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HomeMy Public PortalAbout03 March 23, 2015 Budget & implementationRIVERSIDE COUNTY TRANSPORTATION COMMISSION BUDGET AND IMPLEMENTATION COMMITTEE MEETING AGENDA TIME: 9:30 a.m. DATE: Monday, March 23, 2015 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside  COMMITTEE MEMBERS  Bob Magee, Chair / Natasha Johnson, City of Lake Elsinore Jan Harnik, Vice Chair / Susan Marie Weber, City of Palm Desert Brenda Knight / Jeff Fox, City of Beaumont Ella Zanowic / Jim Hyatt, City of Calimesa Dawn Haggerty / Jordan Ehrenkranz, City of Canyon Lake Greg Pettis / Shelley Kaplan, City of Cathedral City Steven Hernandez / To Be Appointed, City of Coachella Scott Matas / Russell Betts, City of Desert Hot Springs Linda Krupa / Robert Youssef, City of Hemet Dana Reed / Douglas Hanson, City of Indian Wells Rick Gibbs / Jonathan Ingram, City of Murrieta Steve Adams / Andy Melendrez, City of Riverside Michael Naggar / To Be Appointed, City of Temecula John F. Tavaglione, County of Riverside, District II Chuck Washington, County of Riverside, District III  STAFF  Anne Mayer, Executive Director Theresia Trevino, Chief Financial Officer  AREAS OF RESPONSIBILITY  Annual Budget Development and Oversight Competitive Federal and State Grant Programs Countywide Communications and Outreach Programs Countywide Strategic Plan Legislation Public Communications and Outreach Programs Short Range Transit Plans 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. COMM-BI-00024 ....---------------------------------------------------- Tara Byerly From: Tara Byerly Sent: To: Wednesday, March 18, 2015 2:56 PM Tara Byerly Cc: Jennifer Harmon Subject: RCTC: Budget and Implementation Committee Agenda -03.23.2015 Importance: High Good afternoon Budget and Implementation Committee Members: Attached below is the link to the Budget and Implementation Committee Agenda for the meeting scheduled@ 9:30 a.m. on Monday, March 23. http://www.rctc.org/uploads/media items/budget-and-implementation-committe-march-23-2015.original.pdf Also, attached for your review and information is the conflict of interest memo and form. Let me know if you have any questions. Thank you. Conflict of Conflict of Interest Memo.pdf Interest Form.pdf Respectfully, Tara S. Byerly Senior Administrative Assistant RCTC 4080 Lemon Street, 3rd Floor Riverside, CA 92501 (951) 787-7141 1 TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Office and Board Services Manager DATE: March 18, 2015 SUBJECT: Possible Conflicts of Interest Issues – Budget and Implementation Committee Agenda of March 23, 2015 The March 23, 2015 agenda of the Budget and Implementation Committee includes items which may raise possible conflicts of interest. A RCTC member may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from any entity or individual listed. Agenda Item No. 8 – Agreement with Macias Gini & O'Connell LLP for Audit Services Consultant(s): Macias Gini & O’Connell LLP Katherine V. Lai, Partner 4675 MacArthur Court, Suite 600 Newport Beach, CA 92660 Agenda Item No. 9 – Agreement with Bartel Associates, LLC for Actuarial Valuation Services for Other Post Employment Benefits Consultant(s): Bartel Associates, LLC Doug Pryor, Vice President 411 Borel Avenue, Suite 101 San Mateo, CA 94402 Agenda Item No. 11 – Appointment of Underwriters for Commission Financings Consultant(s): Barclays Capital Inc. John McCray-Goldsmith, Director 555 California Street, 30th Floor San Francisco, CA 94104 Fidelity Capital Markets, a division of National Financial Services LLC Debra Saunders, Vice President 350 California Street, MKT 6 San Francisco, CA 94104 Goldman, Sachs and Co. Ian Parker, Managing Director 555 California Street, 45th Floor San Francisco, CA 94104 Merrill Lynch, Pierce, Fenner & Smith Incorporated Kevin O’Brien, Managing Director 333 S. Hope Street, Suite 2310 Los Angeles, CA 90071 RIVERSIDE COUNTY TRANSPORTATION COMMISSION BUDGET AND IMPLEMENTATION COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 9:30 a.m. Monday, March 23, 2015 BOARD ROOM County Administrative Center 4080 Lemon Street, First Floor Riverside, California In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission’s website, www.rctc.org. In compliance with the Americans with Disabilities Act, Government Code Section 54954.2, and the Federal Transit Administration Title VI, please contact the Clerk of the Board at (951) 787-7141 if special assistance is needed to participate in a Commission meeting, including accessibility and translation services. Assistance is provided free of charge. Notification of at least 48 hours prior to the meeting time will assist staff in assuring reasonable arrangements can be made to provide assistance at the meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ATTENDANCE / ROLL CALL 4. PUBLIC COMMENTS – Each individual speaker is limited to speak three (3) continuous minutes or less. The Committee may, either at the direction of the Chair or by majority vote of the Committee, waive this three minute time limitation. Depending on the number of items on the Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of each speaker to two (2) continuous minutes. Also, the Committee may terminate public comments if such comments become repetitious. In addition, the maximum time for public comment for any individual item or topic is thirty (30) minutes. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Committee shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items. 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. Budget and Implementation Committee March 23, 2015 Page 2 5. APPROVAL OF MINUTES – FEBRUARY 23, 2015 6. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 7. CONSENT CALENDAR - All matters on the Consent Calendar will be approved in a single motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the Consent Calendar will be placed for discussion at the end of the agenda. Page 1 7A. QUARTERLY SALES TAX ANALYSIS Overview This item is for the Committee to: 1) Receive and file the sales tax analysis for Quarter 3 2014 (Q3 2014); and 2) Forward to the Commission for final action. 8. AGREEMENT WITH MACIAS GINI & O’CONNELL LLP FOR AUDIT SERVICES Page 9 Overview This item is for the Committee to: 1) Award Agreement No. 15-19-043-00 to Macias Gini & O'Connell LLP (MGO) for audit services for a three-year term, with two one-year options to extend the agreement, for $841,000, plus a contingency in the amount of $59,000, for a total amount not to exceed $900,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; 3) Authorize the Executive Director or designee to approve contingency work up to the total not to exceed amount as required for these audit services; and 4) Forward to the Commission for final action. Budget and Implementation Committee March 23, 2015 Page 3 9. AGREEMENT WITH BARTEL ASSOCIATES, LLC FOR ACTUARIAL VALUATION SERVICES FOR OTHER POST EMPLOYMENT BENEFITS Page 30 Overview This item is for the Committee to: 1) Award Agreement No. 15-19-044-00 to Bartel Associates, LLC (Bartel) for actuarial valuation services for Other Post Employment Benefits (OPEB) for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $45,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. 10. TRUSTEE SERVICES FOR TOLL REVENUE BONDS Page 50 Overview This item is for the Committee to: 1) Award Agreement No. 15-19-083-00 to U.S. Bank National Association (US Bank) for trustee services related to the 2013 Toll Revenue Bonds (Toll Bonds) for the State Route 91 Corridor Improvement Project (91 Project) for a five-year period, with additional option periods in five-year increments, in an amount of $60,000, plus a contingency amount of $5,000, for a total amount not to exceed $65,000 for the initial five-year term; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute agreement on behalf of the Commission; 3) Authorize the Executive Director or designee to approve contingency work up to the total not to exceed amount as required for the trustee services; 4) Ratify Agreement No. 15-19-085-00, a three-party agreement among the Commission, US Bank as successor trustee, and The Bank of New York Mellon Trust Company, N.A. (BNY Mellon) as prior trustee regarding the transfer of the rights, powers, and trusts related to the Toll Bonds; and 5) Forward to the Commission for final action. Budget and Implementation Committee March 23, 2015 Page 4 11. APPOINTMENT OF UNDERWRITERS FOR COMMISSION FINANCINGS Page 81 Overview This item is for the Committee to: 1) Approve the selection of the following firms to provide underwriting services to the Commission in connection with long-term debt financings for a four-year period, with an option to extend for an additional two one-year periods: a) Academy Securities, Inc. (Academy); b) Bank of America Merrill Lynch (BAML); c) Barclays Capital, Inc. (Barclays); d) Fidelity Capital Markets (Fidelity); and e) Goldman Sachs & Co. (Goldman); 2) Approve the appointments of BAML and Goldman to perform the services of joint bookrunning senior managing underwriters, Barclays as co-senior managing underwriter, and Academy and Fidelity as co-managing underwriters in connection with the proposed Interstate 15 Express Lanes Project financing; 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 meeting/conferences and issues related to Commission activities. 13. ADJOURNMENT AND THE NEXT MEETING The next Budget and Implementation Committee meeting is scheduled to be held at 9:30 a.m., Monday, April 27, 2015, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION BUDGET AND IMPLEMENTATION COMMITTEE SIGN-IN SHEET MARCH 23, 2015 NAME AGENCY E MAIL ADDRESS (J ~ ,,!k .-a~ 01 ~"1 ~rt«~ (tJac~/~ ~ ,_ 4 ~ -J --..,.,_ ~T''~ !9JkP Ki Af:~Jm fi ;;)~ t-f2vc:ri c o VY\ n Yl d- t'-"'LA ~~-, ~ .-t~-· .. ._. /0-; ,· ~, ...... ,_ (.b.~l."'1 (~I ~I 1,,..-, /I ·:rt. .b., l;\/\. ') -1~ A )0 liSh /~/\ M \ fl2.-( LH__ bl.C:-0v;7 ~Q ~( H:t,v}..\t~ ~' 9-f 17 rV". !)~5~ ~ f-c:-'-ZYe-AJ:J.=-.~-I~~" I JL-.te.f /.tJh s;..,)~ /J1,A~ '·-?;_~;;:q;-,4~ <)/,,-? .:;_,, ( R r e-t<::-. G / t' Y ~ /'t-C/ f'.--.;;_,-k: {~ /'/)&_. C-Xh __ ,..,,,;...f;o/ ~YA;/) d <"r;;N' ~d 0 '> LMuf:r::; ulrdfz ~ r~ Y" --Do 1,A,;1\ \ ~-( r-\: \~Yl.r v""' ( :· 'I I fl-( f-:i/1/l 1 0 1,,, lNi \ \ r -0 I RIVERSIDE COUNTY TRANSPORTATION COMMISSION BUDGET AND IMPLEMENTATION COMMITTEE ROLL CALL MARCH 23, 2015 Present County of Riverside, District II County of Riverside, District Ill City of Beaumont City of Calimesa City of Canyon Lake City of Cathedral City City of Coachella City of Desert Hot Springs City of Hemet City of Indian Wells City of Lake Elsinore City of Murrieta City of Palm Desert City of Riverside City of Temecula jf D ~ ~ D ~ ~ ~ b ~ ~ Absent [j ~ [j [j { [j [j D D [j [j D D --------1 AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION BUDGET AND IMPLEMENTATION COMMITTEE Monday, February 23, 2015 MINUTES 1. CALL TO ORDER The meeting of the Budget and Implementation Committee was called to order by Past Chair Ella Zanowic at 9:30 a.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 Dana Reed led the Budget and Implementation Committee in a flag salute. 3. ROLL CALL Members/Alternates Present Members Absent Steve Adams Dawn Haggerty Rick Gibbs Greg Pettis Jan Harnik John Tavaglione Steven Hernandez* County of Riverside – District 3 Brenda Knight Linda Krupa Bob Magee Scott Matas Michael Naggar* Dana Reed Ella Zanowic *Arrived after the meeting was called to order 4. PUBLIC COMMENTS There were no requests to speak from the public. 5. APPROVAL OF MINUTES – SEPTEMBER 22, 2014 M/S/C (Adams/Matas) to approve the minutes of September 22, 2014 meeting as submitted. RCTC Budget and Implementation Committee Minutes February 23, 2015 Page 2 Abstain: Knight 6. ADDITIONS / REVISIONS Anne Mayer, Executive Director, stated staff requested Agenda Item 11, “State and Federal Legislative Update”, be moved up to the first discussion item. 7. CONSENT CALENDAR - All matters on the Consent Calendar will be approved in a single motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the Consent Calendar will be placed for discussion at the end of the agenda. M/S/C (Adams/Matas) to approve the following Consent Calendar item(s): 7A. QUARTERLY FINANCIAL STATEMENTS 1) Receive and file the Quarterly Financial Statements for the period ended December 31, 2014; and 2) Forward to the Commission for final action. 7B. QUARTERLY SALES TAX ANALYSIS 1) Receive and file the sales tax analysis for Quarter 3 2014 (Q3 2014); and 2) Forward to the Commission for final action. 7C. QUARTERLY INVESTMENT REPORT 1) Receive and file the Quarterly Investment Report for the quarter ended December 31, 2014; and 2) Forward to the Commission for final action. 7D. SINGLE SIGNATURE AUTHORITY REPORT 1) Receive and file the Single Signature Authority report for the second quarter ended December 31, 2014; and 2) Forward to the Commission for final action. At this time, Commissioner Steven Hernandez joined the meeting. 11. STATE AND FEDERAL LEGISLATIVE UPDATE Aaron Hake, Government Relations Manager, provided an update on state and federal legislative activities. RCTC Budget and Implementation Committee Minutes February 23, 2015 Page 3 Anne Mayer explained when the Commission wants assurance that any additional revenues are spent at the local level and are targeted for capital improvement programs and local streets and roads maintenance. She stated staff is working very closely with the League of California Cities and California State Association of Counties staffs to ensure the messages are consistent. She explained in March, April, and May 2015 staff will bring back to the Commission the proposals being presented and the Commission will take positions on these proposals. Anne Mayer stated on February 24 the Senate Transportation Committee is holding a hearing where Senator Richard Roth serves as the Commission representative and she will testify on behalf of Self-Help County Coalition on the impacts of the revenue short falls on the Self-Help County programs. M/S/C to: 1) Receive an update on state and federal legislation; and 2) Forward to the Commission for final action. 8. FISCAL YEAR 2014/15 MID-YEAR BUDGET ADJUSTMENTS Michele Cisneros, Finance Manager/Controller, presented the FY 2014/15 mid-year budget adjustments. M/S/C (Adams/Hernandez) to: 1) Approve a net increase of $885,000 in Fiscal Year 2014/15 expenditures for mid-year budget adjustments; and 2) Forward to the Commission for final action. 9. PROPOSED POLICY GOALS AND OBJECTIVES FOR FISCAL YEAR 2015/16 BUDGET Michele Cisneros presented the budget policy goals and objectives for FY 2015/16, highlighting the following areas: • Budget development – Commission policy goals, department goals and objectives, and budget development and adoption; • Commission guiding policies – Efficient transportation system; economic prosperity and quality of life; flexibility to respond to change and opportunity in collaborative manner; public need is priority; and dedicated to environmental stewardship; • Commission policy goals and objectives – Mobility, goods movement, economic development, system efficiencies, environmental stewardship, intermodalism and accessibility, and communications; • Major changes – To the areas in promote mobility, system efficiencies, and revenue policies; and • Next steps. RCTC Budget and Implementation Committee Minutes February 23, 2015 Page 4 At this time, Commissioner Michael Naggar joined the meeting. Commissioner Jan Harnik noted the California Environmental Quality Act is under the Promote Mobility section and expressed it receives the attention as it is pivotal to anything the Commission does. M/S/C (Gibbs/Adams) to: 1) Approve the proposed Commission Policy Goals and Objectives for the Fiscal Year 2015/16 Budget; and 2) Forward to the Commission for final action. Anne Mayer explained she wanted to draw attention to the Commission Policy Goals and Objectives and stated staff took the information from the 2015 Commission Workshop that the facilitator put together and crafted these statements. She asked if there is any language that is not correctly reflected to let staff know before it the March Commission meeting. Commissioner Rick Gibbs explained the reason this item moved so quickly is that there was such great participation at the 2015 Commission Workshop. If there were any issues the Commissioners would have spoken up. He expressed it was a positive attempt to integrate what the Commissioners were thinking in terms of a long term vision and tying those together with the current goals and he commended staff. 10. TITLE VI PROGRAM REPORT, INCLUDING PUBLIC PARTICIPATION PLAN AND LANGUAGE ASSISTANCE PLAN Lorelle Moe-Luna, Senior Staff Analyst, presented the Title VI Program Report, including the public participation plan and language assistance plan. She noted that the next update will be in 2018. M/S/C (Adams/Gibbs) to: 1) Approve the Title VI Program Report, including the Public Participation Plan and Language Assistance Plan in compliance with Federal Transit Administration (FTA) requirements; and 2) Forward to the Commission for final action. RCTC Budget and Implementation Committee Minutes February 23, 2015 Page 5 12. ELECTION OF OFFICERS John Standiford explained this item is for the Budget and Implementation Committee to conduct an election of the officers for 2015. At this time, Past Chair Zanowic opened nominations for the Chair and Vice Chair position. Commissioner Gibbs seconded by Commissioner Adams, nominated Commissioner Jan Harnik for the Chair position for 2015 and Commissioner Bob Magee for the Vice Chair position for 2015. Commissioner Harnik declined the nomination due to being new to the committee. Therefore, Commissioner Gibbs seconded by Commissioner Adams, nominated Commissioner Bob Magee for the Chair position for 2015 and Jan Harnik for the Vice Chair position for 2015. No other nominations were received. The Chair closed the nominations. Commissioners Bob Magee and Jan Harnik were elected as the Budget and Implementation Committee’s Chair and Vice Chair for 2015, respectively. 13. COMMISSIONERS / EXECUTIVE DIRECTOR REPORT Anne Mayer announced there are two public hearings for the Coachella Valley-San Gorgonio Pass Rail Corridor Study scheduled for February 23 at the Banning City Hall and February 26 at the Coachella Valley Association of Governments. 14. ADJOURNMENT AND NEXT MEETING There being no further business for consideration by the Budget and Implementation Committee, the meeting was adjourned at 10:00 a.m. The next meeting of the Budget and Implementation Committee is scheduled for March 23, 2015, at 9:30 a.m. Respectfully submitted, Tara S. Byerly Deputy Clerk of the Board AGENDA ITEM 7A BLANK RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 23, 2015 TO: Budget and Implementation Committee FROM: Michele Cisneros, Finance Manager/Controller THROUGH: Theresia Trevino, Chief Financial Officer SUBJECT: Quarterly Sales Tax Analysis STAFF RECOMMENDATION: This item is for the Committee to: 1) Receive and file the sales tax analysis for Quarter 3 2014 (Q3 2014); and 2) Forward to the Commission for final action. BACKGROUND INFORMATION: At its December 2007 meeting, the Commission awarded an agreement to MuniServices, LLC (MuniServices) for quarterly sales tax reporting services plus additional fees contingent on additional sales tax revenue generated from the transactions and use tax (sales tax) audit services. As part of the recurring contracts process, the Commission approved a five-year extension through June 30, 2018. The services performed under this agreement pertain to only the Measure A sales tax revenues. Since the commencement of these services, MuniServices submitted an audit update, which reported findings generated and submitted to the State Board of Equalization (SBOE) for review and determination of errors in sales tax reporting related to 326 businesses. For Q2 2014, the SBOE approved corrections for 231 of these accounts for a total sales tax revenue recovery of $4,683,894. Updated amounts for Q3 2014 will be provided once received from MuniServices. If the SBOE concurs with the error(s) for the remaining claims, the Commission will receive additional revenues; however, the magnitude of the value of the remaining findings was not available. It is important to note that while the recoveries of additional revenues will be tangible, it will not be sufficient to alter the overall trend of sales tax revenues. Additionally, MuniServices provided the Commission with the quarterly sales tax summary report for the Q3 2014. Most of the Q3 2014 Measure A sales tax revenues were received by the Commission in the fourth quarter of calendar year 2014, during October through December 2014, due to a lag in the sales tax calendar. The summary section of the Q3 2014 report is attached and includes an overview of California sales tax receipts, local results, historical cash Agenda Item 7A 1 collections analysis by quarter, summary of the top 25 sales/use tax contributors, historical sales tax amounts, annual sales tax by business category, five-year economic trend for significant business category (auto sales-new), and results. Sales tax receipts for Riverside County were 7.7 percent compared to the Q3 2013. Auto sales- new and restaurants had the largest gains in the Q3 2014 benchmark year; the segments that reflected the smallest gains during the same period were service stations, building materials- wholesale, and light industry. The slower growth in sales tax receipts from service stations, similar to recent prior quarters, can be attributed to lower gas prices. The slowdown in sales tax receipts from building materials-wholesale and light industry can be attributed to a decline in use tax sales on heavy equipment used by energy-related companies in the completion of renewable energy developments in Riverside County. In the Economic Category Analysis below, five of the six categories experienced new highs in the Q3 2014 benchmark year compared to the prior eight benchmark year quarters. Food products and miscellaneous had the largest increases at 7.5 and 6.5 percent, respectively. The food products increase is a result in the steady growth in restaurant prices with no decline in restaurant use. The other economic segments had increases ranging from 3.1 percent to 5.4 percent. For 7 of the top 10 segments (auto sales-new, department stores, restaurants, miscellaneous retail, apparel stores, food markets, and building materials-retail) during the past eight quarters, sales tax receipts reached a new high point. These 7 segments represent 53.4 percent of the total sales tax receipts. Service stations and light industry, two of the top 10 segments representing 10.7 and 4.3 percent of the total sales tax receipts remained relatively flat compared to their lowest points in Q1 2014 and Q4 2013, respectively. Building materials-wholesale had a slight decrease from the previous Q2 2014 high point. The top 10 segments represent 75.8 percent of the total sales tax receipts. For the other segments representing 24.2 percent of the total sales tax receipts, the segments representing 14.8 percent of the total sales tax receipts reached new high points in the past two years during Q3 2014. % of Total / % Change RCTC State Wide S.F. Bay Area Sacramento Valley Central Valley South Coast Inland Empire North Coast Central Coast General Retail 28.3 / 4.7 28.4 / 2.3 27.5 / 2.4 28.1 / 1.1 30.3 / 3.7 28.9 / 1.9 26.8 / 3.8 28.0 / 0.2 32.1 / 1.1 Food Products 16.5 / 7.5 19.5 / 5.6 20.7 / 6.7 16.5 / 4.6 15.9 / 3.4 20.4 / 5.3 16.8 / 7.1 18.4 / 3.6 30.3 / -0.1 Transportation 26.9 / 5.4 25.1 / 4.2 22.1 / 4.1 28.9 / 4.8 27.1 / 4.3 24.8 / 3.6 28.9 / 6.1 31.3 / 1.6 21.9 / 3.9 Construction 11.8 / 4.5 9.1 / 4.4 9.1 / 5.5 10.8 / 5.5 11.3 / 6.3 8.0 / 3.2 10.9 / 4.5 12.4 / 2.0 9.3 / 6.3 Business to Business 14.5 / 3.1 16.8 / 4.4 19.4 / 5.9 14.0 / 2.1 14.2 / 3.0 16.9 / 3.9 15.7 / 5.3 9.0 / 5.0 5.3 / 0.6 Miscellaneous 1.9 / 6.5 1.1 / 2.3 1.1 / 0.1 1.7 / 1.4 1.2 / 0.7 1.0 / 6.8 1.0 / -8.1 1.0 / 6.0 1.1 / -1.2 Total 100.0 / 5.1 100.0 / 4.0 100.0 / 4.6 100.0 / 3.3 100.0 / 4.0 100.0 / 3.5 100.0 / 5.2 100.0 / 2.0 100.0 / 1.8 General Retail: Apparel Stores, Department Stores, Furniture/Appliances, Drug Stores, Recreation Products, Florist/Nursery, and Misc. Retail Food Products: Restaurants, Food Markets, Liquor Stores, and Food Processing Equipment Construction: Building Materials Retail and Building Materials Wholesale Transportation: Auto Parts/Repair, Auto Sales - New, Auto Sales - Used, Service Stations, and Misc. Vehicle Sales Business to Business: Office Equip., Electronic Equip., Business Services, Energy Sales, Chemical Products, Heavy Industry, Light Industry, and Leasing Miscellaneous: Health & Government, Miscellaneous Other, and Closed Account Adjustments ECONOMIC CATEGORY ANALYSIS Agenda Item 7A 2 In the Economic Segment Analysis below, auto sales-new, service stations, and department stores represent the three largest segments for Riverside County, or 32 percent of total sales taxes. This is the eighth consecutive quarter since Q3 2008 that auto sales-new and department stores have been in the top three economic segments. Growth seen in previous quarters for the service stations segment has been declining slowly from the high in the last three years due to lower gas prices; however, in comparing year over year results, service stations had a minor increase of 0.2 percent. During the review of the Q3 2014 detailed report with MuniServices, information regarding sales tax comparison by city and change by economic category from Q3 2013 to Q3 2014 was provided. Staff continues to monitor monthly sales tax receipts and other available economic data to determine the need for any adjustment to the revenue projections. Staff will utilize the forecast scenarios included with the complete report and recent trends in assessing such projections. Staff included a revised Quarterly Sales Tax Change Comparison by City for Q3 2013 to Q3 2014. Attachments: 1) Sales Tax Digest Summary Q3 2014 2) Quarterly Sales Tax Change Comparison by City for Q3 2013 to Q3 2014 – Revised RCTC State Wide S.F. Bay Area Sacramento Valley Central Valley South Coast Inland Empire North Coast Central Coast Largest Segment Auto Sales - New Restaurants Restaurants Auto Sales - New Department Stores Restaurants Service Stations Service Stations Restaurants % of Total / % Change 10.8 / 9.3 13.5 / 6.7 14.5 / 7.8 11.9 / 7.7 13.8 / 1.3 14.7 / 6.4 12.1 / 2.1 13.7 / -1.2 21.5 / 3.4 2nd Largest Segment Service Stations Auto Sales - New Auto Sales - New Department Stores Service Stations Auto Sales - New Department Stores Department Stores Misc. Retail % of Total / % Change 10.7 / 0.2 10.5 / 8.5 10.1 / 7.2 11.4 / 0.6 11.1 / -1.0 10.7 / 8.3 11.0 / 1.8 11.2 / -0.8 9.9 / 3.8 3rd Largest Segment Department Stores Department Stores Department Stores Restaurants Auto Sales - New Department Stores Restaurants Auto Sales - New Service Stations % of Total / % Change 10.5 / 2.4 10.0 / 0.9 8.4 / 1.2 10.6 / 5.8 10.1 / 11.4 9.7 / 0.5 10.6 / 7.5 10.3 / 6.6 9.8 / 0.6 ECONOMIC SEGMENT ANALYSIS Agenda Item 7A 3 BLANK Riverside County Transportation Commission Sales Tax Digest Summary Collections through December 2014 Sales through September 2014 (2014Q3) CALIFORNIA’S ECONOMIC OUTLOOK California sales tax receipts increased by 6.2% over the same quarter from the previous year, with Northern California reporting a 6.7% increase compared to 5.7% for Southern California. Receipts for the RCTC changed by 7.7% over the same periods. ShopperTrak predicts that Super Saturday, the last day before Christmas, will surpass Black Friday for holiday spending this year. Stores opening Thanksgiving Day has had an impact on shifting sales throughout the fourth quarter. The National Retail Federation is predicting a 4.1% increase in sales for the holiday season, (including online retail sales), which is higher than 2013’s 3.1% and more than 4% for the first time since 2011. The Average Retail Price per gallon of Regular Gasoline in California is $2.75. The price is providing the US economy with a multi-billion dollar boost. Low-income and middle-income Americans, who have received only modest wage increases since the economic recovery began in 2009, have benefitted the most. Falling oil prices have negatively impacted countries that are dependent on high prices to pay for costly foreign ventures, like Russia’s intervention in the Ukraine and Iran’s support of Syria. LOCAL RESULTS Net Cash Receipts Analysis Local Collections $39,615,774 Share of County Pool 0.0% 0 Share of State Pool 0.0% 0 SBE Net Collections 39,615,774 Less: Amount Due County 0.0% .00 Less: Cost of Administration (479,630) Net 3Q2014 Receipts 39,136,144 Net 3Q2013 Receipts 36,339,615 Actual Percentage Change 7.7% Business Activity Performance Analysis Local Collections $39,615,774 Less: Payments for Prior Periods (2,000,825) Preliminary 3Q2014 Collections 37,614,949 Projected 3Q2014 Late Payments 1,347,307 Projected 3Q2014 Final Results 38,962,256 Actual 3Q2013 Results 36,760,985 Projected Percentage Change 6.0% www.MuniServices.com (800) 800-8181 Page 1 4 ATTACHMENT 1 Riverside County Transportation Commission HISTORICAL CASH COLLECTIONS ANALYSIS BY QUARTER TOP 25 SALES/USE TAX CONTRIBUTORS The following list identifies RCTC’s Top 25 Sales/Use Tax contributors. The list is in alphabetical order and represents sales from October 2013 to September 2014. The Top 25 Sales/Use Tax contributors generate 22.1% of RCTC’s total sales and use tax revenue. ALBERSTON'S FOOD CENTERS LOWE'S HOME CENTERS AMAZON.COM MACY'S DEPARTMENT STORE BEST BUY STORES RALPH'S GROCERY COMPANY CARMAX THE AUTO SUPERSTORE ROSS STORES CHEVRON SERVICE STATIONS SAM'S CLUB CIRCLE K FOOD STORES STATER BROS MARKETS COSTCO WHOLESALE TARGET STORES DEPT OF MOTOR VEHICLES USA SERVICE STATIONS DESERT SUNLIGHT VONS SERVICE STATIONS HOME DEPOT WAL MART STORES JOHNSON MACHINERY COMPANY WALGREEN'S DRUG STORES K MART STORES WHIRLPOOL CORPORATION KOHL'S DEPARTMENT STORES (in thousands of $) $32,000 $33,000 $34,000 $35,000 $36,000 $37,000 $38,000 $39,000 $40,000 $41,000 $42,000 2Q2012 3Q2012 4Q2012 1Q2013 2Q2013 3Q2013 4Q2013 1Q2014 2Q2014 3Q2014N e t R e c e i p t s$0 $100 $200 $300 $400 $500 $600 A d m i n F e e sNet Receipts SBOE Admin Fees Due www.MuniServices.com (800) 800-8181 Page 2 5 Riverside County Transportation Commission HISTORICAL SALES TAX AMOUNTS The following chart shows the sales tax level from sales through September 2014, the highs, and the lows for each segment over the last two years. ANNUAL SALES TAX BY BUSINESS CATEGORY (in thousands of $) 39,939 40,639 41,319 42,126 42,635 43,063 43,582 43,753 44,419 45,076 22,635 23,090 23,488 23,768 24,128 24,366 24,876 25,358 25,787 26,184 37,271 37,988 38,790 39,204 39,890 40,597 41,188 41,641 42,182 42,779 14,388 15,095 15,516 16,281 17,232 18,033 18,009 18,437 18,707 18,840 19,931 20,885 21,800 22,410 22,481 22,376 22,203 22,480 22,658 23,075 2,755 2,756 2,808 2,828 2,802 2,862 2,937 2,954 3,049 3,047 $0 $20,000 $40,000 $60,000 $80,000 $100,000 $120,000 $140,000 $160,000 $180,000 2Q2012 3Q2012 4Q2012 1Q2013 2Q2013 3Q2013 4Q2013 1Q2014 2Q2014 3Q2014 General Retail Food Products Transportation Construction Business To Business Miscellaneous (in thousands of $) $0 $2,000 $4,000 $6,000 $8,000 $10,000 $12,000 $14,000 $16,000 $18,000 $20,000 Auto Sales - NewService StationsDepartment StoresRestaurantsBldg.Matls-WhsleMiscellaneous RetailApparel StoresFood MarketsBldg.Matls-RetailLight Industry3Q2014 High Low www.MuniServices.com (800) 800-8181 Page 3 6 Riverside County Transportation Commission FIVE-YEAR ECONOMIC TREND: Auto Sales - New FINAL RESULTS: April-June 2014 Sales Local Net Cash Collections $40,507,011 Less: Pool Amounts ($-479,630) Less: Prior Quarter Payments ($2,049,524) Add: Late Payments $1,478,836 Local Net Economic Collections after Adjustments $40,415,953 Percent Change from January-March 2013 Sales UP BY 5.7% MUNISERVICES’ ON-GOING AUDIT RESULTS This Quarter $254,016 Total to Date $4,857,520 (in thousands of $) $0 $500 $1,000 $1,500 $2,000 $2,500 $3,000 $3,500 $4,000 $4,500 $5,000 3Q20094Q20091Q20102Q20103Q20104Q20101Q20112Q20113Q20114Q20111Q20122Q20123Q20124Q20121Q20132Q20133Q20134Q20131Q20142Q20143Q2014 www.MuniServices.com (800) 800-8181 Page 4 7 General RetailFood ProductsTransportationConstructionBusiness to BusinessMiscellaneousJul - Sep 2014 (2014Q3) Jul - Sep 2013 (2013Q3) % Change Gain Gain Decline Decline RCTC 6.8%7.0%5.7%2.7%7.7%-0.2%38,961,353 36,760,600 6.0%Auto Sales - New Restaurants Electronic Equipment Bldg.Matls-Whsle RIVERSIDE COUNTY Banning 9.1%4.8%6.0%14.1%3.4%-10.6%457,129 429,635 6.4%Auto Sales - New Misc. Vehicle Sales Service Stations Auto Parts/Repair Beaumont 5.4%6.6%1.2%-2.3%8.1%-20.2%887,536 856,829 3.6%Department Stores Restaurants Office Equipment Bldg.Matls-Retail Blythe -3.2%-7.1%-4.1%8.1%22.6%-62.8%401,067 405,242 -1.0%Light Industry Bldg.Matls-Retail Service Stations Restaurants Calimesa 44.8%5.3%-4.1%0.4%10.7%-32.2%160,139 155,326 3.1%Department Stores Restaurants Service Stations Misc. Vehicle Sales Canyon Lake -34.6%-3.5%-6.0%-11.6%-19.5%-35.3%35,518 40,187 -11.6%Miscellaneous Retail Auto Parts/Repair Department Stores Misc. Vehicle Sales Cathedral City 2.1%1.5%9.5%16.6%13.6%-6.5%1,824,536 1,690,865 7.9%Auto Sales - New Service Stations Furniture/Appliance Heavy Industry Coachella 15.6%11.5%4.7%33.4%-1.7%145.8%809,012 737,939 9.6%Food Markets Service Stations Light Industry Food Processing Eqp Corona 5.2%6.2%1.6%3.3%-9.6%-21.9%8,186,734 8,073,844 1.4%Furniture/Appliance Service Stations Chemical Products Auto Sales - New Desert Hot Springs 4.5%11.6%-2.4%-70.0%-31.8%14.2%311,049 323,623 -3.9%Restaurants Food Markets Bldg.Matls-Whsle Heavy Industry Eastvale -6.9%17.7%6.0%20.2%2.7%-6.1%1,453,923 1,381,883 5.2%Bldg.Matls-Whsle Food Markets Miscellaneous Retail Office Equipment Hemet 4.2%6.6%4.4%0.4%6.0%10.8%2,390,544 2,287,799 4.5%Auto Sales - New Restaurants Light Industry Furniture/Appliance Indian Wells -3.8%34.5%23.8%-8.8%-55.4%85.5%118,444 93,773 26.3%Restaurants Recreation Products Furniture/Appliance Miscellaneous Retail Indio -6.0%-1.2%10.7%16.9%9.4%-2.9%1,942,479 1,826,710 6.3%Service Stations Bldg.Matls-Retail Food Markets Furniture/Appliance Jurupa Valley -7.4%5.3%4.2%-0.3%2.5%-43.3%2,017,709 1,995,433 1.1%Service Stations Apparel Stores Department Stores Bldg.Matls-Whsle La Quinta -1.2%1.2%9.1%-3.8%-2.7%-2.5%1,429,882 1,419,698 0.7%Auto Parts/Repair Restaurants Food Markets Bldg.Matls-Retail Lake Elsinore 3.7%7.6%10.3%9.2%8.9%-27.8%1,814,029 1,692,048 7.2%Auto Sales - New Food Markets Service Stations Light Industry Menifee 6.5%8.2%5.3%0.8%64.5%1.3%1,280,388 1,156,838 10.7%Energy Sales Restaurants Bldg.Matls-Whsle Food Markets Moreno Valley 2.5%4.6%9.3%6.1%42.4%3.9%3,541,315 3,287,638 7.7%Heavy Industry Auto Sales - New Furniture/Appliance Miscellaneous Retail Murrieta 2.1%7.8%10.2%-0.8%22.3%63.4%3,140,088 2,919,555 7.6%Leasing Misc. Vehicle Sales Apparel Stores Bldg.Matls-Whsle Norco 19.0%6.4%12.6%1.9%7.9%8.7%1,335,160 1,195,870 11.6%Service Stations Bldg.Matls-Whsle Bldg.Matls-Retail Food Processing Eqp Palm Desert 6.8%13.5%3.6%2.1%9.9%-37.2%3,063,299 2,856,323 7.2%Restaurants Apparel Stores Health & Government Office Equipment Palm Springs 4.3%8.8%-3.4%7.8%-0.2%17.5%2,049,393 1,971,525 3.9%Restaurants Bldg.Matls-Whsle Service Stations Department Stores Perris 7.1%4.9%2.8%14.7%11.1%32.4%2,030,174 1,868,596 8.6%Miscellaneous Other Light Industry Office Equipment Miscellaneous Retail Rancho Mirage -3.7%12.4%4.0%-2.5%4.7%0.9%820,284 786,857 4.2%Restaurants Auto Sales - New Bldg.Matls-Retail Misc. Vehicle Sales Riverside 6.8%5.9%14.3%14.5%6.2%8.9%12,616,365 11,448,682 10.2%Auto Sales - New Service Stations Heavy Industry Light Industry Riverside County 24.5%8.0%-0.5%-20.8%-16.2%7.0%7,138,848 7,212,522 -1.0%Apparel Stores Miscellaneous Retail Bldg.Matls-Whsle Electronic Equipment San Jacinto 1.4%7.4%-3.2%14.5%20.3%-9.2%522,169 508,190 2.8%Restaurants Service Stations Auto Sales - Used Auto Parts/Repair Temecula 3.8%6.5%15.0%7.1%-12.3%-3.0%6,924,935 6,532,480 6.0%Auto Sales - New Auto Sales - Used Energy Sales Light Industry Wildomar 23.9%8.2%16.3%20.1%1.1%-1.7%364,817 322,061 13.3%Service Stations Food Markets Electronic Equipment Light Industry 8 ATTACHMENT 2 BLANK AGENDA ITEM 8 BLANK RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 23, 2015 TO: Budget and Implementation Committee FROM: Michele Cisneros, Finance Manager/Controller THROUGH: Theresia Trevino, Chief Financial Officer SUBJECT: Agreement with Macias Gini & O'Connell LLP for Audit Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 15-19-043-00 to Macias Gini & O'Connell LLP (MGO) for audit services for a three-year term, with two one-year options to extend the agreement, for $841,000, plus a contingency in the amount of $59,000, for a total amount not to exceed $900,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; 3) Authorize the Executive Director or designee to approve contingency work up to the total not to exceed amount as required for these audit services; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: In accordance with state law and various debt indentures and agreements, the Commission is required annually to publish its financial statements with a report from independent certified public accountants providing an opinion that such financial statements are presented in accordance with generally accepted accounting principles and were audited in accordance with generally accepted auditing standards. The Commission’s current auditor, McGladrey LLP, was awarded an agreement in March 2008; this agreement has been amended periodically by the Commission in connection with the recurring contracts process and is expiring. Accordingly, staff commenced a competitive procurement for audit services related to the Commission’s financial statements, which are expected to reflect changes in FY 2016/17 as a result of the commencement of toll operations. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal Agenda Item 8 9 with price and other factors considered. Non-price factors include elements such as qualifications of firm and personnel and understanding and approach for audit services as set forth under the terms of Request for Proposals (RFP) No. 15-19-043-00. RFP No. 15-19-043-00 for audit services was released by staff on December 30, 2014. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 131 firms, 17 of which are located in Riverside County. Through the PlanetBids site, 21 firms downloaded the RFP, and 4 of these firms are located in Riverside County. A pre-bid conference was held on January 14, 2015, and attended by 6 firms, of which one firm is local to Riverside County. Staff responded to all questions submitted by potential proposers prior to the January 21 clarification deadline date. Five firms – MGO (Newport Beach); McGladrey LLP (Irvine); Moss Adams LLP (Los Angeles); Simpson & Simpson, CPAs (Los Angeles); and Vavrinek, Trine, Day & Co., LLP (Riverside) – submitted responsive proposals prior to the 2:00 p.m. submittal deadline on February 5. Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated and scored by an evaluation committee comprised of Commission staff. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee short listed and invited 2 firms to the interview phase of the evaluation and selection process. Interviews of the short listed firms – MGO and McGladrey LLP – were conducted on March 2, 2015. As a result of the completion of the evaluation process, the evaluation committee recommends contract award to MGO to perform the Commission’s audits for a three-year term, with two one-year options to extend the agreement, as this firm earned the highest total evaluation score. The Commission has an existing agreement with MGO that expires with the completion of the FY 2014/15 audits of Transportation Development Act recipients and Measure A claimants in the Coachella Valley and Palo Verde Valley. Proposing firms were not required to provide cost proposals related to the increase audit scope beginning with the FY 2016/17 audit due to a lack of information currently available regarding the accounting for toll operations. MGO’s cost proposal approximated $761,000 for the five-year period. Staff recommends the addition of $80,000 to the agreement authorization, for a total amount of $841,000, related to the increased audit scope due to toll operations in FY 2016/17 through 2018/19; however, staff will negotiate with MGO to determine the actual increase in costs and amend the agreement accordingly. Staff also recommends a $59,000 contingency for other potential scope changes related to additional audit services and consultation regarding matters such as the implementation of new accounting standards or complex transactions. The Commission’s standard form professional services agreement will be entered into with MGO subject to any changes approved by the Executive Director, pursuant to legal counsel review. Agenda Item 8 10 Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2014/15 FY 2015/16+ Amount: $ 20,000 $880,000 Source of Funds: Measure A, Local Transportation Funds, Transportation Uniform Mitigation Fees, and Motorist Assistance Funds Budget Adjustment: No N/A GL/Project Accounting No.: 001001 65401 00000 0001 101 19 65401 Fiscal Procedures Approved: Date: 03/12/2015 Attachment: Standard Form On-Call Professional Services Agreement Agenda Item 8 11 BLANK Agreement No. 15-19-043-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR AUDIT SERVICES WITH MACIAS GINI & O'CONNELL LLP 1.PARTIES AND DATE. This Agreement is made and entered into this day of , 2015, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and MACIAS GINI & O'CONNELL LLP ("Consultant"), a California limited liability partnership. 2.RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing audit services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the audit services for the Commission ("Project") as set forth herein. 3.TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "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 Term. The term of this Agreement shall be from the date first specified above to June 30, 2018, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 17336.00000\8752982.1 ATTACHMENT 1 12 3.3 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 required 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 the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of 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 not be employees of Commission and 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 under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to 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 and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates Chief Financial Officer, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s 17336.00000\8752982.1 2 13 Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, 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 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. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. 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 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. 17336.00000\8752982.1 3 14 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 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 $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. 17336.00000\8752982.1 4 15 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) Bodily Injury and Property Damage; (2) Personal Injury/Advertising Injury; (3) Premises/Operations Liability; (4) Products/Completed Operations Liability; (5) Aggregate Limits that Apply per Project; (6) Explosion, Collapse and Underground (UCX) exclusion deleted; (7) Contractual Liability with respect to this Agreement; (8) Broad Form Property Damage; and (9) Independent Consultants Coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. (i) 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. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in 17336.00000\8752982.1 5 16 accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period 17336.00000\8752982.1 6 17 A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 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. 17336.00000\8752982.1 7 18 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 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. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly 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. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra 17336.00000\8752982.1 8 19 Work" means any work which is determined by Commission to be necessary for the 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 Executive Director. 3.15 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 Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of 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: 17336.00000\8752982.1 9 20 CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 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”). 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. 17336.00000\8752982.1 10 21 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 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. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission in order to allow the Commission to pursue legal remedies designed to limit any confidential information required to be disclosed or to assure the confidential treatment of the information following disclosure. Consultant shall not respond to any such subpoena or court order until notice to the 17336.00000\8752982.1 11 22 Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the 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 all consequential damages, 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 the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and 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 indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and 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. This Section 3.21 shall survive any expiration or termination of this Agreement. 17336.00000\8752982.1 12 23 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 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, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 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. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to 17336.00000\8752982.1 13 24 accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any 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 Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 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. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified 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. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. 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. 3.31 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 17336.00000\8752982.1 14 25 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. 3.32 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. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 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 17336.00000\8752982.1 15 26 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. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 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. 3.43 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. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 17336.00000\8752982.1 16 27 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR AUDIT SERVICES WITH MACIAS GINI & O'CONNELL LLP IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY MACIAS GINI & O'CONNELL LLP TRANSPORTATION COMMISSION By: __________________________ By: ____________________________ Daryl R. Busch Signature Chair ___________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP General Counsel Its: Secretary 17336.00000\8752982.1 17 28 EXHIBIT "A" - SCOPE OF SERVICES [TO BE INSERTED] EXHIBIT "B" - SCHEDULE OF SERVICES [TO BE INSERTED] EXHIBIT "C" – COMPENSATION [TO BE INSERTED] 17336.00000\8752982.1 Exhibit -1 29 AGENDA ITEM 9 BLANK RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 23, 2015 TO: Budget and Implementation Committee FROM: Michele Cisneros, Finance Manager/Controller THROUGH: Theresia Trevino, Chief Financial Officer SUBJECT: Agreement with Bartel Associates, LLC for Actuarial Valuation Services for Other Post Employment Benefits STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 15-19-044-00 to Bartel Associates, LLC (Bartel) for actuarial valuation services for Other Post Employment Benefits (OPEB) for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $45,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: In May 2006, the Commission retained Bartel, actuarial consultants, to perform the Commission’s biennial OPEB liability calculation as a result of the issuance of Governmental Accounting Standards Board Statement No. 45, Accounting and Financial Reporting by Employers for Postretirement Benefits Other Than Pensions. In Fiscal Year 2007/08 the Commission pre-funded the OPEB liability with the California Employers’ Retiree Benefit Trust. Bartel continued to perform the biennial OPEB liability calculation through the June 30, 2013 valuation, which covered FY 2013/14 and FY 2014/15. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firm and personnel and understanding and approach for actuarial valuation services as set forth under the terms of Request for Proposals (RFP) No. 15-19-044-00. RFP No. 15-19-044-00 for actuarial valuation services was released on December 30, 2014. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Agenda Item 9 30 Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 96 firms, 12 of which are located in Riverside County. Through the PlanetBids site, 14 firms downloaded the RFP; none of these firms are located in Riverside County. A pre-bid conference was held on January 14, 2015, and attended by one firm. Staff responded to all questions submitted by potential proposers prior to the January 21 clarification deadline date. Three firms – Bartel (San Mateo), Bickmore (Sacramento) and The Nyhart Company (San Diego) – submitted responsive proposals prior to the 2:00 p.m. submittal deadline on February 5. Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated and scored by an evaluation committee comprised of Commission staff. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee recommends contract award to Bartel for actuarial valuation services for OPEB, as this firm earned the highest total evaluation score. The Commission’s standard form professional services agreement will be entered into with Bartel subject to any changes approved by the Executive Director, pursuant to legal counsel review. Financial Information In Fiscal Year Budget: N/A N/A Year:FY 2015/16 FY 2016/17+ Amount: $15,000 $30,000 Source of Funds: Measure A, Local Transportation Funds, Motorist Assistance funds, and Transportation Uniform Mitigation Fee funds Budget Adjustment: N/A N/A GL/Project Accounting No.: 001001 65520 00000 0001 101 19 65520 Fiscal Procedures Approved: Date: 03/11/15 Attachment: Agreement No. 15-19-044-00 Agenda Item 9 31 Agreement No. 15-19-044-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR ACTUARIAL VALUATION SERVICES WITH BARTEL ASSOCIATES, LLC 1. PARTIES AND DATE. This Agreement is made and entered into this _ day of , 2015, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and BARTEL ASSOCIATES, LLC ("Consultant"), a California limited liability company. 2. RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing actuarial valuation services for post employment medical benefits under Governmental Accounting Standards Board (GASB) Statement No. 45 to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the GASB 45 Actuarial Valuation of Post Employment Medical Benefits Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "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 Term. The term of this Agreement shall be from the date first specified above to June 30, 2018 unless earlier terminated as provided herein. Consultant shall 17336.00000\8752982.1 32 complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 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 required 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 the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of 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 not be employees of Commission and 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 under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to 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 and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates 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 have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 17336.00000\8752982.1 2 33 3.8 Consultant’s Representative. Consultant hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, 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 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. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. 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 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. 17336.00000\8752982.1 3 34 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 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 $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. 17336.00000\8752982.1 4 35 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) Bodily Injury and Property Damage; (2) Personal Injury/Advertising Injury; (3) Premises/Operations Liability; (4) Products/Completed Operations Liability; (5) Aggregate Limits that Apply per Project; (6) Explosion, Collapse and Underground (UCX) exclusion deleted; (7) Contractual Liability with respect to this Agreement; (8) Broad Form Property Damage; and (9) Independent Consultants Coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. (i) 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. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in 17336.00000\8752982.1 5 36 accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period 17336.00000\8752982.1 6 37 A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 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. 17336.00000\8752982.1 7 38 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 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. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly 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. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra 17336.00000\8752982.1 8 39 Work" means any work which is determined by Commission to be necessary for the 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 Executive Director. 3.15 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 Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of 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: 17336.00000\8752982.1 9 40 CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 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”). 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. 17336.00000\8752982.1 10 41 The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 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. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission in order to allow the Commission to pursue legal remedies designed to limit any confidential information required to be disclosed or to assure the confidential treatment of the information following disclosure. Consultant shall not respond to any such subpoena or court order until notice to the 17336.00000\8752982.1 11 42 Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the 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 all consequential damages, 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 the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and 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 indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and 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. This Section 3.21 shall survive any expiration or termination of this Agreement. 17336.00000\8752982.1 12 43 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 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, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 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. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to 17336.00000\8752982.1 13 44 accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any 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 Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 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. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified 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. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. 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. 3.31 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 17336.00000\8752982.1 14 45 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. 3.32 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. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 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 17336.00000\8752982.1 15 46 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. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 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. 3.43 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. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 17336.00000\8752982.1 16 47 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR ACTUARIAL VALUATION SERVICES WITH BARTEL ASSOCIATES, LLC IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY BARTEL ASSOCIATES, LLC TRANSPORTATION COMMISSION By: __________________________ By: ____________________________ Daryl R. Busch Signature Chair ___________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP General Counsel Its: Secretary 17336.00000\8752982.1 17 48 EXHIBIT "A" - SCOPE OF SERVICES [TO BE INSERTED] EXHIBIT "B" - SCHEDULE OF SERVICES [TO BE INSERTED] EXHIBIT "C" – COMPENSATION [TO BE INSERTED] 17336.00000\8752982.1 Exhibit -1 49 AGENDA ITEM 10 BLANK RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 23, 2015 TO: Budget and Implementation Committee FROM: Theresia Trevino, Chief Financial Officer THROUGH: John Standiford, Deputy Executive Director SUBJECT: Trustee Services for Toll Revenue Bonds STAFF RECOMMENDATION: This item is for the Committee to: 1) Award Agreement No. 15-19-083-00 to U.S. Bank National Association (US Bank) for trustee services related to the 2013 Toll Revenue Bonds (Toll Bonds) for the State Route 91 Corridor Improvement Project (91 Project) for a five-year period, with additional option periods in five-year increments, in an amount of $60,000, plus a contingency amount of $5,000, for a total amount not to exceed $65,000 for the initial five-year term; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute agreement on behalf of the Commission; 3) Authorize the Executive Director or designee to approve contingency work up to the total not to exceed amount as required for the trustee services; 4) Ratify Agreement No. 15-19-085-00, a three-party agreement among the Commission, US Bank as successor trustee, and The Bank of New York Mellon Trust Company, N.A. (BNY Mellon) as prior trustee regarding the transfer of the rights, powers, and trusts related to the Toll Bonds; and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: In February 2013, based on a competitive procurement process, the Commission awarded Agreement No. 13-31-063-00 to BNY Mellon for trustee services related to the financing on the 91 Project for a five-year period with additional option periods in five-year increments, in an amount of $12,000, plus a contingency amount of $1,000, for a total amount not to exceed $13,000 for the initial five-year term. Subsequently, Agreement No. 13-31-063-01, Amendment No. 1 to Agreement No. 13-31-063-00, was executed by the Executive Director under single signature authority in the amount of $20,000 for investment transaction fees not included in the original agreement. The Commission ultimately engaged an investment manager to actively manage the bond proceeds in an investment portfolio of securities rather than entering into investment agreements. As a result of this amendment, the total not to exceed amount for the agreement is $33,000. Agenda Item 10 50 BNY Mellon served as trustee for the Toll Bonds since financial close in July 2013. Staff determined it is in the best interests of the Commission to terminate Agreement No. 13-31-063-00 effective May 1, 2015, and appoint US Bank as the successor trustee in accordance with the procedures specified by the Toll Bonds master indenture dated June 1, 2013. The Commission submitted to BNY Mellon on March 12, a notice of intent to terminate Agreement No. 13-31-063-00. A copy of the notice is attached to this staff report. US Bank currently provides trustee services to the Commission for the sales tax revenue bonds under an indenture dated June 1, 2008, as supplemented, and served as trustee for the sales tax revenue bonds issued for the 1989 Measure A program. In connection with the 2013 trustee procurement, US Bank submitted a responsive proposal and was ranked second during the evaluation process. The procurement’s evaluation process considered experience, qualifications, and pricing. The primary factor for US Bank’s ranking was related to pricing; however, such pricing was comparable to its existing fees charged for the trustee services for the sales tax revenue bonds. Staff obtained a fee schedule from US Bank that is similar to the fees proposed in 2013 and includes pricing for investment transactions; the fees were determined to be fair and reasonable. Based on a review of the 2013 trustee procurement records and consideration of US Bank’s satisfactory performance related to the trustee services for the sales tax revenue bonds, staff recommends the Commission award a sole source agreement to US Bank as successor trustee for the Toll Bonds. Article 8.3 of the Toll Bonds master indenture specifies the procedures for removal of a trustee and appointment of a successor trustee. A three-party agreement has been developed among the Commission, US Bank as successor trustee, and BNY Mellon as prior trustee regarding the change in trustees. In connection with Resolution No. 13-004 that authorized the issuance of the Toll Bonds, the Commission authorized the Commission’s representatives to take any action necessary for the removal or replacement of the toll trustee without further authorization by the Commission. Staff and legal counsel have reviewed the three-party agreement, which complies with Article 8.3 of the indenture. Although Commission approval of this agreement is not required, staff requests its ratification. The transfer of duties and trust accounts will be effective on May 1 to allow April month end statements for the Toll Bonds trust accounts to be generated by BNY Mellon and May month end statements to be generated by US Bank. Staff desires to complete the transfer prior to the next debt service payment date on June 1. Agenda Item 10 51 Financial Information In Fiscal Year Budget: Yes N/A Year:FY 2014/15 FY 2015/16+ Amount: $ 3,000 $57,000 Source of Funds: Toll Bonds Proceeds Budget Adjustment: No N/A GL/Project Accounting No.: 003028 65520 262 31 65520 Fiscal Procedures Approved: Date: 03/12/15 Attachments: 1)Termination Notice – Dated March 12, 2015 2)Agreement No. 15-19-083-00 with US Bank (draft) 3) Three-Party Agreement No. 15-19-085-00 among the Commission, US Bank, and BNY Mellon (draft) Agenda Item 10 52 BLANK ATTACHMENT 1 53 54 Agreement No. 15-19-083-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR TRUSTEE SERVICES WITH U.S. BANK NATIONAL ASSOCIATION 1.PARTIES AND DATE. This Agreement is made and entered into this day of , 2015, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and U.S. BANK NATIONAL ASSOCIATION ("Consultant"), a New York Corporation. 2.RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing trustee services, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain trustee services related to the toll revenue bonds (Bonds) and U.S. Department of Transportation’s Transportation Infrastructure Finance and Innovation Act loan (Loan) financings in connection with the SR-91 Corridor Improvement Project ("Project") as set forth herein. 3.TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "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 Term. The term of this Agreement shall commence upon the issuance of the Bonds and closing of the Loan for an initial five year period, unless earlier terminated as provided herein. The Commission shall have the option, in its sole discretion, to extend the term of the Agreement for additional periods in five year increments until the maturities of the Bonds and Loan. Consultant shall complete the Services within the term of this 17336.02100\7849729.5 ATTACHMENT 2 55 Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with any schedules for the Services agreed upon by the parties (“Schedule”). Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of 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 not be employees of Commission and 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 under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to 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 and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: Ashraf Almurdaah, Vice President. 3.7 Commission’s Representative. Commission hereby designates 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 have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 2 17336.02100\7849729.5 56 3.8 Consultant’s Representative. Consultant hereby designates Ashraf Almurdaah, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, 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 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 negligence, recklessness or willful misconduct. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. 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 Commission, Consultant shall be solely responsible for all costs arising therefrom. 3 17336.02100\7849729.5 57 3.12 Insurance. 3.12.1 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. 3.12.2 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) 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) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 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 $1,000,000 per claim. 3.12.4 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 4 17336.02100\7849729.5 58 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. 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 5 17336.02100\7849729.5 59 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A-:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 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. 3.13 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. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "B" attached hereto. The total compensation shall not exceed Sixty Thousand Dollars ($60,000) without written approval of Commission's Executive Director (“Total Compensation”), plus, to the extent set forth in the fee schedule signed by the Consultant and the Commission and set forth in the attached Exhibit “B,” reimbursement for any out-of-pocket or miscellaneous expenses incurred by the Consultant in connection with its duties hereunder. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly 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. 6 17336.02100\7849729.5 60 Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the 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 W ork without written authorization from Commission's Executive Director. 3.15 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 Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. Consultant shall not be obligated to provide any of Consultant’s proprietary data or information confidential to the Consultant, or confidential information regarding the holders of any bonds or other securities issued in connection herewith. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below. In addition, Consultant shall provide all other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement except for Consultant’s proprietary information or information confidential to the Consultant. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 7 17336.02100\7849729.5 61 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: U.S. Bank National Association Riverside County Corporate Trust Services Transportation Commission 633 W. Fifth Street, 24th Floor 4080 Lemon Street, 3rd Floor Los Angeles, CA 90071 Riverside, CA 92501 Attn:Ashraf Almurdaah 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. 3.18 Ownership of Materials/Confidentiality. All Commission Documents and Data, defined below, provided to Consultant under this Agreement shall remain the property of Commission and shall be returned to Commission, upon Commission’s request, following expiration or termination of this Agreement. To the extent required to do so by law, by Consultant's policies and procedures, or pursuant to any agreements executed in connection with the Services to be provided by Consultant under this Agreement, Consultant may retain copies of certain Documents and Data, and shall destroy such Documents and Data when allowed pursuant to law, such policies and procedures and such agreements. 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 (“Document 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. 8 17336.02100\7849729.5 62 Notwithstanding anything herein to the contrary, the foregoing shall not be construed to prohibit: (i) disclosure of any and all information that is or becomes publicly known, or information obtained by Consultant from sources other than the Commission; (ii) disclosure of any and all information (A) if required to do so by any applicable rule or regulation, (B) to any government agency or regulatory body having or claiming authority to regulate or oversee any aspects of Consultant’s business or that of its affiliates, (C) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which Consultant or any affiliate or any officer, director, employee or shareholder thereof is a party or (D) to any affiliate, independent or internal auditor, agent, employee or attorney of Consultant having a need to know the same, provided that Consultant advises such recipient of the confidential nature of the information being disclosed. Prior to any disclosure in connection with any of the foregoing, Consultant, to the extent permitted to do so by law, shall provide written notice to the Commission of its intent to disclose, opportunity to the Commission to respond to Consultant regarding such intended disclosure, and shall cooperate with the Commission to preserve the confidentiality of information deemed by the Commission, in its sole and absolute discretion, to be confidential. Nothing shall prohibit Consultant from making a disclosure authorized by the Commission in writing. Notwithstanding anything to the contrary herein, disclosures by the Consultant pursuant to periodic audits of its records by the Office of the Comptroller of the Currency and disclosures by the Consultant to The Bank of New York Mellon, an affiliate of the Consultant, shall require no prior or subsequent notice to the Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents and employees free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in 9 17336.02100\7849729.5 63 any manner arising out of or incident to any alleged negligence, recklessness or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. In connection with the foregoing, 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 the Commission, its directors, officials, officers, agents and employees. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents and employees, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents and employees, 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 indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Nothing herein shall obligate Consultant to indemnify the Commission for the Commission’s sole negligence or willful misconduct. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 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 10 17336.02100\7849729.5 64 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, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 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. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any 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 Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 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. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified 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 11 17336.02100\7849729.5 65 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. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. 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. 3.31 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. 3.32 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. 3.33 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 12 17336.02100\7849729.5 66 overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall, to the extent permitted by law, immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. In the event Consultant is unable to provide the Commission with prior written notice before a response to a subpoena or court order is due, Consultant shall provide written notice to the Commission immediately following disclosure to the extent such notice is permitted by law. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 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. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 13 17336.02100\7849729.5 67 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 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. 3.43 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. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 14 17336.02100\7849729.5 68 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR TRUSTEE SERVICES WITH U.S. BANK NATIONAL ASSOCIATION IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY U.S. BANK NATIONAL TRANSPORTATION COMMISSION ASSOCIATION By: __________________________ By: ____________________________ Daryl R. Busch Signature Chair ___________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP General Counsel Its: Secretary 15 17336.02100\7849729.5 69 BLANK EXHIBIT "A" Statement of Work The Commission requires the services of a qualified financial institution to provide trustee services in connection with the Commission’s toll-revenue based financings for the Project described in Section 1.1. The indenture(s) for the bonds will include multiple accounts containing investments that must comply with the permitted investment language of the specific indenture as well as the Commission’s Investment Policy. The proceeds of the toll revenue bonds will be maintained in investment accounts for, but not limited to, the Commission’s construction funds, capitalized interest funds, principal and interest funds, debt service reserve, cost of issuance fund, and other necessary funds in accordance with the bond indenture(s) and TIFIA loan agreement. In addition, the proceeds of the Commission’s sales tax revenue bonds for the Project and cash contributions to construction costs are expected to be deposited in the construction funds. The services requested will include the following: • Perform complete trustee functions for one or more bond issues. • Act as registrar, paying agent, and tender agent. • Establish and maintain various funds as required by bond indenture(s) upon the issuance of toll revenue bonds. • Manage all funds and accounts according to the provisions of the bond indenture(s) and in compliance with federal tax law. • Process security trades per instructions received by authorized persons. • Provide a short-term investment vehicle for uninvested balances in trust accounts. • Monitor reserve funds to ensure that amounts required by the bond indentures are maintained. • Provide online web access to account and investment information related to transactions, balances, market values, etc. • Provide monthly activity statements and reports including the market value of all portfolio holdings. • Provide detailed monthly reporting of all transactions in all funds or accounts identified in the bond indenture(s) by account, to be received by the 5th day of the following month, and prepare such other reports as the Commission may request. • Provide detailed reports as required by the USDOT to support the TIFIA loan. • Pay or transfer funds to issuer or others as requested by the Commission for costs of issuance, project costs, and other expenses provided for in the bond indenture(s). • Attend Commission meetings, if and as requested. Other services may be required based on the executed bond indenture(s) and TIFIA loan agreement. End of Statement of Work A-1 17336.02100\7849729.5 70 A-2 17336.02100\7849729.5 71 EXHIBIT "B" COMPENSATION [attached behind this page] B-1 17336.02100\7849729.5 72 BLANK Proposed Schedule of Fees for Services as Trustee, Registrar and Paying Agent for Toll Revenue Senior Lien Bonds 2013 Series A Toll Revenue Senior Lien Bonds 2013 Series B Toll Revenue Subordinate Bonds 2013 TIFIA Acceptance Fee: waived Legal Expenses: waived Annual Bond Trustee Administration Fee: $2,000.00 per series Annual administration fee for performance of the routine duties as Trustee, Registrar and Paying Agent, associated with the management of the account. Bond Trustee fees are payable annually in advance. Trades $25.00 per trade Disbursements $25.00 per disbursement Direct Out of Pocket Expenses: At Cost Reimbursement of expenses associated with the performance of our duties, including but not limited to publications, legal counsel after initial close, travel expenses and filing fees (if any). Extraordinary Services: Extraordinary services are duties or responsibilities of an unusual nature, including termination, but not provided for in the governing documents or otherwise set forth in this schedule. A reasonable charge would be assessed based on the nature of the service and the responsibility involved. At our option, these charges would be billed at a flat fee or at our hourly rate then in effect. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a Trust or other legal entity we will ask for documentation to verify its formation and existence as a legal entity. We may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation. Dated: March 6, 2015 B-2 17336.02100\7849729.5 73 BLANK TRI-PARTY AGREEMENT This TRI-PARTY AGREEMENT (this “Instrument”), dated as of April __, 2015, by and among the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (the “Commission”), THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (the “Prior Trustee”) and U. S. BANK NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America (the “Successor Trustee”). WITNESSETH WHEREAS, the Commission issued its $176,654,601.60 Riverside County Transportation Commission Toll Revenue Bonds, 2013 Series A and 2013 Series B (the “Bonds”) pursuant to the Master Indenture dated as of June 1, 2013 (the “Indenture”); and WHEREAS, the Prior Trustee has been acting as Trustee under the Indenture; and WHEREAS, Section 8.03 of the Indenture provides that the Commission may remove the Trustee; and WHEREAS, Section 8.03 of the Indenture further provides that in case the Trustee shall be removed, the Commission may appoint a successor Trustee; and WHEREAS, Section 8.03 of the Indenture further provides that the successor Trustee shall be qualified under the provisions of such Section 8.03 of the Indenture; and WHEREAS, Section 8.03 of the Indenture further provides that any successor Trustee appointed under the Indenture shall execute, acknowledge and deliver to the Commission and to the Prior Trustee an instrument in writing accepting such appointment, thereupon the removal of the Prior Trustee shall become effective and the Successor Trustee without any further action, shall become fully vested with all the rights, immunities, powers, trusts, duties and obligations of the Prior Trustee under the Indenture and such Prior Trustee shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of such Prior Trustee; NOW, THEREFORE, pursuant to the Indenture and in consideration of the covenants herein contained, it is agreed as follows (words and phrases not otherwise defined in this Instrument shall have the definitions given thereto in the Indenture): 1.Pursuant to the terms of the Indenture, the Commission has notified the Prior Trustee that the Prior Trustee has been removed as Trustee under the Indenture effective as of May 1, 2015 (the “Effective Date”). Page 1 - Tri-Party Agreement ATTACHMENT 3 74 2. Effective as of the Effective Date, the Prior Trustee hereby assigns, transfers, delivers and confirms to the Successor Trustee all of its rights, title, interest under the Indenture and all of its rights, immunities, powers, trusts, duties, obligations, title, interests, capacities, and privileges as Trustee under the Indenture, except as set forth in paragraph 18 hereof. 3. The Prior Trustee agrees to execute and deliver such further instruments and shall take such further actions as the Successor Trustee or the Commission may reasonably request so as to more fully and certainly vest and confirm in the Successor Trustee all of the rights, immunities, powers, trusts, duties, obligations, title, interests, capacities and privileges hereby assigned, transferred, delivered and confirmed to the Successor Trustee, including without limitation, the execution and delivery of any instruments required to assign all liens in the name of the Successor Trustee. 4. Effective as of the Effective Date, the Commission hereby removes the Prior Trustee and the Commission appoints the Successor Trustee as successor Trustee under the Indenture; and the Commission confirms to the Successor Trustee all of the rights, immunities, powers, trusts, duties, obligations, title, interest, capacities, and privileges of the Trustee under the Indenture except as set forth in paragraph 18 hereof. 5. The Commission agrees to execute and deliver such further instruments and to take such further action as the Successor Trustee may reasonably request so as to more fully and certainly vest and confirm in the Successor Trustee all the rights, immunities, powers, trusts, duties, obligations, title, interests, capacities, and privileges hereby assigned, transferred, delivered and confirmed to the Successor Trustee. 6. Effective as of the Effective Date, the Successor Trustee hereby accepts its appointment as successor Trustee under the Indenture and shall be vested with all of the rights, immunities, powers, trusts, duties, obligations, title, interests, capacities, and privileges of the Trustee under the Indenture, and expressly agrees to all representations, covenants and warranties of the Trustee under the Indenture, including but not limited to those in Articles VII and XI of the Indenture. 7. The Successor Trustee hereby represents that it is qualified and eligible under the provisions of Section 8.03 of the Indenture to be appointed successor Trustee and hereby accepts the appointment as successor Trustee and agrees that upon the signing of this Instrument it shall become vested with all the rights, immunities, powers, trusts, duties, obligations, title, interest, capacities, and privileges of the Prior Trustee with like effect as if originally named as Trustee under the Indenture. The Successor Trustee represents that, as required by Section 8.03 of the Indenture, it is a national banking association qualified to do and doing trust business within the State of California and having an officially reported combined capital, surplus, undivided profits and reserves aggregating at least $500,000,000. 8. The Successor Trustee shall cause notice of the removal, appointment and acceptance effected hereby to be given to the owners of the Bonds pursuant to Section 8.03 of the Indenture. Page 2 - Tri-Party Agreement 75 9. Effective as of the Effective Date, the Successor Trustee shall serve as Trustee as set forth in the Indenture at its corporate trust office in Los Angeles, California or such other address as may be specified, where notices and demands to or upon the Commission in respect of the Bonds may be served. 10. The Prior Trustee hereby represents and warrants to the Successor Trustee that: a) No covenant or condition contained in the Indenture has been waived by the Prior Trustee or to the best of its knowledge by the holders of the percentage in aggregate principal amount of the Bonds required by the Indenture to effect any such waiver. b) To the Prior Trustee’s knowledge, there is no action, suit or proceeding pending or threatened against the Prior Trustee before any court or governmental Commission arising out of any action or omission by the Prior Trustee as Trustee under the Indenture. c) On or prior to the Effective Date, the Prior Trustee has transferred all moneys in any fund or account established by it as Trustee under the Indenture to the Successor Trustee. 11. Each of the parties hereto hereby represents and warrants for itself that as of the date hereof, and the Effective Date: a) it has power and authority to execute and deliver this Instrument and to perform its obligations hereunder, and all such action has been duly and validly authorized by all necessary proceedings on its part; and b) this Instrument has been duly authorized, executed and delivered by it, and constitutes a legal, valid and binding agreement enforceable against it in accordance with its terms, except as the enforceability of this Instrument may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditor's rights or by general principles of equity limiting the availability of equitable remedies. 12. The parties hereto agree that this Instrument does not constitute an assumption by the Successor Trustee of any liability of the Prior Trustee arising out of any actions or inaction by the Prior Trustee under the Indenture. 13. The parties hereto agree that as of the Effective Date, all references to the Prior Trustee as Trustee in the Indenture shall be deemed to refer to the Successor Trustee. From and after the Effective Date, all notices or payments which were required by the terms of the Indenture and Bonds to be given or paid to the Prior Trustee, as Trustee, shall be given or paid to: U.S. Bank National Association, 633 W. Fifth Street, 24th Floor, Mail Code - LM-CA-T24T, Los Angeles, CA 90071, Attention: Global Corporate Trust Services. 14. The removal, appointment and acceptance effected hereby shall become effective as of the opening of business on the Effective Date. Page 3 - Tri-Party Agreement 76 15. This Instrument shall be governed by and construed in accordance with the laws of the State of California. 16. This Instrument may be executed in any number of counterparts, each of which shall be an original, but which counterparts, shall together constitute but one and the same instrument. 17. Nothing contained in this Instrument shall in any way affect the obligations or rights of the Commission. This Instrument shall be binding upon and inure to the benefit of the Commission, the Prior Trustee and the Successor Trustee and their respective successors and assigns. 18. Nothing contained in this Instrument shall in any way affect the obligations of the Commission to the Prior Trustee under the Indenture or any lien created thereunder. 19. Pursuant to Section 8.03 of the Indenture, the Commission finds that no Event of Default has occurred and is continuing under the Indenture and the Commission determines that the removal of the Prior Trustee does not have an adverse effect on the rights or interests of the Bondholders. 20. This Instrument may be executed in several counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. Page 4 - Tri-Party Agreement 77 IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be duly executed and attested by their duly authorized officers, all as of the date and year first above written. RIVERSIDE COUNTY TRANSPORTATION COMMISSION ____________________________________ By: Anne Mayer Title: Executive Director Attest: _____________________________ By: ________________________________ Title: ______________________________ Signature Page - Tri-Party Agreement 78 IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be duly executed and attested by their duly authorized officers, all as of the date and year first above written. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Prior Trustee ____________________________________ By: Jose Matamoros Title: Vice President Attest: _____________________________ By: ________________________________ Title: ______________________________ Signature Page - Tri-Party Agreement 79 IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be duly executed and attested by their duly authorized officers, all as of the date and year first above written. U. S. BANK NATIONAL ASSOCIATION, as Successor Trustee ____________________________________ By: Ashraf Almurdaah Title: Vice President Attest: _____________________________ By: ________________________________ Title: ______________________________ Signature Page - Tri-Party Agreement 80 BLANK AGENDA ITEM 11 BLANK RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: March 23, 2015 TO: Budget and Implementation Committee FROM: Theresia Trevino, Chief Financial Officer THROUGH: John Standiford, Deputy Executive Director SUBJECT: Appointment of Underwriters for Commission Financings STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve the selection of the following firms to provide underwriting services to the Commission in connection with long-term debt financings for a four-year period, with an option to extend for an additional two one-year periods: a) Academy Securities, Inc. (Academy); b) Bank of America Merrill Lynch (BAML); c) Barclays Capital, Inc. (Barclays); d) Fidelity Capital Markets (Fidelity); and e) Goldman Sachs & Co. (Goldman); 2) Approve the appointments of BAML and Goldman to perform the services of joint bookrunning senior managing underwriters, Barclays as co-senior managing underwriter, and Academy and Fidelity as co-managing underwriters in connection with the proposed Interstate 15 Express Lanes Project financing; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: Following the November 2002 approval of the 2009 Measure A and prior to the commencement of the 2009 Measure A in July 2009, the Commission established a financing program in order to advance project development and right of way acquisition. Initial efforts in 2004 included a procurement process for the appointment of investment banking firms to serve as dealers for the Commission’s commercial paper program established in 2005 and as underwriters for the issuance of the Commission’s 2008 sales tax bonds. As a result of the financial market crisis in 2008, several changes occurred within and among the investment banking firms in the industry and on the Commission’s financing team. Additionally during this period, the Commission began consideration of toll road projects and related toll revenue bond financings. Another procurement process in 2009 resulted in the selection of investment banking firms to serve as underwriters for the issuance of the Commission’s 2009 and 2010 sales tax revenue bonds, as well as for the 91 Project financing in Agenda Item 11 81 2013, which included sales tax revenue bonds, toll revenue bonds, and a Transportation Infrastructure Finance and Innovation Act (TIFIA) loan from the U.S. Department of Transportation (USDOT). Since it has been six years since the last procurement for underwriting services, staff decided to solicit competitive proposals from investment banking firms to assist the Commission with future financings. Currently, the Commission commenced the development of a plan of finance for the I-15 Express Lanes Project, which assumes the issuance of sales tax and toll revenue bonds and the approval and execution of a TIFIA loan. Procurement Process Staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous proposal with price and other factors considered. Non-price factors include elements such as qualifications of firms and the ability to respond to the Commission’s needs for underwriting services for Commission financings as set forth under the terms of Request for Proposals (RFP) No. 15-19-033-00. RFP No. 15-19-033-00 for underwriting services for Commission financings was released by staff on December 29, 2014. A public notice was advertised in the Press Enterprise, and the RFP was posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 23 firms, 2 of which are located in Riverside County. Through the PlanetBids site, 26 firms downloaded the RFP; none of these firms are located in Riverside County. Staff responded to all questions submitted by potential proposers prior to the January 8 clarification deadline date. Fifteen firms submitted responsive proposals prior to the 2:00 p.m. submittal deadline on January 22: • Academy (San Diego); • Alamo Capital (Walnut Creek); • Backstrom McCarley Berry, LLC (San Francisco); • BAML (Los Angeles); • Barclays (San Francisco); • Cabrera Capital Markets, LLC (Los Angeles); • Citigroup Global Markets (Los Angeles); • Fidelity (San Francisco); • First Southwest Company, LLC (Santa Monica); • Goldman (San Francisco); • J.P. Morgan Securities LLC (Los Angeles); • Morgan Stanley & Co. LLC (Los Angeles); • RBC Capital Markets (San Francisco); • Stifel, Nicolaus & Company, Incorporated (Los Angeles); and • Wells Fargo Bank, N.A. (Los Angeles). Agenda Item 11 82 Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated and scored by an evaluation committee comprised of Commission staff. The evaluations of the proposals were divided into two tiers: firms to serve as senior and/or co-manager and firms to serve solely as co-manager. Of the 15 proposals, 4 firms proposed solely as co-managers. The firms were – Academy; Alamo Capital; Backstrom McCarley Berry, LLC; and Fidelity. Based on the evaluation criteria set forth in the RFP, the evaluation committee recommended Academy and Fidelity for selection as co-managers. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFP, the evaluation committee short listed and invited 5 of the remaining 11 firms to the interview phase of the evaluation and selection process. Interviews of the short listed firms – BAML, Barclays, Citigroup Global Markets, Goldman, and J.P. Morgan Securities LLC – were conducted on February 25, 2015. As a result of the interviews of the shortlisted firms, the evaluation committee recommended selection of 3 of the firms to serve as senior and/or co-managing underwriters for Commission financings over the next four years with an option to extend for an additional two one-year periods, as these shortlisted firms earned the highest total evaluation scores under the evaluation criteria terms of the RFP. Based on the overall evaluation process of the two tiers, staff is therefore recommending 5 investment banking firms to provide underwriting services for Commission financings over the next six years. The Commission successfully financed the 91 Project in 2013 with BAML and Goldman as senior managing underwriters, and Barclays served as the senior managing underwriter for sales tax financing transactions between 2005 and 2010. Academy is a certified disabled veterans business enterprise, and Fidelity has one of the largest pools of retail investors in the industry. Agreements with the senior managing underwriter(s) on behalf of the underwriting team will be part of the financing documents associated with each financing. Similar to prior financings, compensation will be negotiated prior to the issuance of any bonds based on the market conditions and will be paid at the time of issuance of any bonds. Anticipated Financings The I-15 Express Lanes Project is moving forward to the design-build phase. Procurements were conducted over the past few months for a project and construction manager and an investment grade traffic and revenue study. These procurements are the subject of other staff reports for the April Commission meeting. Additionally staff, Commissioner Tavaglione, and the Commission’s financial advisor made a presentation to USDOT TIFIA Joint Program Office staff in December 2014, to provide a briefing on the I-15 Express Lanes Project and related schedule through construction completion and opening of the express lanes. The schedule estimates that financial close, or completion of financing activities, will occur in the summer 2017. Accordingly, it is critical to begin the development of a plan of finance, which includes the Agenda Item 11 83 appointment of an underwriting team. Based on the investment banking firms recommended by staff to serve as underwriters for Commission financings, staff recommends the following appointments for the I-15 Express Lanes Project financing: • BAML and Goldman as Joint Bookrunners; • Barclays as Co-Senior Manager; and • Academy and Fidelity as Co-Managers. In choosing co-managers for this proposed transaction, staff desired to round out the underwriting syndicate with firms having complimentary attributes in order to obtain the broadest distribution of bonds to be sold. There is no current fiscal impact as underwriting compensation will be determined and paid in connection with the specific financings. Plans of finance to be approved by the Commission will contain an estimated cost of issuance, which will include underwriting compensation. Agenda Item 11 84