMENTAL COMPLIANCE A. Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000). B. Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871). 16. NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, and by signing this Agreement, Consultant certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 92 Exhibit E-1 17336.00603\31171937.1 EXHIBIT "E" CONSULTANT DBE COMMITMENT Consultant to Complete this Section 1. Local Agency Name: ________________________________________________________________________________________ 2. Project Location: ___________________________________________________________________________________________ 3. Project Description: _________________________________________________________________________________________ 4. Consultant Name: __________________________________________________________________________________________ 5. Contract DBE Goal %: ________________ DBE Commitment Information 6. Description of Services to be Provided 7. DBE Firm Contact Information 8. DBE Cert. Number 9. DBE % 93 AGENDA ITEM 9 Agenda Item 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 25, 2019 TO: Western Riverside County Programs and Projects Committee FROM: Monica Morales, Management Analyst Josefina Clemente, Transit Manager THROUGH: Lorelle Moe-Luna, Multimodal Services Director SUBJECT: Riverside Transit Agency Fiscal Year 2018/19 Short Range Transit Plan Amendment STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve an increase to Riverside Transit Agency’s (RTA) Fiscal Year (FY) 2018/19 Local Transportation Fund (LTF) operating assistance allocation in the amount of $1.6 million; 2) Approve reductions to RTA’s FY 2018/19 2009 Measure A Western County Public Transit- Intercity Bus operating assistance allocation in the amount of $1,208,510 and 2009 Measure A Western County Public Transit-Consolidated Transportation Service Agency (CTSA) operating assistance allocation in the amount of $391,490; 3) Approve adjustments to the FY 2018/19 budget to increase LTF transit operating expenditures by $1.6 million and to decrease 2009 Measure A Western County Public Transit-Intercity Bus and Public Transit-CTSA transit operating expenditures by $1,208,510 and $391,490, respectively; 4) Approve an amendment to RTA’s FY 2018/19 Short Range Transit Plan (SRTP) to reflect the swap of $1.6 million in 2009 Measure A Western County Public Transit funds with $1.6 million of available LTF; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission approves each public transit operator’s annual SRTP update in June and annual funding allocations in July. Typically, the public operators’ SRTPs for operating and capital needs are based on estimated amounts available, including projected revenues and reserve balances; therefore, modifications or amendments to refine funding requests may be reassessed mid-year or as necessary. SRTP amendments require Commission approval for changes to the annual operating or capital budgets. In May 2018, RTA’s Board of Directors adopted the FY 2018/19 operating budget based on the agency’s FY 2018/19 SRTP, which included operating allocations of $5,633,457 in 2009 Measure A Western County Public Transit and $46,997,836 in LTF. In this SRTP amendment, RTA requests 94 Agenda Item 9 to swap $1.6 million in 2009 Measure A Western County Public Transit operating assistance allocations ($1,208,510 of Intercity Bus and $391,490) with $1.6 million of available LTF Western County Bus funds. This swap improves the timing of cash flows and preserves 2009 Measure A Western County Public Transit funds for future periods, as these 2009 Measure A funds are considered local operating revenues for farebox recovery purposes. This funding swap will not affect RTA’s farebox recovery ratio target of 16.72%, which it projects to exceed. Attachment 1 includes a revised FY 2018/19 SRTP Table 4 summary that highlights the proposed funding swap. The RTA Board of Directors approved this SRTP amendment at its February 2019 meeting. Staff recommends approval of the revised 2009 Measure A and LTF operating assistance allocations and SRTP amendment. Additionally, staff recommends adjustments to the FY 2018/19 budget to decrease 2009 Measure A Western County Public Transit operating expenditures and increase LTF operating expenditures in the amount of $1.6 million each. Financial Information In Fiscal Year Budget: No Year: FY 2018/19 Amount: $1.6 million Source of Funds: Local Transportation Funds Western County Bus, 2009 Measure A Western County Public Transit- Intercity Bus and CTSA Budget Adjustment: Yes GL/Project Accounting No.: LTF Western County Bus 002210 86101 00000 0000 601 62 86101 $1,600,000 2009 Measure A Western County Public Transit 269 62 86101 ($1,208,510) Intercity Bus 270 62 86101 ($391,490) CTSA Fiscal Procedures Approved: Date: 03/14/2019 Attachments: 1) Revised SRTP FY 2018/19 Table 4 2) RTA Staff Report, February 28, 2019 95 Riverside Transit Agency FY 2018/19 Summary of Funds Requested Short Range Transit Plan Table 4 - Summary of Funds Requested for FY 2018/19 Amendment #1 Project Description Capital Project Number Total Amount of Funds LTF STA State of Good Repair (SGR) STA 5 Measure A Operating Assistance Section 5307 - Riv-San Bernardino Section 5307 - Murrieta/ Temecula/ Menifee Section 5307 - Hemet 1 CMAQ 4 Section 5310 Section 5311 7 Section 5339 Bus & Bus Facilities 8 LCTOP Farebox Other Revenue Operating Assistance 44,856,614 38,394,264 3,393,882 2,500,000 568,468 Operating Assistance - 1,208,510 (1,208,510) - - Operating Assistance - CTSA 939,575 939,575 Operating Assistance - CTSA - 391,490 (391,490) Capitalized Preventive Maintenance 8,375,000 1,675,000 5,200,000 1,500,000 Capital Cost of Contracting 3 8,125,000 1,625,000 4,000,000 2,500,000 ADA Complementary Paratransit Service 3 1,937,500 387,500 1,100,000 450,000 JARC Operating Assistance 9 1,860,160 837,072 837,072 186,016 Travel Training 4 408,773 408,773 RapidLink Operating Assistance 1 1,800,000 447,000 1,161,000 86,000 106,000 Route 200: 91 Express Service 5 2,700,000 1,475,000 900,000 325,000 PVL Feeder Services (Rtes 26,52,54) 2 1,087,000 1,087,000 Route 54F: FOL Shuttle 2 74,757 74,757 Route 205 5 450,000 400,000 50,000 Route 19 Frequency Expansion 1,325,000 1,126,250 198,750 Route 28 Frequency Expansion 291,337 262,203 29,134 Fare Study 160,000 32,000 128,000 OPEB Expense 1,600,000 1,600,000 Farebox (Cash, Coin, Tickets, Passes)8,745,353 8,745,353 Interest Income 300,000 300,000 Advertising Revenue 15,000 15,000 CNG Sales 100,000 100,000 LCFS Credits 400,000 400,000 RINs Credits 1,000,000 1,000,000 Medi-Cal Reimbursement 1,050,000 525,000 525,000 Wentworth Lease 65,840 65,840 Subtotal: Operating $87,666,909 $48,597,836 $0 $0 $4,033,457 $11,265,072 $4,450,000 $2,500,000 $1,161,000 $408,773 $568,468 $0 $1,474,453 $10,802,010 $2,405,840 Revenue Vehicles - (33) COFR Replace FY19-1 7,239,953 1,085,993 6,153,960 Revenue Vehicles - (29) DAR Repl FY19-2 3,029,005 454,351 2,574,654 Non-Revenue Vehicles - (8) cars, (1) truck FY19-3 266,726 53,345 213,381 Capitalized Tire Lease FY19-4 350,535 70,107 280,428 Associated Transit Improvements FY19-5 200,000 40,000 160,000 Facility Maintenance FY19-6 897,036 179,407 717,629 Information Systems FY19-7 1,846,665 369,333 600,000 877,332 Hemet Mobility Hub 7 FY19-8 406,936 81,387 - 325,549 Hemet Mobility Hub 7 FY19-8 2,032,203 406,441 - 1,625,762 Operations & Maintenance Facility 7 FY17-9 (2,032,203) (406,441) - (1,625,762) Operations & Maintenance Facility FY19-9 10,000,000 10,000,000 Facilities & Fuel Station Enhancements FY19-10 1,856,095 1,856,095 H-D CNG Revenue Vehicles (14) Replace.FY19-11 10,000,000 10,000,000 Subtotal: Capital $36,092,951 $0 $22,333,923 $1,856,095 $0 $10,259,624 $0 $1,317,760 $0 $0 $0 $325,549 $0 $0 $0 Total: Operating & Capital $123,759,860 $48,597,836 $22,333,923 $1,856,095 $4,033,457 $21,524,696 $4,450,000 $3,817,760 $1,161,000 $408,773 $568,468 $325,549 $1,474,453 $10,802,010 $2,405,840 1 RapidLink Operating Assistance utilizes FY15 CMAQ grant CA-95-X296 (FTIP No: RIV151211). 2 PVL routes funded with RCTC CMAQ grant, which is farebox recovery ratio allowable. 3 Includes DAR Plus Costs, formerly partially funded with Measure A but now using LTF. 4 Travel Training will use remainder of existing CalTrans 5310 (Standard Agreements 644532 & 644539) awarded December 2015 plus new 5310 grant (expected to be awarded by July 2018). 5 Route 200 and 205 partially funded with Commuter Assistance Measure A (vs CTSA or Western County Bus Measure A). 7 Section 5339 Bus and Bus Facilities - Small Urban funding is FY2017 apportionment. FY15 5339 Bus and Bus Facilities - Urban being re-programmed from Central Operations & Maintenance Facility project. 8 LCTOP funding programmed herein is less than the amount provided by Caltrans. RTA is only programming expected need. LCTOP funding used for operating is farebox allowable revenue. 9 Routes 3D, 3C, 30, 33, 40, 42, 61, 74, 79, 212, 217D, 217C ATTACHMENT 1 96 RIVERSIDE TRANSIT AGENCY 1825 Third Street Riverside, CA 92507 February 28, 2019 TO: BOARD OF DIRECTORS THRU: Larry Rubio, Chief Executive Officer FROM: Craig Fajnor, Chief Financial Officer SUBJECT: Request Authorization to Amend the Fiscal Year 2018/2019 (FY19) Short Range Transit Plan (SRTP) and Operating Budget Summary: At their May 24, 2018 meeting, the Agency Board of Directors adopted the original FY19 Operating Budget, Capital Budget, and SRTP. The FY19 Operating Budget is $87,666,909 and the FY19 Capital Budget is $36,092,951. These budgets, as an integral part of the SRTP, support the Agency mission and goals of providing safe, reliable, and cost effective transportation while increasing ridership and being fiscally responsible with taxpayer funds. Since the May 2018 Board of Directors Meeting and the start of the FY19, one item requires consideration to adjust the Board-approved FY19 Operating budget – with a net zero impact. Swapping Measure A funds for Local Transportation Funds (LTF) As background, the FY19 SRTP and Board-approved Operating Budget includes both LTF and Measure A funding for a significant portion (60%) of the approved operating budget. LTF (54%) and Measure A (6%) funding is programmed in the amounts of $46,997,836 and $5,633,457, respectively. While both funding sources “pay the bills”, an important distinction between the two is Farebox Recovery Ratio (FRR) allowability. As a reminder, the state’s Transportation Development Act (TDA) requires public transportation operators to achieve or exceed a minimum ratio of farebox revenues to total operating expenses to be eligible for TDA funds (i.e. – LTF and State Transit Assistance or STA). Minimum FRR requirements are as follows: •20% for service in an urban area •10% for service in a rural area •10% for demand response service ATTACHMENT 2 97 As the Agency provides all three of these services, we are subject to a blended target of these three ratios based on the budgeted costs of these services in a given fiscal year. LTF is the Agency’s largest operating revenue source, but it does not count toward farebox recovery. However, Measure A funds do count. While Measure A usually constitutes a very small percentage of operating revenue, due to counting toward FRR, any amount is considered precious. For FY19, the Agency’s FRR target is 16.72%. Based on the Board- approved FY19 Operating Budget, our budgeted FY19 FRR is 22.57%. Through the month of January 2019, our actual FRR is 27.46%. With meeting or exceeding the FRR target for FY19 very likely, staff recommends swapping a portion of its programmed Measure A for an equivalent amount of LTF. Doing so serves several important purposes: • Keeps the FY19 budget fully funded • Improves cash flow • Preserves valuable Measure A for future fiscal years as a farebox- allowable revenue source • As the Agency maximizes the use of non-LTF revenues every fiscal year, any operating budget underrun is returned to RCTC for future use For the FY19, staff is recommending swapping $1,600,000 of Measure A for an equivalent amount of LTF. RCTC staff supports this request. Fiscal Impact: The current board-adopted FY19 Operating Budget is $87,666,909. The changes discussed above represent a net impact of $0. Thus, the revised FY19 Operating Budget remains unchanged at $87,666,909. This amount is fully funded with Federal, State, local and other revenue sources. Further, the Agency will meet or exceed the mandatory Farebox Recovery Ratio target of 16.72% for FY19. FY19 Capital Budget remains unchanged at $36,092,951. This amount is fully funded with Federal, State, and local revenue sources. 98 Committee Recommendation: This item was discussed at the Board Budget and Finance Committee meeting of February 6, 2019. The committee members unanimously approved and recommended this item to the full Board of Directors for their consideration. Recommendation: • Authorize the proposed mid-year change to the FY19 Operating Budget. • Direct staff to seek full RCTC approval of the requested change identified in this report. • Direct staff to prepare appropriate amendments to the FY19 SRTP as a result of this action. • Direct staff to modify all procurement documentation impacted by the changes identified in this request. 99 AGENDA ITEM 10 Agenda Item 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 26, 2019 TO: Western Riverside County Programs and Projects Committee FROM: Lisa Mobley, Clerk of the Board THROUGH: Anne Mayer, Executive Director SUBJECT: Election of Officers for the Western Riverside County Programs and Projects Committee STAFF RECOMMENDATION: This item is for the Western Riverside County Programs and Projects Committee to conduct an election of officers for 2019 – Chair and Vice Chair. BACKGROUND INFORMATION: The election of officers for the full Commission and its Committees are held on an annual basis. Commissioners Adam Rush and Brian Berkson were elected as the Western Riverside County Programs and Projects Committee’s officers. Once the election for 2019 is conducted, the new Chair and Vice Chair will immediately assume the positions. Past Chairs of the Western Riverside County Programs and Projects Committee are as follows: 2018 – Adam Rush, City of Eastvale 2017 – Deborah Franklin, City of Banning 2016 – Ben Benoit, City of Wildomar 2015 – Ben Benoit, City of Wildomar 2014 – Frank Johnston, City of Jurupa Valley 2013 – Andrew Kotyuk, City of San Jacinto 2012 – Adam Rush, City of Eastvale 2011 – Darcy Kuenzi, City of Menifee 2010 – Karen Spiegel, City of Corona 100