HomeMy Public PortalAbout04 April 22, 2019 Western Riverside County Programs and Projects
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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: April 22, 2019
Location: BOARD ROOM
County of Riverside Administration Center
4080 Lemon St, First Floor, Riverside CA 92501
COMMITTEE MEMBERS
Brian Berkson, Chair/Chris Barajas,
City of Jurupa Valley
Michael Vargas, Vice Chair/Rita Rogers, City of Perris
Wes Speake/Jim Steiner, City of Corona
Clint Lorimore/Todd Rigby, City of Eastvale
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
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: April 16, 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: Agreement with HDR Engineering, Inc. for the Completion of Project
Approval/Environmental Document for the Interstate 15 Express Lanes Project-Southern
Extension
Consultant(s): Kip Field, Vice President
HDR Engineering, Inc.
2280 Market Street, Suite 100
Riverside, CA 92501
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, April 22, 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
April 22, 2019
Page 2
5. APPROVAL OF MINUTES – MARCH 25, 2019
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. AGREEMENT WITH HDR ENGINEERING, INC. FOR THE COMPLETION OF PROJECT
APPROVAL/ENVIRONMENTAL DOCUMENT FOR THE INTERSTATE 15 EXPRESS LANES
PROJECT-SOUTHERN EXTENSION
Page 1
Overview
This item is for the Committee to:
1) Award Agreement No. 19-31-025-00 to HDR Engineering, Inc. (HDR) to provide
preliminary engineering and environmental analysis services for the Interstate 15
Express Lanes Project - Southern Extension (I-15 ELPSE), in the amount of $26,320,011,
plus a contingency amount of $2,632,001, for a total amount not to exceed
$28,952,012;
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.
Western Riverside County Programs and Projects Committee
April 22, 2019
Page 3
8. AGREEMENT WITH THE ORANGE COUNTY TRANSPORTATION AUTHORITY FOR THE 15/91
EXPRESS LANES CONNECTOR PROJECT DESIGN-BUILD PHASE
Page 51
Overview
This item is for the Committee to:
1) Approve Agreement No. 19-31-067-00 with Orange County Transportation Authority
(OCTA) for reimbursement for closure of the OCTA 91 Express Lanes in support of the
Interstate 15/State Route 91 Express Lanes Connector Project (15/91 ELC) in the
amount of $398,000, plus a contingency amount of $39,000, for a total amount not to
exceed $437,000;
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 approve contingency work up to the
total amount not to exceed as required for the project;
4) Authorize the Executive Director or designee to approve future non-funding
amendments to this agreement; and
5) Forward to the Commission for final action.
9. FUNDING AGREEMENT WITH THE CALIFORNIA HIGHWAY PATROL FOR FREEWAY SERVICE
PATROL SUPERVISION
Page 62
Overview
This item is for the Committee to:
1) Approve Agreement No. 19-45-063-00 with the California Highway Patrol (CHP) to
provide supervision and operation of the Freeway Service Patrol (FSP) program in
Riverside County for a three-year term in an amount not to exceed $4,046,158;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission; and
3) Forward to the Commission for final action.
10. 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.
11. ADJOURNMENT
AGENDA ITEM 5
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE
Monday, March 25, 2019
MINUTES
1. CALL TO ORDER/ ROLL CALL
The meeting of the Western Riverside County Programs and Projects Committee was
called to order by Vice Chair Brian Berkson 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
Members/Alternates Present Members Absent
Victoria Baca Kevin Jeffries
Ben Benoit
Brian Berkson
Berwin Hanna
Jeff Hewitt
Clint Lorimore
Wes Speake
Russ Utz
Michael Vargas
Bill Zimmerman
3. PLEDGE OF ALLEGIANCE
At this time, Commissioner Berwin Hanna led the Western Riverside County Programs
and Projects Committee in a flag salute.
4. PUBLIC COMMENTS
There were no requests to speak from the public.
5. APPROVAL OF MINUTES – NOVEMBER 26, 2018
M/S/C (Zimmerman/Vargas) to approve the minutes as submitted.
Abstain: Hewitt
RCTC WRC Programs and Projects Committee Minutes
March 25, 2019
Page 2
6. ADDITIONS/REVISIONS
There were no additions or revisions at this time.
7. AGREEMENTS FOR ON-CALL RIGHT OF WAY SUPPORT SERVICES
Mark Lancaster, Right of Way Manager, presented the scope of the agreements for on-
call right of way support services.
Mark Lancaster clarified for Commissioner Jeff Hewitt that the location of the proposers
was not a factor in whether they were awarded the contract.
M/S/C (Benoit/Baca) 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
Mark Lancaster, Right of Way Manager, presented the scope of the agreements for
on-call right of way engineering and surveying services.
M/S/C (Baca/Hewitt) 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.
RCTC WRC Programs and Projects Committee Minutes
March 25, 2019
Page 3
9. RIVERSIDE TRANSIT AGENCY FISCAL YEAR 2018/19 SHORT RANGE TRANSIT PLAN
AMENDMENT
Monica Morales, Management Analyst, presented the details of the RTA FY 2018/19 SRTP
amendment.
M/S/C (Baca/Speake) 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
Lisa Mobley, Clerk of the Board, stated this item is for the Western Riverside County
Programs and Projects Committee to conduct an election of the officers for 2019.
At this time, Vice Chair Berkson opened nominations for the Chair position.
Commissioner Berwin Hanna, seconded by Commissioner Wes Speake, nominated Vice
Chair Brian Berkson for the Chair position for 2019.
No other nominations were received. The Vice Chair closed the nominations. Vice Chair
Brian Berkson was elected as the Western Riverside County Programs and Projects
Committee’s Chair for 2019.
The Vice Chair then opened nominations for the Vice Chair position for 2019.
Commissioner Ben Benoit, seconded by Commissioner Russ Utz, nominated
Commissioner Michael Vargas for the Vice Chair position for 2019.
RCTC WRC Programs and Projects Committee Minutes
March 25, 2019
Page 4
No other nominations were received. The Vice Chair closed the nominations.
Commissioner Michael Vargas was elected as the Western Riverside County Programs and
Projects Committee’s Vice Chair for 2019.
11. COMMISSIONERS / STAFF REPORT
Commissioner Clint Lorimore congratulated the nominees for the Chair and Vice Chair
positions.
Anne Mayer announced Josefina Clemente, Transit Manager, is retiring from the
Commission.
12. ADJOURNMENT
There being no further business for consideration by the Western Riverside County
Programs and Projects Committee, the meeting was adjourned at 1:48 p.m.
Respectfully submitted,
Lisa Mobley
Clerk of the Board
AGENDA ITEM 7
Agenda Item 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: April 22, 2019
TO: Western Riverside County Programs and Projects Committee
FROM: Stephanie Blanco, Capital Projects Manager
THROUGH: Michael Blomquist, Toll Program Director
SUBJECT:
Agreement with HDR Engineering, Inc. for the Completion of Project
Approval/Environmental Document for the Interstate 15 Express Lanes
Project-Southern Extension
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award Agreement No. 19-31-025-00 to HDR Engineering, Inc. (HDR) to provide
preliminary engineering and environmental analysis services for the Interstate 15
Express Lanes Project - Southern Extension (I-15 ELPSE), in the amount of $26,320,011,
plus a contingency amount of $2,632,001, for a total amount not to exceed
$28,952,012;
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.
BACKGROUND INFORMATION:
The I-15 ELPSE would add two express lanes in each direction on I-15 from Cajalco Road to
State Route 74 (Central Avenue). See Figure 1 below for a project location map. The purpose
of the project is to:
• Improve traffic operations and travel times for general purpose lane users;
• Expand travel choices with the addition of express lanes and carpooling;
• Increase travel time reliability for all corridor users; and
• Provide travel time-savings and travel time certainty for express lane users.
1
Agenda Item 7
Figure 1: Project Location Map
At its September 2017 meeting, the Commission approved the I-15 ELPSE as one of three
project recommendations to the California Transportation Commission (CTC) for the 2018 State
Transportation Improvement Program (STIP). In March 2018, the CTC approved $50 million of
STIP funding for the project approval/environmental document (PA/ED) development phase of
the I-15 ELPSE. However, this STIP funding will not be available for obligation until
Fiscal Year 2022/2023. Therefore, staff conducted a programming analysis and identified that
the PA/ED development phase was eligible for Congestion Mitigation/Air Quality (CMAQ) funds.
The PA/ED services will be funded with about $29 million in CMAQ funds.
2
Agenda Item 7
The I-15 ELPSE environmental document is anticipated to be an environmental impact
report/environmental impact statement (EIR/EIS) based on prior studies and overall experience
in the I-15 corridor. Formal scoping meetings are expected to start in July 2019. It is expected
that the PA/ED phase with an EIR/EIS will be completed in five years with anticipated
completion in 2024.
Procurement Process:
Pursuant to Government Code 4525 et seq, the selection of architect, engineer, and related
services shall be on the basis of demonstrated competence and on professional qualifications
necessary for the satisfactory performance of the services required. Therefore, staff used the
qualification method of selection for the procurement of these services. Evaluation criteria
included elements such as qualifications of firm, qualifications of personnel, 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. 19-31-025-00 for preliminary engineering and environmental analysis services for the
I-15 ELPSE was released on November 7, 2018. A public notice was advertised in the Press
Enterprise, and the RFQ was posted on the Commission’s PlanetBids website, which is
accessible through the Commission’s website. Through PlanetBids, 100 firms downloaded the
RFQ, 16 of these firms are located in Riverside County. A pre-proposal conference was held on
November 21, 2018, and attended by 31 firms. Staff responded to all questions submitted by
potential proposers prior to the December 20, 2018, clarification deadline date. Five firms –
AECOM (Orange); EXP U.S. Services, Inc. (San Bernardino); HDR (Riverside); WKE, Inc. (Santa
Ana); and WSP USA Inc. (San Bernardino) – submitted responsive and responsible statements of
qualifications (SOQ) prior to the 2:00 p.m. submittal deadline on January 28, 2019. Based on
the evaluation criteria set forth in the RFQ, the firms were evaluated and scored by an
evaluation committee comprised of Commission, Bechtel, and Caltrans staff.
Based on the evaluation committee’s assessment of the written SOQs and pursuant to the
terms of the RFQ, the evaluation committee shortlisted and invited four firms (AECOM, HDR,
WKE, Inc. and WSP USA Inc.) to the interview phase of the evaluation and selection process.
Interviews were conducted on February 21, 2019.
The evaluation committee conducted a subsequent evaluation of each firm, based on both
written and interview components presented to the evaluation committee by each proposer.
Accordingly, the evaluation committee recommends contract award to HDR to provide
preliminary engineering and environmental analysis services for the I-15 ELPSE, as it earned the
highest total evaluation score.
Subsequently, staff negotiated the scope (including the appropriate level of effort, labor
categories/mix, etc.), cost, and schedule proposal received from HDR for the project services
and established a fair and reasonable price. As part of the federal procurement process for
architectural and engineering services, HDR and its subconsultants’ proposed Indirect Cost
3
Agenda Item 7
Rates subject to audit by Caltrans’ Independent Office of Audits and Investigations (IOAI). The
proposed cost is $26,298,132 and may change slightly as a result of the IOAI audit. The
proposed cost is expected to be finalized prior to Commission approval in May.
Recommendation
Staff recommends award of Agreement No. 19-31-025-00 to HDR to perform preliminary
engineering and environmental analysis services for the I-15 ELPSE, based on the final project
scope and cost, in the amount of $26,320,011, plus a contingency amount of $2,632,001, for a
total amount not to exceed $28,952,012. The Commission’s model professional services
agreement will be entered into with HDR, subject to any changes approved by the Executive
Director and pursuant to legal counsel review. Further, staff recommends authorization for the
Chair or Executive Director to execute the agreement on behalf of the Commission and for the
Executive Director or designee to approve contingency work up to the total not to exceed
amount as required for the project.
Financial Information
In Fiscal Year Budget:
Yes
Yes
N/A
Year:
FY 2018/19
FY 2019/20
FY 2020/21+
Amount:
$ 150,000
$ 6,000,000
$ 22,802,012
Source of Funds: CMAQ Budget Adjustment:
No
No
N/A
GL/Project Accounting No.: 003044 81101 00000 0000 262 31 81101
Fiscal Procedures Approved: Date: 04/13/2019
Attachment: Draft Agreement No. 19-31-025-00
4
17336.03400\31233218.1
Agreement No. 19-31-025-00
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT WITH
HDR ENGINEERING, INC.
FOR
PRELIMINARY ENGINEERING ENVIRONMENTAL ANALYSIS, PUBLIC OUTREACH,
AND PROJECT MANAGEMENT SERVICES
FOR THE
INTERSTATE 15 EXPRESS LANES PROJECT – SOUTHERN EXTENSION
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 HDR ENGINEERING, INC. ("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 professional services provided under this
Agreement is federal funds administered by the California Department of Transportation
(“Caltrans”) from the United States Department of Transportation pursuant to the
following project/program: [___INSERT FUNDING SOURCE__].
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17336.03400\31233218.1
E. Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the Commission on the terms and conditions
set forth in this Agreement. Consultant represents that it is experienced in providing
[__INSERT TYPE OF SERVICES__] 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 for the
[___INSERT PROJECT__] (“Project”), as set forth in 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 professional [__INSERT GENERAL DESCRIPTION OF SERVICES__]
services necessary for the Project (“Services”). The Services are more particularly
described in Exhibit “A” attached hereto and incorporated herein by reference. All
Services shall be subject to, and performed in accordance with, this Agreement, 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”.
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17336.03400\31233218.1
4. Caltrans 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 on [___INSERT END DATE__], unless extended by contract amendment.
5.2 Consultant is advised that any recommendation for Agreement 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.
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17336.03400\31233218.1
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 as follows: [__INSERT NAMES OF KEY
PERSONNEL__].
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
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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. Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set
forth in Exhibit “B” attached hereto and incorporated herein by reference. 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.
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.
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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.
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
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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
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.
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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. 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 (“Cost Proposal”) unless additional reimbursement is provided for by a written
amendment. 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. 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. In the event that
Commission determines that a change to the Services from that specified in the Cost
Proposal and this Agreement is required, the contract time or actual costs reimbursable
by Commission shall be adjusted by contract 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 of [___INSERT DOLLAR AMOUNT___]. The fixed fee is
nonadjustable for the term of this Agreement, except in the event of a significant change
in the Scope of Services, and such adjustment is made by written amendment.
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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, 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 Consultant’s 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 [___INSERT DOLLAR AMOUNT___].
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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 for any or no
reason upon thirty (30) calendar days written notice to Consultant with the reasons for
termination stated in the notice.
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
work 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 this 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.
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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 Discontinuance of Services. 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 Effect of Termination for Cause. 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 herein. Termination of this Agreement for cause may
be considered by the Commission in determining whether to enter into future
agreements with Consultant.
21.6 Cumulative Remedies. 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 Waivers. 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,
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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
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 this 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 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.
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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.
25.2 Consultant shall perform the Services with resources available within its
own organization and no portion of the Services 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 also 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”. 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 Consultant 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
Consultant’s Cost Proposal and exceeding $5,000 prior authorization 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:
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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
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.
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27.2 DIR Registration. If 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. If applicable, 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
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
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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 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.
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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
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, its 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
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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, its directors, officials, officers, employees,
consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against Commission or its directors, officials,
officers, employees, consultants, agents, or volunteers, in any such suit, action or other
legal proceeding. Consultant shall reimburse Commission and its 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, its 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. Insurance.
30.1 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.
30.2 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
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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: $2,000,000 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.
30.3 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
Consultant shall obtain such insurance in an amount not less than $1,000,000 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.
30.4 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.
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30.5 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 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.
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(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
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
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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.
Each insurance policy required by this Agreement shall be endorsed to state that:
30.6 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 expenses.
30.7 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.
30.8 Verification of Coverage. Consultant shall furnish Commission with
original certificates of insurance and endorsements effecting coverage required by this
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.
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30.9 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.
30.10 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.
31. 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.
As between Consultant and the construction contractors only, the construction
contractors shall remain solely responsible for construction safety notwithstanding any
safety obligations of Consultant at the jobsite. The foregoing sentence shall not impact
nor in any way modify or alter Consultant’s indemnity and defense obligations to the
Commission, as set forth in Section 29 of this Agreement, not any of Consultant’s duties
or obligations set forth under this Agreement, including the attached exhibits.
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.
32. 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
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performed pursuant to a separate agreement between the parties. Notwithstanding the
foregoing, the Commission’s Executive Director may make a change to the Agreement,
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.
33. Prohibited Interests.
33.1 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.
33.2 Consultant Conflict of Interest (Construction Management/ Administration).
(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.
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(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
Agreement. 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 Agreement shall be eligible to bid on any construction
contract, or on any contract to provide construction inspection for any construction
project resulting from this Agreement.
33.3 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.
33.4 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.
33.5 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.
33.6 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
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terminate this Agreement without liability; to pay only for the value of the work actually
performed; or to deduct from the contract price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
33.7 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 “F”,
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 be included in all Consultant
subcontracts which exceed $100,000, and that all such subcontractors shall certify and
disclose accordingly.
33.8 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.
34. 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
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related to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination.
35. Right to Employ Other Consultants. Commission reserves the right to employ
other consultants in connection with the Project.
36. Governing Law. This Agreement shall be governed by and construed with the
laws of the State of California. Venue shall be in Riverside County.
37. Disputes; Attorneys’ Fees.
37.1 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.
37.2. 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.
38. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
39. 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.
39.1 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:
[INSERT] Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
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.
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40. 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 Parties and the interpretation of the Parties’ understanding concerning the
performance of the Services.
41. Amendment or Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by both Parties.
42. 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.
43. 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.
44. Provisions Applicable When Federal Department of Transportation Funds Are
Involved. When funding for the Services 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.
45. 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.
46. No Third Party Beneficiaries. There are no intended third party beneficiaries of
any right or obligation assumed by the Parties.
47. 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.
48. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
49. 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
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Commission is provided as required herein, and shall cooperate with the Commission in
responding to the subpoena or court order.
50. 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.
51. 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.
52. Incorporation of Recitals. The recitals set forth above are true and correct and
are incorporated into this Agreement as though fully set forth herein.
53. 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]
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17336.03400\31233218.1
SIGNATURE PAGE
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FHWA FUNDING/ASSISTANCE
IN WITNESS WHEREOF, this Agreement was executed on the date first written
above.
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Anne Mayer
Executive Director
Approved as to Form:
By:
Best, Best & Krieger LLP
General Counsel
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.
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EXHIBIT “A”
SCOPE OF SERVICES
[attached behind this page]
35
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EXHIBIT “B”
SCHEDULE OF SERVICES
[attached behind this page]
36
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EXHIBIT “C”
COMPENSATION PROVISIONS
[attached behind this page]
37
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EXHIBIT "D"
FEDERAL DEPARTMENT OF TRANSPORTATION
FHWA AND CALTRANS REQUIREMENTS
[attached behind this page]
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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, including employment practices when the Agreement covers a
program whose goal is employment.
2. DEBARMENT AND SUSPENSION CERTIFICATION
39
17336.03400\31233218.1
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.
40
17336.03400\31233218.1
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
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, and a final utilization report in the form provided by the
Commission.
41
17336.03400\31233218.1
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.
B. This Agreement has a ____ DBE goal. The Consultant must meet the goal by
committing DBE participation or document a good faith effort to meet the goal. 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
42
17336.03400\31233218.1
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.
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
43
17336.03400\31233218.1
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 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.
In addition to all other requirements, Consultant shall complete and submit, on a
monthly basis, the Monthly DBE Payment form (Caltrans Exhibit 9-F of Chapter 9 of the
LAPM).
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.
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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 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.
45
17336.03400\31233218.1
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 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).
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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.
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EXHIBIT “E”
CONSULTANT DBE COMMITMENT
[attached behind this page]
48
17336.03400\31233218.1
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 %
49
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EXHIBIT “F”
DISCLOSURE OF LOBBYING ACTIVITIES
[attached behind this page]
50
INTERSTATE 15 EXPRESS LANES PROJECT
SOUTHERN EXTENSION
WRCPP Committee
April 22, 2019
1
Stephanie Blanco, Capital Projects Manager (Toll)
Project
Location
2
Project Description
3
•Add two express lanes in each direction on Interstate 15 from Cajalco Road in the
city of Corona to State Route 74 (Central Avenue) in the city of Lake Elsinore.
I-15/Cajalco Road, Corona
I-15/SR-74 (Central Avenue), Lake Elsinore
Project Purpose
4
•Improve traffic operations and travel times for general
purpose lane users;
•Expand travel choice with the addition of Express Lanes
and carpooling;
•Increase travel time reliability;
•Provide travel time savings and travel time certainty for
express lane users
Work Activities
5
•Preliminary Engineering
•Environmental Analysis
Procurement
6
•Release date: November 7, 2018
•Pre-proposal meeting: November 21, 2018
–31 consultant firms attended
•Proposal submittal: January 28, 2019
–5 responsive firms
•Shortlist for interviews: February 7, 2019
–4 firms shortlisted
•Consultant interviews: February 21, 2019
–HDR ranked first
Anticipated Schedule
7
2019 2020 2021 2022 2023 2024
•May 2019:
Commission
Approval and
Award Contract
•July-Aug 2019:
Environmental
Scoping
•2019-2021:
Engineering/
Environmental
Studies
•Spring 2022:
Circulate Draft
Environmental
Document
•Spring 2024:
Complete PA/ED
and Approve
Project
Staff Recommendations
8
•Award Agreement No. 19-31-025-00 to HDR Engineering, Inc.
(HDR) to provide preliminary engineering and environmental
analysis services for the Project, in the amount of $26,320,011, plus
a contingency amount of $2,632,001 for a total amount not to
exceed $28,952,012;
•Authorize the Chair or Executive Director, pursuant to legal
counsel review, to execute the agreement on behalf of the
Commission;
•Authorize the Executive Director, or designee, to approve
contingency work as may be required for the Project; and
•Forward to the Commission for final action.
QUESTIONS
9
AGENDA ITEM 8
Agenda Item 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: April 22, 2019
TO: Western Riverside County Programs and Projects Committee
FROM: David Thomas, Toll Project Manager
THROUGH: Michael Blomquist, Toll Program Director
SUBJECT: Agreement with the Orange County Transportation Authority for the 15/91
Express Lanes Connector Project Design-Build Phase
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 19-31-067-00 with Orange County Transportation Authority
(OCTA) for reimbursement for closure of the OCTA 91 Express Lanes in support of the
Interstate 15/State Route 91 Express Lanes Connector Project (15/91 ELC) in the amount
of $398,000, plus a contingency amount of $39,000, for a total amount not to exceed
$437,000;
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 approve contingency work up to the total
amount not to exceed as required for the project;
4) Authorize the Executive Director or designee to approve future non-funding amendments
to this agreement; and
5) Forward to the Commission for final action.
BACKGROUND INFORMATION:
In April 2017 Governor Brown signed SB 132, which appropriated $427 million to the Riverside
County Transportation Efficiency Corridor for five projects. SB 132 allocated $180 million to the
15/91 ELC project. The 15/91 ELC will provide a tolled express lanes connector between the
existing RCTC 91 Express Lanes and the future I-15 Express Lanes to the north of SR-91 (Figure 1
Vicinity Map).
51
Agenda Item 8
Figure 1: 15/91 Express Lanes Connector Project Vicinity Map
Since November 2018, staff has been working closely with OCTA to develop a reimbursement
agreement for closure of the OCTA 91 Express Lanes. This agreement allows the Commission to
make improvements to I-15 and SR-91 and assigns responsibilities between OCTA and the
Commission during the design and construction of the project. The reimbursement for closure
of the OCTA 91 Express Lanes will be paid with project funds provided from SB 132 funds and/or
RCTC 91 Express Lanes toll revenue.
DISCUSSION:
The closure of the OCTA 91 Express Lanes will allow the expedited and cost-efficient construction
of SR-91 improvements related to the 15/91 ELC project. These closures will result in loss of toll
revenue for OCTA that will be compensated by the Commission as described in the attached draft
agreement. The costs associated with this agreement cover the cost of weekday and/or weekend
closures of the OCTA 91 Express Lanes in the westbound and eastbound directions. The closure
of the OCTA 91 Express Lanes will be permitted during nighttime only when the potential toll
revenue on the OCTA 91 Express Lanes is the lowest, thus minimizing the costs to the 15/91 ELC
project. The Commission-authorized contingency will cover any additional unanticipated
permitted nightly closures required for the project. The design-build contract approach currently
under development anticipates reimbursement of these costs paid to OCTA by the design-build
contractor. Although this does not change the fact that these costs will ultimately be paid for by
52
Agenda Item 8
the 15/91 ELC project, it does help to minimize the number of closures and costs since this will
be part of a competitive procurement.
RECOMMENDATION:
Staff recommends approval of the agreement between the Commission and OCTA in the amount
of $398,000, plus a contingency amount of $39,000, for a total amount not to exceed $437,000.
Further, authorization is requested for the Chair or Executive Director to execute the agreement
on behalf of the Commission, for the Executive Director or designee to approve contingency work
up to the total not to exceed amount as required for the project, authorize the Executive Director
or designee to approve future non-funding amendments to this agreement, and forward the
agreement to Commission for final action.
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2019/2020
FY 2020/2021+ Amount: $200,000
$237,000
Source of Funds: SB 132 Funds and 91 Express Lanes Toll
Revenue Budget Adjustment: No
N/A
GL/Project Accounting No.: 003039 81602 00000 0000 605 31 81601
Fiscal Procedures Approved: Date: 04/12/2019
Attachment: Draft Agreement No. 19-31-067-00 with OCTA
53
1
1233807.1
17336.02100\31669716.6
Agreement No. 19-31-067-00
AGREEMENT BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
FOR REIMBURSEMENT FOR CLOSURE OF 91 EXPRESS LANES
This Agreement ("Agreement") is dated ______________, 2019 and is by and between the
Orange County Transportation Authority ("OCTA") and the Riverside County Transportation
Commission ("RCTC"). OCTA and RCTC are individually referred to as a "Party" and collectively
referred to as the "Parties."
Recitals
1. WHEREAS, OCTA is the owner and operator of the 91 Express Lanes in Orange County
"Toll Facility"; and
2. WHEREAS, RCTC is the owner and operator of the 91 Express Lanes in Riverside
County and as part of the design-build delivery of the Interstate 15 Express Lanes Project (ELP) and
Interstate 15/State Route 91 Express Lanes Connector Project (ELC) has requested the closure of the
OCTA Toll Facility for approximately sixty (60) nights in the Eastbound direction and approximately
sixteen (16) nights in the Westbound direction for the purpose of installing and testing a new Variable
Tolling Message Sign (VTMS) along Eastbound State Route 91 (SR 91), construction of the ELC Project,
and other associated work ("Work") in Orange County; and
3. WHEREAS, forty (40) of the Toll Facility closures in the Eastbound direction are
planned to occur in the first and second quarters of 2020 and twenty (20) of the Toll Facility closures in
the Eastbound direction are planned to occur in 2021/2022 from the hours of 9:00 p.m. through 5:00 a.m.;
and
4. WHEREAS, ten (10) of the Toll Facility closures in the Westbound direction are planned
to occur in the first quarter of 2020 and six (6) of the Toll Facility closures in the Westbound direction are
planned to occur in 2021/2022 from the hours of 8:00 p.m. through 4:00 a.m. on weekday nights (Sunday
from 8:00 p.m. through Friday at 4:00 a.m.) and from the hours of 9:00 p.m. through 5:00 a.m. on the
weekend nights (Friday at 9:00 p.m. through Sunday at 5:00 a.m.); and
5. WHEREAS, the Parties acknowledge that the closure of the Toll Facility will have a
financial impact on OCTA through lost toll revenues; and
6. WHEREAS, RCTC has agreed to reimburse OCTA for the lost toll revenues associated
with the requested closure pursuant to the terms of this Agreement.
Terms and Conditions
NOW, THEREFORE, in consideration of the mutual promises herein contained, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
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1. Grant of Closures – OCTA hereby agrees to allow closure of the Eastbound lanes of the
Toll Facility for approximately forty (40) nights from 9:00 p.m. through 5:00 a.m. in the first and second
quarter of 2020 and closure of the Westbound lanes of the Toll Facility for approximately ten (10) nights
from 8:00 p.m. through 4:00 a.m. on weekday nights and from 9:00 p.m. through 5:00 a.m. on weekend
nights in the first quarter of 2020 in order for RCTC and/or its contractors to install and test a new VTMS
along Eastbound SR 91 in Orange County. OCTA hereby agrees to allow closure of the Eastbound lanes
of the Toll Facility for approximately twenty (20) nights from 9:00 p.m. through 5:00 a.m. in 2021/2022
and closure of the Westbound lanes of the Toll Facility for approximately six (6) nights from 8:00 p.m.
through 4:00 a.m. on weekday nights and from 9:00 p.m. through 5:00 a.m. on weekend nights in
2021/2022 in order for RCTC and/or its contractors to construct the ELC Project. RCTC and/or its
contractors may access the Toll Facility during the above referenced hours, herein referenced as
“Permitted Closures”, to perform the required Work.
2. Payment
(a) In consideration for the closures of the Toll Facility, RCTC agrees to pay OCTA
pursuant to the following schedule:
Eastbound Direction
For the Eastbound Direction, the “Weekday” is Sunday from 9:00 pm through Friday at 5:00 am.
The “Weekend” is Friday from 9:00pm to Sunday at 5:00 am.
(Q1/Q2 2020)
Permitted Weekday Closure 9:00 pm to 5:00 am $3,000.00/night
Permitted Weekend Closure 9:00 pm to 5:00 am $5,200.00/night
Unpermitted Closure 5:01 am to 8:59 pm $22,600/for every partial or full
(Weekday or Weekend) 10 minute increment 1
(2021/2022)
Permitted Weekday Closure 9:00 pm to 5:00 am $3,900.00/night
Permitted Weekend Closure 9:00 pm to 5:00 am $6,800.00/night
Unpermitted Closure 5:01 am to 8:59 pm $22,600/for every partial or full
(Weekday or Weekend) 10 minute increment1
Westbound Direction
For the Westbound Direction, the “Weekday” is Sunday from 8:00 pm through Friday at 4:00 am.
The “Weekend” is Friday from 9:00 pm to Sunday at 5:00 am.
1 Closures during this period are not permitted, unless otherwise approved in writing by OCTA. Unpermitted
Closure amounts shown are for each 10 minute period (or portion thereof) the closure continues beyond the
Permitted Closure period.
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(Q1 2020)
Permitted Weekday Closure 8:00 pm to 4:00 am $3,000.00/night
Permitted Weekend Closure 9:00 pm to 5:00 am $1,400.00/night
Unpermitted Weekday Closure:
Monday 4:01 am to 7:59 pm $22,600/for every partial or full
Tuesday 4:01 am to 7:59 pm 10 minute increment1
Wednesday 4:01 am to 7:59 pm
Thursday 4:01 am to 7:59 pm
Friday 4:01 am to 8:59 pm
Unpermitted Weekend Closure :
Saturday 5:01 am to 8:59 pm $22,600/for every partial or full
Sunday 5:01 am to 7:59 pm 10 minute increment1
(2021/2022)
Permitted Weekday Closure 8:00 pm to 4:00 am $3,900.00/night
Permitted Weekend Closure 9:00 pm to 5:00 am $1,800.00/night
Unpermitted Weekday Closure :
Monday 4:01 am to 7:59 pm $22,600/for every partial or full
Tuesday 4:01 am to 7:59 pm 10 minute increment1
Wednesday 4:01 am to 7:59 pm
Thursday 4:01 am to 7:59 pm
Friday 4:01 am to 8:59 pm
Unpermitted Weekend Closure :
Saturday 5:01 am to 8:59 pm $22,600/for every partial or full
Sunday 5:01 am to 7:59 pm 10 minute increment1
RCTC agrees to pay OCTA all amounts due and owing within thirty (30) days of the receipt of a written
request for payment from OCTA.
(b) RCTC has allocated the not to exceed sum of $398,000 for Permitted Closures
under this Agreement. Permitted Closures shall not exceed the foregoing sum without written approval of
RCTC’s Executive Director.
3. Performance of Work – RCTC shall perform all Work, and shall ensure its contractors
perform all Work, in accordance with the following:
(a) All Work shall be at the sole cost and expense of RCTC and/or its contractors.
(b) RCTC and its contractors shall take all reasonable steps to minimize any impacts
to OCTA's operations, including, without limitation, conducting all Work on the Toll
Facility only between the Permitted Closure hours during the timeframes identified in
Section 1 above.
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(c) RCTC or its contractors shall acquire all applicable governmental permits,
approvals and other authorizations required under all applicable federal, state and local
laws, regulations, orders and ordinances prior to conducting the Work. All Work shall be
conducted in accordance with all (i) applicable federal, state and local laws, regulations,
rules, orders and ordinances, (ii) all industry standards, and (iii) all additional standards
as reasonably required by OCTA.
(d) RCTC and/or its contractors, at their sole cost and expense, shall before the end
of any closure promptly remove from the Toll Facility all equipment and any soil,
material and waste generated during the Work. OCTA shall not be identified as the
generator of any such soil, material or waste on any manifests or similar documents
generated in connection with the Work; provided, however, that this provision shall not
be construed as preventing the identification of the property if required on such manifests
or similar documents.
(e) RCTC and/or its contractors shall deliver to OCTA notice of any Permitted
Closures of the Toll Facility, not less than seven days prior to the proposed
commencement date of the Permitted Closure. Any such closure shall be subject to the
approval of OCTA. If RCTC’s contractor wishes to withdraw or amend a previously
submitted notice of Permitted Closure(s), the contractor shall provide further notice (in
the same manner as the original notice) of such withdrawal or amendment not less than
five days prior to the proposed commencement date of the Permitted Closure. If RCTC
and/or its contractors fail to deliver such withdrawal or amendment not less than seventy-
two (72) hours prior to the proposed commencement date of the Permitted Closure,
RCTC shall still be responsible for payment of the Permitted Closure even though said
Permitted Closure was not utilized by RCTC and/or its contractors.
(f) RCTC and/or its contractor shall provide further notice as soon as they have
knowledge that a Permitted Closure will be late in reopening. In the event that a
Permitted Closure does not reopen on time, OCTA will not authorize any further lane
closures until RCTC’s contractor submits to OCTA a corrective action plan to avoid
recurrences and OCTA approves, in writing, said corrective action plan.
(g) Closures of the Toll Facility shall not be allowed during the following weekends:
(i) New Year’s weekend; (ii) on Martin Luther King weekend; (iii) on Presidents Day
weekend; (iv) on Easter weekend; (v) on Mother’s Day weekend; (vi) on Memorial Day
weekend; (vii) 4th of July weekend; (viii) Labor Day weekend; (ix) Veterans Day
weekend; (x) Weekend before and weekend after Thanksgiving; and (xi) weekend before
and weekend after Christmas Day.
(h) The Work shall be conducted only under the supervision of person and entities
licensed and certified to perform the Work. Furthermore, an authorized representative of
RCTC or Cofiroute shall be present at all times during the Work.
(i) RCTC represents and warrants to OCTA that RCTC is legally insured for
property damage and personal injury, in the amount of $1,000,000 per
occurrence/$2,000,000 aggregate with additional limits of $25,000,000 per occurrence in
Excess Liability. In addition, RCTC shall cause all of its contractors performing the
Work who enter upon the Toll Facility to maintain, at least $5,000,000 per occurrence in
insurance coverage under all of the following types of policies: automobile liability
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insurance, commercial general liability insurance (which shall include coverage for both
bodily injury and abroad form property damage), and Professional Liability insurance,
Pollution Liability insurance, as well as all worker's compensation insurance required by
law including a waiver of subrogation in favor of OCTA, its officers, directors,
employees or agents. The foregoing coverage limits may be met through a combination
of the contractor’s underlying policies and umbrella or excess liability insurance. OCTA
shall be named as an additional insured on all such policies maintained by RCTC's
contractor except for the worker's compensation and professional liability policies. In no
event shall the amount of such insurance coverage serve as a limitation on RCTC's or its
contractors' liability.
(j) RCTC and its contractors shall, at their sole cost and expense, repair all damage
to the Toll Facility caused by the Work, it being the intent of this Agreement that upon
completion of the Work, business activities on the Toll Facility may promptly resume
without hindrance, obstruction or delay, and the Toll Facility shall be in the same
condition as existing prior to the Work.
(k) OCTA shall have absolutely no obligation for advising or informing RCTC or its
contractors as to the location(s) of any underground utilities, structures, equipment at or
beneath the Toll Facility. The responsibility for determining and confirming the
location(s) of any underground utilities, structures and equipment shall be solely of
RCTC and its contractors. In the event any underground utilities, structures or equipment
are damaged by the Work, it shall be RCTC's and its contractors' responsibility to
promptly repair, at their sole cost and expense, the same, regardless of the reason(s) why
such utilities, structures or equipment were damaged, it being the intent of the Parties
hereto that the risk of the same shall be borne solely by RCTC.
(l) RCTC shall be responsible for providing all safety measures during the Work.
(m) If the performance of the Work causes damage to the Toll Facility or any
adjacent structures, facilities, underground utilities or equipment that results in the Toll
Facility not being fully available for use during the repair, RCTC shall reimburse OCTA
at the Permitted and Unpermitted Closure rates listed in Section 2 above for the entirety
of time it takes to effectuate the repair
4. Indemnity - In further consideration of OCTA entering into this Agreement, RCTC
agrees to protect, hold harmless, indemnify and defend OCTA and its directors, officers, employees,
contractors, representatives, successors and assigns (collectively, "Indemnified Parties") from and against
any and all suits, claims, causes of actions, assessments, taxes, demands, damages, liens, losses, injuries,
liabilities, orders, directives, fines, penalties, costs and expenses (including reasonable attorneys' fees and
costs, expert witness fees and bond costs) related to, arising from or based upon: (i) any bodily injury
(including death) and/or property damage arising from, caused by or resulting from the Work, (ii) any
negligent act(s) or omission(s) at or regarding the Toll Facility by RCTC or its contractors arising from,
caused by or resulting from the Work, and/or (iii) any breach of this Agreement by RCTC. The foregoing
shall not apply to the extent of OCTA’s sole negligence, active negligence or willful misconduct.
5. Notice – Except as may otherwise be expressly provided for in this Agreement, any
notices or the like required hereunder shall be in writing and shall be deemed delivered, provided or
received, as required by applicable provision, (i) when delivered if personally delivered, (ii) when
emailed to the addresses listed below with return receipt, (iii) upon written fax confirmation if sent via
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fax, (iv) the next business day if sent via overnight carrier for guaranteed delivery the next business day
with delivery confirmation, or (v) three (3) business days after being sent by United States first class
certified mail – return receipt requested, postage prepaid, if mailed. Any notices or the like required
hereunder shall be sent as follows:
If to OCTA: Orange County Transportation Authority
Kirk Avila, General Manager
550 South Main St.
Orange, CA 92688
714-560-5674
kavila@octa.net
If to RCTC: Riverside County Transportation Commission
Michael Blomquist, Toll Program Director
4080 Lemon Street, 3rd Floor
Riverside, CA 92502
951-787-7141
mblomquist@rctc.org
The foregoing addresses may be changed from time to time in a manner in compliance with this
Section. If any notice sent via personal delivery of fax is received by the recipient on a Saturday, Sunday,
legal holiday or after 5:00 pm Pacific Standard Time on a business day, it shall be deemed delivered,
provided and received on the next business day.
6. Governing Law – This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
7. Assignment - This Agreement may not be assigned by RCTC. This Agreement may be
assigned by OCTA in its sole discretion.
8. Counterparts – This Agreement may be executed in counterparts, which counterparts
shall constitute a single, integrated agreement.
9. Modification; Waiver – This Agreement cannot be modified, amended or altered, or any
of the terms hereof waived, except by a writing referring specifically to this Agreement and its intent to
modify, amend, alter or waive the same, signed by the Parties. No such waiver shall be deemed to be a
subsequent waiver of such provisions or a waiver of any subsequent breach of the same or any other
provision hereof.
10. Entire Agreement – This Agreement contains all agreements and understandings between
the Parties pertaining to the subject matter hereof. There are no oral or written representations,
stipulations or warranties, express or implied, with respect to the same which are not fully set forth herein.
11. Headings – The paragraph headings in this Agreement are intended solely for the
convenience of reference and shall not in any manner amplify, limit, modify or otherwise affect the
interpretation of any provision of this Agreement, and the masculine, feminine or gender neutral, as well
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as the singular and plural, shall be deemed to include the other gender and numbers whenever the context
so indicates or requires.
12. No Joint Venture – The Parties acknowledge and agree that this Agreement shall not be
construed to create a partnership, joint venture, employment or agency relationship between the Parties.
13. Additional Representations and Warranties – Each Party to this Agreement represents
and warrants: (i) it has made such investigation of the facts and matters pertaining to this Agreement that
it deemed necessary, (ii) it had an opportunity to consult with an attorney regarding this Agreement, and
(iii) it has read this Agreement and understands its contents.
14. Authority to Execute – Each of the persons signing this Agreement hereby represents and
warrants that he/she is authorized to execute this Agreement on behalf of the Party for whom he/she is
signing.
15. Time is of the Essence – Time is of the essence with respect to each and every provision
hereof.
16. Breach by Contractors – Any breach of any duty, covenant or obligations of RCTC's
contractors hereunder shall be deemed a breach of this Agreement by RCTC.
[Signatures on following page]
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SIGNATURE PAGE
TO
AGREEMENT BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
FOR REIMBURSEMENT FOR CLOSURE OF 91 EXPRESS LANES
IN WITNESS WHEREOF, the Parties have duly entered into this Agreement.
ORANGE COUNTY TRANSPORTATION AUTHORITY
_________________________________
Darrell Johnson, CEO
Date:_____________________________
Approved as to Form
_________________________________
James M. Donich
General Counsel
RIVERSIDE COUNTY TRANSPORATION COMMISSION
__________________________________
Anne E. Mayer, Executive Director
Approved as to Form
_________________________________
Steven C. DeBaun
General Counsel
61
AGENDA ITEM 9
Agenda Item 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: April 22, 2019
TO: Western Riverside County Programs and Projects Committee
FROM: Michelle McCamish, Management Analyst
Brian Cunanan, Commuter and Motorist Assistance Manager
THROUGH: Aaron Hake, Director of External Affairs
SUBJECT: Funding Agreement with the California Highway Patrol for Freeway Service
Patrol Supervision
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 19-45-063-00 with the California Highway Patrol (CHP) to
provide supervision and operation of the Freeway Service Patrol (FSP) program in
Riverside County for a three-year term in an amount not to exceed $4,046,158;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreement on behalf of the Commission; and
3) Forward to the Commission for action.
BACKGROUND INFORMATION:
The Riverside County FSP program is operated as a joint venture between the California
Department of Transportation (Caltrans), CHP, and the Commission in its capacity as the Service
Authority for Freeway Emergencies (SAFE). The Riverside County SAFE is responsible for
administering the program, and the CHP provides daily field supervision to ensure service
performance.
The CHP has supplemental agreements with various SAFEs statewide for overtime and/or
additional personnel. Since 2001, the Commission has executed agreements with CHP due to
the limited personnel and nature of the FSP program. In addition to field supervision during
FSP operating hours (5:30 a.m. to 8:30 a.m. and 2:30 p.m. [12:30 p.m. on Fridays] to 6:30 p.m.),
there are services performed between operating hours that support the program, therefore
requiring CHP officers to work overtime. Below is a sample of the services performed by FSP
CHP officers:
In-field Supervisory Services Provided During FSP Operating Hours (not exhaustive):
• Provide in-field, on scene, program supervision;
• Provide on-the-spot decisions regarding incidents occurring in the field;
• Enforce program rules and guidelines through in-field supervision;
• Conduct all investigations with regard to equipment, personnel, damage, and
complaints;
62
Agenda Item 9
• Inspect tow trucks for regulatory compliance;
• Serve as a FSP liaison between agencies, such as with other CHP personnel, Caltrans,
cities, counties, etc.; and
• Be available to the public for FSP concerns, questions, comments, complaints.
Administrative Supervisory Services Provided During Non-FSP Hours (not exhaustive):
• Initiate background checks and conduct testing, fingerprinting, and certifications for
new FSP drivers;
• Prepare training class materials (binders and maps);
• Conduct training classes;
• Track extra truck time, fines, penalties, and certificates (driver license, DL64, medical
cards, and motor carrier permits);
• Prepare monthly billing;
• Maintain the standard operating procedures manual;
• Maintain drop point maps to include changing local regulations;
• Monitor the automatic vehicle locator system, tablets, radios, and other electronic FSP
equipment;
• Maintain required field-ready equipment such as backup tablets, radios, safety vests,
and magnetic signs;
• Participate in the request for proposal process for new contractors;
• Maintain driver files and records for all FSP drivers;
• Track FSP drivers’ tenure and performance with regard to driver recognition and
awards; and
• Attend and occasionally host various FSP-related required meetings and trainings
(Technical Advisory Committee and quarterly drivers’ meetings).
At its June 2016 meeting, the Commission approved an agreement with the CHP for overtime
supervision and operation of the FSP program, including construction FSP support for the State
Route 91 Corridor Improvement Project (91 Project), in an amount not to exceed $793,181 over
a three-year term. At its March 2017 meeting, the Commission approved an amendment to the
agreement for an additional amount of $731,011, to support construction FSP for the 91 Project
and 91 Express Lanes FSP service. At its March 2018 meeting, the Commission approved a
second amendment in the amount of $522,891 to provide incremental weekend service (grant
funded) on select beats and for construction FSP support for the I-15 Express Lanes Project. At
its July 2018 meeting, the Commission approved a third amendment in the amount of
$440,000, in anticipation of the Senate Bill (SB) 1 coverage expansion to south Riverside County
(South County), for a total contract not to exceed $2,487,083.
CHP jurisdictional boundaries govern oversight authority, and, in total, there are six dedicated
FSP officers, across two CHP divisions supporting Riverside County FSP operations. Four FSP
officers, based out of Inland CHP Division (Inland), support both Riverside and San Bernardino
County FSP operations, and two officers, based out of Border CHP Division (Border), oversee
the new South County expansion service areas. CHP is provided an allocation by the state and
does absorb some of the baseline personnel costs with that allocation; however, supplemental
agreements are needed to cover overtime, dispatch, and/or additional personnel.
63
Agenda Item 9
DISCUSSION:
The current agreement expires on June 30, 2019, and staff seeks approval for a new agreement
with CHP for another three-year term. This new agreement will support the following elements
with overtime, dispatch, and additional personnel, as needed: Baseline FSP, 91 (and future 15)
Express Lanes FSP, and construction (multiple projects) and incremental FSP (temporary or
grant funded service).
Staff coordinated with the local CHP division units (Border and Inland) to develop an estimate
for the incremental CHP time and corresponding costs needed to support the aforementioned
elements. In addition to the baseline personnel, the draft agreement provides for a maximum
amount of overtime hours for officers and dispatchers (as shown below) for each fiscal year at a
statewide rate determined each fiscal year by CHP headquarters. The current rates are $90.45
per hour for officers and $46.26 per hour for dispatchers. CHP advised that the FY 2019/20
hourly rates will increase to $97.43 per hour for officers and $47.88 per hour for dispatchers.
The total amount of the three-year agreement shall not exceed $4,046,158, including a 5%
contingency. In the event CHP headquarters grants a rate increase, the Commission is required
to reimburse the CHP at the new hourly rate, but in no event shall the total amount exceed the
maximum contract amount. Additionally, CHP headquarters will be receiving an incremental
SB 1 amount from the state for FSP that will help to offset this agreement’s amount.
Below is a breakdown of the preliminary cost estimates (before the incremental SB 1 allocation)
and hours by fiscal year:
FY 2020 FY 2021 FY 2022
Regular FSP $704,645 $731,221 $759,090
Express Lanes FSP 261,558 288,368 317,925
Incremental FSP 116,248 128,163 141,300
Construction FSP 308,929 137,318 151,393
$1,391,380 $1,285,070 $1,369,708 $4,046,158 Total CHP Contract
Officer Hours 6,226 5,175 5,402
Dispatch Hours 4,726 3,630 3,812
The funding agreement provides for the reimbursement from the Commission to the CHP of
those reasonable overtime expenses necessary to support the FSP program, FSP service
supporting the express lanes projects, and the SB 1 South County FSP program. The
Commission only pays for actual supervision and dispatch time incurred, while the contract
provides for both known and unforeseen FSP needs throughout the county. Both an Inland and
Border CHP Lieutenant Commander provides direct supervision of the dedicated FSP officers
and reviews and approves their reimbursed overtime expenses. Auditing of these reimbursable
expenses is performed both at the local CHP division level and at the state level by the FSP
liaison contracts unit.
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Agenda Item 9
Financial Information
In Fiscal Year Budget: Yes
N/A Year: FY 2019/20
FY 2020/21+ Amount: $1,391,380
$2,654,778
Source of Funds: State allocations including SB1, SAFE,
and toll revenues Budget Adjustment: No
N/A
GL/Project Accounting No.: 002173 81016 00000 0XXX 201 45 81002
009199 81016 00000 0000 591 31 81002
Fiscal Procedures Approved: Date: 04/11/2019
Attachment: Draft Agreement No. 19-45-063-00
65
STATE OF CALIFORNIA
STANDARD AGREEMENT
STD 213 (Rev 06/03) AGREEMENT NUMBER
CHP# xxxxxxxxx
RCTC #19-45-063-00 - DRAFT
REGISTRATION NUMBER
1. This Agreement is entered into between the State Agency and the Contractor named below:
Department of California Highway Patrol
Riverside County Transportation Commission
2. The term of this 07/01/2019 through 06/30/2022
Agreement is:
3. The maximum amount $5,008,1554,046,158.
of this Agreement is: (Five Million Eight Thousand One Hundred Fifty-Five Dollars and Zero Cents)
4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a
part of the Agreement.
Exhibit A – Agreement Between State of California and Riverside County
Transportation
12 pages
Exhibit C* – General Terms and Conditions (with exclusion of item #4 “Audit”, #5,
“Indemnification”, #6 “Disputes”, #7 “Termination for Cause”, #9 “Recycling”, #11
“Certification clauses”, #13 “Compensation”, #15 “Antitrust Claims”, #16 “Child
Support Compliance”, #18 “Priority Hiring Considerations”, and #19 “Small Business
Participation and DVBE Participation Reporting Requirements.”)
GTC 610 6/9/10
Signatures appear on page 9 of Exhibit A.
Items shown with an Asterisk (*), are hereby incorporated by reference and made part of this agreement as if attached hereto.
These documents can be viewed at www.dgs.ca.gov/ols/Resources/StandardContractLanguage.aspx
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
CONTRACTOR California Department of General
Services Use Only
CONTRACTOR’S NAME (if other than an individual, state whether a corporation, partnership, etc.)
Riverside County Transportation Commission
BY (Authorized Signature)
See page 12 for signatures
DATE SIGNED(Do not type)
PRINTED NAME AND TITLE OF PERSON SIGNING
See page 12
ADDRESS
P.O. Box 1208, Riverside, CA 92502-2208
STATE OF CALIFORNIA
AGENCY NAME
Department of California Highway Patrol
BY (Authorized Signature)
See page 12 for signatures
DATE SIGNED(Do not type)
PRINTED NAME AND TITLE OF PERSON SIGNING :
P. SLINEY, Assistant Chief, Administrative Services Division
ADDRESS
P.O. Box 942898, Sacramento, CA 94298-0001
66
RCTC Agreement #19-45-063-00 - DRAFT
CHP#xxxxxxxxx
Exhibit A, Page 1 of 12
AGREEMENT BETWEEN
STATE OF CALIFORNIA
DEPARTMENT OF CALIFORNIA HIGHWAY PATROL
AND
RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES
FOR FREEWAY SERVICE PATROL
THIS AGREEMENT is between the State of California acting by and through Department of
California Highway Patrol (hereinafter referred to as CHP) P.O. Box 942898, Sacramento,
California 94298-001 and Riverside County Transportation Commission, acting in its
capacity as the Riverside County Service Authority for Freeway Emergencies (hereinafter
referred to as RCTC) P.O. Box 12008, Riverside, CA 92502-2208. Collectively, CHP and
RCTC may be referred to as the “Parties.”
ARTICLE 1. GENERAL INFORMATION
A. This Agreement provides for CHP dispatch services and overtime supervisory
assistance in connection with the Freeway Service Patrol (FSP) program in Riverside
County. Streets and Highways Code Section 2561, subdivision (c) defines “freeway
service patrol” as a “program managed by the Department of the California Highway
Patrol, the [California Department of Transportation] and a regional or local entity
which provides emergency roadside assistance on a freeway in an urban area.”
B. Section 2401 of the California Vehicle Code (CVC) states that the Commissioner of
CHP shall make adequate provisions for patrol of the highways at all times of the day
and night.
C. RCTC has the ability to provide local matching funds as required by the State Budget
Change Proposal (BCP) for FSPs on freeways within Riverside County, which has
qualified the county to participate in the State FSP program. Riverside County FSP
67
RCTC Agreement #19-45-063-00 - DRAFT
CHP#xxxxx
Exhibit A, Page 2 of 12
will assist in transportation system management efforts, provide traffic congestions
relief, and expedite the removal of freeway impediments, all of which will have the
added benefit of improving air quality.
ARTICLE 2. TERMS AND CONDITIONS
A. Riverside County’s FSP program is intended to be funded with revenues derived from
Service Authority for Freeway Emergencies (SAFE) and State Budget Change
Proposal funds, known as BCP for the day-to-day contractor operation. RCTC is
currently only provided 1.5 officers to provide oversight for the program in accordance
with funding available for the statewide FSP program. With ongoing additions and
turnover of FSP program drivers, the provision of additional driver training and
required certification classes by CHP are a necessity in order for RCTC’s tow
contractors to maintain their contractual obligation of having only certified FSP drivers
perform FSP services. With only 1.5 officers, it is difficult to provide classes as well as
all other duties the officers are responsible for within regular duty hours. Therefore, it
is necessary to fund a half-time officer position for the Inland Division, two full-time
officer positions for the Border Division, and CHP overtime for FSP program oversight
assistance, incident investigations, administrative duties, and other field duties as
required to maintain operational safety and code compliance.
B. Should this Agreement be terminated under paragraph D, RCTC agrees to provide
funding to reimburse CHP for those reasonable and allowable costs incurred and
associated with the program overtime and administrative duties as defined in this
Agreement up to the point of termination.
C. The term of this Agreement shall be effective July 1, 2019 through June 30, 2022.
D. The CHP and RCTC mutually agree that either party may terminate this Agreement
upon sixty (60) days prior written notice to the other party.
E. The CHP and RCTC agree that this Agreement may be amended by mutual written
consent of both parties hereto.
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Exhibit A, Page 3 of 12
F. RCTC agrees to reimburse CHP for actual costs incurred for FSP related duties
performed by CHP officers (“Officers”), in accordance with the following schedule:
i. For Regular FSP Program (Inland Division):
1) Approximately 1,000 hours of available Officer overtime during fiscal year
2019/2020, reimbursed at an estimated rate of $94.9797.43 per hour for an
annual estimated amount of $94,970.0097,430.00.
2) Approximately 1,020 hours of available Officer overtime during fiscal year
2020/2021, reimbursed at an estimated rate of $99.72102.30 per hour for an
annual estimated amount of $101,713.00104,348.00.
3) Approximately 1,040 hours of available Officer overtime during fiscal year
2021/2022, reimbursed at an estimated rate of $104.70107.42 per hour for an
annual estimated amount of $108,893.00111,713.00.
ii. For Express Lanes FSP (91 Express Lanes, 15 Express Lanes):
1) Approximately 1,550 1,800hours of available Officer overtime during fiscal
year 2019/2020, reimbursed at an estimated rate of $94.9797.43 per hour for
an annual estimated amount of $147,204.00175,374.00.
2) Approximately 2,0801,890 hours of available Officer overtime during fiscal
year 2020/2021, reimbursed at an estimated rate of $99.72102.30 per hour
for an annual estimated amount of $207,414.00193,350.00.
3) Approximately 2,1201,985 hours of available Officer overtime during fiscal
year 2021/2022, reimbursed at an estimated rate of $104.70107.42 per hour
for an annual estimated amount of $221,974.00213,168.00.
4) Approximately 1,5501,800 hours of available Dispatcher overtime during fiscal
year 2019/2020, reimbursed at an estimated rate of $48.5747.88 per hour for an
annual estimated amount of $75,284.0086,184.00. Approximately 2,0801,890
hours of available Dispatcher overtime during fiscal year 2020/2021, reimbursed
at an estimated rate of $51.0050.27 per hour for an annual estimated amount of
$106,077.0095,018.00. Approximately 2,1201,985 hours of available Dispatcher
overtime during fiscal year 2021/2022, reimbursed at an estimated rate of
$53.5552.79 per hour for an annual estimated amount of $113,523.00104,757.00
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Exhibit A, Page 4 of 12
iii. For RC SAFE/ Construction FSP:
(1) Approximately 650 hours of available Officer overtime during fiscal year
2019/2020, reimbursed at an estimated rate of $94.9797.43 per hour for an
annual estimated amount of $61,731.0063,330.00.
(2) Approximately 1,352900 hours of available Officer overtime during fiscal year
2020/2021, reimbursed at an estimated rate of $99.72102.30 per hour for an
annual estimated amount of $134,819.0092,071.00.
(3) Approximately 1,352945 hours of available Officer overtime during fiscal year
2021/2022, reimbursed at an estimated rate of $104.70107.42 per hour for an
annual estimated amount of $141,560.00101,509.00.
(4) Approximately 650 hours of available Dispatcher overtime during fiscal year
2019/2020, reimbursed at an estimated rate of $48.5747.88 per hour for an
annual estimated amount of $31,570.0031,122.00. Approximately 1,352900
hours of available Dispatcher overtime during fiscal year 2020/2021,
reimbursed at an estimated rate of $51.0050.27 per hour for an annual
estimated amount of $68,950.0045,247.00. Approximately 1,352945 hours of
available Dispatcher overtime during fiscal year 2021/2022, reimbursed at an
estimated rate of $53.5552.79 per hour for an annual estimated amount of
$72,397.0049,884.00
iv. For Incremental FSP (Temporary/Special and/or Grant Funded):
(1) Approximately 832 800 hours of available Officer overtime during fiscal year
2019/2020, reimbursed at an estimated rate of $94.9797.43 per hour for an
annual estimated amount of $79,015.0077,944.00.
(2) Approximately 832 840 hours of available Officer overtime during fiscal year
2020/2021, reimbursed at an estimated rate of $99.72102.30 per hour for an
annual estimated amount of $82,966.0085,933.00.
(3) Approximately 832 882 hours of available Officer overtime during fiscal year
2021/2022, reimbursed at an estimated rate of $104.70107.42 per hour for an
annual estimated amount of $87,114.0094,741.00.
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Exhibit A, Page 5 of 12
(4) Approximately 832 800 hours of available Dispatcher overtime during fiscal
year 2019/2020, reimbursed at an estimated rate of $48.5747.88 per hour for
an annual estimated amount of $40,410.0038,304.00. Approximately 832 840
hours of available Dispatcher overtime during fiscal year 2020/2021,
reimbursed at an estimated rate of $51.0050.27 per hour for an annual
estimated amount of $42,431.0042,230.00. Approximately 832 882 hours of
available Dispatcher overtime during fiscal year 2021/2022, reimbursed at an
estimated rate of $53.5552.79 per hour for an annual estimated amount of
$44,552.0046,559.00
v. For Regular FSP Program (Border Division):
1) Approximately 500 hours of available Officer overtime during fiscal year
2019/2020, reimbursed at an estimated rate of $94.9797.43 per hour for an
annual estimated amount of $47,485.0048,715.00.
2) Approximately 525 hours of available Officer overtime during fiscal year
2020/2021, reimbursed at an estimated rate of $99.72102.30 per hour for an
annual estimated amount of $52,352.0053,708.00.
3) Approximately 550 hours of available Officer overtime during fiscal year
2021/2022, reimbursed at an estimated rate of $104.70107.42 per hour for an
annual estimated amount of $57,587.0059,079.00.
vi. For RC SAFE/ Construction FSP (Border Division):
(1) Approximately 2,3001,476 hours of available Officer overtime during fiscal
year 2019/2020, reimbursed at an estimated rate of $94.9797.43 per hour for
an annual estimated amount of $218,431.00143,807.00.
(2) Approximately 2,415 hours of available Officer overtime during fiscal year
2020/2021, reimbursed at an estimated rate of $99.72 per hour for an annual
estimated amount of $240,820.00.
(3) Approximately 2,535 hours of available Officer overtime during fiscal year
2021/2022, reimbursed at an estimated rate of $104.70 per hour for an annual
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Exhibit A, Page 6 of 12
estimated amount of $265,426.00.
(4) Approximately 2,3001,476 hours of available Dispatcher overtime during
fiscal year 2019/2020, reimbursed at an estimated rate of $48.5747.88 per
hour for an annual estimated amount of $111,711.0070,671.00.
Approximately 2,415 hours of available Dispatcher overtime during fiscal
year 2020/2021, reimbursed at an estimated rate of $51.00 per hour for an
annual estimated amount of $123,161.00. Approximately 2,535 hours of
available Dispatcher overtime during fiscal year 2021/2022, reimbursed at an
estimated rate of $53.55 per hour for an annual estimated amount of
$135,745.00
vii. RCTC Funding of ½ CHP Officer (Inland Division):
(1) RCTC agrees to reimburse CHP for one-half of a full time Officer position for
the Agreement term at estimated annual amounts of $110,500116,500.00 for
fiscal year 2019/2020, $112,710122,325.00 for fiscal Year 2020/2021 and
$114,964128,441.00 for fiscal year 2021/2022.
viii. RCTC Funding of 2 CHP Officers (Border Division):
(1) RCTC agrees to reimburse CHP for two full time Officer positions for the
Agreement term at estimated annual amounts of $442,000.00 for fiscal year
2019/2020, $450,840.00 for fiscal Year 2020/2021 and $459,856.00 for fiscal
year 2021/2022.
ix. Use of Funds; Total Not to Exceed Contract Value.
Amounts Payable to the CHP by RCTC for costs incurred pursuant to this
Agreement may be utilized over several fiscal years, and need not be utilized in a
single fiscal year by the CHP, so long as the total amount payable under this
Agreement is not exceeded.
It is understood by both parties that rate increases in salary and benefits are
governed by collective bargaining agreements and/or statute and that no advance
written notification is necessary prior to implementing the increased rates. In the
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Exhibit A, Page 7 of 12
event CHP is granted a rate increase, RCTC agrees to reimburse CHP at the new
hourly rate, but in no event shall the total amount to be reimbursed by RCTC
under this Agreement, for any of the services described herein, exceed the
maximum contract amount of $5,008,1554,046,158.00.
Fiscal Year begins July 1 and ends on June 30.
G. The CHP shall invoice monthly. RCTC agrees to pay CHP within thirty (30) days after
the invoice is received. The CHP and RCTC agree that any notice required under this
Agreement shall be delivered or mailed to the persons designated below:
To CHP: To COMMISSION:
California Highway Patrol Riverside County Transportation Commission
Research and Planning Section P.O. Box 12008
P.O. Box 942898 Riverside, CA 92502-2208
Sacramento, CA 94298-0001
ATTENTION: Lori Gong ATTENTION: Brian Cunanan
Statewide FSP Manager Program Manager
(916) 843-3353 (951) 787-7141
ARTICLE 3. COMMISSION RESPONSIBILITIES
A. RCTC shall reimburse CHP for those reasonable overtime expenses necessary to
support the Riverside County FSP operations as outlined under Article 2, Terms and
Conditions, Paragraph F.
B. It is agreed that in the event State FSP funds do not become available to RCTC for
this Agreement, RCTC may immediately terminate this Agreement with written notice,
but shall pay the CHP from other sources any amounts required to cover CHP’s cost
to the date of Agreement termination.
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CHP#xxxxx
Exhibit A, Page 8 of 12
ARTICLE 4. CHP RESPONSIBILITIES
A. The CHP has already assigned and staffed, for the dedicated purpose of operating the
Riverside County FSP, one and one half (1.5) full-time officers for the dedicated
purpose of assisting with Riverside County FSP operations. If the CHP cannot
provide the Agreement’s specified staffing level, CHP agrees to notify RCTC within
thirty (30) days.
B. All personnel providing services shall be State employees under the sole discretion,
supervision, and regulation of CHP. Said personnel shall work out of the appropriate
CHP facilities as designated by CHP. At no time shall any State employee assigned
to the Riverside County FSP program be considered employees, agents, officials, or
volunteers of RCTC.
ARTICLE 5. CHP OVERTIME
CHP overtime duties may include, but not be limited to:
A. Investigating complaints from the public regarding a Riverside County FSP
contractor or driver.
B. Performing all necessary driver license and background checks on all Riverside
County FSP operators.
C. Inspecting all Riverside County FSP contractor tow trucks on a periodic basis.
D. Performing necessary daily FSP oversight and program management, and providing
oversight of the contractors’ compliance with statutory and regulatory requirements.
E. Providing training to all Riverside County FSP contractors and operators.
F. Assisting RCTC with verifying contractor billing.
G. Provide representation for Riverside County FSP Technical Committee.
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Exhibit A, Page 9 of 12
ARTICLE 6. INDEMNIFICATION
A. To the extent permitted by law, RCTC shall defend, indemnify, and save harmless
CHP and all of CHP’s appointees, officers, and employees from and against any and
all claims, suits, or actions for “injury” (as defined by Government Code section 810.8)
caused by the negligent or intentional acts or omissions of RCTC, or RCTC’s officers,
directors, and employees, arising out of the performance of this Agreement.
B. To the extent permitted by law, CHP shall defend, indemnify, and save harmless RCTC
and all of RCTC’s officers, directors, and employees from and against any and all
claims, suits, or actions for “injury” (as defined by Government Code section 810.8)
caused by the negligent or intentional acts or omissions of CHP, or CHP’s appointees,
officers, or employees, arising out of the performance of this Agreement.
C. Neither termination of this Agreement nor completion of the acts to be performed under
this Agreement shall release any party from its obligation to indemnify as to any claims
or cause of action asserted so long as the event(s) upon which such claim or cause of
action is predicated shall have occurred subsequent to the effective date of this
Agreement and prior to the effective date of Termination or completion.
ARTICLE 7. AUDITS
The contracting parties hereto shall be subject to the examination and audit of the State for a
period of three (3) years after final payment under the contract. In addition, RCTC and CHP
may be subject to the examination and audit by representatives of either party. The
examination and audit shall be confined to those matters connected with the performance of
the contract including, but not limited to the costs of administering the contract. RCTC and
CHP agree to allow the auditor(s) access to such records during normal business hours and
to allow interviews of any employees who might reasonably have information related to such
records (Gov. Code Sect. 8546.7, Pub. Contract Code Sect. 10115 et seq., CCR Title 2,
Section 1896). RCTC and CHP agree to maintain such records for possible audit for a
minimum of three (3) years after final payment.
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Exhibit A, Page 10 of 12
ARTICLE 8. DISPUTES
Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by mutual agreement of the parties
may be submitted to an independent arbitrator mutually agreed upon by the CHP and
RCTC. The arbitrator’s decisions shall be non-binding and advisory only, and nothing
herein shall preclude either party, at any time, from pursuing any other legally available
course of action, including the filing of a lawsuit. Pending a final decision of a dispute
hereunder, both parties shall proceed diligently with the performance of their duties under
this Agreement, and such continued performance of their duties under this Agreement shall
not constitute a waiver of any rights, legal or equitable, of either party relating to the dispute.
ARTICLE 9. RESOLUTION
RCTC agrees to provide CHP with a resolution, motion, order or ordinance of the governing
body, approving execution of agreements with CHP, and identifying the individual who is
authorized to sign the Agreement on behalf of RCTC.
ARTICLE 10. OTHER TERMS AND CONDITIONS
A. By and in consideration of the covenants and conditions contained herein, CHP and
RCTC do hereby agree as follows:
i. This Agreement, and any attachments or documents incorporated herein by
inclusion or reference, constitutes the complete and entire Agreement between
CHP and RCTC and supersedes any prior representations, understandings,
communications, commitments, Agreements or proposals, oral or written.
ii. This Agreement shall not become effective until:
1) Duly signed by both parties and approved by the Department of General
Services Office of Legal Services, if applicable.
2) RCTC has submitted to CHP a copy of the resolution, policy, order, motion, or
ordinance from RCTC approving execution of the Agreement and identifying
the individual authorized to sign on behalf of RCTC.
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Exhibit A, Page 11 of 12
This space is intentionally left blank.
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This Agreement is entered into by the parties listed below and shall be effective upon
approval by the Department of General Services Office of Legal Services, if applicable. By
executing this Agreement, the representatives of CHP and RCTC warrant that they have
viewed and fully understand all provisions of this Agreement, and are authorized to bind
their respective agencies to all terms of the Agreement’s provisions.
STATE OF CALIFORNIA
Department of California Highway
Patrol
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
P. SLINEY, Assistant Chief
Administrative Services Division
Chuck Washington
Chair
Date Date
APPROVED AS TO FORM:
Best, Best & Krieger LLP
General Counsel
Date
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