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HomeMy Public PortalAbout06 June 28, 2021 Western Riverside County Programs & Projects MEETING AGENDA Western Riverside County Programs and Projects Committee Time: 1:30 p.m. Date: June 28, 2021 Pursuant to Governor Newsom’s Executive Order N-29-20, (March 18, 2020), the meeting will only be conducted via video conferencing and by telephone. COMMITTEE MEMBERS Clint Lorimore, Chair/Todd Rigby, City of Eastvale Ben J. Benoit, Vice Chair/Joseph Morabito, City of Wildomar Wes Speake/Jim Steiner, City of Corona Linda Krupa/Russ Brown, City of Hemet Brian Berkson/Guillermo Silva, City of Jurupa Valley Bill Zimmerman/Dean Deines, City of Menifee Yxstian Gutierrez/To Be Appointed, City of Moreno Valley Scott Vinton/Lisa DeForest, City of Murrieta Ted Hoffman/Katherine Aleman, City of Norco Michael Vargas/Rita Rogers, City of Perris 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. 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, June 28, 2021 Pursuant to Governor Newsom’s Executive Order N-29-20, (March 18, 2020), the Western Riverside County Programs and Projects Committee meeting will only be conducted via video conferencing and by telephone. Please follow the instructions below to join the meeting remotely. INSTRUCTIONS FOR ELECTRONIC PARTICIPATION Join Zoom Meeting https://rctc.zoom.us/j/82311378265 Meeting ID: 823 1137 8265 One tap mobile +16699006833,,82311378265# US (San Jose) Dial by your location +1 669 900 6833 US (San Jose) For members of the public wishing to submit comment in connection with the Western Riverside County Programs and Projects Committee Meeting please email written comments to the Clerk of the Board at lmobley@rctc.org prior to June 27, 2021 at 5:00 p.m. and your comments will be made part of the official record of the proceedings. Members of the public may also make public comments through their telephone or Zoom connection when recognized by the Chair. 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 on the Commission’s website, www.rctc.org. In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, Executive Order N-29-20, 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 Committee 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. PLEDGE OF ALLEGIANCE Western Riverside County Programs and Projects Committee June 28, 2021 Page 2 3. ROLL CALL 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. 5. 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.) 6. APPROVAL OF MINUTES – MAY 24, 2021 7. COUNTY OF RIVERSIDE FUNDING REQUEST FOR CONSTRUCTION OF JURUPA ROAD GRADE SEPARATION PROJECT Page 1 Overview This item is for the Committee to: 1) Approve programming $25 million of 2009 Measure A Western County Regional Arterial (MARA) funds for the city of Jurupa Valley’s Jurupa Road Grade Separation project; 2) Approve Agreement No. 21-72-121-00 between the Commission and the County of Riverside (County) as the lead agency for the programming of $25 million of MARA for the construction phase of the Jurupa Road Grade Separation project; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreement; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee June 28, 2021 Page 3 8. AGREEMENT FOR TRANSIT-ORIENTED COMMUNITIES STRATEGIC PLAN Page 6 Overview This item is for the Committee to: 1) Approve Agreement No. 21-65-043-00 with Stantec Consulting Services, Inc. to develop a transit-oriented communities strategic plan for an 18-month base period with two additional six-month optional terms in an amount of $924,224, plus a contingency amount of $25,776, for a total amount not to exceed $950,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreement, including option terms, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to approve contingency work up to the total not to exceed amount as required for these services; and 4) Forward to the Commission for final action. 9. CONSTRUCTION AND MAINTENANCE AGREEMENT WITH BNSF RAILWAY FOR INTERSTATE 15/STATE ROUTE 91 EXPRESS LANES CONNECTOR PROJECT Page 68 Overview This item is for the Committee to: 1) Approve Agreement No. 21-31-098-00 with BNSF Railway (BNSF) for a construction and maintenance (C&M) agreement, including property acquisition, for the Interstate 15/State Route 91 Express Lanes Connector Project (15/91 ELC) in the amount of $1,988,607, plus a contingency amount of $104,470, for a total amount not to exceed $2,093,077; 2) Authorize the Executive Director, pursuant to legal counsel review, to finalize negotiations with BNSF and execute the agreement on behalf of the Commission; 3) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required by the 15/91 ELC; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee June 28, 2021 Page 4 10. AGREEMENT FOR CALIFORNIA HIGHWAY PATROL CONSTRUCTION ZONE ENHANCEMENT ENFORCEMENT PROGRAM SERVICES DURING THE CONSTRUCTION OF THE COMMISSION’S HIGHWAY PROJECTS Page 136 Overview This item is for the Committee to: 1) Approve Agreement No. 21-31-103-00, with the California Highway Patrol (CHP) for Construction Zone Enhanced Enforcement Program (COZEEP) services used during the construction of Commission highway projects (Projects), for a total amount not to exceed $4 million for a five-year term; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. 11. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE Page 144 Overview This item is for the Committee to: 1) Approve Agreement No. 21-45-049-00 to Pepe’s Towing Service Inc. (Pepe’s) for Freeway Service Patrol (FSP) tow truck services on State Route (SR) 91, Beat No. 4, for a five-year term, in an amount of $1,666,787, plus a contingency amount of $83,340, for a total amount not to exceed $1,750,127; 2) Approve Agreement No. 21-45-050-00 to Pepe’s for FSP tow truck services on SR-60, Beat No. 7, for a five-year term, in an amount of $1,666,787, plus a contingency amount of $83,340, for a total amount not to exceed $1,750,127; 3) Approve Agreement No. 21-45-051-00 to Pepe’s for FSP tow truck services on SR-60, Beat No. 8, for a five-year term, in an amount of $1,666,787, plus a contingency amount of $83,340, for a total amount not to exceed $1,750,127; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreements on behalf of the Commission; 5) Authorize the Executive Director, or designee, to approve the use of the contingency amount as may be required for these services; and 6) Forward to the Commission for final action. 12. 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. Western Riverside County Programs and Projects Committee June 28, 2021 Page 5 13. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, July 26, 2021, via Zoom. AGENDA ITEM 6 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, May 24, 2021 MINUTES 1. CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Clint Lorimore at 1:31 p.m. via Zoom Meeting ID: 881 9939 2441. Pursuant to Governor Newsom’s Executive Order N-29-20, (March 18, 2020), the Western Riverside County Programs and Projects Committee meeting was conducted via video conferencing and by telephone. 2. PLEDGE OF ALLEGIANCE Commissioner Wes Speake led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/Alternates Present Members Absent Ben Benoit* Yxstian Gutierrez Brian Berkson Lisa Deforest Jeff Hewitt Ted Hoffman Kevin Jeffries Linda Krupa Clint Lorimore Wes Speake Michael Vargas Bill Zimmerman *arrived after meeting was called to order 4. PUBLIC COMMENTS There were no requests to speak. RCTC WRC Programs and Projects Committee Minutes May 24, 2021 Page 2 5. ADDITIONS/REVISIONS There were no additions or revisions. 6. APPROVAL OF MINUTES – APRIL 26, 2021 M/S/C (Berkson/Speake) to approve the minutes as submitted. At this time, Commissioner Ben Benoit joined the meeting. Commissioner Speake recused himself from Agenda Item 7 due to his company being on the project team. 7. STATE ROUTE 71/STATE ROUTE 91 INTERCHANGE IMPROVEMENT PROJECT FOR CONSTRUCTION MANAGEMENT SERVICES, CONSTRUCTION AND MAINTENANCE, AND COOPERATIVE AGREEMENTS Bryce Johnston, Capital Project Manager, presented the scope of the 71/91 Interchange Improvement Project for construction management services, construction and maintenance, and cooperative agreements. Commissioner Benoit commented on the positive impact this will have on the region. Mr. Johnston clarified for Commissioner Ted Hoffman that the cost amount in the staff report is the accurate amount. M/S/C (Benoit/Hoffman) to: 1) Award Agreement No. 21-31-012-00 to Falcon Engineering Services to provide construction management (CM), materials testing, construction surveying and environmental monitoring services for the State Route (SR) 71/SR-91 (71/91) interchange improvement project (Project) in the amount of $16,756,467, plus a contingency amount of $1,443,533, for a total amount not to exceed $18,200,000; 2) Approve Agreement No. 21-31-091-00 for the Project construction and maintenance (C&M) agreement with BNSF Railway in the amount of $1,957,727, plus a contingency amount of $195,773, for a total amount not to exceed $2,153,500; 3) Approve Agreement No. 21-31-067-00, a cooperative agreement between the Commission and Caltrans, that defines the roles and responsibilities for Project construction at no cost to the Commission; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreements on behalf of the Commission; RCTC WRC Programs and Projects Committee Minutes May 24, 2021 Page 3 5) Authorize the Executive Director, or designee, to approve contingency work up to the total not to exceed amount as required for these services; and 6) Forward to the Commission for final action. 8. AMENDMENT TO COOPERATIVE AGREEMENT WITH THE CITY OF PERRIS AND AMENDMENT TO AGREEMENT WITH T.Y. LIN INTERNATIONAL FOR THE INTERSTATE 215/PLACENTIA AVENUE INTERCHANGE PROJECT Bryce Johnston, Capital Projects Manager, presented the scope of the amendment to cooperative agreement with the city of Perris and the amendment to the agreement with T.Y. Lin International for the I-215/Placentia Avenue Interchange Project. Mr. Johnston clarified for Commissioner Bill Zimmerman the amounts in the staff report are correct, not the presentation. Anne Mayer explained for Commissioner Zimmerman the Commission’s standard policy is to use a 10% contingency for construction. Sometimes a higher contingency is used on a smaller project. Commissioner Michael Vargas congratulated RCTC on all the work going in to this project. M/S/C (Zimmerman/Hewitt) to: 1) Approve Agreement No. 16-31-066-06, Amendment No. 6 to Agreement No. 16-31-066-00, with T.Y. Lin International (T.Y. Lin) for design support during construction of the Interstate 215/Placentia Avenue Interchange project (Project) in the amount of $257,285, plus a contingency amount of $27,528, for an additional amount of $284,813, and a total amount not to exceed $5,455,998; 2) Approve Agreement No. 19-31-044-01, Amendment No. 1 to Agreement No. 19-31-044-00, with the city of Perris (City) for storm drain improvements on Placentia Avenue and street and signal improvements at the Placentia Avenue and Indian Avenue intersection for the Project for an additional Commission contribution of $1,081,157 and a total Commission contribution not to exceed $1,231,157; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; 4) Authorize the Executive Director, or designee, to approve contingency work up to the total not to exceed amount as required for the design support services; and 5) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes May 24, 2021 Page 4 9. AMENDMENT TO CITY OF BANNING’S FISCAL YEAR 2020/21 SHORT RANGE TRANSIT PLAN Eric DeHate, Transit Manager, presented the details of the amendment to the city of Banning’s fiscal year 2020/21 SRTP. M/S/C (Krupa/Hewitt) to: 1) Approve an amendment to the city of Banning’s (City) FY 2020/21 Short Range Transit Plan (SRTP) to reflect the operating shortfalls in FY 2019/20 and FY 2020/21 and increase the Local Transportation Fund (LTF) operating allocation in the net amount of $597,039; 2) Approve the reprogramming of $134,213 of State Transit Assistance (STA) from capital assistance to operating assistance for the City for FY 2019/20 operating expenses; 3) Approve the reprogramming of $135,000 of LTF from the Comprehensive Operational Analysis (COA) capital assistance to operating assistance for FY 2020/21 operating expenses; 4) Approve an additional FY 2020/21 LTF allocation of $217,039 to the City for FY 2019/20 operating expenses; 5) Approve an additional FY 2020/21 LTF allocation of $380,000 to the City for FY 2020/21 operating expenses; and 6) Forward to the Commission for final action. 10. AMENDMENT TO RIVERSIDE TRANSIT AGENCY’S FISCAL YEAR 2020/21 SHORT RANGE TRANSIT PLAN Eric DeHate, Transit Manager, presented the scope of the amendment to the RTA’s FY2020/21 SRTP. Commissioner Linda Krupa added the RTA Meals on Wheels program was a huge success. M/S/C (Krupa/Speake) to: 1) Amend the Riverside Transit Agency’s (RTA) Fiscal Year (FY) 2020/21 Short-Range Transit Plan (SRTP) to include the Meals on Wheels program in the Operating Budget; 2) Approve an allocation of $175,000 of 2009 Measure A Western County specialized transit funding for the Meals on Wheels program; and 3) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes May 24, 2021 Page 5 11. FISCAL YEAR 2021/22 MEASURE A COMMUTER ASSISTANCE BUSPOOL SUBSIDY FUNDING CONTINUATION REQUEST Michelle McCamish, Senior Management Analyst, presented the details of the FY 2021/22 Measure A Commuter Assistance Buspool Subsidy Funding Continuation Request. Commissioner Speake commented on the vehicle miles traveled, calculating them, and keeping track. Ms. Mayer added the Commission has always tracked the vehicle miles traveled but with Covid the programs lost a lot of momentum and we are trying to get people back in the vanpools and buspools. Commissioner Brian Berkson asked about the current and potential buspools and if there has been an increased interest in it. Ms. McCamish replied that the Commission does not currently have any applications in process but budgets for them in case there are applications. Ms. Mayer added that since three buspools is the baseline we wanted to make sure it was in the budget so we don’t run into problems with funding in the future. Ms. McCamish clarified the monthly ridership for numbers for the current buspool for Commissioner Hoffman. M/S/C (Speake/Hoffman) to: 1) Authorize payment of the $2,350/month maximum subsidy per buspool for the period July 1, 2021 to June 30, 2022, to the existing Riverside I buspool; 2) Require subsidy recipients to meet monthly buspool reporting requirements as supporting documentation to receive payments; and 3) Forward to the Commission for final action. At this time, Commissioners Lisa Deforest and Kevin Jeffries left the meeting. 12. 15/91 EXPRESS LANES CONNECTOR UPDATE David Thomas, Interim Toll Program Director, presented an update on the 15/91 Express Lanes Connector project. Mr. Thomas and Commissioners Speake and Berkson discussed the lane drop on SR-91. Ms. Mayer added there is an unfunded phase of the project that goes all the way to Pierce Street that will help alleviate the bottleneck. RCTC WRC Programs and Projects Committee Minutes May 24, 2021 Page 6 Commissioner Hoffman asked about the construction work schedule and if there was a way to have all nighttime work or if work could cease after noon on Fridays. Mr. Thomas replied that work will be done day and night, there is night work during the night lane closures but not regularly. Commissioner Benoit asked if there is a way to request the contractor shift the construction hours and what the impacts would be. Ms. Mayer replied we generally do not dictate when contractors can work in a construction zone unless it is a noise requirement and that there would be a financial and time impact in shifting the construction hours. On this contract there are no time-of-day restrictions other than direction as to when they can do lane closures. She noted the priorities are public and work-zone safety. 13. COMMISSIONERS / STAFF REPORT 13A. Ms. Mayer announced RCTC will continue to be virtual for the next 3 RCTC meetings. The Commission hopes to hold in person meetings in the fall. 14. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 3:03 p.m. Respectfully submitted, Lisa Mobley Clerk of the Board AGENDA ITEM 7 Agenda Item 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: June 28, 2021 TO: Western Riverside County Programs and Projects Committee FROM: Jillian Guizado, Planning and Programming Director THROUGH: John Standiford, Deputy Executive Director SUBJECT: County of Riverside Funding Request for Construction of Jurupa Road Grade Separation Project STAFF RECOMMENDATION: This item is for the Committee to: 1)Approve programming $25 million of 2009 Measure A Western County Regional Arterial (MARA) funds for the city of Jurupa Valley’s Jurupa Road Grade Separation project; 2)Approve Agreement No. 21-72-121-00 between the Commission and the County of Riverside (County) as the lead agency for the programming of $25 million of MARA for the construction phase of the Jurupa Road Grade Separation project; 3)Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreement; and 4)Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission’s 2017 Companion Study to the 2012 Grade Separation Priority Update Study identifies three priority grade separations on critical urban freight corridors: McKinley Road (Corona), Jurupa Road (Jurupa Valley), and Third Street (Riverside). At the time, the Jurupa Road grade separation had no funding identified. A few months after the 2017 Companion Study was completed, the California State Legislature passed Senate Bill (SB) 132, providing $108.4 million to deliver the Jurupa Road Grade Separation project. SB 132 includes a statutory provision that the funds must be encumbered by June 30, 2023. The Commission has a history of providing discretionary funding to priority grade separation projects in the county. In 2001, the Commission approved a funding commitment to priority grade separation projects in Riverside County by providing a 10 percent local share match to the California Public Utilities Commission grade separation funding program. In 2007, the Commission committed to providing 25% of federal formula funds to priority grade separation projects. The Commission also approved Alameda Corridor East grade separation projects as eligible projects for 2009 Measure A Western County Economic Development funds. In the same year, Proposition 1B was approved by California voters which included a program to improve trade corridors which offered grade separation project funding. 1 Agenda Item 7 DISCUSSION: The County is the lead agency on the Jurupa Road Grade Separation project for the city of Jurupa Valley. Since SB 132’s passage in 2017, it has been working to deliver the project. Coordination with the Union Pacific Railroad has been challenging, particularly over the past 15 months during the COVID-19 pandemic. To keep the project moving forward, the County developed a phased approach to construction which allowed it to advertise the construction contract while still finalizing the design and right of way. On May 19, 2021, the County opened construction bids. The low bid is favorable and very close to the engineer’s estimate. Once the construction cost became known, the County developed an updated project cost estimate which indicates a funding shortfall of $25,000,000. On June 16, 2021, the County submitted a letter (Attachment 2) to the Commission regarding the shortfall and requested financial assistance to fully fund the project. Commission staff conducted an analysis of available fund types and determined that the only fund type eligible and available given the various project details and circumstances is MARA. Staff recommends programming $25 million of available MARA funds to fully fund the Jurupa Road Grade Separation project and entering into agreement 21-72-121-00 for purposes of providing funding for the project on a reimbursable basis. FISCAL IMPACT: The County will prioritize expenditure of the SB 132 funds, after which any additional funding needed to complete the project, up to $25 million, would be paid for with available MARA funds on a reimbursable basis. The Commission will retain any cost savings on the project. Financial Information In Fiscal Year Budget: N/A Year: FY 2022/23 Amount: $25,000,000 Source of Funds: 2009 Measure A Western County Regional Arterial funds Budget Adjustment: N/A GL/Project Accounting No.: 663041 81301 00000 0000 266 31 81301 Fiscal Procedures Approved: Date: 06/17/2021 Attachments: 1) Project Location Map 2) June 16, 2021 Letter from County of Riverside 2 3 ATTACHMENT 1 BLANK 4 ATTACHMENT 2 5 0 ucalyptus Ave 0.75 miles © Buffalo Wild Wings 68th St 64th St 4 C a E Francis St Philacelphia Ave Pizza Pirates Q © =mew Jurupa Valley Sports Park 60th St MIRA LOMA 63rd St „Dunes PvQ OGoose Creek Golf Club 0 Savi Ranch Park a. Seth St c 60th St 0 Santa Ana River Reg Park rri m Southridge Park() Southridge Village Open Space Reserve 101,43Rd q 0. 61st St JURUPA Limonite Ave VALLEY 64th Sr 6501 51 • Galena St 63rd St Agricultural sr Park ©Rutland Park v 0 Oak Quarry Golf Club won. Rd 0 Centennial m' Sports Park 0 Limonite Ave Clay Park Ca5 GQnstd skvvw" pd v Kessler Park 716 St Jensen Alva, West Riverside(Hist©nc Memorial Park Peseta pr Ave L mere`'' Jurupa Hills Country Club Airr , AGENDA ITEM 8 Agenda Item 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: June 28, 2021 TO: Western Riverside County Programs and Projects Committee FROM: Jenny Chan, Planning and Programming Manager THROUGH: Jillian Guizado, Planning and Programming Director SUBJECT: Agreement for Transit-Oriented Communities Strategic Plan STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 21-65-043-00 with Stantec Consulting Services, Inc. to develop a transit-oriented communities strategic plan for an 18-month base period with two additional six-month optional terms in an amount of $924,224, plus a contingency amount of $25,776, for a total amount not to exceed $950,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreement, including option terms, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to approve contingency work up to the total not to exceed amount as required for these services; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: In June 2020, the Federal Transit Administration awarded the Commission $700,000 in grant funding, with a $250,000 local match commitment, to develop the Transit-Oriented Communities Strategic Plan (TOC Strategic Plan) as part of the Fiscal Year 2019 Pilot Program for Transit- Oriented Development Planning grant program. The grant enables the Commission to work with community members, private developers and staff from the cities of Perris, Moreno Valley, Riverside, and Corona and the March Joint Powers Authority (March JPA) to create a strategic plan for transit-oriented development (TOD) within the five-mile radius of the eight 91/Perris Valley Line Metrolink stations in Riverside County. The TOC Strategic Plan seeks to reduce or eliminate impediments to TOD by identifying regulatory actions and funding strategies to facilitate TOCs. The plan will provide a regional planning framework that builds upon existing regional or local jurisdictions’ TOD-friendly planning efforts and provide guidance to accelerate public and private investment within the five-mile radius of each station. The goals of the plan are to support local economic development, increase Metrolink ridership, and decrease auto trips which improves local and regional traffic congestion. 6 Agenda Item 8 DISCUSSION: Key activities to be completed during the study include: - Prepare a Commuter Rail TOD Best Practices Memo specific to the Inland Empire. The memo will provide case studies and lessons learned regarding TOD projects, including recent housing developments at Riverside-La Sierra, Riverside Downtown, and Corona- North Main stations. - Develop station area profiles summarizing the existing conditions for the eight Metrolink stations. Profiles will include information such as: existing planning and development policy, land use, zoning, socio-economic trends, existing mobility options, and real estate market conditions. - Implement a robust multi-lingual public engagement plan to collect community and stakeholder feedback. - Evaluate and define station typology that is sensitive to community character and needs and market conditions. Develop policy recommendations surrounding zoning, density, housing, and first/last mile connections. - Identify short-, mid- and long-range actions that will remove development barriers and promote TOD and define the roles and responsibilities for the Commission, cities, and March JPA. - Update the Commission’s Joint Development Guidelines based on findings from the TOC Strategic Plan. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm and personnel and understanding and approach for a TOC Strategic Plan as set forth under the terms of Request for Proposals (RFP) No. 21-65-043-00. RFP No. 21-65-043-00 for the TOC Strategic Plan was released by staff on March 18, 2021. The RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 437 firms, 58 of which are located in Riverside County. Through the PlanetBids site, 53 firms downloaded the RFP and 3 of these firms are located in Riverside County. Staff responded to all questions submitted by potential proposers prior to the April 6, 2021 clarification deadline date. Seven firms – Dudek (Encinitas), Gruen Associates (Los Angeles), Hatch Associates Consultants, Inc. (Pittsburgh, PA), HDR Engineering, Inc. (Riverside), Perkins & Will (San Francisco), Stantec Consulting Services, Inc. (Los Angeles), and SWA (Laguna Beach) – submitted responsive proposals prior to the 2:00 p.m. submittal deadline on April 27, 2021. Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated and scored by an evaluation committee comprised of Commission, Riverside Transit Agency and city of Corona staff. 7 Agenda Item 8 Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee shortlisted and invited three firms to the interview phase of the evaluation and selection process. Interviews of the shortlisted firms – HDR Engineering, Inc., Perkins & Will, and Stantec Consulting Services, Inc. – were conducted on May 26, 2021. As a result of the completion of the evaluation process, the evaluation committee recommends contract award to Stantec Consulting Services, Inc. to develop the TOC Strategic Plan for an 18- month base period with two additional six-month optional terms to extend the agreement, as this firm earned the highest total evaluation score. A summary of the proposed costs submitted with the written proposals and the total evaluation score rankings following the final evaluation are summarized below: Firm Price Overall Ranking Stantec Consulting Services, Inc. $899,105 1 HDR Engineering, Inc. $903,247 2 Perkins & Will $901,634 3 Gruen Associates $790,963 4 Dudek $878,532 5 Hatch Associates Consultants, Inc. $892,074 6 SWA $906,009 7 The RFP issued by the Commission only intended to solicit public feedback through the establishment of a community advisory committee. However, Stantec’s proposal included additional outreach events for the greater community at large in a virtual environment. In light of the recent lifting of various health orders related to COVID-19, staff determined that a hybrid approach providing for both in person and virtual community outreach events would be the most accessible and beneficial for the project. To accommodate the revised approach for outreach, additional scope and budget were added to this task in negotiating the final agreement, including an optional outreach task. Accordingly, staff recommends the award of an agreement for the TOC Strategic Plan for an 18- month base period with two additional six-month optional terms to Stantec Consulting Services, Inc. for a total amount of $924,224, plus a contingency amount of $25,776, for a total amount not to exceed $950,000. The Commission’s standard form professional services agreement will be entered into with Stantec Consulting Services, Inc. subject to any changes approved by the Executive Director, pursuant to legal counsel review. Staff also recommends authorization for the Chair or Executive Director to finalize and execute the agreement, including option terms and contingency work for the TOC Strategic Plan. 8 Agenda Item 8 Next Steps Upon completion of the key activities previously listed, Commission staff will return to the Commission with a presentation of the completed TOC Strategic Plan. The presentation will include a description of the preferred TOC typology for each station as vetted by the community and stakeholders. Alongside the preferred TOC typology, staff will highlight the necessary policy changes that the Commission, cities, and March JPA would need to consider and adopt to achieve the preferred TOC typology. FISCAL IMPACT: This project has a budget of $950,000 for up to a thirty-month period. Funding for this project is comprised of a $700,000 grant from FTA. Local match of $250,000 is funded from State Transportation Improvement Program Planning, Programming and Monitoring (STIP PPM) funds. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2021/22 FY 2022/23+ Amount: $598,720 $351,280 Source of Funds: FTA FY 2019 Pilot Program for Transit- Oriented Development Planning and STIP PPM funds Budget Adjustment: No N/A GL/Project Accounting No.: 002326 81501 00000 0000 106 65 81501 Fiscal Procedures Approved: Date: 06/18/2021 Attachment: Draft Agreement No. 21-65-043-00 with Stantec Consulting Services, Inc. 9 1 Agreement No. 21-65-043-00 PROFESSIONAL SERVICES AGREEMENT FOR TRANSIT-ORIENTED COMMUNITIES STRATEGIC PLAN DEVELOPMENT PROFESSIONAL CONSULTING SERVICES (FTA FUNDED) WITH STANTEC CONSULTING SERVICES, INC. Parties and Date. This Agreement is made and entered into this ___ day of _______, 2021, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and STANTEC CONSULTING SERVICES, 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 under this Agreement in support of development of the Transit-Oriented Communities Strategic Plan (the “Project”) may be funds from the Federal Transit Administration (“FTA”). E. Consultant desires to perform and assume responsibility for the provision of certain professional planning, zoning, and outreach services for development of the Project, as required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing the foregoing services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and 10 2 expertise, and incidental and customary work necessary to fully and adequately supply the professional planning, zoning, and outreach services for development of the Transit- Oriented Communities Strategic Plan ("Services"). The Services are more fully set forth 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. Term. 2.1 This Agreement shall commence on the date first set forth above and shall continue in effect for eighteen months (18) months (“Term”). The Commission shall have the option, in its sole discretion, to extend the Term for two (2) additional six (6) months periods, with prior written notice to the Consultant. 2.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. 2.3 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. 3. 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. 4. Consultant's Representative. Consultant hereby designates Adam Maleitzke 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. 11 3 5. 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: Adam Maleitzke, Project Manager; Andrew Irvine, Principal-In-Charge; Rhonda Bell, Existing Conditions Lead; Craig Sklenar, Station Area Visioning and TOC Strategies Lead; Craig Lewis, Implementation Lead. 6. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. Any employee of Consultant or its sub-consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 7. 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. 12 4 8. Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the schedule for the Services set forth in Exhibit “B” (“Schedule of Services”). 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. 8.1 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. 8.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, 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. 8.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 9. Delay in Performance. 9.1 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. 9.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 9.1, 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. 13 5 9.3 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. 10. 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 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. 11. 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. 12. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator and Caltrans to inspect or review Consultant's work in progress at any reasonable time. 13. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 14. 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 14 6 must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 15. Fees and Payment. 15.1 Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The overhead rates included in the attached Exhibit “C” shall be fixed for the term of this Agreement, and shall not be subject to adjustment, unless required by the applicable funding source. The total compensation shall not exceed Nine Hundred Twenty-Four Thousand Six Hundred Seventy-Four Dollars ($924,674) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 15.2 Any payments to Consultant for travel and subsistence expenses must be authorized in writing by Commission, and 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. 15.3 When milestone cost estimates are included in Exhibit “C” Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 15.4 Payments shall be made monthly in arrears based on Services provided and allowable incurred costs. If Consultant fails to submit the required deliverable items according to the Schedule of Services, Commission shall have the right to delay the applicable payment or terminate this Agreement in accordance with the termination provisions of this Agreement. 15.5 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 15 7 15.6 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 15.7 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 15.8 All subcontracts in excess of $25,000 shall contain the above provisions. 16. Disputes. 16.1 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. 16.2 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. 16.3 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. 17. Termination. 17.1 Commission reserves the right to terminate this Agreement for any or no reason, in whole or in part, upon written notice to Consultant stating the effective date of termination. 17.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner 16 8 herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 17.3 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 17.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 17.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 17.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 17.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 17.8 Consultant may not terminate this Agreement except for cause. 18. Cost Principles and Administrative Requirements. 18.1 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. 18.2 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. 17 9 18.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 18.4 All subcontracts in excess of $25,000 shall contain the above provisions. 19. Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of this Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and Commission shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of this Agreement, including but not limited to, the costs of administering this Agreement. All parties shall make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under this Agreement. The State, State Auditor, Commission, or any duly authorized representative of the State or Federal Government shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to this Agreement and, if applicable, 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. 20. Audit Review Procedures. 20.1 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. 20.2 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 will be submitted in writing. 20.3 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. 21. Subcontracting. 18 10 21.1 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. 21.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 21.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 21.4 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. 21.5 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). 21.6 Exhibit “C” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. 22. Equipment Purchase 22.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 22.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 22.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such 19 11 equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 22.4 All subcontracts in excess $25,000 shall contain the above provisions. 23. Labor Code Requirements. 23.1 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. 23.2 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. 20 12 23.3 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. 23.4 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. 24. Ownership of Materials/Confidentiality. 24.1 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”). 21 13 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. 24.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property 22 14 otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 24.3 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. 24.4 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. 25. Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, Caltrans and their directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, inverse condemnation, and any claims related to property acquisition and relocation rules or failure to detect or abate hazardous materials, which are brought by a third party, and which , in any manner arise out of or are incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, Caltrans, and their directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission, Caltrans or their directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission, Caltrans and their directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to 23 15 indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant’s obligations as set forth in this Section 28 shall survive expiration or termination of this Agreement. 26. Insurance. 26.1 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. 26.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident. 26.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following 24 16 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 $2,000,000 per claim. Notwithstanding the foregoing, the Commission may consider written requests to lower or dispense with the errors and omissions liability insurance requirement contained in this Section for certain subconsultants of Consultant, on a case-by-case basis, depending on the nature and scope of the Services to be provided by the subconsultant. Approval of such request shall be in writing, signed by the Commission’s Contract Administrator. 26.4 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. 26.5 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 25 17 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. (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 26 18 (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 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. 26.6 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 27 19 shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 26.7 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. 26.8 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. 26.9 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. 26.10 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. 27. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant 28 20 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. 28. Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be performed pursuant to a separate agreement between the parties. Notwithstanding the foregoing, the Commission’s Executive Director may make a change to the Agreement, 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 4220.1F. (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. 29. Prohibited Interests. 29.1 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. 29.2 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 29 21 the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 29.3 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. 29.4 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. 29.5 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to terminate this Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the Agreement price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 29.6 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 30 22 Agreement, the Consultant shall complete and submit the attached Exhibit "G", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 29.7 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. 30. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 31. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 32. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 33. Disputes; Attorneys' Fees. 33.1 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. 33.2. 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. 31 23 34. Time of Essence. Time is of the essence for each and every provision of this Agreement. 35. 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. 36. Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: Riverside County Stantec Consulting Services, Inc. Transportation Commission 801 S. Figueroa Street, Ste. 300 4080 Lemon Street, 3rd Floor Los Angeles, CA 90017 Riverside, CA 92501 Attn: Adam Maleitzke 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. 37. 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. 38. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 39. 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. 40. 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. 41. Provisions Applicable When State Funds or Federal Funds Are Involved. Since funding for the Services shall be provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “E” (FTA Requirements) attached hereto and incorporated herein by reference. 42. 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, 32 24 the indemnification and confidentiality obligations, shall survive any such expiration or termination. 43. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 44. 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. 45. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 46. Signatures. A manually signed copy of this Agreement which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement for all purposes. This Agreement may be signed using an electronic signature. 47. Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 48. 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. 49. 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. 50. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 51. 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] 33 25 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT FOR TRANSIT-ORIENTED COMMUNITIES STRATEGIC PLAN DEVELOPMENT PROFESSIONAL CONSULTING SERVICES (FTA FUNDED) WITH STANTEC CONSULTING SERVICES, INC. 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 STANTEC CONSULTING SERVICES, INC. By: Signature Name Title ATTEST: By: Its: __________________________ * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to RCTC. 34 Exhibit A EXHIBIT "A" STATEMENT OF SERVICES 35 DR A F T ISSUESSTANTEC’S APPROACH Prepare joint development guidelines and policy framework that are clear and relevant to developers and help to streamline the delivery of development projects on RCTC land and implement TOCs • Facilitate an implementation-focused approach that relies heavily on outreach and coordination, including continued developer engagement, research, and coordination with local jurisdictions to implement joint development and TOC • Propose specific, near-term actions for RCTC and partner jurisdictions as part of a road map for mobility, land use, and placemaking improvements that begin to change the development trajectory for stations that are best positioned for TOCs in the next 5-10 years Develop a corridor-wide vision and station-specific TOC strategies that play to each station's strengths and fosters collaboration - not competition - among jurisdictions, community groups, and other stakeholders along the Metrolink 91/Perris Valley Line corridor • Foster a corridor-wide approach that identifies unique opportunities present in each station area through the use of typologies, work directly with each jurisdiction to understand existing efforts, visions, and develop a corridor-wide vision with other partners • Utilize a station-specific approach for the TOC Typologies that builds on efforts already working in the area, and develops targeted strategies to promote development in the eastern part of the Riverside/Perris Valley Metrolink corridors • Identify of key infrastructure, parking, and other projects that are needed to reposition less TOC-friendly areas and make them attractive to investment • Establish a corridor-wide board to share lessons learned, resources, and coordinate marketing efforts to attract investment Facilitate innovative virtual and in-person public involvement to allow all stakeholders to meaningfully participate in the process • Leverage Stantec and outreach lead KPA's extensive network, developed through working with RCTC and key stakeholders in Riverside County, to invite a wide variety of participants into the planning process • Utilize innovative virtual engagement platforms developed by the Stantec team, including immersive virtual open house sessions, virtual town halls, and virtual design charrettes as dictated by COVID-19 guidance • Aim to hold in-person design workshops later in the process that enable participants who may not have access to high-speed broadband to also participate in the process. WORK PLAN Task 1—Project Management 1.1 PROJECT MANAGEMENT + QUALITY ASSURANCE Our reputation is built around integrity and a commitment to doing things right. This commitment shapes everything we do from our health and safety culture to our professional excellence in project work, to our responsibilities on projects within our communities. Stantec’s Project Management (PM) Framework contains a mandatory list of ten tasks to be complied with on all projects or contracts as required by our ISO9001:2008 registered Quality Management System. Specifically, the PM Framework mandates the following quality assurance processes be completed for all projects or contract assignments: The Project Manager and ‘professionals-of-record’ (or ‘professionals with responsible charge’) are to conduct and document in writing a final quality assurance review of final documents prior to issuance. Where applicable, conduct multi-disciplinary coordination reviews between disciplines and sub-consultants. Keep completed and signed-off checklists, document sets, etc., in project files. Final documents must have an independent review conducted and signed by the independent reviewer prior to issuance. This practice guide provides additional guidance on the steps and documentation required to comply with these requirements. Stantec will work with RCTC to incorporate these protocols into a Project Management Plan, as well as the project charter, schedule, potential issues and mitigation strategies, project management meetings, and communication protocols. 1.2 DATA REQUEST MEMORANDUM Stantec will issue a data request memorandum for discussion during the kickoff meeting. We have found that one of the major challenges for a project is not collecting data early enough in the process to be able to quickly develop the existing conditions analysis. We have access to a wide variety of regional and national data sources, but we will need to supplement our analysis with parcel data, ridership data, existing plans, policies and ordinances, existing first/last mile infrastructure, traffic counts, and information on RCTC-owned properties, among others. We anticipate working with RCTC to disseminate the request to key partners, including Metrolink, SCAG, corridor jurisdictions and others as needed. 1.3 KICK-OFF MEETING Upon contract execution, the Stantec team will schedule a call to plan for the kickoff meeting. Topics to be discussed include meeting participants, agenda, branding and outreach strategy, and information requests such as the Data Request Memorandum. The kickoff meeting will be held either virtually using Mural, an interactive collaboration platform, or in-person, depending on State and local COVID-19 health regulations at the time. Stantec will prepare meeting agendas, materials, and follow up shortly after the kickoff meeting with meeting notes. 1.4 MONTHLY COORDINATION MEETINGS, INVOICING, + PROGRESS REPORTS We will work with RCTC to schedule monthly project management and coordination meetings to discuss completed and upcoming milestones and address project issues. We propose a total of 18 monthly coordination calls, half of which will be held in-person. In-person meetings will be scheduled during days when other in-person events are held, such as the Development Advisory Committee and Community Advisory Committee. Agendas and meeting minutes will be prepared by Stantec before and after each meeting. Prior to the coordination meetings, Stantec will issue monthly invoices per the schedule identified in the executed contract, along with a comprehensive progress report that details progress towards meeting key milestones, solutions to address problems that may arise during the project, a preview of near-term milestones, and other items. For progress meetings and other virtual engagement, stantec will utilize mural, an intuitive tool we have used successfully for other projects to promote collaboration and brainstorming. STANTEC'S URBAN PLACES22 of 3536 DR A F T RCTC TOC STRATEGIC PLAN Task 2—Existing Conditions 2.1 STATION AREA PROFILES Stantec and its key team members HR&A and KPA have all worked on recent projects for RCTC and in Riverside County, with a focus on cultivating transit-oriented communities and improving mobility. Recent projects including the SCAG HQTA program, which included a station area plan for the Downtown Riverside station that was developed in 2018 by project manager Adam Maleitzke, demonstrate our on-the-ground knowledge of the challenges facing Riverside County as RCTC and local jurisdictions seek to accommodate anticipated growth in a way that improves livability, affordability, and offers a variety of amenities to residents and workers. Through our work, we have observed a number of key differences among the eight 91 Line/Perris Valley stations that will be evaluated through the TOC Strategic Plan. We will work with RCTC to build upon our team’s collective understanding of these issues to identify challenges including land use and regulatory barriers to TOC, historic low-density, auto-oriented development patterns, gaps in the pedestrian and bicyclist network, and current economic disincentives to creating transit-oriented communities. Given our existing base of knowledge, the Stantec team can quickly and efficiently conduct a “deep-dive” into these issues that will inform public outreach and messaging and the development of the TOC typologies. For each station area, we will prepare in-depth memoranda to understand current conditions along the corridor, organized around the topics of land use and TOC, mobility, infrastructure, and public realm. With this information, we will prepare a SWOT or barriers and opportunities analysis to identify each station area’s strengths and weaknesses, as well as readiness for transit-oriented communities. The memoranda will be summarized in a series of eight (8) concise, yet highly illustrative station area profiles using high- quality maps, imagery, graphics, tables, and other visual devices. The goal is to provide an easily- understood snapshot of each station area that can be clearly communicated to the general public during virtual and in-person engagement sessions. Memoranda may be appended to the station profiles, and ultimately the Strategic Plan, to allow stakeholders to explore issues in further detail if they so choose. Stantec will work with RCTC and the TAC to develop the format, topics, and content of the final station area profiles, but we anticipate the following sections will be included: 1. Station Summary 2. Planning and Policy 3. Precedents and Best Practices 4. Land Use and TOC 5. Socio-Economic Profile 6. Mobility 7. Infrastructure 8. Public Realm 9. SWOT Analysis More information on the content of the station area profiles is described below. 2.1.1 LAND USE + TOC Land use and regulatory provisions are often a significant barrier for the development of TOCs. Existing plans and policies often include policies that mandate high parking requirements, propose low- density building envelopes and auto-oriented uses, and artificially limit the amount of development that is permitted on a particular site. Upon receipt of information solicited through the data request memorandum, Stantec will evaluate General Plans, Specific Plans, zoning ordinances, GIS information, and other reports and data. Specific topics that will be explored include: • Major Activity Centers • Existing Land Use and Zoning • Existing policies related to land use, mobility, and infrastructure • Development Patterns and Typical Building Products • Character and form • Density and Massing • Parking LRT station area parking, stormwater, and public realm concepts by Adam Maleitzke, prior to joining Stantec. 23 of 3537 DR A F T 2.1.2 MOBILITY, INFRASTRUCTURE, AND PUBLIC REALM Along the 91/Perris Valley Line Corridors, there is a strong desire for transit not only to spur development, but to create those centers that a community can organize itself around. At its best, transit orients; it provides a center around which people and places congregate. With high quality and visible transit coming—now is the opportunity to leverage how transit’s orientation will create connected places that balances the needs of current residents, new development opportunity, and continued economic vitality. Successful TOD stations extend well into the community. While transit provides mobility for people and access to places, it is the stations that are the front door. Transit historically connects neighborhood centers and concentrations of destinations. These neighborhood centers then MUST be self-sustaining from a mobility perspective, functioning as the multimodal center of each sub-community, while directly connecting them to other corridor cities and the greater Los Angeles region. For this effort, the Stantec team will develop multimodal connectivity plans for the Station areas. These will ensure that stations are linked to the surrounding neighborhood and adjacent transportation network in seamless ways. To accomplish this, our team will review ongoing design work and examine existing desire lines and connectivity by mode at each station areas. As part of initial data collection, we will capture all relevant existing transportation and public realm assets as well as look at existing plans, proposed network improvements and development already underway. We will organize the latest transportation observations and data relevant to the project’s goals, including: • Pedestrian connections showing where people can comfortably walk or bike to the station today and to high-ridership bus stop locations • Safety data showing concentrations of crashes using readily-available data • Experiential data showing where potential barriers such as long or vacant blocks, poorly lit areas or traffic counts change along the corridor and its cross streets • Crossing bus service, stops and ridership, including amenities • Bicycle connections and parking showing regional paths and local on-street facilities, as well as bicycle share or large bicycle parking facilities • How well-utilized is on-(and off-) street parking— particularly the lots owned by RCTC, and is there a potential to use that space for something else? Stantec's Smart Mobility team develops context-specific solutions to promote walking, cycling, and the use of new technologies STANTEC'S URBAN PLACES24 of 3538 DR A F T RCTC TOC STRATEGIC PLAN • Travel forecast data from RCTC's travel demand model (RivTAM/RivCOM) • Existing parks and open space • Physical conditions of key mobility corridors • General character and condition of building stock • Others, as identified by RCTC and the committees Our team will collect and map this information for each station area level to help inform the process. We believe in the importance of moving this information out of the conventional language of data and analysis and into a broader discussion of transportation and integration opportunities and trade-offs. From this, we will perform a gap analysis to identify which station areas lack sufficient connectivity and where that may hamper development. Defined station access typologies will inform this analysis. The “area of influence” of stations will vary based on local land use, area density, existing and potential connectivity, gaps, barriers and other factors. This connectivity is the glue that holds the transit and land use factors together to create a more balanced and accessible place at each station maximizing benefits of each. 2.1.3 SOCIO-ECONOMIC PROFILE AND REAL ESTATE MARKET SCAN Based on previous work experience in the cities of Riverside, Corona, and other municipalities, Stantec team member HR&A is familiar with real estate markets throughout the Inland Empire. HR&A will conduct a real estate market scan for sub-market areas that will encompass the entirety of the 8 station areas referenced in the RFP. An analysis of larger sub-markets that surround station areas is useful for understanding the market forces, trends, and conditions that will influence the development potential within the station areas. Further, other real estate development activity that occurs within a sub-market is likely to compete with any station area developments for prospective users, tenants, or homeowners. Using proprietary data sources, such as CoStar and REIS, HR&A will evaluate each sub-market area’s current performance of key land uses, including multi-family residential, retail, industrial, and office uses. Findings will be synthesized to highlight the relative performance of each key land use as a comparison with each of the other sub-market areas. To develop an “on-the-ground” understanding of real estate market performance, opportunities, and challenges, HR&A will conduct up to twenty (20) targeted, one-on-one interviews with local businesses (or business organizations), community organizations, developers, and brokers. To begin understanding the most pertinent opportunities and constraints of each station area, HR&A will provide a high-level summary of key demographic, socioeconomic, and real estate market indicators for an area encompassing a half-mile radius of each of the eight (8) station areas. Indicators to be evaluated include median household income, residential owner/renter split, age, average home price, jobs per resident, and others. HR&A will also disaggregate metrics to better understand displacement risks and the economic inclusion by race. Finally, HR&A summarize lessons learned in an analysis of each station area’s strengths, weaknesses, opportunities, and threats. Stantec will work with HR&A to incorporate the summary into the overall station area profile. 2.2 BEST PRACTICES REPORT Stantec and HR&A regularly review transit-oriented community and transit-oriented development best practices across Southern California and the US. We have explored the challenges that arise when developing TOD projects in the Inland Empire through our work on the SCAG/SBCTA ARRIVE Corridor and SCAG HQTA Analysis projects. For the HQTA Analysis project, our project manager Adam Maleitzke and Judith Taylor of HR&A collectively developed in-depth profiles of commuter station areas throughout the US and Canada, as well as transit-oriented development profiles of dozens of built projects. Each profile includes critical metrics and information such as floor-area ratio (FAR), number of units and square footage of commercial retail and office space, parking provided, innovative mobility solutions, public amenities, and partnerships and key funding sources. Paired with desktop research, transit agency outreach, and developer interviews, we will develop a memorandum that will provide up to five (5) case studies and a summary of lessons learned that will cover elements like zoning, multimodal standards, affordable housing, gentrification mitigation, innovative financing, first/last mile connections, value capture strategies, and development of opportunity zones. The carefully-selected case studies will be tailored to the current conditions of the Inland Empire as identified through the development of station area profiles. In addition to the broader case studies, the memo will further include an analysis of TOD effectiveness of recent housing developments at Riverside-La Sierra, Riverside-Downtown and Corona- North Main areas. 25 of 3539 DR A F T 2.3 RCTC JOINT DEVELOPMENT POLICY REVIEW HR&A is supporting LA Metro, the Orange County Transportation Authority, and the Santa Clara Valley Transportation Authority in their creation and implementation of Joint Development policies. Building on this expertise, HR&A will consult external and internal (HR&A) resources to scan precedent joint development guidelines and effective partnership approaches from transportation or other public agencies for public- private development projects. The HR&A team will conduct desktop research and interviews with peer transit agencies for a selected set of precedents. Three precedents will be selected, with agreement from RCTC. The precedent research screening criteria will particularly focus on 1) the relevance of peer transit agency portfolio sites and real estate market conditions to RCTC; 2) the motivation/needs for the public agency to engage private developer partner(s) (i.e. value maximization, community benefits, capacity augmentation, etc.); and 3) specific examples of effective joint development policies and development partnership models applied at specific precedent sites, with the goal to provide the best practices for RCTC to develop portfolio- wide Joint Development Guidelines. Precedent research will include an evaluation of peer transit agencies’ joint development policies, with particular attention to their approach to stakeholder coordination, crafting site-specific objectives, and developer outreach processes. Best practices will also include a thorough review, and outreach addressing FTA expectations and goals around joint development to ensure RCTC’s overall joint development policies and objectives position RCTC for maximum FTA support. The lessons learned will directly inform recommendation for RCTC Joint Development Guidelines in Task 5.2. Task 3—Public Engagement Stantec team member Katherine Padilla Associates (KPA) will leverage their deep experience working with communities in Riverside County, including RCTC and local jurisdictions, to facilitate a robust and targeted community and stakeholder outreach process. Our team’s approach is based on the twin pillars of authentic stakeholder engagement combined with social marketing principles. We hold, that in working with RCTC, it is the Stantec team’s responsibility to first and foremost determine the needs, wants and unique interests of communities surrounding each of the eight station areas and to deliver solutions that preserve the best of the communities and enhances their well-being, while allowing the benefits of TOC strategies to take root and flourish. Our approach emphasizes two-way communication: 1) we conduct analysis and provide information about challenges, possibilities, opportunities and 2) most importantly, we listen and provide space for all participants to share their opinions. Relevant projects that KPA has helped advance through strategic community relations include: • RCTC Strategic Assessment • Metro East San Fernando Valley Transit Corridor, which began as an AA followed by EIS/EIR • Metro East San Fernando Valley Light Rail Project First-Last Mile Plan • Metro Transit Supportive Communities Toolkit • LA County Transit Oriented District Toolkit, which involved the community East LA as a pilot study • Metro East San Fernando Valley Transit Corridor, which began as an AA followed by EIS/EIR • Metro East San Fernando Valley Light Rail Project First-Last Mile Plan • Metro Transit Supportive Communities Toolkit • LA County Transit Oriented District Toolkit, which involved the East LA community as a pilot study Land use map and public realm plan prepared for the Northland Needham Street Master Plan, which successfully converts an aging suburban strip mall into walkable, transit-supportive development. STANTEC'S URBAN PLACES26 of 3540 DR A F T RCTC TOC STRATEGIC PLAN • LA County Lambert Road Station First-Last Mile Plan (for the proposed L Line) • LA County Norwalk Blvd Station First Last Mile Plan (for the proposed L Line) • RCTC Strategic Assessment KPA’s diverse team has extensive experience working with community members from all walks of life, from elected officials to people whose life experience may not include civic engagement. We offer bilingual staff to ensure all public notices and outreach will be provided in both English and culturally sensitive Spanish, and other languages as needed. Staff can provide translation of all aspects of project reports, meeting materials, social media and presentations. Our ability to communicate fluidly in Spanish and English, and visually through compelling graphic design, will be helpful especially for facilitating productive Community Advisory Committee (CAC) meetings and community engagement. Lately, we have successfully conducted a series of virtual stakeholder group interviews in Spanish for the SCAG Wilmington Freight Mitigation Study. In terms of establishing and facilitating the Technical Advisory Committee (TAC) and Developers Advisory Committee (DAC), our team will draw on our understanding of how issues of land use, funding, and other policies can influence TOC, ATP and first/last mile planning. We use advanced facilitation and mediation skills to develop innovative solutions and avoid potential blind spots. We blend fresh ideas with time-tested expertise in consensus building and conflict resolution to strategically resolve complex, multi-stakeholder, multi-agency challenges. Even when in-person meetings are deemed safe, we expect to continue to provide online meetings to allow stakeholders to engage on projects in the way that’s most convenient for them and will encourage high participation in every TAC, DAC, and CAC meeting. Stantec has the capability to develop a rich, interactive platform for virtual open houses, which will supplement the in-person workshops and stakeholder meetings that will be held as State and local COVID-19 regulations permit. Stantec’s virtual engagement platform has been used notably for planning projects throughout the United States and Canada, including Lebanon, TN, modeled after in-person meetings through project boards, interactive surveys, pre- recorded videos, and other graphically-rich content. As needed, we will take a hybrid approach that will enable community members to attend meetings in community centers with large screens set up for viewing, especially for those with no computer access in their homes. We will meet community members where they’re at, allow for feedback loops at key project points and provide equitable solutions for public engagement, including in-person community workshops when possible. TASK 3.1 PREPARE A COMMUNITY ENGAGEMENT PLAN KPA will develop a Community Engagement Plan tailored for each of the eight station areas to engage stakeholders in the planning process. We will begin by conducting a stakeholder analysis for each of the transit areas, identifying potential DAC and CAC members and other key stakeholders as well as targeted engagement strategies. Outreach and engagement materials will be developed in English, in Spanish and other languages as needed. We will submit a Draft Plan for review and comment, and Final Plan for staff approval, prior to implementation. Design workshop for the county of Los Angeles TOD Design Guidelines project in East LA, facilitated by team member KPA and project manager Adam Maleitzke, prior to joining Stantec. 27 of 3541 DR A F T 3.2 TECHNICAL ADVISORY COMMITTEE (TAC) Stantec and KPA will assist RCTC to form (1) Technical Advisory Committee drawn from each of the affected cities and relevant agencies, including the JPA, to provide input on land use policies required for a comprehensive TOC corridor approach. In its advisory role, the TAC would also receive and consider DAC and CAC input. For the purposes of this budget, it is assumed that four (4) TAC meetings will be held. 3.3 DEVELOPER ADVISORY COMMITTEE (DAC) Stantec and KPA will assist RCTC to form two (2) Developer Advisory Committees, divided into two regions, to advise and provide perspectives on current barriers, proposed policy changes and financial incentives. We will also assist with organizing meetings, distributing meeting notifications, assisting with agendas and presentation. KPA staff will attend the meetings and provide meeting minutes. For the purposes of this budget, it is assumed that two (2) of two DACs meetings will be held, and that they will be virtual. Assume there will be four (2) meetings total. 3.4 COMMUNITY ADVISORY COMMITTEES Stantec and KPA will work with RCTC staff to establish four (4) Community Advisory Committees grouped by geographic areas to explore issues and opportunities for the eight station areas. KPA will assist the project team in recruiting members, including producing invitation letters/emails, with background info about the Strategic Plan and its objectives as well as roles and responsibilities of the CAC. For example, for the CAC to provide input most successfully we may suggest that two underlying principles be understood. The first is that the CAC is not intended to be group decision-makers who reach consensus, rather they are a forum to deepen understanding of the issues and to grasp the context and implications of choices; and secondly, that the value of technical knowledge be recognized and respected in the process. We further suggest that the roles and responsibilities of the CAC may include: Provide input to staff, technical team, and the TAC; represent their communities’ interests as much as possible; provide accurate information to other stakeholders; seek balance between community vision and values with technical challenges and economic constraints. For the purposes of this budget, it is assumed that there will be three (3) meetings of each of the four (4) CAC groups for twelve (12) meetings total. TASK 3.5 HYBRID OPEN HOUSE To gather input from the community-at-large, with the team, Stantec will plan and host one in-person (1) Open House to gather input from each of the eight project areas. The Open House will offer break-out sessions/on-line spaces for each of the eight areas. Attendees will have the opportunity to learn about the shared TOC goals, as well as provide input into their unique communities ‘ challenges and opportunities. KPA will develop positive, culturally sensitive branding and key messages to emphasize benefits that matter to the communities. KPA will take guidance from the CACs to develop a shared vision and unique aspects that we can promote in our messaging. As a leave- behind for those who are not able to attend the live virtual open house, Stantec will post interactive boards to our online 3D Vista Platform. One (1) 3D Vista open house will be posted following the facilitated virtual open house meeting. 3.6 IN-PERSON DESIGN WORKSHOPS OR”HYBRID” WORKSHOPS When safe, with the team, KPA will plan and organize three (3) in-person design workshops—one for each Virtual open house using the 3D Vista Platform. STANTEC'S URBAN PLACES28 of 3542 DR A F T RCTC TOC STRATEGIC PLAN major section of the corridor—to be held in local community gathering spaces. It is assumed the content will be the same at all three meetings. These meetings can also be held as a “hybrid,” with large screens set up within a public space, such as local community center, to provide convenient virtual workshops while accommodating those who do not have computer access in their homes. Additionally, up to three (3) 3D Vista open house platforms will be developed (see Task 3.5 for more information); one platform will be developed for each major section of the corridor. This will allow participants to engage with the in-person design workshop content on their own. KPA will work with CAC members and local advocacy groups to publicize the TOC Strategic Plan and engage CBOs to increase participation in workshops. KPA recently established a model of CBO partnership with two community-based organizations in our landmark project, the Metro East San Fernando Valley Light Rail Project, EIS/EIR and First-Last Mile Plan. 3.7 POP-UP EVENTS Following the first hybrid open house event, Stantec and KPA will organize and staff two (2) pop-up events at local festivals, fairs, or other public events as determined by RCTC and its community partners. Staff will provide bi-lingual (English/Spanish) translation and will answer questions about the vision, goals, and process. Visitors will be invited to complete an online survey, which will be developed by Stantec and KPA using SurveyMonkey or a similar service. 3.8 MAILERS + COLLATERAL MATERIALS KPA will develop distinctive branding, images, tagline, key messages to support the social marketing aspects necessary to build community understanding of the TOC Strategic Plan and why it matters. We will create bi-lingual mailers and collateral materials, and provide bi-lingual, English/Spanish text, and other languages as needed, and graphic design of eight (8) mailers and two (2) fact sheets, especially to be distributed electronically. All materials will be submitted for approval prior to distribution. 3.9 SOCIAL MEDIA, WEBSITE, + PR KPA will provide draft and final versions of up to six (6) press releases (6), four (4) op-eds, and up to 50 social media messages in English and Spanish. As directed, KPA will work with RCTC’s Public Information Director to determine distribution protocol. KPA will then distribute as directed. KPA will contact 30 community- based organizations and cities to ask for their assistance in posting the messages to their websites, social media sites, and other channels of distribution. KPA will develop a distinctive project webpage, assumed to link to RCTC’s website, and will provide content for up to eight (8) pages. KPA will also purchase advertising for social media posts. 3.10 FINAL OUTREACH SUMMARY KPA will provide a written summary of all engagement activities and the community input provided, key themes and implications, as well as photos of events. 3.99 OPTIONAL TASK: SECOND HYBRID OPEN HOUSE Upon authorization to proceed by RCTC, Stantec and KPA will host a second hybrid open house following the release of the Preferred TOC Typology. See Task 3.5 for additional information on the activities included with this optional event. Task 4—Visioning 4.1 VISION, GOALS, + OBJECTIVES (MEMO) In collaboration with RCTC and the committees, the Stantec team will develop a vision statement, goals and objectives that would apply corridor-wide. As with all planning strategies a vision statement is meant to be broad, aspirational and succinct, with goals and objectives providing actions and key performance indicators. Goals and Objectives for this project might include station area specific direction based on unique parameters. Development of these important visioning elements will be formed during the existing conditions and kickoff conversation phases of the project. The agreement to the vision, goals and objectives by RCTC and the committees will be key to overall visioning process, as they will serve as our guideposts and every aspect will be evaluated as to how the decisions made Our design charrettes build community support. Project manager Adam Maleitzke (here); Implementation lead, Craig Lewis (top middle) 29 of 3543 DR A F T are meeting or supporting the vision, goals and objectives. 4.2 TOC ALTERNATIVES The Stantec team will develop alternatives for each station area that are rooted in station profiles, best practices, and a comprehensive engagement program. The alternatives will be vetted by RCTC, local jurisdictions, the advisory committees, and the public through the virtual and in-person outreach events described in Task 3. We firmly believe that in order to catalyze transit-oriented communities along the corridor, key stakeholders and the community need to review complete, succinct, graphically rich, and technically sound alternatives for each station area that will empower them to envision a new development paradigm. For each station area, we will develop up to two (2) typology alternatives, generally reflecting lower and higher- housing and job intensity development scenarios. Key supporting infrastructure will be identified at a conceptual level to support each vision, including utility and street upgrades, parking facilities and mobility hubs, public realm improvements, and amenities. Each alternative will include a high-level summary as well as a list of the impacts in order to evaluate trade-offs and understand preferences. Once the alternatives have been developed, Stantec will work with KPA to engage the public through virtual and in-person open houses, surveys, pop-up events, and other outreach activities. 4.3 READINESS REVIEW Based on our experience in the Inland Empire, Stantec and HR&A understand that urban models of development may not work in all station areas. Here, as in other projects, we look to encourage typologies that support transit ridership and are appropriate to creating active, energetic environments that reflect their communities. Financial feasibility analysis will help identify the market appropriate scale and type of development, as well as any required development incentives needed to catalyze this activity. To help inform the readiness review, HR&A will prepare “back of the envelope” corridor-wide pro forma residual land value analyses for up to five prototypical development concepts, selected in partnership with city staff and the Project Team. “Residual land value” is what a developer could theoretically afford to pay for land or a historic structure and earn a market- responsive return on investment from development. The analysis will include: estimated development costs including hard and soft development costs, developer profit and financing, key revenue components, including rents, sale prices and operating expenses. We will compare residual value estimates to prevailing STANTEC'S URBAN PLACES30 of 3544 DR A F T RCTC TOC STRATEGIC PLAN land values for the various land uses to determine feasibility thresholds at each of the eight (8) station areas. Understanding that real estate market appetite and community desires may diverge, HR&A will test a concise set of development program sensitivities to establish a common ground and/or set of trade-offs to achieve a set of financially feasible near-term development scenarios that achieve community desires. 4.4 PREFERRED TOC TYPOLOGY + RECOMMENDATIONS The final phase of the project will result in a set of station area vision plans—one unified vision for each of the eight (8) stations along the 91 and Perris Valley Metrolink corridors. The vision plans will be combined into a corridor-wide document. Each individual station area plan will be largely graphic and will be no more than 30 pages in length; additional information, including technical memoranda, will be contained in the appendix. Each plan will include at least the following: • A vision for each station area • Recommended land uses, mobility strategies, and first-last mile improvement projects • Specific recommendations and for city-initiated zoning changes • Recommendations and prioritization for pedestrian safety and other first/last mile connectivity projects • Identification of key redevelopment sites and potential redevelopment strategy for at least one site in each station area (see Task 4.3—readiness review). • Recommendations for other public investments, such as public space, streetscape, art, and more • Urban design vision and recommendations to support transit-oriented development and placemaking opportunities that help create vibrant walkable places to live and work • Goals and specific actions for ensuring housing affordability • Specific actions for supporting existing businesses and adding jobs along the corridor • Preparation of key conceptual design plans and street sections for roadways and infrastructure projects that can be used as the basis for grant applications Stantec will also, at a rough order of magnitude (ROM) level, provide an assessment of each station area plan, evaluating economic feasibility, ridership potential, job and population growth, GHG and VMT impacts, and other key metrics identified by RCTC and its partners. Task 5—Implementation 5.1 TOC POLICY FRAMEWORK From our extensive experience with all phases of the development process, including zoning, permitting and entitlements, and conceptual design through to construction of TOD projects, the Stantec team understands how to craft tailored implementation strategies that will catalyze context-specific and market-sensitive solutions throughout the corridor. For each station area typology developed in Stantec and HR&A will identify opportunities for and determine the relative priority of various actions and considerations that would help corridor cities leverage the transformative potential of this major transit infrastructure investment. For stations that currently contain thriving high value, job-creating industrial uses strategies will likely focus on opportunities to maintain these uses while integrating them with other transit- supportive land uses. For others with already successful regional destinations, the strategies will likely focus on opportunities to enhance connectivity to these destinations, extending the economic benefit of TOD to a wider geography. This will provide a framework for RCTC, individual municipalities, and other relevant stakeholders and community members to understand recommended implementation actions for each station area, while maintaining a corridor-wide perspective on how local actions will relate to corridor- wide goals. Stantec will work with RCTC to develop an outline for the Implementation Plan. At a minimum, we anticipate the plan will include policies, plans and initiatives, partnerships, major development opportunities, phasing, ROM cost estimates (for infrastructure and public realm projects), and funding and financing strategies. We anticipate that the following key topics will be covered in the Implementation Plan, along with Burlington Great Streets, Burlington VT 31 of 3545 DR A F T examples of potential recommendations that could be proposed for each station area: STRATEGIES BY DISCIPLINE FISCAL SUSTAINABILITY AND IMPLEMENTATION • Fiscal sustainability considerations • Identifying financing strategies including local fees, value capture, and other public financing tools • Governance opportunities and policy considerations LAND USE + ECONOMIC DEVELOPMENT • Affordable housing preservation, protection, and creation policies • Affordable housing preservation, protection, and creation policies • Equitable economic and workforce development strategies that mitigate displacement • Attracting green jobs and industries that could reduce pollution • Transit-supportive strategies that reduce the need for car-ownership • Model zoning codes and policies to promote transit-supportive development patterns • General Plan and Specific Plan updates PUBLIC REALM AND URBAN DESIGN • Streetscape improvements and corridor greening projects • Parks and open space projects • Development of design guidelines INFRASTRUCTURE • Key roadways to be upgraded • Wet and dry utility improvements MOBILITY STRATEGIES • Improvements to key existing corridors and new complete street improvement projects to facilitate pedestrian and bicyclist activity • Smart Mobility solutions including micro-mobility (scooter- and bike-share), transportation-network companies (TNC) and services such as Uber and Lyft, autonomous personal vehicles and public shuttles • The Stantec team has a library of code updates and parking management best practices that incent shared parking, right-size parking ratios, and parking use by time of day. We will use these tools to create a set of planning-level parking policy recommendations for the Activity Centers. Bridge Street Corridor Plan, Dublin, OH STANTEC'S URBAN PLACES32 of 3546 DR A F T RCTC TOC STRATEGIC PLAN 5.2 UPDATE TO RCTC JOINT DEVELOPMENT GUIDELINES Building from precedent research in Task 2.2, Stantec team member HR&A will utilize Developer Advisory Committee meetings to conduct preliminary market sounding, review potential joint development disposition and partnership strategies, and obtain candid input. Using this input, HR&A will develop specific Joint Development Strategy recommendations related to: • Requirements related to development program, parking, and community benefits • Phasing of development and related infrastructure components • Entitlements approach and alignment with local jurisdiction policies • Roles and responsibilities of RCTC, private developer, and other stakeholders • Funding sources or mechanisms for plan components • Disposition strategy and transaction framework • Developer selection approach • Key developer selection parameters • Allocation of responsibility financing, designing, and construction of the development plan’s components such as new or relocated transit facilities, access roadways, or traffic improvements. 5.3 DRAFT + FINAL TRANSIT ORIENTED COMMUNITIES STRATEGIC PLAN We propose an additive approach to this project, whereby the station area profiles, TOC typologies, best practices, and other previous work become part of a concise and compelling TOC Strategic Plan (Plan). Curated content from past final deliverables will be rolled up into the final plan, creating great efficiencies and allowing the Stantec team to develop thoughtful, comprehensive, and innovative solutions over the 18-month performance period. We are committed to high-quality graphics and graphic design principles, and our skilled design team will present complex information, strategies, and plans in a way that is informative, visionary, and easy to follow. We recognize that the Plan will be used by a wide variety of stakeholders, and we want to ensure that developers, residents and businesses, and elected and appointed officials alike are able to implement the plan over the next several years. Working with RCTC and the Technical Advisory Committee, our team will develop an outline and sample report templates for review and concurrence. Project branding, including layout, color, fonts, and graphics, will be carried into the Plan for consistency. We anticipate that the Plan may be organized into roughly 7 major sections, which could include: 1. Executive Summary 2. Station Area Profiles 3. Public Engagement Summary 4. Corridor-Wide TOC Vision 5. Station Area TOC Typologies 6. Implementation and Policy Framework Plan 7. Appendices We will deliver a draft of the Plan to RCTC by month 16, with ample time for RCTC and its partners to review and provide comments. These comments will be diligently tracked by the Stantec team and incorporated into a Final TOC Strategic Plan. Graphically-rich summary of proposed street, public realm, and infrastructure projects proposed for the downtown riverside station area, with complete street and TOD best practices. 33 of 3547 Exhibit B EXHIBIT "B" SCHEDULE OF SERVICES 48 DR A F T RCTC TOC STRATEGIC PLAN Months 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 TASK 1 PROJECT MANAGEMENT 1.1 Project Management and Quality Assurance 1.2 Data Request Memorandum 1.3 Kickoff Meeting 1.4 Coordination Meetings TASK 2 EXISTING CONDITIONS 2.1 Station Area Profiles 2.2 Best Practices Report 2.3 RCTC Joint Development Policy Review TASK 3 PUBLIC ENGAGEMENT 3.1 Prepare a Community Engagement Plan 3.2 Technical Advisory Committee (TAC) 3.3 Developer Advisory Committee (DAC) 3.4 Community Advisory Committees (CAC) 3.5 Hybrid Open House 3.6 Virtual/In Person Design Workshops (3) 3.7 Pop-up Events (2) 3.8 Mailers and Collateral Materials 3.9 Social Media, Website, PR 3.10 Final Outreach Report 3.99 OPTIONAL: Additional Hybrid Open House TASK 4 VISIONING 4.1 Vision, Goals, and Objectives 4.2 TOC Alternatives 4.3 Readiness Review 4.4 Preferred TOC Typology and Recommendations TASK 5 IMPLEMENTATION 5.1 TOC Policy Framework 5.2 Update to RCTC Joint Development Guidelines 5.3 Draft and Final TOC Strategic Plan SCHEDULE 1 2 3 4 5 6 LEGEND Task Duration Other Outreach Event Project kickoff # Milestone 1-6 Draft deliverable Final Deliverable 3D Vista Open House Hybrid Open House Pop Up Event 4 44 35 of 3549 Exhibit C EXHIBIT “C” COMPENSATION AND PAYMENT 50 DR A F T FIRM PROJECT TASKS/ROLE COST Stantec Project Management 587,792.00 KPA Public Engagement 107,445.00 HR&A Advisors Economic Development 204,773.00 900,010.00 24,664.00 924,674.00$ FISCAL YEAR PROJECT COST FY 2021/22 Task 1, 2, 3, 4 586,612.79 FY 2022/23 Task 1, 3, 4, 5 313,847.21 900,460.00 24,214.00 924,674.00$ OTHER DIRECT COSTS TOTAL COSTS 1 Commission authorization pertains to total contract award amount. Compensation adjustments between consultants may occur; however, the maximum total compensation authorized may not be exceeded. SUBTOTAL OTHER DIRECT COSTS TOTAL COSTS EXHIBIT "C" COMPENSATION SUMMARY1 Prime Consultant: Sub Consultants: SUBTOTAL 51 Exhibit D EXHIBIT "D" FTA REQUIREMENTS 52 Exhibit D FTA FUNDING REQUIREMENTS (Non-construction/maintenance work) As used herein, “RCTC” shall have the same meaning as the “Commission.” The term “contract” or “Contract” shall have the same meaning as the “Agreement.” 1. No Obligation by the Federal Government a. RCTC and Consultant acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Consultant, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. b. The Consultant agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subconsultant who will be subject to its provisions. 2. Program Fraud and False or Fraudulent Statements or Related Acts a. The Consultant acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Consultant certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Consultant further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Consultant to the extent the Federal Government deems appropriate. b. The Consultant also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Consultant, to the extent the Federal Government deems appropriate. c. The Consultant agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subconsultant who will be subject to the provisions. 3. Access to Records The Consultant agrees to the following access to records requirements: a. To provide RCTC, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Consultant which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Consultant also agrees, pursuant to 49 C. F. R. 633.17 to 53 Exhibit D provide the FTA Administrator or his authorized representatives including any PMO Consultant access to Consultant's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. b. To make available in the case of a contract for a capital project or improvement, as defined above and awarded by other than competitive bidding in accordance with 49 U.S.C. 5325(a), records related to the contract to RCTC, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. c. To maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Consultant agrees to maintain same until RCTC, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). d. To permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 4. Federal Changes The Consultant shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between RCTC and FTA, as they may be amended or promulgated from time to time during the term of this contract. Consultant's failure to so comply shall constitute a material breach of this contract. 5. Civil Rights The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332 and 49 CFR part 21, the Consultant agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Consultant agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Consultant agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal 54 Exhibit D policies that may in the future affect construction activities undertaken in the course of the Project. The Consultant agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Consultant agrees to comply with any implementing requirements FTA may issue. (b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623, Federal transit law at 49 U.S.C. § 5332, the Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, the Consultant agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Consultant agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Consultant agrees that it will not discriminate against individuals on the basis of disability, and that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Consultant agrees to comply with any implementing requirements FTA may issue. (3) The Consultant also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 6. FTA Disadvantaged Business Enterprise (DBE) Requirements A. General DBE Requirements: In accordance with Federal financial assistance agreements with the U.S. Department of Transportation (U.S. DOT), Commission has adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Programs” (the “Regulations”). This RFP is subject to these stipulated regulations. In order to ensure that Commission achieves its overall DBE Program goals and objectives, Commission encourages the participation of DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S. DOT funds. It is the policy of the Commission to: 1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts; 2. Create a level playing field on which DBE’s can compete fairly for DOT-assisted contracts; 3. Ensure that the DBE program is narrowly tailored in accordance with applicable law; 55 Exhibit D 4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to participate as DBE’s; 5. Help remove barriers to the participation of DBEs in DOT assisted contracts; 6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities; and 7. Assist in the development of firms that can compete successfully in the marketplace outside the DBE program. B. Discrimination: Consultant shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts. Any terms used herein that are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations. C. Commission’s Race-Neutral DBE Program: A Race-Neutral DBE Program is one that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral DBE Program, Commission does not establish numeric race-conscious DBE participation goals on its DOT-assisted contracts. There is no FTA DBE goal on this Project. Consultant shall not be required to achieve a specific level of DBE participation as a condition of contract compliance in the performance of this DOT-assisted contract. However, Consultant shall adhere to race-neutral DBE participation commitment(s) made at the time of award. D. Race-Neutral DBE Submissions and Ongoing Reporting Requirements (Post-Award): At termination of the Contract, the successful Consultant shall complete and submit to Commission a “DBE Race-Neutral Participation Listing” in the form provided by Commission. In the event DBE(s) are utilized in the performance of the Agreement, Consultant shall comply with applicable reporting requirements. E. Performance of DBE Subconsultants: DBE subconsultants listed by Consultant in its “DBE Race-Neutral Participation Listing” submitted at the time of proposal shall perform the work and supply the materials for which they are listed, unless Consultant has received prior written authorization from Commission to perform the work with other forces or to obtain the materials from other sources. Consultant shall provide written notification to Commission in a timely manner of any changes to its anticipated DBE participation. This notice should be provided prior to the commencement of that portion of the work. F. DBE Certification Status: If a listed DBE subconsultant is decertified during the life of this Agreement, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a non-DBE subconsultant becomes a certified DBE during the life of this Agreement, the DBE subconsultant shall notify Consultant in writing with the date of certification. Consultant shall furnish the written documentation to Commission in a timely manner. Consultant shall include this requirement in all subcontracts. G. Consultant’s Assurance Clause Regarding Non-Discrimination: In compliance with State and Federal anti-discrimination laws, Consultant shall affirm that it will not exclude or discriminate on the basis of race, color, national origin, or sex in consideration of contract award opportunities. Further, Consultant shall affirm that they will consider, and utilize subconsultants and vendors, in a manner consistent with non-discrimination objectives. 56 Exhibit D H. Violations: Failure by the selected Consultant(s) to carry out these requirements shall be a material breach of the contract to be awarded pursuant to this RFP, which may result in the termination of the contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: (1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the Consultant from future bidding as non-responsible. 49 C.F.R. § 26.13(b). I. Prompt Payment: Consultant shall pay its subconsultants for satisfactory performance of their contracts no later than 30 days from receipt of each payment Commission makes to the Consultant. 49 C.F.R. § 26.29(a), unless a shorter period is provided in the contract. J. Compliance with DBE Requirements Contained in FTA Provisions: Consultant shall comply with all DBE reporting and other requirements contained in this Agreement. 7. Incorporation of Federal Transit Administration (FTA) Terms The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Consultant shall not perform any act, fail to perform any act, or refuse to comply with any RCTC requests which would cause RCTC to be in violation of the FTA terms and conditions. 8. Debarment and Suspension. The Consultant agrees to the following: (1) It will comply with the following requirements of 2 CFR Part 180, subpart C, as adopted and supplemented by U.S. DOT regulations at 2 CFR Part 1200. (2) It will not enter into any “covered transaction” (as that phrase is defined at 2 CFR §§ 180.220 and 1200.220) with any subconsultant whose principal is, suspended, debarred, or otherwise excluded from participating in covered transactions, except as authorized by— (i) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 CFR Part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 CFR Part 180; and (iii) Other applicable federal laws, regulations, or requirements regarding participation with debarred or suspended recipients or third party participants. (3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 CFR Part 1200. 9. ADA Access Requirements 57 Exhibit D The Consultant shall comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 USC Section 12101 et seq; Section 504 of the Rehabilitation Act of 1973, as amended, 29 USC Section 794; 49 USC Section 5301(d). 10. Fly America . To the extent applicable to the Services, the Consultant agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and sub recipients of Federal funds and their consultants are required to use U.S. Flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Consultant shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Consultant agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 11. Cargo Preference - Use of United States-Flag Vessels To the extent applicable to the Services, the Consultant agrees: 1. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; 2. To furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the Consultant in the case of a subconsultant's bill-of-lading.) 3. To include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. 11. Buy America – Not applicable. 12. Employment Provisions To the extent applicable to the Services, Consultant shall comply with the following: A. Equal Employment Opportunity — Not applicable. 58 Exhibit D B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) — Not applicable. C. Contact Work Hours and Safety Standards Act (40 U.S.C. 327–333) —Not applicable. D. Release of Retainage No retainage will be withheld by the RCTC from progress payments due Consultant. Retainage by 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 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 Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. 13. Termination for Convenience RCTC may terminate the Agreement for convenience in accordance with the terms of the Agreement. After such termination, the Consultant shall submit a final termination settlement proposal to RCTC as directed. If the Consultant fails to submit a proposal within the time allowed, RCTC may determine, on the basis of information available, the amount, if any due the Consultant because of the termination and shall pay the amount determined. After the Consultant’s proposal is received, RCTC and Consultant shall negotiate a fair and equitable settlement and the contract will be modified to reflect the negotiated agreement. If agreement cannot be reached, RCTC may issue a final determination and pay the amount determined. If the Consultant does not agree with this final determination or the determination resulting from the lack of timely submission of a proposal, the Consultant may appeal under the Disputes clause. 14. Administrative and Contractual Remedies on Breach; Termination for Cause a. The Consultant may be declared in breach of this Agreement (“Breach”) if the Consultant fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or if the Consultant fails to perform any of the other provisions of the contract, or so fails to make progress as to endanger performance of this contract in accordance with its terms. In case of any of the foregoing, RCTC shall notify the Consultant of the Breach, and the Consultant shall have a period of ten (10) days (or such longer period as RCTC may authorize in writing) after receipt of notice from RCTC to cure the Breach. b. RCTC may, by written notice of termination to the Consultant specifying the effective date thereof, terminate the whole or any part of this contract, in the case of a Breach that is not cured within the timeframe set forth in (a) above (“Uncured Breach”). c. If the contract is terminated in whole or in part for an Uncured Breach, RCTC may procure upon such terms and in such manner as RCTC may deem appropriate, supplies or services similar to those so terminated, or may complete the services with its own forces. The Consultant shall be liable to RCTC for any excess costs for such similar supplies or services, and for any other costs incurred by RCTC as a result of the Uncured Breach. The Consultant shall continue the performance of this contract to the extent not terminated under the provisions of this clause. 59 Exhibit D d. Except with respect to defaults of Subconsultants, the Consultant shall not be liable for any excess costs if the failure to perform the contract arises out of causes beyond the control and without the fault or negligence of the Consultant. If the failure to perform is caused by the default of a Subconsultant, and if such default arises out of causes beyond the control of both the Consultant and the Subconsultant, and without the fault or negligence of either of them, the Consultant shall not be liable for any excess costs for failure to perform, unless the supplies or services to be furnished by the Subconsultant were obtainable from other sources in sufficient time to permit the Consultant to meet the required project completion schedule. e. Payment for completed services or supplies delivered to and accepted by RCTC shall be at the contract price. RCTC may withhold from amounts otherwise due the Consultant for such completed services or supplies such sum as RCTC determines to be necessary to protect RCTC against loss because of outstanding liens of claims of former lien holders, or to reimburse RCTC for any other costs related to the Uncured Breach. f. If, after notice of termination of this contract for cause, it is determined for any reason that an Uncured Breach did not exist, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the provisions for termination for convenience of RCTC. g. The rights and remedies of RCTC provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this contract including, but not limited to, the right to specific performance. h. Notwithstanding the above, RCTC may, without providing an opportunity to cure, terminate the contract in accordance with the timeframe set forth in Section 17 of the contract, if RCTC determines such action is in its best interest based on the nature of the Breach. Such actions shall not limit any of RCTC’s remedies set forth above. 16. Disputes a. Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by supplemental agreement shall be decided by RCTC’s Deputy Executive Director, who shall reduce the decision to writing and mail or otherwise furnish a copy thereof to the Consultant. The decision of the RCTC Deputy Executive Director shall be final and conclusive unless, within thirty (30) days from the date of receipt of such copy, Consultant mails or otherwise furnishes to the RCTC Deputy Executive Director a written appeal addressed to RCTC's Executive Director. The decision of RCTC Executive Director or duly authorized representative for the determination of such appeals shall be final and conclusive. b. The provisions of this Paragraph shall not be pleaded in any suit involving a question of fact arising under this Agreement as limiting judicial review of any such decision to cases where fraud by such official or his representative or board is alleged, provided, however, that any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any appeal proceeding under this Paragraph, the Consultant shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. c. Pending final decision of a dispute hereunder, Consultant shall proceed diligently with the performance of this Agreement and in accordance with the decision of RCTC's Deputy Executive Director. This "Disputes" clause does not preclude consideration of questions of law in connection with 60 Exhibit D decisions provided for above. Nothing in this Agreement, however, shall be construed as making final the decision of any RCTC official or representative on a question of law, which questions shall be settled in accordance with the laws of the State of California. 17. Lobbying See the Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Consultants who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying.” Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. The Offeror shall complete and submit with its bid/proposal the attached Certification Regarding Lobbying, and if applicable, the Standard Form-LLL, “Disclosure Form to Report Lobbying.” 18. Energy Conservation The Consultant agrees to comply with 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. 19. Clean Water a. The Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Consultant agrees to report each violation to RCTC and understands and agrees that RCTC will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. d. The Consultant further agrees that: (1) It will not use any violating facilities; (2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating Facilities;” (3) It will report violations of use of prohibited facilities to FTA; and (4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§ 1251-1387). The Consultant also agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FTA. 20. Clean Air a. The Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Consultant agrees to report 61 Exhibit D each violation to RCTC and understands and agrees that RCTC will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. b. The Consultant further agrees that: (1) It will not use any violating facilities; (2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating Facilities;” (3) It will report violations of use of prohibited facilities to FTA; and (4) It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§ 1251-1387). c. The Consultant also agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FTA. 21. Recycled Products Recovered Materials - The Consultant agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. 21. SPECIAL PROVISION FOR PROMOTING COVID-19 SAFETY Section 49. Centers for Disease Control and Prevention Order on Requirements for Persons to Wear Masks While on Conveyances and at Transportation Hubs. (a) Compliance with CDC Mask Order. The Centers for Disease Control and Prevention (“CDC”) Order of January 29, 2021, titled Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs (“CDC Mask Order”), applies to this Agreement. One of the objectives of the CDC Mask Order is “[m]aintaining a safe and operating transportation system.” Consultant agrees that it will comply, and will require all subconsultants to comply, with the CDC Mask Order. (b) Enforcement for non-compliance. Consultant agrees that FTA and RCTC may take enforcement action for non-compliance with the CDC Mask Order, including: (1) enforcement actions authorized by 49 U.S.C. § 5329(g); (2) referring Consultant to the CDC or other Federal authority for enforcement action; (3) enforcement actions authorized by 2 CFR §§ 200.339 – .340; and (4) any other enforcement action authorized by Federal law or regulation. 62 Exhibit D 22. Safe Operation of Motor Vehicles Pursuant to Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party consultant to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company owned, rented, or personally operated vehicles, and to include this provision in each third party subcontract involving the project. a. The Consultant is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company-rented vehicles, or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Consultant or RCTC. . The Consultant agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on official business in connection with the work performed under this contract. 63 Exhibit E EXHIBIT "E" DISCLOSURE OF LOBBYING ACTIVITIES 64 DR A F T DR A F T Local Assistance Procedures Manual EXHBIT 10-Q Disclosure of Lobbying Activities Page 1 LPP 13-01 May 8, 2013 EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352 1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type: a. contract a. bid/offer/application a. initial b. grant b. initial award b. material change c. cooperative agreement c. post-award d. loan For Material Change Only: e. loan guarantee year ____ quarter _________ f. loan insurance date of last report __________ 4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime: Prime Subawardee Tier _______ , if known Congressional District, if known Congressional District, if known 6. Federal Department/Agency: 7. Federal Program Name/Description: CFDA Number, if applicable ____________________ 8. Federal Action Number, if known: 9. Award Amount, if known: 10. Name and Address of Lobby Entity 11. Individuals Performing Services (If individual, last name, first name, MI) (including address if different from No. 10) (last name, first name, MI) (attach Continuation Sheet(s) if necessary) 12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply) $ _____________ actual planned a. retainer b. one-time fee 13. Form of Payment (check all that apply): c. commission a. cash d. contingent fee b. in-kind; specify: nature _______________ e deferred Value _____________ f. other, specify _________________________ 15. Brief Description of Services Performed or to be performed and Date(s) of Service, including officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12: (attach Continuation Sheet(s) if necessary) 16. Continuation Sheet(s) attached: Yes No 17. Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure of lobbying reliance was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to Congress semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Signature: ________________________________________ Print Name: _______________________________________ Title: ____________________________________________ Telephone No.: ____________________ Date: ___________ Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files APPENDIX L - 1 N/A 0 None. Stantec does not engage in lobbying activities. Andrew Irvine, AAILA, LEED AP Senior Principal 4/27/2021 N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A (303) 575-8603 DR A F T 65 DR A F T DR A F T Local Assistance Procedures Manual EXHBIT 10-Q Disclosure of Lobbying Activities Page 1 LPP 13-01 May 8, 2013 EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352 1.Type of Federal Action:2.Status of Federal Action:3.Report Type: a. contract a. bid/offer/application a. initial b. grant b. initial award b. material change c. cooperative agreement c. post-award d. loan For Material Change Only: e. loan guarantee year ____ quarter _________ f. loan insurance date of last report __________ 4.Name and Address of Reporting Entity 5.If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime: Prime Subawardee Tier _______ , if known Congressional District, if known Congressional District, if known 6.Federal Department/Agency:7.Federal Program Name/Description: CFDA Number, if applicable ____________________ 8.Federal Action Number, if known:9.Award Amount, if known: 10.Name and Address of Lobby Entity 11.Individuals Performing Services (If individual, last name, first name, MI) (including address if different from No. 10) (last name, first name, MI) (attach Continuation Sheet(s) if necessary) 12.Amount of Payment (check all that apply)14.Type of Payment (check all that apply) $ _____________ actual planned a. retainer b. one-time fee 13.Form of Payment (check all that apply):c. commission a. cash d. contingent fee b. in-kind; specify: nature _______________e deferred Value _____________ f. other, specify _________________________ 15.Brief Description of Services Performed or to be performed and Date(s) of Service, including officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 12: (attach Continuation Sheet(s) if necessary) 16.Continuation Sheet(s) attached: Yes No 17.Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure of lobbying reliance was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to Congress semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Signature: ________________________________________ Print Name: _______________________________________ Title: ____________________________________________ Telephone No.: ____________________ Date: ___________ Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files APPENDIX L - 1 HR&A Advisors, Inc. does not participating in Federal Lobbying activities. Judith Taylor Partner, HR&A Advisors, Inc. 310-882-0356 4/14/2021 DR A F T 66 DR A F T DR A F T DR A F T 67 TRANSIT ORIENTED COMMUNITIES STRATEGIC PLAN Agreement No. 21-65-043-00 with Stantec Consulting Services, Inc. Jenny Chan, Project Manager, Planning and Programming Manger 1 TOC Strategic Plan What is TOD? 2 TOD: Development centered within the quarter mile radius of a transit station. •Mixed land use •Mixed income housing –288 units •45,000 square feet office space •Public plaza for community gathering •Library •Day Care Clinic •Valet Bike Parking F RUITVALE T RANSIT VILLAGE TOC Strategic Plan What is TOC? 3 TOC: Development expands to area outside of transit station. •City of Claremont approved the Village South Specific Plan in November 2020 •Plan calls for mix use connected with paseos and plazas •Transit service provided by Metrolink and LA Metro’s future L Line (Gold Line extension). C LAREMONT SOUTH V ILLAGE TOC Strategic Plan Study Area 4 Within five-mile radius of each Metrolink station along the 91/Perris Valley Line TOC Strategic Plan Key Activities 5 Riverside La Sierra Metrolink Station TOC Strategic Plan Procurement 6 Firm Price Overall Ranking Stantec Consulting Services,Inc.$899,105 1 HDR Engineering,Inc.$903,247 2 Perkins &Will $901,634 3 Gruen Associates $790,963 4 Dudek $878,532 5 Hatch Associates Consultants,Inc.$892,074 6 SWA $906,009 7 Evaluation Committee: staff from Commission, RTA, and City of Corona. Weighted Factor Method •Price •Qualification of Firm •Qualification of Personnel •Understanding of Project •Proposed Project Approach TOC Strategic Plan Staff Recommendations 7 1.Approve Agreement No.21-65-043-00 with Stantec Consulting Services,Inc.to develop a transit-oriented communities strategic plan for an 18-month base period with two additional six-month optional terms in an amount of $924,224,plus a contingency amount of $25,776,for a total amount not to exceed $950,000; 2.Authorize the Chair or Executive Director,pursuant to legal counsel review,to finalize and execute the agreement,including option terms,on behalf of the Commission; 3.Authorize the Executive Director,or designee,to approve contingency work up to the total not to exceed amount as required for these services;and 4.Forward to the Commission for final action. AGENDA ITEM 9 Agenda Item 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: June 28, 2021 TO: Western Riverside County Programs and Projects Committee FROM: David Thomas, Interim Toll Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: Construction and Maintenance Agreement with BNSF Railway for Interstate 15/State Route 91 Express Lanes Connector Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 21-31-098-00 with BNSF Railway (BNSF) for a construction and maintenance (C&M) agreement, including property acquisition, for the Interstate 15/State Route 91 Express Lanes Connector Project (15/91 ELC) in the amount of $1,988,607, plus a contingency amount of $104,470, for a total amount not to exceed $2,093,077; 2) Authorize the Executive Director, pursuant to legal counsel review, to finalize negotiations with BNSF and execute the agreement on behalf of the Commission; 3) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required by the 15/91 ELC; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: The 15/91 ELC will provide tolled express lanes connectors between the existing 91 Express Lanes and the future 15 Express Lanes to the north of SR-91 (Figure 1: Vicinity Map). The 15/91 ELC involves adding: 1) A single-lane tolled express lane connector from the eastbound 91 Express Lanes to the future northbound 15 Express Lanes that would extend in the median of I-15 in the vicinity of the Hidden Valley Parkway interchange; and 2) A single-lane tolled express lane connector from the future southbound 15 Express Lanes that would extend from the median of I-15 in the vicinity of the Hidden Valley Parkway interchange and connect to the westbound 91 Express Lanes. 68 Agenda Item 9 In addition, operational improvements are proposed to eastbound SR-91 consisting of extending the single lane of the eastbound 91 Express Lanes and adding one general purpose lane through the 15/91 interchange. DISCUSSION: At the March 11, 2020 meeting, the Commission approved Agreement No. 19-31-074-00 with Myers-Rados Joint Venture (MRJV) as the design-build contractor to design and construct the 15/91 ELC. Over the past year MRJV has been developing the design plans including new bridge structures crossing the BNSF right of way in the vicinity of the Porphyry Yard at the 15/91 interchange. The 15/91 ELC will require a C&M agreement with BNSF to allow the new bridge structures to be constructed in BNSF’s right of way in the Porphyry Yard area at the I-15/SR-91 interchange as part of the 15/91 ELC. The C&M agreement will include payment for flagging and plan review costs by BNSF and the cost for temporary and permanent easements required for the 15/91 ELC. Staff and BNSF estimated and negotiated costs totaling $1,988,607 for these elements, and staff proposes a $104,470 contingency amount for a total authorization of $2,093,077. The Commission would pay actual costs where the values are estimated. Staff recommends the Commission authorize the Executive Director to finalize negotiations with BNSF, execute the C&M agreement on behalf of the Commission, and authorize the Executive Director or designee to approve the use of the contingency amounts as may be required by the 15/91 ELC. 69 Agenda Item 9 FISCAL IMPACT: Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2021/22 FY 2022/23 Amount: $1,605,000 $488,077 Source of Funds: SB 132 funds and 91 Express Lanes Toll Revenue Budget Adjustment: No N/A GL/Project Accounting No.: 003039 81402 00000 0000 605 31 81402 $1,309,854 003039 81304 00104 0000 605 31 81301 $783,223 Fiscal Procedures Approved: Date: 06/17/2021 Attachment: Agreement 21-31-098-00 (Draft) 70 BLANK 1 WEST PORPHYRY OVERHEAD CONSTRUCTION and MAINTENANCE AGREEMENT 08-RIV-91 PM 6.93 BNSF Agreement No. BF-XXXXXXX STATE Contract No. XXXXXX EA 08-XXXXXX RCTC Agreement No. 21-31-098-00 STATE Br. No. 56-0446 U.S. D.O.T. No. 026522X San Bernardino Subdivision LS 7602 MP 23.43 This Agreement (“Agreement”), is executed to be effective as of ___________________ (“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), the STATE OF CALIFORNIA, acting through the Department of Transportation, hereinafter referred to as (“STATE”), and the Riverside County Transportation Commission hereinafter referred to as (“RCTC”), a public entity of the State of California, hereinafter referred to as (“Parties”). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of Corona, County of Riverside, State of California, hereinafter referred to as (“Rail Corridor”); WHEREAS, under STATE Records, the West Porphyry Overhead is also called the Temescal Bridge and Overhead. For the purpose of this Agreement, these two names are interchangeable and may be referred to hereinafter as West Porphyry Overhead or Temescal Overhead; WHEREAS, BNSF’s predecessor in interest, The Atchison, Topeka and Santa Fe Railway Company and STATE entered into an Agreement dated June 15, 1959, carried in BNSF’s records as BNSF Secretary’s Contract No. CL-63822, (“Original Agreement”) which provided for STATE’s construction of the West Porphyry Overhead (Temescal Bridge and Overhead) STATE Br. No. 56-0446, DOT No. 026522X, (“OVERHEAD”) over the Rail Corridor; WHEREAS, the RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT (“DISTRICT”) was added as a party to the Original Agreement by supplement dated July 23, 1985, providing for STATE’s widening of the OVERHEAD over the Rail Corridor, the construction of the 71 2 Temescal Flood Control Channel (“CHANNEL”) across the Rail Corridor, and the replacement of BNSF’s Br. 23.5, (“STRUCTURE”) over the CHANNEL; WHEREAS, a supplement to the Original Agreement dated July 11, 2014, provided for RCTC’s widening of the OVERHEAD over the Rail Corridor to allow for the extension of the existing tolled express lanes on STATE Route 91 between the Riverside/Orange County line and Interstate Highway I-15 South (“SR-91 Corridor Improvement Project”); WHEREAS, BNSF and DISTRICT entered into a separate Ownership and Maintenance Agreement covering the ownership and maintenance responsibilities for the CHANNEL and STRUCTURE; WHEREAS, BNSF, STATE and DISTRICT entered into a separate Termination Agreement providing for the cancellation and termination of the Original Agreement, as supplemented, effective upon completion of the construction of the SR-91 Corridor Improvement Project’s modification of the OVERHEAD; This Agreement shall provide for the invoicing of the costs of the railroad work to be performed by BNSF and the reimbursement to BNSF, by RCTC, of such costs in connection with the modification of all four of the overpasses which are part of the SR-91 Corridor Improvement Project; WHEREAS, RCTC and STATE desire to proceed with construction involving the modification of the OVERHEAD providing for its partial demolition, widening, construction of express lanes, and new ramp connections to Interstate Highway I-15 North to accommodate the Interstate Highway I-15/SR-91 Express Lane Connector Project (“I-15/SR-91 Express Lane Connector Project”); WHEREAS, RCTC will fund the cost to design and construct the I-15 Express Lane Connector Project using a design build contractor (“Contractor”); WHEREAS, STATE is the owner of STATE Route 91, Interstate Highway I-15 and the STATE Highway System; WHEREAS, RCTC and STATE have entered into Cooperative Agreement No. 08-1679 dated September 21, 2018, permitting RCTC to acquire property on behalf of STATE and to design and construct the I-15/SR-91 Express Lane Connector Project; WHEREAS, upon completion and acceptance of the I-15/SR-91 Express Lane Connector Project by STATE, STATE will thereafter own and maintain all highway improvements made by RCTC under this Agreement; WHEREAS, pursuant to this Agreement, RCTC will acquire from BNSF a Temporary Construction License; and WHEREAS, pursuant to this Agreement, RCTC will acquire a permanent easement (“Easement”), on behalf of the STATE, as required for the I-15/SR-91 Express Lane Connector Project . 72 3 NOW, THEREFORE, in consideration of the mutual covenants and agreements of the Parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE I) SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of the proposed I-15/SR-91 Express Lane Connector Project widening of the West Porphyry Overhead (I-15 North) State Br. No. 56-0446 (hereinafter referred to as the "Structure"), more particularly described on the Exhibit A attached hereto and incorporated herein, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation, right of way acquisition, construction management. Additionally, temporary controls during construction must be in compliance with Section 8A.08, "Temporary Traffic Control Zones" of the California Manual of Uniform Traffic Control Devices (“CAMUTCD”). ARTICLE II) BNSF OBLIGATIONS In consideration of the covenants of RCTC and STATE set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. Upon RCTC payment to BNSF of an administrative fee in the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500), together with the Temporary Construction License Fee in the sum of XXXXXXXXXXXXX and No/100 Dollars ($XXX,XXX), BNSF hereby grants to RCTC, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, “Temporary Construction License”) to construct the Project across or upon the portion of BNSF's right-of-way described further on Exhibit A-1, as described further in the Legal Descriptions, Exhibit G and as shown on Parcel Maps Exhibit G1, attached to this Agreement, excepting and reserving BNSF’s rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right-of-way for the Rail Corridor; 73 4 (b) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate, provided such facilities do not materially interfere with the RCTC’s construction of the Project; (c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate, provided such use or operations does not materially interfere with STATE’s use of the East Corona Overhead; and (d) Require RCTC or its contractor to execute a Temporary Construction Crossing Agreement, for any temporary crossing requested to aid in the construction of this Project. The term of the Temporary Construction License shall begin on the date that the Contractor issues a Notice to Commence Construction at the start of flagging services and ends on the earlier of (i) substantial completion of the Project, or (ii) Thirty (30) months following the Notice to Commence Construction. The Temporary Construction License and related rights to be given by BNSF to RCTC shall be without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words therein contained. The Temporary Construction License shall be for the construction of the Project and for no other purpose. In the event STATE or RCTC is evicted by anyone owning, or claiming title to or any interest in said Rail Corridor, BNSF will not be liable to STATE or RCTC for any damages, losses or any expenses of any nature whatsoever. BNSF shall not grant similar rights to others, subsequent to the date of this Agreement, that impair or interfere with the rights granted to RCTC pursuant to the Temporary Construction License. Upon RCTC payment to BNSF of the additional sum of XXXXXXXXXXX and No/100 Dollars ($XX,XXX), such payment to be made within thirty (30) days of issuing the Notice to Proceed pursuant to Article III, Section 16 of this Agreement, and provided further that RCTC is in compliance with the term and conditions of this Agreement, BNSF will grant to State, its successors and assigns, an easement (hereinafter called, the “Easement”) to enter upon and use that portion of BNSF’s right-of- way as is necessary to use and maintain the Structure, substantially in the form of Exhibit B attached to this Agreement. If RCTC fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of RCTC, which approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF: a) Procurement of materials, equipment and supplies necessary for the railroad work; 74 5 b) Preliminary engineering, design, and contract preparation; (c) Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C; (d) Furnishing engineering and inspection as required in connection with the construction of the Project; (e) Providing a contract project coordinator, at RCTC’s expense, to serve as a project manager for the Project; 3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements. 4. RCTC agrees to reimburse BNSF for work of an emergency nature caused by RCTC or RCTC’s contractor in connection with the Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF with notification provided to RCTC as soon as practicable and RCTC agrees to fully reimburse BNSF for all such emergency work. 5. BNSF may charge RCTC for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 6. During the construction of the Project, BNSF will send RCTC progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. RCTC must reimburse BNSF for completed force-account work within thirty (30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send RCTC a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV, Section 7 herein, RCTC must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month’s end. Finance charges will be noted on invoices sent to RCTC under this section. For purposes of computing the time limits prescribed by Section 911.2 of the California Government Code for the presentment of a claim against the RCTC the cause of action for failure to reimburse BNSF for the costs of the Railroad work performed by it pursuant 75 6 to this Agreement shall be deemed to have accrued one hundred and eighty (180) days after the date of receipt of the final invoice. ARTICLE III) RCTC OBLIGATIONS In consideration of the covenants of STATE and BNSF set forth herein and the faithful performance thereof, RCTC agrees as follows: 1. RCTC must furnish to BNSF and STATE plans and specifications for the Project. One digital set of said plans (reduced size 11” x 17”), together with one digital copy of calculations, and one digital copy of specifications in English Units, must be submitted to BNSF and STATE for approval prior to commencement of any construction. BNSF will give RCTC final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon BNSF’s final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and specifications meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes. 2. RCTC must make application to the California Public Utility Commission (“Commission”) for an order authorizing construction of the Project and will furnish the Commission plans of the proposed construction, approved by BNSF and STATE, together with a copy of this Agreement. 3. RCTC must obtain all other required permits and approvals for the construction of the project. 4. RCTC must provide for and maintain minimum vertical and horizontal clearances, as required in Exhibit C and as approved by BNSF as part of the plans and specifications for the Project. Prior to execution of this Agreement RCTC shall have provided to BNSF exact minimum vertical and horizontal clearances for the Project, and such Final Clearances must have been previously approved by BNSF and attached hereto and incorporated herein as Exhibit A (“Final Clearances”). RCTC shall not deviate from the Final Clearances agreed to prior to this Agreement without the prior written approval of BNSF. 5. RCTC must acquire all rights of way necessary for the construction of the Project. 6. RCTC must make any and all arrangements, in compliance with BNSF’s Utility Accommodation Manual (http://www.bnsf.com/communities/faqs/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political 76 7 subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project.. 7. RCTC must construct the Project as shown on the attached Exhibit A and do all work (“RCTC’s Work”) provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. RCTC must furnish all labor, materials, tools and equipment for the performance of RCTC Work. The principal elements of RCTC Work are as follows: (a) Preliminary and final Engineering; (b) Design and the construction of the OVERHEAD; (c) Construction of required retaining walls; (d) Repairing the scouring of the head of banks by storm water runoff from the highway surface above at the south abutment for the existing structure and installation of slope paving; (e) Providing of suitable drainage, both temporary and permanent, and correct the drainage that is currently flowing to BNSF’s property so that no highway drainage is directed to BNSF’s Rail Corridor; (f) All other necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF’s Rail Corridor; (g) Application of the DOT No. 026595H and the CPUC No. 002B-22.90-A signage in conspicuous locations on the EXPRESS LANE OVERHEAD; (h) Removal of the sleeves for any CID Piles to a depth of five feet below ground surface; and (i) Job site cleanup within Project area including removal of all construction materials, all temporary track embankment not being reused by BNSF, all ballast not reclaimed by BNSF, concrete debris, surplus soil, refuse, disturbed contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF 8. RCTC’s Work must be performed by RCTC or RCTC’s contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. 9. RCTC must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, RCTC must require its contractor(s) to notify BNSF’s Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 77 8 10. RCTC or its contractor(s) must submit one (1) digital copy of any plans (including one set of calculations in English Units) for proposed shoring, falsework or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Project Engineer for approval. The shoring, falsework or cribbing used by RCTC contractor shall comply with the BNSF Bridge Requirements set forth on Exhibit F and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. If necessary, RCTC must submit for approval one (1) copy of a professionally engineered demolition plan, as set forth in Exhibit H, with applicable calculations to BNSF’s Project Engineer. The existing East Corona Overhead will not be removed until BNSF approves RCTC’s demolition plan in writing. 11. RCTC must include the following provisions in any contract with its contractor(s) performing work on said Project: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the “Lines”) owned by various telecommunications companies may be buried on BNSF’s property or right-of-way. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF’s Engineering Representative, Signal Representative and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The Contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements. (c) Failure to mark or identify these Lines will be sufficient cause for BNSF’s engineering representative to stop construction at no cost to the or BNSF until these items are completed. (d) In addition to the liability terms contained elsewhere in this Agreement, The Contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney’s fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Provider, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Provider, and/or its subcontractors, agents and/or employees, on BNSF’s property or within BNSF’s right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF’s property or within BNSF’s right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a 78 9 customer or user of such telecommunication company(ies). THE LIABILITY ASSUMED BY THE CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. 12. RCTC must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article III and IV; and (ii) the provisions set forth in Exhibit C, Exhibit C-l, and Exhibit F attached hereto and by reference made a part hereof. 13. Except as otherwise provided below in this Section 13, all construction work performed hereunder by RCTC for the Project will be pursuant to a contract or contracts to be let by RCTC, and all such contracts must include the following: (a) All work performed under such contract or contracts within the limits of BNSF's right-of- way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; (c) No work will be commenced within BNSF's right-of-way until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF an agreement in the form of Exhibit C-l, and (ii) delivered to and secured BNSF's approval of the required insurance; and (d) To facilitate scheduling for the Project, RCTC shall have its contractor give BNSF’s representative 8 weeks advance notice of the proposed times and dates for work windows. BNSF and RCTC contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor’s expenses for the Project. (e) The plans and specifications for the Project must be in compliance with the Bridge Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein. 79 10 14. RCTC must advise the appropriate BNSF Manager of Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. Additionally, RCTC must notify BNSF's Manager of Public Projects, in writing, of the date on which RCTC and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project. 15. TO THE FULLEST EXTENT PERMITTED BY LAW, RCTC HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS STATE AND BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’ FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF RCTC, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE RCTC, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF RCTC, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) RCTC’S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO RCTC PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO RCTC PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) RCTC’S OCCUPATION AND USE OF BNSF’S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY RCTC, OR (VII) AN ACT OR OMISSION OF RCTC OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY RCTC WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF STATE OR BNSF. 16. RCTC must give BNSF’s Manager of Public Projects written notice to proceed (“Notice to Proceed”) with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from RCTC. 80 11 ARTICLE IV - STATE OBLIGATIONS In consideration of the covenants of BNSF and RCTC herein contained and the faithful performance thereof, STATE agrees: 1. To permit RCTC to act as the responsible lead to design and construct the Project. 2. Upon completion, STATE will own and maintain, at its sole cost and expense, the STRUCTURE, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadway to BNSF gates installed pursuant to this Agreement. 3. State must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure. 4. STATE must, at STATE’s sole cost and expense, keep the STRUCTURE painted and free from graffiti; 5. STATE must maintain the DOT No. 026522X and CPUC No. 002B-22.90-A signage in legible condition in the conspicuous locations on the STRUCTURE where applied by RCTC during construction; 6. It is understood by STATE that the right to install utilities for highway purposes is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF’s prior approval BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, footings. Under no circumstances will utilities be allowed to hang from the STRUCTURE. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities. 7. It is expressly understood that the Easement grants the State or RCTC acting on behalf of the State, the right to install, upgrade, replace, and maintain State-owned utilities on, above or within the structure so long as the utilities are used exclusively for highway purposes. These utilities do not require a separate permit or license agreement from BNSF. 8. STATE must keep the STRUCTURE and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals; and 9. In conformance with and limited to the applicable effect of California Laws insofar as the indemnity and insurance provisions set forth in any of the preceding sections or any rider, amendment or addendum hereto, STATE is self-insured. If STATE performs (i) alterations or 81 12 modifications to the STRUCTURE, or (ii) any maintenance or other work on the STRUCTURE with heavy tools, equipment or machinery at ground surface level, horizontally within 25’-0” of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the STRUCTURE vertically above the top of the rail, then STATE shall provide BNSF defense and indemnification at least equal to the defense, indemnification and insurance provisions contained in the current Exhibit C-1 at the time alterations or modifications to the STRUCTURE are undertaken, in accordance with California Government Code section 14662.5. Nothing herein shall be deemed to insure BNSF against its sole negligence or willful misconduct. Notwithstanding the foregoing, STATE agrees not to commence such alterations, modifications, maintenance, or other work to the STRUCTURE with day labor, until such time as (i) BNSF has procured, at STATE’s sole cost and expense, a Railroad Protective Liability insurance policy naming BNSF as the insured, as required by the current Exhibit C-1, and (ii) STATE has reimbursed BNSF for the costs to obtain the Railroad Protective Liability insurance policy. 10. Subject to the restrictions imposed by Article V, Section 11 below, STATE must notify and obtain prior authorization from BNSF's Manager Public Projects to perform (i) inspection that requires access to BNSF rights of way, (ii) alterations or modifications to the STRUCTURE, or (iii) any maintenance or other work on, over or under the STRUCTURE before entering BNSF's Rail Corridor or for work located a minimum distance of 25’-0” measured horizontally from the centerline of the nearest track or a greater distance specified by BNSF’s Manager Public Projects and must comply with the obligations set forth in Exhibit C, Exhibit C-1 and Exhibit F, as the same may be revised from time to time. In the event any of the work to be done on behalf of STATE upon BNSF's Rail Corridor is to be done by a contractor, STATE will be responsible for its contractor(s) compliance with such obligations. 11. PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 14662.5, STATE HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS BNSF FROM, AND TO REPAIR OR PAY FOR ANY DAMAGE PROXIMATELY CAUSED BY REASON OF THE USES AUTHORIZED BY THIS AGREEMENT AND THE EASEMENTS PERTAINING TO THE STRUCTURE. ARTICLE (V) JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. BNSF will notify RCTC of potential impacts to Project at the time said impacts are known, subject to the provisions of Article II, Section 5. 82 13 2. The work hereunder must be done in accordance with the Bridge Requirements set forth on Exhibit F and the detailed plans and specifications approved by BNSF. 3. RCTC must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) RCTC (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) RCTC (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) RCTC fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by RCTC or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: David Thomas Toll Program Director RIVERSIDE COUNTY TRANSPORTATION COMMISSION 4080 Lemon Street, 3rd Floor Riverside, CA 92502-2208 Office: (951) 778-7958 Fax (951) 787-7920 dthomas@rctc.org 83 14 5. RCTC must supervise and inspect the operations of all RCTC contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by RCTC personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will not proceed until RCTC corrects the situation to BNSF’s reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify for appropriate corrective action. 6. Pursuant to this section and Article II, Section 6 herein, RCTC must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF’s Share as set forth in Article IV, Section 6 herein. BNSF’s Share must be paid upon completion of the Project. 7. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorney’s fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys’ fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. 8. All expenses detailed in statements sent to RCTC pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement. 9. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 800 832- 5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period. 10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until RCTC gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference D.O.T. Crossing No. 026595H and must state the time that construction activities will begin. 11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and RCTC agree to the following terms upon completion of construction of the Project: (a) BNSF will continue to own and maintain, at its sole cost and expense, its roadbed, track, railroad drainage, and all other railroad facilities, however, nothing herein contained shall relieve STATE of any liability it would otherwise have with respect to 84 15 damage caused to the STRUCTURE by negligent act or omission of STATE or its employees; (b) In the event emergency repairs to the Structure appear necessary due to an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, BNSF will immediately notify STATE of the need. Should emergency repairs become necessary, with prior notice to STATE, or the situation results in any materials causing an infringement upon or violate the minimum clearances described in Exhibit C, BNSF may remove the materials by any methods that would not cause damage to or in any way jeopardize the structural integrity of the bridge deck, superstructure, or substructure. Notification of such action must be communicated to the STATE’s district bridge maintenance superintendent or his delegate as soon as practically possible. (c) It is expressly understood that the Easement grants the State or RCTC acting on behalf of the State, the right to install, upgrade, replace, and maintain State-owned utilities on, above or within the structure so long as the utilities are used exclusively for highway purposes. These utilities do not require a separate permit or license agreement from BNSF. 12. RCTC must provide one set of as built plans (prepared in English Units) to BNSF and to STATE, as well as one set of as built CAD drawings of the Structure and identifying the software used for the CAD drawings. The "as built plans" must comply with the Bridge Requirements set forth on Exhibit F and depict all information in BNSF engineering stationing and mile post pluses. The "as built plans" must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown. 13. Subject to the restrictions imposed by Article IV, Section 9 above and in accordance with the requirements of Article III, Section 9 above, State must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for INSPECTION OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, State must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. State will be responsible for its contractor(s) compliance with such obligations. 14. In the event that BNSF shall deem it necessary or desirable in the future, in the performance of its duty as a common carrier, to raise or lower the grade or change the alignment of its tracks or to lay additional track or tracks or to build other facilities in connection with the operation of its railroad, BNSF shall, at its expense, have full right to make such changes or additions, provided such changes or additions do not change or alter the Structure herein proposed to be constructed and provided further, however, that should it become necessary or desirable in the future to change, alter, widen or reconstruct the Structure to accommodate railroad projects, the cost of such work, including any cost incidental to alteration of railroad or highway facilities made necessary by the alteration of the Structure 85 16 shall be the sole responsibility of BNSF unless BNSF and State mutually agree to divide the cost in such shares as may be mutually agreed to by them. 15. State may, at State’s sole expense, alter or reconstruct the highway components of the Structure if necessary or desirable, due to traffic conditions or pedestrian or other recreational traffic, provided, however, that any such alteration or reconstruction must receive BNSF’s prior written approval as evidenced by either a supplement to this Agreement, or execution of a new agreement that provides for the termination of this Agreement. Furthermore, any alteration or reconstruction of the highway components of the Structure will be covered by a Commission Order. 16. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of California and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement. 17. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party. 18. In the event construction of the Project does not commence within (3) years of the Effective Date, this Agreement will become null and void. 19. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 20. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 21. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and RCTC with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 22. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: Manager of Public Projects Kate Kalinosky 740 E. Carnegie Drive San Bernardino, CA 92408 86 17 Email: kate.kalinosky@bnsf.com RCTC: Michael Blomquist Toll Program Director 4080 Lemon Street, 3rd Floor Riverside, CA 92502-2208 Office: (951) 778-1098 Fax (951) 787-7920 Email: mblomquist@rctc.org STATE: Department of Transportation Tiaira T. Moering, Chief Office of Railroads and Utilities Relocation Division of Right of Way & Land Surveys 1120 N Street Sacramento, CA 95814-5690 Office: (916) 654-6553 Email: tiaira.moering @dot.ca.gov IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. BNSF RAILWAY COMPANY By: Kate Kalinosky Manager Public Projects WITNESS: 87 18 RCTC’s signature page follows on the next page. 88 19 RCTC By: Printed Name: Title: _____________________ WITNESS: STATE’s signature page follows on the next page. 89 20 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: TIAIRA T. MOERING Title: Chief, Office of Railroads & Utility Relocations Division of Right of Way and Land Surveys APPROVAL TO FORM: Attorney RECOMMENDED FOR APPROVAL TERESA McNAMARA Railroad Coodinator Division of Right of Way and Land Surveys 90 21 Summary of Exhibits EXHIBIT TITLE A Plans and Profile Sheets of Project B Easement Deed C C-1 Contractor Requirements Agreement Between BNSF Railway Company and the Contractor D BNSF Cost Estimate E Plans and Specifications Approval Letter F BNSF Bridge Requirements G G-1 Legal Description Parcel Map H BNSF’s Instructions for the Preparation of Demolition Plans 91 Exhibit A [Insert drawing of the Project and/or Structure] 92 EASEMENT AGREEMENT FOR EB and WB Temescal Wash Overhead (Overpass Agreement) THIS EASEMENT AGREEMENT FOR _________________ ("Easement Agreement") is made and entered into as of the ____ day of _________ 2021 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and RIVERSIDE COUNTY TRANPORTATION COMMISSION, a public entity ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Corona, County of Riverside, State of California, at Mile Post 23.43, [Project # BF 10012943], as described or depicted on Exhibit "A-1" attached hereto and made a part hereof (the "Premises"). B. Grantor and Grantee have entered into that certain Overpass Agreement dated as of ______________________________________ concerning improvements on or near the Premises (the “Overpass Agreement”). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the OVERPASS Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the OVERPASS Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, 93 covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"). Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the OVERPASS Agreement. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. The term of this Easement, unless sooner terminated under provisions of this Easement Agreement, shall expire on the date that is ___________________________________ after the Effective Date. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH 94 PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee’s sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner’s written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify 95 their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire. Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or 96 otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above-stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9. Section 8 Default and Termination. 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will 97 release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9. 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the OVERPASS Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (h) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (i) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (j) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (k) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee 98 pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with a Notice of Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such notice. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the OVERPASS Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. [IF LEGAL DESCRIPTION IS NOT AVAILABLE USE THE FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As of the Effective Date, a legal description of the Premises is not available. Grantee and Grantor shall work together in good faith to establish the legal description for the Premises. Once Grantor and Grantee have approved the legal description, Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement").] The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within _30___ days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of California without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and 99 provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. Section 15 Administrative Fee. 15.1 Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $2,500.00 over and above the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check. [Signature page follows] 100 Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: GRANTEE: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a Public Entity By: Name: Anne Mayer Title: Executive Director 101 EXHIBIT "A-1" Premises 102 EXHIBIT "B-1" Memorandum of Easement THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2021, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a Public Entity("Grantee"), whose address for purposes of this instrument is 4080 Lemon Street, 3rd Floor, Riverside, CA 92501, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in Riverside County, California as described on Exhibit "A-1" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. 103 All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. [Signature page follows] 104 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: GRANTEE: RIVERSIDE COUNTY TRANSPORTATON COMMISSION By: Name: Anne Mayer Title: Executive Director STATE OF _______________ § § COUNTY OF _____________ § This instrument was acknowledged before me on the ___ day of _________________, 20__, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. 105 Notary Public (Seal) My appointment expires: STATE OF _______________ § § COUNTY OF _____________ § This instrument was acknowledged before me on the ___ day of _________________, 20__, by (name) as (title) of ____________________________, a ______________________. Notary Public (Seal) My appointment expires: 106 EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General: • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of _________________________________________________________________________ _________________________________________________________________________. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit “C-1” Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit “C-1”. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the STRUCTURE if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the STRUCTURE work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway’s opinion, prosecutes the STRUCTURE work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the STRUCTURE; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway’s Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway’s right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the STRUCTURE, Railway agrees to immediately notify the following individual in writing: _______________________ _______________________ _______________________ _______________________ 107 • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. • 1.01.06 The Contractor must notify (Agency) at and Railway's Manager Public Projects, telephone number ( ) at least thirty (30) calendar days before commencing any work on Railway Property. Contractor’s notification to Railway must refer to Railway's file ___________. • 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twentyfive (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current “BNSF-UPRR Guidelines for Temporary Shoring” must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current “BNSF-UPRR Guidelines for Temporary Shoring”. All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance of Way Association (previously known as American Railway Engineering Association) Coopers E80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway’s Engineering Contractor 108 Safety Orientation, found on the web site www.BNSFContractor.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway’s Engineering Contractor Safety Orientation through internet sessions before any work is performed on the STRUCTURE. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway’s Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 The Contractor must notify the Railway's Division Engineer ________________________ at (_____)_________________ and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction:  15’-0” Horizontally from centerline of nearest track  21’-6” Vertically above top of rail  27'-0" Vertically above top of rail for electric wires carrying less than 750 volts  28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts  30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts  34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction, the following clearances shall be maintained:  --’ Horizontally from centerline of nearest track  _-’ Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the (Agency) and must not be undertaken until approved in writing by the Railway, and until the (Agency) has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for 109 protection of Railway operations. The cost of tell-tales or protective devices will be borne by the Agency. • 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by (Agency) for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan: • 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.BNSFContractor.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. • 1.04.02 Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services for Railroad under this Agreement which are determined by Railroad in its sole discretion a) to be on Railroad’s property, or b) that require access to Railroad Critical Infrastructure, Railroad Critical 110 Information Systems, Railroad’s Employees, Hazardous Materials on Railroad’s property or is being transported by or otherwise in the custody of Railroad, or Freight in Transit involving Railroad. The required background screening shall at a minimum meet the rail industry background screening criteria defined by the e-RAILSAFE Program as outlined at www.everifile.com, in addition to any other applicable regulatory requirements. Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railroad’s designee. Contractor shall be subject to periodic audit to ensure compliance. Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e-RAILSAFE Program standards. Railroad shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railroad's operations, assets or personnel. Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization. 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway’s Roadmaster (telephone ________) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger’s position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway’s Project Representative, Railway flagger will be required and furnished when Contractor’s work activities are located over, under and/or within twentyfive (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway’s Representative, other conditions warrant. 111 " 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. " 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. " 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. " 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. " 1.05.03 Flagging services will be performed by qualified Railway flaggers. " 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. " 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day. " 1.05.03c The cost of flagger services provided by the Railway will be borne by (Agency). The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. " 1.05.03d The average train traffic on this route is ______ freight trains per 24-hour period at a timetable speed ______ MPH and ______ passenger trains at a timetable speed of ______ MPH. 1.06 Contractor General Safety Requirements " 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. 112 • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway’s Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.BNSFContractor.com, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats; c) safety shoe with: hardened toes, above the ankle lace-up and a defined heel; and d) high visibility retroreflective work wear. The Railway’s representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE – Should there be a discrepancy between the information contained on the web site and the information in this paragraph, the web site will govern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, 113 MACHINERY OR EQUIPMENT CLOSER THAN 25'0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. 1.07 Excavation: • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the STRUCTURE work area. The Contractor must determine whether excavation on Railway’s Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF’s Field Engineering Representative (______________). All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA 114 regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting: • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway’s Project Representative no later than the close of shift on the date of the injury. 115 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION (If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: Passenger on train (C) Non-employee (N) (i.e., emp of another railroad, or, non-BNSF emp involved in vehicle accident, including company vehicles) Contractor/safety sensitive (F) Contractor/non-safety sensitive (G) Volunteer/safety sensitive (H) Volunteer/other non-safety sensitive (I) Non-trespasser (D) - to include highway users involved in highway rail grade crossing accidents who did not go around or through gates Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates Non-trespasser (J) - Off railroad property If train involved, Train ID: ________________________________ Transmit attached information to Accident/Incident Reporting Center by: Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident-Reporting.Center@BNSF.com Officer Providing Information: (Name) (Employee No.) (Phone #) REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490 116 EXHIBIT "C-1" NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/St: 2. Date: Time: County: 3. Temperature: 4. Weather: (if non BNSF location) Mile Post / Line Segment: 5. Driver’s License No (and state) or other ID: SSN (required): 6. Name (last, first, mi): 7. Address: City: St: Zip: 8. Date of Birth: and/or Age: Gender: (if available) Phone Number: Employer: 9. Injury: 10. Body Part: (i.e., Laceration, etc.) (i.e., Hand, etc.) 11. Description of Accident (To include location, action, result, etc.): 12. Treatment: First Aid Only Required Medical Treatment Other Medical Treatment 13. Dr. Name: Date: 14. Dr. Address: Street: City: St: Zip: 15. Hospital Name: 16. Hospital Address: Street: City: St: Zip: 17. Diagnosis: REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490 117 Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR Railway File: _______________________________ Agency Project: _______________________________ <%Contractor.LegalName%> [Insert contractor’s legal name here](hereinafter called “Contractor”), has entered into an agreement (hereinafter called “Agreement”) dated ______________, 201_,with BNSF RAILWAY COMPANY for the performance of certain work in connection with the following project:___________________ Performance of such work will necessarily require Contractor to enter BNSF RAILWAY COMPANY (hereinafter called "Railway") right of way and property (hereinafter called "Railway Property"). The Agreement provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for BNSF RAILWAY COMPANY (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Agreement, has agreed and does hereby agree with Railway as follows: 1) RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway’s property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY. 118 THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY’S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. 2) TERM This Agreement is effective from the date of the Agreement until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. 3) INSURANCE Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: 119 A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000 but in no event less than the amount otherwise carried by the Contractor. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limit to the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Waver of subrogation in favor of and acceptable to Railway. ♦ Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railway. It is agreed that the workers’ compensation and employers’ liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy with regard to the work being performed under this agreement. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired 120 The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railway. ♦ Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railway. C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ Contractor’s statutory liability under the worker’s compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railway. A. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railway prior to performing any work or services under this Agreement ♦ Definition of “Physical Damage to Property” shall be endorsed to read: “means direct and accidental loss of or damage to all property owned by any named insured and all property in 121 any named insured’ care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) in Railway’s Blanket Railroad Protective Liability Insurance Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages. Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railway for all claims and suits. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under Contractor’s care, custody or control. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Contractor is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, any self-insured retention or other financial responsibility for claims shall be covered directly by Contractor in lieu of insurance. Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor’s insurance will be covered as if Contractor elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to commencing services, Contractor shall furnish to Railway an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. The certificate should be directed to the following address: BNSF Railway Company c/o CertFocus P.O. Box 140528 Kansas City, MO 64114 Toll Free: 877-576-2378 Fax number: 817-840-7487 Email: BNSF@certfocus.com www.certfocus.com 122 Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. Any insurance policy shall be written by a reputable insurance company acceptable to Railway or with a current Best’s Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. If coverage is purchased on a “claims made” basis, Contractor hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation or termination of this Agreement. Annually Contractor agrees to provide evidence of such coverage as required hereunder. Contractor represents that this Agreement has been thoroughly reviewed by Contractor’s insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. Not more frequently than once every five years, Railway may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Contractor, Contractor shall require that the subcontractor shall provide and maintain insurance coverage(s) as set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Railway to the same extent and under the same terms and conditions as Contractor is required to release, defend and indemnify Railway herein. Failure to provide evidence as required by this section shall entitle, but not require, Railway to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage. In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will make available any required policy covering such claim or lawsuit. 123 These insurance provisions are intended to be a separate and distinct obligation on the part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work covered hereunder is performed. For purposes of this section, Railway shall mean “Burlington Northern Santa Fe LLC”, “BNSF Railway Company” and the subsidiaries, successors, assigns and affiliates of each. 4) SALES AND OTHER TAXES In the event applicable sales taxes of a state or political subdivision of a state of the United States are levied or assessed in connection with and directly related to any amounts invoiced by Contractor to Railway (“Sales Taxes”), Railway shall be responsible for paying only the Sales Taxes that Contractor separately states on the invoice or other billing documents provided to Railway; provided, however, that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor shall be responsible for all sales, use, excise, consumption, services and other taxes which may accrue on all services, materials, equipment, supplies or fixtures that Contractor and its subcontractors use or consume in the performance of this Agreement, (iii) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails to separately state on the invoice or other billing documents provided to Railway or fails to collect at the time of payment by Railway of invoiced amounts (except where Railway claims a Sales Tax exemption), and (iv) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) if Contractor fails to issue separate invoices for each state in which Contractor delivers goods, provides services or, if applicable, transfers intangible rights to Railway. Upon request, Contractor shall provide Railway satisfactory evidence that all taxes (together with any penalties, fines or interest thereon) that Contractor is responsible to pay under this Agreement have been paid. If a written claim is made against Contractor for Sales Taxes with respect to which Railway may be liable for under this Agreement, Contractor shall promptly notify Railway of such claim and provide Railway copies of all correspondence received from the taxing authority. Railway shall have the right to contest, protest, or claim a refund, in Railway’s own name, any Sales Taxes paid by Railway to Contractor or for which Railway might otherwise be responsible for under this Agreement; provided, however, that if Railway is not permitted by law to contest any such Sales Tax in its own name, Contractor shall, if requested by Railway at Railway’s sole cost and expense, contest in Contractor’s own name the validity, applicability or amount of such Sales Tax and allow Railway to control and conduct such contest. Railway retains the right to withhold from payments made under this Agreement amounts required to be withheld under tax laws of any jurisdiction. If Contractor is claiming a withholding exemption or a reduction in the withholding rate of any jurisdiction on any payments under this Agreement, before any payments are made (and in each succeeding period or year as required by law), Contractor agrees to furnish to Railway a properly completed exemption form prescribed by such jurisdiction. Contractor shall be 124 responsible for any taxes, interest or penalties assessed against Railway with respect to withholding taxes that Railway does not withhold from payments to Contractor. 1) EXHIBIT “C” CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Agreement, and the Contractor Requirements set forth on Exhibit “C” attached to the Agreement and this Agreement, including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Contractor shall execute a Temporary Construction Crossing Agreement or Private Crossing Agreement (http://www.bnsf.com/communities/faqs/permits-real-estate/), for any temporary crossing requested to aid in the construction of this STRUCTURE, if approved by BNSF. 2) TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. The rate then in effect at the time 125 of performance by the Contractor hereunder will be used to calculate the actual costs of train delay pursuant to this agreement. Contractor and its subcontractors must give Railway’s representative (___________________) _____ (__) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor’s expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. 126 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized officer the day and year first above written. <%Contractor.LegalName%> BNSF Railway Company By: ________________________________ By: ________________________________ Printed Name: _______________________ Name: _____________________________ Manager Public Projects Title: _______________________________ Accepted and effective this ______day of 20__. Contact Person: ______________________ Address: ___________________________ City: _______________________________ State: _________ Zip: ________________ Fax: _______________________________ Phone: _____________________________ E-mail: _____________________________ 127 [Insert Cost Estimate for Railroad Work here] EXHIBIT D 128 Exhibit E [Public Projects Manager’s letterhead] Date: ______________________ Mr./Ms. ______________________ _____________________________[Name of Agency Here] _____________________________[Address for Agency] _____________________________ Re: Final Approval of Plans and Specifications dated _________, 20__, drafted by _____________________ [insert name of architecture or engineering firm here] (hereinafter called, the “Plans and Specifications”) Dear _______________: This letter serves as BNSF RAILWAY COMPANY’s (“BNSF”) final written approval of the Plans and Specifications covering the construction of __________________________________ [insert description of the project here]. This final written approval is given to _______________ [insert name of Agency here] (“Agency”) pursuant to Article III, Section 1 of that certain Underpass Agreement between BNSF and Agency, dated __________, 20__, which this Exhibit E is attached to and made a part thereof. If the Plans and Specifications are revised by Agency subsequent to the date set forth above, this letter shall no longer serve as final written approval of the Plans and Specifications and Agency must resubmit said Plans and Specifications to BNSF for final written approval. It is understood that the approvals contained in this letter do not cover, the approvals of plans and specifications for any falsework, shoring, and demolition that may be subsequently submitted to BNSF by CITY or its contractor for approval. BNSF has not reviewed the design details or calculations for structural integrity or engineering accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project. 129 Regards, ___________________________ [Public Projects Manager’s Name] 130 Exhibit F BNSF Bridge Requirements BRIDGE DESIGN, PLANS & SPECIFICATIONS: Except for the design of temporary falsework and shoring, BNSF review of the Structure plans will be limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks. BNSF will not review structural design calculations for the permanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. The Agency shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6 inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the permanent Structure, the Agency will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure. The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. If the permanent member is within 25 feet of the nearest track (or future track), collision walls shall be incorporated into the permanent Structure design according to American Railway Engineering and Maintenance Association Manual of Recommended Practice - Chapter 8 - Article 2.1.5. For the permanent Structure, the Agency will submit plans showing the least vertical clearance from top of the most elevated rail of existing and future tracks to the lowest point of the proposed Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The profile shall extend for 500 feet in each direction of the proposed overpass and a separate profile shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag exists in the vicinity of the proposed Structure, the permanent Structure vertical clearance shall be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to beginning construction of the permanent Structure, the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. Prior to issuing any invitation to bid on construction of the STRUCTURE, the Agency should conduct a pre-bid meeting where prospective Contractors have the opportunity to communicate with BNSF personnel regarding site specific train 131 speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the STRUCTURE. BRIDGE CONSTRUCTION: After awarding the bid, but prior to the Contractor entering BNSF’s right-of –way or property, the Agency should conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the STRUCTURE, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. The Agency shall reimburse BNSF for all costs of supplemental inspection services. Within 90 days of the conclusion of the STRUCTURE and final acceptance by BNSF, the Agency will provide BNSF with a complete electronic set of the bridge plans labeled “As Built”. Those plans will reflect any and all deviations from the original plans that occurred during construction. The “As Built” plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. Actual measured “as constructed” clearances shall be shown as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. BRIDGE MAINTENANCE: The Agency will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes, erosion control, surface drainage, fencing, deck drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated with the STRUCTURE. Fencing and other pedestrian access controls within BNSF’s right-of-way and incorporated into the STRUCTURE shall be designed and maintained by the Agency. Trespasser control shall be the responsibility of the Agency. Graffiti removal will be the responsibility of the Agency. BRIDGE INSPECTION: 132 The Agency will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, the Agency will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary the Agency will embargo weights or provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement, there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. Pipelines will be not be added or attached to the Structure without first submitting plans and calculations to BNSF for review and approval. 133 24 Exhibit G & G1 LEGAL DESCRIPTION 134 Exhibit H BNSF INSTRUCTIONS FOR PREPARATION OF DEMOLITION PLANS 135 15/91 EXPRESS LANES CONNECTOR David Thomas, Interim Toll Program Director June 28, 2021 1 Western Riverside County Programs and Projects Committee 2 BNSF TRACKS BNSF TRACK CROSSING BNSF Track Crossing •New Express Lane Connector Bridges Cross Existing BNSF Tracks •Construction & Maintenance (C&M) Agreement Required with BNSF •Costs Include: o Temporary and Permanent ROW Acquisition Costs o BNSF Flagging Costs o BNSF Plan Review and Field Supervision Costs For Committee Approval 3 •Approve draft Agreement No. 21-31-098-00 for Construction &Maintenance with BNSF​. –Amount: $1,988,607 –Contingency: $104,470 –Total Not to Exceed Amount: $2,093,077 •Authorize the Executive Director,pursuant to legal counsel review,to finalize negotiations with BNSF and execute the agreement on behalf of the Commission QUESTIONS & THANK YOU 4 AGENDA ITEM 10 Agenda Item 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: June 28, 2021 TO: Western Riverside County Programs and Projects Committee FROM: Bryce Johnston, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement for California Highway Patrol Construction Zone Enhancement Enforcement Program Services During the Construction of the Commission’s Highway Projects STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 21-31-103-00, with the California Highway Patrol (CHP) for Construction Zone Enhanced Enforcement Program (COZEEP) services used during the construction of Commission highway projects (Projects), for a total amount not to exceed $4 million for a five-year term; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: Whenever the Commission’s projects on the state highway system employ significant lane or shoulder closures, the Commission is required to use COZEEP services supplied by the CHP. These services provide a constant presence of CHP officers to encourage compliance with the temporary traffic control devices used during construction. In the past, the Commission typically entered into a project specific agreement with the CHP to provide these services, which would cover the duration of the project, with an estimated value determined prior to construction. CHP COZEEP SERVICES: RCTC was informed in 2020 by the CHP that due to procedural changes, any new project specific agreements could be issued for a duration of only three months and a maximum amount of $50,000. These agreements would require renewal if the services were required beyond the three-month duration or would exceed the agreement value. This process has resulted in numerous amendments for the Commission’s Projects. This has resulted in increased paperwork, staff and legal time, and potential impacts and delays to the project’s planned traffic control operations and construction. 136 Agenda Item 10 Commission staff worked with the CHP’s local Beaumont office and Headquarters office in Sacramento to negotiate a 5-year, countywide COZEEP service agreement, which would eliminate the 3-month duration, $50,000 agreement limits, and the associated potential to delay the Commission’s Projects. Staff reviewed the unit rates listed in the proposed agreement, and they align with the separate COZEEP agreements the Commission has entered into for previous Projects. Staff estimated the value of the required services for the next 5 years to be approximately $4 million for all ongoing and anticipated future Projects. FISCAL IMPACT: There are sufficient funds included in the FY 2021/22 budgets for the COZEEP services required during these years through the various planned Projects. Funds required for future years will be included in each annual budget under each project requiring these services. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2021/22 FY 2022/23+ Amount: $ 100,000 $3,900,000 Source of Funds: Congestion Mitigation Air Quality, Surface Transportation Block Grant, State Transportation Improvement Program- Regional Improvement Program, State Highway Operations and Protection Program, and 2009 Measure A Western County Highway funds Budget Adjustment: No N/A GL/Project Accounting No.: XXXXXX 81304 00000 0000 XXX 31 81301 (various projects/funds) Fiscal Procedures Approved: Date: 06/17/2021 Attachments: Agreement No. 21-31-103-00 with CHP for COZEEP Services 137 138 139 140 141 142 143 CALIFORNIA HIGHWAY PATROL COZEEP COUNTY WIDE PROGRAM SERVICES AGREEMENT Western Riverside County Programs and Projects Committee June 21, 2021 Bryce Johnston, Capital Projects Manager 1 2 Background •Construction projects on the state highway system that employ significant lane, ramp or full freeway closures require Construction Zone Enhanced Enforcement Program (COZEEP) supplied by the California Highway Patrol (CHP) •Current contract process is limited to three (3) month agreement duration with a maximum value of $50,000. •This is resulting in multiple amendments and impacts to traffic control operations 3 Solution •Staff worked with the CHP to develop a 5-year County Wide COZEEP services contract o This would eliminate •Potential delays to the construction projects traffic control operations •Additional staff and legal time to develop multiple agreements or amendments •Staff estimated the total COZEEP needs for all Commission projects for 5 years to be $4M •Staff seeks Committee approval of agreement 21-31-103-00 with the CHP for County Wide COZEEP services with a duration of 5-years in the amount of $4M rctc.org 951.787.7141 info@rctc.org @theRCTC QUESTIONS 4 AGENDA ITEM 11 Agenda Item 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: June 28, 2021 TO: Western Riverside County Programs and Projects Committee FROM: Michelle McCamish, Senior Management Analyst Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: David Knudsen, Interim External Affairs Director SUBJECT: Agreements for Freeway Service Patrol Tow Truck Service STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 21-45-049-00 to Pepe’s Towing Service Inc. (Pepe’s) for Freeway Service Patrol (FSP) tow truck services on State Route (SR) 91, Beat No. 4, for a five-year term, in an amount of $1,666,787, plus a contingency amount of $83,340, for a total amount not to exceed $1,750,127; 2) Approve Agreement No. 21-45-050-00 to Pepe’s for FSP tow truck services on SR-60, Beat No. 7, for a five-year term, in an amount of $1,666,787, plus a contingency amount of $83,340, for a total amount not to exceed $1,750,127; 3) Approve Agreement No. 21-45-051-00 to Pepe’s for FSP tow truck services on SR-60, Beat No. 8, for a five-year term, in an amount of $1,666,787, plus a contingency amount of $83,340, for a total amount not to exceed $1,750,127; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to finalize and execute the agreements on behalf of the Commission; 5) Authorize the Executive Director, or designee, to approve the use of the contingency amount as may be required for these services; and 6) Forward to the Commission for final action. BACKGROUND INFORMATION: In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of Senate Bill 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide FSP and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. 144 Agenda Item 11 In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute a 25 percent local match. For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting in its capacity as the RC SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. Currently, the Commission contracts with three tow truck operators to provide service on a total of twelve beats Monday through Friday during the peak commute 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. Special weekend service on Beat Nos. 4 and 8, funded by the Mobile Source Air Pollution Reduction Review Committee (MSRC), is operated on Saturday and Sunday from 10:00 a.m. to 6:00 p.m. In FY 2019/20, FSP performed 49,064 assists. DISCUSSION: Staff sought a competitive solution to award tow service contracts to qualified firms for the following three beats on SR-91 and SR-60 as illustrated on Figure 1. Beat No. Beat No. Description Number of Tow Trucks 4 SR-91 from Magnolia Ave to 60/91/215 Interchange 2 (+1 backup truck) 7 SR-60 from Milliken St to Main St 2 (+1 backup truck) 8 SR-60 from Central Ave to I- 215 at Alessandro Blvd to SR- 60 at Theodore St 2 (+1 backup truck) 145 Agenda Item 11 Figure 1: Beats 4, 7, 8 Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm, personnel, and the ability to respond to the Commission’s needs for FSP tow truck services on SR-91, Beat No. 4 and SR-60, Beat Nos. 7 and 8, as set forth under the terms of the request for proposals (RFP) No. 21-45-049-00. Prior to the release of the RFP, staff conducted electronic outreach, in an effort to increase the participation of tow operators in the FSP program: • Email Blasts: Five targeted email blasts were sent to over 130 tow company addresses that included: o An Introduction to FSP, o Facts & Myths about FSP, o Pricing Facts, o Positive Changes in the FSP program, and o RFP Beats Map Normally, staff would have also conducted in-person meetings, prior to the release of the RFP, to discuss any questions tow operators might have about the process and provide information about the FSP program. Staff would have also participated in an informational booth at the 2020 California Tow Truck Association (CTTA) Tow Show, hosted with nine other counties in the state, to provide information about FSP and stay informed of current topics and issues within the tow industry. Unfortunately, COVID-19 precluded these outreach efforts. Despite the pandemic, the electronic outreach efforts did result in several responses received requesting further information about FSP and the RFP. 146 Agenda Item 11 Outreach efforts help to spread knowledge and awareness about the FSP program. Although not all tow operators reached may propose, the outreach effort helps the Commission strengthen its ongoing relationship with local tow companies and the CTTA for any future RFPs that may be released. Staff’s previous outreach efforts and conversations with tow companies also led to changes to the FSP contract which were included in this RFP: • Offering a different hourly rate for each year of the contract to address inflation costs; • Offering an optional disbursement of a mobilization payment to help the tow company purchase its tow trucks and insurance prior to the start of the contract; and • Lastly, allowing for a difference in hourly rates when it comes to regular work versus “extra work”. Extra work is work done outside of regular peak FSP service hours and/or coverage areas, typically for supplemental FSP service in support of a construction project. RFP No. 21-45-049-00 was released on April 8, 2021. The RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 41 firms, 19 of which are located in Riverside County. Through the PlanetBids site, 11 firms downloaded the RFP; three of these firms are located in Riverside County. A pre-proposal conference was held on April 15, 2021, and was attended by four firms. Staff responded to all questions submitted by potential proposers prior to the April 29, 2021 clarification deadline date. Three firms – Coastal Pride Towing, Inc. (Riverside); Pepe’s Towing Service Inc. (Colton); and Royal Coaches Auto Body & Towing (Riverside) – submitted proposals prior to the 2:00 p.m. submittal deadline on May 18, 2021. Coastal Pride Towing, Inc. Pepe’s Towing Service Inc., and Royal Coaches Auto Body & Towing submitted proposals for all three beats. All proposals submitted were responsive and responsible proposals. An evaluation committee comprised of the CHP Inland Division, Orange County Transportation Authority, San Bernardino County Transportation Authority, and Commission staff evaluated each proposal in accordance with the evaluation criteria set forth in the RFP. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee shortlisted all three firms for each beat. The evaluation committee conducted interviews of key personnel and reviewed site visit videos on June 3, 2021. Accordingly, the evaluation committee provided final scoring based on a comprehensive evaluation of each written proposal and interview. Based on the evaluation committee’s assessment, the evaluation committee determined Pepe’s Towing Service Inc. to be the most qualified firm to perform the work outlined in the scope of services for Beat Nos. 4, 7, and 8. The proposed five-year contract totals and evaluation rankings for all firms are presented in the following tables: 147 Agenda Item 11 State Route 91 – Beat No. 4 Firm Total Evaluation Ranking Pepe’s Towing Service Inc. $1,666,787 1 Royal Coaches Auto Body & Towing $1,693,997 2 Coastal Pride Towing, Inc. $1,710,410 3 State Route 60 - Beat No. 7 Firm Total Evaluation Ranking Pepe’s Towing Service Inc. $1,666,787 1 Royal Coaches Auto Body & Towing $1,693,991 2 Coastal Pride Towing, Inc. $1,710,410 3 State Route 60 - Beat No. 8 Firm Total Evaluation Ranking Pepe’s Towing Service Inc. $1,666,787 1 Royal Coaches Auto Body & Towing $1,693,991 2 Coastal Pride Towing, Inc. $1,710,410 3 As a result of the evaluation committee’s assessment of the written proposals and interviews, the evaluation committee recommends contract award for FSP tow truck services for SR-91, Beat No. 4, and SR-60, Beat Nos. 7 and 8, to Pepe’s Towing Service Inc. for a five-year term, in the amount of $1,666,787, plus a contingency of $83,340, for a total amount not to exceed $1,750,127 for Beat No. 4; $1,666,787, plus a contingency of $83,340, for a total amount not to exceed $1,750,127 for Beat No. 7; $1,666,787, plus a contingency of $83,340, for a total amount not to exceed $1,750,127 for Beat No. 8. The Commission’s standard form FSP services agreement will be entered into with the consultant subject to any changes approved by the Executive Director and pursuant to legal counsel review. Staff also recommends that the Executive Director, or designee, approve the use of the contingency amount as may be required for these services. The three new contracts will begin FSP service in January 2022. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2021/22 FY 2022/23+ Amount: $502,150 $4,748,231 Source of Funds: State of California, SAFE funds, MSRC Grant Budget Adjustment: No N/A GL/Project Accounting No.: 002173 81014 00000 0000 201 45 81002 Fiscal Procedures Approved: Date: 06/16/2021 Attachments: 1) Draft FSP Agreement No. 21-45-049-00 with Pepe’s Towing Service Inc. 148 Agenda Item 11 2) Draft FSP Agreement No. 21-45-050-00 with Pepe’s Towing Service Inc. 3) Draft FSP Agreement No. 21-45-051-00 with Pepe’s Towing Service Inc. 4) FSP Outreach Flyers 149 Agreement No. 21-45-049-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES, FOR FREEWAY SERVICE PATROL FOR BEAT # 4 WITHIN RIVERSIDE COUNTY WITH PEPE’S TOWING SERVICE 1.PARTIES AND DATE. 1.1 This Agreement is made and entered into as of _____day of _________, 2021, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“COMMISSION”) acting as the RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES (“SAFE”) and PEPE’S TOWING SERVICE, a California Corporation (referred to herein as “CONTRACTOR”). SAFE and CONTRACTOR are sometimes individually referred to herein as “Party” and collectively as “Parties”. 1.2 The California Highway Patrol herein referred to as “CHP” and California Department of Transportation, herein referred to as “Caltrans” are hereby expressly designated as third-party beneficiaries of CONTRACTOR’s performance under this Agreement. 2.RECITALS. 2.1 WHEREAS, COMMISSION is a California County Transportation Commission existing under the authority of Section 130050 et seq. of the California Public Utilities Code; 2.2 WHEREAS, COMMISSION is authorized, pursuant to Section 2550 et seq. of the California Streets and Highways Code, to act as SAFE for purposes of providing a motorist aid system, including provision of freeway service patrols; 2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide the freeway service patrol professional services as described in the Scope of Services; 2.4 WHEREAS, SAFE has determined that CONTRACTOR is best qualified to perform the required services; 2.5 WHEREAS, the CONTRACTOR is able and willing to perform the required services under the terms and conditions of this Contract; 2.6 WHEREAS, COMMISSION is the short range transportation planning agency for Riverside County, and programs federal, state, and local funds. COMMISSION has entered into a Memorandum of Understanding ATTACHMENT 1 150 with Caltrans and CHP to fund peak period freeway service patrols on selected freeway segments in Riverside County; and 2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically authorized CHP to be responsible for freeway service patrols stopping on freeways for the purpose of rapid removal of impediments to traffic. Article 3, Section 91, of the Streets and Highways Code, states that Caltrans has responsibility to improve and maintain the state highways. Caltrans also has the responsibility for traffic management and removing impediments from the highways. NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree as follows: 3. TERMS. 3.1 General Scope of Services. The purpose of the Freeway Service Patrol (“FSP”) program is to provide for the rapid removal of disabled vehicles and vehicles involved in minor accidents from the freeway. Contractor promises and agrees to furnish to SAFE all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide the FSP services ("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, and the SOP manual (as defined below). 3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the Services. Both agencies will have responsibility for overseeing Service performance and ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for dispatch services to incident locations within the CONTRACTOR’s patrol limits. The dispatching will be done in accordance with this Contract. A Standard Operating Procedures (“SOP”) manual will be given to the CONTRACTOR explaining the types of incidents to which his/her operators may be dispatched. 3.1.2 Beat Descriptions. The FSP will operate on selected freeway segments referred to herein as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. Exhibit “A” shows the specific limits, number of tow trucks, number of back-up trucks and hours of operation, and holidays for the CONTRACTOR’s specific beat. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. 3.1.3 Change Orders. At any time during the term of this Contract, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, or availability of funding, at no cost to SAFE. Adjustments may include reduction in 151 the hours of Services. SAFE may direct such adjustments during the course of this Contract through written change orders, signed by SAFE, setting forth any changes to Exhibit “A”. Changes may include a change of the specified beat(s) to other beats that SAFE determines better serve the needs of SAFE, as well as changes to schedules and hours for the beats set forth in Exhibit “A”. If warranted, as determined in SAFE’s sole discretion, and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. Such reassignments shall be at no cost to SAFE. 3.1.4. The SOP Manual. To promote a safe work environment and for the maintenance of professionalism, the most current version of the SOP manual shall, at all times, be followed by the CONTRACTOR and its vehicle operators. The SOP manual, as such manual may from time to time be amended, is incorporated into this Contract by reference. CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual. Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR may be fined three (3) times the hourly Contract rate in one (1) minute increments until a replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of the FSP Field Supervisors. 3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment requirements outlined in the attached Exhibit “A”. 3.3 Commencement of Services. The CONTRACTOR shall commence work upon receipt of a written Notice to Proceed from SAFE. 3.4 Term. The term of this Contract shall be for a period of five (5) years, from January 4, 2022 to January 3, 2027 unless earlier terminated as provided herein. SAFE shall also have the right to renew this Contract from one month up to a one (1) year term after the initial term by providing notice as provided below. SAFE must provide written notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term, indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the term of this Contract, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Contract shall remain in effect following the termination of this Contract. The rates shall be as follows: SCHEDULE OF HOURLY RATES Classification Year 1 Year 2 Year 3 Year 4 Year 5 Regular Rate $ 81.75 per hour $ 83.75 per hour $ 85.56 per hour $ 87.23 per hour $ 89.10 per hour CFSP/Extra Rate $ 89.93 per hour $ 92.12 per hour $ 94.12 per hour $ 95.95 per hour $ 98.01 per hour 3.5 SAFE's Representative. SAFE hereby designates the SAFE Executive Director or his or her designee, to act as its Representative for the performance of this 152 Contract ("SAFE’s Representative"). SAFE’s Representative shall have the authority to act on behalf of SAFE for all purposes under this Contract. SAFE's Representative shall also review and give approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR shall not accept direction or orders from any person other than the SAFE’s Representative or his or her designee. 3.6 CONTRACTOR’S Representative. CONTRACTOR hereby designates Lorenzo Navarro, Vice President, to act as its representative for the performance of this Contract ("CONTRACTOR’s Representative"). CONTRACTOR’s Representative shall have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. The CONTRACTOR’s Representative shall supervise and direct the Services, using his best 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 Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative and any other agencies which may have jurisdiction over or an interest in the Services. CONTRACTOR's Representative shall be available to the SAFE staff at all reasonable times. Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's Representative. 3.7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE that certain key personnel will perform and coordinate the Services under this Contract. Should one or more of such personnel become unavailable, CONTRACTOR may substitute other personnel of at least equal competence upon written approval by SAFE’s Representative. In the event that SAFE’s Representative and CONTRACTOR cannot agree as to the substitution of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to the provisions of Section 3.15. The key personnel for performance of this Contract are: Manuel Acosta, Owner/CEO; Lorenzo Navarro, General Manager; Pete Ortiz, Administrative Manager; Fernando Soria, Operations Manager; Laura Acosta, Office Administrator. 3.7.1 Availability of FSP Manager. Except in the case of unpreventable circumstances, the FSP Manager must be available at the CONTRACTOR’s office for at least 50% of each Work Day to address time sensitive issues related to this Contract or the Services, including, but not limited to, FSP administrative responsibilities; SAFE, CHP, and Caltrans requests; driver matters; and truck maintenance issues. CONTRACTOR shall, within 24 hours, notify SAFE of each circumstance causing the FSP Manager not to be available as required herein. As used in this section, the term “Work Day” shall mean and refer to any day that FSP service is provided, during those hours of operation for Construction FSP as identified on the attached Exhibit “A-1”. 3.8 Review of Work and Deliverables. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Contract may be required to be submitted to SAFE's Representative in draft form, and SAFE’s Representative may require revisions of such drafts prior to formal submission and approval. In the event that SAFE's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, SAFE's Representative may require 153 CONTRACTOR to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that CONTRACTOR has satisfactorily completed the Services required under this Contract and within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final Completion. Upon receipt of such notice, CONTRACTOR shall incur no further costs hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily completed all Services required under the provisions of this Contract. 3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR shall render assistance at public hearings or other meetings related to the performance of the Services. 3.10 Standard of Care: Licenses. CONTRACTOR represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Contract. CONTRACTOR 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. CONTRACTOR warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees and subcontractors have all licenses, permits, qualifications (including medical certification) 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 Contract. CONTRACTOR shall perform, at its own cost and expense and without reimbursement from SAFE, any services necessary to correct errors or omissions which are caused by the CONTRACTOR’s failure to comply with the standard of care provided for herein, and shall be fully responsible to SAFE for all damages and other liabilities provided for in the indemnification provisions of this Contract arising from the CONTRACTOR’s errors and omissions. Any employee of CONTRACTOR or its subcontractors who is determined by SAFE to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, 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 SAFE, shall be promptly removed from performing the Services by the CONTRACTOR and shall not be re-employed to perform any of the Services. 3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during performance of the Services. Should CONTRACTOR fail to make such correction in a timely manner, such correction may be made by SAFE, and the cost thereof charged to CONTRACTOR. 3.12 Inspection of Work. CONTRACTOR shall allow SAFE's Representative to inspect or review CONTRACTOR's performance of Services in progress at any time. SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull Notice Program. 154 3.13 Laws and Regulations. CONTRACTOR 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 Services, including all Cal/OSHA requirements, and shall give all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws and regulations in connection with Services. If the CONTRACTOR performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to SAFE, CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Damage Complaints. Upon receiving a damage complaint from a motorist assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification. If necessary, the CONTRACTOR shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result of the negotiations. All complaints shall be resolved within a reasonable period of time after being received. 3.14.1 Complaint Review Committee. The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the amount of the damage claim may be deducted from the CONTRACTOR’s monthly invoice. 3.15 Termination. 3.15.1 Notice; Reason. SAFE may, by written notice to CONTRACTOR, terminate this Contract, in whole or in part, including, without limitation, the geographical territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such termination, and specifying the effective date thereof (“Notice of Termination”). Such termination may be for SAFE’s convenience, due to lack of available funding for the Services, or because of CONTRACTOR's failure to perform its duties and obligations under this Contract, including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant to the Scope of Services described in Section 3, entitled “Terms,” as well as Section 7 of the RFP. CONTRACTOR may not terminate this Contract except for cause. 155 3.15.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may have been prepared or accumulated by CONTRACTOR in performance of the Services, whether completed or in progress. 3.15.3 Effect of Termination For Convenience. If the termination is to be for the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and adequately provided through the effective date of termination as provided in the Notice of Termination. Such payment shall include a pro-rated amount of profit, if applicable, up through such effective date, but no amount shall be paid for anticipated profit on unperformed Services past such effective date. CONTRACTOR shall provide documentation deemed adequate by SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the effective date of termination. This Contract shall terminate on the effective date of the Notice of Termination. 3.15.4 Effect of Termination for Cause. If the termination is for cause, CONTRACTOR shall be compensated for those Services which have been fully and adequately completed and accepted by SAFE as of the effective date of termination as provided in the Notice of Termination. In such case, SAFE may take over the work and prosecute the same to completion by contract or otherwise. Further, CONTRACTOR shall be liable to SAFE for any reasonable additional costs or damages incurred to revise work for which SAFE has compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole discretion needs to be revised, in part or whole. Termination of this Contract for cause may be considered by SAFE in determining whether to enter into future contracts with CONTRACTOR. 3.15.5 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 Contract. 3.15.6 Procurement of Similar Services. In the event this Contract is terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.15.7 Waivers. CONTRACTOR, in executing this Contract, recognizes that the Services may be terminated, in whole or in part, as provided in this Section. CONTRACTOR shall not be entitled to any damages including, but not limited to, any compensation for costs incurred to procure vehicles, meet the terms for providing the Services, or for any other costs or expenses, and shall be deemed to have waived any and all claims for damages, costs or expenses which may otherwise arise from SAFE's termination of this Contract, for convenience or cause, as provided in this Section. 3.15.8 Authorization to Terminate. The Executive Director of SAFE shall have the full authority and discretion to exercise SAFE’s rights under this Section 3.15, entitled “Termination”. 156 3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated management-level representative, to all trend meetings (i.e., required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR cannot have a management-level representative at a meeting, CONTRACTOR shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the CONTRACTOR’s contractual responsibility. Meetings are scheduled, and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior to the meeting. 3.17 Fees and Payment. 3.17.1 Amount to be Paid. Subject to the provisions set forth below for Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a fixed unit rate basis a ceiling price NOT TO EXCEED One Million Six Hundred Sixty-Six Thousand Seven Hundred Eighty-Seven Dollars ($1,666,787). 3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15 and 3.17.10. CONTRACTOR agrees to use its best efforts to perform the services and all obligations under this Contract within such ceiling price. 3.17.3 Hourly Rate; Break and Meal Periods. For its performance of the Services, the CONTRACTOR shall be paid for labor expended directly in the performance of the Services at the rates specified below. Payments shall be made monthly in arrears based on Services provided and allowable incurred expenses. The CONTRACTOR shall not be entitled to reimbursements for any expenses unless approved in advance in writing. SCHEDULE OF HOURLY RATES Classification Year 1 Year 2 Year 3 Year 4 Year 5 Regular Rate $ 81.75 per hour $ 83.75 per hour $ 85.56 per hour $ 87.23 per hour $ 89.10 per hour CFSP/Extra Rate $ 89.93 per hour $ 92.12 per hour $ 94.12 per hour $ 95.95 per hour $ 98.01 per hour Hourly rates may be adjusted as set forth in Chapter 9, Violations/Penalties, of the FSP Standard Operating Procedures (SOP). A) CONTRACTOR is responsible for compliance with all California labor laws related to break periods and meal periods including, but not limited to, compliance with Labor Code section 512. CONTRACTOR shall be solely responsible for any additional pay to which its drivers may be entitled for CONTRACTOR’s failure to comply with the California labor law requirements. 157 B) During shifts that require drivers to be provided a 30- minute meal period break pursuant to Labor Code section 512, CONTRACTOR shall either make arrangements for another certified driver to provide Services during those breaks or not be compensated for each 30-minute meal period break during which Services are not provided. In no case shall CONTRACTOR be entitled to bill RCTC for time during which a driver is taking a meal period break. 3.17.4 Payment Coverage. The compensation herein above specified will cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits, as well as indirect costs, overhead, general and administrative expense, and profit. 3.17.5 Cost Principles. A) CONTRACTOR agrees to comply with 2 CFR, Part 225, Cost Principles for State and Local Government, and 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. B) CONTRACTOR agrees that 1) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual cost items, and 2) CONTRACTOR shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. C) Any costs for which CONTRACTOR has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 225, 48 CFR, Chapter 1, Part 31 or 2 CFR, Part 200, are subject to repayment by CONTRACTOR to SAFE. Should CONTRACTOR fail to reimburse moneys due SAFE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, SAFE is authorized to intercept and withhold future payments due CONTRACTOR from SAFE or any third-party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. 3.17.6 Fines. Fines for starting late; leaving early; taking more breaks than authorized; or being ordered out of service by a CHP, SAFE Representative or Caltrans supervisor for Contract infractions shall be deducted from the CONTRACTOR’s monthly invoice at five (5) times the hourly rate, plus the loss of revenue for the down time. Fines may be further described in the attached Exhibit “A” or Exhibit “B”. 3.17.7 Accounting System. CONTRACTOR 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 CONTRACTOR 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. 158 3.17.8 Invoices. Invoices for CONTRACTOR’s Services shall be submitted monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure prompt payment, most billing disputes may be resolved within ten (10) working days of written notice of dispute. However, at SAFE’s discretion, reconciliation of disputed fines that sum to less than 2% of the months’ Invoice may be corrected on the next month’s Invoice to ensure prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the CONTRACTOR’s authorized officer. Invoices shall be mailed to SAFE’s Contract Administrator at the following address: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 3.17.8.1 Payment Schedule. Invoice periods shall be based upon a calendar month, beginning with the first day of the month. SAFE shall reimburse CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which CONTRACTOR believes are thirty (30) days overdue. SAFE shall pay any undisputed invoice(s) and amount(s) within thirty (30) days of receipt of a notice of failure to pay. 3.17.9 Right to Audit. For the purpose of determining compliance with this Contract and other matters connected with the performance of CONTRACTOR’s contracts with third parties, CONTRACTOR and its subcontractors shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times for three years from the date of final payment of Funds to CONTRACTOR. SAFE, the State of California acting through the Department of Transportation or its duly authorized representative, the California State Auditor, or the United States Department of Transportation shall each have access to any books, records, and documents that are pertinent for audits, examinations, excerpts, and transactions, and CONTRACTOR shall furnish copies thereof if requested. 3.17.10 Taxes. CONTRACTOR shall pay any sales, use, or other taxes, if any, attributable to the provision of the Services. 3.17.11 Travel and Subsistence. Payments to CONTRACTOR 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 159 current State Department of Personnel Administration (DPA) rules. If the rates invoiced are in excess of those authorized DPA rates, then CONTRACTOR is responsible for the cost difference and any overpayments shall be reimbursed to SAFE on demand. 3.17.12 Employment Adverse to the SAFE. CONTRACTOR shall notify SAFE, and shall obtain SAFE’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against SAFE during the term of this Contract. 3.17.13 Extra Work. At any time during the term of this Contract, SAFE may request CONTRACTOR to perform Extra Work. “Extra Work” shall mean any work which is determined by SAFE to be necessary for proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor be compensated for Extra Work without obtaining authorization in the form of a written Extra Work Order issued by SAFE’s Representative. For instance, Construction FSP services as it relates to construction activity can be considered Extra Work. In the event an Extra Work Order is not issued and signed by SAFE’s Representative, CONTRACTOR shall not provide such Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is not authorized by SAFE and if the cumulative total of such Extra Work under the Contract exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved in advance by amendment to this Contract. 3.17.13.1 Extra Work Cancellation Policy. If a tow operator is scheduled for Extra Work and they are notified of a cancellation with LESS than a 24 hour notice – then the tow operator will be reimbursed for three (3) hours of the agreed upon contract hourly rate. Note: The minimum of the three (3) hours should cover eight hours of the drivers’ hourly wage. Starting with “Less than a 24 hour cancellation notice” up to the time the tow operator is on the assigned Extra Work Beat, the “three contract hour cancellation rate” remains the same. Once the tow operator is on the Extra Work Beat, the cancellation policy changes. If a tow operator begins the Extra Work (the truck is on the Beat) and is then notified that Extra Work has been cancelled, the FSP operator will be paid for the entire shift period up to a maximum of eight (8) hours. A shift period for this policy is defined as: the time period of the actual Extra Work shift assigned or for a maximum of eight (8) contract hours, whichever is less. The supervising FSP CHP Officer for the Extra Work shift will make the final determination as to whether or not the tow operator will continue to work the Extra Work shift. Regardless, the tow operator will be reimbursed for the original shift period or a maximum or eight (8) hours, whichever is less. 3.17.14 Most Favored Customer. CONTRACTOR agrees that, throughout the term of this Contract, it shall not enter into any FSP services agreement with any government agency with whom it has either existing contractual relationship or has no 160 contractual relationship that predates this Contract, pursuant to which CONTRACTOR agrees to charge FSP services fees less than those as indicated in this Contract for substantially the same level of FSP services contemplated by this Contract. Should SAFE establish that such lower fees have been agreed to by CONTRACTOR with another government agency, CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the difference between the fees indicated in this Contract and the fees charged to other government agency customer. 3.18 Delay in Performance. 3.18.1 Excusable Delays. Neither Party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented from the timely performance of any act or Services required by the terms of the Contract by an Excusable Delay, Contractor’s schedule for completion of tasks affected by such delay may be extended as set forth in Section 3.18.2. But in every case, CONTRACTOR’s failure to perform must be reasonably beyond the control, and without the fault or negligence of the CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions of SAFE or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather. 3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by CONTRACTOR of any right to an excusable delay in time of performance. 3.18.3 Mutual Contract. Performance of any Services under this Contract may be delayed upon mutual agreement of the Parties. Upon such agreement, CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.19 Status of CONTRACTOR/Subcontractors. 3.19.1 Independent Contractor. The Services shall be performed by CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods and details of performing the Services subject to the requirements of this Contract. SAFE retains CONTRACTOR on an independent contractor basis and not as an employee, agent or representative of the SAFE. CONTRACTOR retains the right to perform similar or different services for others during the term of this Contract. Any additional personnel performing the Services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. CONTRACTOR shall pay all wages, 161 salaries and other amounts due such personnel in connection with their performance of Services and as required by law. CONTRACTOR 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. 3.19.2 Assignment or Transfer. CONTRACTOR shall not assign, hypothecate, or transfer, either directly or by operation of law, this Contract or any interest herein, without the prior written consent of SAFE. 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. Notwithstanding the foregoing, SAFE may transfer or assign any and all of its rights and obligations under this Contract, including, without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15 hereof. 3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion of the work or Services required by this Contract, except as expressly stated herein, including the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall have no liability to any subconsultant(s) for payment for services under this Contract or other work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR pursuant to the conduct of services under this Contract shall duly note that the responsibility for payment for the technical services or any other work performed shall be the sole responsibility of CONTRACTOR. 3.20 CONTRACTOR will maintain an inventory of all non-expendable equipment, defined as having a useful life of at least two years and an acquisition cost of $500 or more, paid for with funds provided pursuant to this Contract. 3.21 Ownership of Materials and Confidentiality. 3.21.1 Documents & Data; Licensing of Intellectual Property. All 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, spreadsheets, or data magnetically or otherwise recorded on computer diskettes, prepared by or on behalf of CONTRACTOR under this Contract (“Documents and Data”), shall be made available to SAFE at all times during this Contract and shall become the property of SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have the right to retain copies of all such Documents and Data for its records. Should CONTRACTOR, either during or following termination of this Contract, desire to use any Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a no-cost, nonexclusive, and perpetual license for SAFE to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in the Documents and Data which are prepared or caused to be prepared by CONTRACTOR under this Contract (“Intellectual Property”). CONTRACTOR shall require all subcontractors to agree in writing that SAFE is granted a no-cost, nonexclusive, and 162 perpetual license for any Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR represents and warrants that CONTRACTOR has the legal right to license any and all Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract. SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided that any such use not within the purposes intended by this Contract shall be at SAFE's sole risk. 3.21.2 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 CONTRACTOR in connection with the performance of this Contract shall be held confidential by CONTRACTOR to the extent permitted by law, including, without limitation, the California Public Records Act, Government Code section 6250 et seq. Such materials shall not, without the prior written consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of the Services as provided herein. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services, except as provided herein. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally known, or becomes known, to the related industry shall be deemed confidential. CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the prior written consent of SAFE. 3.22 Indemnification. CONTRACTOR shall indemnify and hold SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, contractors, consultants, employees, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of, or incident to, any acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Contract, including without limitation, the payment of all consequential damages and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR’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 SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, contractors, consultants, employees, and volunteers. CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered against SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers, in any such suit, action, or other legal proceeding. CONTRACTOR shall reimburse SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, consultants, employees, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONTRACTOR’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CONTRACTOR, SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers. 163 3.23 Insurance. 3.23.1 Time for Compliance. CONTRACTOR shall not commence work under this Agreement until it has provided evidence satisfactory to SAFE that it has secured all insurance required under this section, in a form and with insurance companies acceptable to SAFE. In addition, CONTRACTOR shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.23.2 Minimum Requirements. CONTRACTOR 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 CONTRACTOR, its agents, representatives, employees or subcontractors. CONTRACTOR shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. CONTRACTOR shall maintain limits no less than: (i) General Liability: Per occurrence: $2,000,000 Project Specific Aggregate: $4,000,000 Products/Completed Operations: $1,000,000 Personal Injury Limit: $1,000,000 (ii) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (iii) 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. 3.23.3 On-Hook Insurance. CONTRACTOR shall maintain a policy of On-Hook Towing Insurance to include the care, custody or control exposure present while vehicles are being serviced roadside, on-hook, or in a storage yard for not less than one hundred thousand dollars ($100,000). 3.23.4 Insurance Endorsements. The insurance policies shall contain the 164 following provisions, or CONTRACTOR shall provide endorsements on forms approved by SAFE 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 SAFE, COMMISSION, CHP, Caltrans and their 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 SAFE, COMMISSION, CHP, 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) SAFE, COMMISSION, CHP, 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 CONTRACTOR or for which the CONTRACTOR is responsible; and (2) the insurance coverage shall be primary insurance as respects SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the CONTRACTOR’s scheduled underlying coverage. Any insurance or self-insurance maintained by SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, employees and agents shall be excess of the CONTRACTOR’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) CONTRACTOR 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. 165 (ii) The insurer shall agree to waive all rights of subrogation against SAFE, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the CONTRACTOR. (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 SAFE, its 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 SAFE, COMMISSION, CHP, and Caltrans (if agreed to in a written contract or agreement) before SAFE, COMMISSION, CHP or Caltrans 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) CONTRACTOR shall provide SAFE at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the CONTRACTOR 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 CONTRACTOR shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to SAFE 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. CONTRACTOR shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. CONTRACTOR shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance 166 coverage to be maintained by CONTRACTOR, and any approval of said insurance by SAFE, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the CONTRACTOR 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, SAFE has the right but not the duty to obtain the insurance it deems necessary and any premium paid by SAFE will be promptly reimbursed by CONTRACTOR or SAFE will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, SAFE may cancel this Agreement. SAFE may require the CONTRACTOR to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither SAFE, COMMISSION, CHP, Caltrans nor any of their 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: 3.23.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by SAFE. If SAFE does not approve the deductibles or self-insured retentions as presented, CONTRACTOR shall guarantee that, at the option of SAFE, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects SAFE, its directors, officials, officers, employees and agents; or, (2) the CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.23.6 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 SAFE. 3.23.7 Verification of Coverage. CONTRACTOR shall furnish SAFE with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to SAFE. 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 SAFE before work commences. SAFE reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.23.8 Subcontractor Insurance Requirements. CONTRACTOR shall not allow any subcontractors to commence work on any subcontract until they have provided evidence satisfactory to SAFE that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or 167 subcontractors shall be endorsed to name SAFE, COMMISSION, CHP and Caltrans as additional insureds using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by CONTRACTOR, SAFE may approve different scopes or minimum limits of insurance for particular subcontractors or subcontractors. 3.23.9 Review of Coverage. SAFE retains the right at any time to review the coverage, form and amount of insurance required herein and may require CONTRACTOR to obtain additional insurance reasonably sufficient in coverage, form, amount to provide adequate protection against the kind and extent of risk which exists at the time of change in insurance required. 3.23.10 Safety. CONTRACTOR shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the CONTRACTOR 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. 3.24 Prohibited Interests. 3.24.1 Solicitation. CONTRACTOR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Contract. Further, CONTRACTOR 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 CONTRACTOR, any fee, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, SAFE shall have the right to rescind this Contract without liability. 3.24.2 Conflict of Interest. For the term of this Contract, no member, officer or employee of SAFE, during the term of his or her service with SAFE, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. 3.24.3 Conflict of Employment. Employment by the CONTRACTOR of personnel currently on the payroll of SAFE shall not be permitted in the performance of this Contract, 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 CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the 168 date of execution of this Contract, where this employment is caused by, and or dependent upon, the CONTRACTOR securing this or related Contracts with SAFE, is prohibited. 3.25 Equal Opportunity Employment. CONTRACTOR 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, age, disability (including HIV and AIDS), mental disability, medical condition (cancer), marital status, denial of family and medical care leave, or denial of pregnancy disability leave. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Employment and Housing Act (Gov. Code Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.): The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this Contract by reference and made a part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in all of CONTRACTOR’s subcontracts with respect to work under this Agreement, unless exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE programs or guidelines currently in effect or hereinafter enacted. 3.26 Right to Employ Other CONTRACTORs. SAFE reserves the right to employ other CONTRACTORs in connection with the Services. 3.27 Governing Law. The validity of this Contract and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by and construed with the laws of the State of California. 3.28 Venue. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in Riverside County, California. The Parties agree that the venue for any action or claim brought by any Party will be the Central District of Riverside County. Each Party hereby waives any law or rule of court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties agree to use their best efforts to obtain a change of venue to the Central District of Riverside County. 3.29 Time of Essence. Time is of the essence for each and every provision of this Contract. 3.30 Headings. Article and section headings, paragraph captions, or marginal headings contained in this Contract are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.31 Notices. All notices hereunder and communications regarding interpretation of the terms of this Contract or changes thereto shall be given to the respective 169 Parties at the following addresses, or at such other addresses as the respective Parties may provide in writing for this purpose: CONTRACTOR: Pepe’s Towing Service 2000 W. Key Street Colton, CA 92324 Attn: Lorenzo Navarro SAFE: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 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. 3.32 Electronic Delivery of Agreement. A manually signed copy of this Agreement which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of the Agreement for all purposes. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.34 Entire Contract. This Agreement contains the entire Agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, contracts or understandings. 3.35 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. 3.36 No Waiver. Failure of CONTRACTOR 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. 3.37 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 170 day ("Eight-Hour Law"), unless CONTRACTOR or the Services are not subject to the Eight- Hour Law. CONTRACTOR shall forfeit to SAFE 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 CONTRACTOR or the Services are not subject to the Eight-Hour Law. 3.38 Subpoenas or Court Orders. Should CONTRACTOR receive a subpoena or court order related to this Agreement, the Services or the Project, CONTRACTOR shall immediately provide written notice of the subpoena or court order to the SAFE. CONTRACTOR shall not respond to any such subpoena or court order until notice to the SAFE is provided as required herein and shall cooperate with the SAFE in responding to the subpoena or court order. 3.39 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, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.40 Counterparts. This Agreement may be signed in one or more counterparts, any one of which shall be effective as an original document. 3.41 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.42 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. In the event the standards set forth in this Agreement conflict with the standards set forth in any exhibit hereto, the higher standard shall govern. 3.43 Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a Party hereto and payable under Section 3.21, Indemnification. 3.44 Consent. Whenever consent or approval of any Party is required under this Contract, that Party shall not unreasonably withhold nor delay such consent or approval. 3.45 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.46 Mobilization Costs Payment. Intentionally Omitted 171 [Signatures on following page] 172 SIGNATURE PAGE TO AGREEMENT 21-45-049-00 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION PEPE’S TOWING SERVICE ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: ____________________________ By: _____________________________ Anne Mayer, Executive Director _____________________________ Name _____________________________ Title APPROVED AS TO FORM: Attest: By: ____________________________ By: ____________________________ Best Best & Krieger LLP, Counsel to the Riverside County Its: Secretary Service Authority for Freeway Emergencies 173 EXHIBIT “A” Scope of Services 174 1.0 GENERAL INFORMATION 1.1 Background & Introduction In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide Freeway Service Patrol (FSP) and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute a 25 percent local match. For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. 1.2 Project Description The purpose of the FSP program is to provide a continuous roving patrol for the rapid removal of disabled vehicles and those involved in minor accidents from the freeway. Where traffic conditions permit, safe removal of small debris will be required. Vehicle operators shall be responsible for clearing the freeway of automobiles, small trucks, and small debris. When and where conditions warrant, service may be executed on the freeway shoulders. Where conditions do not warrant, vehicle operators will remove the vehicles from the freeway to provide service. FSP vehicles shall continuously patrol their assigned beat, respond to CHP calls for Services, use the designated turnaround locations, and use the CHP identified designated drop locations. FSP vehicle operators may be required to perform minor services such as change flat tires, provide "jump" starts, provide one gallon of gasoline or diesel fuel, temporarily tape cooling system hoses, and refill radiators in a safe and efficient manner. Vehicle operators may spend a maximum of ten (10) minutes per disablement in attempting to mobilize a vehicle. If a disabled vehicle cannot be mobilized within the ten-minute (10) 175 time limit, it shall be towed to a designated drop location identified by the CHP. The motorist can request the FSP vehicle operator to call the CHP Communications Center to request a CHP rotational tow or other services. FSP vehicle operators shall not be allowed to tow as an independent contractor from an incident that occurred during the FSP shift unless called as a rotation tow by CHP after the FSP shift has ended. If called as a rotation tow after a FSP shift, the vehicle operator must remove all FSP markings such as vests, uniforms, and magnetic vehicle signage. There may be some instances where FSP operators may be requested to provide assistance to CHP officers. FSP operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. All FSP services shall be provided at no cost to the motorist. FSP vehicle operators shall not accept gratuities, perform secondary towing services, recommend secondary tows, or recommend repair/body shop businesses. Freeway Service Patrol hours of operation are 5:30 a.m. to 8:30 a.m. and 2:30 p.m. to 6:30 p.m., Monday through Thursday; and 5:30 a.m. to 8:30 a.m. and 12:30 p.m. to 6:30 p.m. on Friday. Contractor vehicles shall be exclusively dedicated to the service during FSP service hours. All vehicle maintenance activities shall be conducted during non-service hours. The FSP operates on selected freeway segments referred to as “Beats”. Each Beat has specific turnaround locations and designated drop locations identified by the California Highway Patrol (CHP). The Scope of Services (Section 2.0) hereunder identifies the specific limits, number of tow trucks, number of back-up trucks, hours of operation, and tentative holidays on which the cost of each beat shall be based. RCTC reserves the right to add or delete holidays to the work schedule. Travel time to and from the Beat will be at the expense of the Contractor. To be awarded a contract, a Contractor must have a tow facility within close proximity to the service area, have been in business as a tow service operator for a minimum of five (5) years, and have a minimum of one (1) full year experience working under contract/agreement and in good standing within the last three (3) years with any type of law enforcement agency. A Contractor with no prior FSP experience shall be considered NEW and may only be awarded one FSP beat. A Contractor that has been terminated for cause from any FSP contract within the state shall not be eligible to participate in the Riverside County FSP program. A NEW Contractor, who remains in good standing, as determined by FSP management, may be considered for additional beat awards in future procurements. An existing Contractor that is not in good standing as determined by information received by the FSP management staff at the time of their proposal may, at the discretion of FSP management, be limited to the number of beats the Contractor is awarded, including not being awarded any beats. 176 FSP Management Staff reserves the right to limit the number of beats awarded to one Contractor. At any time during the contract's term, RCTC reserves the right to adjust Beat specifications and Beat hours to better accommodate demand for the service, or the availability of funding. These changes can occur during the course of the contract through written change orders. If warranted during the service hours of operation, the Contractor may be requested to temporarily reassign his/her FSP operators/trucks to locations outside its assigned Beat. Tow Operators may be permitted to do this only upon CHP and/or RCTC approval. FSP vehicle operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. The contract start date for Beats 4, 7 and 8 shall be January 4, 2022. The first day of FSP service is Tuesday, January 4, 2022. These are 5-year contracts that expire on January 3, 2027. If awarded a contract, the Contractor shall have one hundred seventy-three (173) calendar days for Beat 4, 7 and 8, after the notice of award (notice of award tentatively expected on or around July 15, 2021), in which to acquire the required equipment and hire and train vehicle operators. The Contractor shall have the appropriate number of primary and back-up trucks ready for equipment installation and CHP inspection no later than December 15, 2021. Any company that cannot meet the above-mentioned requirements shall not be awarded the contract(s). 2.0 Beat Description/Summary FSP operates on selected freeway segments referred to as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. The specific limits, number of tow trucks, number of back-up trucks and hours of operation, including the holiday schedule, are detailed below. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. At any time, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, or availability of funding. These changes can occur during the course of this Contract through written change orders. If warranted and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. 177 5-yr Contracts: January 4, 2022 to January 3, 2027 _ a FSP Beat # Beat Description One-Way Length in Miles # Primary FSP Trucks in both AM and PM # Backup FSP Trucks 4 SR91 from Magnolia Ave to 60/91/215 Interchange 11.0 2 1 7 SR60 from Milliken St to Main St 11.7 2 1 8 SR60 from Central Ave to I215 at Alessandro Blvd to SR60 at Theodore St 12.3 2 1 2.1 Hours of Operation: Monday through Thursday: 5:30 a.m. to 8:30 a.m., and from 2:30 p.m. to 6:30 p.m. Friday: 5:30 a.m. to 8:30 a.m., and from 12:30 p.m. to 6:30 p.m. Each Beat requires at least one backup truck available at all times. RCTC reserves the right to change Beat hours and operational requirements during the course of the contract. a. Total estimated service hours per vehicle/per year: 1,950 b. In addition to the above service hours, at the discretion of RCTC and CHP, additional service may be requested on certain “high traffic days” on/or following certain holidays (e.g., July 4th, Labor Day, and Memorial Day). Contractor will be notified at least one week prior to when this service is to be provided. During FSP shifts that require a 30-minute meal period break to be provided pursuant to Labor Code section 512, the Contractor shall either make arrangements for another certified FSP driver to provide the contracted FSP coverage during those breaks or not be compensated for each 30-minute meal period break during which FSP service is not provided. In no case shall the Contractor be entitled to compensation from RCTC for time during which its FSP driver is taking a 30-minute meal period break, unless the Contractor has provided another driver to cover this 30-minute meal period break. 2.2 Holiday Schedule 178 Proposer shall submit its cost proposal for provision of the required FSP tow services five days each week, Monday through Friday, of each year during the contract term, except for the following ten (10) holidays: 1. Martin Luther King, Jr. Day (Monday) 2. Presidents’ Day (Monday) 3. Memorial Day (Monday) 4. Independence Day (July 4 - varies) 5. Labor Day (Monday) 6. Veterans Day (varies) 7. Thanksgiving Day (Thursday) 8. Day after Thanksgiving (Friday) 9. Christmas Day (December 25 - varies) 10. New Year’s Day (January 1 – varies) 3.0 FSP Management and Representatives RCTC has entered into a Memorandum of Understanding with the California Department of Transportation (Caltrans) and CHP, in order to provide peak hour freeway service patrols on selected freeway segments for traffic mitigation, as well as air quality improvement within Riverside County. RCTC, Caltrans, and CHP will jointly oversee the service. RCTC serves as the contract administrator and funding partner; Caltrans provides oversight; and CHP is responsible for the daily operations and field supervision of the program. Authority for FSP derives from (a) Section 21718 (A) of the California Vehicle Code, which allows FSP trucks supervised by the CHP to stop on freeways for the purpose of rapid removal of impediments to traffic, and (b) Article 3, Section 91, of the Streets and Highways Code, which states that Caltrans is responsible for traffic management and removing impediments from the highways, as well as improving and maintaining the state highways. 3.1 Standard Operating Procedures The guidelines and policies of the FSP program, which promote a safe work environment and maintain a level of professionalism, are contained in the Standard Operating Procedures (SOP) manual developed by the CHP. The SOP and any updates to it are incorporated into the contract with RCTC, therefore, the Contractor and their vehicle operators are responsible to operate and adhere to the most recent version of the SOP at all times. Contractor shall be held responsible for maintaining an updated SOP (latest version issued with the RFP), which is incorporated herein by reference. SOP revisions and updates shall be unilaterally issued by RCTC or CHP, as deemed necessary by CHP or the FSP Technical Advisory Committee, and all changes, revisions and updates to 179 the SOP, if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of the original RFP package and additional hard or soft copies can be provided to all interested parties upon request. Vehicle operators or trucks found not to be in compliance with FSP procedures defined in the SOP may be penalized, suspended, and/or terminated from the FSP program and the company may also be assessed liquidated damages amounts for said violations as described herein. Liquidated damages are inclusive of other remedies at law and/or those described under the terms of the contract. Refer to Proposal Pricing Form for further details on violations and penalties. 4.0 Vehicles 4.1 Tow Truck Requirements Primary and back-up FSP tow trucks shall be exclusively dedicated to the FSP program during FSP service hours of operation. They are not required to be exclusive during non-FSP hours. All vehicle maintenance activities shall be conducted during non-Service hours. When conducting the Services on a FSP shift, the CONTRACTOR’s vehicle shall display all FSP markings and the vehicle operator shall wear a FSP uniform. The FSP will utilize, at a minimum, Class A tow trucks with a minimum gross vehicle weight rating of 14,000 pounds, dual wheel chassis, and a four (4) ton recovery equipment rating. All trucks proposed for use in the FSP Program must be less than one (1) year old with a maximum of 50,000 miles on the chassis and working parts of the truck at the onset of the contract, free of any mechanical defects or physical damage and have a clear (non-salvage) title. Extenuating circumstances dictating departure from this specification should be at the consensus of the local FSP partners. The CHP, in conjunction with Caltrans or the regional transportation agency, should verify the original purchase dates to ensure compliance. Lastly the truck shall have seating capabilities for five (5) adults. All FSP tow trucks must be Department of Transportation (DOT) compliant, as well as California Air Resources Board (CARB) compliant. This includes an engine that has been certified by CARB, as required by law in the State of California. Any tow truck that is utilized for the FSP Program must comply with emission standards set forth by DOT and CARB, as well as all local, state, and federal laws associated with that truck and as outlined in the RFP. Each tow truck shall be equipped in accordance with the CHP’s Freeway Service Patrol Manual and Standard Operating Procedures Manual and, at a minimum, shall include the following: a. Equipment & Supplies (Required) 180 1. Wheel lift towing equipment, with a minimum lift rating of 3,000 pounds. All tow equipment shall include proper safety straps. 2. Boom with a minimum static rating of 8,000 pounds. 3. Winch Cable - 8,000 pound rating on the first layer of cable. 4. Wire rope – 100ft., 3/8 inch diameter, 6 x19 or OEM specifications. 5. Two (2) Tow chains 3/8" alloy or OEM specs., J/T hook assembly. 6. Rubber faced push bumper. 7. Mounted spotlight capable of directing a beam both front and rear. 8. Amber warning lights with front and rear directional flashing capability, with on/off switch in cab. 9. Public address system. 10. Power outlets ("hot boxes"), front and rear mounted, with outlets compatible to 12-volt booster cables. 11. Heavy duty, 60+ amp battery. 12. Radios with the ability to communicate with the Contractor's base office (Verizon). 13. Programmable scanners capable of scanning between the 39 and 48 MHz used by the CHP. Scanners need to be capable of scanning CHP Police frequencies, and must be mounted for safety concerns. 14. Suitable cab lighting. 15. Trailer hitch capable of handling a 1 7/8-inch ball and 2 inch ball. 16. One (1) 1 7/8-inch ball and one (1) 2 inch ball. 17. Rear work lights. (4) 18. Safety chain D-ring or eyelet mounted on rear of truck. 19. Motorcycle straps. (2) 20. Diesel fuel in plastic jerry cans. (5 gallons) 21. Unleaded gasoline in plastic jerry cans. (5 gallons) 22. Safety chains min. 5ft. min. 5/16” Alloy or OEM Spec. (2) 23. First aid kit (small 5" x 9"). (1) 24. Fire extinguisher aggregate rating of at least 4 B-C units. (1) 25. Pry bar - 36" or longer. (1) 26. Radiator water in plastic container. (5 gallons) 27. 4" x 4" x 48" wooden cross beam. (1) 28. 4" x 4" x 60" wooden cross beam. (1) 29. 24" wide street broom. (1) 30. Square point shovel. (1) 31. Highway flares 360 minutes min. 32. Cones 18" height, reflectorized with tape. 33. Hydraulic Floor Jack: 2-ton AND 34. 2-ton jack stand 35. Wheel chock 36. Four-way lug wrench (1 std.). (1) 37. Four-way lug wrench (1 metric). (1) 38. Rechargeable compressor or refillable air bottle, hoses and fittings to fit tire valve stems, 100 psi capacity. (1) 39. Flashlight and spare batteries. (1) 181 40. Tail lights/brake lights, portable remote with extension cord. (1 set) 41. Booster cables, 25 ft. long minimum, 3-gauge copper wire with heavy-duty clamps and one end adapted to truck's power outlets. (1 set) 42. Funnel, multi-purpose, flexible spout. (1) 43. Pop-Up dolly (with tow straps), portable for removing otherwise untowable vehicles. (1) 44. 5-gallon can with lid filled with clean absorb-all. (1) 45. Empty trash can with lid (5 gallon). (1) 46. Lock out set. (1) 47. Safety glasses. b. Equipment & Supplies (Recommended) 48. Towing slings rated at 3,000 pounds minimum. RECOMMENDED 49. Sling crossbar spacer blocks. RECOMMENDED (2) c. Tools (Required) Each FSP truck will be required to have a toolbox with the following minimum number of tools/supplies. A tool kit for small equipment items is required. The list may be supplemented at the Contractor's option and expense. 50. Screwdrivers-- i. Standard-1/8", 3/16", 1/4", 5/16" (1 each, min). ii. Phillips head - #1 and #2 (1 each, min). 51. Needle nose pliers (1) 52. Adjustable rib joint pliers, 2" min. capacity (1) 53. Crescent wrench - 8" (1) 54. Crescent wrench - 12" (1) 55. 4 lb. hammer (1) 56. Rubber mallet (1) 57. Electrical tape, roll (1) 58. Duct tape, 20-yard roll (1) 59. Tire pressure gauge (1) 60. Mechanic's wire (roll) (1) 61. Bolt cutters (1) 4.2 Tow Truck Appearance FSP vehicles bearing the FSP title, logo, and vehicle identification number shall be painted white (includes the hood, fenders, doors, boom, and bed area – the entire truck is to be painted white). No trim is allowed. Lettering shall be in a blocked bold style parallel to the ground and shall be no less than 2 inches by 2 inches and no greater than 4 inches in height. Lettering can only be black in color (no other colors will be permitted). Letters shall be placed on the lower body of the truck toward the cab. 182 Contractor’s name on the boom is prohibited. The overall look of the truck must be approved by CHP prior to service implementation; therefore, any questions regarding this policy may be discussed with CHP prior to implementing, as truck compliance with current state FSP standards is required. No other accessory equipment, signage, or advertisements (mud flaps, stickers, employment advertisement, and so forth) shall be mounted or installed without prior CHP approval. This includes, but is not limited to: bras or window tint. It shall be the vehicle operator’s responsibility to place detachable FSP markings on each vehicle during FSP service hours and to remove the detachable markings immediately upon completion of each shift. RCTC will supply each Contractor with the appropriate number of detachable markings for each Beat(s). If a marking is lost or damaged, the Contractor shall be responsible for the cost of the replacement markings. All FSP markings shall be returned at the termination of the contract. The cost of any RCTC and/or Caltrans/CHP supplied item and/or equipment not returned shall be deducted from the Contractor's final payment. FSP markings, as well as vehicle numbers, shall be required on both sides of all trucks. The detachable markings (magnetic FSP signage) provided by RCTC, must be placed on the center of the driver and passenger doors of the vehicle. The vehicle operator shall be required to keep the title and logos clean, straight, and in readable condition throughout the FSP shift. The operator is also required to keep the magnetic signage flat (do not bend in any way), clean, and out of direct sunlight while being stored during non-FSP operational hours. 4.3 Vehicle Inspections Prior to commencement of service, the CHP will inspect each vehicle designated for the FSP to ensure that it meets the vehicle specifications and to ensure that it meets or exceeds safety requirements. These inspections will occur prior to the start of service. Succeeding inspections will occur periodically as determined by the CHP. Documentation of the vehicle identification number and successful completion of the inspection will be kept on file at the CHP office and Contractor's base office. Any unsafe, poorly maintained, or improperly equipped vehicle(s) shall be removed from service, and if discovered to be in such a condition during the shift said vehicle(s) shall be removed from service or repaired as directed by the CHP, and the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments for the remainder of that shift, plus the loss of revenue for the down time. Spare vehicles, also known as “back-ups”, will be required to complete the shifts of vehicles removed from service. The Contractor will be required to have a spare FSP vehicle available for service for the duration of each and every FSP shift. The vehicle operator shall be required to complete a pre-operation shift inspection log of the vehicle as well as inventory the required equipment prior to the start of each and every shift. The vehicle operator shall be required to complete a driver log, which is 183 used to track the mileage. A shift inspection/inventory log shall be completed by the vehicle operator prior to the start of each shift and be available for inspection. Any item missing must be replaced prior to the start of the shift. All equipment stored on top of the truck shall be secured to the truck. 4.4 Spare/Back-Up Vehicles The Contractor shall be required to have one FSP Certified Back-Up tow truck available per Beat during FSP service hours that is in full compliance with the agreement, unless otherwise authorized by RCTC and CHP in writing. During FSP service hours, the spare vehicle shall be kept at the Contractor’s yard or staged adjacent to the assigned beat. The FSP Certified Back-Up tow truck should be used when a Certified Primary FSP tow truck is unavailable. The FSP Certified Back-Up tow truck shall meet the same requirements for equipment, set-up, and color as the Certified Primary FSP tow truck. It shall meet all the vehicle equipment specifications. Refer to Attachment H for further details on violations and penalties. 4.5 Vehicle Breakdown and Other Missed Service The spare vehicle must be in service on the Beat within 45 minutes of the time a permanently dedicated vehicle is taken out of service for any reason. The Contractor shall not be paid for the time period that the contractually required trucks are not in service. If a vehicle is not made available within the required 45-minute time period, the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments for every minute that exceeds the 45 minute replacement period until a certified FSP compliant spare/back-up vehicle is provided. If a truck is not ready due to breakdown at the start of a shift, the fine time will be calculated from the start of the shift until a replacement is placed into service. If the entire shift is missed, Contractor shall be fined for the entire shift at three (3) times the hourly rate times the total minutes for the affected shift. Vehicle maintenance shall be performed during non-FSP service hours. In addition, not having a certified FSP “spare or back-up” vehicle operator available is not an allowable excuse for not having a spare (back-up) vehicle on the beat within the 45-minute time period. If the Contractor does not have a dedicated or spare truck on the Beat because a certified FSP vehicle operator is not available, the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments until a certified FSP replacement vehicle operator is provided. If the entire shift is missed because a vehicle operator was not available, the Contractor shall be fined for the entire shift at three (3) times the hourly rate times the total minutes for the affected shift. 5.0 Communications Equipment and Computers 5.1 Communications Equipment 184 Each FSP vehicle shall be equipped with various communication devices that will enable the vehicle operator to communicate with the CHP Communications Center. All vehicles shall be equipped with an Automatic Vehicle Location (AVL) system, radios, and Data Collection Devices (DCD). The AVL system, radio, and DCD equipment shall be purchased, owned, and supplied by RCTC. RCTC shall select the equipment installation vendor. The Contractor shall be responsible for maintaining the security of the vehicle communication equipment provided by RCTC. The Contractor shall be liable for any damage to the RCTC-owned communication equipment. The Contractor shall also be liable for the full replacement value of the communication equipment installed in the trucks while in the care, custody, and control of the equipment. RCTC will deduct repair fees as well as the full replacement cost of any RCTC equipment due to improper use or negligence by the Contractor, from any payment due to the Contractor. RCTC-supplied vehicle communications equipment shall be returned in full working condition upon contract termination. The cost of any equipment not returned within a reasonable time period shall be deducted from the Contractor's final payment. Programmable scanners capable of scanning between the 39 and 48 MHz used by CHP shall be supplied by the Contractor and shall be installed (mounted) in all vehicles. The Contractor is also required to use Verizon wireless cell phones with push-to-talk- plus capability, or equivalent, for communications with the CHP Communications Center and the CHP Field Supervisor. Wireless cell phones shall be purchased and maintained by the Contractor. The Contractor will also be responsible for all operating costs as well. In addition, tow operators are not permitted to take pictures, video, or capture any other images while performing FSP duties during FSP operational hours. These actions will not be tolerated, and a vehicle operator may be terminated if it is discovered they are doing so. In addition, any input of data into the DCD shall not be allowed while the vehicle is being operated/driven. Use of other devices while driving/operating a vehicle such as cell phones is prohibited by California State Law. The FSP vehicles shall be equipped with a public address system. The public address system shall have the capability for the driver of the disabled vehicle to hear instructions transmitted from the cab of the FSP vehicle when the FSP vehicle is directly to the rear of the disabled vehicle. 5.2 Computer Equipment The Contractor must have and maintain a desktop computer workstation with high- speed internet access and email to communicate with RCTC staff. 185 The Contractor must ensure that the DCD equipment is inspected and cleaned on a quarterly basis, or more frequently if needed. All DCD equipment should have the exterior protective case cleaned (protective outside case) and screen protector shall be inspected for functionality and serviceability. Worn items shall be immediately reported to RCTC. All DCD equipment must be kept in a secure location. During non-FSP operational hours, DCD equipment shall not be left in a tow vehicle or go home with a vehicle operator or anyone else. All DCD equipment must be in a designated charging area at the tow operator’s facility during non-FSP operational hours. The DCD equipment shall always have enough charge to complete each shift. In order to reduce instances of technology glitches, the DCD equipment shall be turned off/turned on at least once per week. DCD equipment is to be with the vehicle operator in their FSP truck during FSP operational hours. Any other location shall not be permitted. The Contractor shall immediately report any issues with the workstation or the DCD equipment to the RCTC FSP Program Manager or one of the FSP CHP Officers. Contractor is directly responsible to ensure their computer workstation is operating and has internet access at all times – this is a contract requirement. The Contractor shall provide access to the DCD equipment for RCTC staff, or their designated designee, at any time during the course of the Contract. In addition, the Contractor shall also make the workstation available to RCTC, or its designee, 30 calendar days prior to the start of the new service. The Contractor shall provide an annual inspection report to RCTC indicating the status of all equipment. RCTC will provide the submittal form. Tow operators should consider the accurate completion and timely return of this form as part of their contract requirements. 5.3 Equipment Tampering Tampering with FSP communication/tracking equipment so that it does not function properly to RCTC’s specifications, and/or is disconnected or moved (without FSP Management authorization) from its original installed location is strictly prohibited. This includes but is not limited to: breaking evidence tape/connection sealer on equipment connections, cutting wires or cables, moving mounted equipment (speakers, microphones, antennas, etc.), rerouting any wiring, disconnecting any connectors, Contractor/subcontractor unintentionally altering equipment or connections to equipment during vehicle maintenance or repair, or interfering with the operations of the equipment. If tampering is suspected, FSP Management may conduct an inspection of the equipment on the Beat or the vehicle may be sent to a designated location determined by FSP Management. 186 1. If tampering is found while the vehicle is used during FSP operational hours, the vehicle operator and vehicle will be immediately taken out of service and the Contractor shall be fined in one (1) minute increments at three (3) times their hourly rate, until such time that the back-up truck is deployed. Please note that if tampering is discovered, the penalties (three times the hourly rate in one minute increments) shall begin immediately upon the discovery of the tampering. The normal 45-minute back-up truck time allowance will not be considered “non-penalty” time under these circumstances. The penalties shall begin immediately upon the tampering being discovered. 2. If the vehicle is suspected to have equipment that has been tampered with, it may be sent to a designated location determined by FSP Management and CHP for an inspection. If tampering is found, the Contractor will be retroactively fined three (3) times the hourly rate in one (1) minute increments from the time the tampering was first suspected. The penalties will continue until a certified FSP back-up truck is deployed. The normal 45-minute back-up truck time allowance will not be considered “non-penalty” under these circumstances. Tampering Repairs If tampering is discovered during FSP operational hours, the vehicle will be taken out of service and will remain out of service until the repair and the documentation can be completed by the FSP Program designated technician. FSP Management determines the designated technician. The transportation, labor, and repair costs will be the responsibility of the Contractor. Costs incurred to repair and document the equipment will be deducted from the Contractor monthly invoice. Tampering Penalties The Contractor will also be assessed a $250 fine (whether the tampering is discovered while on the Beat, or if it was suspected and later confirmed) per incidence on their monthly invoice. If it is determined that the vehicle operator tampered with the equipment, the vehicle operator will be suspended for a minimum of 30 days for the initial tampering offense and subject to termination from the FSP Program for any subsequent tampering violations. 6.0 Contractor Responsibilities 6.1 Appearance at Hearings If and when required by SAFE, Contractor shall render assistance at public hearings or other meetings related to the performance of the Services. 6.2 Damage Complaints Upon receiving a damage complaint from a motorist assisted by the Contractor, that the Contractor damaged their vehicle while lending assistance, the Contractor shall notify CHP immediately regarding the nature of the damage complaint and its 187 disposition. The Contractor shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification from CHP. If necessary, the Contractor shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the Contractor, the Contractor shall negotiate in good faith to try and resolve the issue and shall report to CHP the result of the negotiations. All complaints shall be resolved within a reasonable time- period after being received. 6.3 Complaint Review Committee The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE, and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable timeframe, it can recommend that payment to the Contractor in the amount of the damage claim may be deducted from the Contractor monthly invoice. 6.4 Trend Meetings Contractor shall attend, or send a designated management-level representative, to all trend meetings (i.e., required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. Contractor shall be responsible for having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the Contractor. If the Contractor cannot have a management-level representative at a meeting, Contractor shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the Contractor’s contractual responsibility. Meetings are scheduled, and Contractor will be notified of such schedule, no later than three (3) working days prior to the meeting. 7.0 Vehicle Operators 7.1 Operator Qualifications and Performance All potential vehicle operators shall be required to have a safe driving record and, at a minimum, a valid Class C driver's license. All vehicle operators shall be 18 years of age or older at the time of background check. Potential vehicle operators shall be subject to driving record and criminal background checks through the California Highway Patrol. Potential vehicle operators shall be sufficiently experienced in the tasks of tow truck operations and proficient with all required Freeway Service Patrol equipment to provide safe and proper service. Any certified vehicle operator from other FSP areas will be evaluated on a case-by-case basis. All potential vehicle 188 operators must be capable of demonstrating their tow operating abilities prior to formal CHP training, also known as proficiency testing. Additionally, the vehicle operators will be required to exercise good, sound judgment in carrying out their duties. Vehicle operators shall be required to inform the CHP Communications Center any time they leave the assigned Beat. This includes breaks and replenishing expendable items, such as: gasoline, fire extinguisher, etc. The vehicle operator shall be required to immediately notify the CHP Communications Center upon a tow truck breakdown. FSP vehicle operators will be responsible for accurately entering the required data into DCD equipment every shift. Each FSP vehicle operator shall complete an inspection worksheet prior to the commencement of driving the tow truck and a mileage log prior to beginning service on the Beat. The FSP vehicle operator shall be required to complete an assist record for each incident. Each assist record should be accurate. Contractors or Operators providing false or misleading information to FSP Management shall be subject to disciplinary action and will be handled on a case-by- case basis. FSP vehicle operators shall always complete the required procedures per the SOP when handling required forms. No duplicate survey numbers should be entered into the DCD equipment at any time. Vehicle operators are required to complete in their entirety the Release of Liability form and Damage Release form when applicable. These completed forms should be handed in to RCTC at a minimum every 60 days. If it is discovered that a vehicle operator has entered duplicate survey numbers, not properly completed the release forms, or not turned the release forms in timely, the Contractor may be subject to penalties as outlined in Proposal Pricing Form. CHP, Caltrans, and RCTC maintain strict drug and alcohol policies. Contractors shall have an alcohol and drug program that includes at a minimum, a drug and alcohol free workplace policy and an employee alcohol/drug-testing program. Any FSP vehicle operator found working under the influence of drugs or alcohol shall be immediately removed from the FSP program by the Contractor. The Contractor shall be responsible for providing a certified replacement vehicle operator for that vehicle. The Contractor shall be an active participant in the DMV Pull Notice Program. If a vehicle operator is convicted of a crime involving a stolen vehicle, stolen property, violence, drugs, or moral turpitude, fraud related to the towing business, or misdemeanor or felony driving while under the influence of alcohol or a drug, the Contractor shall permanently remove that vehicle operator from duties under the FSP program. If a vehicle operator is charged with any of the above crimes, the Contractor shall immediately suspend that vehicle operator from duties under this program pending the outcome of the criminal case. If the vehicle operator is not convicted, or is ultimately convicted of a lesser crime not described above, RCTC retains the right to 189 have the Contractor remove that vehicle operator from the duties under the FSP program. 7.2 Operator Training At the Contractor’s expense, all company owners, FSP vehicle operators, and back-up vehicle operators shall be required to present a certificate of completion of a SHRP 2/TIMS training course and to complete the CHP two-day training program which costs approximately $50.00 per vehicle operator (fee is for the DL64 Tow Truck Driver Certificate and fingerprinting). Contractors shall pay all FSP operators and back-up vehicle operators for attending the training. No vehicle operator will be allowed to begin patrolling without meeting the requirements set forth in the SOP. Any vehicle operator who is found on patrol not meeting the requirements may be prohibited from further FSP service and the Contractor’s contract may be terminated immediately. Mandatory CHP refresher training classes shall be attended. A minimum of four (4) hours refresher training per year shall be required (at Contractor’s expense). Contractors shall pay all FSP vehicle operators and back-up vehicle operators for attending the required training. Vehicle operators will be required to utilize DCD equipment to input information about mileage, inspection, and each assist, which will include: location, vehicle make, model, license number, type of assistance provided, etc. Vehicle operators will be trained on using DCD equipment to enter data. 7.3 Operator Driving Record and Criminal History Check As required by California Vehicle Code Section 2340, all applicants and owners are required to have a driver’s license and criminal history check. Only after a completed CHP 234F is received and accepted by CHP, a driver’s license and preliminary criminal history check will be performed. The driver’s license check will consist of confirming that the applicant has a valid driver’s license and the applicant’s point count is within standards set forth in this SOP (refer to Chapter 11, Annex A). The preliminary criminal history check will consist of a preliminary background check to determine if the applicant meets the criteria for a California Tow Truck Driver Certificate as outlined in California Public Resources Code Section 5164, California Vehicle Code Section 13377 and the FSP Contract. In addition, RCTC or the CHP may, in its sole discretion, require an Employer to replace any vehicle operator or reject a potential vehicle operator who it determines is not suitable to represent the FSP Program with the public. If the applicant passes the preliminary criminal history check, the applicant shall submit to fingerprinting. Driver’s license and preliminary criminal history checks will be completed by CHP within ten (10) working days of the acceptance of a CHP 234F. 190 7.4 Vehicle Operator Uniform It shall be the responsibility of the Contractor to provide the vehicle operator with specified uniforms, black protective toe boots, nameplate, gloves and other equipment. The equipment includes navy blue coveralls or navy blue shirts and pants. If coveralls are worn, they shall have a collar with a zip front. Optionally, drivers may wear a standard navy blue (long-sleeve only) uniform shirt, with a fluorescent orange (must be only 2.5” wide) trim, with a ½” silver reflective tape down the middle. This allowed reflective tape must be on both sleeves. All uniforms shall be clean, properly maintained, and replaced whenever excessively worn. Sleeves and pant legs shall be moderately tapered to avoid excessive fullness. A safety vest with reflective stripes shall be worn and supplied by RCTC. RCTC will supply vests with the FSP logo patches already sewn on per CHP’s required patch placement locations. A FSP logo patch is not required to be sewn on the navy blue FSP vehicle operator uniform. A detachable brass or gold nameplate shall be worn with the first initial of the first name and full last name. Letters shall not exceed ½” tall. The nameplate shall be worn above the right chest pocket on the safety vest. The Contractor is responsible for obtaining FSP CHP approval of the driver nameplates, and the Contractor is responsible for the purchase and replacement of the FSP vehicle operator nameplate. All FSP vehicle operators shall wear general duty black work boots with protective (steel or composite) toe. During cold weather, a navy blue sweater or sweatshirt may be worn under the uniform shirt/coveralls. As an option, a navy blue jacket may also be worn, if it meets all the uniform specifications and is worn under the safety vest. Rain gear, if worn, shall be waterproofed material and navy blue or yellow in color. Hats, if worn, shall be baseball-type caps and navy blue in color. An "FSP" logo patch may be sewn on the hat above the brim. No other logos/names shall be accepted. A beanie may also be worn which must be navy blue in color and worn only with a jacket or long sleeve shirt under the vest. Contractor should refer to the most current SOP to ensure they are following the most recent requirements. SOP revisions and updates shall be unilaterally issued by RCTC, as deemed necessary by RCTC management, and all changes, revisions and updates to the SOP, if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of the original RFP package. 7.5 Local Office The Contractor shall provide a local office for contract administration purposes. This office shall be staffed by either the Contractor or a person who has the authority to conduct business and make decisions on behalf of the Contractor. The office shall 191 have business hours coinciding with Contractor's Beat(s) hours of operation. Through the Proposal document shown in the Contractor Representative Form, the Contractor shall designate representatives who will be available at the office during hours of operation to make decisions on behalf of the Contractor. The office shall be established within close proximity to the Contractor's Beat(s) and the County of Riverside. Also note in the Scope of Services, Section 4.4, a backup vehicle and a certified FSP vehicle operator must be available within a 45-minute request of the Beat area. This requirement may also determine if the local office is close enough to satisfy the requirements under this section. The Contractor shall also provide telephone and email through which he/she, or a responsible representative who has the authority to conduct business and make decisions on behalf of the Contractor, can be contacted during the non-service hours of operation for the length of the contract. During non-business hours, an answering machine provided at the Contractor's expense, shall be available to log calls, take complaints, etc. An email address that is monitored daily shall be provided for notification purposes during operational and non-service hours. The Contractor will be responsible for having a company representative monitor and review messages/notices on a daily basis. 7.6 Remedies and Liquidated Damages RCTC has a need to deal contractually with a range of failures by Contractors to meet contractual standards and requirements short of suspension or termination. Failure to meet contractual standards and requirements constitute a default under the contract and is subject to the various remedies provided in the contract, up to and including termination of the contract. It is clear that any default that is related to service or contractor’s readiness for service will either degrade service or lead to the degradation of service. The failure to meet contractual standards and requirements, therefore, causes damages to the FSP program and its participants (RCTC, CHP and Caltrans) and to the public being served by the FSP program. Because of the public service nature of the mission of the FSP, described generally in the Standard Operating Procedures (SOP), to keep traffic and commerce flowing on the regional freeways, the damages arising from contractor’s failure to meet the contractual standards and requirements are impractical or extremely difficult to ascertain on an individual basis. The contract has therefore established a series of remedies to attempt to deal with a range of defaults. The most egregious default will result in suspension or termination. Lesser defaults will result in the assessment of liquidated damages. These lesser remedies have been described in the SOP as fines, violations or penalties. This is not a correct characterization of the intent of the remedies. The remedies arise because the contractor is in default and the FSP and the public it serves is damaged by that 192 default. The remedies are to compensate FSP for its damages and to encourage compliance with performance requirements of the contract. 193 EXHIBIT “B” Compensation Summary FIRM PROJECT TASKS/ROLE COST Prime Consultant: Pepe’s Towing Service, Inc. FSP Services for Beat No. 4 $1,666,787.00 TOTAL COSTS $1,666,787.00 194 BLANK Agreement No. 21-45-050-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES, FOR FREEWAY SERVICE PATROL FOR BEAT # 7 WITHIN RIVERSIDE COUNTY WITH PEPE’S TOWING SERVICE 1.PARTIES AND DATE. 1.1 This Agreement is made and entered into as of _____day of _________, 2021, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“COMMISSION”) acting as the RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES (“SAFE”) and PEPE’S TOWING SERVICE, a California Corporation (referred to herein as “CONTRACTOR”). SAFE and CONTRACTOR are sometimes individually referred to herein as “Party” and collectively as “Parties”. 1.2 The California Highway Patrol herein referred to as “CHP” and California Department of Transportation, herein referred to as “Caltrans” are hereby expressly designated as third-party beneficiaries of CONTRACTOR’s performance under this Agreement. 2.RECITALS. 2.1 WHEREAS, COMMISSION is a California County Transportation Commission existing under the authority of Section 130050 et seq. of the California Public Utilities Code; 2.2 WHEREAS, COMMISSION is authorized, pursuant to Section 2550 et seq. of the California Streets and Highways Code, to act as SAFE for purposes of providing a motorist aid system, including provision of freeway service patrols; 2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide the freeway service patrol professional services as described in the Scope of Services; 2.4 WHEREAS, SAFE has determined that CONTRACTOR is best qualified to perform the required services; 2.5 WHEREAS, the CONTRACTOR is able and willing to perform the required services under the terms and conditions of this Contract; 2.6 WHEREAS, COMMISSION is the short range transportation planning agency for Riverside County, and programs federal, state, and local funds. COMMISSION has entered into a Memorandum of Understanding ATTACHMENT 2 195 with Caltrans and CHP to fund peak period freeway service patrols on selected freeway segments in Riverside County; and 2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically authorized CHP to be responsible for freeway service patrols stopping on freeways for the purpose of rapid removal of impediments to traffic. Article 3, Section 91, of the Streets and Highways Code, states that Caltrans has responsibility to improve and maintain the state highways. Caltrans also has the responsibility for traffic management and removing impediments from the highways. NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree as follows: 3. TERMS. 3.1 General Scope of Services. The purpose of the Freeway Service Patrol (“FSP”) program is to provide for the rapid removal of disabled vehicles and vehicles involved in minor accidents from the freeway. Contractor promises and agrees to furnish to SAFE all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide the FSP services ("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, and the SOP manual (as defined below). 3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the Services. Both agencies will have responsibility for overseeing Service performance and ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for dispatch services to incident locations within the CONTRACTOR’s patrol limits. The dispatching will be done in accordance with this Contract. A Standard Operating Procedures (“SOP”) manual will be given to the CONTRACTOR explaining the types of incidents to which his/her operators may be dispatched. 3.1.2 Beat Descriptions. The FSP will operate on selected freeway segments referred to herein as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. Exhibit “A” shows the specific limits, number of tow trucks, number of back-up trucks and hours of operation, and holidays for the CONTRACTOR’s specific beat. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. 3.1.3 Change Orders. At any time during the term of this Contract, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, or availability of funding, at no cost to SAFE. Adjustments may include reduction in 196 the hours of Services. SAFE may direct such adjustments during the course of this Contract through written change orders, signed by SAFE, setting forth any changes to Exhibit “A”. Changes may include a change of the specified beat(s) to other beats that SAFE determines better serve the needs of SAFE, as well as changes to schedules and hours for the beats set forth in Exhibit “A”. If warranted, as determined in SAFE’s sole discretion, and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. Such reassignments shall be at no cost to SAFE. 3.1.4. The SOP Manual. To promote a safe work environment and for the maintenance of professionalism, the most current version of the SOP manual shall, at all times, be followed by the CONTRACTOR and its vehicle operators. The SOP manual, as such manual may from time to time be amended, is incorporated into this Contract by reference. CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual. Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR may be fined three (3) times the hourly Contract rate in one (1) minute increments until a replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of the FSP Field Supervisors. 3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment requirements outlined in the attached Exhibit “A”. 3.3 Commencement of Services. The CONTRACTOR shall commence work upon receipt of a written Notice to Proceed from SAFE. 3.4 Term. The term of this Contract shall be for a period of five (5) years, from January 4, 2022 to January 3, 2027 unless earlier terminated as provided herein. SAFE shall also have the right to renew this Contract from one month up to a one (1) year term after the initial term by providing notice as provided below. SAFE must provide written notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term, indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the term of this Contract, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Contract shall remain in effect following the termination of this Contract. The rates shall be as follows: SCHEDULE OF HOURLY RATES Classification Year 1 Year 2 Year 3 Year 4 Year 5 Regular Rate $ 81.75 per hour $ 83.75 per hour $ 85.56 per hour $ 87.23 per hour $ 89.10 per hour CFSP/Extra Rate $ 89.93 per hour $ 92.12 per hour $ 94.12 per hour $ 95.95 per hour $ 98.01 per hour 3.5 SAFE's Representative. SAFE hereby designates the SAFE Executive Director or his or her designee, to act as its Representative for the performance of this 197 Contract ("SAFE’s Representative"). SAFE’s Representative shall have the authority to act on behalf of SAFE for all purposes under this Contract. SAFE's Representative shall also review and give approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR shall not accept direction or orders from any person other than the SAFE’s Representative or his or her designee. 3.6 CONTRACTOR’S Representative. CONTRACTOR hereby designates Lorenzo Navarro, Vice President, to act as its representative for the performance of this Contract ("CONTRACTOR’s Representative"). CONTRACTOR’s Representative shall have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. The CONTRACTOR’s Representative shall supervise and direct the Services, using his best 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 Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative and any other agencies which may have jurisdiction over or an interest in the Services. CONTRACTOR's Representative shall be available to the SAFE staff at all reasonable times. Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's Representative. 3.7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE that certain key personnel will perform and coordinate the Services under this Contract. Should one or more of such personnel become unavailable, CONTRACTOR may substitute other personnel of at least equal competence upon written approval by SAFE’s Representative. In the event that SAFE’s Representative and CONTRACTOR cannot agree as to the substitution of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to the provisions of Section 3.15. The key personnel for performance of this Contract are: Manuel Acosta, Owner/CEO; Lorenzo Navarro, General Manager; Pete Ortiz, Administrative Manager; Fernando Soria, Operations Manager; Laura Acosta, Office Administrator. 3.7.1 Availability of FSP Manager. Except in the case of unpreventable circumstances, the FSP Manager must be available at the CONTRACTOR’s office for at least 50% of each Work Day to address time sensitive issues related to this Contract or the Services, including, but not limited to, FSP administrative responsibilities; SAFE, CHP, and Caltrans requests; driver matters; and truck maintenance issues. CONTRACTOR shall, within 24 hours, notify SAFE of each circumstance causing the FSP Manager not to be available as required herein. As used in this section, the term “Work Day” shall mean and refer to any day that FSP service is provided, during those hours of operation for Construction FSP as identified on the attached Exhibit “A-1”. 3.8 Review of Work and Deliverables. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Contract may be required to be submitted to SAFE's Representative in draft form, and SAFE’s Representative may require revisions of such drafts prior to formal submission and approval. In the event that SAFE's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, SAFE's Representative may require 198 CONTRACTOR to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that CONTRACTOR has satisfactorily completed the Services required under this Contract and within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final Completion. Upon receipt of such notice, CONTRACTOR shall incur no further costs hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily completed all Services required under the provisions of this Contract. 3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR shall render assistance at public hearings or other meetings related to the performance of the Services. 3.10 Standard of Care: Licenses. CONTRACTOR represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Contract. CONTRACTOR 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. CONTRACTOR warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees and subcontractors have all licenses, permits, qualifications (including medical certification) 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 Contract. CONTRACTOR shall perform, at its own cost and expense and without reimbursement from SAFE, any services necessary to correct errors or omissions which are caused by the CONTRACTOR’s failure to comply with the standard of care provided for herein, and shall be fully responsible to SAFE for all damages and other liabilities provided for in the indemnification provisions of this Contract arising from the CONTRACTOR’s errors and omissions. Any employee of CONTRACTOR or its subcontractors who is determined by SAFE to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, 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 SAFE, shall be promptly removed from performing the Services by the CONTRACTOR and shall not be re-employed to perform any of the Services. 3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during performance of the Services. Should CONTRACTOR fail to make such correction in a timely manner, such correction may be made by SAFE, and the cost thereof charged to CONTRACTOR. 3.12 Inspection of Work. CONTRACTOR shall allow SAFE's Representative to inspect or review CONTRACTOR's performance of Services in progress at any time. SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull Notice Program. 199 3.13 Laws and Regulations. CONTRACTOR 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 Services, including all Cal/OSHA requirements, and shall give all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws and regulations in connection with Services. If the CONTRACTOR performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to SAFE, CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Damage Complaints. Upon receiving a damage complaint from a motorist assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification. If necessary, the CONTRACTOR shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result of the negotiations. All complaints shall be resolved within a reasonable period of time after being received. 3.14.1 Complaint Review Committee. The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the amount of the damage claim may be deducted from the CONTRACTOR’s monthly invoice. 3.15 Termination. 3.15.1 Notice; Reason. SAFE may, by written notice to CONTRACTOR, terminate this Contract, in whole or in part, including, without limitation, the geographical territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such termination, and specifying the effective date thereof (“Notice of Termination”). Such termination may be for SAFE’s convenience, due to lack of available funding for the Services, or because of CONTRACTOR's failure to perform its duties and obligations under this Contract, including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant to the Scope of Services described in Section 3, entitled “Terms,” as well as Section 7 of the RFP. CONTRACTOR may not terminate this Contract except for cause. 200 3.15.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may have been prepared or accumulated by CONTRACTOR in performance of the Services, whether completed or in progress. 3.15.3 Effect of Termination For Convenience. If the termination is to be for the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and adequately provided through the effective date of termination as provided in the Notice of Termination. Such payment shall include a pro-rated amount of profit, if applicable, up through such effective date, but no amount shall be paid for anticipated profit on unperformed Services past such effective date. CONTRACTOR shall provide documentation deemed adequate by SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the effective date of termination. This Contract shall terminate on the effective date of the Notice of Termination. 3.15.4 Effect of Termination for Cause. If the termination is for cause, CONTRACTOR shall be compensated for those Services which have been fully and adequately completed and accepted by SAFE as of the effective date of termination as provided in the Notice of Termination. In such case, SAFE may take over the work and prosecute the same to completion by contract or otherwise. Further, CONTRACTOR shall be liable to SAFE for any reasonable additional costs or damages incurred to revise work for which SAFE has compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole discretion needs to be revised, in part or whole. Termination of this Contract for cause may be considered by SAFE in determining whether to enter into future contracts with CONTRACTOR. 3.15.5 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 Contract. 3.15.6 Procurement of Similar Services. In the event this Contract is terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.15.7 Waivers. CONTRACTOR, in executing this Contract, recognizes that the Services may be terminated, in whole or in part, as provided in this Section. CONTRACTOR shall not be entitled to any damages including, but not limited to, any compensation for costs incurred to procure vehicles, meet the terms for providing the Services, or for any other costs or expenses, and shall be deemed to have waived any and all claims for damages, costs or expenses which may otherwise arise from SAFE's termination of this Contract, for convenience or cause, as provided in this Section. 3.15.8 Authorization to Terminate. The Executive Director of SAFE shall have the full authority and discretion to exercise SAFE’s rights under this Section 3.15, entitled “Termination”. 201 3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated management-level representative, to all trend meetings (i.e., required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR cannot have a management-level representative at a meeting, CONTRACTOR shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the CONTRACTOR’s contractual responsibility. Meetings are scheduled, and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior to the meeting. 3.17 Fees and Payment. 3.17.1 Amount to be Paid. Subject to the provisions set forth below for Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a fixed unit rate basis a ceiling price NOT TO EXCEED One Million Six Hundred Sixty-Six Thousand Seven Hundred Eighty-Seven Dollars ($1,666,787). 3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15 and 3.17.10. CONTRACTOR agrees to use its best efforts to perform the services and all obligations under this Contract within such ceiling price. 3.17.3 Hourly Rate; Break and Meal Periods. For its performance of the Services, the CONTRACTOR shall be paid for labor expended directly in the performance of the Services at the rates specified below. Payments shall be made monthly in arrears based on Services provided and allowable incurred expenses. The CONTRACTOR shall not be entitled to reimbursements for any expenses unless approved in advance in writing. SCHEDULE OF HOURLY RATES Classification Year 1 Year 2 Year 3 Year 4 Year 5 Regular Rate $ 81.75 per hour $ 83.75 per hour $ 85.56 per hour $ 87.23 per hour $ 89.10 per hour CFSP/Extra Rate $ 89.93 per hour $ 92.12 per hour $ 94.12 per hour $ 95.95 per hour $ 98.01 per hour Hourly rates may be adjusted as set forth in Chapter 9, Violations/Penalties, of the FSP Standard Operating Procedures (SOP). A) CONTRACTOR is responsible for compliance with all California labor laws related to break periods and meal periods including, but not limited to, compliance with Labor Code section 512. CONTRACTOR shall be solely responsible for any additional pay to which its drivers may be entitled for CONTRACTOR’s failure to comply with the California labor law requirements. 202 B) During shifts that require drivers to be provided a 30- minute meal period break pursuant to Labor Code section 512, CONTRACTOR shall either make arrangements for another certified driver to provide Services during those breaks or not be compensated for each 30-minute meal period break during which Services are not provided. In no case shall CONTRACTOR be entitled to bill RCTC for time during which a driver is taking a meal period break. 3.17.4 Payment Coverage. The compensation herein above specified will cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits, as well as indirect costs, overhead, general and administrative expense, and profit. 3.17.5 Cost Principles. A) CONTRACTOR agrees to comply with 2 CFR, Part 225, Cost Principles for State and Local Government, and 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. B) CONTRACTOR agrees that 1) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual cost items, and 2) CONTRACTOR shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. C) Any costs for which CONTRACTOR has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 225, 48 CFR, Chapter 1, Part 31 or 2 CFR, Part 200, are subject to repayment by CONTRACTOR to SAFE. Should CONTRACTOR fail to reimburse moneys due SAFE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, SAFE is authorized to intercept and withhold future payments due CONTRACTOR from SAFE or any third-party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. 3.17.6 Fines. Fines for starting late; leaving early; taking more breaks than authorized; or being ordered out of service by a CHP, SAFE Representative or Caltrans supervisor for Contract infractions shall be deducted from the CONTRACTOR’s monthly invoice at five (5) times the hourly rate, plus the loss of revenue for the down time. Fines may be further described in the attached Exhibit “A” or Exhibit “B”. 3.17.7 Accounting System. CONTRACTOR 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 CONTRACTOR 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. 203 3.17.8 Invoices. Invoices for CONTRACTOR’s Services shall be submitted monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure prompt payment, most billing disputes may be resolved within ten (10) working days of written notice of dispute. However, at SAFE’s discretion, reconciliation of disputed fines that sum to less than 2% of the months’ Invoice may be corrected on the next month’s Invoice to ensure prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the CONTRACTOR’s authorized officer. Invoices shall be mailed to SAFE’s Contract Administrator at the following address: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 3.17.8.1 Payment Schedule. Invoice periods shall be based upon a calendar month, beginning with the first day of the month. SAFE shall reimburse CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which CONTRACTOR believes are thirty (30) days overdue. SAFE shall pay any undisputed invoice(s) and amount(s) within thirty (30) days of receipt of a notice of failure to pay. 3.17.9 Right to Audit. For the purpose of determining compliance with this Contract and other matters connected with the performance of CONTRACTOR’s contracts with third parties, CONTRACTOR and its subcontractors shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times for three years from the date of final payment of Funds to CONTRACTOR. SAFE, the State of California acting through the Department of Transportation or its duly authorized representative, the California State Auditor, or the United States Department of Transportation shall each have access to any books, records, and documents that are pertinent for audits, examinations, excerpts, and transactions, and CONTRACTOR shall furnish copies thereof if requested. 3.17.10 Taxes. CONTRACTOR shall pay any sales, use, or other taxes, if any, attributable to the provision of the Services. 3.17.11 Travel and Subsistence. Payments to CONTRACTOR 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 204 current State Department of Personnel Administration (DPA) rules. If the rates invoiced are in excess of those authorized DPA rates, then CONTRACTOR is responsible for the cost difference and any overpayments shall be reimbursed to SAFE on demand. 3.17.12 Employment Adverse to the SAFE. CONTRACTOR shall notify SAFE, and shall obtain SAFE’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against SAFE during the term of this Contract. 3.17.13 Extra Work. At any time during the term of this Contract, SAFE may request CONTRACTOR to perform Extra Work. “Extra Work” shall mean any work which is determined by SAFE to be necessary for proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor be compensated for Extra Work without obtaining authorization in the form of a written Extra Work Order issued by SAFE’s Representative. For instance, Construction FSP services as it relates to construction activity can be considered Extra Work. In the event an Extra Work Order is not issued and signed by SAFE’s Representative, CONTRACTOR shall not provide such Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is not authorized by SAFE and if the cumulative total of such Extra Work under the Contract exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved in advance by amendment to this Contract. 3.17.13.1 Extra Work Cancellation Policy. If a tow operator is scheduled for Extra Work and they are notified of a cancellation with LESS than a 24 hour notice – then the tow operator will be reimbursed for three (3) hours of the agreed upon contract hourly rate. Note: The minimum of the three (3) hours should cover eight hours of the drivers’ hourly wage. Starting with “Less than a 24 hour cancellation notice” up to the time the tow operator is on the assigned Extra Work Beat, the “three contract hour cancellation rate” remains the same. Once the tow operator is on the Extra Work Beat, the cancellation policy changes. If a tow operator begins the Extra Work (the truck is on the Beat) and is then notified that Extra Work has been cancelled, the FSP operator will be paid for the entire shift period up to a maximum of eight (8) hours. A shift period for this policy is defined as: the time period of the actual Extra Work shift assigned or for a maximum of eight (8) contract hours, whichever is less. The supervising FSP CHP Officer for the Extra Work shift will make the final determination as to whether or not the tow operator will continue to work the Extra Work shift. Regardless, the tow operator will be reimbursed for the original shift period or a maximum or eight (8) hours, whichever is less. 3.17.14 Most Favored Customer. CONTRACTOR agrees that, throughout the term of this Contract, it shall not enter into any FSP services agreement with any government agency with whom it has either existing contractual relationship or has no 205 contractual relationship that predates this Contract, pursuant to which CONTRACTOR agrees to charge FSP services fees less than those as indicated in this Contract for substantially the same level of FSP services contemplated by this Contract. Should SAFE establish that such lower fees have been agreed to by CONTRACTOR with another government agency, CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the difference between the fees indicated in this Contract and the fees charged to other government agency customer. 3.18 Delay in Performance. 3.18.1 Excusable Delays. Neither Party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented from the timely performance of any act or Services required by the terms of the Contract by an Excusable Delay, Contractor’s schedule for completion of tasks affected by such delay may be extended as set forth in Section 3.18.2. But in every case, CONTRACTOR’s failure to perform must be reasonably beyond the control, and without the fault or negligence of the CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions of SAFE or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather. 3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by CONTRACTOR of any right to an excusable delay in time of performance. 3.18.3 Mutual Contract. Performance of any Services under this Contract may be delayed upon mutual agreement of the Parties. Upon such agreement, CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.19 Status of CONTRACTOR/Subcontractors. 3.19.1 Independent Contractor. The Services shall be performed by CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods and details of performing the Services subject to the requirements of this Contract. SAFE retains CONTRACTOR on an independent contractor basis and not as an employee, agent or representative of the SAFE. CONTRACTOR retains the right to perform similar or different services for others during the term of this Contract. Any additional personnel performing the Services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. CONTRACTOR shall pay all wages, 206 salaries and other amounts due such personnel in connection with their performance of Services and as required by law. CONTRACTOR 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. 3.19.2 Assignment or Transfer. CONTRACTOR shall not assign, hypothecate, or transfer, either directly or by operation of law, this Contract or any interest herein, without the prior written consent of SAFE. 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. Notwithstanding the foregoing, SAFE may transfer or assign any and all of its rights and obligations under this Contract, including, without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15 hereof. 3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion of the work or Services required by this Contract, except as expressly stated herein, including the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall have no liability to any subconsultant(s) for payment for services under this Contract or other work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR pursuant to the conduct of services under this Contract shall duly note that the responsibility for payment for the technical services or any other work performed shall be the sole responsibility of CONTRACTOR. 3.20 CONTRACTOR will maintain an inventory of all non-expendable equipment, defined as having a useful life of at least two years and an acquisition cost of $500 or more, paid for with funds provided pursuant to this Contract. 3.21 Ownership of Materials and Confidentiality. 3.21.1 Documents & Data; Licensing of Intellectual Property. All 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, spreadsheets, or data magnetically or otherwise recorded on computer diskettes, prepared by or on behalf of CONTRACTOR under this Contract (“Documents and Data”), shall be made available to SAFE at all times during this Contract and shall become the property of SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have the right to retain copies of all such Documents and Data for its records. Should CONTRACTOR, either during or following termination of this Contract, desire to use any Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a no-cost, nonexclusive, and perpetual license for SAFE to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in the Documents and Data which are prepared or caused to be prepared by CONTRACTOR under this Contract (“Intellectual Property”). CONTRACTOR shall require all subcontractors to agree in writing that SAFE is granted a no-cost, nonexclusive, and 207 perpetual license for any Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR represents and warrants that CONTRACTOR has the legal right to license any and all Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract. SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided that any such use not within the purposes intended by this Contract shall be at SAFE's sole risk. 3.21.2 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 CONTRACTOR in connection with the performance of this Contract shall be held confidential by CONTRACTOR to the extent permitted by law, including, without limitation, the California Public Records Act, Government Code section 6250 et seq. Such materials shall not, without the prior written consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of the Services as provided herein. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services, except as provided herein. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally known, or becomes known, to the related industry shall be deemed confidential. CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the prior written consent of SAFE. 3.22 Indemnification. CONTRACTOR shall indemnify and hold SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, contractors, consultants, employees, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of, or incident to, any acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Contract, including without limitation, the payment of all consequential damages and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR’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 SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, contractors, consultants, employees, and volunteers. CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered against SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers, in any such suit, action, or other legal proceeding. CONTRACTOR shall reimburse SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, consultants, employees, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONTRACTOR’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CONTRACTOR, SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers. 208 3.23 Insurance. 3.23.1 Time for Compliance. CONTRACTOR shall not commence work under this Agreement until it has provided evidence satisfactory to SAFE that it has secured all insurance required under this section, in a form and with insurance companies acceptable to SAFE. In addition, CONTRACTOR shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.23.2 Minimum Requirements. CONTRACTOR 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 CONTRACTOR, its agents, representatives, employees or subcontractors. CONTRACTOR shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. CONTRACTOR shall maintain limits no less than: (i) General Liability: Per occurrence: $2,000,000 Project Specific Aggregate: $4,000,000 Products/Completed Operations: $1,000,000 Personal Injury Limit: $1,000,000 (ii) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (iii) 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. 3.23.3 On-Hook Insurance. CONTRACTOR shall maintain a policy of On-Hook Towing Insurance to include the care, custody or control exposure present while vehicles are being serviced roadside, on-hook, or in a storage yard for not less than one hundred thousand dollars ($100,000). 3.23.4 Insurance Endorsements. The insurance policies shall contain the 209 following provisions, or CONTRACTOR shall provide endorsements on forms approved by SAFE 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 SAFE, COMMISSION, CHP, Caltrans and their 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 SAFE, COMMISSION, CHP, 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) SAFE, COMMISSION, CHP, 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 CONTRACTOR or for which the CONTRACTOR is responsible; and (2) the insurance coverage shall be primary insurance as respects SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the CONTRACTOR’s scheduled underlying coverage. Any insurance or self-insurance maintained by SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, employees and agents shall be excess of the CONTRACTOR’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) CONTRACTOR 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. 210 (ii) The insurer shall agree to waive all rights of subrogation against SAFE, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the CONTRACTOR. (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 SAFE, its 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 SAFE, COMMISSION, CHP, and Caltrans (if agreed to in a written contract or agreement) before SAFE, COMMISSION, CHP or Caltrans 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) CONTRACTOR shall provide SAFE at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the CONTRACTOR 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 CONTRACTOR shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to SAFE 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. CONTRACTOR shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. CONTRACTOR shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance 211 coverage to be maintained by CONTRACTOR, and any approval of said insurance by SAFE, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the CONTRACTOR 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, SAFE has the right but not the duty to obtain the insurance it deems necessary and any premium paid by SAFE will be promptly reimbursed by CONTRACTOR or SAFE will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, SAFE may cancel this Agreement. SAFE may require the CONTRACTOR to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither SAFE, COMMISSION, CHP, Caltrans nor any of their 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: 3.23.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by SAFE. If SAFE does not approve the deductibles or self-insured retentions as presented, CONTRACTOR shall guarantee that, at the option of SAFE, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects SAFE, its directors, officials, officers, employees and agents; or, (2) the CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.23.6 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 SAFE. 3.23.7 Verification of Coverage. CONTRACTOR shall furnish SAFE with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to SAFE. 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 SAFE before work commences. SAFE reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.23.8 Subcontractor Insurance Requirements. CONTRACTOR shall not allow any subcontractors to commence work on any subcontract until they have provided evidence satisfactory to SAFE that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or 212 subcontractors shall be endorsed to name SAFE, COMMISSION, CHP and Caltrans as additional insureds using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by CONTRACTOR, SAFE may approve different scopes or minimum limits of insurance for particular subcontractors or subcontractors. 3.23.9 Review of Coverage. SAFE retains the right at any time to review the coverage, form and amount of insurance required herein and may require CONTRACTOR to obtain additional insurance reasonably sufficient in coverage, form, amount to provide adequate protection against the kind and extent of risk which exists at the time of change in insurance required. 3.23.10 Safety. CONTRACTOR shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the CONTRACTOR 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. 3.24 Prohibited Interests. 3.24.1 Solicitation. CONTRACTOR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Contract. Further, CONTRACTOR 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 CONTRACTOR, any fee, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, SAFE shall have the right to rescind this Contract without liability. 3.24.2 Conflict of Interest. For the term of this Contract, no member, officer or employee of SAFE, during the term of his or her service with SAFE, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. 3.24.3 Conflict of Employment. Employment by the CONTRACTOR of personnel currently on the payroll of SAFE shall not be permitted in the performance of this Contract, 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 CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the 213 date of execution of this Contract, where this employment is caused by, and or dependent upon, the CONTRACTOR securing this or related Contracts with SAFE, is prohibited. 3.25 Equal Opportunity Employment. CONTRACTOR 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, age, disability (including HIV and AIDS), mental disability, medical condition (cancer), marital status, denial of family and medical care leave, or denial of pregnancy disability leave. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Employment and Housing Act (Gov. Code Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.): The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this Contract by reference and made a part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in all of CONTRACTOR’s subcontracts with respect to work under this Agreement, unless exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE programs or guidelines currently in effect or hereinafter enacted. 3.26 Right to Employ Other CONTRACTORs. SAFE reserves the right to employ other CONTRACTORs in connection with the Services. 3.27 Governing Law. The validity of this Contract and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by and construed with the laws of the State of California. 3.28 Venue. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in Riverside County, California. The Parties agree that the venue for any action or claim brought by any Party will be the Central District of Riverside County. Each Party hereby waives any law or rule of court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties agree to use their best efforts to obtain a change of venue to the Central District of Riverside County. 3.29 Time of Essence. Time is of the essence for each and every provision of this Contract. 3.30 Headings. Article and section headings, paragraph captions, or marginal headings contained in this Contract are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.31 Notices. All notices hereunder and communications regarding interpretation of the terms of this Contract or changes thereto shall be given to the respective 214 Parties at the following addresses, or at such other addresses as the respective Parties may provide in writing for this purpose: CONTRACTOR: Pepe’s Towing Service 2000 W. Key Street Colton, CA 92324 Attn: Lorenzo Navarro SAFE: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 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. 3.32 Electronic Delivery of Agreement. A manually signed copy of this Agreement which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of the Agreement for all purposes. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.34 Entire Contract. This Agreement contains the entire Agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, contracts or understandings. 3.35 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. 3.36 No Waiver. Failure of CONTRACTOR 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. 3.37 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 215 day ("Eight-Hour Law"), unless CONTRACTOR or the Services are not subject to the Eight- Hour Law. CONTRACTOR shall forfeit to SAFE 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 CONTRACTOR or the Services are not subject to the Eight-Hour Law. 3.38 Subpoenas or Court Orders. Should CONTRACTOR receive a subpoena or court order related to this Agreement, the Services or the Project, CONTRACTOR shall immediately provide written notice of the subpoena or court order to the SAFE. CONTRACTOR shall not respond to any such subpoena or court order until notice to the SAFE is provided as required herein and shall cooperate with the SAFE in responding to the subpoena or court order. 3.39 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, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.40 Counterparts. This Agreement may be signed in one or more counterparts, any one of which shall be effective as an original document. 3.41 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.42 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. In the event the standards set forth in this Agreement conflict with the standards set forth in any exhibit hereto, the higher standard shall govern. 3.43 Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a Party hereto and payable under Section 3.21, Indemnification. 3.44 Consent. Whenever consent or approval of any Party is required under this Contract, that Party shall not unreasonably withhold nor delay such consent or approval. 3.45 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.46 Mobilization Costs Payment. Intentionally Omitted 216 [Signatures on following page] 217 SIGNATURE PAGE TO AGREEMENT 21-45-050-00 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION PEPE’S TOWING SERVICE ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: ____________________________ By: _____________________________ Anne Mayer, Executive Director _____________________________ Name _____________________________ Title APPROVED AS TO FORM: Attest: By: ____________________________ By: ____________________________ Best Best & Krieger LLP, Counsel to the Riverside County Its: Secretary Service Authority for Freeway Emergencies 218 EXHIBIT “A” Scope of Services 219 1.0 GENERAL INFORMATION 1.1 Background & Introduction In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide Freeway Service Patrol (FSP) and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute a 25 percent local match. For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. 1.2 Project Description The purpose of the FSP program is to provide a continuous roving patrol for the rapid removal of disabled vehicles and those involved in minor accidents from the freeway. Where traffic conditions permit, safe removal of small debris will be required. Vehicle operators shall be responsible for clearing the freeway of automobiles, small trucks, and small debris. When and where conditions warrant, service may be executed on the freeway shoulders. Where conditions do not warrant, vehicle operators will remove the vehicles from the freeway to provide service. FSP vehicles shall continuously patrol their assigned beat, respond to CHP calls for Services, use the designated turnaround locations, and use the CHP identified designated drop locations. FSP vehicle operators may be required to perform minor services such as change flat tires, provide "jump" starts, provide one gallon of gasoline or diesel fuel, temporarily tape cooling system hoses, and refill radiators in a safe and efficient manner. Vehicle operators may spend a maximum of ten (10) minutes per disablement in attempting to mobilize a vehicle. If a disabled vehicle cannot be mobilized within the ten-minute (10) 220 time limit, it shall be towed to a designated drop location identified by the CHP. The motorist can request the FSP vehicle operator to call the CHP Communications Center to request a CHP rotational tow or other services. FSP vehicle operators shall not be allowed to tow as an independent contractor from an incident that occurred during the FSP shift unless called as a rotation tow by CHP after the FSP shift has ended. If called as a rotation tow after a FSP shift, the vehicle operator must remove all FSP markings such as vests, uniforms, and magnetic vehicle signage. There may be some instances where FSP operators may be requested to provide assistance to CHP officers. FSP operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. All FSP services shall be provided at no cost to the motorist. FSP vehicle operators shall not accept gratuities, perform secondary towing services, recommend secondary tows, or recommend repair/body shop businesses. Freeway Service Patrol hours of operation are 5:30 a.m. to 8:30 a.m. and 2:30 p.m. to 6:30 p.m., Monday through Thursday; and 5:30 a.m. to 8:30 a.m. and 12:30 p.m. to 6:30 p.m. on Friday. Contractor vehicles shall be exclusively dedicated to the service during FSP service hours. All vehicle maintenance activities shall be conducted during non-service hours. The FSP operates on selected freeway segments referred to as “Beats”. Each Beat has specific turnaround locations and designated drop locations identified by the California Highway Patrol (CHP). The Scope of Services (Section 2.0) hereunder identifies the specific limits, number of tow trucks, number of back-up trucks, hours of operation, and tentative holidays on which the cost of each beat shall be based. RCTC reserves the right to add or delete holidays to the work schedule. Travel time to and from the Beat will be at the expense of the Contractor. To be awarded a contract, a Contractor must have a tow facility within close proximity to the service area, have been in business as a tow service operator for a minimum of five (5) years, and have a minimum of one (1) full year experience working under contract/agreement and in good standing within the last three (3) years with any type of law enforcement agency. A Contractor with no prior FSP experience shall be considered NEW and may only be awarded one FSP beat. A Contractor that has been terminated for cause from any FSP contract within the state shall not be eligible to participate in the Riverside County FSP program. A NEW Contractor, who remains in good standing, as determined by FSP management, may be considered for additional beat awards in future procurements. An existing Contractor that is not in good standing as determined by information received by the FSP management staff at the time of their proposal may, at the discretion of FSP management, be limited to the number of beats the Contractor is awarded, including not being awarded any beats. 221 FSP Management Staff reserves the right to limit the number of beats awarded to one Contractor. At any time during the contract's term, RCTC reserves the right to adjust Beat specifications and Beat hours to better accommodate demand for the service, or the availability of funding. These changes can occur during the course of the contract through written change orders. If warranted during the service hours of operation, the Contractor may be requested to temporarily reassign his/her FSP operators/trucks to locations outside its assigned Beat. Tow Operators may be permitted to do this only upon CHP and/or RCTC approval. FSP vehicle operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. The contract start date for Beats 4, 7 and 8 shall be January 4, 2022. The first day of FSP service is Tuesday, January 4, 2022. These are 5-year contracts that expire on January 3, 2027. If awarded a contract, the Contractor shall have one hundred seventy-three (173) calendar days for Beat 4, 7 and 8, after the notice of award (notice of award tentatively expected on or around July 15, 2021), in which to acquire the required equipment and hire and train vehicle operators. The Contractor shall have the appropriate number of primary and back-up trucks ready for equipment installation and CHP inspection no later than December 15, 2021. Any company that cannot meet the above-mentioned requirements shall not be awarded the contract(s). 2.0 Beat Description/Summary FSP operates on selected freeway segments referred to as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. The specific limits, number of tow trucks, number of back-up trucks and hours of operation, including the holiday schedule, are detailed below. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. At any time, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, or availability of funding. These changes can occur during the course of this Contract through written change orders. If warranted and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. 222 5-yr Contracts: January 4, 2022 to January 3, 2027 _ a FSP Beat # Beat Description One-Way Length in Miles # Primary FSP Trucks in both AM and PM # Backup FSP Trucks 4 SR91 from Magnolia Ave to 60/91/215 Interchange 11.0 2 1 7 SR60 from Milliken St to Main St 11.7 2 1 8 SR60 from Central Ave to I215 at Alessandro Blvd to SR60 at Theodore St 12.3 2 1 2.1 Hours of Operation: Monday through Thursday: 5:30 a.m. to 8:30 a.m., and from 2:30 p.m. to 6:30 p.m. Friday: 5:30 a.m. to 8:30 a.m., and from 12:30 p.m. to 6:30 p.m. Each Beat requires at least one backup truck available at all times. RCTC reserves the right to change Beat hours and operational requirements during the course of the contract. a. Total estimated service hours per vehicle/per year: 1,950 b. In addition to the above service hours, at the discretion of RCTC and CHP, additional service may be requested on certain “high traffic days” on/or following certain holidays (e.g., July 4th, Labor Day, and Memorial Day). Contractor will be notified at least one week prior to when this service is to be provided. During FSP shifts that require a 30-minute meal period break to be provided pursuant to Labor Code section 512, the Contractor shall either make arrangements for another certified FSP driver to provide the contracted FSP coverage during those breaks or not be compensated for each 30-minute meal period break during which FSP service is not provided. In no case shall the Contractor be entitled to compensation from RCTC for time during which its FSP driver is taking a 30-minute meal period break, unless the Contractor has provided another driver to cover this 30-minute meal period break. 2.2 Holiday Schedule 223 Proposer shall submit its cost proposal for provision of the required FSP tow services five days each week, Monday through Friday, of each year during the contract term, except for the following ten (10) holidays: 1. Martin Luther King, Jr. Day (Monday) 2. Presidents’ Day (Monday) 3. Memorial Day (Monday) 4. Independence Day (July 4 - varies) 5. Labor Day (Monday) 6. Veterans Day (varies) 7. Thanksgiving Day (Thursday) 8. Day after Thanksgiving (Friday) 9. Christmas Day (December 25 - varies) 10. New Year’s Day (January 1 – varies) 3.0 FSP Management and Representatives RCTC has entered into a Memorandum of Understanding with the California Department of Transportation (Caltrans) and CHP, in order to provide peak hour freeway service patrols on selected freeway segments for traffic mitigation, as well as air quality improvement within Riverside County. RCTC, Caltrans, and CHP will jointly oversee the service. RCTC serves as the contract administrator and funding partner; Caltrans provides oversight; and CHP is responsible for the daily operations and field supervision of the program. Authority for FSP derives from (a) Section 21718 (A) of the California Vehicle Code, which allows FSP trucks supervised by the CHP to stop on freeways for the purpose of rapid removal of impediments to traffic, and (b) Article 3, Section 91, of the Streets and Highways Code, which states that Caltrans is responsible for traffic management and removing impediments from the highways, as well as improving and maintaining the state highways. 3.1 Standard Operating Procedures The guidelines and policies of the FSP program, which promote a safe work environment and maintain a level of professionalism, are contained in the Standard Operating Procedures (SOP) manual developed by the CHP. The SOP and any updates to it are incorporated into the contract with RCTC, therefore, the Contractor and their vehicle operators are responsible to operate and adhere to the most recent version of the SOP at all times. Contractor shall be held responsible for maintaining an updated SOP (latest version issued with the RFP), which is incorporated herein by reference. SOP revisions and updates shall be unilaterally issued by RCTC or CHP, as deemed necessary by CHP or the FSP Technical Advisory Committee, and all changes, revisions and updates to 224 the SOP, if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of the original RFP package and additional hard or soft copies can be provided to all interested parties upon request. Vehicle operators or trucks found not to be in compliance with FSP procedures defined in the SOP may be penalized, suspended, and/or terminated from the FSP program and the company may also be assessed liquidated damages amounts for said violations as described herein. Liquidated damages are inclusive of other remedies at law and/or those described under the terms of the contract. Refer to Proposal Pricing Form for further details on violations and penalties. 4.0 Vehicles 4.1 Tow Truck Requirements Primary and back-up FSP tow trucks shall be exclusively dedicated to the FSP program during FSP service hours of operation. They are not required to be exclusive during non-FSP hours. All vehicle maintenance activities shall be conducted during non-Service hours. When conducting the Services on a FSP shift, the CONTRACTOR’s vehicle shall display all FSP markings and the vehicle operator shall wear a FSP uniform. The FSP will utilize, at a minimum, Class A tow trucks with a minimum gross vehicle weight rating of 14,000 pounds, dual wheel chassis, and a four (4) ton recovery equipment rating. All trucks proposed for use in the FSP Program must be less than one (1) year old with a maximum of 50,000 miles on the chassis and working parts of the truck at the onset of the contract, free of any mechanical defects or physical damage and have a clear (non-salvage) title. Extenuating circumstances dictating departure from this specification should be at the consensus of the local FSP partners. The CHP, in conjunction with Caltrans or the regional transportation agency, should verify the original purchase dates to ensure compliance. Lastly the truck shall have seating capabilities for five (5) adults. All FSP tow trucks must be Department of Transportation (DOT) compliant, as well as California Air Resources Board (CARB) compliant. This includes an engine that has been certified by CARB, as required by law in the State of California. Any tow truck that is utilized for the FSP Program must comply with emission standards set forth by DOT and CARB, as well as all local, state, and federal laws associated with that truck and as outlined in the RFP. Each tow truck shall be equipped in accordance with the CHP’s Freeway Service Patrol Manual and Standard Operating Procedures Manual and, at a minimum, shall include the following: a. Equipment & Supplies (Required) 225 1. Wheel lift towing equipment, with a minimum lift rating of 3,000 pounds. All tow equipment shall include proper safety straps. 2. Boom with a minimum static rating of 8,000 pounds. 3. Winch Cable - 8,000 pound rating on the first layer of cable. 4. Wire rope – 100ft., 3/8 inch diameter, 6 x19 or OEM specifications. 5. Two (2) Tow chains 3/8" alloy or OEM specs., J/T hook assembly. 6. Rubber faced push bumper. 7. Mounted spotlight capable of directing a beam both front and rear. 8. Amber warning lights with front and rear directional flashing capability, with on/off switch in cab. 9. Public address system. 10. Power outlets ("hot boxes"), front and rear mounted, with outlets compatible to 12-volt booster cables. 11. Heavy duty, 60+ amp battery. 12. Radios with the ability to communicate with the Contractor's base office (Verizon). 13. Programmable scanners capable of scanning between the 39 and 48 MHz used by the CHP. Scanners need to be capable of scanning CHP Police frequencies, and must be mounted for safety concerns. 14. Suitable cab lighting. 15. Trailer hitch capable of handling a 1 7/8-inch ball and 2 inch ball. 16. One (1) 1 7/8-inch ball and one (1) 2 inch ball. 17. Rear work lights. (4) 18. Safety chain D-ring or eyelet mounted on rear of truck. 19. Motorcycle straps. (2) 20. Diesel fuel in plastic jerry cans. (5 gallons) 21. Unleaded gasoline in plastic jerry cans. (5 gallons) 22. Safety chains min. 5ft. min. 5/16” Alloy or OEM Spec. (2) 23. First aid kit (small 5" x 9"). (1) 24. Fire extinguisher aggregate rating of at least 4 B-C units. (1) 25. Pry bar - 36" or longer. (1) 26. Radiator water in plastic container. (5 gallons) 27. 4" x 4" x 48" wooden cross beam. (1) 28. 4" x 4" x 60" wooden cross beam. (1) 29. 24" wide street broom. (1) 30. Square point shovel. (1) 31. Highway flares 360 minutes min. 32. Cones 18" height, reflectorized with tape. 33. Hydraulic Floor Jack: 2-ton AND 34. 2-ton jack stand 35. Wheel chock 36. Four-way lug wrench (1 std.). (1) 37. Four-way lug wrench (1 metric). (1) 38. Rechargeable compressor or refillable air bottle, hoses and fittings to fit tire valve stems, 100 psi capacity. (1) 39. Flashlight and spare batteries. (1) 226 40. Tail lights/brake lights, portable remote with extension cord. (1 set) 41. Booster cables, 25 ft. long minimum, 3-gauge copper wire with heavy-duty clamps and one end adapted to truck's power outlets. (1 set) 42. Funnel, multi-purpose, flexible spout. (1) 43. Pop-Up dolly (with tow straps), portable for removing otherwise untowable vehicles. (1) 44. 5-gallon can with lid filled with clean absorb-all. (1) 45. Empty trash can with lid (5 gallon). (1) 46. Lock out set. (1) 47. Safety glasses. b. Equipment & Supplies (Recommended) 48. Towing slings rated at 3,000 pounds minimum. RECOMMENDED 49. Sling crossbar spacer blocks. RECOMMENDED (2) c. Tools (Required) Each FSP truck will be required to have a toolbox with the following minimum number of tools/supplies. A tool kit for small equipment items is required. The list may be supplemented at the Contractor's option and expense. 50. Screwdrivers-- i. Standard-1/8", 3/16", 1/4", 5/16" (1 each, min). ii. Phillips head - #1 and #2 (1 each, min). 51. Needle nose pliers (1) 52. Adjustable rib joint pliers, 2" min. capacity (1) 53. Crescent wrench - 8" (1) 54. Crescent wrench - 12" (1) 55. 4 lb. hammer (1) 56. Rubber mallet (1) 57. Electrical tape, roll (1) 58. Duct tape, 20-yard roll (1) 59. Tire pressure gauge (1) 60. Mechanic's wire (roll) (1) 61. Bolt cutters (1) 4.2 Tow Truck Appearance FSP vehicles bearing the FSP title, logo, and vehicle identification number shall be painted white (includes the hood, fenders, doors, boom, and bed area – the entire truck is to be painted white). No trim is allowed. Lettering shall be in a blocked bold style parallel to the ground and shall be no less than 2 inches by 2 inches and no greater than 4 inches in height. Lettering can only be black in color (no other colors will be permitted). Letters shall be placed on the lower body of the truck toward the cab. 227 Contractor’s name on the boom is prohibited. The overall look of the truck must be approved by CHP prior to service implementation; therefore, any questions regarding this policy may be discussed with CHP prior to implementing, as truck compliance with current state FSP standards is required. No other accessory equipment, signage, or advertisements (mud flaps, stickers, employment advertisement, and so forth) shall be mounted or installed without prior CHP approval. This includes, but is not limited to: bras or window tint. It shall be the vehicle operator’s responsibility to place detachable FSP markings on each vehicle during FSP service hours and to remove the detachable markings immediately upon completion of each shift. RCTC will supply each Contractor with the appropriate number of detachable markings for each Beat(s). If a marking is lost or damaged, the Contractor shall be responsible for the cost of the replacement markings. All FSP markings shall be returned at the termination of the contract. The cost of any RCTC and/or Caltrans/CHP supplied item and/or equipment not returned shall be deducted from the Contractor's final payment. FSP markings, as well as vehicle numbers, shall be required on both sides of all trucks. The detachable markings (magnetic FSP signage) provided by RCTC, must be placed on the center of the driver and passenger doors of the vehicle. The vehicle operator shall be required to keep the title and logos clean, straight, and in readable condition throughout the FSP shift. The operator is also required to keep the magnetic signage flat (do not bend in any way), clean, and out of direct sunlight while being stored during non-FSP operational hours. 4.3 Vehicle Inspections Prior to commencement of service, the CHP will inspect each vehicle designated for the FSP to ensure that it meets the vehicle specifications and to ensure that it meets or exceeds safety requirements. These inspections will occur prior to the start of service. Succeeding inspections will occur periodically as determined by the CHP. Documentation of the vehicle identification number and successful completion of the inspection will be kept on file at the CHP office and Contractor's base office. Any unsafe, poorly maintained, or improperly equipped vehicle(s) shall be removed from service, and if discovered to be in such a condition during the shift said vehicle(s) shall be removed from service or repaired as directed by the CHP, and the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments for the remainder of that shift, plus the loss of revenue for the down time. Spare vehicles, also known as “back-ups”, will be required to complete the shifts of vehicles removed from service. The Contractor will be required to have a spare FSP vehicle available for service for the duration of each and every FSP shift. The vehicle operator shall be required to complete a pre-operation shift inspection log of the vehicle as well as inventory the required equipment prior to the start of each and every shift. The vehicle operator shall be required to complete a driver log, which is 228 used to track the mileage. A shift inspection/inventory log shall be completed by the vehicle operator prior to the start of each shift and be available for inspection. Any item missing must be replaced prior to the start of the shift. All equipment stored on top of the truck shall be secured to the truck. 4.4 Spare/Back-Up Vehicles The Contractor shall be required to have one FSP Certified Back-Up tow truck available per Beat during FSP service hours that is in full compliance with the agreement, unless otherwise authorized by RCTC and CHP in writing. During FSP service hours, the spare vehicle shall be kept at the Contractor’s yard or staged adjacent to the assigned beat. The FSP Certified Back-Up tow truck should be used when a Certified Primary FSP tow truck is unavailable. The FSP Certified Back-Up tow truck shall meet the same requirements for equipment, set-up, and color as the Certified Primary FSP tow truck. It shall meet all the vehicle equipment specifications. Refer to Attachment H for further details on violations and penalties. 4.5 Vehicle Breakdown and Other Missed Service The spare vehicle must be in service on the Beat within 45 minutes of the time a permanently dedicated vehicle is taken out of service for any reason. The Contractor shall not be paid for the time period that the contractually required trucks are not in service. If a vehicle is not made available within the required 45-minute time period, the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments for every minute that exceeds the 45 minute replacement period until a certified FSP compliant spare/back-up vehicle is provided. If a truck is not ready due to breakdown at the start of a shift, the fine time will be calculated from the start of the shift until a replacement is placed into service. If the entire shift is missed, Contractor shall be fined for the entire shift at three (3) times the hourly rate times the total minutes for the affected shift. Vehicle maintenance shall be performed during non-FSP service hours. In addition, not having a certified FSP “spare or back-up” vehicle operator available is not an allowable excuse for not having a spare (back-up) vehicle on the beat within the 45-minute time period. If the Contractor does not have a dedicated or spare truck on the Beat because a certified FSP vehicle operator is not available, the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments until a certified FSP replacement vehicle operator is provided. If the entire shift is missed because a vehicle operator was not available, the Contractor shall be fined for the entire shift at three (3) times the hourly rate times the total minutes for the affected shift. 5.0 Communications Equipment and Computers 5.1 Communications Equipment 229 Each FSP vehicle shall be equipped with various communication devices that will enable the vehicle operator to communicate with the CHP Communications Center. All vehicles shall be equipped with an Automatic Vehicle Location (AVL) system, radios, and Data Collection Devices (DCD). The AVL system, radio, and DCD equipment shall be purchased, owned, and supplied by RCTC. RCTC shall select the equipment installation vendor. The Contractor shall be responsible for maintaining the security of the vehicle communication equipment provided by RCTC. The Contractor shall be liable for any damage to the RCTC-owned communication equipment. The Contractor shall also be liable for the full replacement value of the communication equipment installed in the trucks while in the care, custody, and control of the equipment. RCTC will deduct repair fees as well as the full replacement cost of any RCTC equipment due to improper use or negligence by the Contractor, from any payment due to the Contractor. RCTC-supplied vehicle communications equipment shall be returned in full working condition upon contract termination. The cost of any equipment not returned within a reasonable time period shall be deducted from the Contractor's final payment. Programmable scanners capable of scanning between the 39 and 48 MHz used by CHP shall be supplied by the Contractor and shall be installed (mounted) in all vehicles. The Contractor is also required to use Verizon wireless cell phones with push-to-talk- plus capability, or equivalent, for communications with the CHP Communications Center and the CHP Field Supervisor. Wireless cell phones shall be purchased and maintained by the Contractor. The Contractor will also be responsible for all operating costs as well. In addition, tow operators are not permitted to take pictures, video, or capture any other images while performing FSP duties during FSP operational hours. These actions will not be tolerated, and a vehicle operator may be terminated if it is discovered they are doing so. In addition, any input of data into the DCD shall not be allowed while the vehicle is being operated/driven. Use of other devices while driving/operating a vehicle such as cell phones is prohibited by California State Law. The FSP vehicles shall be equipped with a public address system. The public address system shall have the capability for the driver of the disabled vehicle to hear instructions transmitted from the cab of the FSP vehicle when the FSP vehicle is directly to the rear of the disabled vehicle. 5.2 Computer Equipment The Contractor must have and maintain a desktop computer workstation with high- speed internet access and email to communicate with RCTC staff. 230 The Contractor must ensure that the DCD equipment is inspected and cleaned on a quarterly basis, or more frequently if needed. All DCD equipment should have the exterior protective case cleaned (protective outside case) and screen protector shall be inspected for functionality and serviceability. Worn items shall be immediately reported to RCTC. All DCD equipment must be kept in a secure location. During non-FSP operational hours, DCD equipment shall not be left in a tow vehicle or go home with a vehicle operator or anyone else. All DCD equipment must be in a designated charging area at the tow operator’s facility during non-FSP operational hours. The DCD equipment shall always have enough charge to complete each shift. In order to reduce instances of technology glitches, the DCD equipment shall be turned off/turned on at least once per week. DCD equipment is to be with the vehicle operator in their FSP truck during FSP operational hours. Any other location shall not be permitted. The Contractor shall immediately report any issues with the workstation or the DCD equipment to the RCTC FSP Program Manager or one of the FSP CHP Officers. Contractor is directly responsible to ensure their computer workstation is operating and has internet access at all times – this is a contract requirement. The Contractor shall provide access to the DCD equipment for RCTC staff, or their designated designee, at any time during the course of the Contract. In addition, the Contractor shall also make the workstation available to RCTC, or its designee, 30 calendar days prior to the start of the new service. The Contractor shall provide an annual inspection report to RCTC indicating the status of all equipment. RCTC will provide the submittal form. Tow operators should consider the accurate completion and timely return of this form as part of their contract requirements. 5.3 Equipment Tampering Tampering with FSP communication/tracking equipment so that it does not function properly to RCTC’s specifications, and/or is disconnected or moved (without FSP Management authorization) from its original installed location is strictly prohibited. This includes but is not limited to: breaking evidence tape/connection sealer on equipment connections, cutting wires or cables, moving mounted equipment (speakers, microphones, antennas, etc.), rerouting any wiring, disconnecting any connectors, Contractor/subcontractor unintentionally altering equipment or connections to equipment during vehicle maintenance or repair, or interfering with the operations of the equipment. If tampering is suspected, FSP Management may conduct an inspection of the equipment on the Beat or the vehicle may be sent to a designated location determined by FSP Management. 231 1. If tampering is found while the vehicle is used during FSP operational hours, the vehicle operator and vehicle will be immediately taken out of service and the Contractor shall be fined in one (1) minute increments at three (3) times their hourly rate, until such time that the back-up truck is deployed. Please note that if tampering is discovered, the penalties (three times the hourly rate in one minute increments) shall begin immediately upon the discovery of the tampering. The normal 45-minute back-up truck time allowance will not be considered “non-penalty” time under these circumstances. The penalties shall begin immediately upon the tampering being discovered. 2. If the vehicle is suspected to have equipment that has been tampered with, it may be sent to a designated location determined by FSP Management and CHP for an inspection. If tampering is found, the Contractor will be retroactively fined three (3) times the hourly rate in one (1) minute increments from the time the tampering was first suspected. The penalties will continue until a certified FSP back-up truck is deployed. The normal 45-minute back-up truck time allowance will not be considered “non-penalty” under these circumstances. Tampering Repairs If tampering is discovered during FSP operational hours, the vehicle will be taken out of service and will remain out of service until the repair and the documentation can be completed by the FSP Program designated technician. FSP Management determines the designated technician. The transportation, labor, and repair costs will be the responsibility of the Contractor. Costs incurred to repair and document the equipment will be deducted from the Contractor monthly invoice. Tampering Penalties The Contractor will also be assessed a $250 fine (whether the tampering is discovered while on the Beat, or if it was suspected and later confirmed) per incidence on their monthly invoice. If it is determined that the vehicle operator tampered with the equipment, the vehicle operator will be suspended for a minimum of 30 days for the initial tampering offense and subject to termination from the FSP Program for any subsequent tampering violations. 6.0 Contractor Responsibilities 6.1 Appearance at Hearings If and when required by SAFE, Contractor shall render assistance at public hearings or other meetings related to the performance of the Services. 6.2 Damage Complaints Upon receiving a damage complaint from a motorist assisted by the Contractor, that the Contractor damaged their vehicle while lending assistance, the Contractor shall notify CHP immediately regarding the nature of the damage complaint and its 232 disposition. The Contractor shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification from CHP. If necessary, the Contractor shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the Contractor, the Contractor shall negotiate in good faith to try and resolve the issue and shall report to CHP the result of the negotiations. All complaints shall be resolved within a reasonable time- period after being received. 6.3 Complaint Review Committee The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE, and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable timeframe, it can recommend that payment to the Contractor in the amount of the damage claim may be deducted from the Contractor monthly invoice. 6.4 Trend Meetings Contractor shall attend, or send a designated management-level representative, to all trend meetings (i.e., required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. Contractor shall be responsible for having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the Contractor. If the Contractor cannot have a management-level representative at a meeting, Contractor shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the Contractor’s contractual responsibility. Meetings are scheduled, and Contractor will be notified of such schedule, no later than three (3) working days prior to the meeting. 7.0 Vehicle Operators 7.1 Operator Qualifications and Performance All potential vehicle operators shall be required to have a safe driving record and, at a minimum, a valid Class C driver's license. All vehicle operators shall be 18 years of age or older at the time of background check. Potential vehicle operators shall be subject to driving record and criminal background checks through the California Highway Patrol. Potential vehicle operators shall be sufficiently experienced in the tasks of tow truck operations and proficient with all required Freeway Service Patrol equipment to provide safe and proper service. Any certified vehicle operator from other FSP areas will be evaluated on a case-by-case basis. All potential vehicle 233 operators must be capable of demonstrating their tow operating abilities prior to formal CHP training, also known as proficiency testing. Additionally, the vehicle operators will be required to exercise good, sound judgment in carrying out their duties. Vehicle operators shall be required to inform the CHP Communications Center any time they leave the assigned Beat. This includes breaks and replenishing expendable items, such as: gasoline, fire extinguisher, etc. The vehicle operator shall be required to immediately notify the CHP Communications Center upon a tow truck breakdown. FSP vehicle operators will be responsible for accurately entering the required data into DCD equipment every shift. Each FSP vehicle operator shall complete an inspection worksheet prior to the commencement of driving the tow truck and a mileage log prior to beginning service on the Beat. The FSP vehicle operator shall be required to complete an assist record for each incident. Each assist record should be accurate. Contractors or Operators providing false or misleading information to FSP Management shall be subject to disciplinary action and will be handled on a case-by- case basis. FSP vehicle operators shall always complete the required procedures per the SOP when handling required forms. No duplicate survey numbers should be entered into the DCD equipment at any time. Vehicle operators are required to complete in their entirety the Release of Liability form and Damage Release form when applicable. These completed forms should be handed in to RCTC at a minimum every 60 days. If it is discovered that a vehicle operator has entered duplicate survey numbers, not properly completed the release forms, or not turned the release forms in timely, the Contractor may be subject to penalties as outlined in Proposal Pricing Form. CHP, Caltrans, and RCTC maintain strict drug and alcohol policies. Contractors shall have an alcohol and drug program that includes at a minimum, a drug and alcohol free workplace policy and an employee alcohol/drug-testing program. Any FSP vehicle operator found working under the influence of drugs or alcohol shall be immediately removed from the FSP program by the Contractor. The Contractor shall be responsible for providing a certified replacement vehicle operator for that vehicle. The Contractor shall be an active participant in the DMV Pull Notice Program. If a vehicle operator is convicted of a crime involving a stolen vehicle, stolen property, violence, drugs, or moral turpitude, fraud related to the towing business, or misdemeanor or felony driving while under the influence of alcohol or a drug, the Contractor shall permanently remove that vehicle operator from duties under the FSP program. If a vehicle operator is charged with any of the above crimes, the Contractor shall immediately suspend that vehicle operator from duties under this program pending the outcome of the criminal case. If the vehicle operator is not convicted, or is ultimately convicted of a lesser crime not described above, RCTC retains the right to 234 have the Contractor remove that vehicle operator from the duties under the FSP program. 7.2 Operator Training At the Contractor’s expense, all company owners, FSP vehicle operators, and back-up vehicle operators shall be required to present a certificate of completion of a SHRP 2/TIMS training course and to complete the CHP two-day training program which costs approximately $50.00 per vehicle operator (fee is for the DL64 Tow Truck Driver Certificate and fingerprinting). Contractors shall pay all FSP operators and back-up vehicle operators for attending the training. No vehicle operator will be allowed to begin patrolling without meeting the requirements set forth in the SOP. Any vehicle operator who is found on patrol not meeting the requirements may be prohibited from further FSP service and the Contractor’s contract may be terminated immediately. Mandatory CHP refresher training classes shall be attended. A minimum of four (4) hours refresher training per year shall be required (at Contractor’s expense). Contractors shall pay all FSP vehicle operators and back-up vehicle operators for attending the required training. Vehicle operators will be required to utilize DCD equipment to input information about mileage, inspection, and each assist, which will include: location, vehicle make, model, license number, type of assistance provided, etc. Vehicle operators will be trained on using DCD equipment to enter data. 7.3 Operator Driving Record and Criminal History Check As required by California Vehicle Code Section 2340, all applicants and owners are required to have a driver’s license and criminal history check. Only after a completed CHP 234F is received and accepted by CHP, a driver’s license and preliminary criminal history check will be performed. The driver’s license check will consist of confirming that the applicant has a valid driver’s license and the applicant’s point count is within standards set forth in this SOP (refer to Chapter 11, Annex A). The preliminary criminal history check will consist of a preliminary background check to determine if the applicant meets the criteria for a California Tow Truck Driver Certificate as outlined in California Public Resources Code Section 5164, California Vehicle Code Section 13377 and the FSP Contract. In addition, RCTC or the CHP may, in its sole discretion, require an Employer to replace any vehicle operator or reject a potential vehicle operator who it determines is not suitable to represent the FSP Program with the public. If the applicant passes the preliminary criminal history check, the applicant shall submit to fingerprinting. Driver’s license and preliminary criminal history checks will be completed by CHP within ten (10) working days of the acceptance of a CHP 234F. 235 7.4 Vehicle Operator Uniform It shall be the responsibility of the Contractor to provide the vehicle operator with specified uniforms, black protective toe boots, nameplate, gloves and other equipment. The equipment includes navy blue coveralls or navy blue shirts and pants. If coveralls are worn, they shall have a collar with a zip front. Optionally, drivers may wear a standard navy blue (long-sleeve only) uniform shirt, with a fluorescent orange (must be only 2.5” wide) trim, with a ½” silver reflective tape down the middle. This allowed reflective tape must be on both sleeves. All uniforms shall be clean, properly maintained, and replaced whenever excessively worn. Sleeves and pant legs shall be moderately tapered to avoid excessive fullness. A safety vest with reflective stripes shall be worn and supplied by RCTC. RCTC will supply vests with the FSP logo patches already sewn on per CHP’s required patch placement locations. A FSP logo patch is not required to be sewn on the navy blue FSP vehicle operator uniform. A detachable brass or gold nameplate shall be worn with the first initial of the first name and full last name. Letters shall not exceed ½” tall. The nameplate shall be worn above the right chest pocket on the safety vest. The Contractor is responsible for obtaining FSP CHP approval of the driver nameplates, and the Contractor is responsible for the purchase and replacement of the FSP vehicle operator nameplate. All FSP vehicle operators shall wear general duty black work boots with protective (steel or composite) toe. During cold weather, a navy blue sweater or sweatshirt may be worn under the uniform shirt/coveralls. As an option, a navy blue jacket may also be worn, if it meets all the uniform specifications and is worn under the safety vest. Rain gear, if worn, shall be waterproofed material and navy blue or yellow in color. Hats, if worn, shall be baseball-type caps and navy blue in color. An "FSP" logo patch may be sewn on the hat above the brim. No other logos/names shall be accepted. A beanie may also be worn which must be navy blue in color and worn only with a jacket or long sleeve shirt under the vest. Contractor should refer to the most current SOP to ensure they are following the most recent requirements. SOP revisions and updates shall be unilaterally issued by RCTC, as deemed necessary by RCTC management, and all changes, revisions and updates to the SOP, if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of the original RFP package. 7.5 Local Office The Contractor shall provide a local office for contract administration purposes. This office shall be staffed by either the Contractor or a person who has the authority to conduct business and make decisions on behalf of the Contractor. The office shall 236 have business hours coinciding with Contractor's Beat(s) hours of operation. Through the Proposal document shown in the Contractor Representative Form, the Contractor shall designate representatives who will be available at the office during hours of operation to make decisions on behalf of the Contractor. The office shall be established within close proximity to the Contractor's Beat(s) and the County of Riverside. Also note in the Scope of Services, Section 4.4, a backup vehicle and a certified FSP vehicle operator must be available within a 45-minute request of the Beat area. This requirement may also determine if the local office is close enough to satisfy the requirements under this section. The Contractor shall also provide telephone and email through which he/she, or a responsible representative who has the authority to conduct business and make decisions on behalf of the Contractor, can be contacted during the non-service hours of operation for the length of the contract. During non-business hours, an answering machine provided at the Contractor's expense, shall be available to log calls, take complaints, etc. An email address that is monitored daily shall be provided for notification purposes during operational and non-service hours. The Contractor will be responsible for having a company representative monitor and review messages/notices on a daily basis. 7.6 Remedies and Liquidated Damages RCTC has a need to deal contractually with a range of failures by Contractors to meet contractual standards and requirements short of suspension or termination. Failure to meet contractual standards and requirements constitute a default under the contract and is subject to the various remedies provided in the contract, up to and including termination of the contract. It is clear that any default that is related to service or contractor’s readiness for service will either degrade service or lead to the degradation of service. The failure to meet contractual standards and requirements, therefore, causes damages to the FSP program and its participants (RCTC, CHP and Caltrans) and to the public being served by the FSP program. Because of the public service nature of the mission of the FSP, described generally in the Standard Operating Procedures (SOP), to keep traffic and commerce flowing on the regional freeways, the damages arising from contractor’s failure to meet the contractual standards and requirements are impractical or extremely difficult to ascertain on an individual basis. The contract has therefore established a series of remedies to attempt to deal with a range of defaults. The most egregious default will result in suspension or termination. Lesser defaults will result in the assessment of liquidated damages. These lesser remedies have been described in the SOP as fines, violations or penalties. This is not a correct characterization of the intent of the remedies. The remedies arise because the contractor is in default and the FSP and the public it serves is damaged by that 237 default. The remedies are to compensate FSP for its damages and to encourage compliance with performance requirements of the contract. 238 EXHIBIT “B” Compensation Summary FIRM PROJECT TASKS/ROLE COST Prime Consultant: Pepe’s Towing Service, Inc. FSP Services for Beat No. 7 $1,666,787.00 TOTAL COSTS $1,666,787.00 239 BLANK Agreement No. 21-45-051-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES, FOR FREEWAY SERVICE PATROL FOR BEAT # 8 WITHIN RIVERSIDE COUNTY WITH PEPE’S TOWING SERVICE 1.PARTIES AND DATE. 1.1 This Agreement is made and entered into as of _____day of _________, 2021, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“COMMISSION”) acting as the RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES (“SAFE”) and PEPE’S TOWING SERVICE, a California Corporation (referred to herein as “CONTRACTOR”). SAFE and CONTRACTOR are sometimes individually referred to herein as “Party” and collectively as “Parties”. 1.2 The California Highway Patrol herein referred to as “CHP” and California Department of Transportation, herein referred to as “Caltrans” are hereby expressly designated as third-party beneficiaries of CONTRACTOR’s performance under this Agreement. 2.RECITALS. 2.1 WHEREAS, COMMISSION is a California County Transportation Commission existing under the authority of Section 130050 et seq. of the California Public Utilities Code; 2.2 WHEREAS, COMMISSION is authorized, pursuant to Section 2550 et seq. of the California Streets and Highways Code, to act as SAFE for purposes of providing a motorist aid system, including provision of freeway service patrols; 2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide the freeway service patrol professional services as described in the Scope of Services; 2.4 WHEREAS, SAFE has determined that CONTRACTOR is best qualified to perform the required services; 2.5 WHEREAS, the CONTRACTOR is able and willing to perform the required services under the terms and conditions of this Contract; 2.6 WHEREAS, COMMISSION is the short range transportation planning agency for Riverside County, and programs federal, state, and local funds. COMMISSION has entered into a Memorandum of Understanding ATTACHMENT 3 240 with Caltrans and CHP to fund peak period freeway service patrols on selected freeway segments in Riverside County; and 2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically authorized CHP to be responsible for freeway service patrols stopping on freeways for the purpose of rapid removal of impediments to traffic. Article 3, Section 91, of the Streets and Highways Code, states that Caltrans has responsibility to improve and maintain the state highways. Caltrans also has the responsibility for traffic management and removing impediments from the highways. NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree as follows: 3. TERMS. 3.1 General Scope of Services. The purpose of the Freeway Service Patrol (“FSP”) program is to provide for the rapid removal of disabled vehicles and vehicles involved in minor accidents from the freeway. Contractor promises and agrees to furnish to SAFE all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide the FSP services ("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, and the SOP manual (as defined below). 3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the Services. Both agencies will have responsibility for overseeing Service performance and ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for dispatch services to incident locations within the CONTRACTOR’s patrol limits. The dispatching will be done in accordance with this Contract. A Standard Operating Procedures (“SOP”) manual will be given to the CONTRACTOR explaining the types of incidents to which his/her operators may be dispatched. 3.1.2 Beat Descriptions. The FSP will operate on selected freeway segments referred to herein as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. Exhibit “A” shows the specific limits, number of tow trucks, number of back-up trucks and hours of operation, and holidays for the CONTRACTOR’s specific beat. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. 3.1.3 Change Orders. At any time during the term of this Contract, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, or availability of funding, at no cost to SAFE. Adjustments may include reduction in 241 the hours of Services. SAFE may direct such adjustments during the course of this Contract through written change orders, signed by SAFE, setting forth any changes to Exhibit “A”. Changes may include a change of the specified beat(s) to other beats that SAFE determines better serve the needs of SAFE, as well as changes to schedules and hours for the beats set forth in Exhibit “A”. If warranted, as determined in SAFE’s sole discretion, and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. Such reassignments shall be at no cost to SAFE. 3.1.4. The SOP Manual. To promote a safe work environment and for the maintenance of professionalism, the most current version of the SOP manual shall, at all times, be followed by the CONTRACTOR and its vehicle operators. The SOP manual, as such manual may from time to time be amended, is incorporated into this Contract by reference. CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual. Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR may be fined three (3) times the hourly Contract rate in one (1) minute increments until a replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of the FSP Field Supervisors. 3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment requirements outlined in the attached Exhibit “A”. 3.3 Commencement of Services. The CONTRACTOR shall commence work upon receipt of a written Notice to Proceed from SAFE. 3.4 Term. The term of this Contract shall be for a period of five (5) years, from January 4, 2022 to January 3, 2027 unless earlier terminated as provided herein. SAFE shall also have the right to renew this Contract from one month up to a one (1) year term after the initial term by providing notice as provided below. SAFE must provide written notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term, indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the term of this Contract, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Contract shall remain in effect following the termination of this Contract. The rates shall be as follows: SCHEDULE OF HOURLY RATES Classification Year 1 Year 2 Year 3 Year 4 Year 5 Regular Rate $ 81.75 per hour $ 83.75 per hour $ 85.56 per hour $ 87.23 per hour $ 89.10 per hour CFSP/Extra Rate $ 89.93 per hour $ 92.12 per hour $ 94.12 per hour $ 95.95 per hour $ 98.01 per hour 3.5 SAFE's Representative. SAFE hereby designates the SAFE Executive Director or his or her designee, to act as its Representative for the performance of this 242 Contract ("SAFE’s Representative"). SAFE’s Representative shall have the authority to act on behalf of SAFE for all purposes under this Contract. SAFE's Representative shall also review and give approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR shall not accept direction or orders from any person other than the SAFE’s Representative or his or her designee. 3.6 CONTRACTOR’S Representative. CONTRACTOR hereby designates Lorenzo Navarro, Vice President, to act as its representative for the performance of this Contract ("CONTRACTOR’s Representative"). CONTRACTOR’s Representative shall have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. The CONTRACTOR’s Representative shall supervise and direct the Services, using his best 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 Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative and any other agencies which may have jurisdiction over or an interest in the Services. CONTRACTOR's Representative shall be available to the SAFE staff at all reasonable times. Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's Representative. 3.7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE that certain key personnel will perform and coordinate the Services under this Contract. Should one or more of such personnel become unavailable, CONTRACTOR may substitute other personnel of at least equal competence upon written approval by SAFE’s Representative. In the event that SAFE’s Representative and CONTRACTOR cannot agree as to the substitution of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to the provisions of Section 3.15. The key personnel for performance of this Contract are: Manuel Acosta, Owner/CEO; Lorenzo Navarro, General Manager; Pete Ortiz, Administrative Manager; Fernando Soria, Operations Manager; Laura Acosta, Office Administrator. 3.7.1 Availability of FSP Manager. Except in the case of unpreventable circumstances, the FSP Manager must be available at the CONTRACTOR’s office for at least 50% of each Work Day to address time sensitive issues related to this Contract or the Services, including, but not limited to, FSP administrative responsibilities; SAFE, CHP, and Caltrans requests; driver matters; and truck maintenance issues. CONTRACTOR shall, within 24 hours, notify SAFE of each circumstance causing the FSP Manager not to be available as required herein. As used in this section, the term “Work Day” shall mean and refer to any day that FSP service is provided, during those hours of operation for Construction FSP as identified on the attached Exhibit “A-1”. 3.8 Review of Work and Deliverables. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Contract may be required to be submitted to SAFE's Representative in draft form, and SAFE’s Representative may require revisions of such drafts prior to formal submission and approval. In the event that SAFE's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, SAFE's Representative may require 243 CONTRACTOR to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that CONTRACTOR has satisfactorily completed the Services required under this Contract and within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final Completion. Upon receipt of such notice, CONTRACTOR shall incur no further costs hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily completed all Services required under the provisions of this Contract. 3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR shall render assistance at public hearings or other meetings related to the performance of the Services. 3.10 Standard of Care: Licenses. CONTRACTOR represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Contract. CONTRACTOR 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. CONTRACTOR warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees and subcontractors have all licenses, permits, qualifications (including medical certification) 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 Contract. CONTRACTOR shall perform, at its own cost and expense and without reimbursement from SAFE, any services necessary to correct errors or omissions which are caused by the CONTRACTOR’s failure to comply with the standard of care provided for herein, and shall be fully responsible to SAFE for all damages and other liabilities provided for in the indemnification provisions of this Contract arising from the CONTRACTOR’s errors and omissions. Any employee of CONTRACTOR or its subcontractors who is determined by SAFE to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, 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 SAFE, shall be promptly removed from performing the Services by the CONTRACTOR and shall not be re-employed to perform any of the Services. 3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during performance of the Services. Should CONTRACTOR fail to make such correction in a timely manner, such correction may be made by SAFE, and the cost thereof charged to CONTRACTOR. 3.12 Inspection of Work. CONTRACTOR shall allow SAFE's Representative to inspect or review CONTRACTOR's performance of Services in progress at any time. SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull Notice Program. 244 3.13 Laws and Regulations. CONTRACTOR 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 Services, including all Cal/OSHA requirements, and shall give all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws and regulations in connection with Services. If the CONTRACTOR performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to SAFE, CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Damage Complaints. Upon receiving a damage complaint from a motorist assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification. If necessary, the CONTRACTOR shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result of the negotiations. All complaints shall be resolved within a reasonable period of time after being received. 3.14.1 Complaint Review Committee. The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the amount of the damage claim may be deducted from the CONTRACTOR’s monthly invoice. 3.15 Termination. 3.15.1 Notice; Reason. SAFE may, by written notice to CONTRACTOR, terminate this Contract, in whole or in part, including, without limitation, the geographical territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such termination, and specifying the effective date thereof (“Notice of Termination”). Such termination may be for SAFE’s convenience, due to lack of available funding for the Services, or because of CONTRACTOR's failure to perform its duties and obligations under this Contract, including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant to the Scope of Services described in Section 3, entitled “Terms,” as well as Section 7 of the RFP. CONTRACTOR may not terminate this Contract except for cause. 245 3.15.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may have been prepared or accumulated by CONTRACTOR in performance of the Services, whether completed or in progress. 3.15.3 Effect of Termination For Convenience. If the termination is to be for the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and adequately provided through the effective date of termination as provided in the Notice of Termination. Such payment shall include a pro-rated amount of profit, if applicable, up through such effective date, but no amount shall be paid for anticipated profit on unperformed Services past such effective date. CONTRACTOR shall provide documentation deemed adequate by SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the effective date of termination. This Contract shall terminate on the effective date of the Notice of Termination. 3.15.4 Effect of Termination for Cause. If the termination is for cause, CONTRACTOR shall be compensated for those Services which have been fully and adequately completed and accepted by SAFE as of the effective date of termination as provided in the Notice of Termination. In such case, SAFE may take over the work and prosecute the same to completion by contract or otherwise. Further, CONTRACTOR shall be liable to SAFE for any reasonable additional costs or damages incurred to revise work for which SAFE has compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole discretion needs to be revised, in part or whole. Termination of this Contract for cause may be considered by SAFE in determining whether to enter into future contracts with CONTRACTOR. 3.15.5 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 Contract. 3.15.6 Procurement of Similar Services. In the event this Contract is terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.15.7 Waivers. CONTRACTOR, in executing this Contract, recognizes that the Services may be terminated, in whole or in part, as provided in this Section. CONTRACTOR shall not be entitled to any damages including, but not limited to, any compensation for costs incurred to procure vehicles, meet the terms for providing the Services, or for any other costs or expenses, and shall be deemed to have waived any and all claims for damages, costs or expenses which may otherwise arise from SAFE's termination of this Contract, for convenience or cause, as provided in this Section. 3.15.8 Authorization to Terminate. The Executive Director of SAFE shall have the full authority and discretion to exercise SAFE’s rights under this Section 3.15, entitled “Termination”. 246 3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated management-level representative, to all trend meetings (i.e., required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR cannot have a management-level representative at a meeting, CONTRACTOR shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the CONTRACTOR’s contractual responsibility. Meetings are scheduled, and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior to the meeting. 3.17 Fees and Payment. 3.17.1 Amount to be Paid. Subject to the provisions set forth below for Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a fixed unit rate basis a ceiling price NOT TO EXCEED One Million Six Hundred Sixty-Six Thousand Seven Hundred Eighty-Seven Dollars ($1,666,787). 3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15 and 3.17.10. CONTRACTOR agrees to use its best efforts to perform the services and all obligations under this Contract within such ceiling price. 3.17.3 Hourly Rate; Break and Meal Periods. For its performance of the Services, the CONTRACTOR shall be paid for labor expended directly in the performance of the Services at the rates specified below. Payments shall be made monthly in arrears based on Services provided and allowable incurred expenses. The CONTRACTOR shall not be entitled to reimbursements for any expenses unless approved in advance in writing. SCHEDULE OF HOURLY RATES Classification Year 1 Year 2 Year 3 Year 4 Year 5 Regular Rate $ 81.75 per hour $ 83.75 per hour $ 85.56 per hour $ 87.23 per hour $ 89.10 per hour CFSP/Extra Rate $ 89.93 per hour $ 92.12 per hour $ 94.12 per hour $ 95.95 per hour $ 98.01 per hour Hourly rates may be adjusted as set forth in Chapter 9, Violations/Penalties, of the FSP Standard Operating Procedures (SOP). A) CONTRACTOR is responsible for compliance with all California labor laws related to break periods and meal periods including, but not limited to, compliance with Labor Code section 512. CONTRACTOR shall be solely responsible for any additional pay to which its drivers may be entitled for CONTRACTOR’s failure to comply with the California labor law requirements. 247 B) During shifts that require drivers to be provided a 30- minute meal period break pursuant to Labor Code section 512, CONTRACTOR shall either make arrangements for another certified driver to provide Services during those breaks or not be compensated for each 30-minute meal period break during which Services are not provided. In no case shall CONTRACTOR be entitled to bill RCTC for time during which a driver is taking a meal period break. 3.17.4 Payment Coverage. The compensation herein above specified will cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits, as well as indirect costs, overhead, general and administrative expense, and profit. 3.17.5 Cost Principles. A) CONTRACTOR agrees to comply with 2 CFR, Part 225, Cost Principles for State and Local Government, and 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. B) CONTRACTOR agrees that 1) Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual cost items, and 2) CONTRACTOR shall comply with Federal administrative procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. C) Any costs for which CONTRACTOR has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 225, 48 CFR, Chapter 1, Part 31 or 2 CFR, Part 200, are subject to repayment by CONTRACTOR to SAFE. Should CONTRACTOR fail to reimburse moneys due SAFE within 30 days of demand, or within such other period as may be agreed in writing between the Parties hereto, SAFE is authorized to intercept and withhold future payments due CONTRACTOR from SAFE or any third-party source, including, but not limited to, the State Treasurer, the State Controller, and the California Transportation Commission. 3.17.6 Fines. Fines for starting late; leaving early; taking more breaks than authorized; or being ordered out of service by a CHP, SAFE Representative or Caltrans supervisor for Contract infractions shall be deducted from the CONTRACTOR’s monthly invoice at five (5) times the hourly rate, plus the loss of revenue for the down time. Fines may be further described in the attached Exhibit “A” or Exhibit “B”. 3.17.7 Accounting System. CONTRACTOR 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 CONTRACTOR 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. 248 3.17.8 Invoices. Invoices for CONTRACTOR’s Services shall be submitted monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure prompt payment, most billing disputes may be resolved within ten (10) working days of written notice of dispute. However, at SAFE’s discretion, reconciliation of disputed fines that sum to less than 2% of the months’ Invoice may be corrected on the next month’s Invoice to ensure prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the CONTRACTOR’s authorized officer. Invoices shall be mailed to SAFE’s Contract Administrator at the following address: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 3.17.8.1 Payment Schedule. Invoice periods shall be based upon a calendar month, beginning with the first day of the month. SAFE shall reimburse CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which CONTRACTOR believes are thirty (30) days overdue. SAFE shall pay any undisputed invoice(s) and amount(s) within thirty (30) days of receipt of a notice of failure to pay. 3.17.9 Right to Audit. For the purpose of determining compliance with this Contract and other matters connected with the performance of CONTRACTOR’s contracts with third parties, CONTRACTOR and its subcontractors shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times for three years from the date of final payment of Funds to CONTRACTOR. SAFE, the State of California acting through the Department of Transportation or its duly authorized representative, the California State Auditor, or the United States Department of Transportation shall each have access to any books, records, and documents that are pertinent for audits, examinations, excerpts, and transactions, and CONTRACTOR shall furnish copies thereof if requested. 3.17.10 Taxes. CONTRACTOR shall pay any sales, use, or other taxes, if any, attributable to the provision of the Services. 3.17.11 Travel and Subsistence. Payments to CONTRACTOR 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 249 current State Department of Personnel Administration (DPA) rules. If the rates invoiced are in excess of those authorized DPA rates, then CONTRACTOR is responsible for the cost difference and any overpayments shall be reimbursed to SAFE on demand. 3.17.12 Employment Adverse to the SAFE. CONTRACTOR shall notify SAFE, and shall obtain SAFE’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against SAFE during the term of this Contract. 3.17.13 Extra Work. At any time during the term of this Contract, SAFE may request CONTRACTOR to perform Extra Work. “Extra Work” shall mean any work which is determined by SAFE to be necessary for proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor be compensated for Extra Work without obtaining authorization in the form of a written Extra Work Order issued by SAFE’s Representative. For instance, Construction FSP services as it relates to construction activity can be considered Extra Work. In the event an Extra Work Order is not issued and signed by SAFE’s Representative, CONTRACTOR shall not provide such Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is not authorized by SAFE and if the cumulative total of such Extra Work under the Contract exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved in advance by amendment to this Contract. 3.17.13.1 Extra Work Cancellation Policy. If a tow operator is scheduled for Extra Work and they are notified of a cancellation with LESS than a 24 hour notice – then the tow operator will be reimbursed for three (3) hours of the agreed upon contract hourly rate. Note: The minimum of the three (3) hours should cover eight hours of the drivers’ hourly wage. Starting with “Less than a 24 hour cancellation notice” up to the time the tow operator is on the assigned Extra Work Beat, the “three contract hour cancellation rate” remains the same. Once the tow operator is on the Extra Work Beat, the cancellation policy changes. If a tow operator begins the Extra Work (the truck is on the Beat) and is then notified that Extra Work has been cancelled, the FSP operator will be paid for the entire shift period up to a maximum of eight (8) hours. A shift period for this policy is defined as: the time period of the actual Extra Work shift assigned or for a maximum of eight (8) contract hours, whichever is less. The supervising FSP CHP Officer for the Extra Work shift will make the final determination as to whether or not the tow operator will continue to work the Extra Work shift. Regardless, the tow operator will be reimbursed for the original shift period or a maximum or eight (8) hours, whichever is less. 3.17.14 Most Favored Customer. CONTRACTOR agrees that, throughout the term of this Contract, it shall not enter into any FSP services agreement with any government agency with whom it has either existing contractual relationship or has no 250 contractual relationship that predates this Contract, pursuant to which CONTRACTOR agrees to charge FSP services fees less than those as indicated in this Contract for substantially the same level of FSP services contemplated by this Contract. Should SAFE establish that such lower fees have been agreed to by CONTRACTOR with another government agency, CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the difference between the fees indicated in this Contract and the fees charged to other government agency customer. 3.18 Delay in Performance. 3.18.1 Excusable Delays. Neither Party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented from the timely performance of any act or Services required by the terms of the Contract by an Excusable Delay, Contractor’s schedule for completion of tasks affected by such delay may be extended as set forth in Section 3.18.2. But in every case, CONTRACTOR’s failure to perform must be reasonably beyond the control, and without the fault or negligence of the CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions of SAFE or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather. 3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by CONTRACTOR of any right to an excusable delay in time of performance. 3.18.3 Mutual Contract. Performance of any Services under this Contract may be delayed upon mutual agreement of the Parties. Upon such agreement, CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.19 Status of CONTRACTOR/Subcontractors. 3.19.1 Independent Contractor. The Services shall be performed by CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods and details of performing the Services subject to the requirements of this Contract. SAFE retains CONTRACTOR on an independent contractor basis and not as an employee, agent or representative of the SAFE. CONTRACTOR retains the right to perform similar or different services for others during the term of this Contract. Any additional personnel performing the Services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. CONTRACTOR shall pay all wages, 251 salaries and other amounts due such personnel in connection with their performance of Services and as required by law. CONTRACTOR 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. 3.19.2 Assignment or Transfer. CONTRACTOR shall not assign, hypothecate, or transfer, either directly or by operation of law, this Contract or any interest herein, without the prior written consent of SAFE. 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. Notwithstanding the foregoing, SAFE may transfer or assign any and all of its rights and obligations under this Contract, including, without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15 hereof. 3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion of the work or Services required by this Contract, except as expressly stated herein, including the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall have no liability to any subconsultant(s) for payment for services under this Contract or other work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR pursuant to the conduct of services under this Contract shall duly note that the responsibility for payment for the technical services or any other work performed shall be the sole responsibility of CONTRACTOR. 3.20 CONTRACTOR will maintain an inventory of all non-expendable equipment, defined as having a useful life of at least two years and an acquisition cost of $500 or more, paid for with funds provided pursuant to this Contract. 3.21 Ownership of Materials and Confidentiality. 3.21.1 Documents & Data; Licensing of Intellectual Property. All 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, spreadsheets, or data magnetically or otherwise recorded on computer diskettes, prepared by or on behalf of CONTRACTOR under this Contract (“Documents and Data”), shall be made available to SAFE at all times during this Contract and shall become the property of SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have the right to retain copies of all such Documents and Data for its records. Should CONTRACTOR, either during or following termination of this Contract, desire to use any Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a no-cost, nonexclusive, and perpetual license for SAFE to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in the Documents and Data which are prepared or caused to be prepared by CONTRACTOR under this Contract (“Intellectual Property”). CONTRACTOR shall require all subcontractors to agree in writing that SAFE is granted a no-cost, nonexclusive, and 252 perpetual license for any Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR represents and warrants that CONTRACTOR has the legal right to license any and all Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract. SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided that any such use not within the purposes intended by this Contract shall be at SAFE's sole risk. 3.21.2 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 CONTRACTOR in connection with the performance of this Contract shall be held confidential by CONTRACTOR to the extent permitted by law, including, without limitation, the California Public Records Act, Government Code section 6250 et seq. Such materials shall not, without the prior written consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of the Services as provided herein. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services, except as provided herein. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally known, or becomes known, to the related industry shall be deemed confidential. CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the prior written consent of SAFE. 3.22 Indemnification. CONTRACTOR shall indemnify and hold SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, contractors, consultants, employees, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of, or incident to, any acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Contract, including without limitation, the payment of all consequential damages and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR’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 SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, contractors, consultants, employees, and volunteers. CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered against SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers, in any such suit, action, or other legal proceeding. CONTRACTOR shall reimburse SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, agents, consultants, employees, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONTRACTOR’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CONTRACTOR, SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers. 253 3.23 Insurance. 3.23.1 Time for Compliance. CONTRACTOR shall not commence work under this Agreement until it has provided evidence satisfactory to SAFE that it has secured all insurance required under this section, in a form and with insurance companies acceptable to SAFE. In addition, CONTRACTOR shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.23.2 Minimum Requirements. CONTRACTOR 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 CONTRACTOR, its agents, representatives, employees or subcontractors. CONTRACTOR shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. CONTRACTOR shall maintain limits no less than: (i) General Liability: Per occurrence: $2,000,000 Project Specific Aggregate: $4,000,000 Products/Completed Operations: $1,000,000 Personal Injury Limit: $1,000,000 (ii) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (iii) 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. 3.23.3 On-Hook Insurance. CONTRACTOR shall maintain a policy of On-Hook Towing Insurance to include the care, custody or control exposure present while vehicles are being serviced roadside, on-hook, or in a storage yard for not less than one hundred thousand dollars ($100,000). 3.23.4 Insurance Endorsements. The insurance policies shall contain the 254 following provisions, or CONTRACTOR shall provide endorsements on forms approved by SAFE 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 SAFE, COMMISSION, CHP, Caltrans and their 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 SAFE, COMMISSION, CHP, 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) SAFE, COMMISSION, CHP, 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 CONTRACTOR or for which the CONTRACTOR is responsible; and (2) the insurance coverage shall be primary insurance as respects SAFE, COMMISSION, CHP, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the CONTRACTOR’s scheduled underlying coverage. Any insurance or self-insurance maintained by SAFE, COMMISSION, CHP, Caltrans or their directors, officials, officers, employees and agents shall be excess of the CONTRACTOR’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) CONTRACTOR 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. 255 (ii) The insurer shall agree to waive all rights of subrogation against SAFE, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the CONTRACTOR. (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 SAFE, its 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 SAFE, COMMISSION, CHP, and Caltrans (if agreed to in a written contract or agreement) before SAFE, COMMISSION, CHP or Caltrans 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) CONTRACTOR shall provide SAFE at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the CONTRACTOR 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 CONTRACTOR shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to SAFE 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. CONTRACTOR shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. CONTRACTOR shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance 256 coverage to be maintained by CONTRACTOR, and any approval of said insurance by SAFE, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the CONTRACTOR 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, SAFE has the right but not the duty to obtain the insurance it deems necessary and any premium paid by SAFE will be promptly reimbursed by CONTRACTOR or SAFE will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, SAFE may cancel this Agreement. SAFE may require the CONTRACTOR to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither SAFE, COMMISSION, CHP, Caltrans nor any of their 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: 3.23.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by SAFE. If SAFE does not approve the deductibles or self-insured retentions as presented, CONTRACTOR shall guarantee that, at the option of SAFE, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects SAFE, its directors, officials, officers, employees and agents; or, (2) the CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.23.6 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 SAFE. 3.23.7 Verification of Coverage. CONTRACTOR shall furnish SAFE with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to SAFE. 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 SAFE before work commences. SAFE reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.23.8 Subcontractor Insurance Requirements. CONTRACTOR shall not allow any subcontractors to commence work on any subcontract until they have provided evidence satisfactory to SAFE that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or 257 subcontractors shall be endorsed to name SAFE, COMMISSION, CHP and Caltrans as additional insureds using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by CONTRACTOR, SAFE may approve different scopes or minimum limits of insurance for particular subcontractors or subcontractors. 3.23.9 Review of Coverage. SAFE retains the right at any time to review the coverage, form and amount of insurance required herein and may require CONTRACTOR to obtain additional insurance reasonably sufficient in coverage, form, amount to provide adequate protection against the kind and extent of risk which exists at the time of change in insurance required. 3.23.10 Safety. CONTRACTOR shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the CONTRACTOR 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. 3.24 Prohibited Interests. 3.24.1 Solicitation. CONTRACTOR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Contract. Further, CONTRACTOR 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 CONTRACTOR, any fee, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, SAFE shall have the right to rescind this Contract without liability. 3.24.2 Conflict of Interest. For the term of this Contract, no member, officer or employee of SAFE, during the term of his or her service with SAFE, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. 3.24.3 Conflict of Employment. Employment by the CONTRACTOR of personnel currently on the payroll of SAFE shall not be permitted in the performance of this Contract, 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 CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the 258 date of execution of this Contract, where this employment is caused by, and or dependent upon, the CONTRACTOR securing this or related Contracts with SAFE, is prohibited. 3.25 Equal Opportunity Employment. CONTRACTOR 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, age, disability (including HIV and AIDS), mental disability, medical condition (cancer), marital status, denial of family and medical care leave, or denial of pregnancy disability leave. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. Employment and Housing Act (Gov. Code Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit. 2, Section 7285.0 et seq.): The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this Contract by reference and made a part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in all of CONTRACTOR’s subcontracts with respect to work under this Agreement, unless exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE programs or guidelines currently in effect or hereinafter enacted. 3.26 Right to Employ Other CONTRACTORs. SAFE reserves the right to employ other CONTRACTORs in connection with the Services. 3.27 Governing Law. The validity of this Contract and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by and construed with the laws of the State of California. 3.28 Venue. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in Riverside County, California. The Parties agree that the venue for any action or claim brought by any Party will be the Central District of Riverside County. Each Party hereby waives any law or rule of court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties agree to use their best efforts to obtain a change of venue to the Central District of Riverside County. 3.29 Time of Essence. Time is of the essence for each and every provision of this Contract. 3.30 Headings. Article and section headings, paragraph captions, or marginal headings contained in this Contract are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.31 Notices. All notices hereunder and communications regarding interpretation of the terms of this Contract or changes thereto shall be given to the respective 259 Parties at the following addresses, or at such other addresses as the respective Parties may provide in writing for this purpose: CONTRACTOR: Pepe’s Towing Service 2000 W. Key Street Colton, CA 92324 Attn: Lorenzo Navarro SAFE: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 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. 3.32 Electronic Delivery of Agreement. A manually signed copy of this Agreement which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of the Agreement for all purposes. 3.33 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.34 Entire Contract. This Agreement contains the entire Agreement of the Parties relating to the subject matter hereof and supersedes all prior negotiations, contracts or understandings. 3.35 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. 3.36 No Waiver. Failure of CONTRACTOR 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. 3.37 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 260 day ("Eight-Hour Law"), unless CONTRACTOR or the Services are not subject to the Eight- Hour Law. CONTRACTOR shall forfeit to SAFE 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 CONTRACTOR or the Services are not subject to the Eight-Hour Law. 3.38 Subpoenas or Court Orders. Should CONTRACTOR receive a subpoena or court order related to this Agreement, the Services or the Project, CONTRACTOR shall immediately provide written notice of the subpoena or court order to the SAFE. CONTRACTOR shall not respond to any such subpoena or court order until notice to the SAFE is provided as required herein and shall cooperate with the SAFE in responding to the subpoena or court order. 3.39 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, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.40 Counterparts. This Agreement may be signed in one or more counterparts, any one of which shall be effective as an original document. 3.41 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.42 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. In the event the standards set forth in this Agreement conflict with the standards set forth in any exhibit hereto, the higher standard shall govern. 3.43 Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a Party hereto and payable under Section 3.21, Indemnification. 3.44 Consent. Whenever consent or approval of any Party is required under this Contract, that Party shall not unreasonably withhold nor delay such consent or approval. 3.45 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.46 Mobilization Costs Payment. Intentionally Omitted 261 [Signatures on following page] 262 SIGNATURE PAGE TO AGREEMENT 21-45-051-00 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION PEPE’S TOWING SERVICE ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: ____________________________ By: _____________________________ Anne Mayer, Executive Director _____________________________ Name _____________________________ Title APPROVED AS TO FORM: Attest: By: ____________________________ By: ____________________________ Best Best & Krieger LLP, Counsel to the Riverside County Its: Secretary Service Authority for Freeway Emergencies 263 EXHIBIT “A” Scope of Services 264 1.0 GENERAL INFORMATION 1.1 Background & Introduction In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide Freeway Service Patrol (FSP) and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation Plan to distribute funds to participating jurisdictions. In addition to funding received from Caltrans, agencies are required to contribute a 25 percent local match. For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. 1.2 Project Description The purpose of the FSP program is to provide a continuous roving patrol for the rapid removal of disabled vehicles and those involved in minor accidents from the freeway. Where traffic conditions permit, safe removal of small debris will be required. Vehicle operators shall be responsible for clearing the freeway of automobiles, small trucks, and small debris. When and where conditions warrant, service may be executed on the freeway shoulders. Where conditions do not warrant, vehicle operators will remove the vehicles from the freeway to provide service. FSP vehicles shall continuously patrol their assigned beat, respond to CHP calls for Services, use the designated turnaround locations, and use the CHP identified designated drop locations. FSP vehicle operators may be required to perform minor services such as change flat tires, provide "jump" starts, provide one gallon of gasoline or diesel fuel, temporarily tape cooling system hoses, and refill radiators in a safe and efficient manner. Vehicle operators may spend a maximum of ten (10) minutes per disablement in attempting to mobilize a vehicle. If a disabled vehicle cannot be mobilized within the ten-minute (10) 265 time limit, it shall be towed to a designated drop location identified by the CHP. The motorist can request the FSP vehicle operator to call the CHP Communications Center to request a CHP rotational tow or other services. FSP vehicle operators shall not be allowed to tow as an independent contractor from an incident that occurred during the FSP shift unless called as a rotation tow by CHP after the FSP shift has ended. If called as a rotation tow after a FSP shift, the vehicle operator must remove all FSP markings such as vests, uniforms, and magnetic vehicle signage. There may be some instances where FSP operators may be requested to provide assistance to CHP officers. FSP operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. All FSP services shall be provided at no cost to the motorist. FSP vehicle operators shall not accept gratuities, perform secondary towing services, recommend secondary tows, or recommend repair/body shop businesses. Freeway Service Patrol hours of operation are 5:30 a.m. to 8:30 a.m. and 2:30 p.m. to 6:30 p.m., Monday through Thursday; and 5:30 a.m. to 8:30 a.m. and 12:30 p.m. to 6:30 p.m. on Friday. Contractor vehicles shall be exclusively dedicated to the service during FSP service hours. All vehicle maintenance activities shall be conducted during non-service hours. The FSP operates on selected freeway segments referred to as “Beats”. Each Beat has specific turnaround locations and designated drop locations identified by the California Highway Patrol (CHP). The Scope of Services (Section 2.0) hereunder identifies the specific limits, number of tow trucks, number of back-up trucks, hours of operation, and tentative holidays on which the cost of each beat shall be based. RCTC reserves the right to add or delete holidays to the work schedule. Travel time to and from the Beat will be at the expense of the Contractor. To be awarded a contract, a Contractor must have a tow facility within close proximity to the service area, have been in business as a tow service operator for a minimum of five (5) years, and have a minimum of one (1) full year experience working under contract/agreement and in good standing within the last three (3) years with any type of law enforcement agency. A Contractor with no prior FSP experience shall be considered NEW and may only be awarded one FSP beat. A Contractor that has been terminated for cause from any FSP contract within the state shall not be eligible to participate in the Riverside County FSP program. A NEW Contractor, who remains in good standing, as determined by FSP management, may be considered for additional beat awards in future procurements. An existing Contractor that is not in good standing as determined by information received by the FSP management staff at the time of their proposal may, at the discretion of FSP management, be limited to the number of beats the Contractor is awarded, including not being awarded any beats. 266 FSP Management Staff reserves the right to limit the number of beats awarded to one Contractor. At any time during the contract's term, RCTC reserves the right to adjust Beat specifications and Beat hours to better accommodate demand for the service, or the availability of funding. These changes can occur during the course of the contract through written change orders. If warranted during the service hours of operation, the Contractor may be requested to temporarily reassign his/her FSP operators/trucks to locations outside its assigned Beat. Tow Operators may be permitted to do this only upon CHP and/or RCTC approval. FSP vehicle operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. The contract start date for Beats 4, 7 and 8 shall be January 4, 2022. The first day of FSP service is Tuesday, January 4, 2022. These are 5-year contracts that expire on January 3, 2027. If awarded a contract, the Contractor shall have one hundred seventy-three (173) calendar days for Beat 4, 7 and 8, after the notice of award (notice of award tentatively expected on or around July 15, 2021), in which to acquire the required equipment and hire and train vehicle operators. The Contractor shall have the appropriate number of primary and back-up trucks ready for equipment installation and CHP inspection no later than December 15, 2021. Any company that cannot meet the above-mentioned requirements shall not be awarded the contract(s). 2.0 Beat Description/Summary FSP operates on selected freeway segments referred to as “beats”. Each beat has specific turnaround locations and designated drop locations identified by the CHP. The specific limits, number of tow trucks, number of back-up trucks and hours of operation, including the holiday schedule, are detailed below. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. At any time, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services, or availability of funding. These changes can occur during the course of this Contract through written change orders. If warranted and during the hours of operation of the Services, the CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat. 267 5-yr Contracts: January 4, 2022 to January 3, 2027 _ a FSP Beat # Beat Description One-Way Length in Miles # Primary FSP Trucks in both AM and PM # Backup FSP Trucks 4 SR91 from Magnolia Ave to 60/91/215 Interchange 11.0 2 1 7 SR60 from Milliken St to Main St 11.7 2 1 8 SR60 from Central Ave to I215 at Alessandro Blvd to SR60 at Theodore St 12.3 2 1 2.1 Hours of Operation: Monday through Thursday: 5:30 a.m. to 8:30 a.m., and from 2:30 p.m. to 6:30 p.m. Friday: 5:30 a.m. to 8:30 a.m., and from 12:30 p.m. to 6:30 p.m. Each Beat requires at least one backup truck available at all times. RCTC reserves the right to change Beat hours and operational requirements during the course of the contract. a. Total estimated service hours per vehicle/per year: 1,950 b. In addition to the above service hours, at the discretion of RCTC and CHP, additional service may be requested on certain “high traffic days” on/or following certain holidays (e.g., July 4th, Labor Day, and Memorial Day). Contractor will be notified at least one week prior to when this service is to be provided. During FSP shifts that require a 30-minute meal period break to be provided pursuant to Labor Code section 512, the Contractor shall either make arrangements for another certified FSP driver to provide the contracted FSP coverage during those breaks or not be compensated for each 30-minute meal period break during which FSP service is not provided. In no case shall the Contractor be entitled to compensation from RCTC for time during which its FSP driver is taking a 30-minute meal period break, unless the Contractor has provided another driver to cover this 30-minute meal period break. 2.2 Holiday Schedule 268 Proposer shall submit its cost proposal for provision of the required FSP tow services five days each week, Monday through Friday, of each year during the contract term, except for the following ten (10) holidays: 1. Martin Luther King, Jr. Day (Monday) 2. Presidents’ Day (Monday) 3. Memorial Day (Monday) 4. Independence Day (July 4 - varies) 5. Labor Day (Monday) 6. Veterans Day (varies) 7. Thanksgiving Day (Thursday) 8. Day after Thanksgiving (Friday) 9. Christmas Day (December 25 - varies) 10. New Year’s Day (January 1 – varies) 3.0 FSP Management and Representatives RCTC has entered into a Memorandum of Understanding with the California Department of Transportation (Caltrans) and CHP, in order to provide peak hour freeway service patrols on selected freeway segments for traffic mitigation, as well as air quality improvement within Riverside County. RCTC, Caltrans, and CHP will jointly oversee the service. RCTC serves as the contract administrator and funding partner; Caltrans provides oversight; and CHP is responsible for the daily operations and field supervision of the program. Authority for FSP derives from (a) Section 21718 (A) of the California Vehicle Code, which allows FSP trucks supervised by the CHP to stop on freeways for the purpose of rapid removal of impediments to traffic, and (b) Article 3, Section 91, of the Streets and Highways Code, which states that Caltrans is responsible for traffic management and removing impediments from the highways, as well as improving and maintaining the state highways. 3.1 Standard Operating Procedures The guidelines and policies of the FSP program, which promote a safe work environment and maintain a level of professionalism, are contained in the Standard Operating Procedures (SOP) manual developed by the CHP. The SOP and any updates to it are incorporated into the contract with RCTC, therefore, the Contractor and their vehicle operators are responsible to operate and adhere to the most recent version of the SOP at all times. Contractor shall be held responsible for maintaining an updated SOP (latest version issued with the RFP), which is incorporated herein by reference. SOP revisions and updates shall be unilaterally issued by RCTC or CHP, as deemed necessary by CHP or the FSP Technical Advisory Committee, and all changes, revisions and updates to 269 the SOP, if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of the original RFP package and additional hard or soft copies can be provided to all interested parties upon request. Vehicle operators or trucks found not to be in compliance with FSP procedures defined in the SOP may be penalized, suspended, and/or terminated from the FSP program and the company may also be assessed liquidated damages amounts for said violations as described herein. Liquidated damages are inclusive of other remedies at law and/or those described under the terms of the contract. Refer to Proposal Pricing Form for further details on violations and penalties. 4.0 Vehicles 4.1 Tow Truck Requirements Primary and back-up FSP tow trucks shall be exclusively dedicated to the FSP program during FSP service hours of operation. They are not required to be exclusive during non-FSP hours. All vehicle maintenance activities shall be conducted during non-Service hours. When conducting the Services on a FSP shift, the CONTRACTOR’s vehicle shall display all FSP markings and the vehicle operator shall wear a FSP uniform. The FSP will utilize, at a minimum, Class A tow trucks with a minimum gross vehicle weight rating of 14,000 pounds, dual wheel chassis, and a four (4) ton recovery equipment rating. All trucks proposed for use in the FSP Program must be less than one (1) year old with a maximum of 50,000 miles on the chassis and working parts of the truck at the onset of the contract, free of any mechanical defects or physical damage and have a clear (non-salvage) title. Extenuating circumstances dictating departure from this specification should be at the consensus of the local FSP partners. The CHP, in conjunction with Caltrans or the regional transportation agency, should verify the original purchase dates to ensure compliance. Lastly the truck shall have seating capabilities for five (5) adults. All FSP tow trucks must be Department of Transportation (DOT) compliant, as well as California Air Resources Board (CARB) compliant. This includes an engine that has been certified by CARB, as required by law in the State of California. Any tow truck that is utilized for the FSP Program must comply with emission standards set forth by DOT and CARB, as well as all local, state, and federal laws associated with that truck and as outlined in the RFP. Each tow truck shall be equipped in accordance with the CHP’s Freeway Service Patrol Manual and Standard Operating Procedures Manual and, at a minimum, shall include the following: a. Equipment & Supplies (Required) 270 1. Wheel lift towing equipment, with a minimum lift rating of 3,000 pounds. All tow equipment shall include proper safety straps. 2. Boom with a minimum static rating of 8,000 pounds. 3. Winch Cable - 8,000 pound rating on the first layer of cable. 4. Wire rope – 100ft., 3/8 inch diameter, 6 x19 or OEM specifications. 5. Two (2) Tow chains 3/8" alloy or OEM specs., J/T hook assembly. 6. Rubber faced push bumper. 7. Mounted spotlight capable of directing a beam both front and rear. 8. Amber warning lights with front and rear directional flashing capability, with on/off switch in cab. 9. Public address system. 10. Power outlets ("hot boxes"), front and rear mounted, with outlets compatible to 12-volt booster cables. 11. Heavy duty, 60+ amp battery. 12. Radios with the ability to communicate with the Contractor's base office (Verizon). 13. Programmable scanners capable of scanning between the 39 and 48 MHz used by the CHP. Scanners need to be capable of scanning CHP Police frequencies, and must be mounted for safety concerns. 14. Suitable cab lighting. 15. Trailer hitch capable of handling a 1 7/8-inch ball and 2 inch ball. 16. One (1) 1 7/8-inch ball and one (1) 2 inch ball. 17. Rear work lights. (4) 18. Safety chain D-ring or eyelet mounted on rear of truck. 19. Motorcycle straps. (2) 20. Diesel fuel in plastic jerry cans. (5 gallons) 21. Unleaded gasoline in plastic jerry cans. (5 gallons) 22. Safety chains min. 5ft. min. 5/16” Alloy or OEM Spec. (2) 23. First aid kit (small 5" x 9"). (1) 24. Fire extinguisher aggregate rating of at least 4 B-C units. (1) 25. Pry bar - 36" or longer. (1) 26. Radiator water in plastic container. (5 gallons) 27. 4" x 4" x 48" wooden cross beam. (1) 28. 4" x 4" x 60" wooden cross beam. (1) 29. 24" wide street broom. (1) 30. Square point shovel. (1) 31. Highway flares 360 minutes min. 32. Cones 18" height, reflectorized with tape. 33. Hydraulic Floor Jack: 2-ton AND 34. 2-ton jack stand 35. Wheel chock 36. Four-way lug wrench (1 std.). (1) 37. Four-way lug wrench (1 metric). (1) 38. Rechargeable compressor or refillable air bottle, hoses and fittings to fit tire valve stems, 100 psi capacity. (1) 39. Flashlight and spare batteries. (1) 271 40. Tail lights/brake lights, portable remote with extension cord. (1 set) 41. Booster cables, 25 ft. long minimum, 3-gauge copper wire with heavy-duty clamps and one end adapted to truck's power outlets. (1 set) 42. Funnel, multi-purpose, flexible spout. (1) 43. Pop-Up dolly (with tow straps), portable for removing otherwise untowable vehicles. (1) 44. 5-gallon can with lid filled with clean absorb-all. (1) 45. Empty trash can with lid (5 gallon). (1) 46. Lock out set. (1) 47. Safety glasses. b. Equipment & Supplies (Recommended) 48. Towing slings rated at 3,000 pounds minimum. RECOMMENDED 49. Sling crossbar spacer blocks. RECOMMENDED (2) c. Tools (Required) Each FSP truck will be required to have a toolbox with the following minimum number of tools/supplies. A tool kit for small equipment items is required. The list may be supplemented at the Contractor's option and expense. 50. Screwdrivers-- i. Standard-1/8", 3/16", 1/4", 5/16" (1 each, min). ii. Phillips head - #1 and #2 (1 each, min). 51. Needle nose pliers (1) 52. Adjustable rib joint pliers, 2" min. capacity (1) 53. Crescent wrench - 8" (1) 54. Crescent wrench - 12" (1) 55. 4 lb. hammer (1) 56. Rubber mallet (1) 57. Electrical tape, roll (1) 58. Duct tape, 20-yard roll (1) 59. Tire pressure gauge (1) 60. Mechanic's wire (roll) (1) 61. Bolt cutters (1) 4.2 Tow Truck Appearance FSP vehicles bearing the FSP title, logo, and vehicle identification number shall be painted white (includes the hood, fenders, doors, boom, and bed area – the entire truck is to be painted white). No trim is allowed. Lettering shall be in a blocked bold style parallel to the ground and shall be no less than 2 inches by 2 inches and no greater than 4 inches in height. Lettering can only be black in color (no other colors will be permitted). Letters shall be placed on the lower body of the truck toward the cab. 272 Contractor’s name on the boom is prohibited. The overall look of the truck must be approved by CHP prior to service implementation; therefore, any questions regarding this policy may be discussed with CHP prior to implementing, as truck compliance with current state FSP standards is required. No other accessory equipment, signage, or advertisements (mud flaps, stickers, employment advertisement, and so forth) shall be mounted or installed without prior CHP approval. This includes, but is not limited to: bras or window tint. It shall be the vehicle operator’s responsibility to place detachable FSP markings on each vehicle during FSP service hours and to remove the detachable markings immediately upon completion of each shift. RCTC will supply each Contractor with the appropriate number of detachable markings for each Beat(s). If a marking is lost or damaged, the Contractor shall be responsible for the cost of the replacement markings. All FSP markings shall be returned at the termination of the contract. The cost of any RCTC and/or Caltrans/CHP supplied item and/or equipment not returned shall be deducted from the Contractor's final payment. FSP markings, as well as vehicle numbers, shall be required on both sides of all trucks. The detachable markings (magnetic FSP signage) provided by RCTC, must be placed on the center of the driver and passenger doors of the vehicle. The vehicle operator shall be required to keep the title and logos clean, straight, and in readable condition throughout the FSP shift. The operator is also required to keep the magnetic signage flat (do not bend in any way), clean, and out of direct sunlight while being stored during non-FSP operational hours. 4.3 Vehicle Inspections Prior to commencement of service, the CHP will inspect each vehicle designated for the FSP to ensure that it meets the vehicle specifications and to ensure that it meets or exceeds safety requirements. These inspections will occur prior to the start of service. Succeeding inspections will occur periodically as determined by the CHP. Documentation of the vehicle identification number and successful completion of the inspection will be kept on file at the CHP office and Contractor's base office. Any unsafe, poorly maintained, or improperly equipped vehicle(s) shall be removed from service, and if discovered to be in such a condition during the shift said vehicle(s) shall be removed from service or repaired as directed by the CHP, and the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments for the remainder of that shift, plus the loss of revenue for the down time. Spare vehicles, also known as “back-ups”, will be required to complete the shifts of vehicles removed from service. The Contractor will be required to have a spare FSP vehicle available for service for the duration of each and every FSP shift. The vehicle operator shall be required to complete a pre-operation shift inspection log of the vehicle as well as inventory the required equipment prior to the start of each and every shift. The vehicle operator shall be required to complete a driver log, which is 273 used to track the mileage. A shift inspection/inventory log shall be completed by the vehicle operator prior to the start of each shift and be available for inspection. Any item missing must be replaced prior to the start of the shift. All equipment stored on top of the truck shall be secured to the truck. 4.4 Spare/Back-Up Vehicles The Contractor shall be required to have one FSP Certified Back-Up tow truck available per Beat during FSP service hours that is in full compliance with the agreement, unless otherwise authorized by RCTC and CHP in writing. During FSP service hours, the spare vehicle shall be kept at the Contractor’s yard or staged adjacent to the assigned beat. The FSP Certified Back-Up tow truck should be used when a Certified Primary FSP tow truck is unavailable. The FSP Certified Back-Up tow truck shall meet the same requirements for equipment, set-up, and color as the Certified Primary FSP tow truck. It shall meet all the vehicle equipment specifications. Refer to Attachment H for further details on violations and penalties. 4.5 Vehicle Breakdown and Other Missed Service The spare vehicle must be in service on the Beat within 45 minutes of the time a permanently dedicated vehicle is taken out of service for any reason. The Contractor shall not be paid for the time period that the contractually required trucks are not in service. If a vehicle is not made available within the required 45-minute time period, the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments for every minute that exceeds the 45 minute replacement period until a certified FSP compliant spare/back-up vehicle is provided. If a truck is not ready due to breakdown at the start of a shift, the fine time will be calculated from the start of the shift until a replacement is placed into service. If the entire shift is missed, Contractor shall be fined for the entire shift at three (3) times the hourly rate times the total minutes for the affected shift. Vehicle maintenance shall be performed during non-FSP service hours. In addition, not having a certified FSP “spare or back-up” vehicle operator available is not an allowable excuse for not having a spare (back-up) vehicle on the beat within the 45-minute time period. If the Contractor does not have a dedicated or spare truck on the Beat because a certified FSP vehicle operator is not available, the Contractor shall be fined three (3) times the hourly contract rate in one (1) minute increments until a certified FSP replacement vehicle operator is provided. If the entire shift is missed because a vehicle operator was not available, the Contractor shall be fined for the entire shift at three (3) times the hourly rate times the total minutes for the affected shift. 5.0 Communications Equipment and Computers 5.1 Communications Equipment 274 Each FSP vehicle shall be equipped with various communication devices that will enable the vehicle operator to communicate with the CHP Communications Center. All vehicles shall be equipped with an Automatic Vehicle Location (AVL) system, radios, and Data Collection Devices (DCD). The AVL system, radio, and DCD equipment shall be purchased, owned, and supplied by RCTC. RCTC shall select the equipment installation vendor. The Contractor shall be responsible for maintaining the security of the vehicle communication equipment provided by RCTC. The Contractor shall be liable for any damage to the RCTC-owned communication equipment. The Contractor shall also be liable for the full replacement value of the communication equipment installed in the trucks while in the care, custody, and control of the equipment. RCTC will deduct repair fees as well as the full replacement cost of any RCTC equipment due to improper use or negligence by the Contractor, from any payment due to the Contractor. RCTC-supplied vehicle communications equipment shall be returned in full working condition upon contract termination. The cost of any equipment not returned within a reasonable time period shall be deducted from the Contractor's final payment. Programmable scanners capable of scanning between the 39 and 48 MHz used by CHP shall be supplied by the Contractor and shall be installed (mounted) in all vehicles. The Contractor is also required to use Verizon wireless cell phones with push-to-talk- plus capability, or equivalent, for communications with the CHP Communications Center and the CHP Field Supervisor. Wireless cell phones shall be purchased and maintained by the Contractor. The Contractor will also be responsible for all operating costs as well. In addition, tow operators are not permitted to take pictures, video, or capture any other images while performing FSP duties during FSP operational hours. These actions will not be tolerated, and a vehicle operator may be terminated if it is discovered they are doing so. In addition, any input of data into the DCD shall not be allowed while the vehicle is being operated/driven. Use of other devices while driving/operating a vehicle such as cell phones is prohibited by California State Law. The FSP vehicles shall be equipped with a public address system. The public address system shall have the capability for the driver of the disabled vehicle to hear instructions transmitted from the cab of the FSP vehicle when the FSP vehicle is directly to the rear of the disabled vehicle. 5.2 Computer Equipment The Contractor must have and maintain a desktop computer workstation with high- speed internet access and email to communicate with RCTC staff. 275 The Contractor must ensure that the DCD equipment is inspected and cleaned on a quarterly basis, or more frequently if needed. All DCD equipment should have the exterior protective case cleaned (protective outside case) and screen protector shall be inspected for functionality and serviceability. Worn items shall be immediately reported to RCTC. All DCD equipment must be kept in a secure location. During non-FSP operational hours, DCD equipment shall not be left in a tow vehicle or go home with a vehicle operator or anyone else. All DCD equipment must be in a designated charging area at the tow operator’s facility during non-FSP operational hours. The DCD equipment shall always have enough charge to complete each shift. In order to reduce instances of technology glitches, the DCD equipment shall be turned off/turned on at least once per week. DCD equipment is to be with the vehicle operator in their FSP truck during FSP operational hours. Any other location shall not be permitted. The Contractor shall immediately report any issues with the workstation or the DCD equipment to the RCTC FSP Program Manager or one of the FSP CHP Officers. Contractor is directly responsible to ensure their computer workstation is operating and has internet access at all times – this is a contract requirement. The Contractor shall provide access to the DCD equipment for RCTC staff, or their designated designee, at any time during the course of the Contract. In addition, the Contractor shall also make the workstation available to RCTC, or its designee, 30 calendar days prior to the start of the new service. The Contractor shall provide an annual inspection report to RCTC indicating the status of all equipment. RCTC will provide the submittal form. Tow operators should consider the accurate completion and timely return of this form as part of their contract requirements. 5.3 Equipment Tampering Tampering with FSP communication/tracking equipment so that it does not function properly to RCTC’s specifications, and/or is disconnected or moved (without FSP Management authorization) from its original installed location is strictly prohibited. This includes but is not limited to: breaking evidence tape/connection sealer on equipment connections, cutting wires or cables, moving mounted equipment (speakers, microphones, antennas, etc.), rerouting any wiring, disconnecting any connectors, Contractor/subcontractor unintentionally altering equipment or connections to equipment during vehicle maintenance or repair, or interfering with the operations of the equipment. If tampering is suspected, FSP Management may conduct an inspection of the equipment on the Beat or the vehicle may be sent to a designated location determined by FSP Management. 276 1. If tampering is found while the vehicle is used during FSP operational hours, the vehicle operator and vehicle will be immediately taken out of service and the Contractor shall be fined in one (1) minute increments at three (3) times their hourly rate, until such time that the back-up truck is deployed. Please note that if tampering is discovered, the penalties (three times the hourly rate in one minute increments) shall begin immediately upon the discovery of the tampering. The normal 45-minute back-up truck time allowance will not be considered “non-penalty” time under these circumstances. The penalties shall begin immediately upon the tampering being discovered. 2. If the vehicle is suspected to have equipment that has been tampered with, it may be sent to a designated location determined by FSP Management and CHP for an inspection. If tampering is found, the Contractor will be retroactively fined three (3) times the hourly rate in one (1) minute increments from the time the tampering was first suspected. The penalties will continue until a certified FSP back-up truck is deployed. The normal 45-minute back-up truck time allowance will not be considered “non-penalty” under these circumstances. Tampering Repairs If tampering is discovered during FSP operational hours, the vehicle will be taken out of service and will remain out of service until the repair and the documentation can be completed by the FSP Program designated technician. FSP Management determines the designated technician. The transportation, labor, and repair costs will be the responsibility of the Contractor. Costs incurred to repair and document the equipment will be deducted from the Contractor monthly invoice. Tampering Penalties The Contractor will also be assessed a $250 fine (whether the tampering is discovered while on the Beat, or if it was suspected and later confirmed) per incidence on their monthly invoice. If it is determined that the vehicle operator tampered with the equipment, the vehicle operator will be suspended for a minimum of 30 days for the initial tampering offense and subject to termination from the FSP Program for any subsequent tampering violations. 6.0 Contractor Responsibilities 6.1 Appearance at Hearings If and when required by SAFE, Contractor shall render assistance at public hearings or other meetings related to the performance of the Services. 6.2 Damage Complaints Upon receiving a damage complaint from a motorist assisted by the Contractor, that the Contractor damaged their vehicle while lending assistance, the Contractor shall notify CHP immediately regarding the nature of the damage complaint and its 277 disposition. The Contractor shall reply to the motorist by telephone within twenty-four (24) hours of receiving the damage complaint notification from CHP. If necessary, the Contractor shall send either his or her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the Contractor, the Contractor shall negotiate in good faith to try and resolve the issue and shall report to CHP the result of the negotiations. All complaints shall be resolved within a reasonable time- period after being received. 6.3 Complaint Review Committee The FSP Technical Advisory Committee (“FSP TAC”) is composed of voting members from CHP, SAFE, and Caltrans. Voting members of the FSP TAC are hereby designated as the members of the Damage Complaint Review Committee (“DCRC”). If the DCRC finds that justifiable complaints are not resolved within a reasonable timeframe, it can recommend that payment to the Contractor in the amount of the damage claim may be deducted from the Contractor monthly invoice. 6.4 Trend Meetings Contractor shall attend, or send a designated management-level representative, to all trend meetings (i.e., required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. Contractor shall be responsible for having a representative attend all meetings (i.e., FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the Contractor. If the Contractor cannot have a management-level representative at a meeting, Contractor shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the Contractor’s contractual responsibility. Meetings are scheduled, and Contractor will be notified of such schedule, no later than three (3) working days prior to the meeting. 7.0 Vehicle Operators 7.1 Operator Qualifications and Performance All potential vehicle operators shall be required to have a safe driving record and, at a minimum, a valid Class C driver's license. All vehicle operators shall be 18 years of age or older at the time of background check. Potential vehicle operators shall be subject to driving record and criminal background checks through the California Highway Patrol. Potential vehicle operators shall be sufficiently experienced in the tasks of tow truck operations and proficient with all required Freeway Service Patrol equipment to provide safe and proper service. Any certified vehicle operator from other FSP areas will be evaluated on a case-by-case basis. All potential vehicle 278 operators must be capable of demonstrating their tow operating abilities prior to formal CHP training, also known as proficiency testing. Additionally, the vehicle operators will be required to exercise good, sound judgment in carrying out their duties. Vehicle operators shall be required to inform the CHP Communications Center any time they leave the assigned Beat. This includes breaks and replenishing expendable items, such as: gasoline, fire extinguisher, etc. The vehicle operator shall be required to immediately notify the CHP Communications Center upon a tow truck breakdown. FSP vehicle operators will be responsible for accurately entering the required data into DCD equipment every shift. Each FSP vehicle operator shall complete an inspection worksheet prior to the commencement of driving the tow truck and a mileage log prior to beginning service on the Beat. The FSP vehicle operator shall be required to complete an assist record for each incident. Each assist record should be accurate. Contractors or Operators providing false or misleading information to FSP Management shall be subject to disciplinary action and will be handled on a case-by- case basis. FSP vehicle operators shall always complete the required procedures per the SOP when handling required forms. No duplicate survey numbers should be entered into the DCD equipment at any time. Vehicle operators are required to complete in their entirety the Release of Liability form and Damage Release form when applicable. These completed forms should be handed in to RCTC at a minimum every 60 days. If it is discovered that a vehicle operator has entered duplicate survey numbers, not properly completed the release forms, or not turned the release forms in timely, the Contractor may be subject to penalties as outlined in Proposal Pricing Form. CHP, Caltrans, and RCTC maintain strict drug and alcohol policies. Contractors shall have an alcohol and drug program that includes at a minimum, a drug and alcohol free workplace policy and an employee alcohol/drug-testing program. Any FSP vehicle operator found working under the influence of drugs or alcohol shall be immediately removed from the FSP program by the Contractor. The Contractor shall be responsible for providing a certified replacement vehicle operator for that vehicle. The Contractor shall be an active participant in the DMV Pull Notice Program. If a vehicle operator is convicted of a crime involving a stolen vehicle, stolen property, violence, drugs, or moral turpitude, fraud related to the towing business, or misdemeanor or felony driving while under the influence of alcohol or a drug, the Contractor shall permanently remove that vehicle operator from duties under the FSP program. If a vehicle operator is charged with any of the above crimes, the Contractor shall immediately suspend that vehicle operator from duties under this program pending the outcome of the criminal case. If the vehicle operator is not convicted, or is ultimately convicted of a lesser crime not described above, RCTC retains the right to 279 have the Contractor remove that vehicle operator from the duties under the FSP program. 7.2 Operator Training At the Contractor’s expense, all company owners, FSP vehicle operators, and back-up vehicle operators shall be required to present a certificate of completion of a SHRP 2/TIMS training course and to complete the CHP two-day training program which costs approximately $50.00 per vehicle operator (fee is for the DL64 Tow Truck Driver Certificate and fingerprinting). Contractors shall pay all FSP operators and back-up vehicle operators for attending the training. No vehicle operator will be allowed to begin patrolling without meeting the requirements set forth in the SOP. Any vehicle operator who is found on patrol not meeting the requirements may be prohibited from further FSP service and the Contractor’s contract may be terminated immediately. Mandatory CHP refresher training classes shall be attended. A minimum of four (4) hours refresher training per year shall be required (at Contractor’s expense). Contractors shall pay all FSP vehicle operators and back-up vehicle operators for attending the required training. Vehicle operators will be required to utilize DCD equipment to input information about mileage, inspection, and each assist, which will include: location, vehicle make, model, license number, type of assistance provided, etc. Vehicle operators will be trained on using DCD equipment to enter data. 7.3 Operator Driving Record and Criminal History Check As required by California Vehicle Code Section 2340, all applicants and owners are required to have a driver’s license and criminal history check. Only after a completed CHP 234F is received and accepted by CHP, a driver’s license and preliminary criminal history check will be performed. The driver’s license check will consist of confirming that the applicant has a valid driver’s license and the applicant’s point count is within standards set forth in this SOP (refer to Chapter 11, Annex A). The preliminary criminal history check will consist of a preliminary background check to determine if the applicant meets the criteria for a California Tow Truck Driver Certificate as outlined in California Public Resources Code Section 5164, California Vehicle Code Section 13377 and the FSP Contract. In addition, RCTC or the CHP may, in its sole discretion, require an Employer to replace any vehicle operator or reject a potential vehicle operator who it determines is not suitable to represent the FSP Program with the public. If the applicant passes the preliminary criminal history check, the applicant shall submit to fingerprinting. Driver’s license and preliminary criminal history checks will be completed by CHP within ten (10) working days of the acceptance of a CHP 234F. 280 7.4 Vehicle Operator Uniform It shall be the responsibility of the Contractor to provide the vehicle operator with specified uniforms, black protective toe boots, nameplate, gloves and other equipment. The equipment includes navy blue coveralls or navy blue shirts and pants. If coveralls are worn, they shall have a collar with a zip front. Optionally, drivers may wear a standard navy blue (long-sleeve only) uniform shirt, with a fluorescent orange (must be only 2.5” wide) trim, with a ½” silver reflective tape down the middle. This allowed reflective tape must be on both sleeves. All uniforms shall be clean, properly maintained, and replaced whenever excessively worn. Sleeves and pant legs shall be moderately tapered to avoid excessive fullness. A safety vest with reflective stripes shall be worn and supplied by RCTC. RCTC will supply vests with the FSP logo patches already sewn on per CHP’s required patch placement locations. A FSP logo patch is not required to be sewn on the navy blue FSP vehicle operator uniform. A detachable brass or gold nameplate shall be worn with the first initial of the first name and full last name. Letters shall not exceed ½” tall. The nameplate shall be worn above the right chest pocket on the safety vest. The Contractor is responsible for obtaining FSP CHP approval of the driver nameplates, and the Contractor is responsible for the purchase and replacement of the FSP vehicle operator nameplate. All FSP vehicle operators shall wear general duty black work boots with protective (steel or composite) toe. During cold weather, a navy blue sweater or sweatshirt may be worn under the uniform shirt/coveralls. As an option, a navy blue jacket may also be worn, if it meets all the uniform specifications and is worn under the safety vest. Rain gear, if worn, shall be waterproofed material and navy blue or yellow in color. Hats, if worn, shall be baseball-type caps and navy blue in color. An "FSP" logo patch may be sewn on the hat above the brim. No other logos/names shall be accepted. A beanie may also be worn which must be navy blue in color and worn only with a jacket or long sleeve shirt under the vest. Contractor should refer to the most current SOP to ensure they are following the most recent requirements. SOP revisions and updates shall be unilaterally issued by RCTC, as deemed necessary by RCTC management, and all changes, revisions and updates to the SOP, if any, shall supersede all previous or existing SOPs. A copy of the SOP is included as part of the original RFP package. 7.5 Local Office The Contractor shall provide a local office for contract administration purposes. This office shall be staffed by either the Contractor or a person who has the authority to conduct business and make decisions on behalf of the Contractor. The office shall 281 have business hours coinciding with Contractor's Beat(s) hours of operation. Through the Proposal document shown in the Contractor Representative Form, the Contractor shall designate representatives who will be available at the office during hours of operation to make decisions on behalf of the Contractor. The office shall be established within close proximity to the Contractor's Beat(s) and the County of Riverside. Also note in the Scope of Services, Section 4.4, a backup vehicle and a certified FSP vehicle operator must be available within a 45-minute request of the Beat area. This requirement may also determine if the local office is close enough to satisfy the requirements under this section. The Contractor shall also provide telephone and email through which he/she, or a responsible representative who has the authority to conduct business and make decisions on behalf of the Contractor, can be contacted during the non-service hours of operation for the length of the contract. During non-business hours, an answering machine provided at the Contractor's expense, shall be available to log calls, take complaints, etc. An email address that is monitored daily shall be provided for notification purposes during operational and non-service hours. The Contractor will be responsible for having a company representative monitor and review messages/notices on a daily basis. 7.6 Remedies and Liquidated Damages RCTC has a need to deal contractually with a range of failures by Contractors to meet contractual standards and requirements short of suspension or termination. Failure to meet contractual standards and requirements constitute a default under the contract and is subject to the various remedies provided in the contract, up to and including termination of the contract. It is clear that any default that is related to service or contractor’s readiness for service will either degrade service or lead to the degradation of service. The failure to meet contractual standards and requirements, therefore, causes damages to the FSP program and its participants (RCTC, CHP and Caltrans) and to the public being served by the FSP program. Because of the public service nature of the mission of the FSP, described generally in the Standard Operating Procedures (SOP), to keep traffic and commerce flowing on the regional freeways, the damages arising from contractor’s failure to meet the contractual standards and requirements are impractical or extremely difficult to ascertain on an individual basis. The contract has therefore established a series of remedies to attempt to deal with a range of defaults. The most egregious default will result in suspension or termination. Lesser defaults will result in the assessment of liquidated damages. These lesser remedies have been described in the SOP as fines, violations or penalties. This is not a correct characterization of the intent of the remedies. The remedies arise because the contractor is in default and the FSP and the public it serves is damaged by that 282 default. The remedies are to compensate FSP for its damages and to encourage compliance with performance requirements of the contract. 283 EXHIBIT “B” Compensation Summary FIRM PROJECT TASKS/ROLE COST Prime Consultant: Pepe’s Towing Service, Inc. FSP Services for Beat No. 8 $1,666,787.00 TOTAL COSTS $1,666,787.00 284 Attachment 4: FSP Outreach Flyers ATTACHMENT 4 285 RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL JUNE 28, 2021 Present Absent County of Riverside, District I X  County of Riverside, District V X  City of Corona X  City of Eastvale X  City of Hemet X  City of Jurupa Valley X  City of Menifee X  City of Moreno Valley X  City of Murrieta X  City of Norco X  City of Perris X  City of Wildomar X 