Loading...
03 March 22, 2010 Western Riverside County Programs and Projects88823 RECORDS RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE MEETING AGENDA TIME: 1:30 p.m. DATE: Monday, March 22, 2010 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside !� COMMITTEE MEMBERS -V Karen Spiegel, Chair / Steve Nolan, City of Corona Bob Botts, Vice Chair / Don Robinson, City of Banning Wallace Edgerton / Darcy Kuenzi, City of Menifee Bonnie Flickinger / Jesse Molina, City of Moreno Valley Malcolm Miller / Kathy Azevedo, City of Norco Daryl Busch / Al Landers, City of Perris Steve Di Memmo / Vacant, City of San Jacinto Scott Farnam / Bridgette Moore, City of Wildomar Bob Buster, County of Riverside, District I Marion Ashley, County of Riverside, District V W. STAFF Anne Mayer, Executive Director John Standiford, Deputy Executive Director W. AREAS OF RESPONSIBILITY Air Quality, Capital Projects, Communications and Outreach Programs, Congestion Management Program (CMP), Intermodal Programs, Motorist Services (ie. SAFE/Freeway Service Patrol), New Corridors, Regional Agencies/Regional Planning, Regional Transportation Improvement Program (RTIP), State Transportation Improvement Program (STIP), and Transportation Uniform Mitigation Fee (TUMF) Program related to Western Riverside County and other areas as may be prescribed by the Commission. Comments are welcomed by the Committee. If you wish to provide comments to the Committee, please complete and submit a Speaker Card to the Clerk of the Board. 11.36.54 • RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 1:30 p.m. Monday, March 22, 2010 BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission's website, www.rctc.org. In compliance with the Americans with Disabilities Act and Government Code Section 54954.2, if you need special assistance to participate in a Committee meeting, please contact the Clerk of the Board at (951) 787-7141. Notification of at /east 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 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 (3) 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. 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. Western Riverside County Programs and Projects Committee Agenda March 22, 2010 Page 2 Under the Brown Act, the Board should not take action on or discuss matters raised during public comment portion of the agenda which are not listed on the agenda. Board members may refer such matters to staff for factual information or to be placed on the subsequent agenda for consideration. 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. ELECTION OF THE VICE CHAIR FOR 2010 Overview This item is for the Western Riverside County Programs and Projects Committee to conduct an election of the Vice Chair for 2010. Page 1 • 7• AGREEMENT FOR ENVIRONMENTAL DOCUMENT PREPARATION, Alk PRELIMINARY AND FINAL ENGINEERING DESIGN, AND CONSTRUCTION SUPPORT SERVICES FOR THE RIVERSIDE DOWNTOWN METROLINK LAYOVER FACILITY PROJECT Page 2 Overview This item is for the Committee to: 1) Approve the consultant selection process and award Agreement No. 10-33-031-00 to HDR Engineering Inc. (HDR), pending completion of negotiations, to provide environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project in the amount to be agreed upon between the Commission and the consultant at the end of negotiations (to be provided at the Committee meeting); 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total not to exceed amount as requested for the project; 4) Authorize the Executive Director, pursuant to legal counsel review, to execute non -funding related agreements necessary for the design and construction of the project; and 5) Forward to the Commission for final action. • • • • Western Riverside County Programs and Projects Committee Agenda March 22, 2010 Page 3 8. AMENDMENT TO AGREEMENT WITH OWEN DESIGN GROUP, INC. TO PROVIDE CONSTRUCTION MANAGEMENT SERVICES FOR THE NORTH MAIN CORONA PARKING STRUCTURE AND THE PERRIS MULTIMODAL FACILITY Page 6 Overview This item is for the Committee to: 1) Approve Agreement No. 08-33-01 1-02, Amendment No. 2 to Agreement No. 08-33-011-00, with Owen Design Group, Inc. (Owen Group) for construction management services for the North Main Corona (NMC) parking structure and the Perris Multimodal (PMM) facility in a not -to -exceed amount of $490,000; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Approve an expenditure transfer of $490,000 from the Riverside Downtown layover facility right of way acquisition to the PMM facility construction management; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee Agenda March 22, 2010 Page 4 9. AMENDMENT TO AGREEMENT WITH LA ENGINEERING TO INCREASE THE CONTRACT EXPENDITURE AUTHORIZATION FOR THE PERRIS MULTIMODAL FACILITY Page 72 Overview This item is for the Committee to: 1) Approve Agreement No. 09-33-046-01, Amendment No. 1 to Agreement No. 09-33-046-00, with LA Engineering to increase the expenditure authorization for the Perris Multimodal (PMM) facility by $262,000, increasing the total not to exceed contract amount to $5,662,000; 2) Approve addition of four external extra work requests: two by the city of Perris, one by Southern California Regional Rail Authority (SCRRA), and one by Riverside Transit Agency (RTA); 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 4) Authorize Executive Director to execute necessary contract change orders to implement these requests; 5) Approve an increase to budgeted revenues of $140,000 and an expenditure transfer of $262,000 from the Riverside Downtown layover facility right of way acquisition to PMM facility construction; and 6) Forward to the Commission for final action. 10. AGREEMENT WITH SUNESYS LLC FOR THE NO COST PROVISION OF FIBER OPTIC SERVICES IN EXCHANGE FOR A NO COST LICENSE AGREEMENT Page 17 Overview This item is for the Committee to: 1) Approve Agreement No. 10-25-086-00 with Sunesys LLC for the provision of no cost fiber optic services in exchange for a no cost license agreement; 2) Authorize the Chair, pursuant to legal .counsel review, to execute the agreements, including option years, on behalf of the Commission; and 3) Forward to the Commission for final action. • • • Western Riverside County Programs and Projects Committee Agenda March 22, 2010 Page 5 • 11. AGREEMENT WITH EPIC LAND SOLUTIONS, INC. TO PROVIDE PROPERTY MANAGEMENT SUPPORT SERVICES • • Page 41 Overview This item is for the Committee to: 1) Approve Agreement No. 10-51-074-00 with Epic Land Solutions, Inc. (Epic), for property management support services for Commission - owned parcels for two years at a not to exceed amount of $970,000 and one option year for an additional $485,000; 2) • Authorize the Chair, pursuant to legal counsel review, to execute the agreement, including the option year, on behalf of the Commission; and 3) Forward to the Commission for final action. 12. COMMISSIONERS / STAFF REPORT Overview This item provides the opportunity for the Commissioners and staff to report on attended and upcoming meetings/conferences and issues related to Commission activities. 13. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, April 26, 2010, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL March 22, 2010 P e� sent Absent O O City of San Jacinto RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN -IN SHEET MARCH 22, 2010 NAME AGENCY E MAIL ADDRESS — eo« A 1"A0- NA cm IGE`NCY tl Q t T.1 et• U3 t 1.A00-tA2-. 1.15- 4//f//�/P,e/•veG-YZ /%/�'->ri0 v-it�t- --Y �. �; C.0 (w. Mn tte{ NNt-0 i (--9,4 i1,eild_E- e o c..E2me) F_iti r` `jr - i �, VhY ,4-7 D 0 i Fj% 5 (-t—.i;4 :!5. 1 -)-(— PA ( d�5A I z.—t ry ,6:%, 1�Tema. • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, February 22, 2010 MINUTES 1. CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Pro Tem Bob Botts at 1:33 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Commissioner Bob Buster led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/Alternates Present Members Absent Marion Ashley Bob Botts Daryl Busch Bob Buster Steve Di Memmo Scott Farnam Bonnie Flickinger Robin Lowe Malcolm Miller Karen Spiegel 4. PUBLIC COMMENTS There were no requests to speak from the public. 5. ADDITIONS / REVISIONS Anne Mayer, Executive Director, noted an addition to Agenda Item 9, "Agreement with Epic Land Solutions, Inc. to Provide Property Management Support Services". RCTC WRC Programs and Projects Committee Minutes February 22, 2010 Page 2 6. ELECTION OF OFFICERS At this time, Chair Pro Tem Botts opened nominations for the slate of officers. Commissioner Robin Lowe, seconded by Comrnissioner Daryl Busch, nominated Commissioner Karen Spiegel for the Chair position. No other nominations were received. Chair Pro Tem Botts closed the nominations. Commissioner Spiegel was unanimously elected as the Western Riverside County Programs and Projects Committee's Chair. At this time, Commissioner Spiegel assumed the Chair. Chair Spiegel, seconded by Commissioner Marion Ashley, nominated Commissioner Botts for the Vice Chair position. No other nominations were received. Chair Spiegel closed the nominations. Commissioner Botts was unanimously elected as the Western Riverside County Programs and Projects Committee's Vice Chair. 7. AMENDMENT TO AGREEMENT FOR ON -CALL STRATEGIC PARTNERSHIP ADVISOR SERVICES WITH PB AMERICAS, INC. Khalid Bazmi, Toll Project Manager, presented an overview of the terms of the amendment to the agreement for on -call strategic partnership advisor services with PB Americas, Inc. Commissioner Busch expressed concern that rate information was not included in the agenda item. He suggested for this agenda item as well as Agenda Items 9, 10, and 11, and based on the economic climate, staff renegotiate with the contractors to reduce the cost of the contract if that has not already been done. Anne Mayer replied that related to this agenda item, the hours and labor rates for this work are included in the agenda item. For contracts that are being extended, there are controls within the contract for an allowable annual increase. She noted the rates for professional services have not experienced the same decreases seen in construction. Additionally, the lower bids in construction are attributable to reduction in overhead, not hourly rates for employees. She believes the focus should be on the overhead rate and what those reductions can be, noting that those are audited rates. • • RCTC WRC Programs and Projects Committee Minutes February 22, 2010 Page 3 Commissioner Ashley concurred with Commissioner Busch's comments and recommended staff seek a reduction of the cost of these contracts, and suggested a 5% to 10% reduction for contract renewals. Commissioner Lowe concurred with Commissioner Ashley's comments and stated that any contracts that were originally negotiated more than two to three years ago should be renegotiated to seek a cost reduction. M/S/C (Ashley/Farnam) to: 1) Approve Agreement No. 06-66-027-20, Amendment No. 9 to Agreement No. 06-66-027-00, with PB Americas, Inc. (PB) for on -call strategic partnership advisor services to continue providing services for the proposed State Route 91 and Interstate 15 corridor improvement projects in the amount of $671,667, contingent upon staff returning to the contractor and renegotiating for a reduction in the overall cost of the contract; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. 8. CONFLICT OF INTEREST POLICY FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT Khalid Bazmi presented an overview of the conflict of interest policy for the SR-91 Corridor Improvement Project (SR-91 CIP). At Vice Chair Botts' request for clarification, Anne Mayer stated that the conflict of interest policy only applies to the SR-91 CIP and its purpose is to establish a level playing field. M/S/C (Lowe/Ashley) to: 1) Approve the Conflict of Interest policy for the SR-91 CIP; and 2) Forward to the Commission for final action. RCTC WRC Programs and Projects Committee Minutes February 22, 2010 Page 4 9. AGREEMENT WITH EPIC LAND SOLUTIONS, INC. TO PROVIDE PROPERTY MANAGEMENT SUPPORT SERVICES Min Saysay, Right of Way Manager, presented an overview of the agreement with Epic Land Solutions, Inc. to provide Phase 3 property management support services. At Commissioner Lowe's request, Min Saysay described the responsibilities of the relationship manager. Commissioner Lowe expressed concern regarding the hourly rate of the relationship manager based on its responsibilities and requested staff seek a reduction of the cost of this contract. Anne Mayer stated staff will follow the committee's direction from the previous agenda item, as well as the following agenda items, to return to the contractor and renegotiate for a reduction in the overall cost of the contract. Commissioner Buster stated the importance and complexity of the property management support services and asked if staff is satisfied with Epic's performance. Min Saysay confirmed. Based on his review, Commissioner Buster stated his belief that the level of service being provided is worth the proposed contract value. Additionally, he believes that when a contract is renegotiated, these factors need to be taken into account. M/S/C (Buster/Ashley) to: 1) Approve Agreement No. 10-51-074-00, with Epic Land Solutions, Inc.lEpic), for property management support services for Commission -owned parcels for two years at a not to exceed amount of $1 million and one option year for an additional $500,000, contingent upon staff returning to the contractor and renegotiating for a reduction in the overall cost of the contract; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement, including the option year, on behalf of the Commission; and 3) Forward to the Commission for final action. • RCTC WRC Programs and Projects Committee Minutes February 22, 2010 Page 5 10. AGREEMENTS WITH QUALIFIED CONTRACTORS TO PROVIDE ON -CALL RIGHT OF WAY APPRAISAL SERVICES FOR RESIDENTIAL, COMMERCIAL, INDUSTRIAL, AND AGRICULTURAL PROPERTIES Min Saysay presented Agenda Items 10 and 11 concurrently. He provided a brief summary of the scope to work for the agreements with qualified contractors to provide on -call right of way appraisal services and review appraisal services for residential, commercial, industrial, and agricultural properties. At Anne Mayer's request, Min Saysay clarified the appraisal process, including how the value of an appraisal is determined. M/S/C (Lowe/Busch) to: 1) Award the following agreements to provide on -call right of way appraisal services for a three-year period, and two one-year options to extend the agreements, in an amount not to exceed an aggregate value of $950,000, contingent upon staff returning to the contractor and renegotiating for a reduction in the overall cost of the contract; a) Agreement No. 10-51-048-00 with Lidgard and Associates; b) Agreement No. 10-51-064-00 with Mason & Mason Real Estate Appraisers & Consultants; c) Agreement No. 10-51-065-00 with Donahue Hawran & Malm LLC; d) Agreement No. 10-51-066-00 with R.P. Laurain & Associates; e) Agreement No. 10-51-067-00 with Riggs & Riggs, Inc.; and f) Agreement No. 10-51-068-00 with Hennessey & Hennessey LLC; 2) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; and 4) Forward to the Commission to final action. RCTC WRC Programs and Projects Committee Minutes February 22, 2010 Page 6 11. AGREEMENTS WITH QUALIFIED CONTRACTORS TO PROVIDE ON -CALL RIGHT OF WAY APPRAISAL REVIEW SERVICES FOR RESIDENTIAL, COMMERCIAL, INDUSTRIAL, AND AGRICULTURAL PROPERTIES M/S/C (Lowe/Busch) to: 1) Award the following agreements to provide on -call right of way appraisal review services for a three-year period, and two one- year options to extend the agreements, in an amount not to exceed an aggregate value of $500,000, contingent upon staff returning to the contractor and renegotiating for a reduction in the overall cost of the contract; a) Agreement No. 10-51-051-00 with Donahue Hawran & Maim LLC; b) Agreement No. 10-51-070-00 with R.P. Laurain & Associates; c) Agreement No. 10-51-071-00 with Mason & Mason Real Estate Appraisers and Consultants; d) Agreement No. 10-51-072-00 with Hennessey & Hennessey LLC; and e) Agreement No. 10-51-073-00 with Overland Pacific & Cutler Inc.; 2) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; and 4) Forward to the Commission for final action. 12. COMMISSIONERS / STAFF REPORT 12A. Commissioner Lowe briefed the Committee on the Surface Transportation Reauthorization Outreach meeting held on February 19. 12B. Anne Mayer announced the I-10/Bob Hope Drive/Ramon Road and 1-10/Palm Drive/ Gene Autry Trail interchanges ground breaking event will be held on February 26 at 10:00 a.m. • • • RCTC WRC Programs and Projects Committee Minutes February 22, 2010 Page 7 13. ADJOURNMENT There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:16 p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board RIVERSIDE COUNTY TRANSPORTATION COMM/SS/ON DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Jennifer Harmon, Office and Board Services Manager THROUGH: John Standiford, Deputy Executive Director SUBJECT: Election of the Vice Chair for 2010 STAFF RECOMMENDATION: This item is for the Western Riverside County Programs and Projects Committee to conduct an election of the Vice Chair for 2010. BACKGROUND INFORMATION At its February 22 meeting, the Western Riverside County Programs and Projects Committee conducted an election of officers for 2010 for the Chair and Vice Chair positions - Commissioners Karen Spiegel and Bob Botts, respectively. Since this election took place, Commissioner Botts graciously decided to resign his position as Vice Chair since he served as the Chair of the former Plans and. Programs Committee in 2009. His action provides a leadership opportunity for another Commissioner to serve as Vice Chair of the Western County Programs and Projects Committee. Agenda Item 6 1 REVISED AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMM/SS/ON DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Edda Rosso, Capital Projects Manager Richard Bryan, Bechtel Manager of Rail Projects Erik Galloway, Bechtel Project Coordinator THROUGH: Cathy Bechtel, Project Development Director SUBJECT: Agreement for Environmental Document Preparation, Preliminary and Final Engineering Design, and Construction Support Services for the Riverside Downtown Metrolink Layover Facility Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve the consultant selection process and award Agreement No. 10-33-031-00 to HDR Engineering Inc. (HDR), to provide environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project in the amount of $2,140,325 plus a contingency amount of $259,675 to cover potential changes for a total not to exceed amount of $2.4 million; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total not to exceed amount as requested for the project; 4) Authorize the Executive Director, pursuant to legal counsel review, to execute non -funding related agreements necessary for the design and construction of the project; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: The Riverside Downtown Metrolink station acts as a layover facility for a number of Metrolink trains operating on the Riverside, Inland Empire -Orange County (IE0C), and 91 lines. Since the station is at the end of the line, each evening most of these trains need to be stored and serviced overnight at the station. The station has the capability to store train sets on the station tracks on both the northern and southern sides of the station, which is shown in detail in Attachment 1. In addition, there is currently a single storage track on the northern side to store trains Agenda Item 7 and two short tracks on the southern side along Commerce Street to store and service trains overnight. The designated storage tracks on the southern side include the necessary utilities, train staff parking, and storage of consumables for train maintenance and operations. Currently, all available storage space at the Riverside Downtown Metrolink station is being utilized and there is limited flexibility for current staging of trains and no opportunity for adding train service without developing storage capacity at the station. This project seeks to expand this capacity on available Commission -owned property. Working together for the past year, the Southern California Regional Rail Authority (SCRRA), in conjunction with Commission staff, performed a conceptual engineering study to expand the Riverside Downtown Metrolink station to allow for the layover, cleaning, and light maintenance of the current train sets and to accommodate future trains. In addition, the design allowed for the connection of the Perris Valley Line (PVL) with both the current access on the Burlington Northern Santa Fe Railroad (BNSF) third track and future access on the proposed fourth main track. The facility will be designed to accommodate layover capacity for all the routes serving Riverside. The proposed facility would place a second track within the existing northern layover area to allow for the proper storage and light maintenance of two train sets (six to seven cars per set) with connections to the necessary utilities. This phase of the work is relatively straightforward and can be expedited to meet existing demands and allow more flexibility with trains parked at the station. The major portion of the expansion will occur on the southern side of the BNSF tracks along Commerce Street. The existing layover tracks will be extended across Mission Inn Avenue onto Commission -owned property and extend northerly to 3'd Street. This expansion will include the placement of three sets of layover tracks with the capability of storing five train sets (six to seven cars per set). This facility will include the necessary utilities and infrastructure for the secure layover of the trains. This portion of the project will require close coordination with the city of Riverside and the Public Utilities Commission for the necessary grade crossing improvements at Mission Inn Avenue. The project will be designed for the full length to 3rd Street, but the construction of the facility will be phased depending on . funding conditions and the schedule for the 3'd Street grade separation project. Discussions were held between SCRRA and Commission staff to determine how the design of the layover expansion could be expedited, especially for the northern area. It was agreed that the Commission has the capabilities to expedite the procurement of a design engineer to perform the environmental document preparation, preliminary engineering, final engineering design, and construction support services. Agenda Item 7 Selection Process A request for qualifications for environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project was issued on November 20, 2009, and a pre -submittal conference was held on December 8, 2009, to present the project and answer any questions for the interested parties. The consultants' statements of qualifications (SOQ) were submitted on December 22, 2009. An evaluation committee was appointed to review the two submitted SOQ's received and to conduct interviews of the firms. The evaluation committee members included representatives from the Commission staff, Bechtel, SCRRA, and the city of Riverside. After evaluation of the SOQ's by the evaluation committee, both firms were notified on January 11, 2010, that interviews would be conducted. The firms included: • HDR Engineering, Inc. • JL Patterson & Associates, Inc. Interviews of firms were conducted on January 28, 2010, and HDR was selected by the evaluation committee as the most qualified firm. Commission staff requested that HDR submit a scope, cost, and schedule proposal for environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project. Staff received HDR's scope, cost, and schedule proposal on February 26, 2010, and negotiations commenced on March 1, 2010. Subsequent meetings were held on March 10 and March 17, 2010, to review revisions made by HDR and to continue the negotiation process. During the three weeks of negotiations, HDR submitted three proposals consisting of its scope, cost, and schedule. A finalized summary of the scope is included in Attachment 2. Table A summarizes the submittals and the associated costs. TABLE A Proposal Submittal Date Northern Facility Commerce Street Facility CEQA BNSF Fourth Main Track Grand Total March 10, 2010 $488,333 $1,180,652 N/A $1,668,985 March 17, 2010 $473,297 $1,137,025 N/A $1,610,322 March 18, 2010 $463,936 $1,117,700 $558,690 $2,140,326 CEQA: California Environmental Quality Act Note: The March 18, 2010 proposed costs only for the layover facilities totals S1,581,635.96 Agenda Item 7 Some of the austerity measures undertaken by HDR during the negotiation process, and the office locations of the consultants on this project are listed in Table B. TABLE B Firm Office Locations Proposed Austerity Measures HDR Engineering, Inc.' Riverside Reduce Profit by 20% and Change Personnel Assignments Birge Engineering, Inc.' Upland Change Personnel Assignments David Evans & Assoicates' Ontario Reduce Profit by 20% and Reduction in Hours ICF Jones & Stokes' Los Angeles Reduce Profit 10% and Reduce Overhead from 1.93 to 1.75 Ian Davidson Landscape Architecture Riverside Reduce Profit by 20% Leighton Consulting' Rancho Cucamonga Reduce Profit by 20% and Reduce Overhead from 1.999 to 1.719 Pacific Rail Enterprises' Riverside Reduce profit by 20% Prime Consultant 2 Sub -Consultant These austerity measures along with other clarifications in the scope of work have resulted in a $87,349 decrease in the cost from HDR's March 10, 2010. This total is only for the layover facilities and does not include the cost for the BNSF fourth main. The Commission is responsible for completing the CEQA environmental clearance for the BNSF fourth main track as an item of agreement in the recent term sheet between BNSF and the Commission. Per the agreement with BNSF, the fourth main track from Downtown Riverside to Highgrove is not needed for the PVL project and has been deleted from the PVL project scope. At the March 17, 2010 negotiations meeting, HDR was directed to provide a separate scope and cost to perform the environmental document preparation for the BNSF fourth main track. This work will need to be completed to accommodate BNSF's construction of the future fourth main track and for a future tail track into the Commerce Street facility, which would allow for layover of PVL commuter trains. Incorporating this scope into this contract will result in savings to the Commission, since it will not require an additional procurement process and the necessary environmental field work can be performed concurrently with that for the Commerce Street facility, thereby reducing additional field mobilization costs. The scope and cost for this work will remain separate from the layover facilities. HDR provided the scope and Agenda Item 7 cost for this work on March 18, 2010, and it has been reviewed by staff and found to be within the range of costs for similar type of work on other Commission projects. The cost for this work is $558,690. Based on the results of the evaluation committee and completion of the negotiations, staff recommends that Agreement No. 10-33-031-00 be awarded to HDR to perform environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project in the city of Riverside based on the submitted scope, schedule, and cost for the base amount of $2,140,325 plus a contingency amount of $259,675 to cover potential changes for a total not to exceed amount of $2.4 million. Financial Information In Fiscal Year Budget: Yes Year: FY 2009/10 FY 2010/11 + Amount: $250,000 $2,150,000 Source of Funds: Measure A Rail Funds Budget Adjustment: No GL/Project Accounting No.: 003822 81101 221 33 81101 Fiscal Procedures Approved: \1414,4:0y4, Date: 3/15/10 Attachments: 1) Aerial photos 2) Scope of services Agenda Item 7 !.# 1 $1 i/ it f 1 ...t.1.1,14 IF isii$1 .1-$31-11,1,1,34.) i - -7...-4 *III- .Z1 .7.i. eii, , .i...06, ,•,,,:, r A I.,. 1.1 ,,, op .•., al •;21.1, • 1 i .., 0 I , •,‘ ' 1 , 9 • ' a. ,......... . a itit ' I ' ' .1. I 111 • ) I 9 .. 1 ....I. `1 11 $1 . ! r I ... 1 II 1 1 t i • . I • 1 " 1 " .11. t .. '•,..11011 .1.1 0110 •I 11 .1.1 .1.1 . t I ' 7 43 .1? '.I 11 11 .• +•• ...is,,, 1,1, .11 ••1 , p • o •• - ,. ... . - . 11 .111 111 Mil • 4pf IWO • 11111111 `W`' - try, 'Yoe" • ikp • aft ' I vii.11111.1” sat Ai us 1, I . Orlin 11 7 ".1; itz ,. er 111 • toe . • 10 T. 1 ass 1 .411 1;1111 11 1.1.; 11 1-1 r• , I -.4 " ..113 11 Ian .1 3.1 •• 'AB 01 3.10 t; •;11,1 ry I-10 lisi1lI at, r, • . 1 4111i'l J ft ATTACHMENT 1 " 0 ) r • . la ‘,„lk ; a ) a • , NORTHERN LAYOVER FACILITY cia 0 Vann 41,0 • 0 Aka a° a° 4111111111‘1 v 0 o v D 1111.11111110 I0. 6140 1101 na II lige) $1111 WAD "1 tie --r`..T.1- .,...01.1••=rommaa9.••••. r•-r, rim 7' r ,i1111! '44 hi 4.41 o •---• 11) • ) ‘11V-111* * ; 11 S t - ori* • ...to • 1. INt 4 • 4/1/P' 11 -!'-; qrF I F.7. 11. Ai tir • "v. IIf '.r t VI II I • 7 'WI • a ' 1 'PS .I 1 -70/0 NV •.1 1 • 1 11 r Cal M.; it *94 1 SP ts-ra. r ii• 6 -1 I I .7.7.0 11 4 , -1 Inn. VIP -In 1110111 .111 ..11". .',1) - • i, -r• 1 • 11 on h .., pi ----, 0, II, • *71 rip -BM -11 --, 1 .., 'TV -1i1' it/ -s-v ammo . . -111 -•-• -roil --• • --r• -co . (' :111.111111 -.MB . , ,.c...-1 'U • 1 --.1 in, 7, •i i r .71, .1 'II TO 1 ., --ii rim i . - ,') - sit•L--` Mee • 1 I, 126' 7 • . 44 4 I I 1, • 9 MEV _ DATE _oeliCaPirood It-4. ore 1.01.01.1010•101.10.1.1. 1.1 14.0.1. ~tot 1.4.1.114. =•••41911, 0101.••••01. erot I 01143:21.6:0, WO =WO lear lalr721.99t." DT SOW 10 MAI* 10 OMNI° BY lei SOUTHERN CALFORHIA REGIONAL RAIL AUTHORITY SCRRA WOMB By DATC nor r, Boor ts Kc 0:9699111. 0,...ormatma I NW RIVERSOE LAYOVER FACLiTY SHEET 1 OF 3 CONTRACT NO. °RAVING NO. REVISION I SHE( T SCALE 1".60. W J N N I 0 1 . 1 i c 0 1 N 1 V M / / a / 1- i2m a .Y fur Q104 1n!P- rY�'pM 61 aC k I 1 i 3 i i 1, e 1411„N '" ri '. • 011111 Att � u AliplAXGUY/ wkDkGe " i} �• I M. i �.- a 1.:,3...._... 91 ;r m VIP 'AP OEM TION $44.4100. 41411r11•41•0 w1 •Nr. �'aY•• •IM,11• SNO � . ▪ Of/ovV �� y hp111.rw.� • 1•IPN 1 a.OVik %Me �00 lab I= KOS ■µtr kM 3140 e ');ts `. • 1.. r li •VI -VI 11* II • ,f :ll• .i 1 Kxa d ;kr,- o s' M *..�. 44 0#01111) .� 3440 ] JI Irv))' ,I "l, I Rl I , 3140 -1.1011110. 17 � '1 i ablei -i 1 �. I r °`m I I t •� r 1 I.1111." i1}�ilI1f 1f1 �f1 1 3 Ohl 314? f: 40, t4r :i7 •, .,,n I� r.1111111 y . a • =114 • II • ,. x`. a ¢ .Ij :, .1.3.. . - - L—•-----r - -- I i -a t f • �m 4%4 ,V • tMN -'- dtog 'T.... D -- a O e e Cif --7115;7 •t 14 .r.�_.1 / l (Iry -' ? II IL'fi\k#1 ri{1�651 I ] rr ! l ` �,y �/ �, w..4. "' «Z ,- WARN DT CN[OCTD sr INf6;15 iv !. 4 .1� a f? 66MMERCE,StR'EET COIOIpCI LAYOVER FACILITYu § Q LICKSSTANDARD :�� 7 `%'e 4 t ja T i 1 f l - ig r I 1 Aor , Ar V "-101.2 in It ���,. A�1 j�l i y ty a„ " e T, li�"4 .pia s iN<71 l t D SOUTHERN CALFORtMA REGIONAL RAC. AUTHORITY SCRRA M; { E+ Mt —11 ti a" I'` ; . 'I I111 ;1' r;_ i 1, y+ ) DATE ►HITNN r 6.200 LPN, INC EN4-`� " RIVERSIDE LAYOVER FACLITY SHEET 2 OF 3 CONTRACT NO. ORAwuO NO. REvIS10N ISNEET NO. 2 SCALE 1"•60' • 4 • • I (f) X I H•00 1 ... lik Mal ?? r I ' - -• %?? - ?.. flit I) pity 1 1 ;I .• , 1 W. 1 .' ; ., -I.4..._;-, I• ,• .. ,•s . ,'II4 i1..i.X', 1; ),1)':401*Iirl,47,---,• e. -,, ;-- •,,,),I ) i •I , 1 i1 i' A .» Ar a,I'*—"-••• ..'.•.t .‘tAv0 t'rJ' - .i7•nr4I,t t.' ?•:' s. S•• f• • • i I I lI ik f-`lt.;, ? . • • ; ; . Mi7/1 1 $,.74,) r P r !'' it -. tJt• l'.4.kii, "., .,. V'iij, ' ' ' ' 1 1 -, ' 7 040 • • Moe- t Di 1 a • N. IA Z' I = '1/ rr . ,.. .„,..„ .., 4,14 „.. , );..) r t , Future Tail Track (not included in this project) .••••• 51.10 0 ADD 46:0 ,t A COMMERCE STREET LAYOVER FACILITY Oise 1 11.1 -r ' ) I '— ?. 1 E•• TimIkk 140,*r; • •. a )01 ) I T" N lib ti,,V ,, • )) , , „Iv,- - ‘311i 11,1 1.1 ill -Wm + a\ 1- I ' 1 \ VI ‘ 1.14°It 1 ' 2. 1114 k'',,,, . ""'-‘_>, 4•111: 1 IM _Ller":1=41. :44, .4. sows* ibr IW•0 ACV oAVE 0(satellow -1,14 Opp 0110140 Okra SY 0110,10 ••••••11!` , ?A/ ?. ; Ole r ' • Sho 4:". i"`r•`''t tr ,Nk, I 414 r q. f.rm ••k • CZ/71 mem rim ••••i, " ?, • 1.; 2 31441:44:ak SP* ger as ft qv \ it* :77-r I f It) : 1k)' r ,111, v •••••• I a ..,16,„,v.• -001. • \ ' ••• la Dim r.vo - t 1 0 „ •143$1•15 1' 1 lei SOUTHERN CALFORMA REGIONAL RAN. AUTHORITY SCRRA , - - .. - 'II "---T- .1 1-zy OPPNOVE0 IrtIPUAlti• 0. 200. Ptinfil501.1 Ent OOuIMr " RIVERSIDE LAYOVER FACLITY SIPEE T 3 OF 3 CONTRACT Ho, OrtArmi0 REWSION I SHEET NO, 3 SCALE 1"•601 Attachment B Summary of Scope of Services Introduction and Overview of Services This document provides a summary of the proposed Scope of Services related to the development of two independent projects known as the Riverside Downtown Metrolink Northern and Commerce Street Layover Facilities located in the City of Riverside. This document provides a summary of the proposed Scope of Services for design and construction of the two projects as well as the scope of the proposed Services. The Scope of Services generally consists of the following: • Environmental Document Preparation and Permitting -Northern Facility - Commerce Street Facility -BNSF 4rth Main • Preliminary Engineering - Northern Facility - Commerce Street Facility • Final Engineering Design - Northern Facility - Commerce Street Facility • Design Support Services during Construction - Northern Facility - Commerce Street Facility Three sketches are provided which indicate the general areas of work. Project work includes upgrade of the grade crossing at Mission Inn Avenue. A summary schedule for this effort is provided as an attachment. The Project Team is lead by prime contractor HDR Engineering, Inc. (HDR) and supported by six subconsultant firms: • Birge Engineering, Inc.(Birge): utility design and coordination • David Evans & Associates (DEA): Surveying, mapping and right-of-way services • ICF Jones & Stokes (J&S): environmental document preparation and permitting • Leighton Consulting (Leighton): geotechnical investigation • Ian Davidson: landscape architecture • Pacific Railway Services: railroad signals and communications Related but Excluded Work The following projects within the vicinity of the Project are not a part of this Scope of Services: • City of Riverside Grade Separation Project at 3rd Street, shoofly track design. HDR will coordinate with the City; however, no design activities will be included in this scope. • BNSF Railway Company future fourth main track will not be designed as part of this project. HDR will coordinate with BNSF. • Tail track exiting the top end of the proposed Commerce Street Facility. Northern Facility The project location is on the northerly portion of the existing westerly depot track at the Riverside - Downtown Metrolink Station. The goal of this project is to relocate the existing layover track just south of University Avenue and add one parallel layover track in the existing layover right-of-way.. Commerce Street Facility The project location is on undeveloped property currently owned by the COMMISSION parallel to Commerce Street between Mission Inn Avenue and 3rd Street. The new tracks will connect to the existing layover tracks located between 9th street and Mission Inn Avenue. The existing layover tracks are active and the project design will be based on the layover tracks remaining operational during construction. The Project will be designed and constructed to accommodate the planned City of Riverside 3rd Street grade separation project which is anticipated to occur during or after the proposed start of construction of this project. The 3rd Street grade separation project is planned to include the placement of a shoofly to route the BNSF mainline tracks around the 3rd Street crossing. This shoofly would encroach onto THE COMMISSION's property and would impact the last 550 feet of the layover facility. Therefore, this phase will anticipate the shoofly and thus would shorten the layover facility. The goal of this phase is to provide environmental permitting documents and design for the full length of the facility to 3rd Street, but the construction plans will be developed with the facility terminating 550 feet prior to 3rd Street. This phase will require the grade crossing modifications at Mission Inn Avenue along with CPUC coordination and development of CPUC application materials. Coordination with the CPUC shall commence as early as practicable. Construction documents will delineate future work required for ultimate build -out of the Commerce Street Facility. HDR Engineering, Inc. RCTC Riverside Downtown Layover Facility Scope of Services Page 2 of 4 Outline of Scope of Services This detailed Scope of Services for each project are generally organized as follows: 1.0 Management and Administration 1.1 Project Management 1.2 Project Administration 1.3 Project Control 1.4 Training and Safety 2.0 General Tasks, Coordination, and Planning Elements 2.1 Agency, Utility, Freight Railroads, and Jurisdiction Interface Requirements 2.2 Permits 2.3 Environmental Assessment / Environmental Clearance 2.4 Surveying and Mapping 2.5 Right -Of -Way Definition and Certification 2.6 Baseline Analysis, Data Collection, Data Review, and Existing Utility Locations 2.7 Civil/Structural Design Criteria, Construction Methods, and Track and Systems Design Criteria 3.0 Engineering Reports, Studies and Technical Memoranda 3.1 Layover Facility Layout and Track Alignment Study 3.2 Layover Facility Requirements Technical Memorandum 3.3 Structural Studies — Riverside Canal 3.4 Utility Technical Memorandum 3.5 Preliminary and Final Geotechnical and Hazardous Materials Investigations and Laboratory Analysis • Initial Site Assessment (ISA) • Records Review • Site Reconnaissance • Interviews • Report Preparation • Geotechnical Study • Geotechnical Impact Evaluation Study Report • Preliminary Engineering Analyses and Report Preparation • Geotechnical and Geoenvironmental Investigation for PS&E Phase • Prefield Activities • Field Activities • Geotechnical Report • Geoenvironmental Report • Geotechnical Construction Support Services 3.6 Traffic Report 3.7 Value Engineering Reports 3.8/3.9 Preliminary and Final Engineering Reports • Preliminary Engineering Report Contents • Final Design Report Contents 4.0 Plans, Specifications and Estimates • Design Submittals and Reviews • Specific Features of Civil/Structural Plans • Specific Features of Utility Plans • Specific Features of Grade Crossing Plans HDR Engineering, Inc. RCTC Riverside Downtown Layover Facility Scope of Services Page 3 of 4 • Specific Features of Systems Plans 4.1 Conceptual Design (10%) 4.2 Preliminary Design (30%) 4.3 Interim Design (60%) 4.4 Pre -Final Design (90%) 4.5 Final Design (100%) 4.6 Camera -Ready Design • Cost Estimates • Specifications 5.0 Bid /Award and Design Services during Construction 5.1 Bid Award Support 5.2 Bid Support 5.1.2 Addenda and Clarifications 5.1.3 Conformed Documents 5.2 Design Services during Construction 5.2.1 Requests for Information 5.2.2 Change Order Review and Design Revisions 5.2.3 Contractor Submittals and Shop Drawings 5.2.4 Non -Conformance Reports 5.2.5 Systems Inspection, Testing and Start -Up 5.2.6 Claims Review and Response 5.2.7 As -Built Drawing Development 5.2.8 Project Close Out 5.3 Construction Planning and Constructability Review 5.4 Construction Staking HDR Engineering, Inc. RCTC Riverside Downtown Layover Facility Scope of Services Page 4 of 4 • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Edda Rosso, Capital Projects Manager Richard Bryan, Bechtel Rail Projects Manager Erik Galloway, Bechtel Project Coordinator THROUGH: Cathy Bechtel, Project Development Director SUBJECT: Agreement for Environmental Document Preparation, Preliminary and Final Engineering Design, and Construction Support Services for the Riverside Downtown Metrolink Layover Facility Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve the consultant selection process and award Agreement No. 10-33-031-00 to HDR Engineering Inc. (HDR), pending completion of negotiations, to provide environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project in the amount to be agreed upon between the Commission and the consultant at the end of negotiations (to be provided at the Committee meeting); 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total not to exceed amount as requested for the project; 4) Authorize the Executive Director, pursuant to legal counsel review, to execute non -funding related agreements necessary for the design and construction of the project; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: The Riverside Downtown Metrolink station acts as layover facility for a number of Metrolink trains operating on the Riverside, Inland Empire -Orange County (IE0C), and 91 lines. Since the station is at the end of the line, each evening most of these trains need to be stored and serviced overnight at the station. The station has the capability to store train sets on the station tracks on both the northern and southern sides of the station. In addition, there is currently a single storage track on the northern side to store trains and two short tracks on the southern side along Agenda Item 7 2 Commerce Street to store and service trains overnight. The designated storage tracks on the southern side include the necessary utilities, train staff parking, and storage of consumables for the trains' maintenance and operations. Currently, all available storage space at the Riverside Downtown station is being utilized and there is limited flexibility for current staging of trains and no opportunity for adding train service without developing storage capacity at the station. This project seeks to expand this capacity on available Commission owned property. Historically, these types of projects require a long lead time prior to construction, so it is important to begin the process to meet current and future needs. Working together for the past year, the Southern California Regional Rail Authority (SCRRA) in conjunction with Commission staff performed a conceptual engineering study to expand the Riverside Downtown Metrolink station to allow for the layover of the current train sets currently and to accommodate future trains. In addition, the design allowed for the connection of the Perris Valley Line with both the current access on the Burlington Northern Santa Fe Railroad (BNSF) third track and future access on the proposed fourth main track. The facility will be designed to accommodate layover capacity for all the routes serving Riverside. The proposed facility would place a second track within the northern layover area to allow for the proper storage and light maintenance of two trains sets (six to seven cars per set) with connections to the necessary utilities. This phase of the work is relatively straightforward and can be expedited to meet existing demands and allow more flexibility with trains parked at the station. The major portion of the expansion will occur on the southern side of the BNSF tracks along Commerce Street. The existing layover tracks will be extended across Mission Inn Avenue onto Commission -owned property and extend northerly to 3,d Street. This expansion will include the placement of three sets of layover tracks with the capability of storing five train sets (six to seven cars per set). This facility will include the necessary utilities and infrastructure for the secure layover of the trains. This portion of the project will require close coordination with the city of Riverside and the Public Utilities Commission (PUC) for the necessary grade crossing improvements at Mission Inn Avenue. The project will be designed for the full length to 3`d Street but the construction of the facility will be phased depending on funding conditions and the schedule for the 3`d Street grade separation project. Discussions were held between SCRRA and Commission staff to determine how the design of the layover expansion could be expedited, especially for the northern area. It was agreed that the Commission has the capabilities to expedite the procurement of a design engineer to perform the environmental document preparation, preliminary engineering, final engineering design, and construction support services. Agenda Item 7 • 3 • Selection Process A request for qualifications (RFQ) for environmental document preparation, preliminary engineering, final engineering design, and construction support Services for the Riverside Downtown Metrolink layover facility project was issued on November 20, 2009, and a pre -submittal conference was held on December 8, 2009, to present the project and answer any questions for the interested parties. The consultants' statements of qualifications (SOO) were submitted on December 22, 2009. An evaluation committee was appointed to review the two submitted SOQ's received and to conduct interviews of the firms. The evaluation committee members included representatives from the Commission staff, Bechtel, SCRRA, and the city of Riverside. After evaluation of the SOQ's by the Evaluation Committee, both firms were notified on January 11, 2010, that they would be interviewed. The firms included: • HDR Engineering, Inc. • JL Patterson & Associates, Inc. Interviews of firms were conducted on January 28, 2010, and HDR was selected by the evaluation committee as the most qualified consultant. Commission staff requested that HDR submit a scope, cost, and schedule proposal for environmental document preparation, preliminary engineering, final engineering design, and construction support services for the Riverside Downtown Metrolink layover facility project. Staff received HDR's scope, cost, and schedule proposal on February 26, 2010, and negotiations commenced on March 1, 2010. HDR was provided corrections and comments on its scope, cost, and schedule at the March meeting and was requested to revise and address the corrections and comments. A subsequent meeting was held on March 10, 2010, to discuss the revisions made by HDR and to continue the negotiation process. Staff is evaluating HDR's proposed costs, rates, and fees for the project to ensure they are comparable to other consultants for similar types of work and that the costs reflect the current economic conditions. It is staff's intent to complete the negotiation process prior to the March 22, 2010, Committee meeting, and at that time, provide an updated agenda item detailing the results of the negotiation process and provide a recommendation for award to HDR. This item will include the agreed scope, cost, and schedule and will provide the Committee with the details from the negotiation process. If staff is unable to reach an agreement with HDR at the completion of the negotiation process, staff will request the second ranked consultant, JL Patterson Agenda Item 7 4 & Associates, Inc., to submit its scope, cost, and schedule for review and negotiations. This will result in the recommendation for award being rescheduled to the April Committee/ May Commission cycle. Financial Information In Fiscal Year Budget: Yes Year: FY2009/10 FY2010/1 1 + Amount: $250,000 TBD Source of Funds: Measure A Rail Funds Budget Adjustment: No GL/Project Accounting No.: 003822 81 101 221 33 81 101 Fiscal Procedures Approved: \hto Date: 3/15/10 Agenda Item 7 • • 5 • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Edda Rosso, Capital Projects Manager Richard Bryan, Bechtel Rail Projects Manager Stephen Bennett, Bechtel Construction Manager THROUGH: Cathy Bechtel, Project Development Director SUBJECT: Amendment to Agreement with Owen Design Group, Inc. to Provide Construction Management Services for the North Main Corona Parking Structure and the Perris Multimodal Facility STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 08-33-011-02, Amendment No. 2 to Agreement No. 08-33-011-00, with Owen Design Group, Inc. (Owen Group) for construction management services for the North Main Corona (NMC) parking structure and the Perris Multimodal (PMM) facility in a not -to -exceed amount of $490,000; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Approve an expenditure transfer of $490,000 from the Riverside Downtown layover facility right of way acquisition to the PMM facility construction management; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: At its September 2007 meeting, the Commission awarded Owen Group an agreement to perform construction management services to support pre -bid and bid phases, and to manage construction of the NMC parking structure and PMM facility projects. The agreement was executed and work started on October 15, 2007. The contract for the construction of the NMC parking structure was awarded to McCarthy Building Companies on November 14, 2007, with an authorized amount of $21.2 million. Work started on January 2, 2008, and was substantially completed on June 19, 2009. Closeout activities involving contract change order negotiations are nearing completion and are forecast to be complete by Agenda Item 8 6 April 15, 2010. The design engineer for the NMC parking structure was Stantec Architects. The contract for construction of the PMM facility was awarded to LA Engineering on November 12, 2008, with an authorized amount of $5.4 million. Work started on January 5, 2009, and was substantially completed by January 10, 2010. Close out activities, including change order negotiations, are underway and are forecast to be complete by June 30, 2010. Psomas was the design engineer for the PMM facility. Numerous changes on both construction projects and the delayed start of construction work on the PMM facility have increased the effort required by the construction manager (CM). Amendment No. 1 in the amount of $345,000 was approved by the Commission on September 9, 2009, and provided for additional services through the then estimated completion and contract closeout date of March 2010, for NMC parking structure and PMM facility. The services required in Amendment No. 1 are described below: At the North Main Corona Parking Structure • Additional field testing services for: o Testing of unsuitable material at the east road for replacement of a section of Blaine Street; and o Unanticipated costs for steel welding inspection for the pedestrian bridge. • Extensive revisions to the plans to accommodate unforeseen field conditions and to improve the functionality of the parking structure. This included revisions to the south road to widen and improve the grade from that of the original plan. • Completion of design elements such as Closed Circuit Television (CCTV), which were only generally described in the bid documents, and additional engineering was required to upgrade the CCTV to a digital system that will provide an improved path for future Commission CCTV expansion. • Unanticipated source inspection requirements for precast concrete panels that were fabricated in Bakersfield and required source inspection to minimize the risk of delay due to quality issues. • Construction delays due to storm water interceptor conflicts with existing storm water drainage and installation of waterline blow off valves in three locations that prolonged the schedule at NMC parking structure and resulted in extensive field -engineered revisions. • The close out process has been extended due to the effort to evaluate change orders for the construction delays described above. Agenda Item 8 • • • 7 At the Perris Multimodal Facility • The original schedule contemplated that the NMC parking structure and PMM facility would be constructed in parallel. However, work at the PMM facility did not get started until the NMC parking structure project was 80% complete. The ability to share resources as originally anticipated did not occur. • Major changes on the project include extending the platform 100' to a total length of 900' and the addition of the Orange Empire Railway Museum IOERM► work. • Widening of San Jacinto Avenue between C Street and the BNSF tracks to match work underway on the other side of the tracks by the city of Perris. • Underestimated costs for compaction and concrete cylinder testing. • Revisions in the electrical design to better serve the project and future Perris Valley Line work. • Additional work associated with late agreements with Southern California Edison for the undergrounding of utilities. • Work required at residences that are located adjacent to the C Street improvements, which were insufficiently detailed on the plans due to the late receipt of temporary construction easement information and not fully coordinated in the design phase. Additional Services For Amendment No. 2 Additional construction management support efforts beyond what was originally anticipated in Amendment No. 1 have occurred thereby requiring Amendment No. 2 in the amount of $490,000. The reasons for this increase are itemized below: At North Main Corona Parking Structure ($150,0001 • Additional support for processing contract change orders and project closeout activities. There have been numerous changes and delay analyses that required review and reconciliation assistance from Owen Group. The time required to resolve these contract close out matters was underestimated. At the Perris Multimodal Facility 0340,0001 • Major changes on the project included revision of the electrical and CCTV requirements and a traffic signal interface with BNSF. o Electrical revisions that were identified in Amendment No. 1 have required extensive changes to the construction details, which were coordinated by the CM and underestimated in Amendment No. 1. Agenda Item 8 8 o CCTV revisions and unforeseen difficulties in configuration and integration of the system with the Commission security control center at the Riverside Downtown station have required more resources than was anticipated. o The interface between the newly installed traffic signals at 4t'' Street/SR 74 and C Street and BNSF's grade crossing signals was not completely coordinated during design and has resulted in additional time by the CM to assist in resolution on this issue. • Revisions to the temporary construction easements along the properties on C Street were required. o Revising details for masonry retaining walls, boundary fencing and gates, and landscaping changes have required extensive time by the CM to coordinate and resolve. • The fencing required along the north and south boundaries of the site was redesigned to comply with the city of Perris' Conditions of Approval. These requirements were not detailed in the original plans. The CM prepared the details for these changes. • Late requirements by RTA for digital bus signage required additional resources for the design of signage supports and provision for electrical power. The CM developed these revisions and coordinated its review and approval by the design engineer. • Improvements to the platform design were undertaken by the CM to facilitate maintenance. • Numerous changes described in Amendments No. 1 and 2 need to be negotiated and settled with the contractor. Time Adjustment The time set forth in the original agreement was insufficient due to the later than anticipated start of the PMM facility project. The original completion date of CM services of August 31, 2009, was revised to March 31, 2010, by Amendment No. 1. As CCTV configuration and traffic signal interface issues remain at PMM facility, this amendment will further extend the time to August 31, 2010, to complete the work at PMM facility and to cover charges that might extend beyond the completion of CM services. Recovery of Costs Much of the CM's work at NMC parking structure and PMM facility has been completing missing design details or correcting design errors. For example, delays in the construction at the NMC parking structure were largely due to incomplete design of a storm water interceptor system. Similarly, drainage, platform, electrical, and traffic signal details for the PMM project were incomplete and Agenda Item 8 • 9 required the CM to resolve. A large percentage of the additional costs are due to the following: 1. Owen Group needed to perform significant redesign for the PMM facility project. Staff is assessing opportunities under the errors and omissions clauses of the design agreement and will work with legal counsel to evaluate a basis for recovery; 2. Owen Group needed to perform significant redesign for the NMC parking structure project. Staff is assessing opportunities under the errors and omissions clauses of the design agreement and will work with legal counsel to evaluate a basis for recovery; and 3. The later start by LA Engineering on construction of the PMM facility resulted in a schedule delay. Staff has assessed $52,700 in liquidated damages against LA Engineering, a 31-day delay at $1,700 per day. Staff is also negotiating any reimbursements due from OERM and RTA, which are expected to be minimal. SUMMARY: The out of scope items and additional work required by the CM team have resulted in the depletion of the original agreement and amendment's funding earlier than expected. The original agreement and the cost estimate provided by Owen Group anticipated a project completion date of August 31, 2009. Due to the late start of the PMM facility, the extended change order negotiations at the NMC parking structure, and the additional work required at both projects, this proposed amendment will extend the agreement term to August 31, 2010. The additional funding required is summarized in the table below: Project Amount North Main Corona parking structure $150,000 Perris Multimodal facility $340,000 Grand Total $490,000 The FY 2009/10 rail capital budget includes $500,000 in right of way acquisition expenditures for the Riverside Downtown layover facility expected to be expended during the year. Accordingly, staff recommends the Commission approve an expenditure transfer of $490,000 from the layover facility project to the PMM facility project. Agenda Item 8 10 Financial Information In Fiscal Year Budget: No Year: FY 2009/10 Amount: $490,000 Source of Funds: 1989 Measure A Rail and Commuter Assistance Funds Budget Adjustment: Yes (transfer only) GLA No.: 003808 81302 221 33 81301 $ 150,000 003816 81302 221 33 81301 $ 340,000 003822 81401 221 3381401 ($ 490,000) Fiscal Procedures Approved: `/_/L","jtiLvt Date: 3/15/10 Agenda Item 8 • • 11 i • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Edda Rosso, Capital Projects Manager Richard Bryan, Bechtel Rail Projects Manager Stephen Bennett, Bechtel Construction Manager THROUGH: Cathy Bechtel, Project Development Director SUBJECT: Amendment to Agreement with LA Engineering to Increase the Contract Expenditure Authorization for the Perris Multimodal Facility STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 09-33-046-01, Amendment No. 1 to Agreement No. 09-33-046-00, with LA Engineering to increase the expenditure authorization for the Perris Multimodal (PMM) facility by $262,000, increasing the total not to exceed contract amount to $5,662,000; 2) Approve addition of four external extra work requests: two by the city of Perris, one by Southern California Regional Rail Authority (SCRRA), and one by Riverside Transit Agency (RTA); 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 4) Authorize Executive Director to execute necessary contract change orders to implement these requests; 5) Approve an increase to budgeted revenues of $140,000 and an expenditure transfer of $262,000 from the Riverside Downtown layover facility right of way acquisition to PMM facility construction; and 6) Forward to the Commission for final action. BACKGROUND INFORMATION: At its September 12, 2007 meeting, the Commission authorized staff to advertise for construction bids for the Phase I — PMM facility adjacent to C Street, between State Route 74 and San Jacinto Avenue in Perris. The PMM facility will serve as a future Metrolink Perris Valley Line commuter rail station, therefore, the Commission is the project lead for development, design, and construction of the multimodal facility in coordination with RTA. The Phase I work included construction of a multimodal facility with a 141-space park and ride lot, a bus plaza with eight Agenda Item 9 12 loading bays, closed circuit television (CCTV) system, and a transit platform for future Metrolink access. Also included as required by the city of Perris were street improvements along C Street, a traffic signal at the intersection of C Street and SR-74, undergrounding of Southern California Edison (SCE) and Verizon utilities, widening of San Jacinto Avenue, and landscaping. The project was advertised on October 1, 2008, and bids were opened on November 3, 2008, with LA Engineering submitting the lowest responsive and responsible bid for the project. At its November 12, 2008 meeting, the Commission awarded Agreement No. 09-33-046-00 to LA Engineering for construction of the PMM facility with a contract amount of $4,904,841 with a contingency of $495,159 for a total not to exceed contract expenditure authorization of $5.4 million. Additions of Scope A number of major scope changes occurred during construction that will require an increase in the contract authorization. These are items outside the normal scope of contingency and include the following: 1. Modify the platform design to accommodate future operations by the Orange Empire Railway Museum (GERM) at the PMM facility. This out of scope change was requested by the city of Perris. The total estimated cost for this additional work is $127,000; 2. Widen San Jacinto Avenue between C Street and the BNSF tracks by seven feet to its ultimate width, at the request of the city of Perris. The total estimated amount for this additional work is $36,000; 3. Lengthen the platform from 800 feet to 900 feet to accommodate full train length plus a safety margin, per updated SCRRA standards. The total amount for this change is $86,000; and 4. Placement of digital bus information signs at the request of RTA. The total amount for this change is $13,000. The total of these external scope changes amounts to $262,000 for which additional authorization for expenditure is sought. Additional External Scope and Estimated Costs Item 1 - GERM At the request of the city of Perris, on behalf of GERM, modifications were made to the new platform to accommodate OERM's future operations at the transit center. This work was the subject of a memorandum of understanding (MOU) between the Agenda Item 9 • • • 13 • • Commission and the city of Perris formalized by Agreement No. 09-33-070-00, which was approved at the May 13, 2009 Commission meeting. This provided for reimbursement by the city of Perris for the estimated costs of the OERM revisions totaling $150,000. The MOU requires reimbursement of the actual construction costs. The current estimated cost of construction is $121,000. (Construction Management and Commission staff costs are not included in this amount). A contingency of $6,000 (5%) was added to this value to cover any additional costs that might arise as the change orders are finalized and/or claims are resolved. The total estimated added allotment for this item is $127,000. The actual construction cost is reimbursable from the city of Perris. Item 2 - San Jacinto Avenue Widening The planned widening of San Jacinto Avenue was increased by seven feet to its ultimate width at the request of the city of Perris, who indicated that such further widening would be a condition for the future PVL project. Performing the work as part of this project avoids additional costs and traffic disruptions during the PVL construction. The revision matches the work on the east side of the BNSF tracks, currently under construction as part of the city's D Street project. This increased widening also required the relocation of a Time Warner (TW) facility. The costs of this work are estimated to be $25,000 (widening) + $8,000 (TW relocation) _ $33,000. The final costs for this work have not yet been determined and are subject to further negotiations with the contractor. Therefore, a contingency amount of $3,000 has been added to cover any additional costs that might arise from these negotiations. The total estimated allotment for this item is $36,000. Item 3 - Lengthen Platform 100 Feet In late 2009, SCRRA revised its standards for platform design after the construction of the PMM facility had commenced. Coordination with the PVL designer revealed that the planned platform length of 800 feet would not be in compliance with the new design requirements. The platform was lengthened by 100 feet to meet the new standard. This revision resulted in civil and electrical changes that are estimated to cost $28,300 (civil) + $53,200 (electrical) _ $81,500. Final costs for these changes are still to be agreed with the contractor and a contingency amount of $4,500 is added for possible additional costs. The total estimated allotment for this item is $86,000. Item 4 RTA Bus Signs RTA requested installation of digital signs on the canopies along the platform to alert customers of the estimated time of arrival for buses and the location for boarding. This request came near the end of construction and was added by contract change order (CCO). An understanding was reached with RTA to Agenda Item 9 14 ITEM DESCRIPTION 1 OERM 2 :San Jacinto Widening 3 :Lengthen platform 4 RTA Bus Signs reimburse these costs, which are estimated to be $11,300. The CCO is based on actual cost of time and materials and a contingency amount of $1,700. The added estimated allotment for this item is $13,000. (Construction Management and Commission staff costs are not included in this amount). The actual construction cost is reimbursable from RTA. SUMMARY: The total of the increased expenditure authorization is $262,000. However, an estimated amount of $140,000 (for items 1 and 4) is reimbursable from the city of Perris and RTA, leaving an estimated net cost increase of $122,000 to be funded by Rail Proposition 19 funds and Measure A funds. The FY 2009/10 rail capital budget includes $5 million in right of way acquisition expenditures for the Riverside Downtown facility that are not expected to be expended during the year. Accordingly, staff recommends the Commission approve an expenditure transfer of $262,000 from the layover facility project to the PMM facility project. ADDITIONAL EXPENDITURE AUTHORIZATION for EXTERNAL SCOPE EST COST { CONT TOTAL _.. _-. y 121,00000 $6,000.00 $127,000.00 $33,000.00) $3,000.00! $36,000.00 $81,500.001 $4,500.00 $86,000.00 $11,300.00 $1,700.00' $13,000.00 _. $262,000.00 ' This adjusts the total expenditure authorization for the PMM facility to $5,662,000. Current Project Status The PMM facility was opened to the public on January 10, 2010, and bus service started the same day. Staff continues to work with LA Engineering on punch list items, contract close-out and claims issues. Staff proceeded with the implementation of the four listed items utilizing existing contingency. With the addition of the funds requested in this agenda item, staff currently forecasts that the project will be completed within the originally approved contract amount and the revised contingency. However, there are final issues to be resolved with the contractor and a further request for contingency may be needed. Agenda Item 9 • • • 15 Financial Information In Fiscal Year Budget: No Year: FY 2009/2010 Amount: $262,000 City of Perris $127,000 Source of Funds: RTA $13,000 Rail Prop 1 B Funds $79,000 Budget Adjustment: Yes Measure A Funds $43,000 003816 416 41203 221 33 41203 $140,000 GLA No.: 003816 81301 221 33 81301 $262,000 003822 81401 221 33 81401 ($262,000) Fiscal Procedures Approved: \*.,, Date: 3/15/10 Agenda item 9 16 • • RIVERS/DE COUNTY TRANSPORTATION COMM/SS/ON DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Robert Yates, Multimodal Services Director THROUGH: John Standiford, Deputy Executive Director SUBJECT: Agreement with Sunesys LLC for the No Cost Provision of Fiber Optic Services in Exchange For a No Cost License Agreement STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 10-25-086-00 with Sunesys LLC for the provision of no cost fiber optic services in exchange for a no cost license agreement; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: Consistent with security installations at the Commissions' commuter rail stations, nine closed circuit televisions (CCTV) cameras were installed at the Perris Multimodal (PMM) facility as part of the construction contract. Each camera is intended to transmit a signal to a digital video recorder (DVR) machine located on site in a refrigerated cabinet at the Perris Multimodal facility. The recorded data is then intended to be transmitted to the Riverside Downtown station where all CCTV installations are monitored by security personnel. DISCUSSION: In researching available options to transmit the recorded data to the Riverside Downtown station, staff investigated three options: 1. Utilization of existing DSL services; 2. Utilization of high bandwidth internet services; and 3. Entering into a mutual agreement with Sunesys LLC for use of dark fiber. In researching the three options, it was determined that DSL service would not provide the bandwidth necessary for optimum viewing of the camera data resulting in a degraded security installation. It was also determined that high bandwidth Agenda Item 10 17 internet service, while of sufficient capacity for proper camera operation, was prohibitively expensive at over $2,700 per month. The third option was a mutual agreement with Sunesys where, in exchange for a no cost license agreement for the installation of a dark fiber conduit crossing Commission -owned property at the PMM facility, fiber optic bandwidth would be made available by Sunesys at no cost to the Commission. Sunesys is a company that provides 'dark fiber' or fiber optic services to customers in the Perris area. Sunesys network is also located along Vine Street in Riverside, which means that the connection to the Riverside Downtown station should be relatively simple. Accordingly, it was determined by staff that a connection to the Sunesys fiber optic system could be made that would provide sufficient bandwidth necessary for viewing the real-time video images at the Riverside Downtown station. In reviewing this option, staff also noted that no other fiber optic company is in the area, therefore, the only competition to Sunesys would be the previously mentioned high bandwidth internet connection. The staff recommends that the Commission approve the mutual agreements with Sunesys for the no cost license agreement and no cost provision of fiber optic services. Approval of this recommendation will allow staff to complete the security installation at the PMM facility and provide security services in a most cost efficient manner. Financial Information In Fiscal Year Budget: N/A Year: FY2009/10+ Amount: $0 Source of Funds: None Budget Adjustment: No GL/Project Accounting No.: Fiscal Procedures Approved: \lit,,4,,,,, Date: 3/15/10 Attachments: 1) License Agreement Between the Commission and Sunesys, LLC. 2) Sunesys Dark Fiber License Agreement Agenda Item 10 • • 18 ATTACHMENT 1 LICENSE AGREEMENT BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND SUNESYS, LLC This License Agreement ("Agreement") dated March _, 2010, ("Effective Date"), is made by and between RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("RCTC") and SUNESYS, LLC, a Delaware limited liability company ("SUNESYS"), as described below with respect to the following facts: RECITALS WHEREAS, RCTC is the owner of certain real property located in the City of Perris, County of Riverside, State of California, including a multimodal facility located at 201 C Street, Perris, California (the "RCTC Facility"); and WHEREAS, SUNESYS is a competitive telecommunications carrier licensed by the California Public Utilities Commission; and WHEREAS, SUNESYS has requested a license to allow it to construct, use, maintain, operate, alter, add to, repair, replace, reconstruct, inspect and remove at any time and from time to time an underground fiber optic communications system (hereinafter referred to as "System"), consisting of wires, underground conduits, cables, vaults, maintenance holes, handholes, and including enclosures, markers and concrete pads and other appurtenant fixtures and equipment necessary or useful for transmitting data, in, on, over, under, across and along that certain real property in the City of Perris, County of Riverside, State of California, described in Exhibit "A," and in the location shown on the drawing attached hereto as Exhibit "B". RCTC wishes to grant the requested license, subject to the terms and conditions set forth below. NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement and other valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, RCTC and SUNESYS agree as set forth below. 1. Grant of License. Subject to the terms and conditions set forth herein, RCTC hereby grants to SUNESYS a non-exclusive, revocable License to enter upon the RCTC's property in order to construct, use, maintain, operate, alter, add to, repair, replace, reconstruct, inspect and remove at any time and from time to time, the System in, on, over, under, across and along that certain real property in the City of Perris, County of Riverside, State of California, described in Exhibit "A," and in the location shown on the drawing attached hereto as Exhibit "B". The License granted to SUNESYS is (i) subject to all existing covenants, conditions, reservations, contracts, leases, licenses, easements, encumbrances, restrictions of rights of way with respect to the RCTC Facility, whether or not of record; and (ii) conditioned upon SUNESYS' complying with all of the terms and conditions of this Agreement and RCTC's terms and conditions regarding the performance of work upon the RCTC Facility. 19 2. Term and Termination. 2.1 Term. The term of this Agreement shall begin upon the Effective Date and shall expire twenty (20) years thereafter ("Term"). Upon the expiration of the initial term, this Agreement shall be renewed for up to five (5) additional terms of five (5) years each upon the terms and conditions set forth herein, unless either RCTC or SUNESYS shall have given the other party at least one hundred eighty (180) days written notice of its intent not to renew this Agreement prior to the expiration of the initial term or the then current renewal term. 2.2. Termination. 2.2.1. Termination for Material Breach. In the event of a material breach of this Agreement, the aggrieved party must give written notice to the breaching party which shall specify the nature of such breach, and shall further state that the breaching party shall have ten (10) days from the effective date of such notice to cure such breach, or if such cure cannot be completed within such period, such additional time as is reasonably determined by the aggrieved party to be necessary for the breaching party to complete such cure, at which time, if the breach is not cured, this Agreement shall be terminated immediately. 3. Conditions Precedent — As conditions precedent to this Agreement, SUNESYS shall have fulfilled the following requirements: 3.1. Approval of Plans. — SUNESYS shall have prepared plans and specifications for the portions of the Work to be performed on RCTC's Facility, and shall have obtained written approval of plans and specifications pertaining to the portions of the Work to be performed on RCTC's Facility from ROTC. 4. Improvements. 4.1. SUNESYS' Installation of Improvements. SUNESYS shall construct and install the Improvements as specified in Article 1 of this Agreement. 4.2. RCTC's Use of and Access to Improvements. During the Term, SUNESYS shall provide to RCTC, under the terms of a separate dark fiber license agreement (the "Dark Fiber License Agreement") which the parties are entering into contemporaneously herewith, use of two (2) strands of fiber being installed in that portion of the System shown on the drawing attached hereto as Exhibit B. 4.3. Ownership of Improvements. SUNESYS shall be the owner of its own personal property and equipment installed and used in the conduct of its business ("Equipment"), with all rights associated therewith, unless such Equipment shall have been abandoned by SUNESYS and ownership assumed by RCTC. 20 • • • 5. Consideration. In consideration of the License granted herein, SUNESYS shall enter into and perform its obligations under the terms of the separate Dark Fiber License Agreement between SUNESYS and RCTC, and adhere to all other applicable provisions of this Agreement. 6. Operational Provisions 6.1. Permitted Use. SUNESYS shall use the RCTC Facility solely for the purpose of completing the Work, and providing telecommunications services to its customers ("Permitted Use"). Neither the RCTC Facility nor the portions of the System located on RCTC's Facility shall be used by SUNESYS for any other purpose. Nothing herein shall be deemed to limit SUNESYS' use of any portion of the System not located upon RCTC's Facility for any purpose, as long as such use does not interfere with RCTC's use and enjoyment of the portion of the System used to provide services to RCTC under the Dark Fiber License Agreement. 6.2. SUNESYS' Access to RCTC Facility. SUNESYS' access to the RCTC Facility shall be subject to all procedures reasonably adopted from time to time by the RCTC ("Access Procedures"). Only SUNESYS' employees, agents, and/or contractors retained by SUNESYS and who are identified in writing to RCTC by SUNESYS from time to time shall be permitted access to the RCTC Facility. SUNESYS shall be permitted to access the RCTC Facility twenty-four (24) hours a day, seven (7) days a week for emergency purposes as reasonably determined by SUNESYS. 6.3. Maintenance and Repairs. 6.3.1. During the Term, SUNESYS shall maintain and repair the System in good order, condition and repair. 6.3.2. Maintenance, Repair and Restoration — System. 6.3.2.1 Maintenance - RCTC Facility. If SUNESYS fails to maintain the System in good order, condition and repair, RCTC shall give SUNESYS notice to do such acts as are reasonably required to maintain the System. lf, within three (3) days thereafter, SUNESYS fails to promptly commence such work and diligently prosecute it to completion, then, in addition to its other remedies under this Agreement, RCTC shall have the right to do such work and expend such funds at the expense of SUNESYS as are reasonably required to perform such work. Any amount so expended by RCTC shall be paid by SUNESYS promptly upon demand and interest shall accrue on any unpaid portion of such amount at the prime rate then established by Bank Of America N.E.S.& A plus two percent (2%) per annum, from the date of such work, but not to exceed the maximum rate then allowed by law. 21 6.3.2.2. Repair and Restoration. If SUNESYS, its agents or contractors cause any damage to RCTC's roads, infrastructure or other property and improvements (collectively "Property") in connection with the exercise of this License, SUNESYS shall repair and restore the Property to its original condition prior to SUNESYS' use of the RCTC Facility pursuant to this License. SUNESYS shall perform the repair and restoration required hereunder prior to the expiration of this license, or within three (3) days of the earlier termination of SUNESYS' rights hereunder. Relocation Right. Notwithstanding any provision of the Agreement to the contrary, RCTC shall have the right to require that SUNESYS permanently relocate the System from the initial location upon the RCTC Facility to another available location on the RCTC Facility at any time during the Term if deemed necessary by RCTC pursuant to the provisions of this Article 7. In order to exercise this right of relocation, RCTC shall deliver to SUNESYS at least six (6) months prior written notice (the "Relocation Notice") setting forth RCTC's exercise of such right and a description of the proposed relocation site (the "Proposed Site"). The Proposed Site shall be subject to SUNESYS' reasonable approval as a site feasible for the operation of System. SUNESYS shall have the right to disapprove of the new site if in SUNESYS' good faith judgment the new site will not be suitable for SUNESYS' use and operations as contemplated on the Effective Date. RCTC shall reimburse SUNESYS for the reasonable costs incurred by SUNESYS in relocating the System at RCTC's request. 7. Permits and Regulations. SUNESYS shall comply with all applicable laws, ordinances and regulations, including but not limited to all applicable environmental and safety requirements, and shall be responsible for securing any required approvals, permits and authorizations from any federal, state, or local agencies, at SUNESYS' sole cost and expense. 8. No Transfer or Assignment. This License is personal to the SUNESYS. Any attempt to transfer or assign this License without prior written consent from RCTC, except to a person controlling, controlled by or under common control with SUNESYS or acquiring substantially all of the assets of Sunesys used to provide services in the market in which the System is located shall terminate it. 9. Lien Free Condition. SUNESYS shall not cause or permit any liens to be placed against the RCTC Facility or against RCTC's other property as a result of construction, installation, or maintenance by or behalf of SUNESYS. In the event of the filing of any such liens, SUNESYS shall promptly (but in no event more than thirty (30) days) cause such liens to be removed or bonded off the RCTC Facility. 10. Indemnification. To the fullest extent permitted by law, SUNESYS shall indemnify, defend and hold harmless RCTC, its officers, agents, and employees from and against any claims, damages, costs, expenses, or liabilities (collectively, "Claims") arising out of or in any way connected with this License, including without limitation, Claims for loss or damage to any property or for • 22 death or injury to any person or persons, except that SUNESYS shall not be obligated to indemnify, defend or hold harmless the ROTC, its officers, agents and employees for Claims caused by the sole negligence of the RCTC. 11. Insurance. 11.1. SUNESYS' Insurance. SUNESYS, at its sole cost and expense, shall insure its activities in connection with this Agreement and obtain, keep in force and maintain insurance as follows: 11.1.1. Commercial Form General Liability Insurance (contractual liability included) with minimum limits as follows: (i) Each Occurrence $5,000,000 (ii) Products/Completed Operations Aggregate $5,000,000 (iii)Personal and Advertising Injury $2,000,000 (iv)General Aggregate $5,000,000 If such insurance is written on a claims -made form, it shall continue for three (3) years following termination of this Agreement. The insurance shall have a retroactive date of placement prior to or coinciding with the commencement date of this Agreement. 11.1.2. Business Automobile Liability Insurance for owned, scheduled, non -owned, or hired automobiles with a combined single limit no less than Five Million Dollars ($5,000,000.) per occurrence. 11.1.3. Worker's compensation and employer's liability insurance in a form and amount covering SUNESYS' full liability under the Worker's Compensation Insurance and Safety Act of the State of California, as amended from time to time. 11.1.4. Property insurance, Special Form (All Risk, including earthquake and flood), in an amount sufficient to reimburse SUNESYS for all of its Equipment, fixtures and personal property located on or in the RCTC Facility including improvements hereinafter constructed or installed. This insurance shall also include business income/interruption and extra expense coverages, with coverage amounts that shall reimburse SUNESYS for all direct or indirect loss of income and charges and costs incurred arising out of perils commonly insured against including prevention of, or denial of use of or access to the RCTC Facility as a result of those perils. The business income and extra expense coverage shall provide coverage for no less than twelve (12) months of the loss of income, charges and costs contemplated under this Agreement and shall be carried in amounts necessary to avoid any co-insurance penalty that could apply. 23 11.1.5. Such other insurance in such amount which from time to time may be reasonably required by the mutual consent of RCTC and SUNESYS against other insurable risks relating to performance. The insurance and the coverage referred to under this Section shall be endorsed to include the "The Regents of the RCTC of California" as an additional insured. SUNESYS, prior to execution of this Agreement, shall furnish the RCTC with Certificates of Insurance and additional insured endorsements evidencing compliance with the requirements of this Section. Certificates shall provide for thirty (30) days advance written notice to RCTC of any modification, change or cancellation of any of the above insurance coverages. The coverage required herein shall not in any way limit the liability of SUNESYS, its officers, agents, partners, or employees; provided, however, that neither party shall be liable for consequential damages, lost profits, or punitive damages for claims arising under this agreement. 12.Order of Precedence. In the event a conflict arises between these terms of this Agreement and the provisions of the Dark Fiber License Agreement, this Agreement will govern unless this Agreement expressly provides otherwise. No term or provision set forth or cross-referenced in any work order, purchase order or payment documentation will be construed to amend, add to, or supersede any provision of this Agreement. 13. Miscellaneous. 13.1. Applicable Law. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of California. 13.2. No Interference. SUNESYS shall not interfere with the normal operation and activities of RCTC and SUNESYS shall conduct its activities on the RCTC Facility to minimize damage to the RCTC Facility and inconvenience to RCTC, its agents, employees and invitees. 13.3. Alteration in Writing. This Agreement supersedes any and all prior understandings and agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement. No alteration or variation of this Agreement shall be valid unless made in writing and signed by RCTC and SUNESYS. 13.4. Notices. Unless otherwise expressly set forth elsewhere in this Agreement, all notices and other communications required or permitted under this Agreement shall be in writing and shall be given by United States first class mail, postage prepaid, registered or certified, return receipt requested, by recognized national overnight service or by hand delivery (including by means of a professional messenger service) addressed to the party for whom it is intended at its address set forth below and any such notice or other communication shall be deemed to be effective on the date given if given by 24 hand delivery, on the day after the date sent if sent by overnight service, or on the date stated on the certified or registered mail receipt. Either party may by similar notice given change the address to which future notices or other communications shall be sent. To RCTC: Riverside County Transportation Commission 4080 Lemon Road, 3`d Floor P.O. Box 12008 Riverside, CA 92502-2208 Attn: And a copy to: [Insert Name and Address] To SUNESYS: SUNESYS,LLC 185 Titus Avenue Warrington, PA 18976 Attn: Senior Vice President — Operations And a copy to: SUNESYS, LLC 185 Titus Avenue Warrington, PA 18976 Attn: Senior Counsel 13.5. Authority. Each of the individuals executing this Agreement on behalf of the SUNESYS and the RCTC represents to the other party that such individual is authorized to do so by requisite action of the party to this Agreement. 13.6. Attorneys' Fees. SUNESYS shall reimburse RCTC upon demand for any attorneys' fees and costs incurred by RCTC in connection with the License granted SUNESYS under this Agreement, including, without limitation, the enforcement of any of its rights hereunder. Additionally, the prevailing party in any lawsuit or action based upon this Agreement shall, in addition to any other relief granted therein, be entitled to its reasonable attorneys' fees and costs. 13.7. Severability. If any term or provision of this Agreement shall be held invalid or unenforceable to any extent under applicable law by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term and provision shall be valid and enforceable to the fullest extent permitted by law. 25 13.8. No Recordation. SUNESYS shall not record this Agreement nor any memorandum or short -form hereof. 13.9. Time is of the Essence. Time is of the essence with respect to performance of every provision of this Agreement. 13.10. Nondiscrimination. SUNESYS shall not maintain or provide racially segregated facilities for employees at any establishment under its control. SUNESYS agrees to adhere to the requirements set forth in Executive Orders 11246 and 11375, and with respect to activities occurring in the State of California, to the California Fair Employment and Housing Act (Government Code section 12900 et seq.) Expressly, SUNESYS shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, ancestry, medical condition (as defined by California Code section 129250, marital status, age, physical and mental handicap in regard to any position for which the employee or applicant for employment is qualified, or because he or she is a disabled veteran or veteran of the Vietnam era. • 26 IN WITNESS WHEREOF, we have hereunto set our hands this _ day of , 2010. RCTC: RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Its: Date: SUNESYS: SUNESYS,LLC By: [NAME] [TITLE] Date: 27 • • • EXHIBIT A DESCRIPTION OF THE PROPERTY OF THE LICENSED RCTC FACILITY 28 • • EXHIBIT B DRAWING SHOWING THE LOCATION OF THE SYSTEM 29 ATTACHMENT 2" DARK FIBER LICENSE AGREEMENT This DARK FIBER LICENSE AGREEMENT (the "Agreement") is made as of 200 between SUNESYS, LLC, having a place of business at 185 Titus Avenue, Warrington, PA 18976 ("SUNESYS") and RIVERSIDE COUNTY TRANSPORTATION COMMISSION, having a place of business at 4080 Lemon Street, 3`d Floor P.O. Box 12008, Riverside, CA 92502-2208 ("Licensee"). WHEREAS, SUNESYS has or intends to acquire easements, conduit rights, pole attachment and license agreements to construct, install, operate, maintain, modify, replace or remove a point to point communications transmission system between and (the "Route"); and WHEREAS, SUNESYS has or intends to install, construct, operate and maintain a (redundant) optical fiber communication transmission system on utility poles or within conduit systems located on the Route (collectively, "SUNESYS' Conduit System") consisting of at least ( ) strands of optical fiber; and WHEREAS, Licensee desires a license to use two (2) strands of such optical fiber along the portion of the Route shown in the drawing attached hereto as Exhibit A; and WHEREAS, SUNESYS agrees to grant such license subject to the terms and conditions set forth in this Agreement. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS As used in this Agreement: 1.1 "Authorized Use" means a business purpose of Licensee's optical fiber telecommunications network for telecommunication traffic of Licensee or its employees, officers or agents. 1.2 "Dark Fiber" means one or more fiber optic strands subject to this Agreement through which an associated light, signal or light communication transmission must be provided to furnish service. 1.3 "Fiber Optic Facilities" means a certain fiber optic cable composed of at least ( ) strands of single mode optical fiber, which cable is owned by SUNESYS and installed along the Route. 1.4 "Hazardous Substances" include any substance the presence of which requires investigation or remediation under any federal, state or local statute, regulation, ordinance, order, action, policy or common law or any substance which is or becomes defined as "Hazardous Waste," "Hazardous Substance," pollutants, toxic substances, compounds, elements, or chemicals pursuant to the Comprehensive Environmental Response Act (42 U.S.C. § 651 et seq.), as amended, or any other federal, state or local environmental cleanup laws. Hazardous Substances also include asbestos, lead paint, Polychlorinated Biphenyls ("PCBs") and radon gas. 1.5 "Hazardous Discharge" means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, or dumping of Hazardous Substances from, in, or onto SUNESYS' Conduit System. 1.6 "Licensee's Fiber Optic Facilities" means two (2) Strands, as designated by SUNESYS, of Dark Fiber within the Fiber Optic Facilities along the portion of the Route shown in the drawing attached hereto as Exhibit A. Page 1 of 11 30 1.7 "Strands" means individual fiber optic strands within the Fiber Optic Facilities. 1.8 "faxes" means all sales, use, gross receipts, excise, access, bypass and other local, state and federal taxes, charges, fees and surcharges (including, without limitation, telecommunications taxes, universal service fees and other similar charges), however designated, imposed on or based upon the provision, lease, license, sale or use of Licensee's Fiber Optic Facilities, but excluding any taxes assessed upon the net income or imposed upon the capital of SUNESYS. 2. GRANT OF LICENSE SUNESYS grants to Licensee and Licensee accepts from SUNESYS an exclusive and indefeasible license solely for Authorized Use of Licensee's Fiber Optic Facilities in SUNESYS' Conduit System (the "License"), as provided in this Agreement. Licensee shall have no further right, title or other interest in SUNESYS' Conduit System, the Fiber Optic Facilities or in Licensee's Fiber Optic Facilities. SUNESYS shall have the right to grant and renew rights to any entity to use SUNESYS' Conduit System, the Fiber Optic Facilities or any other property of SUNESYS; provided, however, that during the term of this Agreement, SUNESYS shall have no right to grant and renew any rights to any entity with respect to Licensee's Fiber Optic Facilities. 3. WORK 3.1 SUNESYS shall use best efforts to provide, construct and install the Fiber Optic Facilities within SUNESYS' Conduit System along the Route on or before 200_ (the "Completion Date"). SUNESYS covenants that the segments of the Fiber Optic Facilities along the Route that it constructs pursuant hereto shall be constructed substantially and in all material respects in accordance with standard outside plant specifications. Work shall include the labor and materials. There are no additional costs associated with this section of the Agreement and the full license fee detailed in Section 4 below includes the labor and material described herein. 3.2 SUNESYS shall test all of Licensee's Fiber Optic Facilities to verify that Licensee's Fiber Optic Facilities are installed and operational in accordance with standard fiber optic specifications. When SUNESYS has determined that the results of the testing with respect to the entire span show that Licensee's Fiber Optic Facilities so tested are installed and operating in accordance with such specifications, SUNESYS shall promptly notify Licensee in writing. 3.3 If and when SUNESYS gives written notice to Licensee that the Fiber Optic Facilities are complete, Licensee shall provide SUNESYS with written notice accepting (or rejecting by specifying the defect or faihue in the testing that is the basis for such rejection) Licensee's Fiber Optic Facilities. If Licensee fails to notify SUNESYS of its acceptance or rejection of the final test results with respect to Licensee's Fiber Optic Facilities within fifteen (15) days after Licensee's receipt of notice from SUNESYS of such test results, Licensee shall be deemed to have accepted Licensee's Fiber Optic Facilities. If, during the course of such construction, installation and testing, any material deviation from standard specifications is discovered, the construction or installation of the affected portion of the segment shall be repaired to such specification by SUNESYS. The date of such notice of acceptance (or deemed acceptance) of all Licensee's Fiber Optic Facilities for the Route shall be the "Acceptance Date" for the Route. 4. LICENSE FEE 4.1 In lieu of payment of a license fee for the Licensee's Fiber Optic Facilities, Licensee and SUNESYS have entered into a separate License Agreement dated of even date herewith pursuant to which Licensee, as grantor, has granted to SUNESYS, as grantee, a license to install the System (as such term is described in the License Agreement) upon the RCTC Facility (as such term is described in the License Agreement). Page 2 of 11 31 4.2 In addition to the License fee, Licensee shall pay to SUNESYS all Taxes. Such Taxes may be separately stated on the applicable invoice. 4.3 Except as otherwise specifically provided, Licensee shall pay all applicable fees and charges provided for in this Agreement, within thirty (30) days alter receipt of invoice. 4.4 In the event that an invoice remains unpaid by Licensee for a period of forty five (45) days after Licensee's receipt of invoice, then Licensee shall be subject to a late payment charge of one and one-half (1 Y2%) percent per month of the unpaid balance or the highest lawful rate, whichever is less. 5. LICENSE TERM The term of the License shall commence on the Acceptance Date and shall continue for twenty (20) years from the Acceptance Date. Upon the expiration of the initial term of this Agreement, this Agreement shall renew for up to five (5) additional terms of five (5) years each upon the terms and conditions set forth herein unless either party shall give to the other party at least one hundred eighty (180) days prior written notice of its intent to terminate this Agreement upon the expiration of the then current term or renewal term. 6. MAINTENANCE AND OPERATION 6.1 SUNESYS shall maintain Licensee's Fiber Optic Facilities. Licensee shall cooperate with and assist, as may be reasonably required, SUNESYS in perfomring said maintenance. In the event of service outages or other maintenance request, SUNESYS agrees to use best efforts to respond within two (2) hours of time of notice. 6.2 Notwithstanding anything to the contrary contained herein, Licensee shall solely be responsible, at its own expense, for the construction, installation, operation, maintenance, repair and any other activity engaged by or on behalf of Licensee relating to all light communications transmission equipment and other terminal equipment and facilities required in connection with the use, electronics or signals of Licensee's Fiber Optic Facilities. 6.3 SUNESYS shall be responsible for all necessary splicing, including any splicing required to connect Licensee's Fiber Optic Facilities provided under this Agreement to any other fiber serving Licensee. Licensee shall pay SUNESYS the cost of SUNESYS' performing such splicing at SUNESYS' then current rates for such work. Licensee shall be responsible for the construction, installation, maintenance and repair of any laterals required to connect Licensee's Fiber Optic Facilities provided under this Agreement to any termination point outside the portion of the Route shown on Exhibit A, attached hereto. 6.4 Should any splices or other work not be placed and maintained in accordance with the provisions of this Agreement by Licensee or at Licensee's direction, SUNESYS, at its option, may correct said condition. SUNESYS shall notify Licensee in writing prior to performing such work whenever practicable. However, when such conditions pose an immediate threat to the physical integrity of SUNESYS' facilities, SUNESYS may perform such work and take such action that it deems necessary without first giving notice to Licensee. As soon as practicable thereafter, SUNESYS shall advise Licensee of the work performed and the action taken and shall endeavor to arrange for re -accommodation of Licensee's Fiber Optic Facilities so affected. Licensee shall promptly reimburse SUNESYS for all reasonable costs incurred by SUNESYS for all such work, action and re -accommodation performed by SUNESYS. 6.5 Licensee shall, at its sole cost and expense, promptly respond to and remediate any Hazardous Discharge to and from SUNESYS' Conduit System resulting from Licensee's operations. 6.6 SUNESYS shall be responsible for obtaining and maintaining from the appropriate public or private authority any pole attachment agreements, franchises, licenses, state, local or right-of-way permits or other authorizations required to enter upon the property where SUNESYS' Conduit System is located and to Page 3 of 11 32 S N operate and maintain Licensee's Fiber Optic Facilities in SUNESYS' Conduit System. Licensee will not engage in any activity that affects SUNESYS' right-of-way interests without the written permission of SUNESYS. 6.7 Licensee, at its sole cost and expense, shall (i) use Licensee's Fiber Optic Facilities and (ii) conduct all work in or around SUNESYS' Conduit System in a safe condition and in a manner reasonably acceptable to SUNESYS, so as not to physically, electronically or inductively conflict or interfere or otherwise adversely affect SUNESYS' Conduit System or the facilities placed therein by SUNESYS, or other authorized licensees of the Fiber Optic Facilities. 6.8 Prior to Licensee's performing any work in or around SUNESYS' Conduit System, Licensee shall obtain prior written authorization from SUNESYS approving (a) any further work Licensee is directing to be performed and (b) the party performing such work. 6.9 In the event Licensee receives information that the Fiber Optic Facilities are damaged, it shall notify SUNESYS of said damage by phone at 800.286.6664. In the event SUNESYS receives information that Licensee's Fiber Optic Facilities are damaged, SUNESYS will notify Licensee of said damage by phone at: ( ) - In In each case, the caller shall provide the following information: 1. Name of entity making report. 2. Location reporting problem. 3. Name of contact person reporting problem. 4. Description of the problem in as much detail as possible. 5. Time and date the problem occurred or began. 6. State whether or not the problem presents a jeopardy situation to SUNESYS' Conduit System or Licensee's Fiber Optic Facilities. 6.10 SUNESYS shall designate the particular Strands of Dark Fiber that will constitute Licensee's Fiber Optic Facilities and the location and manner in which they will enter and exit SUNESYS' Conduit System. 7. OWNERSHIP Licensee's Fiber Optic Facilities shall at all times remain the sole and exclusive property of SUNESYS and legal title shall be held by SUNESYS. Neither the provision or the use of Licensee's Fiber Optic Facilities by SUNESYS to Licensee hereunder, nor the payments by Licensee contemplated hereby, shall create or vest in Licensee any easement, interest, or any other ownership or property right of any nature in Licensee's Fiber Optic Facilities or Strands, except that SUNESYS agrees to Licensee's right to use Licensee's Fiber Optic Facilities for Authorized Use during the term of this Agreement. Licensee shall not grant any security interest in the Licensee's Fiber Optic Facilities or any part or component thereof. 8. EMINENT DOMAIN If there is a taking of Licensee's Fiber Optic Facilities by right or threat of eminent domain (a "Taking") which, as agreed by the parties, or in the absence of such agreement as determined pursuant to the provisions of Section 16 of this Agreement, results in the remainder of Licensee's Fiber Optic Facilities being unable to be restored to a condition suitable for Licensee's business need within thirty (30) days from the date of the Taking ("Substantial Taking"), this Agreement shall terminate. In such event any periodic licensee fee and/or maintenance fee shall abate from the date of Taking. If there shall be a Taking which does not constitute a Substantial Taking, this Agreement shall not terminate but SUNESYS, with due diligence and its best efforts, shall restore Licensee's Fiber Optic Facilities as speedily as practical to its condition before the Taking. Page 4 of 11 33 f 9. INDEMNIFICATION 9.1 Except for the gross negligence or willful misconduct of a Party hereto and except where a specific remedy is provided in this Agreement, the liability of each Party to the other Party for damages will be limited to the Monthly Lease Payments paid or payable by Licensee for the Lease Term during which the damages were incurred. In no event will either Party be liable to the other Party for any incidental, indirect, special, consequential, exemplary, or punitive damages arising out of or relating to this Agreement, the lease granted hereunder, the leased fiber provided hereunder, including damages based on loss of revenues, profits or lost business opportunities, regardless of whether the respective Party has been advised of or could have foreseen the possibility of such damages. 9.2 Each Party agrees to indemnify, defend and hold the other, its officers, directors, employees, agents, contractors and its successors and assigns from and against any claims, liabilities, losses, damages, fines, penalties, and costs (including reasonable attomeys' fees), by reason of any claims or actions by third parties for (I) bodily injury, including death, (II) damage, loss or destruction of any tangible personal property (including without limitation the Fiber Optic Conduit System) which third party claims arise out of or relate to (a) any product or services provided by or on behalf of SUNESYS hereunder, (b) a Party's performance of or faihae to perform any material term, condition or obligation under this Agreement; (c) any act or omission of a Party's directors, agents, employees, contractors, representatives or invitees, or (d) Licensee's or its employees', officers', agents' or Affiliates' use of the Fiber Optic Facilities and conduct of their respective businesses including without limitation the content of any video, voice or data carried by Licensee or its customers on the Fiber Optic Facilities. 9.3 Except as otherwise set forth in this Agreement, nothing contained herein will operate as a limitation on the right of either Party to bring action for damages against any third party based on any act or omission of such third party as such act or omission may affect the construction, operation, or use of the Fiber Optic Facilities. Each Party agrees to execute such documents and provide such commercially reasonable assistance, at the claiming Party's sole expense, as may be reasonably necessary to enable the claiming Party to pursue any such action against such third party. 10. INSURANCE The Parties shall both obtain and maintain insurance issued by one or more reputable insurance carriers which protects the Parties from and against all claims, demands; causes of action, judgments, costs, including attorneys' fees, expenses and liabilities of insurable kind and nature which may arise or result directly or indirectly from or by reason of such loss, injury or damage that in any way arises from or is related to this Agreement or activities undertaken pursuant to this Agreement. 11. COMPLIANCE WITH LAWS Notwithstanding anything to the contrary in this Agreement, the Parties shall ensure that any and all activities they perform pursuant to this Agreement shall comply with all applicable laws. Without limiting the generality of the foregoing, the Parties shall comply with all applicable provisions of i) workmen's compensation laws, ii) unemployment compensation laws, iii) the Federal Social Security Law, iv) the Fair Labor Standards Act, and v) all laws, regulations, rules, guidelines, policies, orders, permits, and approvals of any governmental authority relating to environmental matters and/or occupational safety. 12. DISCLAIMER OF WARRANTIES EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SUNESYS MAKES NO WARRANTIES REGARDING THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT AND MAKES NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 13. SUNESYS' SALES OR DISPOSITIONS Page 5 of 11 34 S~'� S Nothing in this Agreement shall prevent or be construed to prevent SUNESYS from selling or otherwise disposing of any portion of SUNESYS' Conduit System, the Fiber Optic Facilities or other property of SUNESYS used for Licensee's Fiber Optic Facilities, provided, however, that in the event of a sale or other disposition, SUNESYS shall condition such sale or other disposition subject to the rights of Licensee under this Agreement. SUNESYS shall promptly notify Licensee of the proposed disposition of SUNESYS' Conduit System, Fiber Optic Facilities or other property used by Licensee. 14. LIENS Licensee shall keep SUNESYS' Conduit System, Fiber Optic Facilities (including Licensee's Fiber Optic Facilities) and other property of SUNESYS flee from all mechanic's, artisans, materiahnan's, architect's, or similar services' liens which arise in any way from or as a result of Licensee's activities and cause any such liens which may arise to be discharged or released immediately upon notification that any such lien has attached to SUNESYS' property. 15. DEFAULT PROVISIONS AND REMEDIES 15.1 Each of the following shall be deemed an Event of Default by Licensee under this Agreement: 15.1.1 Failure of Licensee to pay the license fee or any other sum required to be paid under the terms of this Agreement and such default continues for a period of fourteen (14) days after written notice thereof to Licensee; 15.1.2 Failure by Licensee to perform or observe any other terms, covenant, agreement or condition of this Agreement on the part of Licensee to be performed and such default continues for a period of thirty (30) days after written notice thereof from SUNESYS (provided that if such default cannot be cured within such thirty (30) day period, this period will be extended if Licensee commences to cure such default within such thirty (30) day period and proceeds diligently thereafter to effect such cure); 15.1.3 The filing of a tax or mechanic's lien against SUNESYS' Conduit System, Fiber Optic Facilities or other property of SUNESYS which is not bonded or discharged within thirty (30) days of the date Licensee receives notice that such lien is filed; 15.1.4 An event of Licensee's bankruptcy (whether voluntary or invohntary) or the finding that Licensee is insolvent or unable to pay its debts as they come due or the appointment of a receiver for Licensee's properties, if such bankruptcy, finding or appointment is not dismissed or resolved within sixty (60) days of any official filing of bankruptcy, insolvency or appointment in a court of competent jurisdiction; 15.1.5 If Licensee knowingly uses Licensee's Fiber Optic Facilities in violation of any law or in aid of any unlawful act or undertaking; 15.1.6 If Licensee occupies any portion of SUNESYS' Conduit System without having first been issued a license therefore; or 15.2 Upon the occurrence of an Event of Default, SUNESYS, without further notice to Licensee in any instance (except where expressly provided for below or by applicable law) may do any one or more of the following: 15.2.1 Perform, on behalf and at the expense of Licensee, any obligation of Licensee under this Agreement which Licensee has failed to perform and of which SUNESYS shall have given Licensee notice, the cost of which performance by SUNESYS shall be payable by Licensee to SUNESYS upon demand; 15.2.2 Elect to terminate Agreement by giving notice of such election to Licensee, in which event all of the remaining recurring license fees payable for the Term of this Agreement shall become immediately due and payable by Licensee; Page 6 of 11 35 SUNTE 15.2.3 Exercise any other legal or equitable right to remedy that it may have. 15.3 All rights and remedies of SUNESYS set forth in this Agreement shall be cumulative, and none shall exclude any other right or remedy, now or hereafter allowed by or available under any statute, ordinance, rule of court, or the common law, either at law or in equity, or both. 15.4 The following events or occurrences shall constitute a default by SUNESYS under this Agreement: 15.4.1 Any material noncompliance by SUNESYS with the terms of this agreement, 15.4.2 Any material breach by SUNESYS of a representation or warranty under this Agreement. Licensee shall give prompt written notice to SUNESYS of the occurrence of any default under this Agreement. If such default continues for seven (7) days after receipt of such notice (provided that if such default cannot be cured within such seven (7) day period, this period will be extended if SUNESYS continues to cure such default within such seven (7) day period and proceeds diligently thereafter to effect such cure), Licensee may at its option, terminate this Agreement and pursue any legal remedies it may have at law or equity. 15.5 Any reasonable costs and expenses incurred by a party (including, without limitation, reasonable attorneys' fees) in enforcing any of its rights or remedies under this Agreement shall be repaid to the party by the breaching Party upon demand. 16. DISPUTES RESOLUTION If a dispute arises out of or relates to this Agreement or its breach and the dispute cannot be settled through direct negotiation between the parties, the parties agree to submit the dispute to a sole mediator selected by the parties, or, at any time at the option of a party, to mediation by the AAA. If such dispute is not resolved as a result of such mediation, it will be referred to a sole arbitrator selected by the parties within thirty (30) days after the mediation or in the absence of such selection to AAA arbitration which shall be govemed by the United States Arbitration Act and judgment on the award may be entered in any court having jurisdiction. The arbitration shall determine issues of arbitrability, but may not limit, expand or otherwise modify the terms of this Agreement. The parties, their representatives and other participants and the mediator and arbitrator shall hold the existence, content and results of mediation and arbitration in confidence. Each party will bear its own attomeys' fees associated with the mediation and arbitration and will pay all other costs and expenses of the mediation and arbitration as the rules of the AAA provide. 17. FORCE MAJEURE Except for payment of the license fee and any other amounts agreed to by the parties, neither party shall have any liability for its delays or its failure to perform due to: fire, explosion, pest damage, power failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, or other causes beyond its control, whether or not similar to the foregoing. 18. SUCCESSION, ASSIGNABILITY 18.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors or assigns. 18.2 Licensee shall not assign, transfer, or dispose this Agreement or any of its rights or obligations hereunder without prior written consent of SUNESYS, which consent shall not be unreasonably withheld; provided, however, that Licensee may assign or transfer this Agreement to a controlling or controlled Page 7 of 11 36 affiliate or to a successor in the event of reorganization, including a merger or sale of substantially of all its assets (an "Affiliate"), without the consent of the other party. An assignment, transfer or disposition of this Agreement by Licensee shall not relieve Licensee of any of its obligations under this Agreement. Notwithstanding the foregoing, Licensee shall not have the right to sub -license to any third party the right to use or the use of Licensee's Fiber Optic Facilities. 18.3 Neither this Agreement, nor any term or provision hereof, nor any inchision by reference shall be construed as being for the benefit of any person or entity not a signatory hereto. 19. NOTICES Any demand, notice or other communication to be given to a party in connection with this Agreement shall be given in writing and shall be given by personal delivery by registered or certified mail, retum receipt requested, by telecopy or commercial overnight delivery service addressed to the recipient as set forth as follows or to such other address, individual or telecopy number as may be designated by notice given by the party to the other: SUNESYS: SUNESYS,LLC 185 Titus Avenue Warrington, PA 18976 Attention: Senior Counsel Fax Number: 267.927.2099 LICENSEE: Riverside County Transportation Commission 4080 Lemon Road, 3'd Floor P.O. Box 12008 Riverside, CA 92502-2208 Attn: Fax Number: ( ) Any demand, notice or other communication given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof and, if given by registered or certified mail return receipt requested on the date of receipt thereof and, if given by telecopy, the day of transmittal thereof if given during the normal business hours of the recipient and on the next business day if not given during normal business hours. 20. NON -WAIVER No course of dealing, course of performance or failure of either party strictly to enforce any term, right or condition of this Agreement shall be construed as a waiver of any term, right or condition. 21. CHOICE OF LAW The construction, interpretation and performance of this Agreement shall be govemed by the law of the State of Califomia without regard to its conflicts of laws provisions. 22. HEADINGS All headings contained in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement or any clause. Page 8 of 11 37 • • 23. CONFIDENTIALITY AND PROPRIETARY INFORMATION 23.1 In connection with this Agreement, either party may fumish to the other certain information that is marked or otherwise specifically identified as proprietary or confidential ("Confidential Information"). This Confidential Information may include, among other things, private easements, licenses, utility agreements, permits, other right-of-way granting documents, specifications, designs, plans, drawings data prototypes, and other technical and/or business information. For purposes of this Section 23, the party that discloses confidential Information is referred to as the "Disclosing Party", and the party that receives Information is referred to as the "Receiving Party". 23.2 When Confidential Information is furnished in tangible form, the Disclosing Party shall mark it as proprietary or confidential. When Confidential Information is provided orally, the disclosing Party shall, at the time of disclosure or promptly thereafter, identify the Confidential Information as being proprietary or confidential. 23.3 With respect to Confidential Information disclosed under this Agreement, the Receiving Parry and its employees shall: (a) hold the Confidential Information in confidence, exercising a degree of care not less than the care used by the Receiving Party to protect its own proprietary or confidential information that it does not wish to disclose. (b) restrict disclosure of the Confidential Information solely to those of its employees and such Receiving Party's counsel and outside auditors who (i) have a need to know in connection with the performance of this Agreement, and (ii) agree to be bound by the confidentiality obligations set forth herein; and not disclose the Confidential Information to any other person or entity without the prior written consent of the Disclosing Party; (c) advise those employees of their obligations with respect to the Confidential Information; and (d) use the Confidential Information only in connection with the performance of this Agreement, except as the Disclosing Party may otherwise agree in writing. 23.4 Confidential Information shall be deemed the property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall retum all Confidential Information received in tangible form, except that each party's legal counsel may retain one copy in its files solely to provide a record of such Confidential Information for archival purposes. If the Receiving Party loses or makes an unauthorized disclosure of Confidential Information it shall notify the Disclosing Party and use reasonable efforts to retrieve the Confidential Information. 23.5 The Receiving Party shall have no obligation to preserve the proprietary nature of Confidential Information which: (a) was previously known to the Receiving Party free of any obligation to keep it confidential; or. (b) is or becomes publicly available by means other than unauthorized disclosure; or (c) is developed by or on behalf of the Receiving Party independently of any Confidential Information furnished under this Agreement; or (d) is received from a third party whose disclosure does not violate any confidentiality obligation to the knowledge of the receiving party. Page 9 of 11 38 SUNg . 23.6 If the Receiving Party is required to disclose the Disclosing Party's Confidential Information by an order or a lawful process of a court or governmental body, the Receiving Party shall promptly notify the disclosing Party, and shall cooperate with the Disclosing Party in seeking reasonable protective arrangements before the Confidential Information is produced. 23.7 Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Section 23 by the Receiving Party or its representatives and that the Disclosing Party may be entitled to equitable relief, including injunctive relief and specified performance, in the event of any breach of the provisions of this Section 23. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 23, but shall be in addition to all other remedies available at law or in equity. 24. REQUIRED RIGHTS SUNESYS covenants that it will, to the best of its knowledge, have obtained by the time the Licensee's Fiber Optic Facilities are made available to Licensee (and will use commercially reasonable efforts to cause to remain in effect during the term of this Agreement) easement, leases, licenses, fee interests, rights of -way, permits, authorizations and other rights necessary and requisite to enable SUNESYS to grant the License to Licensee ("Required Rights"). Subject to the foregoing obligations of SUNESYS, Licensee is accepting the License on an "AS IS, WHERE IS" basis and receiving its interests in Licensee's Fiber Optic Facilities only to the extent such interests are held by SUNESYS. 25. REPRESENTATIONS AND WARRANTIES Each party represents and warrants that: (i) it has full right and authority to enter into, execute, deliver and perform its obligations under this Agreement; (ii) this Agreement constitutes a legal, valid and binding obligation enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general equitable principles; and (iii) its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court, or body. 26. CALIFORNIA PUBLIC UTILITY COMMISSION REVIEW This Agreement shall not become finally effective until it has been submitted to the California Public Utility Commission for review and the time for such review has expired. 27. ENTIRE AGREEMENT The tem.'s and conditions contained in this Agreement supersede all prior oral or written understandings between the parties and constitute the entire agreement between them conceming the subject matter of this Agreement. There are no understandings or representations, express or implied, not expressly set forth in this Agreement. This Agreement shall not be modified or amended except by a writing signed by the party to be charged. [Signatures appear on the following page.] Page 10 of 11 39 SILJN IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives. SUNESYS,LLC By: Name: Title: Date: RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Name: Title: Date: Page 11 of 11 40 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 22, 2010 TO: Western Riverside County Programs and Projects Committee FROM: Min Saysay, Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: Agreement with Epic Land Solutions, Inc. to Provide Property STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 10-51-074-00 with Epic Land Solutions, Inc. (Epic), for property management support services for Commission -owned parcels for two years at a not to exceed amount of $970,000 and one option year for an additional $485,000; 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement, including the option year, on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: In 1993, the Commission acquired the San Jacinto Branch Line (SJBL) and various easement rights on the San Bernardino Subdivision from the Atchison, Topeka, and Santa Fe Railway Company (AT&SF), currently known as the Burlington Northern Santa Fe Railway Company (BNSF). The purpose of the acquisition was to enable the future development of commuter rail operations in Riverside County, including the Perris Valley Line (PVL), which extends from Highgrove to the SJBL intersection with 1-215 near Romoland. The SJBL acquisition included over 600 licenses and leases covering private, government, and utility owned facilities such as wire lines, pipelines, cables, as well as fee interest in property that was later determined to be in excess of the Commission's foreseeable needs. In November 2003, the Commission approved Agreement No. 04-51-030-00 to Epic for Phase 1 of the property management support services project, focusing primarily on identifying all private, government, and utility -owned facilities within the SJBL, maximizing revenue of Commission -owned parcels, reducing liability exposure, and assessing needs for a comprehensive property inventory database. Agenda Item 11 41 Under Phase 1 services, Epic: • Copied and reviewed approximately 370 licenses, leases, and easements within the PVL; • Performed field inspections of the 22-mile length of the PVL, leading to identifying locations covered by the 370 contracts, including GPS coordinates, non -compliant uses, encroachments, safety related issues and potential liabilities, and photographs of each facility; • Marketed and sold properties amounting to $15.5 million in sales proceeds; • Developed the RCTC Global Application (RGA) database that covers all Commission -owned properties; • Reviewed as -built drawings for numerous utility facilities; • Created aerial photographs of the entire PVL, showing existing contracts and encroachments; • Coordinated the consolidation of 19 billboards owned by Lamar Advertising into one contract and increased annual revenues from $45,000 to $16 5, 000; • Initiated a rigorous valuation process that resulted in increasing an offer from Metropolitan Water District for a pipeline right of way from $171,000 to $1.1 million; • Recommended and effected termination of 31 contracts located along the abandoned right of way that were no longer in use; • Provided utility information to the PVL design team to assist in identifying conflicts; • Began a resolution process to determine which contracts should be updated (including revenue potential), which should be terminated, and disposition of encroachments and contract violations; and • Completed the conveyance to Caltrans of properties along State Route 74 that were needed in the widening of that highway between Lake Elsinore and Perris; Phase 2 of Epic's provision of property management support services included the marketing and sale of various Commission -owned properties, conveyance of parcels to Caltrans, incorporating GIS and County Assessor data into the RGA database, and other special project assignments. The various special assignments were detailed in subsequent amendments to the agreement that were brought before the Commission for review and authorization, resulting in a total contract value of $1,616,161 during the six -year period of performance. Authorization of a proposed third and final phase of the property management support services project is hereby requested under a separate sole source agreement with Epic. Phase 3 services are required of Epic in order to close out the various projects initiated by Epic under the prior phases and to initiate current requirements including: Agenda Item 11 42 • • • • • Develop a methodology to be used in determining annual fees for licenses covering utilities and other private uses of the Commission's property; • Complete the resolution process for PVL contracts begun as described above, including development of action plans to increase revenues, update contracts, prepare new licenses for acceptable encroachments, remove unacceptable encroachments, and resolve safety and liability issues; • Dispose of excess lands from the SR-74 widening project described above, as well as other possible properties, i.e., Box Springs, Arlington Station, and the Old Ramona station grounds; • Apply and complete the resolution process for the licenses, leases, and easements along the remainder of the SJBL beyond the end of the PVL from Romoland through Winchester, Hemet, and San Jacinto, as well as the Orange Empire Railway Museum line in Perris; and • Provide continuing maintenance and updating of the RGA database, including the continuing reconciliation of assessor parcel numbers with the records of the County Assessor as and when they are changed. Due to its accumulated knowledge and development of various property management projects, resources, and databases associated with the multitude of Commission -owned properties, including but not limited to those along the SBJL, Epic is the only firm that can efficiently complete the tasks described above. Completion of the foregoing services by Epic, however, will provide the Commission with the tools necessary to seek a competitive solution for future property management support services. Staff developed a scope of work and a cost estimate for the services covered by the agreement. The cost estimate is based on the number of hours that may be required to perform the services and the hourly rates of Epic's staff. COMMITTEE RECOMMENDATION AND DIRECTION: During consideration of this item by the Western Riverside County Projects and Programs Committee at its February 22 meeting, staff was directed to return to the contractor and renegotiate for a reduction in overall cost of the contract. The Committee's direction was based on the economic climate and challenges currently faced in Riverside County. The Committee voiced its concern that since this contract has been in place since 2003, the contract rate should be revisited and reduced for the extension period. The services outlined above will be provided by Epic for $970,000 for the term of the contract and $485,000 for the option year. This represents a 30% (or $45,000) reduction in its profit from the original staff recommendation presented to the Committee on February 22, 2010. Agenda Item 11 43 The Committee further inquired about the responsibilities of the Relationship Manager and the basis for its hourly rate. The Relationship Manager for Epic is Ms. Holly Rockwell, who is the principal/president of the company. The original summary should have listed her under that title. Relationship Manager is not a title or job description typically used in Commission contracts and that item has been corrected. Ms. Rockwell's responsibilities include the following: • Liaising with federal and state agencies on questions related to Commission - owned properties; • Ensuring quality control of all Epic's work product prior to submission to Commission staff; • Handling some of the more complex Commission property transactions, particularly those requiring history of Commission -owned properties; • Making presentations at public meetings on behalf of the Commission; • Representing Epic at bi-weekly project reviews with Commission staff; and • Supporting Commission staff on an as -needed basis. Ms. Rockwell's billable rate is $178.13, which is based on a rate audited last year in conformity with Federal Acquisition Regulations. Principals for other right of way firms of similar size and services, bill at $175 to $200 per hour. Ms. Rockwell's overall proposed billable time represents around 7% of the overall contract. Her expertise and history with the Commission give her a unique value that cannot easily be replaced by another contractor. Financial Information Yes FY 2009l10 $291,000 In Fiscal Year Budget: N/A Year: FY 2010/11 + Amount: 679,000 Source of Funds: Measure A, Lease Revenues, Property Sales Budget Ad ustment: No GL/Project 105 51 65520 $ 776,000 Accounting No.: 105 52 65520 $ 194,000 Fiscal Procedures Approved: �,ua4mn Date: 3/15/10 Attachments: 1) Property Management Scope of Work 2) Property Management Cost Estimate 3) Proposed Agreement with Epic Land Solutions, Inc. Agenda Item 11 44 • • Attachment 1 PROPERTY MANAGEMENT SUPPORT SERVICES SCOPE OF WORK 1. On -Call Services (PMA6) On -call services covers any ad hoc requests related to existing RCTC properties. Examples of work performed in the past six years on an ad hoc basis include: • Analyzing title issues on previously acquired RCTC properties • Providing real estate or right of way information for insurance, financial, operational or legal -based issues • Analyzing impacts resulting from zoning changes on RCTC properties • Correcting assessor information about RCTC properties • Resolving right of way issues with BNSF • Providing relevant real estate or right of way information necessary to evaluate proposals from developers, associations or other members of the public • GIS mapping for presentations or exhibits • Surveys to determine land boundaries or defining access easements (a budget of $15,000 has been included for small projects; it is assumed that any large projects will be contracted directly by RCTC) 2. SR-74 Excess Lands (PMA10) In the last three years, Epic has completed the conveyance to Caltrans of the SR-74 properties. At this stage, Caltrans is identifying the excess lands related to that project. As of right now, there are anticipated to be 27 excess properties. Some adjacent property owners have expressed interest in slivers that are unlikely to be sellable to any other party. We anticipate the following next steps:. • Coordinating with Caltrans on finalizing documentation related to excess lands • Preparing background information/presentations for RCTC on each of the excess properties (including GIS maps) • Determining which properties qualify for sales to adjacent owners in accordance with Caltrans and State of California requirements • Preparing and sending public agency notifications • Drafting RFP's and preparing marketing information • Conducting marketing meetings and responding to potential buyer questions • Reviewing and summarizing bids and making recommendation to RCTC • Overseeing escrow 3. New Licenses (PMA12) Epic has supported RCTC staff on preparing new or renewed licenses and anticipates continuing those activities, including: • Researching property boundaries and other issues potentially impacting granting of licenses • Performing cost estimates for rental values 45 • Liaising/negotiating with license applicants • Preparing licenses and/or supporting documentation for licenses as requested by RCTC 4. RCTC Global Application/RGA (PMC1) The Global Database is developed, installed and operating on RCTC and Epic computers to maintain information on RCTC properties, licenses and applications for licenses. The additional functional additions and database services anticipated over the next two years include: • Installing and training for RGA GIS Phase 1 which allows users to view all RCTC owned properties on a dynamic map. • Development and roll out of RGA GIS Phase 2 which will display licenses that have already been digitized in response to specific RCTC requests such as the double track analysis • Development and roll out of RGA GIS Phase 3, including digitization of remaining utility licenses on PVL and San Jac remainder • Development and roll out of RGA GIS Phase 4 which will include digitization of all remaining utility, government and private use licenses on RCTC station properties • Data comparisons with assessor to resolve assessor discrepancies • RGA maintenance tasks (monitoring server space size for attachments and GIS) • Ad hoc GIS maps and database reports • Support of thud party installations (Epic, Bechtel, BB&K and future third parties) • As -needed database modifications or additions of future functions (includes development, testing, and deployment) 5. Excess Land Sales (PMD2) In the past, Epic has performed services to assist RCTC in preparing, marketing and selling excess land parcels. Previous excess land sales handled by Epic included: Pierce Street, Corona Depot,l-215 abandoned rail r/w, and Madison Station. Potential parcels that may be declared excess land in the next three years include: Perris Wye, Arlington Station, and Box Springs Quarry. For excess land parcels, Epic will: • Prepare and send public agency notifications • Draft RFP and marketing information • Conduct marketing meetings and responds to potential buyer questions • Review and summarizes bids and makes recommendation to RCTC • Oversee escrow For budget purposes, we have assumed one property will be sold in the next three years. 6. Encroachment Resolution (PMF1) • • 46 As a public agency, RCTC is always subject to unauthorized uses of its properties: Epic will assist in monitoring RCTC properties and identifying and resolving encroachments. Past encroachments which Epic has identified and/or resolved include personal property and structures on Arlington Station, crops on a future highway 79 parcel in Hemet, a car dealership on the railroad right of way in Hemet, and unauthorized access over Pedley station. Specific tasks for this area include: • Researching rights and property lines to assess encroachments • Identifying owners of encroachments • Preparing notification letters for encroachments • Negotiating for encroachment removal or new license • Preparing documentation for legal support if eviction or other legal action is required 7. PVL Tenant Contract Resolution (PMJ1) Over the past two years, Epic has reviewed all of the contracts (including licenses, leases and easements) on the Perris Valley Line and performed site visits to determine adherence to contract terms and identify encroachments. Approximately 410 contracts and 129 encroachments have been identified on the Perris Valley Line. The efforts have been tremendously helpful for both the preliminary engineering team and the utility relocation team in performing design and assessing risk. Activities anticipated for the next period include resolving the items that were identified in the review include: • Upgrading license terms to reflect current indemnification clauses • Updating the fair market rent of contracts • Enforcing existing license terms for non -conforming uses • Entering into new licenses for previously unlicensed uses • Defining the scope of work for surveys to determine encroachments (for purposes of this scope and fees, it is assumed that RCTC will contract directly for the survey work utilizing a scope developed by Epic) • Working with owners to remove unauthorized, unacceptable encroachments • Entering into master agreements with utilities • Providing contract information to the preliminary engineering team and utility relocation teams 8. Non-PVL Tenant Contract Review and Resolution (PMJ2) The tenant contracts for the Perris Valley Line have been a higher priority than the San Jac remainder. As such, the contracts for the non-PVL portions of RCTC property have not yet been reviewed. We anticipate approximately 200 licenses, leases and easements for which Epic will perform the following: • Review contract and input information into RGA • Perform site visit to confirm use complies with contract 47 • Take pictures of facilities and upload into RGA • Scan and attach contracts and additional documentation into database • Identify unauthorized encroachments • Recommend and implement resolutions. Resolutions may include: i. Upgrading license terms to reflect current indemnification clauses ii. Enforcing existing license terms for non -conforming uses iii. Updating the fair market rent of contracts iv. Entering into new licenses for previously unlicensed uses v. Working with 3`a parties to remove unauthorized encroachments vi. Entering into master agreements with utilities vii. Defining scope of work for surveys to define encroachments 9. Property Information Updates (PMJ3) Epic has input all properties currently maintained by RCTC in the RGA database. It is anticipated that there will be additional work to be performed including: • Reconciling information in RGA to the assessor information. Our experience in the past is that the assessor does not always have current or accurate information about RCTC properties. As a result, official notices (such as zoning changes, ordinance enforcements, etc) go to incorrect addresses and parties. Also, frequently parcel splits are not accounted for by the assessor which causes issues when RCTC utilizes or sells the property. • Inputting newly acquired properties into the database • Importing and validating information from other RCTC consultants 10. Easement to Fee conversion (PMJ4) The San Jacinto Branch Line was originally purchased partially in fee and partially in easement with an option to convert to fee. Over the past few years, Epic has been assisting the commission in converting the easement to fee. Approximately 10 parcels remain to be converted. Specific steps in order to convert the easement to fee include: • Draft scope of work and coordinate Phase 1 and Phase 2 reports (actual environmental work to be performed by RCTC consultants) • Liaise with BNSF to convert easement to fee • Work with title company to provide documentation and supporting information to obtain title insurance 11. Caltrans Encroachment/Oleander Swap (PMJ5) Over the past year, Epic has been working with RCTC and Caltrans to resolve a question as to the correct boundary line between the 215 and the San Jacinto Branch Line near Oleander extending northerly to Van Buren. Over the upcoming period, Epic anticipates: • Providing background info to Caltrans and legal counsel to assist in resolution • Coordinating with Caltrans engineering to define correct boundary line • Negotiating resolution of drainage culverts in conflict with PVL 48 • • Coordinating fence relocations, as appropriate • Participating in meetings with Caltrans • Preparing and coordinating execution of conveyance deeds 12. Project Management (PM) Ongoing project management encompasses all the activities to report, oversee and monitor all right of way activities under the Property Management contract. Specifically, the following steps are included under project management: • Participation in bi-monthly meetings with RCTC • Preparation and distribution of status reports bi-monthly 49 Os LEZ48'01$ 00'001$ 0699191 L£'ZbL'OL $ 8Z'4£L $ 08 1 L96euelq pelwd 1 suen3'NL 3913 009L0'0E$ 00'05 LS 0B9019W 00'9Z6'6Z $ £9'641 $ 00Z LoSeuelq pelad Jos!eN.w 49 uopnlosaa 11e9ugoeaou3 'LdWd 111311 '9Z$ 19'940'9Z$ P9'1LZ'S$ 00'SZ1$ 9899111111 48'990'S $ Zing $ SL 1 L01919119000 Wee L9400'1 o!d3 ZL'ZL0'9$ 00'9Z L$ 969e19,11 ZL'L46'L $ LIY6L $ 001 Loleu!yoo0 mm LaPuyA 'S 303 £L'£99'4$ 00'0E14 86e0IIW EL'C94'4 $ EL'9LL $ BZ ledpuud Ilem3100a 1..1 o!d3 CL' 121'9S 00'9Z13 a6e0II1$ EL'990'8 $ 8Z'4C1 $ 09 LaBeuely paloLd suen3 m o!d3 purl sseox3 'ZOWd 00'09L'1.114 00'OeL`LL LS one L'SS 00'0E L'S $ 0£19 $ 001 1sA!eu9 ssegele0 4319M'1 o!d3 9Z'Z99'9$ 00'0917$ 959911114 9Z714'S $ ZL'b5 $ 001 Ls/geuy y! 119903'8 303 00'0017'11S 00'004'11 $ 00'411 $ 001 LawweLBold esegele0 L!emoN'! o!d3 C9'04L'C$ E9'04L'£ $ C9'641 $ SZ LaBeuelq loafmd Las!eN •w o!d3 LE'BLB'CZ$ LC'SLfi$Z $ 1.9199 $ OSE LoleulpLoo0 so xop 'S 303 09Z9Z'81$ 00'094$ e0ee1111 OS'Zi.e'Ll $ 90'68 $ 00Z LeBeuell goal Leuuem8'8 o09 00'000'ZS 00'000'Z $ 00'001 $ OZ SIO LeWlald T adeosoa0 00'000'0ES 00'000'0£ $ 00'001 $ 00E LawweLOad asegele0 sggo0.0 sggo0 9Z'901,'LLS 00'005'Z$ Iane31 SZ'906'9 $ EL'BL I. $ OS La6eueLy/uos!npy dweoaen0.0 o!d3 YON •LOWd L L'IZC'OZS 9L'L94'OC$ 26102'09$ 391bOEb1$ L9'YOE'41 S L4'BL $ 091 Loleu!pLoo3m/8 Lapuyq'g o1d3 00'966'IZS 00'0S4$ 989911l11 00'949'LZ $ £9841 $ 941 LeBeueol LoafoLd Las!eH.w 003 Z1709'41$ ZL'Z09'41 $ 9Z'4E1 $ 901. loBeusw baled suen3'M 303 sesuaoll maN 'Z LtlWd 40'BZA13$ 9Z'ZC6'0Z$ 021900 IS 694LOL'LC$ 69'LOL'LE $ Z6'89 $ 049 mAleuy W8 aaNOyy'H 003 Z6191'41$ 00'09b$ e69e161 Z6' LOL'CI. $ 19'89 $ 00Z Loleu pLoo0 S!0 xo0 •S o!d3 El'EOL'EZ$ 00'000.9$ Buls9aenpy EL'EOL'91 $ £L'9LL $ 901 iedpuod 110”01008'41 003 99'960'6ZS 00'006S 98e911144 99'961'9Z $ 9Z'b£L $ OLZ Le6euew>7afad suen3 .AA 0!d3 spue1 sseox3 4L-21S'0 Ltl91d 9Z'sts'e4S Lrwees$ 9L11.9'91.1.$ 51'9661,Z$ 034LL'91.$ "ALnS St'LZZ'9 $ L9'99 $ OZL 301e1991000 SIJ xop'S 0!d3 OS'LE.L'LL$ 00'0SbS 98e00141 05Y99'01 $ 90'68 $ OZ1 LaBeuelq goal Lauuemg.8 o!d3 LE'E99'9$ 004000144 9011 LC'E89'1, $ ZWL9 $ ZL LolewpLooO%yy Le4o3 •! 303 89'ZC13'4$ 69'ZSO $ 191)9 $ ZL Lo19u!p3000919 xop'S 3913 Z6'LZL'9$ ZB'lZL'S $ Lb'6L S ZL LoLeu!pLoo3mgA Lapum'g o913 00'61Z'CE$ 00'006$ e69e1111l 00'8l£'Z£ $ C9'614 S 91Z LaBeuelyloafad Las!eN.w o!d3 00'9Z8'Z IS 00'SZB'ZL $ EL'8LL $ ZL !edpuud !!em>poy'H 3913 Z L'ZOS'b LS Z1Z091.1 $ BZ'b£l $ 901 LaBeueys paled suen3 m o!d3 seo!naaS 1193 u0 '911Wd ZLOZ A0 Jo; peledlopue seaj LLOZ • OLOZ A3 a0l paled!oque seed null AO 19101 uosaad Aq leloy lunowy aeuadx3 sasuadx3 eletuus3 9ej coley sLnoH !enei aw9N •dwo0 _ 'milt Z ZNEWHJVIIV o iozn ide S301A1:13S 1N3MOVNdW A1213d02id 210d 31yWI1S31SOO • • COST ESTIMATE FOR PROPERTY MANAGEMENT SERVICES 3/11/2010 Area Comp. Name Level Hours Rate Fee Estimate Expenses Expense Amount Total by Person Total by Area Fees anticipated for CY 2010 - 2011 Fees anticipated for CY 2012 Epic H. Rockwell Prindpai 10 $ 178.13 $ 1,781.25 $1,781.25 $42,698.56 528,465.71 514,232.85 PMJ1. PVL Tenant Contract Resolution Epic K. Starr Project Manager 800 $ 137.02 $ 82.211.54 Mileage $1,350.00 $83,561.54 Epic H. Rockwell Principal 252 $ 178.13 $ 44,857.50 $44.887.50 Epic M. Kaiser Project Manager 600 $ 149.63 $ 89,775.00 Mileage $1.350.00 $91,125.00 Epic J. Rodriguez Senior Agent 100 $ 114.00 $ 11,400.00 Mileage $1,350.00 $12,750.00 Epic A. Luna Agent 940 $ 81.68 $ 57,959.13 Mileage $1.350.00 $59,309.13 Epic K. Chace Agent 1860 $ 61.68 $ 114,885.10 Mileage $1,350.00 $116,035.10 Epic L. Rodriguez Administrative 900 $ 61.66 $ 55,492.79 $55,492.79 $482,861.06 $345,045.79 $ 117,815.26 PMJ2. Non•PVL Tenant Contract Review and Resolution Epic K. Starr Project Manager 500 $ 137.02 $ 68,509.62 Mileage $900.00 $69,409.62 Epic H. Rockwell Principal 108 $ 178.13 $ 19,237.50 $19,237.50 Epic M. Kaiser Project Manager 365 $ 149.63 $ 54,813.13 Mileage $1.250.00 $55,863.13 Epic A. Luna Agent 730 $ 61.66 $ 45,010.82 Mileage $900.00 $45,910.82 Epic K. Chace Agent 1060 $ 61.86 $ 65,358.17 Mileage $900.00 $66,258.17 Epic L. Rodriguez Administrative 400 $ 61.66 $ 24,663.48 $24,663.46 $281,342.69 $168,805.62 $112,537.08 PMJ3. Property Information Updates Epic M. Kaiser Project Manager 120 $ 149.83 $ 17,955.00 Mileage $350.00 $18,305.00 Epic H. Rockwell Prindpal 50 $ 178.13 $ 8,906.25 -$8,906.25 Epic I. Coker RNV Coordinator 50 5 67.82 $ 3,391.23 $3,391.23 Epic L. Rodriguez Administrative 100 $ 81.86 $ 6,165.87 $8,165.87 $36,768.34 $24,51223 $12,256.11 PMJ4. Easement to Fee Conversion Epic M. Kaiser Project Manager 120 $ 149.63 $ 17,955.00 $17,955.00 Epic H. Rockwell Prindpal 10 $ 178.13 $ 1,781.25 $1,781.25 $19,736.25 $19,738.25 PMJ6. Caltrans Encroachment/ Oleander' Swap Epic M. Kaiser Project Manager 200 $ 149.63 $ 29,925.00 $29,925.00 Epic H. Rockwell Principal 50 $ 178.13 $ 8,906.25 $8,906.25 Epic W. Evans Project Manager 100 $ 134.28 $ 13,427.88 $13,427.88 $52,259.13 $52,259.13 PM. Project Management Epic H. Rockwell Prndpal 300 $ 178.13 $ 53,437.50 Mileage $2,180.00 $55,597.50 Epic W. Evans Project Manager 300 $ 134.28 $ 40,283.85 $40,283.65 Epic I. Coker RIW Coordinator 500 $ 67.82 $ 33,912.26 $33.912.26 Epic H. Swartz Acct Support 288 $ 68.51 $ 19.730.77 $19,730.77 5149,524.18 $99,682.79 $49,841.39 TOTAL 14,837 $ 1,408,711.00 $ 46,289.00 $ 1,455,000.00 $ 1,455,000.00 $ 970,000.00 $ 485,000.00 51 ATTACHMENT 3 Agreement No. 10-51-074-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT WITH EPIC LAND SOLUTIONS, INC. PROPERTY MANAGEMENT SUPPORT SERVICES FOR COMMISSION -OWNED REAL PROPERTIES 1. PARTIES AND DATE. This Agreement is made and entered into this _ day of , 20_, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Commission") and EPIC LAND SOLUTIONS, INC. ("Consultant'), a CALIFORNIA CORPORATION. 2. RECITALS. 2.1 On November 8, 1988 the Voters of Riverside County approved Measure A authorizing the collection of a one-half percent (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"). 2.2 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. 2.3 On November 5, 2002, the voters of Riverside County approved an extension of the Measure A tax for the continued funding of transportation and improvements within the County of Riverside. 2.4 Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Property Management Support services to public clients, is licensed in the State of California (if necessary), and is familiar with the plans of the Commission. 2.5 The Commission desires to engage Consultant to render such services for the Commission -owned Real Properties ('Project'), as set forth in this Agreement. RVPUB\HSHANE\768790.1 52 3.. TERMS. 3.1 General Scope of Services. Consultant shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, and incidental and customary work necessary to fully and adequately supply the professional Property Management Support services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.2 [Intentionally Omitted.] 3.3 The term of this Agreement shall be from the date first set forth above to January 1, 2011 ("Initial Term"), unless earlier terminated as provided herein. The Commission, in its sole discretion, shall have the option to extend the Initial Term for an additional period of one (1) year, ending January 1, 2012 ("First Extended Term"), by providing written notice to Consultant of such extension. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement. 3.4 Commission's Representative. The Commission hereby designates the Commission's Executive Director, or his or her designee, to act as its Representative for the performance of this Agreement ("Commission's Representative"). Commission's Representative shall havethe authority to act on behalf of the Commission for all purposes under this Agreement. Commission's Representative 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 Representative or his or her designee. 3.5 Consultant's Representative. Consultant hereby designates Holly Rockwell 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 Representative 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 Representative. RVPOB\1SHANE\768790.1 2 • • 53 • • 3.6 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 of Section 3.14. The key personnel for performance of this Agreement are: Holly Rockwell. 3.7 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 Representative in draft form, and the Commission may require revisions of such drafts prior to formal submission and approval. In the event that Commission's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, Commission's Representative may require Consultant to revise and resubmit the work at no cost to the Commission. 3.8 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. 3.9 Standard of Care; Licenses. Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Consultant further represents and warrants to the Commission that its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Commission, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant's errors and omissions. Any employee of Consultant or its sub -consultants who is determined by the Commission to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the Commission, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.10 Opportunity to Cure. Commission may provide Consultant an opportunity to cure, at Consultant's expense, all errors and omissions which may be RVPUB\HSHANF.\768790.1 3 54 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. 3.11 Inspection of Work. Consultant shalt allow the Commission's Representative to inspect or review Consultant's work in progress at any reasonable time. 3.12 Final Acceptance. Upon determination by the Commission that Consultant has satisfactorily completed the Services required under this Agreement and within the term set forth in Section 3.3, 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. 3.13 Laws and Requlations. 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 CaUOSHA requirements, and shall give all notices required by law. 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. 3.14 Termination. 3.14.1 Notice; Reason. Commission may, by written notice to Consultant, terminate this Agreement, in whole or in part, at any time by giving written notice to Consultant of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for Commission's convenience or because of Consultant's failure to perform its duties and obligations under this Agreement, including, but not limited to, the failure of Consultant to timely perform Services pursuant to the Schedule of Services described in Section 3.15 of this Agreement. Consultant may not terminate this Agreement except for cause. 3.14.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, Consultant shall discontinue all affected Services as directed in the Notice or as otherwise provided herein, and deliver to the Commission all Documents and Data, as defined in this Agreement, as may have been prepared or accumulated by Consultant in performance of the Services, whether completed or in progress. 3.14.3 Effect of Termination For Convenience. If the termination is to be for the convenience of the Commission, the Commission shall compensate Consultant AVPUB\HSHANE\768790.1 4 • • • 55 • for Services fully and adequately provided through the effective date of termination. Such payment shall include a pro -rated 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 Representative 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. 3.14.4 Effect of Termination for Cause. If the termination is for cause, Consultant shall be compensated for those Services which have been fully and adequately completed and accepted by the Commission as of the date the Commission provides the Notice of Termination. In such case, the Commission may take over the work and prosecute the same to completion by contract or otherwise. Further, 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. Termination of this Agreement for cause may be considered by the Commission in determining whether to enter into future agreements with Consultant. 3.14.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3.14.6 Procurement of Similar Services. In the event this Agreement is terminated, in whole or in part, as provided by this Section, the Commission may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.14.7 Waivers. Consultant, in executing this Agreement, shall be deemed to have waived any and all claims for damages which may otherwise arise from the Commission's termination of this Agreement, for convenience or cause, as provided in this Section. 3.15 Schedule and Progress of Services. 3.15.1 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of Commission's Representative, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. RVPUB\HSHANF\768790.1 5 56 3.15.2 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 Representative. 3.15.3 Trend Meetings. Consultant shall conduct trend meetings with the Commission's Representative 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. 3.15.4 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. 3.16 Delay in Performance. 3.16.1 Excusable Delays. Should Consultant be delayed or prevented from the timely performance of any act or Services required by the terms of the Agreement by reason of acts of God or of the public enemy, acts or omissions of the Commission or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather, performance of such act shall be excused for the period of such delay. 3.16.2 Written Notice. If Consultant believes it is entitled to an extension of time due to conditions set forth in subsection 3.16.1, 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. 3.16.3 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. RVPUB\HSHANE\769790.1 6 • • 57 3.17 Status of Consultant/Subconsultants. 3.17.1 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. 3.17.2 Prevailing Wages. By its execution of this Agreement, Consultant certifies that it is aware of the requirements of 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"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Copies of the prevailing rate of per diem wages in effect at the commencement of this Agreement are on file at the offices of the Commission. 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. Certified Payrolls are to be submitted whenever required by Prevailing Wage laws. 3.17.3 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 RVPUB\HSHANE\768790.1 7 58 California Labor Code, unless Consultant or the Services are not subject to the Eight -Hour Law. 3.17.4 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. 3.17.5 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Consultant has, as part of its proposal, identified certain companies/firms that will be subconsultants utilized by Consultant ("Subconsultants") for Project delivery. A list of said Subconsultants is attached hereto as Exhibit "C" Part 2 and made a part hereof. The Commission hereby approves the use by Consultant of the Subconsultants identified in Exhibit "C" Part 2. In the event and prior to the replacement of any Subconsultant approved herein, the Consultant shall seek and obtain the Commission's written approval. Exhibit "C" Part 2 also sets forth the rates at which each Subconsultant shall bill the Consultant for Services and that are subject to reimbursement by the Commission to Consultant. Additional Direct Costs, as defined in Exhibit "C" Part 1 shall be the same for both the Consultant and all subconsultants, unless otherwise identified in Exhibit "C" Part 2. Consultant acknowledges that approval of Consultant's Utilization of the identified Subconsultants together with the incorporation of Subconsultants' rate schedules and cost proposals into this Agreement shall in no way be construed to create any contractual relationship between any Subconsultant and the Commission. The Subconsultant rate schedules and cost proposals contained herein are for accounting purposes only. In the event that any Subconsultant shall bring any action, claim or proceeding purporting to enforce any right purportedly arising under this Agreement, the Consultant shall be responsible for the Commission's reasonable legal fees without regard to the merits of any such claim. 3.18 Ownership of Materials/Confidentiality. 3.18.1 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"). RVPUB\HSHANE\768790.1 8 • • 59 • 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. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media ("Intellectual Property") prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above -referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. RVPUR\HSHANE\768790.1 7 60 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. 3.18.3 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. 3.19 Indemnification. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold Commission, its directors, officials, officers, employees, consultants, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to alleged negligent acts, omissions, or willful misconduct of Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of consequential damages, expert witness fees, and attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Commission, its directors, officials, officers, employees, consultants, agents, or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against Commission or its directors, officials, officers, employees, consultants, agents, or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse Commission and its directors, officials, officers, employees, consultants, agents, and/or volunteers, for any and all legal expenses and costs, including reasonable attorney's fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Commission, its directors, officials officers, employees, consultants, agents, or volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant's obligations as set forth in this Section 3.19 shall survive expiration or termination of this Agreement. RVPUB\HSHANE\768790.1 10 • 61 3.20 Insurance. 3.20.1 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 addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.20.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) if Consultant has employees, 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; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.20.3 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. Such insurance shall be in an amount not less than $2,000,000 per claim. 3.20.4 Aircraft Liability Insurance. Prior to the direct or indirect use of any civil aircraft to provide Services under this Agreement, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit of not less than $5,000,000 per each occurrence. Such insurance shall include coverage for owned, hired and non -owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, its directors, officials, officers, employees RVPUB\HSHANE\768790.1 11 62 consultants and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 3.20.5 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. The general liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and . agents shall be covered as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the Commission, its 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, its 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. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its 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, its 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, its 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. 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. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Commission; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Commission, its directors, officials, officers, employees and agents. 3.20.6 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, RVPUB\HSHANE\768790.1 12 • 63 Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.20.7 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Commission, its directors, officials, officers, employees, and agents. 3.20.8 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. 3.20.9 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. 3.20.10 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. 3.21 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. RVPUB\HSHANE\768790.1 13 64 3.22 Fees and Payment. 3.22.1 Compensation. (A) Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. (B) The total compensation for the Initial Term shall not exceed Nine Hundred Seventy Thousand Dollars ($970,000) without written approval of Commission's Representative. (C) If the Commission exercises its option to extend the term of this Agreement for the First Extended Term, as set forth in Section 3.3 above, the total compensation for the First Extended Term shall not exceed Four Hundred Eighty Five Thousand Dollars ($485,000) without written approval of the Commission's Representative. (D) Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.22.2 Payment of Compensation. Consultant shall submit a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the Statement. Charges specific to each Milestone listed in the Schedule of Services shall be listed separately on an attachment to each statement. Each statement shall be accompanied by a monthly progress report and spreadsheets showing hours expended for each task for each month and the total Project to date. Each statement shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the Consultant's Project Manager or other authorized officer. 3.22.3 Extra Work. At any time during the term of this Agreement, Commission may request Consultant to perform Extra Work. As used herein, "Extra Work" means any work which is determined by the Commission to be necessary for proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Representative. Extra Work which has been authorized shall be compensated in a total amount of up to $00 at the rates and in the manner set forth in Exhibit "C" attached hereto or the Extra Work order, as applicable. However, no compensation for Extra Work shall be paid except upon. the issuance of a written Extra Work Order by Commission's Representative. In the event an Extra Work Order is not issued and signed by Commission's Representative, Consultant shall not provide such Extra Work. RVPUB\HSHANE\768790.1 14 65 • 3.22.4 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by the Commission's Representative. 3.23 Prohibited Interests. 3.23.1 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. 3.23.2 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. 3.23.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.24 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of the Commission during normal business hours to examine, audit, and make transcripts or copies of any and all ledgers and books of account, invoices, vouchers, canceled checks, and any other records or documents created pursuant to this Agreement. All such information shall be retained by Consultant for at least three (3) years following termination of this Agreement. 3.25 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. Consultant shall also comply with all relevant provisions of the Commission's Disadvantaged Business Enterprise program, Affirmative RVPUS\HSHANE\765790.1 15 66 Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.26 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub -consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub -consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant 3.27 Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with the Project. Consultant shall cooperate fully with any other consultant engaged by the Commission on the Project. 3.28 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 3.29 Attorneys' Fees. If either party commences an action against the other parry, 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. 3.30 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.31 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. RVPUB\HSHANE\768790.1 16 • 67 • 3.32 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: Epic Land Solutions, Inc. 2601 Airport Drive, Suite 115 Torrance, CA 90505 Attn: President COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3`d Floor Riverside, CA 92501 Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid, and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.33 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. 3.34 Amendment or Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.35 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. 3.36 Invalidity; Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.37 Survival. All rights and obligations hereunder that by their nature are to be performed after any expiration or termination of this Agreement shall survive any such expiration or termination. 3.38 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.39 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. RVPOB\HSHANE\768790.1 17 68 3.40 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.41 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.42 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. RVPUB\HSHANE\768790.1 [Signatures on following page] I • 69 • • SIGNATURE PAGE TO AGREEMENT NO. IN WITNESS WHEREOF; this Agreement was executed on the date first written above. RIVERSIDE COUNTY EPIC LAND SOLUTIONS, INC. TRANSPORTATION COMMISSION By: By: Bob Buster Chair Approved as to Form: By: Best, Best & Krieger LLP General Counsel RVPUB\HSHANE\768790.1. 19 Signature Name Title ATTEST: By: Its: Secretary 70 • RVPUBTLC1660571 RVPUH\HSHANE\768790.1 EXHIBIT "A" SCOPE OF SERVICES E INSERT j A-1 71 • • RVPOS\HSHANE\768790.1 EXHIBIT "B" SCHEDULE OF SERVICES j INSERT j B- I 72 • • EXHIBIT "C" COMPENSATION AND PAYMENT For the satisfactory performance and completion of the Services under this Agreement, the Commission will pay the Consultant compensation as set forth herein. 1. ELEMENTS OF COMPENSATION. Compensation for the Services will be comprised of the following elements: 1.1 Direct Labor Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs. 1.1 DIRECT LABOR COSTS. Direct Labor costs shall be paid in an amount equal to the product of the Direct Salary Costs and the Multiplier which are defined as follows: 1.1.1 DIRECT SALARY COSTS Direct Salary Costs are the base salaries and wages actually paid to the Consultant's personnel directly engaged in performance of the Services under the Agreement. (The range of hourly rates paid to the Consultant's personnel appears in Section 2 below.) 1.1.2 MULTIPLIER The Multiplier to be applied to the Direct Salary Costs to determine the Direct Labor Costs is 2.587 and is the sum of the following components: RVPUB\HSHANE\768790.1 1.1.2.1 Direct Salary Costs 1.0 1.1.2.2 Payroll Additives .0363 The decimal ratio of Payroll Additives to Direct Salary Costs. Payroll Additives include all employee benefits, allowances for vacation, sick leave, and holidays, and company portion of employee insurance and social and retirement benefits, all federal and state payroll taxes, premiums for insurance which are measured by payroll costs, and other contributions and benefits imposed by applicable laws and regulations. 1.1.2.3 Overhead Costs 1.224 The decimal ratio of allowable Overhead Costs to the Consultant firm's total direct salary costs. Allowable Overhead Costs include 73 general, administrative and overhead costs of maintaining and operating established offices, and consistent with established firm policies, and as defined in the Federal Acquisitions Regulations, Part 31.2. Total Multiplier 2.587 (sum of 1.1-2.1, 1,1.2.2, and 1.1.2.3) 1.2 FIXED FEE. 1.2.1 The fixed fee is $0 1.2.2 A pro-rata share of the Fixed Fee shall be applied to the total Direct Labor Costs expended for services each month, and shall be included on each monthly invoice. 1.3 ADDITIONAL DIRECT COSTS. Additional Direct Costs directly identifiable to the performance of the services of this Agreement shall be reimbursed at the rates below, or at actual invoiced cost. Rates for identified Additional Direct Costs are as follows: ITEM REIMBURSEMENT RATE Per Diem $ 35/day Car mileage $ IRS reimburseable Travel $ at cost Overnight mail and postage at cost Travel by air and travel in excess of 100 miles from the Consultant's office nearest to the Commission's office must have the Commission's prior written approval to be reimbursed under this Agreement. 2. DIRECT SALARY RATES Direct Salary Rates, which are the range of hourly rates to be used in determining Direct Salary Costs in Section 1.1.1 above, are given below and are subject to the following: 2.1 Direct Salary Rates shall be applicable to both straight time and overtime work, unless payment of a premium for overtime work is required by law, RVPUB\HSHANE\768790.1 • 74 regulation or craft agreement, or is otherwise specified in this Agreement. In such event, the premium portion of Direct Salary Costs will not be subject to the Multiplier defined in Paragraph 1.1.2 above. 2.2 Direct Salary Rates shown herein are in effect for one year following the effective date of the Agreement. Thereafter, they may be adjusted annually to reflect the Consultant's adjustments to individual compensation, The Consultant shall notify the Commission in writing prior to a change in the range of rates included herein, and prior to each subsequent change. POSITION OR CLASSIFICATION RANGE OF HOURLY RATES Principal $ 62.50 - $ 70.00/hour Project Manager $ 40.00 - $ 65.00/hour Assistant Project Manager $ 35.00 - $ 45.00/hour Senior Agent/ Coordinator $ 26.00 - $ 34.99/hour Agent/ Analyst $ 15.00 - $ 25.99.00/hour Technician $ 10.00 - $ 19.00/hour Accounting Support $ 20.00 - $ 45.00/hour 2.3 The above rates are for the Consultant only. All rates for subconsultants to the Consultant will be in accordance with the Consultant's cost proposal. 3. INVOICING. 3.1 Each month the Consultant shall submit an invoice for Services performed during the preceding month. The original invoice shall be submitted to the Commission's Executive Director with two (2) copies to the Commission's Project Coordinator. 3.2 Charges shall be billed in accordance with the terms and rates included herein, unless otherwise agreed in writing by the Commission's Representative. 3.3 Base Work and Extra Work shall be charged separately, and the charges for each task and Milestone listed in the Scope of Services, shall be listed separately. The charges for each individual assigned by the Consultant under this Agreement shall be listed separately on an attachment to the invoice. 3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be accompanied by substantiating documentation satisfactory to the Commission such as invoices, telephone logs, etc. RVPUB\HSHANE\768790.1 75 3.5 Each copy of each invoice shall be accompanied by a Monthly Progress Report and spreadsheets showing hours expended by task for each month and total project to date. 3.6 Each invoice shall indicate payments to DBE subconsultants or supplies by dollar amount and as a percentage of the total invoice. 3.7 Each invoice shall include a certification signed by the Consultant's Representative or an officer of the firm which reads as follows: I hereby certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the employees listed. Signed Title Date Invoice No. 4. PAYMENT 4.1 The Commission shall pay the Consultant within four to six weeks after receipt by the Commission of an original invoice. Should the Commission contest any portion of an invoice, that portion shall be held for resolution, without interest, but the uncontested balance shall be paid. 4.2 The final payment for Services under this Agreement will be made only after the Consultant has executed a Release and Certificate of Final Payment. RVPUB\HSHANE\768790.1 • • • 76