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
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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
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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%
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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:
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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.
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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
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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
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A-2
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EXHIBIT "B"
COMPENSATION
[attached behind this page]
B-1
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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
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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.
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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.
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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.
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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: ______________________________
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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: ______________________________
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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: ______________________________
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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
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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).
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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
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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.
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