Loading...
HomeMy Public PortalAbout09 September 27, 2021 Western Riverside County Programs & Projects MEETING AGENDA Western Riverside County Programs and Projects Committee Time: 1:30 p.m. Date: September 27, 2021 Location: 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, September 27, 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/85770208286 Meeting ID: 857 7020 8286 One tap mobile +16699006833,,85770208286# 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 September 26, 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 September 27, 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. CONSENT CALENDAR - All matters on the Consent Calendar will be approved in a single motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the Consent Calendar will be placed for discussion at the end of the agenda. 6A. APPROVAL OF MINUTES – JUNE 28, 2021 Page 1 7. AGREEMENTS FOR ON-CALL DESIGN ENGINEERING AND ENVIRONMENTAL SERVICES FOR COMMUTER RAIL AND STATION CAPITAL IMPROVEMENT PROJECTS Page 7 Overview This item is for the Committee to: 1) Award the following agreements to provide on-call design engineering and environmental services for the construction of commuter rail and station capital improvement projects for a three-year term, and one, two-year option to extend the agreements, in an amount not to exceed an aggregate value of $10 million; a) Agreement No. 21-33-127-00 to HDR Engineering, Inc.; b) Agreement No. 21-33-128-00 to Moffatt and Nichol; c) Agreement No. 21-33-129-00 to RailPros, Inc.; and d) Agreement No. 21-33-064-00 to STV Incorporated; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; Western Riverside County Programs and Projects Committee September 27, 2021 Page 3 3) Authorize the Executive Director, or designee, to execute task orders awarded to the consultants under the terms of the agreements; and 4) Forward to the Commission for final action. 8. CITY OF LAKE ELSINORE REQUEST FOR ADDITIONAL FUNDS FOR CONSTRUCTION OF INTERSTATE 15/MAIN STREET INTERCHANGE IMPROVEMENT PROJECT Page 278 Overview This item is for the Committee to: 1) Approve additional programming of $2,463,000 of 2009 Measure A Western County Regional Arterial (MARA) funds for the city of Lake Elsinore’s (Lake Elsinore) Interstate 15 (I-15)/Main Street Interchange Improvement Project (Main Street IC); 2) Approve Agreement No. 20-72-089-01, Amendment No. 1 to Agreement No. 20-72-089-00, between the Commission and Lake Elsinore for the additional programming of $2,463,000 of MARA for the construction phase of Main Street IC and a total amount not to exceed $7,946,000; 3) Approve an adjustment to the Fiscal Year (FY) 2021/22 budget to increase construction expenditures in the amount of $2,463,000; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement; and 5) Forward to the Commission for final action. 9. EXECUTIVE DIRECTOR REPORT 10. COMMISSIONER COMMENTS Overview This item provides the opportunity for brief announcements or comments on items or matters of general interest. 11. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, October 25, 2021. AGENDA ITEM 6A MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, June 28, 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: 82311378265. 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 Michael Vargas led the Western Riverside County Programs and Projects Committee in a flag salute. 3.ROLL CALL Members/Alternates Present Members Absent Ben Benoit Brian Berkson Yxstian Gutierrez Jeff Hewitt Ted Hoffman Kevin Jeffries Linda Krupa Clint Lorimore Wes Speake Michael Vargas Scott Vinton Bill Zimmerman 4.PUBLIC COMMENTS There were no requests to speak. 1 RCTC WRC Programs and Projects Committee Minutes June 28, 2021 Page 2 5. ADDITIONS/REVISIONS There were no additions or revisions. 6. APPROVAL OF MINUTES – MAY 24, 2021 M/S/C (Benoit/Vargas) to approve the minutes as submitted. 7. COUNTY OF RIVERSIDE FUNDING REQUEST FOR CONSTRUCTION OF JURUPA ROAD GRADE SEPARATION PROJECT Commissioner Wes Speake announced he would be abstaining from the item as his company is working on the project. Jillian Guizado, Planning and Programming Director, presented the details of the County of Riverside funding request for construction of the Jurupa Road Grade Separation Project. Commissioner Brian Berkson commented on the long-standing necessity of this project. M/S/C (Benoit/Hoffman) 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. Abstain: Speake 8. AGREEMENT FOR TRANSIT-ORIENTED COMMUNITIES STRATEGIC PLAN Jenny Chan, Planning and Programming Manager, presented an overview of Transit- Oriented Communities and the scope of the agreement for the Transit-Oriented Communities Strategic Plan. Commissioner Vargas requested a copy of the presentation be sent to the Commissioners after the meeting. 2 RCTC WRC Programs and Projects Committee Minutes June 28, 2021 Page 3 Ms. Chan clarified for Commissioner Ted Hoffman there are 8 stations in 5 cities and that this project is not state mandated, the Commission applied for a grant from the FTA. Ms. Chan and Commissioner Hoffman discussed the city’s role in this study and the possibility of zoning changes around each station. Anne Mayer added the Commission will be working with each jurisdiction to determine what their general plan requirements are for those areas. Commission staff are not going to be making recommendations contrary to the jurisdiction, the goal is to provide a tool kit and support for the jurisdictions with this consolidated plan. Ron Roy, a member of the public, expressed concern about the omission of Active Transportation in the plan, especially bicycling. He would like the 2020/2021 TOC plan revised to include more emphasis on bicycling infrastructure. Ms. Mayer clarified for Commissioner Bill Zimmerman there is a contingency policy for most stages of a project, including the study, because there are times when other agencies or jurisdictions will ask for things to be added to a study/project and without the contingency it would have to be brought back to the Commission each time there is a small change to the scope of work. M/S/C (Vargas/Speake) 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 David Thomas, Interim Toll Program Director, presented the scope of the construction and maintenance agreement with BNSF Railway for the 15/91 ELC Project. Mr. Thomas clarified the low contingency amount for Chair Lorimore, noting contingency was not added for the right-of-way portion of the contract, it was only added for the construction maintenance portion. 3 RCTC WRC Programs and Projects Committee Minutes June 28, 2021 Page 4 M/S/C (Speake/Berkson) 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. 10. AGREEMENT FOR CALIFORNIA HIGHWAY PATROL CONSTRUCTION ZONE ENHANCEMENT ENFORCEMENT PROGRAM SERVICES DURING THE CONSTRUCTION OF THE COMMISSION’S HIGHWAY PROJECTS Bryce Johnston, Capital Projects Manager, presented the scope of the agreement with CHP for COZEEP services during the construction of the Commission’s highway projects. Commissioner Hoffman congratulated staff on expediting the process. Mr. Johnson clarified for Chair Lorimore that the amount paid will be based on services provided. M/S/C (Vargas/Zimmerman) 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. 4 RCTC WRC Programs and Projects Committee Minutes June 28, 2021 Page 5 11. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE Michelle McCamish, Senior Management Analyst, presented the scope of the agreements for FSP tow truck service. M/S/C (Vargas/Hoffman) 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. Abstain: Hewitt 12. COMMISSIONERS / STAFF REPORT 12A. Ms. Mayer provided an update on the congestion in Corona. 12B. Commissioner Hewitt commented on Agenda Item 11, noting tow truck drivers have one of the most dangerous jobs out there. 12C. Commissioner Speake thanked Ms. Mayer for her update and the Commission for continuing to work on easing congestion in Corona. 5 RCTC WRC Programs and Projects Committee Minutes June 28, 2021 Page 6 13. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:27 p.m. Respectfully submitted, Lisa Mobley Administrative Services Manager/ Clerk of the Board 6 AGENDA ITEM 7 Agenda Item 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 27, 2021 TO: Western Riverside County Programs and Projects Committee FROM: David Lewis, Capital Projects Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreements for On-Call Design Engineering and Environmental Services for Commuter Rail and Station Capital Improvement Projects STAFF RECOMMENDATION: This item is for the Committee to: 1) Award the following agreements to provide on-call design engineering and environmental services for the construction of commuter rail and station capital improvement projects for a three-year term, and one, two-year option to extend the agreements, in an amount not to exceed an aggregate value of $10 million; a) Agreement No. 21-33-127-00 to HDR Engineering, Inc.; b) Agreement No. 21-33-128-00 to Moffatt and Nichol; c) Agreement No. 21-33-129-00 to RailPros, Inc.; and d) Agreement No. 21-33-064-00 to STV Incorporated; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; 3) Authorize the Executive Director, or designee, to execute task orders awarded to the consultants under the terms of the agreements; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: The Commission has a need for the provision of comprehensive on-call professional services for design engineering and environmental services for commuter rail and station capital improvement projects. For large or unusual projects the Commission procures design engineering and environmental services as the need for services arises. An on-call design engineering and environmental services contract provides a more streamlined process since formal solicitation, selection, and negotiation of basic rates and contracting are completed as part of the on-call procurement process. The intention of this procurement is to provide the Commission with comprehensive on-call professional design engineering and environmental services for a variety of Commission commuter rail and station capital improvement projects such as the Perris Valley Line - South 7 Agenda Item 7 Perris station improvement project and future station upgrades projects. Design engineering and environmental services will be primarily funded with various Federal Transit Administration (FTA) grants in addition to other local, state, and federal sources. Procurement Process Pursuant to Government Code 4525 et seq, selection of architect, engineer, and related services shall be on the basis of demonstrated competence and on professional qualifications necessary for the satisfactory performance of the services required. Therefore, staff used the qualification method of selection for the procurement. Evaluation criteria included elements such as qualifications of firm, staffing and project organization, project understanding and approach, and the ability to respond to the requirements set forth under the terms of a request for qualifications (RFQ). RFQ No. 21-33-064-00 for on-call design engineering and environmental services for the construction of commuter rail and station capital improvement projects was released by staff on May 6, 2021. The RFQ was posted on the Commission’s Planet Bids website, which is accessible through the Commission’s website. Through Planet Bids, 118 firms downloaded the RFQ; 12 of these firms are located in Riverside County. A pre-submittal meeting was held on May 19, 2021 and attended by 24 firms. Staff responded to all questions submitted by potential proposers prior to the May 27, 2021, clarification deadline. Eight firms – Dewberry Engineers Inc. (Long Beach); EXP U.S. Services, Inc. (San Bernardino); HDR Engineering, Inc. (Riverside); HNTB Corporation (Ontario); Moffatt and Nichol (Ontario); Mott MacDonald (Los Angeles); RailPros, Inc. (Riverside); and STV Incorporated (Rancho Cucamonga) – submitted responsive and responsible statements of qualifications prior to the 2:00 p.m. submittal deadline on June 17, 2021. Based on the evaluation criteria set forth in the RFQ, the firms were evaluated and scored by an evaluation committee comprised of Commission, Bechtel and Metrolink staff. 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 six firms to the interview phase of the evaluation and selection process. Interviews of the shortlisted firms - HDR Engineering, Inc., HNTB Corporation, Moffatt and Nichol, Mott MacDonald, RailPros, Inc., and STV Incorporated – were conducted on July 13, 2021. As a result of the evaluation committee’s assessment of the interviews as well as the written statements of qualifications, the evaluation committee determined four firms – HDR Engineering, Inc., Moffatt and Nichol, RailPros, Inc., and STV Incorporated – to be the most qualified firms to provide on-call design engineering and environmental services for the construction of commuter rail and station capital improvement projects. The evaluation committee recommends contract awards to these four firms for a three-year term, and one, two-year option to extend the agreements, in the aggregate amount of $10 million, as these firms earned the highest total evaluation scores. 8 Agenda Item 7 The multiple award, on-call, indefinite delivery/indefinite quantity task order type contracts do not guarantee work to any of the awardees; therefore, no funds are guaranteed to any consultant. Pre-qualified consultants will be selected for specific tasks based on qualification information contained in their proposals and/or competitive fee proposals for the specific tasks. Services will be provided through the Commission’s issuance of contract task orders to the consultants on an as-needed basis. The Commission’s model on-call professional services agreement will be entered into with each consultant firm, subject to any changes approved by the Executive Director, pursuant to legal counsel review. Staff oversight of the contracts and task orders will maximize the effectiveness of the consultants and minimize costs to the Commission. FISCAL IMPACT: Staff does not anticipate any expenditures under these agreements in FY 2021/22, and no amounts for projects were included in the FY 2021/22 budget. Financial Information In Fiscal Year Budget: N/A N/A Year: FY 2021/22 FY 2022/23+ Amount: $0 $10,000,000 Source of Funds: Federal Transit Administration, 2009 Measure A Western County Rail, and/or other local, state, and federal funds Budget Adjustment: N/A N/A GL/Project Accounting No.: 654199 81115 265 33 81101 654199 81101 265 33 81101 Fiscal Procedures Approved: Date: 09/18/2021 Attachments: 1) Draft On-Call Professional Services Agreement 21-33-127-00 with HDR Engineering, Inc. 2) Draft On-Call Professional Services Agreement 21-33-128-00 with Moffatt and Nichol 3) Draft On-Call Professional Services Agreement 21-33-129-00 with RailPros Inc. 4) Draft On-Call Professional Services Agreement 21-33-064-00 with STV Incorporated 9 Agreement No. 21-33-127-00 PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH HDR ENGINEERING INC. FOR ON-CALL DESIGN ENGINEERING AND ENVIRONMENTAL SERVICES FOR THE CONSTRUCTION OF COMMUTER RAIL STATION CAPITAL IMPROVEMENT PROJECTS 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 HDR Engineering, Inc. ("Consultant"), a Corporation. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A.On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. C.On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. D.A source of funding for payment for on-call professional consulting services provided under this Agreement may be Proposition 1B funds (“Prop 1B”) funds administered by the California Department of Transportation (“Caltrans”), and/or funds from the Federal Transit Administration (“FTA”). This Agreement shall not be deemed to be approved by the Commission until the certification shown in Exhibit “E” attached hereto and incorporated herein by reference, is executed. E.Consultant desires to perform and assume responsibility for the provision of certain on-call design engineering and environmental services for the construction of DR A F T ATTACHMENT 1 10 3 commuter rail station capital improvement projects in the County of Riverside, California. Services shall be provided on the terms and conditions set forth in this Agreement and in the task order(s) to be solicited, awarded and authorized by Commission as further described in this Agreement (“Task Order”). Consultant represents that it is experienced in providing such services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. G. Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein and in each Task Order (each such project shall be designated a “Project” under this Agreement). Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the on-call design engineering and environmental services for the Projects ("Services"). The Services are generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Task Orders; Commencement of Services; Schedule of Services. Services under this Agreement shall be requested by the Commission pursuant to Task Order requests. If Commission accepts Consultant’s Task Order proposal, Commission shall issue a purchase order or executed task order for the Services (“Commission’s Task Order Authorization”). Consultant’s agreement to the final terms of a proposed Task Order, Commission’s Task Order Authorization and Consultant’s commencement of the Services shall indicate the Parties’ agreement to the terms of the relevant Task Order. Consultant shall commence Services under a Task Order within five (5) days of receiving Commission’s Task Order Authorization. Consultant shall perform the Services expeditiously, in accordance with the Schedule of Services set forth in a Task Order. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3. Pre-Award Audit. As a result of the funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or DR A F T 11 4 other authorization to proceed under a Task Order may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The funding provided under this Agreement is contingent on meeting all funding requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate State process reviews. In addition, Caltrans may require that prior to performance of any work for which funding reimbursement through Caltrans is requested and provided, that Caltrans must give to Commission an “Authorization to Proceed”. 4. Audit Procedures. 4.1 Consultant and certain subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 22 and 23 of this Agreement. Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding source. 4.2 During any Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines is received and approved by Caltrans. Accepted rates will be as follows: DR A F T 12 5 a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. 4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2 above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the Caltrans’ management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions. If the Consultant fails to comply with the provisions of this Section 4, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in Section 4.2 above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement. Consultant may submit to Commission final invoice only when all of the following items have occurred: (1) Caltrans accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of Commission; and, (3) Caltrans has issued its final ICR review letter. The Consultant must submit its final invoice to Commission no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all Task Orders issued under this Agreement, and all other agreements executed between the Commission and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end on September 30, 2024, unless extended by contract amendment. The Commission may extend the term of this Agreement, in its sole discretion, for one additional two (2) year period. 5.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. DR A F T 13 6 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission's Contract Administrator. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement ("Commission’s Contract Administrator"). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 7. Consultant's Representative. Consultant hereby designates Gerard Reminiskey to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission’s Contract Administrator. 8. Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions herein. The key personnel for performance of this Agreement are: Gerard Reminiskey, Rob Klovsky, Scott Gaastra, Thomas Jacques, Esmeralda Aranda, Chuck Christoplis, Darren Pynn, Moshik Mah, Wellington Chu, Jake Hyles, Brett Brandle, Kelly Czechowski, Dan Weatherby, Jason Stack, Jason Seccombe, and Melissa Holguin , or as otherwise identified in the Task Order. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have DR A F T 14 7 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. 10. Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 11. Project Progress. 11.1 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission’s Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation DR A F T 15 8 and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 13. Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission’s Contract Administrator in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission’s Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this Agreement, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not DR A F T 16 9 be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be 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. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event DR A F T 17 10 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. 18. Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 19. Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless additional reimbursement is provided for by written amendment. In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. To the extent legally permissible, Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in Section 19.8 shall not be exceeded, unless authorized by a written amendment. DR A F T 18 11 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee to be set forth in each Task Order (“Fixed Fee”). The Fixed Fee is nonadjustable for each Task Order, except in the event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. In addition, payments to Consultant for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non- represented State employees under current State Department of Personnel Administration (DPA) rules, unless otherwise authorized by Commission. If the rates invoiced are in excess of those authorized DPA rates, and Commission has not otherwise approved said rates, then Consultant is responsible for the cost difference and any overpayments shall be reimbursed to the Commission on demand. 19.4 When milestone cost estimates are included in the approved Cost Proposal for a Task Order, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 21, Termination. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 DR A F T 19 12 19.8 The total amount payable by Commission, including the Fixed Fee, shall not exceed the amount set forth in each Task Order. 19.9 Commission has or will enter into four (4) task order contracts for performance of the Scope of Services identified in Exhibit “A”, including this Agreement (“Design & Environmental Services Task Order Contracts”). The other Design & Environmental Services Task Order Contracts are Moffatt and Nichol; STV Incorporated and RailPros, Inc. The total amount payable by Commission for the Design & Environmental Services Task Order Contracts shall not exceed a cumulative maximum total value of Ten Million Dollars ($10,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under the Design & Environmental Services Task Order Contracts through Task Orders. Each time a Task Order is awarded under any of the Design & Environmental Services Task Order Contracts, Commission must send written notification to Consultant and each of the other consultants entering into the Design & Environmental Services Task Order Contracts. The notice must identify the total funds allocated under issued Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not pay any amount under this Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task Order that exceeds the NTE Sum. 19.10 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 19.11 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.12 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. DR A F T 20 13 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. 21. Termination. 21.1 Commission reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant, for any or no reason, with the reasons for termination stated in the notice. Commission may terminate Services under a Task Order, at any time, for any or no reason, with the effective date of termination to be specified in the notice of termination of Task Order. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission’s Contract Administrator to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination 21.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. DR A F T 21 14 21.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 21.8 Consultant may not terminate this Agreement except for cause. 22. Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23. Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California 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 DR A F T 22 15 completion, and provide support for reimbursement payment vouchers or invoices. 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 25.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “B” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or DR A F T 23 16 in a Task Order. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. 26. Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27. Labor Code Requirements. 27.1 Prevailing Wages. (a) Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b) Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. DR A F T 24 17 (c) When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 27.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. DR A F T 25 18 If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 28.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. DR A F T 26 19 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. DR A F T 27 20 29. 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 indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. Consultant’s obligations as set forth in this Section shall survive expiration or termination of this Agreement. 30. Insurance. 30.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this Section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this Section. 30.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to DR A F T 28 21 persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 30.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be 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 the types of 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. 30.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall be required by the Commission. Such insurance shall include coverage for owned, hired DR A F T 29 22 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. 30.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents additional insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (b) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (c) Workers’ Compensation and Employers Liability Coverage. DR A F T 30 23 (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required 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 DR A F T 31 24 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) None of the Commission’s directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 30.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 30.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 30.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. DR A F T 32 25 30.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 30.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project, provided that any change in the foregoing insurance requirement will require approval from Consultant. The Commission may terminate the Agreement for convenience if Consultant does not approve such change In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 31. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 32. Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be 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 DR A F T 33 26 parties when the Agreement was entered into. An example of a change which is not a Cardinal Change would be where, in a contract to construct a building there are many changes in the materials used, but the size and layout of the building remains the same. Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 33. Prohibited Interests. 33.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 33.2 Consultant Conflict of Interest. (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (c) Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all of the provisions of this Article. DR A F T 34 27 (d) Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement. 33.3 Commission Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 33.4 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 33.5 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to the terms herein, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 33.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to 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. 33.7 Covenant Against Expenditure of Commission, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, DR A F T 35 28 in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. (a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 33.8 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 34. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 35. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 36. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 37. Disputes; Attorneys' Fees. DR A F T 36 29 37.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 37.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys' fees and, all other costs of such actions. 38. Time of Essence. Time is of the essence for each and every provision of this Agreement. 39. Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 40. 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: HDR Engineering, Inc. Riverside County Transportation Commission 2280 Market Street, Suite 100 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Riverside, CA 92501 Attn: Gerard Reminiskey 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. 41. 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. 42. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 43. 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. DR A F T 37 30 44. 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. 45. Provisions Applicable When State Funds or Federal Funds Are Involved. When funding for the Services under a Task Order is provided, in whole or in part, from Caltrans, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (California Department of Transportation requirements) attached hereto and incorporated herein by reference. When funding for the Services under a Task Order is provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by reference. 46. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 47. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 48. 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. 49. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 50. 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. 51. 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. 52. 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. DR A F T 38 31 53. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 54. 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] DR A F T 39 32 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING/ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: [INSERT NAME] Chair Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT HDR ENGINEERING, 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. DR A F T 40 Exhibit A EXHIBIT "A" SCOPE OF WORK The Commission intends to contract with an on-call “bench” of qualified consultants to provide Design Engineering and Environmental services for Commuter Rail Station Capital Improvement Projects on an on-call basis pursuant to task orders to be issued in accordance with the terms of this RFQ and the Commission’s model agreement. The selected consultants will supplement the work of the Commission Staff in accordance with the specifications described herein. Projects for which design engineering and environmental services may be required include transit and commuter rail station facility amenities and improvements, station platform improvements, passenger shelters, pedestrian connections, pedestrian bridge structures, pedestrian at-grade railroad crossings, parking structures, parking lot improvements/rehabilitation/expansions, fencing for access control, bicycle paths and bicycle storage solutions and landscaping. Services may be required for station related track addition/rehabilitation/replacement, railroad signal systems, railroad grade crossings, Quiet Zones, layover facilities, station security and safety elements. The foregoing generally described projects may include upgrade to technology with improved ticket vending machines, customer information kiosks, communicator upgrades, signage and potentially wireless connectivity. As design engineering and environmental services needs arise, the Commission will develop a brief scope of work and will issue a request for task order proposals to the bench of contracted firms selected pursuant to this RFQ. Award of task orders will be made to the firm: (i) determined most qualified based on a review of the task order proposals in accordance with the review criteria to be set forth in the request for task order, and (ii) proposing a reasonable price, as determined by the Commission. If the Commission and the first ranked firm are unable to negotiate a reasonable price for the task order work, negotiations shall commence with the next highest ranked firm, and shall continue until a task order is awarded. For non-State or non-federally funded task orders, the Commission may include price as a consideration in task order proposal evaluation and award, and/or may issue task orders in accordance with procedures determined to be in the Commission’s best interest. Approval and authorization to proceed for the designated scope of work will be documented in an Agreement Task Order (ATO). The consultant will be required to commence work within five days or sooner after receiving a fully executed ATO. Payment for each ATO will be in accordance with the Cost Proposal conditions in the selected consultant’s parent agreement. These services will be funded using a variety of federal, state, and local funds. The consultant shall meet all the requirements associated with the specific fund type associate with each ATO and the funding will be identified at the time the scope of work is released. DR A F T 41 Exhibit A Work Activities: All work will be performed to meet the latest Local, State and Federal standards as they are applicable to the element of work being performed. The activities listed in this scope of work are intended to be delivered to support the 30%, 60%, 95% and 100% reviews that are typically used to review Plans Specifications & Estimate (PS&E) packages led by Local Agencies. Prevailing wage shall be paid for all work activities subject to California Labor Code Sections 1720 et seq. and 1770 et. Seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”). Consultant’s SOQ should discuss how will address the following primary activities: PART 1- Environmental – environmental documentation to comply with the California Environmental Quality Act (CEQA), National Environmental Policy Act (NEPA) and all applicable state and federal requirements, supporting technical reports and studies, surveys, mitigation, conceptual analysis, design permits and construction support. Final Environmental Document and Preliminary Engineering Services 1. Project Management 2. Risk Management 3. Prepare, or subcontract for the preparation of all required Technical Studies, Reports, data collection and documentation to support the CEQA/NEPA reports, including but not necessarily limited to: Air Quality, Biology, Cultural Resources, including Section 106 compliance, Native American consultation (including AB 52 compliance when RCTC is the CEQA Lead Agency), Archaeology, Hazardous Waste, Noise and Vibration, Paleontology, Section 4(f) Evaluations, Water Quality and Geotechnical materials 4. Survey and Mapping activities for the project area to support preliminary engineering activities and environmental studies and preliminary plans 5. Processing all forms, maps and documents required for required permits. 6. Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final PS&E, including but not necessarily limited to: stormwater management plan, water quality, geotechnical, structural section recommendation, structure design 7. Other miscellaneous studies that the Offeror recommends performing in order to expedite project delivery 8. Coordination Meetings with the Commission, State, Federal, County of Riverside and local agencies 9. Coordination, reviews and approvals with Federal Transit Administration (FTA), Federal Railroad Administration (FRA), California Public Utilities Commission (CPUC) affected local agencies/jurisdictions, Burlington Northern Santa Fe (BNSF) DR A F T 42 Exhibit A Railroad, Union Pacific Railroad (UPRR), Southern California Regional Rail Authority (SCRRA), U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), California Department of Fish and Wildlife (CDFW), Western Riverside Regional Conservation Authority (RCA), Santa Ana Regional Water Quality Control Board (RWQCB), and others as required 10. Public Outreach and Marketing- Public meetings, publications, media placements. Graphics – PowerPoint, exhibits, simulations and ad development Part 2-Plans Specification and & Estimate Services Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final plans, specifications, & estimates, including but not necessarily limited to: 11. Hydraulic Engineering 12. Structural Engineering 13. Geotechnical Engineering 14. Utility Identification, Potholing and Coordination 15. Surveying – Topography, boundary, record maps, right of way for Preliminary Engineering and final PS&E 16. Right of way – right of way engineering, legals and plats 17. Storm Water Pollution Prevention Plan (SWPPP) Preparation and Notice of Intent preparation and submittal 18. Environmental Coordination, as required 19. Railroad coordination and development and finalization of a design, construction, Memorandum of Understanding and/or Construction and Maintenance agreement, if required. 20. Coordination, reviews and approvals with USACE, USFWS, CDFW, RCA, RWQCB, FTA, FRA, CPUC affected local agencies/jurisdictions, BNSF, UPRR, SCRRA, and others, as required. 21. Provide and setup document control system 22. Prepare and process all forms, maps and documents needed for required permits 23. Preparation of hard copy and electronic/CAD drawings (reproducible drawings) 24. Provide copies of reports, drawings and specifications to the Commission at each stage of submittal 25. Provide Value Engineering, Risk Management Plan and Constructability review prior to final design. 26. Development of Plans, Specifications, and Cost Estimate. DR A F T 43 Exhibit A 27. Provide bid support services including: review bid questions and draft responses’ draft addenda to bid documents 28. Provide Construction Support Services (for example but not limited to: Review, respond to Request for Information, Request for Quote; Submittal and Shop Drawing Review and Approval, Coordination with Commission for any Shop Drawing Approvals, provided revised drawings and/or specifications resulting from Contract Change Orders, Claims review and response) 29. Participate in final walk through and provide comments/recommendations to final punch list. 30. Update electronic/CAD plans to include As-Built revisions and digitally sign A. General Requirements The consultant is expected to prepare all reports, studies and plans to meet Local, State and Federal requirements. Commission staff will provide overall project coordination, and will handle administrative matters. Commission staff will provide oversight, guidance and interpretation on matters relating to policies and regulations. B. Meetings/Public Involvement The consultant will be required to meet with the Commission staff, Bechtel and other agencies that may include State, Federal, Riverside County, SCRRA, BNSF, UPRR, cities of Corona, Jurupa Valley, Perris, March Joint Powers Authority (MJPA) and Riverside, USACE, USFWS, CDFW, WQCB, RCA FTA, other public agencies, and private entities located within the Project boundaries on a regular basis. Project Development Team (PDT) meetings will be held monthly with the project stakeholders. C. Final Products/deliverables Specific final products/deliverables related to the project are listed below: • Final Environmental Document and Notice of Completion and/or Record of Decision, as appropriate • Final Environmental permits • Approved Technical Reports • Survey Data • Agenda, public notices and presentation material to support public hearings and responses to comments received during the environmental document public availability period • Value Engineering Studies, Risk Management Plan and Constructability Analysis DR A F T 44 Exhibit A • Final Plans, Specification, and Cost Estimates (electronic versions plus 1 Full Size (D-Size) and 1 half size copy of final drawings, also provide electronic versions plus hard copies of all reports, Specifications and Estimate). • Final Water Quality Management Plan • Final Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) • Materials Report, Log of Test Borings, and Materials Information Write-Up for Bidders • Project Cross Sections, for Earthwork, for Bidders • Final Bridge Structural Report • Final Drainage and Hydraulic Reports • Final Right of Way Drawings, Legals and Plats • Final Utility Drawings and Notice to Relocate • Final electronic/CAD As-Builts for the Project Other products to match your work activities as described in Section B above. DR A F T 45 Exhibit B-1 EXHIBIT “B” – COMPENSATION AND PAYMENT DR A F T 46 FIRM PROJECT TASKS/ROLE COST HDR Engineering, Inc.On-Call Design Engineering 6,600,000.00$ AMMA Transit Planning Transit Planning 100,000.00 Arellano Associates Outreach 100,000.00 Calvada Surveying, Inc.Surveying/Mapping 250,000.00 ICF Jones & Stokes, Inc.Air Quality, GHG, Noise and Vibration 500,000.00 PAC Engineering Video Security Systems 200,000.00 PaleoWest, LLC Paleontological and Historic Resource Management 200,000.00 Project Design Consultants Surveying/Mapping 250,000.00 Pacific Railway Enterprises, Inc.Signal and Communications Design 500,000.00 Psomas Station Planning 200,000.00 STC Traffic Traffic Engineering 500,000.00 Suenram & Associates, Inc.Utility Identification and Relocation Design 200,000.00 TR Design Group Architect 100,000.00 Zephyr UAS Railroad Engineering, Surveying/Mapping 300,000.00 10,000,000.00$ 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. Prime Consultant: Sub Consultants: EXHIBIT "B" COMPENSATION SUMMARY1 DR A F T 47 Exhibit C-1 EXHIBIT "C" CALTRANS REQUIREMENTS/ PROP 1 B PROVISIONS 1. STATEMENT OF COMPLIANCE. A. Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B. During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. 2. DEBARMENT AND SUSPENSION CERTIFICATION A. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to Commission. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. DR A F T 48 Exhibit C-2 C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. 3. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this Agreement for satisfactory performance of its contract no later than 10 days from the receipt of each payment the Consultant receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. 4. RELEASE OF RETAINAGE No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to Consultant and its subconsultants. 5. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either Party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 6. NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, and by signing this Agreement, Consultant certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with DR A F T 49 Exhibit C-3 an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 7. INVENTIONS. Rights to Inventions and Data Made Under a Contract or Agreement — Consultant shall comply with Federal requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under the Contract, and shall be in compliance with 10 CFR 600.325 and Appendix A—Patent and Data Rights to Subpart D, Part 600. 8. ENVIRONMENTAL COMPLIANCE A. Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000). B. Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871). C. Energy Policy and Conservation Act (Pub. L. 94—163, 89 Stat. 871.) — Consultant shall 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 (Pub. L. 94–163, 89 Stat. 871), which are incorporated by reference in this Contract. (10 CFR 600.236(i)(13).) DR A F T 50 Exhibit D-1 EXHIBIT “D” FTA PROVISIONS DR A F T 51 FTA Requirements- Page 1 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: DR A F T 52 FTA Requirements- Page 2 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 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. DR A F T 53 FTA Requirements- Page 3 (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 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. DR A F T 54 FTA Requirements- Page 4 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; 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 DR A F T 55 FTA Requirements- Page 5 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. 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. DR A F T 56 FTA Requirements- Page 6 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 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 DR A F T 57 FTA Requirements- Page 7 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. 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 DR A F T 58 FTA Requirements- Page 8 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. 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 DR A F T 59 FTA Requirements- Page 9 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 DR A F T 60 FTA Requirements- Page 10 Executive Director. This "Disputes" clause does not preclude consideration of questions of law in connection with 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. DR A F T 61 FTA Requirements- Page 11 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 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. DR A F T 62 FTA Requirements- Page 12 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. DR A F T 63 Exhibit E-1 EXHIBIT "E" CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the _______________________ and duly authorized representative of the firm of _____________________________________ whose address is ____________________________________________________, and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. By: ____________________________ Signature ____________________________ Name ____________________________ Title ____________________________ DR A F T 64 1 Exhibit F-1 EXHIBIT “F” LOBBYING ACTIVITIES DISCLOSURE DR A F T 65 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 Thomas T. Kim, PE Senior Vice President 06/17/2021 NOT APPLICABLE - HDR does not have lobbying activities to disclose at this time. (951) 320-7300 DR A F T 66 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 _________________________ President Brian Serl 909-490-0530 5/27/21 x x invoices per each week performed x Not ApplicableDR A F T 67 Local Assistance Procedures Manual EXHBIT 10-Q Disclosure of Lobbying Activities %+) LPP 13-01 May 8, 2013 EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES  ##"!#""'#%#" $!"$## $"     !:3)2*)()4%/'6-21  6%6752*)()4%/'6-21  )3246!:3) ) +76<:)+<) *1,7..-:)8841+)<176 ) 161<1)4 * /:)6<* 161<1)4)?):,* 5)<-:1)4+0)6/- + +778-:)<1>-)/:--5-6<+ 87;<)?):, , 47)6 24%6)4-%/,%1+)1/: - 47)6/=):)6<--A-):(((( 9=):<-:((((((((( . 47)616;=:)6+-,)<-7.4);<:-87:< ((((((((((    %0)%1(((4)552*)3246-1+16-6:  *)3246-1+16-6:-12 -5 7&%9%4()) 16)4%0)%1(((4)552*4-0)  :15-"=*)?):,-- #1-:(((((((1.367?6 21+4)55-21%/-564-'61.367?6 21+4)55-21%/-564-'61.367?6    )()4%/)3%460)16+)1': )()4%/42+4%0%0))5'4-36-21 70&)41.)8841+)*4-((((((((((((((((((((   )()4%/'6-2170&)41.367?69%4(027161.367?6   %0)%1(((4)552*2&&:16-6:  1(-8-(7%/5)4*240-1+ )48-')5 .16,1>1,=)44);<6)5-.1:;<6)5-16+4=,16/),,:-;;1.,1..-:-6<.:757  4);<6)5-.1:;<6)5- )<<)+076<16=)<176"0--<;1.6-+-;;):A   027162*%:0)16',)'.%//6,%6%33/:  !:3)2*%:0)16',)'.%//6,%6%33/: $$$$$$$$$$$$$)+<=)4 84)66-, ) :-<)16-: * 76-<15-.--  2402*%:0)16',)'.%//6,%6%33/:+ +7551;;176 ) +);0 , +76<16/-6<.-- * 16316,;8-+1.A6)<=:-(((((((((((((((-,-.-::-, %)4=-(((((((((((((. 7<0-:;8-+1.A (((((((((((((((((((((((((  4-)*)5'4-36-212* )48-')5)4*240)(2462&)3)4*240)(%1(%6)52* )48-')-1'/7(-1+ 2**-')45)03/2:))5240)0&)45'216%'6)(*24%:0)161(-'%6)(-16)0  )<<)+076<16=)<176"0--<;1.6-+-;;):A  216-17%6-21 ,))65%66%',)( #)52 6.7:5)<176:-9=-;<-,<0:7=/0<01;.7:51;)=<07:1B-,*A#1<4- $""-+<176  #01;,1;+47;=:-7.47**A16/:-41)6+- ?);84)+-,*A<0-<1-:)*7>-?0-601;<:)6;)+<176?);5),-7: -6<-:-,16<7#01;,1;+47;=:-1;:-9=1:-,8=:;=)6<<7 $"  #01;16.7:5)<176?144*-:-87:<-,<776/:-;; ;-51)66=)44A)6,?144*-)>)14)*4-.7:8=*41+16;8-+<1766A 8-:;76?07.)14;<7.14-<0-:-9=1:-,,1;+47;=:-;0)44*-;=*2-+< <7)+1>148-6)4<A7.67<4-;;<0)6  )6,67<57:-<0)6   .7:-)+0;=+0.)14=:- "1/6)<=:-(((((((((((((((((((((((((((((((((((((((( :16<)5-((((((((((((((((((((((((((((((((((((((( #1<4-(((((((((((((((((((((((((((((((((((((((((((( #-4-8076-7(((((((((((((((((((()<-(((((((((((  =<07:1B-,.7:7+)4!-8:7,=+<176 )()4%/"5)1/:"<)6,):,7:5 "<)6,):,7:5!->    -564-&76-21:1/7+)4/-6+A :72-+<14-; APPENDIX L - 1 ; Not Applicable Heather Menninger Owner/ Principal 951 784-1333, ext. 1 June 7, 2021 DR A F T 68 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 $100,000 for each such failure. Signature: ________________________________________ Print Name: _______________________________________ Title: ____________________________________________ _____________ Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files APPENDIX L - 1 5)*4'03.*4/05"11-*$"#-&50"3&--"/0"440$*"5&4 9 *HQRYHYD/$UHOODQR 3ULQFLSDO  Telephone No.: _______ Date: __________  ___________________________________________________________________________________________________________ *HQRYHYD ////////////////////////////$UHOODQR DR A F T 69 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 President / Professional Land Surveyor Armando DuPont, CA PLS 7780 951-280-9960 05/28/2021 _________________________________________________________________________________________________________________________________ NA NA NA NA NA NA NA NA NA NA NA NA NA DR A F T 70 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 $100,000 for each such failure. Signature: ________________________________________ Print Name: _______________________________________ Title: ____________________________________________ Telephone No.: ____________________ Date: ___________ Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files APPENDIX L - 1 7ULQD/)LVKHU &RQWUDFWV$GPLQLVWUDWRU -XQH ; ,&)-RQHV 6WRNHV,QF D DD 1RW$SSOLFDEOH ; 1$1$ 1$ 1$  'LVFRYHU\6XLWH,UYLQH&$ +'5 (O&DPLQR5HDO6XLWH ,UYLQH&$  ______________________________________________________________________________________________________________________________________________________________________________________________ DR A F T 71 XDR A F T 72 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 N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/AN/A N/A X N/A ✔ Jennifer A. Purcell, PE President / CEO 951-784-4630 5/21/21 DR A F T 73 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 $100,000 for each such failure. Signature: ________________________________________ Print Name: _______________________________________ Title: ____________________________________________ Telephone No.: ____________________ Date: ___________ Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files APPENDIX L - 1 1$ -HVVLFD'H%XVN0%$ 2IILFH3ULQFLSDO   ;DR A F T 74 ' ' #' #' ' ' $'' &'!%"' %D+, ,Ah #,@!2:@B>&h:(h3: E,7*h!A-C,A,&@h ;<UV6S-Sņ-ÛT,ņØ<æUņ-<ņˆ‹,;6<,Sņ6<ÑÒíTGÙņ Î;-TŠ-‹S,ņVg,g‡G-ņ-<ņ¹ņg),t;`ņºÄÂņ            )ņ  4 Nņ 2•0 zčĀĭ´++ )ņ   2) 7 4 2uņ  mņ.  2t 4 ņ/7 N +  žņ7  ) + «.  N Ğ )_`h5GbL`TGYh"SG^QLh;^Yfh  h   h :·aņ ) ņ7 į  ă`ņ mņ  8G]LhG^KhKK`Laah_N?L[_`bT^Qh'^bTbfV]âIJ 2. ņ - ņh==ņ¦ņ&A.ņ "_^Q`LaaT_^GYh $Tab`WJbh&ņA.ņ )LKL`GYh $L[G`b]L^bQL^Jfh Ö0ņEņHK1>Dņ&ņA.Rņ H1ņņ Eņ?ņà>>9ņÕ9ņ !T&ņž 0Lņ m ņ§ņZė 4ņ¨ņUğ"ņ ^ ò“ņ Ĭ  4 ņh==ņņ  ņ&ņ ņ + ņ h’=óņ‘ņ  FN?L\_`bT^Qh'^bTbfhU^h8_ hhUah@cIGeG`KLL '^bL`h9G]LhG^KhKK`Laah_Nh<`T]L clnņFDņ&ņA.ņ ƒa ‰nņWl1ņH1zFC\È c‰FEņHK>Dņ&ņ ++2ņ ôj’%%%%%ņ Çy EļņE1KDņ&ņA.† ::yņ .^KTdUKcGYah <L`P`]T^Qh @L`dUJLa ! 7ņ ņ VOhĎā  ņĉĮņG)ņŠņµ" !04ņLņZĘ  ņLņUĠ" ! /ņ;   ņ,/ !"ņ&ņ ^"ņ  ]_c^bh_Nh<Gf]L^bh JSLJXhGYYhbSGbhG[[Zf é9C\ņ?ņW9ņ![ĝņ00ņ[ņC\CĢn9" çņ%%%%%“ņ  ņ ¥  )_`]h_Nh<Gf]L^bhJSLJXhGYYhbSGbhG01Zf` / 2° MAÍņ+ZĿÉņ ņõiii%%ņö  ņ=jj÷øņ‘ņ  )ņ ]4 2)ņ M ņ& )  •N  7 ņZĂ ņ Ċ ] Ąu  / Lņ+&^ :Åa Ó?FęŒqņ?ņeŸņWk1ņņņ>ņC\kņņF!"ņ?ņeŸ_ņ0Kl ?Č!"_ņ Œq09!"_ņņ11>!"ņDņkņW9ņïņņÞ1ņ  !ĸ /ņ;   ņ,/ !"ņ&ņ ^"ņ :Ʊ cKņe[!"ņ[Ê îņ Hņ łņ:ƒ² ÝYĩJĴ@ņo' #ņ $'I$ņ $ ņY˜šĤņ ņ' $ ŀ#ņ*Bņê@  Ńņ QPņŽOfOdvņf ņ »Q~wņ ë$ ņ# ġ 'ņ—ņ**B@Iņ ņ ,7 †ņ ¤ņ  ” ņ8–#ņ*Bņ $ņ –ņ*pņðđ¼ýņ$ ņ   ņ ” ņJ#ņņ ńņ #ņ  xņ ģÀ½ ņ# 3 'ņ ņo' #ņ8' ' ņ ņQPņŽOfwdOņ V  ņGËņ Úùıņܜ›ņ¾Q~xņ£ß ņ YĪJ ņ. 3ņ*ņ8 #ņ ņdI ņ ¬(Ņ((((((((rs(rs(­ J 'Bņ#ņ.@3ņ*ņp @*ņďņ8'*3 ņ@ 8 ³ņ ÏBņ 8 ņñĒÁ¸ņYû  ņ ņċņ $ņo #ņ# 3 šņ $3ņ*ņ '*ě ņ - 0Rņ ìēþXņä™X›ĔÿXĥĵņħąņ蜙ĻXĽņ ņņ p ņ83 ľņ—ņ ņ3 ņ $ņ¡P5©5|5ņ#ņ ņJņ $ņ ¢P5|ª555ņĈ˜ņ$ņ '$ņćú ĺvņ -+/ņG)Rņ ‚}…M„„}®€€…Ãņ ˆ Rņ ‚{b{b¶b¿ņ    ‡ 4/ Łņ Đ ņ6ņ+   ņ , ]ņĆ ņM 666ņ ÔĕijĶİĚüĹķĖĨĦÌņ ã I¯ áīņÐIBņåĜ ņ×  ņ 4==hh            =HRMh/h 6Hghhh Not Applicable DR A F T 75 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 DOES NOT APPLY Agustin Chang, Vice President Principal 619.961.2800 05/21/2021 XDR A F T 76 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 HDR Engineering, Inc. 3230 El Camino Real, Suite 200 Irvine, CA 926025865 Avenida Encinas #142-B | Carlsbad | CA | 92008 STC Traffic, Inc. Jason Stack, TE, PTOE President (760) 602-4290 06/17/2021 Federal Highway Administration (FHWA); Federal Transit Administration (FTA); California Department of Transportation (CALTRANS); Riverside County Transportation Commission (RCTC) (RCTC) | RFQ #21-33-064-00 | On-Call Design Engineering & Environmmental for Construction of Commuter Rail Station CIP N/A We do not engage in Lobbying Activity ______________________ STC Traffic does not engage in Lobbying Activity DR A F T 77 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 Suenram & Associates, Inc. has no lobbying activities to disclose. Not Applicable Not Applicable Not Applicable 0 Not Applicable Not Applicable Not Applicable Not Applicable Not Applicable Kate Suenram President 05/25/2021818-358-2439 __________________ Kt S DR A F T 78 DR A F T 79 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 Marc A Canas Vice President (714) 835-6355 5/25/2021 (Zephyr UAS, Inc. has no Lobbying Activities to Disclose.) ; ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DR A F T 80 17336.00600\33928482.2 Agreement No. 21-33-128-00 PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH MOFFATT & NICHOL FOR ON-CALL DESIGN ENGINEERING AND ENVIRONMENTAL SERVICES FOR THE CONSTRUCTION OF COMMUTER RAIL STATION CAPITAL IMPROVEMENT PROJECTS 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 Moffatt & Nichol ("Consultant"), a Corporation. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A.On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. C.On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. D.A source of funding for payment for on-call professional consulting services provided under this Agreement may be Proposition 1B funds (“Prop 1B”) funds administered by the California Department of Transportation (“Caltrans”), and/or funds from the Federal Transit Administration (“FTA”). This Agreement shall not be deemed to be approved by the Commission until the certification shown in Exhibit “E” attached hereto and incorporated herein by reference, is executed. E.Consultant desires to perform and assume responsibility for the provision of certain on-call design engineering and environmental services for the construction of DR A F T ATTACHMENT 2 81 17336.00600\33928482.2 3 commuter rail station capital improvement projects in the County of Riverside, California. Services shall be provided on the terms and conditions set forth in this Agreement and in the task order(s) to be solicited, awarded and authorized by Commission as further described in this Agreement (“Task Order”). Consultant represents that it is experienced in providing such services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. G. Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein and in each Task Order (each such project shall be designated a “Project” under this Agreement). Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the on-call design engineering and environmental services for the Projects ("Services"). The Services are generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Task Orders; Commencement of Services; Schedule of Services. Services under this Agreement shall be requested by the Commission pursuant to Task Order requests. If Commission accepts Consultant’s Task Order proposal, Commission shall issue a purchase order or executed task order for the Services (“Commission’s Task Order Authorization”). Consultant’s agreement to the final terms of a proposed Task Order, Commission’s Task Order Authorization and Consultant’s commencement of the Services shall indicate the Parties’ agreement to the terms of the relevant Task Order. Consultant shall commence Services under a Task Order within five (5) days of receiving Commission’s Task Order Authorization. Consultant shall perform the Services expeditiously, in accordance with the Schedule of Services set forth in a Task Order. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3. Pre-Award Audit. As a result of the funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or DR A F T 82 17336.00600\33928482.2 4 other authorization to proceed under a Task Order may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The funding provided under this Agreement is contingent on meeting all funding requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate State process reviews. In addition, Caltrans may require that prior to performance of any work for which funding reimbursement through Caltrans is requested and provided, that Caltrans must give to Commission an “Authorization to Proceed”. 4. Audit Procedures. 4.1 Consultant and certain subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 22 and 23 of this Agreement. Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding source. 4.2 During any Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines is received and approved by Caltrans. Accepted rates will be as follows: DR A F T 83 17336.00600\33928482.2 5 a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. 4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2 above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the Caltrans’ management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions. If the Consultant fails to comply with the provisions of this Section 4, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in Section 4.2 above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement. Consultant may submit to Commission final invoice only when all of the following items have occurred: (1) Caltrans accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of Commission; and, (3) Caltrans has issued its final ICR review letter. The Consultant must submit its final invoice to Commission no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all Task Orders issued under this Agreement, and all other agreements executed between the Commission and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end on September 30, 2024, unless extended by contract amendment. The Commission may extend the term of this Agreement, in its sole discretion, for one additional two (2) year period. 5.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. DR A F T 84 17336.00600\33928482.2 6 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission's Contract Administrator. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement ("Commission’s Contract Administrator"). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 7. Consultant's Representative. Consultant hereby designates Sam Mansour to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission’s Contract Administrator. 8. Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions herein. The key personnel for performance of this Agreement are: Sam Mansour, Stephanie Oslick, Amr Zaher, Chris Lee, Keith Gillfillan, Alaedin Moubayed, and Phil Balmeo, or as otherwise identified in the Task Order. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors DR A F T 85 17336.00600\33928482.2 7 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. 10. Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 11. Project Progress. 11.1 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission’s Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. DR A F T 86 17336.00600\33928482.2 8 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 13. Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission’s Contract Administrator in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission’s Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this Agreement, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. DR A F T 87 17336.00600\33928482.2 9 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator and Caltrans to inspect or review Consultant's work in progress at any reasonable time. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to DR A F T 88 17336.00600\33928482.2 10 reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 18. Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 19. Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless additional reimbursement is provided for by written amendment. In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. To the extent legally permissible, Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in Section 19.8 shall not be exceeded, unless authorized by a written amendment. 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee to be set forth in each Task Order (“Fixed Fee”). The Fixed Fee is DR A F T 89 17336.00600\33928482.2 11 nonadjustable for each Task Order, except in the event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. In addition, payments to Consultant for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non- represented State employees under current State Department of Personnel Administration (DPA) rules, unless otherwise authorized by Commission. If the rates invoiced are in excess of those authorized DPA rates, and Commission has not otherwise approved said rates, then Consultant is responsible for the cost difference and any overpayments shall be reimbursed to the Commission on demand. 19.4 When milestone cost estimates are included in the approved Cost Proposal for a Task Order, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 21, Termination. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 19.8 The total amount payable by Commission, including the Fixed Fee, shall not exceed the amount set forth in each Task Order. DR A F T 90 17336.00600\33928482.2 12 19.9 Commission has or will enter into four (4) task order contracts for performance of the Scope of Services identified in Exhibit “A”, including this Agreement (“Design & Environmental Services Task Order Contracts”). The other Design & Environmental Services Task Order Contracts are HDR Engineering Inc.; RailPros, Inc.; and STV Incorporated. The total amount payable by Commission for the Design & Environmental Services Task Order Contracts shall not exceed a cumulative maximum total value of Ten Million Dollars ($10,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under the Design & Environmental Services Task Order Contracts through Task Orders. Each time a Task Order is awarded under any of the Design & Environmental Services Task Order Contracts, Commission must send written notification to Consultant and each of the other consultants entering into the Design & Environmental Services Task Order Contracts. The notice must identify the total funds allocated under issued Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not pay any amount under this Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task Order that exceeds the NTE Sum. 19.10 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 19.11 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.12 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. DR A F T 91 17336.00600\33928482.2 13 21. Termination. 21.1 Commission reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant, for any or no reason, with the reasons for termination stated in the notice. Commission may terminate Services under a Task Order, at any time, for any or no reason, with the effective date of termination to be specified in the notice of termination of Task Order. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission’s Contract Administrator to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination 21.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 21.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. DR A F T 92 17336.00600\33928482.2 14 21.8 Consultant may not terminate this Agreement except for cause. 22. Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23. Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California 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. DR A F T 93 17336.00600\33928482.2 15 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 25.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “B” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a Task Order. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. DR A F T 94 17336.00600\33928482.2 16 26. Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27. Labor Code Requirements. 27.1 Prevailing Wages. (a) Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b) Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. (c) When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the DR A F T 95 17336.00600\33928482.2 17 minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 27.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade DR A F T 96 17336.00600\33928482.2 18 shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 28.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for DR A F T 97 17336.00600\33928482.2 19 wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. DR A F T 98 17336.00600\33928482.2 20 29. 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 indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. Consultant’s obligations as set forth in this Section shall survive expiration or termination of this Agreement. 30. Insurance. 30.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this Section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this Section. 30.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to DR A F T 99 17336.00600\33928482.2 21 persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 30.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. Subconsultants of Consultant shall obtain such insurance in an amount not less than $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. 30.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall DR A F T 100 17336.00600\33928482.2 22 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. 30.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (b) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (c) Workers’ Compensation and Employers Liability Coverage. DR A F T 101 17336.00600\33928482.2 23 (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required 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 DR A F T 102 17336.00600\33928482.2 24 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. 30.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 30.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 30.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. DR A F T 103 17336.00600\33928482.2 25 30.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 30.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 31. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 32. Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be 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. DR A F T 104 17336.00600\33928482.2 26 Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 33. Prohibited Interests. 33.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 33.2 Consultant Conflict of Interest. (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (c) Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all of the provisions of this Article. (d) Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under DR A F T 105 17336.00600\33928482.2 27 this Agreement is also employed by the construction contractor for any project included within this Agreement. 33.3 Commission Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 33.4 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 33.5 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to the terms herein, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 33.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to 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. 33.7 Covenant Against Expenditure of Commission, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. DR A F T 106 17336.00600\33928482.2 28 (a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 33.8 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 34. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 35. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 36. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 37. Disputes; Attorneys' Fees. 37.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 37.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. If DR A F T 107 17336.00600\33928482.2 29 either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys' fees and, all other costs of such actions. 38. Time of Essence. Time is of the essence for each and every provision of this Agreement. 39. Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 40. 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: Moffatt & Nichol Riverside County Transportation Commission 3536 Concours, Suite 200 4080 Lemon Street, 3rd Floor Ontario, CA 91764 Riverside, CA 92501 Attn: Sam Mansour 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. 41. 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. 42. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 43. 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. 44. 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. 45. Provisions Applicable When State Funds or Federal Funds Are Involved. When funding for the Services under a Task Order is provided, in whole or in part, from DR A F T 108 17336.00600\33928482.2 30 Caltrans, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (California Department of Transportation requirements) attached hereto and incorporated herein by reference. When funding for the Services under a Task Order is provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by reference. 46. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 47. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 48. 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. 49. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 50. 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. 51. 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. 52. 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. 53. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 54. 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 DR A F T 109 17336.00600\33928482.2 31 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] DR A F T 110 17336.00600\33928482.2 32 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING/ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: [INSERT NAME] Chair Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT MOFFATT & NICHOL 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. DR A F T 111 17336.00600\33928482.2 Exhibit A EXHIBIT "A" SCOPE OF WORK The Commission intends to contract with an on-call “bench” of qualified consultants to provide Design Engineering and Environmental services for Commuter Rail Station Capital Improvement Projects on an on-call basis pursuant to task orders to be issued in accordance with the terms of this RFQ and the Commission’s model agreement. The selected consultants will supplement the work of the Commission Staff in accordance with the specifications described herein. Projects for which design engineering and environmental services may be required include transit and commuter rail station facility amenities and improvements, station platform improvements, passenger shelters, pedestrian connections, pedestrian bridge structures, pedestrian at-grade railroad crossings, parking structures, parking lot improvements/rehabilitation/expansions, fencing for access control, bicycle paths and bicycle storage solutions and landscaping. Services may be required for station related track addition/rehabilitation/replacement, railroad signal systems, railroad grade crossings, Quiet Zones, layover facilities, station security and safety elements. The foregoing generally described projects may include upgrade to technology with improved ticket vending machines, customer information kiosks, communicator upgrades, signage and potentially wireless connectivity. As design engineering and environmental services needs arise, the Commission will develop a brief scope of work and will issue a request for task order proposals to the bench of contracted firms selected pursuant to this RFQ. Award of task orders will be made to the firm: (i) determined most qualified based on a review of the task order proposals in accordance with the review criteria to be set forth in the request for task order, and (ii) proposing a reasonable price, as determined by the Commission. If the Commission and the first ranked firm are unable to negotiate a reasonable price for the task order work, negotiations shall commence with the next highest ranked firm, and shall continue until a task order is awarded. For non-State or non-federally funded task orders, the Commission may include price as a consideration in task order proposal evaluation and award, and/or may issue task orders in accordance with procedures determined to be in the Commission’s best interest. Approval and authorization to proceed for the designated scope of work will be documented in an Agreement Task Order (ATO). The consultant will be required to commence work within five days or sooner after receiving a fully executed ATO. Payment for each ATO will be in accordance with the Cost Proposal conditions in the selected consultant’s parent agreement. These services will be funded using a variety of federal, state, and local funds. The consultant shall meet all the requirements associated with the specific fund type associate with each ATO and the funding will be identified at the time the scope of work is released. DR A F T 112 17336.00600\33928482.2 Exhibit A Work Activities: All work will be performed to meet the latest Local, State and Federal standards as they are applicable to the element of work being performed. The activities listed in this scope of work are intended to be delivered to support the 30%, 60%, 95% and 100% reviews that are typically used to review Plans Specifications & Estimate (PS&E) packages led by Local Agencies. Prevailing wage shall be paid for all work activities subject to California Labor Code Sections 1720 et seq. and 1770 et. Seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”). Consultant’s SOQ should discuss how will address the following primary activities: PART 1- Environmental – environmental documentation to comply with the California Environmental Quality Act (CEQA), National Environmental Policy Act (NEPA) and all applicable state and federal requirements, supporting technical reports and studies, surveys, mitigation, conceptual analysis, design permits and construction support. Final Environmental Document and Preliminary Engineering Services 1.Project Management 2.Risk Management 3.Prepare, or subcontract for the preparation of all required Technical Studies, Reports, data collection and documentation to support the CEQA/NEPA reports, including but not necessarily limited to: Air Quality, Biology, Cultural Resources, including Section 106 compliance, Native American consultation (including AB 52 compliance when RCTC is the CEQA Lead Agency), Archaeology, Hazardous Waste, Noise and Vibration, Paleontology, Section 4(f) Evaluations, Water Quality and Geotechnical materials 4.Survey and Mapping activities for the project area to support preliminary engineering activities and environmental studies and preliminary plans 5.Processing all forms, maps and documents required for required permits. 6.Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final PS&E, including but not necessarily limited to: stormwater management plan, water quality, geotechnical, structural section recommendation, structure design 7.Other miscellaneous studies that the Offeror recommends performing in order to expedite project delivery 8.Coordination Meetings with the Commission, State, Federal, County of Riverside and local agencies 9.Coordination, reviews and approvals with Federal Transit Administration (FTA), Federal Railroad Administration (FRA), California Public Utilities Commission (CPUC) affected local agencies/jurisdictions, Burlington Northern Santa Fe (BNSF) DR A F T 113 17336.00600\33928482.2 Exhibit A Railroad, Union Pacific Railroad (UPRR), Southern California Regional Rail Authority (SCRRA), U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), California Department of Fish and Wildlife (CDFW), Western Riverside Regional Conservation Authority (RCA), Santa Ana Regional Water Quality Control Board (RWQCB), and others as required 10. Public Outreach and Marketing- Public meetings, publications, media placements. Graphics – PowerPoint, exhibits, simulations and ad development Part 2-Plans Specification and & Estimate Services Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final plans, specifications, & estimates, including but not necessarily limited to: 11. Hydraulic Engineering 12. Structural Engineering 13. Geotechnical Engineering 14. Utility Identification, Potholing and Coordination 15. Surveying – Topography, boundary, record maps, right of way for Preliminary Engineering and final PS&E 16. Right of way – right of way engineering, legals and plats 17. Storm Water Pollution Prevention Plan (SWPPP) Preparation and Notice of Intent preparation and submittal 18. Environmental Coordination, as required 19. Railroad coordination and development and finalization of a design, construction, Memorandum of Understanding and/or Construction and Maintenance agreement, if required. 20. Coordination, reviews and approvals with USACE, USFWS, CDFW, RCA, RWQCB, FTA, FRA, CPUC affected local agencies/jurisdictions, BNSF, UPRR, SCRRA, and others, as required. 21. Provide and setup document control system 22. Prepare and process all forms, maps and documents needed for required permits 23. Preparation of hard copy and electronic/CAD drawings (reproducible drawings) 24. Provide copies of reports, drawings and specifications to the Commission at each stage of submittal 25. Provide Value Engineering, Risk Management Plan and Constructability review prior to final design. 26. Development of Plans, Specifications, and Cost Estimate. DR A F T 114 17336.00600\33928482.2 Exhibit A 27. Provide bid support services including: review bid questions and draft responses’ draft addenda to bid documents 28. Provide Construction Support Services (for example but not limited to: Review, respond to Request for Information, Request for Quote; Submittal and Shop Drawing Review and Approval, Coordination with Commission for any Shop Drawing Approvals, provided revised drawings and/or specifications resulting from Contract Change Orders, Claims review and response) 29. Participate in final walk through and provide comments/recommendations to final punch list. 30. Update electronic/CAD plans to include As-Built revisions and digitally sign A. General Requirements The consultant is expected to prepare all reports, studies and plans to meet Local, State and Federal requirements. Commission staff will provide overall project coordination, and will handle administrative matters. Commission staff will provide oversight, guidance and interpretation on matters relating to policies and regulations. B. Meetings/Public Involvement The consultant will be required to meet with the Commission staff, Bechtel and other agencies that may include State, Federal, Riverside County, SCRRA, BNSF, UPRR, cities of Corona, Jurupa Valley, Perris, March Joint Powers Authority (MJPA) and Riverside, USACE, USFWS, CDFW, WQCB, RCA FTA, other public agencies, and private entities located within the Project boundaries on a regular basis. Project Development Team (PDT) meetings will be held monthly with the project stakeholders. C. Final Products/deliverables Specific final products/deliverables related to the project are listed below: • Final Environmental Document and Notice of Completion and/or Record of Decision, as appropriate • Final Environmental permits • Approved Technical Reports • Survey Data • Agenda, public notices and presentation material to support public hearings and responses to comments received during the environmental document public availability period • Value Engineering Studies, Risk Management Plan and Constructability Analysis DR A F T 115 17336.00600\33928482.2 Exhibit A • Final Plans, Specification, and Cost Estimates (electronic versions plus 1 Full Size (D-Size) and 1 half size copy of final drawings, also provide electronic versions plus hard copies of all reports, Specifications and Estimate). • Final Water Quality Management Plan • Final Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) • Materials Report, Log of Test Borings, and Materials Information Write-Up for Bidders • Project Cross Sections, for Earthwork, for Bidders • Final Bridge Structural Report • Final Drainage and Hydraulic Reports • Final Right of Way Drawings, Legals and Plats • Final Utility Drawings and Notice to Relocate • Final electronic/CAD As-Builts for the Project Other products to match your work activities as described in Section B above. DR A F T 116 17336.00600\33928482.2 Exhibit B-1 EXHIBIT “B” – COMPENSATION AND PAYMENT DR A F T 117 FIRM PROJECT TASKS/ROLE COST Moffatt & Nichol On-Call Design Engineering 5,200,000.00$ Jacobs Station/Layover Facilities, Traffice Engineering, Value Engineering, Risk Management 2,200,000.00 Arellano Associates Outreach 200,000.00 C-below Utility Subsurface Investigation 50,000.00 ICF Jones & Stokes, Inc.Environmental Services Support 500,000.00 Cogstone Resources Environmental Services Support 25,000.00 Epic Land Solutions Right-of-Way Services 50,000.00 Leighton Geotechnical Engineering & Hazardous Waste 225,000.00 Pacific Railway Enterprises, Inc.Signal and Communications, PTC 1,000,000.00 Lynn Capouya, Inc.Landscaping & Irrigation 50,000.00 Rail Surveyors and Engineers, Inc.Surverying & Mapping, Right-of-Way Engineering, Utilities 500,000.00 10,000,000.00$ 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. EXHIBIT "B" Prime Consultant: Sub Consultants: COMPENSATION SUMMARY1 DR A F T 118 17336.00600\33928482.2 Exhibit C-1 EXHIBIT "C" CALTRANS REQUIREMENTS/ PROP 1 B PROVISIONS 1. STATEMENT OF COMPLIANCE. A. Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B. During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. 2. DEBARMENT AND SUSPENSION CERTIFICATION A. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to Commission. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. DR A F T 119 17336.00600\33928482.2 Exhibit C-2 C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. 3. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this Agreement for satisfactory performance of its contract no later than 10 days from the receipt of each payment the Consultant receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. 4. RELEASE OF RETAINAGE No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to Consultant and its subconsultants. 5. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either Party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 6. NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, and by signing this Agreement, Consultant certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with DR A F T 120 17336.00600\33928482.2 Exhibit C-3 an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 7. INVENTIONS. Rights to Inventions and Data Made Under a Contract or Agreement — Consultant shall comply with Federal requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under the Contract, and shall be in compliance with 10 CFR 600.325 and Appendix A—Patent and Data Rights to Subpart D, Part 600. 8. ENVIRONMENTAL COMPLIANCE A. Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000). B. Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871). C. Energy Policy and Conservation Act (Pub. L. 94—163, 89 Stat. 871.) — Consultant shall 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 (Pub. L. 94–163, 89 Stat. 871), which are incorporated by reference in this Contract. (10 CFR 600.236(i)(13).) DR A F T 121 17336.00600\33928482.2 Exhibit D-1 EXHIBIT “D” FTA PROVISIONS DR A F T 122 FTA Requirements- Page 1 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: DR A F T 123 FTA Requirements- Page 2 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 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. DR A F T 124 FTA Requirements- Page 3 (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 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. DR A F T 125 FTA Requirements- Page 4 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; 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 DR A F T 126 FTA Requirements- Page 5 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. 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. DR A F T 127 FTA Requirements- Page 6 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 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 DR A F T 128 FTA Requirements- Page 7 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. 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 DR A F T 129 FTA Requirements- Page 8 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. 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 DR A F T 130 FTA Requirements- Page 9 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 DR A F T 131 FTA Requirements- Page 10 Executive Director. This "Disputes" clause does not preclude consideration of questions of law in connection with 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. DR A F T 132 FTA Requirements- Page 11 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 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. DR A F T 133 FTA Requirements- Page 12 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. DR A F T 134 17336.00600\33928482.2 Exhibit E-1 EXHIBIT "E" CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the _______________________ and duly authorized representative of the firm of _____________________________________ whose address is ____________________________________________________, and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. By: ____________________________ Signature ____________________________ Name ____________________________ Title ____________________________ DR A F T 135 17336.00600\33928482.2 Exhibit F-1 EXHIBIT “F” LOBBYING ACTIVITIES DISCLOSURE DR A F T 136 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 DR A F T 137 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: ____________________________________________ _____________ 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 Telephone No.: _______ Date: __________ DR A F T 138 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 ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ DR A F T 139 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 Karen Star President, Epic Land Solutions, Inc. (951) 321-1834 DR A F T 140 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 DR A F T 141 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 NOT APPLICABLE - NO JACOBS LOBBYING Hany Haroun Business Vice President (619)272-7261 6/9/2021 DR A F T 142 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 N/A N/A N/A N/A N/A N/AN/A N/A X Kris R. Lutton, PG Senior Vice President (949) 681-4203 06/03/2021 N/A DR A F T 143 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 DR A F T 144 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 N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/AN/A N/A N/A X N/A Jennifer A. Purcell, PE President / CEO 951-784-4630 5/24/21 DR A F T 145 Page 1 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 _________________________________________________________________________________________________________________________ __________________________________________________________ 5/20/2021 DR A F T 146 17336.00600\33928482.2 Agreement No. 21-33-129-00 PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH RAILPROS FOR ON-CALL DESIGN ENGINEERING AND ENVIRONMENTAL SERVICES FOR THE CONSTRUCTION OF COMMUTER RAIL STATION CAPITAL IMPROVEMENT PROJECTS 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 RailPros ("Consultant"), a Corporation. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A.On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. C.On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. D.A source of funding for payment for on-call professional consulting services provided under this Agreement may be Proposition 1B funds (“Prop 1B”) funds administered by the California Department of Transportation (“Caltrans”), and/or funds from the Federal Transit Administration (“FTA”). This Agreement shall not be deemed to be approved by the Commission until the certification shown in Exhibit “E” attached hereto and incorporated herein by reference, is executed. E.Consultant desires to perform and assume responsibility for the provision of certain on-call design engineering and environmental services for the construction of DR A F T ATTACHMENT 3 147 17336.00600\33928482.2 3 commuter rail station capital improvement projects in the County of Riverside, California. Services shall be provided on the terms and conditions set forth in this Agreement and in the task order(s) to be solicited, awarded and authorized by Commission as further described in this Agreement (“Task Order”). Consultant represents that it is experienced in providing such services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. G.Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein and in each Task Order (each such project shall be designated a “Project” under this Agreement). Terms. 1.General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the on-call design engineering and environmental services for the Projects ("Services"). The Services are generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2.Task Orders; Commencement of Services; Schedule of Services. Services under this Agreement shall be requested by the Commission pursuant to Task Order requests. If Commission accepts Consultant’s Task Order proposal, Commission shall issue a purchase order or executed task order for the Services (“Commission’s Task Order Authorization”). Consultant’s agreement to the final terms of a proposed Task Order, Commission’s Task Order Authorization and Consultant’s commencement of the Services shall indicate the Parties’ agreement to the terms of the relevant Task Order. Consultant shall commence Services under a Task Order within five (5) days of receiving Commission’s Task Order Authorization. Consultant shall perform the Services expeditiously, in accordance with the Schedule of Services set forth in a Task Order. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.Pre-Award Audit. As a result of the funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or DR A F T 148 17336.00600\33928482.2 4 other authorization to proceed under a Task Order may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The funding provided under this Agreement is contingent on meeting all funding requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate State process reviews. In addition, Caltrans may require that prior to performance of any work for which funding reimbursement through Caltrans is requested and provided, that Caltrans must give to Commission an “Authorization to Proceed”. 4. Audit Procedures. 4.1 Consultant and certain subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 22 and 23 of this Agreement. Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding source. 4.2 During any Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines is received and approved by Caltrans. Accepted rates will be as follows: DR A F T 149 17336.00600\33928482.2 5 a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. 4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2 above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the Caltrans’ management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions. If the Consultant fails to comply with the provisions of this Section 4, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in Section 4.2 above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement. Consultant may submit to Commission final invoice only when all of the following items have occurred: (1) Caltrans accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of Commission; and, (3) Caltrans has issued its final ICR review letter. The Consultant must submit its final invoice to Commission no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all Task Orders issued under this Agreement, and all other agreements executed between the Commission and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end on September 30, 2024, unless extended by contract amendment. The Commission may extend the term of this Agreement, in its sole discretion, for one additional two (2) year period. 5.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. DR A F T 150 17336.00600\33928482.2 6 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission's Contract Administrator. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement ("Commission’s Contract Administrator"). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 7. Consultant's Representative. Consultant hereby designates Douglas B. Sawyer to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission’s Contract Administrator. 8. Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions herein. The key personnel for performance of this Agreement are: Basem Muallem, Nathan Ortega, Robert Williams, Karen Hankinson, Aaron Silver, or as otherwise identified in the Task Order. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally DR A F T 151 17336.00600\33928482.2 7 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. 10. Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 11. Project Progress. 11.1 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission’s Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. DR A F T 152 17336.00600\33928482.2 8 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 13. Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission’s Contract Administrator in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission’s Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this Agreement, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. DR A F T 153 17336.00600\33928482.2 9 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator and Caltrans to inspect or review Consultant's work in progress at any reasonable time. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to DR A F T 154 17336.00600\33928482.2 10 reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 18.Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 19.Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless additional reimbursement is provided for by written amendment. In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. To the extent legally permissible, Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in Section 19.8 shall not be exceeded, unless authorized by a written amendment. 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee to be set forth in each Task Order (“Fixed Fee”). The Fixed Fee is DR A F T 155 17336.00600\33928482.2 11 nonadjustable for each Task Order, except in the event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. In addition, payments to Consultant for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non- represented State employees under current State Department of Personnel Administration (DPA) rules, unless otherwise authorized by Commission. If the rates invoiced are in excess of those authorized DPA rates, and Commission has not otherwise approved said rates, then Consultant is responsible for the cost difference and any overpayments shall be reimbursed to the Commission on demand. 19.4 When milestone cost estimates are included in the approved Cost Proposal for a Task Order, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 21, Termination. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 19.8 The total amount payable by Commission, including the Fixed Fee, shall not exceed the amount set forth in each Task Order. DR A F T 156 17336.00600\33928482.2 12 19.9 Commission has or will enter into four (4) task order contracts for performance of the Scope of Services identified in Exhibit “A”, including this Agreement (“Design & Environmental Services Task Order Contracts”). The other Design & Environmental Services Task Order Contracts are HDR Engineering Inc.; Moffatt and Nichol; and STV Incorporated. The total amount payable by Commission for the Design & Environmental Services Task Order Contracts shall not exceed a cumulative maximum total value of Ten Million Dollars ($10,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under the Design & Environmental Services Task Order Contracts through Task Orders. Each time a Task Order is awarded under any of the Design & Environmental Services Task Order Contracts, Commission must send written notification to Consultant and each of the other consultants entering into the Design & Environmental Services Task Order Contracts. The notice must identify the total funds allocated under issued Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not pay any amount under this Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task Order that exceeds the NTE Sum. 19.10 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 19.11 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.12 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. DR A F T 157 17336.00600\33928482.2 13 21. Termination. 21.1 Commission reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant, for any or no reason, with the reasons for termination stated in the notice. Commission may terminate Services under a Task Order, at any time, for any or no reason, with the effective date of termination to be specified in the notice of termination of Task Order. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission’s Contract Administrator to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination 21.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 21.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. DR A F T 158 17336.00600\33928482.2 14 21.8 Consultant may not terminate this Agreement except for cause. 22.Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23.Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California 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. DR A F T 159 17336.00600\33928482.2 15 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 25.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “B” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a Task Order. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. DR A F T 160 17336.00600\33928482.2 16 26.Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27.Labor Code Requirements. 27.1 Prevailing Wages. (a)Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b)Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. (c)When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the DR A F T 161 17336.00600\33928482.2 17 minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 27.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade DR A F T 162 17336.00600\33928482.2 18 shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 28.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for DR A F T 163 17336.00600\33928482.2 19 wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. DR A F T 164 17336.00600\33928482.2 20 29. 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 indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. Consultant’s obligations as set forth in this Section shall survive expiration or termination of this Agreement. 30. Insurance. 30.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this Section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this Section. 30.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to DR A F T 165 17336.00600\33928482.2 21 persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 30.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. Subconsultants of Consultant shall obtain such insurance in an amount not less than $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. 30.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall DR A F T 166 17336.00600\33928482.2 22 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. 30.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (b) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (c) Workers’ Compensation and Employers Liability Coverage. DR A F T 167 17336.00600\33928482.2 23 (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required 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 DR A F T 168 17336.00600\33928482.2 24 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. 30.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 30.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 30.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. DR A F T 169 17336.00600\33928482.2 25 30.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 30.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 31.Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 32.Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be 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. DR A F T 170 17336.00600\33928482.2 26 Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 33. Prohibited Interests. 33.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 33.2 Consultant Conflict of Interest. (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (c) Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all of the provisions of this Article. (d) Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under DR A F T 171 17336.00600\33928482.2 27 this Agreement is also employed by the construction contractor for any project included within this Agreement. 33.3 Commission Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 33.4 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 33.5 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to the terms herein, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 33.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to 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. 33.7 Covenant Against Expenditure of Commission, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. DR A F T 172 17336.00600\33928482.2 28 (a)If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b)The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c)The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 33.8 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 34.Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 35.Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 36.Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 37.Disputes; Attorneys' Fees. 37.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 37.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. If DR A F T 173 17336.00600\33928482.2 29 either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys' fees and, all other costs of such actions. 38.Time of Essence. Time is of the essence for each and every provision of this Agreement. 39. Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 40.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: RailPros Riverside County Transportation Commission 3850 Vine Street, Suite 110 4080 Lemon Street, 3rd Floor Riverside, CA 92507 Riverside, CA 92501 Attn: Douglas B. Sawyer 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. 41.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. 42.Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 43.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. 44.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. 45.Provisions Applicable When State Funds or Federal Funds Are Involved. When funding for the Services under a Task Order is provided, in whole or in part, from DR A F T 174 17336.00600\33928482.2 30 Caltrans, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (California Department of Transportation requirements) attached hereto and incorporated herein by reference. When funding for the Services under a Task Order is provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by reference. 46.Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 47.No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 48.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. 49. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 50.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. 51.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. 52.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. 53.Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 54.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 DR A F T 175 17336.00600\33928482.2 31 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] DR A F T 176 17336.00600\33928482.2 32 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING/ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: [INSERT NAME] Chair Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT RAILPROS 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. DR A F T 177 17336.00600\33928482.2 Exhibit A EXHIBIT "A" SCOPE OF WORK The Commission intends to contract with an on-call “bench” of qualified consultants to provide Design Engineering and Environmental services for Commuter Rail Station Capital Improvement Projects on an on-call basis pursuant to task orders to be issued in accordance with the terms of this RFQ and the Commission’s model agreement. The selected consultants will supplement the work of the Commission Staff in accordance with the specifications described herein. Projects for which design engineering and environmental services may be required include transit and commuter rail station facility amenities and improvements, station platform improvements, passenger shelters, pedestrian connections, pedestrian bridge structures, pedestrian at-grade railroad crossings, parking structures, parking lot improvements/rehabilitation/expansions, fencing for access control, bicycle paths and bicycle storage solutions and landscaping. Services may be required for station related track addition/rehabilitation/replacement, railroad signal systems, railroad grade crossings, Quiet Zones, layover facilities, station security and safety elements. The foregoing generally described projects may include upgrade to technology with improved ticket vending machines, customer information kiosks, communicator upgrades, signage and potentially wireless connectivity. As design engineering and environmental services needs arise, the Commission will develop a brief scope of work and will issue a request for task order proposals to the bench of contracted firms selected pursuant to this RFQ. Award of task orders will be made to the firm: (i) determined most qualified based on a review of the task order proposals in accordance with the review criteria to be set forth in the request for task order, and (ii) proposing a reasonable price, as determined by the Commission. If the Commission and the first ranked firm are unable to negotiate a reasonable price for the task order work, negotiations shall commence with the next highest ranked firm, and shall continue until a task order is awarded. For non-State or non-federally funded task orders, the Commission may include price as a consideration in task order proposal evaluation and award, and/or may issue task orders in accordance with procedures determined to be in the Commission’s best interest. Approval and authorization to proceed for the designated scope of work will be documented in an Agreement Task Order (ATO). The consultant will be required to commence work within five days or sooner after receiving a fully executed ATO. Payment for each ATO will be in accordance with the Cost Proposal conditions in the selected consultant’s parent agreement. These services will be funded using a variety of federal, state, and local funds. The consultant shall meet all the requirements associated with the specific fund type associate with each ATO and the funding will be identified at the time the scope of work is released. DR A F T 178 17336.00600\33928482.2 Exhibit A Work Activities: All work will be performed to meet the latest Local, State and Federal standards as they are applicable to the element of work being performed. The activities listed in this scope of work are intended to be delivered to support the 30%, 60%, 95% and 100% reviews that are typically used to review Plans Specifications & Estimate (PS&E) packages led by Local Agencies. Prevailing wage shall be paid for all work activities subject to California Labor Code Sections 1720 et seq. and 1770 et. Seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”). Consultant’s SOQ should discuss how will address the following primary activities: PART 1- Environmental – environmental documentation to comply with the California Environmental Quality Act (CEQA), National Environmental Policy Act (NEPA) and all applicable state and federal requirements, supporting technical reports and studies, surveys, mitigation, conceptual analysis, design permits and construction support. Final Environmental Document and Preliminary Engineering Services 1. Project Management 2. Risk Management 3. Prepare, or subcontract for the preparation of all required Technical Studies, Reports, data collection and documentation to support the CEQA/NEPA reports, including but not necessarily limited to: Air Quality, Biology, Cultural Resources, including Section 106 compliance, Native American consultation (including AB 52 compliance when RCTC is the CEQA Lead Agency), Archaeology, Hazardous Waste, Noise and Vibration, Paleontology, Section 4(f) Evaluations, Water Quality and Geotechnical materials 4. Survey and Mapping activities for the project area to support preliminary engineering activities and environmental studies and preliminary plans 5. Processing all forms, maps and documents required for required permits. 6. Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final PS&E, including but not necessarily limited to: stormwater management plan, water quality, geotechnical, structural section recommendation, structure design 7. Other miscellaneous studies that the Offeror recommends performing in order to expedite project delivery 8. Coordination Meetings with the Commission, State, Federal, County of Riverside and local agencies 9. Coordination, reviews and approvals with Federal Transit Administration (FTA), Federal Railroad Administration (FRA), California Public Utilities Commission (CPUC) affected local agencies/jurisdictions, Burlington Northern Santa Fe (BNSF) DR A F T 179 17336.00600\33928482.2 Exhibit A Railroad, Union Pacific Railroad (UPRR), Southern California Regional Rail Authority (SCRRA), U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), California Department of Fish and Wildlife (CDFW), Western Riverside Regional Conservation Authority (RCA), Santa Ana Regional Water Quality Control Board (RWQCB), and others as required 10. Public Outreach and Marketing- Public meetings, publications, media placements. Graphics – PowerPoint, exhibits, simulations and ad development Part 2-Plans Specification and & Estimate Services Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final plans, specifications, & estimates, including but not necessarily limited to: 11. Hydraulic Engineering 12. Structural Engineering 13. Geotechnical Engineering 14. Utility Identification, Potholing and Coordination 15. Surveying – Topography, boundary, record maps, right of way for Preliminary Engineering and final PS&E 16.Right of way – right of way engineering, legals and plats 17. Storm Water Pollution Prevention Plan (SWPPP) Preparation and Notice of Intent preparation and submittal 18. Environmental Coordination, as required 19. Railroad coordination and development and finalization of a design, construction, Memorandum of Understanding and/or Construction and Maintenance agreement, if required. 20. Coordination, reviews and approvals with USACE, USFWS, CDFW, RCA, RWQCB, FTA, FRA, CPUC affected local agencies/jurisdictions, BNSF, UPRR, SCRRA, and others, as required. 21. Provide and setup document control system 22. Prepare and process all forms, maps and documents needed for required permits 23. Preparation of hard copy and electronic/CAD drawings (reproducible drawings) 24. Provide copies of reports, drawings and specifications to the Commission at each stage of submittal 25. Provide Value Engineering, Risk Management Plan and Constructability review prior to final design. 26. Development of Plans, Specifications, and Cost Estimate. DR A F T 180 17336.00600\33928482.2 Exhibit A 27. Provide bid support services including: review bid questions and draft responses’ draft addenda to bid documents 28. Provide Construction Support Services (for example but not limited to: Review, respond to Request for Information, Request for Quote; Submittal and Shop Drawing Review and Approval, Coordination with Commission for any Shop Drawing Approvals, provided revised drawings and/or specifications resulting from Contract Change Orders, Claims review and response) 29. Participate in final walk through and provide comments/recommendations to final punch list. 30. Update electronic/CAD plans to include As-Built revisions and digitally sign A.General Requirements The consultant is expected to prepare all reports, studies and plans to meet Local, State and Federal requirements. Commission staff will provide overall project coordination, and will handle administrative matters. Commission staff will provide oversight, guidance and interpretation on matters relating to policies and regulations. B.Meetings/Public Involvement The consultant will be required to meet with the Commission staff, Bechtel and other agencies that may include State, Federal, Riverside County, SCRRA, BNSF, UPRR, cities of Corona, Jurupa Valley, Perris, March Joint Powers Authority (MJPA) and Riverside, USACE, USFWS, CDFW, WQCB, RCA FTA, other public agencies, and private entities located within the Project boundaries on a regular basis. Project Development Team (PDT) meetings will be held monthly with the project stakeholders. C.Final Products/deliverables Specific final products/deliverables related to the project are listed below: •Final Environmental Document and Notice of Completion and/or Record of Decision, as appropriate •Final Environmental permits •Approved Technical Reports •Survey Data •Agenda, public notices and presentation material to support public hearings and responses to comments received during the environmental document public availability period •Value Engineering Studies, Risk Management Plan and Constructability Analysis DR A F T 181 17336.00600\33928482.2 Exhibit A • Final Plans, Specification, and Cost Estimates (electronic versions plus 1 Full Size (D-Size) and 1 half size copy of final drawings, also provide electronic versions plus hard copies of all reports, Specifications and Estimate). • Final Water Quality Management Plan • Final Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) • Materials Report, Log of Test Borings, and Materials Information Write-Up for Bidders • Project Cross Sections, for Earthwork, for Bidders • Final Bridge Structural Report • Final Drainage and Hydraulic Reports • Final Right of Way Drawings, Legals and Plats • Final Utility Drawings and Notice to Relocate • Final electronic/CAD As-Builts for the Project Other products to match your work activities as described in Section B above. DR A F T 182 17336.00600\33928482.2 Exhibit B-1 EXHIBIT “B” – COMPENSATION AND PAYMENT DR A F T 183 FIRM PROJECT TASKS/ROLE COST RailPros, Inc.On-Call Design Engineering 7,000,000.00$ Anil Verma Associates, Inc.Architecture/Landscape/Sustainability/MEP/Lighting 1,125,000.00 Hydrosolutions Drainage, Hydraulics/Hydrology 150,000.00 ICF Jones & Stokes Environmental/Public Outreach 975,000.00 Leighton Geotechnical/HAZMAT 375,000.00 Rail Surveyors and Engineers, Inc.Surveying/ROW Engineering 375,000.00 10,000,000.00$ 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. EXHIBIT "B" Prime Consultant: Sub Consultants: COMPENSATION SUMMARY1 DR A F T 184 17336.00600\33928482.2 Exhibit C-1 EXHIBIT "C" CALTRANS REQUIREMENTS/ PROP 1 B PROVISIONS 1.STATEMENT OF COMPLIANCE. A.Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B.During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. 2.DEBARMENT AND SUSPENSION CERTIFICATION A.Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to Commission. B.Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. DR A F T 185 17336.00600\33928482.2 Exhibit C-2 C.Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. 3.PROMPT PAYMENT Consultant agrees to pay each subcontractor under this Agreement for satisfactory performance of its contract no later than 10 days from the receipt of each payment the Consultant receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. 4.RELEASE OF RETAINAGE No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to Consultant and its subconsultants. 5.LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either Party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 6.NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, and by signing this Agreement, Consultant certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with DR A F T 186 17336.00600\33928482.2 Exhibit C-3 an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 7.INVENTIONS. Rights to Inventions and Data Made Under a Contract or Agreement — Consultant shall comply with Federal requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under the Contract, and shall be in compliance with 10 CFR 600.325 and Appendix A—Patent and Data Rights to Subpart D, Part 600. 8.ENVIRONMENTAL COMPLIANCE A. Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000). B.Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871). C.Energy Policy and Conservation Act (Pub. L. 94—163, 89 Stat. 871.) — Consultant shall 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 (Pub. L. 94–163, 89 Stat. 871), which are incorporated by reference in this Contract. (10 CFR 600.236(i)(13).) DR A F T 187 17336.00600\33928482.2 Exhibit D-1 EXHIBIT “D” FTA PROVISIONS DR A F T 188 FTA Requirements- Page 1 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: DR A F T 189 FTA Requirements- Page 2 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 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. DR A F T 190 FTA Requirements- Page 3 (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 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. DR A F T 191 FTA Requirements- Page 4 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; 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 DR A F T 192 FTA Requirements- Page 5 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. 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. DR A F T 193 FTA Requirements- Page 6 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 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 DR A F T 194 FTA Requirements- Page 7 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. 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 DR A F T 195 FTA Requirements- Page 8 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. 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 DR A F T 196 FTA Requirements- Page 9 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 DR A F T 197 FTA Requirements- Page 10 Executive Director. This "Disputes" clause does not preclude consideration of questions of law in connection with 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. DR A F T 198 FTA Requirements- Page 11 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 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. DR A F T 199 FTA Requirements- Page 12 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. DR A F T 200 17336.00600\33928482.2 Exhibit E-1 EXHIBIT "E" CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the _______________________ and duly authorized representative of the firm of _____________________________________ whose address is ____________________________________________________, and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. By: ____________________________ Signature ____________________________ Name ____________________________ Title ____________________________ DR A F T 201 17336.00600\33928482.2 Exhibit F-1 EXHIBIT “F” LOBBYING ACTIVITIES DISCLOSURE DR A F T 202 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 NOT APPLICABLE X RailPros, Inc. Douglas B. Sawyer Senior Vice President 714-454-6717 06/17/2021 DR A F T 203 Local Assistance Procedures Manual EXHBIT 10-Q Disclosure of Lobbying Activities >EKI ( LPP 13-01 May 8, 2013 EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES 4?=@<6C6 C9;B 7?A= C? 5;B4<?B6 <?33G;>8 24C;E;C;6B @DABD2>C C? +) D&B&4& )+-* (% AZSI RJ 7IHITEO 2GVMRQ1 )% @VEVWU RJ 7IHITEO 2GVMRQ1 *% ?ISRTV AZSI1 I& KWV\ZIK\I& JQL'WNNMZ'IXXTQKI\QWV I& QVQ\QIT J& OZIV\J& QVQ\QIT I_IZL J& UI\MZQIT KPIVOM K& KWWXMZI\Q^M IOZMMUMV\K& XW[\%I_IZL L& TWIV 7RT ;EVITMEO 4LEQKI =QOZ1 M& TWIV O]IZIV\MM a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a# ()% 2PRWQV RJ >EZPIQV "GLIGN EOO VLEV ESSOZ#(+% AZSI RJ >EZPIQV "GLIGN EOO VLEV ESSOZ# !DDDDDDDDDDDDD IK\]IT XTIVVML I& ZM\IQVMZ J& WVM%\QUM NMM (*% 7RTP RJ >EZPIQV "GLIGN EOO VLEV ESSOZ#1 K& KWUUQ[[QWV I& KI[P L& KWV\QVOMV\ NMM J& QV%SQVL1 [XMKQNa0 VI\]ZM HHHHHHHHHHHHHHH M LMNMZZML EIT]M HHHHHHHHHHHHH N& W\PMZ$ [XMKQNa HHHHHHHHHHHHHHHHHHHHHHHHH (,% 3TMIJ 5IUGTMSVMRQ RJ @ITXMGIU >ITJRTPIH RT VR FI SITJRTPIH EQH 5EVI"U# RJ @ITXMGI$ MQGOWHMQK RJJMGIT"U#$ IPSORZII"U#$RT PIPFIT"U# GRQVEGVIH$ JRT >EZPIQV 8QHMGEVIH MQ 8VIP ()1 "I\\IKP 4WV\QV]I\QWV BPMM\"[# QN VMKM[[IZa# (-% 4RQVMQWEVMRQ @LIIV"U# EVVEGLIH1 CIU <R (.%;VNWZUI\QWV ZMY]M[\ML \PZW]OP \PQ[ NWZU Q[ I]\PWZQbML Ja CQ\TM +) D&B&4& BMK\QWV )+-*& CPQ[ LQ[KTW[]ZM WN TWJJaQVO ZMTQIVKM _I[ XTIKML Ja \PM \QMZ IJW^M _PMV PQ[ \ZIV[IK\QWV _I[ UILM WZ MV\MZML QV\W& CPQ[ LQ[KTW[]ZM Q[ ZMY]QZML X]Z[]IV\ \W +) D&B&4& )+-*& CPQ[ QVNWZUI\QWV _QTT JM ZMXWZ\ML \W 4WVOZM[[ [MUQIVV]ITTa IVL _QTT JM I^IQTIJTM NWZ X]JTQK QV[XMK\QWV& 2Va XMZ[WV _PW NIQT[ \W NQTM \PM ZMY]QZML LQ[KTW[]ZM [PITT JM []JRMK\ \W I KQ^QT XMVIT\a WN VW\ TM[[ \PIV !)($((( IVL VW\ UWZM \PIV !)(($((( NWZ MIKP []KP NIQT]ZM& BQOVI\]ZM0 HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH @ZQV\ >IUM0 HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH CQ\TM0 HHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH CMTMXPWVM >W&0 HHHHHHHHHHHHHHHHHHHH 5I\M0HHHHHHHHHHH 2]\PWZQbML NWZ <WKIT AMXZWL]K\QWV 7IHITEO BUI =QOZ1 B\IVLIZL 7WZU % <<< B\IVLIZL 7WZU <<< AM^& (,%*/%(. 5MUVTMFWVMRQ1 ?ZQO% <WKIT 2OMVKa @ZWRMK\ 7QTM[ b q q f o e jy m N R NOT APPLICABLE Anil Verma, FAIA President (213) 624-6908 05/17/2021 a a a x 1Anil Verma Associates444 South Flower Street, Suite 1688Los Angeles, CA 90071 RailPros 3850 Vine Street, Suite 110,Riverside, CA 92507 x NOT APPLICABLE DR A F T 204 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 a a x 1 RailPros 3850 Vine Street, Suite 110,Riverside, CA 92507 a Hydrosolutions7696 Newman Court, Highland, CA NOT APPLICABLE DR A F T 205 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 Trina L Fisher Contracts Administrator June 17, 2021 X ICF Jones & Stokes, Inc. a a a Not Applicable X N/A N/A N/A N/A 916.231.7636 49 Discovery Suite 250 Irvine, CA, 92618 RailPros 3850 Vine Street, Suite 110, Riverside, CA 92507 1 NOT APPLICABLE DR A F T 206 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 a a a 1Leighton, 41715 Enterprise Circle N, Suite 103, Temecula, CA 92590 NOT APPLICABLE DR A F T 207 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 ; 3KLO/HRQJ3( 3UHVLGHQW   127$33/,&$%/( _________________________________________________________________________________________________________________________ _____________________________________________________________KLOOOOO /////////////////HRHRHRHRHRHRHRRHRHRHRHRRHRRHRHRRRRRHHQJQJQJQJQJQJQJQJQJQJQJQJQJQJQJQQJQJQJQQQQ3(3(3(3(3(3(3(3(3(3(3(3((3(3(333( 5/20/2021 a a a x 1 RailPros3850 Vine Street, Suite 110,Riverside, CA 92507Rail Surveyors and Engineers, Inc.250 West First Street, Suite 226, Claremont, CA 91711 DR A F T 208 17336.00600\33928482.2 Agreement No. 21-33-064-00 PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING ASSISTANCE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH STV INCORPORATED FOR ON-CALL DESIGN ENGINEERING AND ENVIRONMENTAL SERVICES FOR THE CONSTRUCTION OF COMMUTER RAIL STATION CAPITAL IMPROVEMENT PROJECTS 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 STV Incorporated ("Consultant"), a C Corporation. The Commission and Consultant are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. Recitals. A.On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (1/2 %) retail transactions and use tax (the "tax") to fund transportation programs and improvements within the County of Riverside, and adopting the Riverside County Transportation Improvement Plan (the "Plan"). B.Pursuant to Public Utility Code Sections 240000 et seq., the Commission is authorized to allocate the proceeds of the Tax in furtherance of the Plan. C.On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for an additional thirty (30) years for the continued funding of transportation and improvements within the County of Riverside. D.A source of funding for payment for on-call professional consulting services provided under this Agreement may be Proposition 1B funds (“Prop 1B”) funds administered by the California Department of Transportation (“Caltrans”), and/or funds from the Federal Transit Administration (“FTA”). This Agreement shall not be deemed to be approved by the Commission until the certification shown in Exhibit “E” attached hereto and incorporated herein by reference, is executed. E.Consultant desires to perform and assume responsibility for the provision of certain on-call design engineering and environmental services for the construction of DR A F T ATTACHMENT 4 209 17336.00600\33928482.2 3 commuter rail station capital improvement projects in the County of Riverside, California. Services shall be provided on the terms and conditions set forth in this Agreement and in the task order(s) to be solicited, awarded and authorized by Commission as further described in this Agreement (“Task Order”). Consultant represents that it is experienced in providing such services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. G. Commission desires to engage Consultant to render such services on an on-call basis. Services shall be ordered by Task Order(s) to be issued pursuant to this Agreement for future projects as set forth herein and in each Task Order (each such project shall be designated a “Project” under this Agreement). Terms. 1. General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the on-call design engineering and environmental services for the Projects ("Services"). The Services are generally described in Exhibit "A" attached hereto and incorporated herein by reference. The Services shall be more particularly described in the individual Task Orders issued by the Commission’s Executive Director or designee. No Services shall be performed unless authorized by a fully executed Task Order. All Services shall be subject to, and performed in accordance with, this Agreement, the relevant Task Order, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Task Orders; Commencement of Services; Schedule of Services. Services under this Agreement shall be requested by the Commission pursuant to Task Order requests. If Commission accepts Consultant’s Task Order proposal, Commission shall issue a purchase order or executed task order for the Services (“Commission’s Task Order Authorization”). Consultant’s agreement to the final terms of a proposed Task Order, Commission’s Task Order Authorization and Consultant’s commencement of the Services shall indicate the Parties’ agreement to the terms of the relevant Task Order. Consultant shall commence Services under a Task Order within five (5) days of receiving Commission’s Task Order Authorization. Consultant shall perform the Services expeditiously, in accordance with the Schedule of Services set forth in a Task Order. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3. Pre-Award Audit. As a result of the funding for this Project, and to the extent Caltrans procedures apply in connection therewith, issuance of a “Notice to Proceed” or DR A F T 210 17336.00600\33928482.2 4 other authorization to proceed under a Task Order may be contingent upon completion and approval of a pre-award audit. Any questions raised during the pre-award audit shall be resolved before the Commission will consider approval of this Agreement. The funding provided under this Agreement is contingent on meeting all funding requirements and could be withdrawn, thereby entitling the Commission to terminate this Agreement, if the procedures are not completed. The Consultant’s files shall be maintained in a manner to facilitate State process reviews. In addition, Caltrans may require that prior to performance of any work for which funding reimbursement through Caltrans is requested and provided, that Caltrans must give to Commission an “Authorization to Proceed”. 4. Audit Procedures. 4.1 Consultant and certain subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an Independent Cost Review (ICR) Audit, or a CPA ICR audit work paper review. If selected for audit or review, this Agreement, Consultant’s cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. This Agreement, Consultant’s cost proposal, and ICR shall be adjusted by Consultant and approved by the Commission’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into this Agreement by this reference if directed by Commission at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of this Agreement and disallowance of prior reimbursed costs. Additional audit provisions applicable to this Agreement are set forth in Sections 22 and 23 of this Agreement. Section 4.2 and 4.3 shall apply to the extent applicable to the Task Order and funding source. 4.2 During any Caltrans’ review of the ICR audit work papers created by the Consultant’s independent CPA, Caltrans will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans identifies significant issues during the review and is unable to issue a cognizant approval letter, Commission will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines is received and approved by Caltrans. Accepted rates will be as follows: DR A F T 211 17336.00600\33928482.2 5 a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. 4.3 If Caltrans is unable to issue a cognizant letter per Section 4.2 above, Caltrans may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the Caltrans’ management letter. Caltrans will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions. If the Consultant fails to comply with the provisions of this Section 4, or if Caltrans is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in Section 4.2 above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement. Consultant may submit to Commission final invoice only when all of the following items have occurred: (1) Caltrans accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of Commission; and, (3) Caltrans has issued its final ICR review letter. The Consultant must submit its final invoice to Commission no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all Task Orders issued under this Agreement, and all other agreements executed between the Commission and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR. 5. Term. 5.1 This Agreement shall go into effect on the date first set forth above, contingent upon approval by Commission, and Consultant shall commence work after notification to proceed by Commission’s Contract Administrator. This Agreement shall end on September 30, 2024, unless extended by contract amendment. The Commission may extend the term of this Agreement, in its sole discretion, for one additional two (2) year period. 5.2 Consultant is advised that any recommendation for contract award is not binding on Commission until this Agreement is fully executed and approved by the Commission. DR A F T 212 17336.00600\33928482.2 6 5.3 This Agreement shall remain in effect until the date set forth above, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 6. Commission's Contract Administrator. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Contract Administrator for the performance of this Agreement ("Commission’s Contract Administrator"). Commission’s Contract Administrator shall have the authority to act on behalf of the Commission for all purposes under this Agreement. Commission’s Contract Administrator shall also review and give approval, as needed, to the details of Consultant's work as it progresses. Consultant shall not accept direction or orders from any person other than the Commission’s Contract Administrator or his or her designee. 7. Consultant's Representative. Consultant hereby designates William Knapp to act as its Representative for the performance of this Agreement ("Consultant’s Representative"). Consultant's Representative shall have full authority to act on behalf of Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her professional skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. Consultant shall work closely and cooperate fully with Commission’s Contract Administrator and any other agencies which may have jurisdiction over, or an interest in, the Services. Consultant's Representative shall be available to the Commission staff at all reasonable times. Any substitution in Consultant's Representative shall be approved in writing by Commission’s Contract Administrator. 8. Substitution of Key Personnel. Consultant has represented to the Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval by the Commission. In the event that the Commission and Consultant cannot agree as to the substitution of the key personnel, the Commission shall be entitled to terminate this Agreement for cause, pursuant to the provisions herein. The key personnel for performance of this Agreement are: Richard Quirk, Ali Mir, Jayna Harris, Andrew Sokol, Allyn Vogel, Jason Davidson, Mysore Satish, David Ungson, Tyler Bonstead, and Melissa Holguin , or as otherwise identified in the Task Order. 9. Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors DR A F T 213 17336.00600\33928482.2 7 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. 10. Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and not as an employee, agent or representative of the Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. Consultant shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 11. Project Progress. 11.1 Modification of the Schedule. Consultant shall regularly report to the Commission, through correspondence or progress reports, its progress in providing required Services within the scheduled time periods. Commission shall be promptly informed of all anticipated delays. In the event that Consultant determines that a schedule modification is necessary, Consultant shall promptly submit a revised Schedule of Services for approval by Commission’s Contract Administrator. 11.2 Trend Meetings. Consultant shall conduct trend meetings with the Commission’s Contract Administrator and other interested parties, as requested by the Commission, on a bi-weekly basis or as may be mutually scheduled by the Parties at a standard day and time. These trend meetings will encompass focused and informal discussions concerning scope, schedule, and current progress of Services, relevant cost issues, and future Project objectives. Consultant shall be responsible for the preparation and distribution of meeting agendas to be received by the Commission and other attendees no later than three (3) working days prior to the meeting. DR A F T 214 17336.00600\33928482.2 8 11.3 Progress Reports. As part of its monthly invoice, Consultant shall submit a progress report, in a form determined by the Commission, which will indicate the progress achieved during the previous month in relation to the Schedule of Services. Submission of such progress report by Consultant shall be a condition precedent to receipt of payment from the Commission for each monthly invoice submitted. 12. Delay in Performance. 12.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, pandemics, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 12.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 12.1, Consultant shall provide written notice to the Commission within seven (7) working days from the time Consultant knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of Consultant to provide such timely notice shall constitute a waiver by Consultant of any right to an excusable delay in time of performance. 12.3 Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, Consultant's Schedule of Services shall be extended as necessary by the Commission. Consultant shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 13. Preliminary Review of Work. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the Commission’s Contract Administrator in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event plans and designs are to be developed as part of the Project, final detailed plans and designs shall be contingent upon obtaining environmental clearance as may be required in connection with Federal funding. In the event that Commission’s Contract Administrator, in his or her sole discretion, determines the formally submitted work product to be not in accordance with the standard of care established under this Agreement, Commission’s Contract Administrator may require Consultant to revise and resubmit the work at no cost to the Commission. 14. Appearance at Hearings. If and when required by the Commission, Consultant shall render assistance at public hearings or other meetings related to the Project or necessary to the performance of the Services. However, Consultant shall not be required to, and will not, render any decision, interpretation or recommendation regarding questions of a legal nature or which may be construed as constituting a legal opinion. DR A F T 215 17336.00600\33928482.2 9 15. Opportunity to Cure; Inspection of Work. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be disclosed during Project implementation. Should Consultant fail to make such correction in a timely manner, such correction may be made by the Commission, and the cost thereof charged to Consultant. Consultant shall allow the Commission’s Contract Administrator and Caltrans to inspect or review Consultant's work in progress at any reasonable time. 16. Claims Filed by Contractor. 16.1 If claims are filed by the Commission’s contractor for the Project (“Contractor”) relating to work performed by Consultant’s personnel, and additional information or assistance from the Consultant’s personnel is required by the Commission in order to evaluate or defend against such claims; Consultant agrees to make reasonable efforts to make its personnel available for consultation with the Commission’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. 16.2 Consultant’s personnel that the Commission considers essential to assist in defending against Contractor claims will be made available on reasonable notice from the Commission. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for the Consultant’s personnel services under this Agreement. 16.3 Services of the Consultant’s personnel and other support staff in connection with Contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Agreement in order to finally resolve the claims. 16.4 Nothing contained in this Section shall be construed to in any way limit Consultant’s indemnification obligations contained in Section 29. In the case of any conflict between this Section and Section 29, Section 29 shall govern. This Section is not intended to obligate the Commission to reimburse Consultant for time spent by its personnel related to Contractor claims for which Consultant is required to indemnify and defend the Commission pursuant to Section 29 of this Agreement. 17. Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth herein the Commission shall give Consultant a written Notice of Final Acceptance. Upon receipt of such notice, Consultant shall incur no further costs hereunder, unless otherwise specified in the Notice of Final Acceptance. Consultant may request issuance of a Notice of Final Acceptance when, in its opinion, it has satisfactorily completed all Services required under the terms of this Agreement. In the event copyrights are permitted under this Agreement, then in connection with Federal funding, it is hereby acknowledged and agreed that the United States Department of Transportation shall have the royalty-free non-exclusive and irrevocable right to DR A F T 216 17336.00600\33928482.2 10 reproduce, publish, or otherwise use, and to authorize others to use, the work for governmental purposes. 18. Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. For example, and not by way of limitation, Consultant shall keep itself fully informed of and in compliance with all implementing regulations, design standards, specifications, previous commitments that must be incorporated in the design of the Project, and administrative controls including those of the United States Department of Transportation. Compliance with Federal procedures may include completion of the applicable environmental documents and approved by the United States Department of Transportation. For example, and not by way of limitation, a signed Categorical Exclusion, Finding of No Significant Impact, or published Record of Decision may be required to be approved and/or completed by the United States Department of Transportation. For Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 19. Fees and Payment. 19.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. Commission shall reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the Services. Consultant shall not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant cost proposal attached hereto as Exhibit “B” and incorporated herein by reference, or any cost proposal included as part of a Task Order (“Cost Proposal”) unless additional reimbursement is provided for by written amendment. In no event, shall Consultant be reimbursed for overhead costs at a rate that exceeds Commission’s approved overhead rate set forth in the Cost Proposal. To the extent legally permissible, Consultant’s approved overhead rate shall be fixed for the term of this Agreement. In the event that Commission determines that a change to the Services from that specified in the Cost Proposal, this Agreement or any Task Order is required, the Agreement time or actual costs reimbursable by Commission shall be adjusted by written amendment to accommodate the changed work. The maximum total cost as specified in Section 19.8 shall not be exceeded, unless authorized by a written amendment. 19.2 In addition to the allowable incurred costs, Commission shall pay Consultant a fixed fee to be set forth in each Task Order (“Fixed Fee”). The Fixed Fee is DR A F T 217 17336.00600\33928482.2 11 nonadjustable for each Task Order, except in the event of a significant change in the Scope of Services, and such adjustment is made by written amendment. 19.3 Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. In addition, payments to Consultant for travel and subsistence expenses claimed for reimbursement or applied as local match credit shall not exceed rates authorized to be paid exempt non- represented State employees under current State Department of Personnel Administration (DPA) rules, unless otherwise authorized by Commission. If the rates invoiced are in excess of those authorized DPA rates, and Commission has not otherwise approved said rates, then Consultant is responsible for the cost difference and any overpayments shall be reimbursed to the Commission on demand. 19.4 When milestone cost estimates are included in the approved Cost Proposal for a Task Order, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate. 19.5 Progress payments shall be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of the Fixed Fee shall be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Services, Commission shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Section 21, Termination. 19.6 No payment shall be made prior to approval of any Services, nor for any Services performed prior to approval of this Agreement. 19.7 Consultant shall be reimbursed, as promptly as fiscal procedures will permit upon receipt by Commission’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due Commission including any equipment purchased under the Equipment Purchase provisions of this Agreement. The final invoice should be submitted within 60 calendar days after completion of Consultant’s work. Invoices shall be mailed to Commission’s Contract Administrator at the following address: Riverside County Transportation Commission Attention: Accounts Payable P.O. 12008 Riverside, CA 92502 19.8 The total amount payable by Commission, including the Fixed Fee, shall not exceed the amount set forth in each Task Order. DR A F T 218 17336.00600\33928482.2 12 19.9 Commission has or will enter into four (4) task order contracts for performance of the Scope of Services identified in Exhibit “A”, including this Agreement (“Design & Environmental Services Task Order Contracts”). The other Design & Environmental Services Task Order Contracts are HDR Engineering Inc.; Moffatt and Nichol; and RailPros, Inc. The total amount payable by Commission for the Design & Environmental Services Task Order Contracts shall not exceed a cumulative maximum total value of Ten Million Dollars ($10,000,000) (“NTE Sum”). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under the Design & Environmental Services Task Order Contracts through Task Orders. Each time a Task Order is awarded under any of the Design & Environmental Services Task Order Contracts, Commission must send written notification to Consultant and each of the other consultants entering into the Design & Environmental Services Task Order Contracts. The notice must identify the total funds allocated under issued Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant acknowledges and agrees that Commission must not pay any amount under this Agreement that would exceed the NTE Sum, and Consultant must not enter into a Task Order that exceeds the NTE Sum. 19.10 Salary increases shall be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by Commission’s Contract Administrator. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. 19.11 Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission’s Contract Administrator. 19.12 All subcontracts in excess of $25,000 shall contain the above provisions. 20. Disputes. 20.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by mutual agreement of the Parties shall be decided by a committee consisting of RCTC’s Contract Administrator and the Director of Capital Projects, who may consider written or verbal information submitted by Consultant. 20.2 Not later than 30 days after completion of all Services under this Agreement, Consultant may request review by the Commission’s Executive Director of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. 20.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. DR A F T 219 17336.00600\33928482.2 13 21. Termination. 21.1 Commission reserves the right to terminate this Agreement upon thirty (30) calendar days written notice to Consultant, for any or no reason, with the reasons for termination stated in the notice. Commission may terminate Services under a Task Order, at any time, for any or no reason, with the effective date of termination to be specified in the notice of termination of Task Order. 21.2 Commission may terminate this Agreement with Consultant should Consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, Commission may proceed with the Services in any manner deemed proper by Commission. If Commission terminates this Agreement with Consultant, Commission shall pay Consultant the sum due to Consultant under this Agreement for Services completed and accepted prior to termination, unless the cost of completion to Commission exceeds the funds remaining in the Agreement. In such case, the overage shall be deducted from any sum due Consultant under this Agreement and the balance, if any, shall be paid to Consultant upon demand. 21.3 In addition to the above, payment upon termination shall include a prorated amount of profit, if applicable, but no amount shall be paid for anticipated profit on unperformed Services. Consultant shall provide documentation deemed adequate by Commission’s Contract Administrator to show the Services actually completed by Consultant prior to the effective date of termination. This Agreement shall terminate on the effective date of the Notice of Termination 21.4 Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 21.5 In addition to the above, Consultant shall be liable to the Commission for any reasonable additional costs incurred by the Commission to revise work for which the Commission has compensated Consultant under this Agreement, but which the Commission has determined in its sole discretion needs to be revised, in part or whole, to complete the Project because it did not meet the standard of care established in this Agreement. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 21.6 The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 21.7 Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. DR A F T 220 17336.00600\33928482.2 14 21.8 Consultant may not terminate this Agreement except for cause. 22. Cost Principles and Administrative Requirements. 22.1 Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. 22.2 Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. 22.3 Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 2 CFR, Part 200 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to Commission. 22.4 All subcontracts in excess of $25,000 shall contain the above provisions. 23. Retention of Records/Audit. For the purpose of determining compliance with, as applicable, 2 CFR Part 200, Public Contract Code 10115, et seq. and Title 21, California 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. DR A F T 221 17336.00600\33928482.2 15 24. Audit Review Procedures. 24.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by Commission’s Chief Financial Officer. 24.2 Not later than 30 days after issuance of the final audit report, Consultant may request a review by Commission’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. 24.3 Neither the pendency of a dispute nor its consideration by Commission shall excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. 25. Subcontracting. 25.1 Nothing contained in this Agreement or otherwise, shall create any contractual relation between Commission and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to Commission for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from Commission’s obligation to make payments to the Consultant. 25.2 Consultant shall perform the Services contemplated with resources available within its own organization and no portion of the Services pertinent to this Agreement shall be subcontracted without written authorization by Commission’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. 25.3 Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by Commission. 25.4 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants. 25.5 Any substitution of subconsultant(s) must be approved in writing by Commission’s Contract Administrator prior to the start of work by the subconsultant(s). 25.6 Exhibit “B” may set forth the rates at which each subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit “B” shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit “B” or in a Task Order. The subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. DR A F T 222 17336.00600\33928482.2 16 26. Equipment Purchase 26.1 Prior authorization, in writing, by Commission’s Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract for supplies, equipment, or services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. 26.2 For purchase of any item, service or consulting work not covered in the Cost Proposal and exceeding $5,000 prior authorization, in writing, by Commission’s Contract Administrator is required. Three competitive quotations must be submitted with the request for such purchase, or the absence of bidding must be adequately justified. 26.3 Any equipment purchased as a result of this Agreement is subject to the following: Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, Commission shall receive a proper refund or credit at the conclusion of this Agreement, or if this Agreement is terminated, Consultant may either keep the equipment and credit Commission in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established Commission procedures; and credit Commission in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by Commission and Consultant. If Consultant determines to sell the equipment, the terms and conditions of such sale must be approved in advance by Commission. 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. 26.4 All subcontracts in excess $25,000 shall contain the above provisions. 27. Labor Code Requirements. 27.1 Prevailing Wages. (a) Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services. (b) Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. (c) When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the DR A F T 223 17336.00600\33928482.2 17 minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. (d) Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the Commission’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 27.2 DIR Registration. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 27.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight-Hour Law”), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 27.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade DR A F T 224 17336.00600\33928482.2 18 shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 28. Ownership of Materials/Confidentiality. 28.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 28.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for DR A F T 225 17336.00600\33928482.2 19 wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 28.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 28.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. DR A F T 226 17336.00600\33928482.2 20 29. 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 indemnify shall not be restricted to insurance proceeds, if any, received by Commission, Caltrans or their directors, officials officers, employees, consultants, agents, or volunteers. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. Consultant’s obligations as set forth in this Section shall survive expiration or termination of this Agreement. 30. Insurance. 30.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this Section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this Section. 30.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to DR A F T 227 17336.00600\33928482.2 21 persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (b) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Limits may be achieved by any combination of primary and excess or umbrella liability insurance; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 30.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. For Consultant, such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. Subconsultants of Consultant shall obtain such insurance in an amount not less than $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. 30.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall DR A F T 228 17336.00600\33928482.2 22 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. 30.5 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (a) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or Caltrans’ insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (b) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, Caltrans and their directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, Caltrans and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, Caltrans and their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (c) Workers’ Compensation and Employers Liability Coverage. DR A F T 229 17336.00600\33928482.2 23 (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (d) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required 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 DR A F T 230 17336.00600\33928482.2 24 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. 30.6 Deductibles and Self-Insurance Retentions. Any deductibles or self- insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expense. 30.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 30.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. DR A F T 231 17336.00600\33928482.2 25 30.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 30.10 Other Insurance. At its option, the Commission may require such additional coverage(s), limits and/or the reduction of deductibles or retentions it considers reasonable and prudent based upon risk factors that may directly or indirectly impact the Project. In retaining this option Commission does not warrant Consultant’s insurance program to be adequate. Consultant shall have the right to purchase insurance in addition to the insurance required in this Section. 31. Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Pursuant to the authority contained in Section 591 of the Vehicle Code, the Commission has determined that the Project will contain areas that are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. 32. Additional Work. Any work or activities that are in addition to, or otherwise outside of, the Services to be performed pursuant to this Agreement shall only be 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. DR A F T 232 17336.00600\33928482.2 26 Cardinal Changes are not within the authority of this provision to order, and shall be processed by the Commission as “sole source” procurements according to applicable law, including the requirements of FTA Circular 4220.1D, paragraph 9(f). (a) In addition to the changes authorized above, a modification which is signed by Consultant and the Commission’s Executive Director, other than a Cardinal Change, may be made in order to: (1) make a negotiated equitable adjustment to the Agreement price, delivery schedule and other terms resulting from the issuance of a Change Order, (2) reflect definitive letter contracts, and (3) reflect other agreements of the parties modifying the terms of this Agreement (“Bilateral Contract Modification”). (b) Consultant shall not perform, nor be compensated for any change, without written authorization from the Commission’s Executive Director as set forth herein. In the event such a change authorization is not issued and signed by the Commission’s Executive Director, Consultant shall not provide such change. 33. Prohibited Interests. 33.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the Commission shall have the right to rescind this Agreement without liability. 33.2 Consultant Conflict of Interest. (a) Consultant shall disclose any financial, business, or other relationship with Commission that may have an impact upon the outcome of this Agreement, or any ensuing Commission construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing Commission construction project, which will follow. (b) Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (c) Any subcontract in excess of $25,000 entered into as a result of this Agreement, shall contain all of the provisions of this Article. (d) Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under DR A F T 233 17336.00600\33928482.2 27 this Agreement is also employed by the construction contractor for any project included within this Agreement. 33.3 Commission Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Commission, during the term of his or her service with the Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 33.4 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 33.5 Covenant Against Contingent Fees. As required in connection with federal funding, the Consultant warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Commission shall have the right to terminate this Agreement without liability pursuant to the terms herein, or at its discretion to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 33.6 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any Commission employee. For breach or violation of this warranty, Commission shall have the right in its discretion; to 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. 33.7 Covenant Against Expenditure of Commission, State or Federal Funds for Lobbying. The Consultant certifies that to the best of his/ her knowledge and belief no state, federal or local agency appropriated funds have been paid, or will be paid by or on behalf of the Consultant to any person for the purpose of influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the award of any state or federal contract, grant, loan, or cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. DR A F T 234 17336.00600\33928482.2 28 (a) If any funds other than federal appropriated funds have been paid, or will be paid to any person for the purpose of influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this Agreement, the Consultant shall complete and submit the attached Exhibit "F", Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with the attached instructions. (b) The Consultant's certification provided in this Section is a material representation of fact upon which reliance was placed when this Agreement was entered into, and is a prerequisite for entering into this Agreement pursuant to Section 1352, Title 31, US. Code. Failure to comply with the restrictions on expenditures, or the disclosure and certification requirements set forth in Section 1352, Title 31, US. Code may result in a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. (c) The Consultant also agrees by signing this Agreement that he/she shall require that the language set forth in this Section 3.23.5 be included in all Consultant subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. 33.8 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 34. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 35. Right to Employ Other Consultants. Commission reserves the right to employ other consultants in connection with the Project. 36. Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 37. Disputes; Attorneys' Fees. 37.1 Prior to commencing any action hereunder, the Parties shall attempt in good faith to resolve any dispute arising between them. The pendency of a dispute shall not excuse Consultant from full and timely performance of the Services. 37.2. If the Parties are unable to resolve a dispute after attempting in good faith to do so, the Parties may seek any other available remedy to resolve the dispute. If DR A F T 235 17336.00600\33928482.2 29 either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys' fees and, all other costs of such actions. 38. Time of Essence. Time is of the essence for each and every provision of this Agreement. 39. Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 40. 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: STV Incorporated Riverside County Transportation Commission 9130 Anaheim Place, Ste. 210 4080 Lemon Street, 3rd Floor Rancho Cucamonga, CA 91730 Riverside, CA 92501 Attn: William J. Knapp 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. 41. 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. 42. Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 43. 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. 44. 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. 45. Provisions Applicable When State Funds or Federal Funds Are Involved. When funding for the Services under a Task Order is provided, in whole or in part, from DR A F T 236 17336.00600\33928482.2 30 Caltrans, Consultant shall also fully and adequately comply with the provisions included in Exhibit “C” (California Department of Transportation requirements) attached hereto and incorporated herein by reference. When funding for the Services under a Task Order is provided, in whole or in part, from the FTA, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (FTA Requirements) attached hereto and incorporated herein by reference. 46. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, shall survive any such expiration or termination. 47. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 48. 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. 49. Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 50. 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. 51. 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. 52. 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. 53. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 54. 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 DR A F T 237 17336.00600\33928482.2 31 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] DR A F T 238 17336.00600\33928482.2 32 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT WITH FTA AND PROPOSITION 1B FUNDING/ASSISTANCE IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: [INSERT NAME] Chair Approved as to Form: By: Best, Best & Krieger LLP General Counsel CONSULTANT STV Incorporated 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. DR A F T 239 17336.00600\33928482.2 Exhibit A EXHIBIT "A" SCOPE OF WORK The Commission intends to contract with an on-call “bench” of qualified consultants to provide Design Engineering and Environmental services for Commuter Rail Station Capital Improvement Projects on an on-call basis pursuant to task orders to be issued in accordance with the terms of this RFQ and the Commission’s model agreement. The selected consultants will supplement the work of the Commission Staff in accordance with the specifications described herein. Projects for which design engineering and environmental services may be required include transit and commuter rail station facility amenities and improvements, station platform improvements, passenger shelters, pedestrian connections, pedestrian bridge structures, pedestrian at-grade railroad crossings, parking structures, parking lot improvements/rehabilitation/expansions, fencing for access control, bicycle paths and bicycle storage solutions and landscaping. Services may be required for station related track addition/rehabilitation/replacement, railroad signal systems, railroad grade crossings, Quiet Zones, layover facilities, station security and safety elements. The foregoing generally described projects may include upgrade to technology with improved ticket vending machines, customer information kiosks, communicator upgrades, signage and potentially wireless connectivity. As design engineering and environmental services needs arise, the Commission will develop a brief scope of work and will issue a request for task order proposals to the bench of contracted firms selected pursuant to this RFQ. Award of task orders will be made to the firm: (i) determined most qualified based on a review of the task order proposals in accordance with the review criteria to be set forth in the request for task order, and (ii) proposing a reasonable price, as determined by the Commission. If the Commission and the first ranked firm are unable to negotiate a reasonable price for the task order work, negotiations shall commence with the next highest ranked firm, and shall continue until a task order is awarded. For non-State or non-federally funded task orders, the Commission may include price as a consideration in task order proposal evaluation and award, and/or may issue task orders in accordance with procedures determined to be in the Commission’s best interest. Approval and authorization to proceed for the designated scope of work will be documented in an Agreement Task Order (ATO). The consultant will be required to commence work within five days or sooner after receiving a fully executed ATO. Payment for each ATO will be in accordance with the Cost Proposal conditions in the selected consultant’s parent agreement. These services will be funded using a variety of federal, state, and local funds. The consultant shall meet all the requirements associated with the specific fund type associate with each ATO and the funding will be identified at the time the scope of work is released. DR A F T 240 17336.00600\33928482.2 Exhibit A Work Activities: All work will be performed to meet the latest Local, State and Federal standards as they are applicable to the element of work being performed. The activities listed in this scope of work are intended to be delivered to support the 30%, 60%, 95% and 100% reviews that are typically used to review Plans Specifications & Estimate (PS&E) packages led by Local Agencies. Prevailing wage shall be paid for all work activities subject to California Labor Code Sections 1720 et seq. and 1770 et. Seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”). Consultant’s SOQ should discuss how will address the following primary activities: PART 1- Environmental – environmental documentation to comply with the California Environmental Quality Act (CEQA), National Environmental Policy Act (NEPA) and all applicable state and federal requirements, supporting technical reports and studies, surveys, mitigation, conceptual analysis, design permits and construction support. Final Environmental Document and Preliminary Engineering Services 1. Project Management 2. Risk Management 3. Prepare, or subcontract for the preparation of all required Technical Studies, Reports, data collection and documentation to support the CEQA/NEPA reports, including but not necessarily limited to: Air Quality, Biology, Cultural Resources, including Section 106 compliance, Native American consultation (including AB 52 compliance when RCTC is the CEQA Lead Agency), Archaeology, Hazardous Waste, Noise and Vibration, Paleontology, Section 4(f) Evaluations, Water Quality and Geotechnical materials 4. Survey and Mapping activities for the project area to support preliminary engineering activities and environmental studies and preliminary plans 5. Processing all forms, maps and documents required for required permits. 6. Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final PS&E, including but not necessarily limited to: stormwater management plan, water quality, geotechnical, structural section recommendation, structure design 7. Other miscellaneous studies that the Offeror recommends performing in order to expedite project delivery 8. Coordination Meetings with the Commission, State, Federal, County of Riverside and local agencies 9. Coordination, reviews and approvals with Federal Transit Administration (FTA), Federal Railroad Administration (FRA), California Public Utilities Commission (CPUC) affected local agencies/jurisdictions, Burlington Northern Santa Fe (BNSF) DR A F T 241 17336.00600\33928482.2 Exhibit A Railroad, Union Pacific Railroad (UPRR), Southern California Regional Rail Authority (SCRRA), U.S. Army Corps of Engineers (USACE), U.S. Fish and Wildlife Service (USFWS), California Department of Fish and Wildlife (CDFW), Western Riverside Regional Conservation Authority (RCA), Santa Ana Regional Water Quality Control Board (RWQCB), and others as required 10. Public Outreach and Marketing- Public meetings, publications, media placements. Graphics – PowerPoint, exhibits, simulations and ad development Part 2-Plans Specification and & Estimate Services Prepare, or subcontract for the preparation of all required technical studies and reports to support preparation of final plans, specifications, & estimates, including but not necessarily limited to: 11. Hydraulic Engineering 12. Structural Engineering 13. Geotechnical Engineering 14. Utility Identification, Potholing and Coordination 15. Surveying – Topography, boundary, record maps, right of way for Preliminary Engineering and final PS&E 16. Right of way – right of way engineering, legals and plats 17. Storm Water Pollution Prevention Plan (SWPPP) Preparation and Notice of Intent preparation and submittal 18. Environmental Coordination, as required 19. Railroad coordination and development and finalization of a design, construction, Memorandum of Understanding and/or Construction and Maintenance agreement, if required. 20. Coordination, reviews and approvals with USACE, USFWS, CDFW, RCA, RWQCB, FTA, FRA, CPUC affected local agencies/jurisdictions, BNSF, UPRR, SCRRA, and others, as required. 21. Provide and setup document control system 22. Prepare and process all forms, maps and documents needed for required permits 23. Preparation of hard copy and electronic/CAD drawings (reproducible drawings) 24. Provide copies of reports, drawings and specifications to the Commission at each stage of submittal 25. Provide Value Engineering, Risk Management Plan and Constructability review prior to final design. 26. Development of Plans, Specifications, and Cost Estimate. DR A F T 242 17336.00600\33928482.2 Exhibit A 27. Provide bid support services including: review bid questions and draft responses’ draft addenda to bid documents 28. Provide Construction Support Services (for example but not limited to: Review, respond to Request for Information, Request for Quote; Submittal and Shop Drawing Review and Approval, Coordination with Commission for any Shop Drawing Approvals, provided revised drawings and/or specifications resulting from Contract Change Orders, Claims review and response) 29. Participate in final walk through and provide comments/recommendations to final punch list. 30. Update electronic/CAD plans to include As-Built revisions and digitally sign A. General Requirements The consultant is expected to prepare all reports, studies and plans to meet Local, State and Federal requirements. Commission staff will provide overall project coordination, and will handle administrative matters. Commission staff will provide oversight, guidance and interpretation on matters relating to policies and regulations. B. Meetings/Public Involvement The consultant will be required to meet with the Commission staff, Bechtel and other agencies that may include State, Federal, Riverside County, SCRRA, BNSF, UPRR, cities of Corona, Jurupa Valley, Perris, March Joint Powers Authority (MJPA) and Riverside, USACE, USFWS, CDFW, WQCB, RCA FTA, other public agencies, and private entities located within the Project boundaries on a regular basis. Project Development Team (PDT) meetings will be held monthly with the project stakeholders. C. Final Products/deliverables Specific final products/deliverables related to the project are listed below: • Final Environmental Document and Notice of Completion and/or Record of Decision, as appropriate • Final Environmental permits • Approved Technical Reports • Survey Data • Agenda, public notices and presentation material to support public hearings and responses to comments received during the environmental document public availability period • Value Engineering Studies, Risk Management Plan and Constructability Analysis DR A F T 243 17336.00600\33928482.2 Exhibit A • Final Plans, Specification, and Cost Estimates (electronic versions plus 1 Full Size (D-Size) and 1 half size copy of final drawings, also provide electronic versions plus hard copies of all reports, Specifications and Estimate). • Final Water Quality Management Plan • Final Storm Water Pollution Prevention Plan (SWPPP) and Notice of Intent (NOI) • Materials Report, Log of Test Borings, and Materials Information Write-Up for Bidders • Project Cross Sections, for Earthwork, for Bidders • Final Bridge Structural Report • Final Drainage and Hydraulic Reports • Final Right of Way Drawings, Legals and Plats • Final Utility Drawings and Notice to Relocate • Final electronic/CAD As-Builts for the Project Other products to match your work activities as described in Section B above. DR A F T 244 17336.00600\33928482.2 Exhibit B-1 EXHIBIT “B” – COMPENSATION AND PAYMENT DR A F T 245 FIRM PROJECT TASKS/ROLE COST STV Incorporated On-Call Design Engineering 5,500,000.00$ Arellano Associates Compliance and Coordination, Outreach and Marketing 300,000.00 Epic Land Solutions, Inc. Right-of-Way 200,000.00 Fehr & Peers Traffic 200,000.00 Ian Davidson Landscap Architecture, Inc.Visual and Aesthetics, Landscape Architecture 200,000.00 JMDiaz, Inc.Grade Crossings, Quiet Zones 400,000.00 Leighton Group, Inc.Geotechnical, Hazardous Materials 200,000.00 LSA Associates, Inc.Environmental Support Services 300,000.00 Pacific Railway Enterprises, Inc.Signals and Communications 2,000,000.00 RSE, Inc.Surveying and Mapping 500,000.00 Sanchez/Kamps Associates Design DBA SKA Design Station Signage 200,000.00 10,000,000.00$ 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. EXHIBIT "B" Prime Consultant: Sub Consultants: COMPENSATION SUMMARY1 DR A F T 246 17336.00600\33928482.2 Exhibit C-1 EXHIBIT "C" CALTRANS REQUIREMENTS/ PROP 1 B PROVISIONS 1. STATEMENT OF COMPLIANCE. A. Consultant’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B. During the performance of this Agreement, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. 2. DEBARMENT AND SUSPENSION CERTIFICATION A. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to Commission. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. DR A F T 247 17336.00600\33928482.2 Exhibit C-2 C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal highway Administration. 3. PROMPT PAYMENT Consultant agrees to pay each subcontractor under this Agreement for satisfactory performance of its contract no later than 10 days from the receipt of each payment the Consultant receives from the Commission. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the Commission. 4. RELEASE OF RETAINAGE No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to Consultant and its subconsultants. 5. LEGAL REMEDIES In addition to those contract remedies set forth under relevant provisions of California law, either Party to this Agreement may, where applicable, seek legal redress for violations of this Agreement pursuant to the relevant provisions of 49 C.F.R. Parts 23 and 26, to the relevant federal or state statutory provisions governing civil rights violations, and to the relevant federal and state provisions governing false claims or “whistleblower” actions, as well as any and all other applicable federal and state provisions of law. The Consultant shall include a provision to this effect in each of its agreements with its subcontractors. 6. NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, and by signing this Agreement, Consultant certifies under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with DR A F T 248 17336.00600\33928482.2 Exhibit C-3 an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 7. INVENTIONS. Rights to Inventions and Data Made Under a Contract or Agreement — Consultant shall comply with Federal requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under the Contract, and shall be in compliance with 10 CFR 600.325 and Appendix A—Patent and Data Rights to Subpart D, Part 600. 8. ENVIRONMENTAL COMPLIANCE A. Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000). B. Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871). C. Energy Policy and Conservation Act (Pub. L. 94—163, 89 Stat. 871.) — Consultant shall 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 (Pub. L. 94–163, 89 Stat. 871), which are incorporated by reference in this Contract. (10 CFR 600.236(i)(13).) DR A F T 249 17336.00600\33928482.2 Exhibit D-1 EXHIBIT “D” FTA PROVISIONS DR A F T 250 FTA Requirements- Page 1 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: DR A F T 251 FTA Requirements- Page 2 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 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. DR A F T 252 FTA Requirements- Page 3 (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 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. DR A F T 253 FTA Requirements- Page 4 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; 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 DR A F T 254 FTA Requirements- Page 5 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. 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. DR A F T 255 FTA Requirements- Page 6 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 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 DR A F T 256 FTA Requirements- Page 7 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. 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 DR A F T 257 FTA Requirements- Page 8 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. 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 DR A F T 258 FTA Requirements- Page 9 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 DR A F T 259 FTA Requirements- Page 10 Executive Director. This "Disputes" clause does not preclude consideration of questions of law in connection with 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. DR A F T 260 FTA Requirements- Page 11 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 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. DR A F T 261 FTA Requirements- Page 12 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. DR A F T 262 17336.00600\33928482.2 Exhibit E-1 EXHIBIT "E" CERTIFICATE OF CONSULTANT I HEREBY CERTIFY that I am the _______________________ and duly authorized representative of the firm of _____________________________________ whose address is ____________________________________________________, and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a)employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b)agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c)paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. By: ____________________________ Signature ____________________________ Name ____________________________ Title ____________________________ DR A F T 263 17336.00600\33928482.2 Exhibit F-1 EXHIBIT “F” LOBBYING ACTIVITIES DISCLOSURE DR A F T 264 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 DR A F T 265 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 $100,000 for each such failure. Signature: ________________________________________ Print Name: _______________________________________ Title: ____________________________________________ _____________ Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files APPENDIX L - 1 5)*4'03.*4/05"11-*$"#-&50"3&--"/0"440$*"5&4 9 *HQRYHYD/$UHOODQR 3ULQFLSDO  Telephone No.: _______ Date: __________  _____________________________________________________________________________________________________________ *HQRYHYD ////////////////////////////$UHOODQR Y DR A F T 266 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 STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 X N/A Karen Star President, Epic Land Solutions, Inc. (951) 321-1834 5/24/2021 DR A F T 267 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 STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 X N/A Jason Pack Principal 949.308.6300 6/17/2021 DR A F T 268 DR A F T 269 Local Assistance Procedures Manual - NOT APPLICABLE - EXHBIT 10-Q Disclosure of Lobbying Activities EXHIBIT 1O-Q DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352 1. Type of Federal Action: a.contract b.grant c.cooperative agreement d.loan e.loan guarantee f.loan insurance 2. Status of Federal Action: a.bid/offer/application b.initial award c.post-award 3. Report Type: a.initial b. material change For Material Change Only: year quarter date of last report 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime: STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 Congressional District, if known 7. Federal Program Name/Description: CFDA Number, if applicable 9. Award Amount, if known: 11. Individuals Performing Services (including address if different from No. 10) (last name, first name, MI) 4. Name and Address of Reporting Entity Prime 7x Subawardee Tier if known Congressional District, if known 6. Federal Department/Agency: 8. Federal Action Number, if known: 10. Name and Address of Lobby Entity (If individual, last name, first name. MI) (attach Continuation Sheet(s) if necessary) Amount of Payment (check all that apply) 14. Type of Payment (check all that apply) S actual planned a. retainer b. one-time fee Form of Payment (check all that apply): c. commission H a. cash d. contingent fee b. in-kind; specify: nature e deferred Value f. other, specify 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 4Name. 17.Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure oflobbyingreliance Si was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. Pri 1352. This information will be reported to Congress semiannually and will be available for public inspection. Any Title: President/CEO 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. Telephone No.: 626.820.1137 XI 101 Date: 6/17/2021 Authorized for Local Reproduction Federal Use Only: Standard Form - LLL Standard Form LLL Rev. 04-28-06 Distribution: Orig- Local Agency Project Files 12. 13. 15. Page 1 LPP 13-01 APPENDIX L - 1 May 8, 2013 DR A F T 270 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 N/A N/A N/A N/A N/A N/AN/A N/A X Kris R. Lutton, PG Senior Vice President (949) 681-4203 05/24/2021 N/A DR A F T 271 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 STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 X N/A N/A N/A Mike Trotta Chief Executive Officer (949) 553-0666 5/24/2021 DR A F T 272 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 N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/AN/A N/A N/A X N/A Jennifer A. Purcell, PE President / CEO 951-784-4630 5/17/21 DR A F T 273 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 ; 3KLO/HRQJ3( 3UHVLGHQW   127$33/,&$%/( _________________________________________________________________________________________________________________________ _____________________________________________________________KLOOOOO /////////////////HRHRHRHRHRHRHRRHRHRHRHRRHRRHRHRRRRRHHQJQJQJQJQJQJQJQJQJQJQJQJQJQJQJQQJQJQJQQQQ3(3(3(3(3(3(3(3(3(3(3(3((3(3(333( 5/20/2021 DR A F T 274 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 STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 X Joseph Stoddard Principal 626.403.5870 5/24/21 N/A N/A SKA Design has had no lobbying activities. DR A F T 275 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 STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 X N/A N/A N/A Arturo Silva Chief Operations Officer N/A N/A N/A N/A N/A N/A 714-521-5393 6-7-2021 DR A F T 276 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 STV Incorporated 9130 Anaheim Place, Suite 210 Rancho Cucamonga, CA 91730 X Deon Bender, PE Managing Principal 5/24/2021213.488.4911 XDR A F T 277 ON-CALL DESIGN, ENGINEERING, AND ENVIRONMENTAL SERVICES FOR RAIL PROJECTS Western Riverside County Programs and Projects Committee September 27, 2021 David Lewis, Capital Projects Manager 1 Background 2 •Provides a streamlined process utilized as needed basis •Comprehensive design and environmental services for a variety of projects •Primarily funded with various Federal Transit Administration grants Procurement Process 3 •Request for Qualifications (RFQ) was released on May 6, 2021 •8 firms submitted responsive and responsible statements of qualifications •6 firms were shortlisted for the interview phase •HDR Engineering, Inc., Moffatt and Nichol, RailPros, Inc., and STV incorporated were the 4 firms selected as most qualified Task Order Process 4 •Work is not guaranteed to any of the awardees •These Pre-Qualified consultants will be selected for specific tasks or projects based on information contained in their proposals •Services will be provided through Commission Task Orders •Commission’s model on-call professional services agreement will be entered into with each of the 4 firms QUESTIONS 5 AGENDA ITEM 8 Agenda Item 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: September 27, 2021 TO: Western Riverside County Programs and Projects Committee FROM: Martha Masters, Senior Management Analyst Jenny Chan, Planning and Programming Manager THROUGH: Jillian Guizado, Planning and Programming Director SUBJECT: City of Lake Elsinore Request for Additional Funds for Construction of Interstate 15/Main Street Interchange Improvement Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve additional programming of $2,463,000 of 2009 Measure A Western County Regional Arterial (MARA) funds for the city of Lake Elsinore’s (Lake Elsinore) Interstate 15 (I-15)/Main Street Interchange Improvement Project (Main Street IC); 2) Approve Agreement No. 20-72-089-01, Amendment No. 1 to Agreement No. 20-72-089-00, between the Commission and Lake Elsinore for the additional programming of $2,463,000 of MARA for the construction phase of Main Street IC and a total amount not to exceed $7,946,000; 3) Approve an adjustment to the Fiscal Year (FY) 2021/22 budget to increase construction expenditures in the amount of $2,463,000; 4) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: At the March 11, 2020 Commission meeting, staff recommended award of a construction contract for the I-15/Railroad Canyon Road Interchange Project (Railroad Canyon IC), which the Commission is constructing on behalf of Lake Elsinore. The construction contract came in more than $7 million under the engineer’s estimate. As a result, Commissioner Magee (Lake Elsinore) requested that Railroad Canyon IC cost savings be applied to Lake Elsinore’s Main Street IC. As shown on the location map to Attachment 2, the project is located along I-15 between Central Avenue/State Route 74 to the north and Railroad Canyon Road to the south. The Main Street IC improvements include: widening Main Street from 2 to 4 lanes, ramp metering, improvements to north- and south-bound on and off ramps, and installation of traffic signals at the ramp intersections. The interchange is currently a diamond configuration and the proposed 278 Agenda Item 8 signalization and ramp widening will extend the life of the interchange. Lake Elsinore and Caltrans are partnering on the project. The project received an environmental Categorical Exemption determination, signed on March 2, 2018. Caltrans approved an encroachment permit on May 31, 2019 and is making a $476,000 funding contribution. Lake Elsinore completed construction of improvements to Camino Del Norte and completed design for the improved Main Street IC. The nexus between using savings from the Railroad Canyon IC on the Main Street IC was to provide a safe detour and access point to I-15 during Railroad Canyon IC construction (currently underway) and to continue the Railroad Canyon/new Franklin Interchange Project into Phase 2 whereby the Main Street IC is the first component. At the June 10, 2020 Commission meeting, $5,483,000 of 2009 MARA funds were approved for the Lake Elsinore’s Main Street IC, as the city had a funding gap based on the available funding and engineer’s estimate. DISCUSSION: The Main Street IC construction phase advertisement closed on September 9, 2021. All three bids came in higher than the engineer’s estimate. An analysis of the bids indicate that the costs for items such as temporary railing and silt fencing have increased, in addition to structural excavations, aggregate base, structural concrete, shotcrete, and signals which have increased dramatically. With the low bid, the total cost of construction has increased to $10.12 million, including construction management and post-design services. Lake Elsinore was able to identify an additional $1.7 million of local funds to narrow the funding gap and is still in need of $2.463 million. Improving the Main Street interchange will improve congestion and compliment Railroad Canyon IC. Since the Main Street IC is ready for construction, staff assessed the availability of state and local funds and determined that the Main Street IC is eligible for additional MARA funds. Staff recommends approval of programming an additional $2,463,000 of MARA funds for construction of the Main Street IC, as funds are available. Further, programming MARA funds provides expediency to maintain the project schedule. FISCAL IMPACT: The FY 2021/22 budget includes $2,741,500 for construction cost reimbursements to Lake Elsinore. Due to the increased construction costs, staff recommends a FY 2021/22 budget adjustment of $2,463,000 to increase construction expenditures. 279 Agenda Item 8 Financial Information In Fiscal Year Budget: No Year: FY 2021/22 Amount: $2,463,000 Source of Funds: 2009 Measure A Western County Regional Arterial Budget Adjustment: Yes GL/Project Accounting No.: 005210 81301 00000 0000 266 72 81301 Fiscal Procedures Approved: Date: 09/17/2021 Attachments: 1) Lake Elsinore request letter dated September 14, 2021 2) Project location map 3) Draft agreement 280 ATTACHMENT 1 281 282 ATTACHMENT 2 283 17336.02600\34359368.1 Agreement No. 20-72-089-01 AMENDMENT NO. 1 TO AGREEMENT FOR THE FUNDING OF MEASURE A REGIONAL ARTERIAL IMPROVEMENTS WITH THE CITY OF LAKE ELSINORE 1.PARTIES AND DATE This Amendment No. 1 to the Agreement for the Funding of Measure A Regional Arterial ("MARA") Improvements is made and entered into this ______ day of ___________, 2021, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and the CITY OF LAKE ELSINORE ("City"). 2.RECITALS 2.1 The Commission and the City have entered into an agreement, dated June 11, 2020 (the “Master Agreement”), to distribute MARA funds to the City for the construction of the Interstate 15 Main Street Interchange Improvement Project (the “Project”). 2.2 The Master Agreement provided for distribution of MARA Funds in the not to exceed sum of Five Million, Four Hundred Eighty-Three Thousand Dollars ($5,483,000) for construction of the Project, and for a contribution of Four Hundred Seventy-Six Thousand Dollars ($476,000). 2.3 Construction bids for the Project exceeded the estimated costs, and the City has requested additional MARA funds in an amount not to exceed Two Million, Five Hundred Thousand Dollars ($2,463,000). 2.4 The City has agreed to provide for an additional local contribution of One Million, Seven Hundred Thousand Dollars ($1,700,000). 2.5 The parties now desire to amend the Master Agreement in order to increase the Funding Amount, as set forth in the Master Agreement, and to update the funding allocations and timetable for construction of the Project, as set forth in Exhibit “A” of the Master Agreement. ATTACHMENT 3 284 17336.02600\34359368.1 2 3. TERMS 3.1 Section 3.2 of the Master Agreement, titled “RCTC Funding Amount”, shall be amended, in its entirety, to read as follows: 3.2 RCTC Funding Amount. RCTC hereby agrees to distribute to the City, on the terms and conditions set forth herein, a sum not to exceed Seven Million, Nine Hundred Forty Six Dollars ($7,946,000) to be used exclusively for reimbursing the City for eligible Work expenses as described herein (“Funding Amount”). The City acknowledges and agrees that the Funding Amount may be less than the actual cost of the Work, and that RCTC shall not contribute MARA Funds in excess of the maximum authorized in this section. 3.2 Section 3.3.2 of the Master Agreement, titled “City’s Local Match Contribution”, shall be amended, in its entirety, to read as follows: 3.3.2 City’s Local Match Contribution. The City shall provide at least One Million, Seven Hundred Thousand Dollars ($1,700,000) of funding toward the Work, as shown in Exhibit “A”. 3.3 Exhibit “A” of the Master Agreement, titled “Scope of Work, Funding and Timetable”, shall be replaced, in its entirety, with the version of Exhibit “A” attached to this Amendment as Attachment 1 and incorporated herein by reference. 3.4 Except as amended by this Amendment, all provisions of the Master Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. 3.5 This Amendment may be signed in counterparts, each of which shall constitute an original. 3.6 A manually signed copy of this Amendment 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 Amendment for all purposes. This Amendment may be signed using an electronic signature. [Signatures on following page] 285 17336.02600\34359368.1 3 SIGNATURE PAGE TO AMENDMENT NO. 1 TO AGREEMENT FOR THE FUNDING OF MEASURE A REGIONAL ARTERIAL IMPROVEMENTS (AGREEMENT NO. 20-72-089-01) RIVERSIDE COUNTY CITY OF LAKE ELSINORE TRANSPORTATION COMMISSION By: By: ________________________ Anne Mayer, Executive Director Jason Simpson, City Manager ATTEST: By: ________________________ Candice Alvarez, City Clerk APPROVED AS TO FORM: APPROVED AS TO FORM: By: _________________________________ By: _________________________ Best, Best & Krieger Barbara Leibold, City Attorney Counsel to the Riverside County Transportation Commission 286 17336.02600\34359368.1 Exhibit A ATTACHMENT 1 EXHIBIT "A" SCOPE OF WORK, FUNDING AND TIMETABLE SCOPE OF WORK: Lake Elsinore’s Interstate 15 Main Street Interchange Improvement Project Scope of Work includes Signalization of Ramp Intersection with Main Street at each side of the freeway, signalization of the Main Street/Camino Del Norte Intersection. Scope also includes widening of Main Street under the freeway, and On Ramp Metering. The portion of the Project to be funded under this Agreement is the construction phase for the Project. FUNDING: Identify MARA, local, state and/or federal funding for each Phase of Work. PHASE MARA Fund LOCAL STATE/FEDERAL TOTAL CONSTRUCTION $7,946,000 $1,700,000 $476,000 $10,122,000 TOTAL $7,946,000 $1,700,000 $476,000 $10,122,000 TIMETABLE: Provide at a minimum the beginning and ending dates for each phase of work including major milestones within a phase. Phase Start Date End Date Comments Construction 12/2021 10/2022 300 Working Days 287 TO: Riverside County Transportation Commission FROM: Lisa Mobley, Clerk of the Board DATE: September 22, 2021 SUBJECT: G.C. 84308 Compliance – Potential Conflict of Interest California Government Code 84308 states a Commissioner may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from a bidder or bidder’s agent. This prohibition does not apply to the awarding of contracts that are competitively bid. The Commission’s procurement division asks potential vendors to disclose any contributions made to the campaigns of any Commissioner as part of their submitted bid packets. As an additional precaution, those entities are included below in an effort to give Commissioners opportunity to review their campaign statements for potential conflicts. Please note the entities listed in this memo are not encompassing of all potential conflicts and are in addition to any personal conflicts of interest such as those disclosed on Statement of Economic Interests – Form 700 or prohibited by Government Code Section 1090. Please contact me should you have any questions. Agenda Item No. 7 – Agreements for On-Call Design Engineering and Environmental Services for Commuter Rail and Station Capital Improvement Projects Consultant(s): HDR Engineering, Inc. STV Incorporated Thomas T. Kim, PE/Senior VP William J. Knapp, Senior VP 2280 Market Street, Suite 100 9130 Anaheim Place, Suite 210 Riverside, CA 92501-2110 Rancho Cucamonga, CA 91730 Moffatt & Nichol Sam Mansour, PE/Project Manager/VP 3536 Concours, Suite 200 Ontario, CA 91764 RailPros Douglas B. Sawyer, Senior VP 3850 Vine Street, Suite 110 Riverside, CA 92507 RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL SEPTEMBER 27, 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 