HomeMy Public PortalAbout10 October 24, 2016 Budget & ImplementationComments 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.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
BUDGET AND IMPLEMENTATION COMMITTEE
MEETING AGENDA
TIME: 9:30 a.m.
DATE: Monday, October 24, 2016
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
Lloyd White / Mike Lara, City of Beaumont
Ella Zanowic / Joyce McIntire, 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 / Paul Raver, City of Hemet
Dana Reed / Douglas Hanson, City of Indian Wells
Rick Gibbs / Jonathan Ingram, City of Murrieta
Rusty Bailey / Andy Melendrez, City of Riverside
Michael Naggar / Michael McCracken, 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
COMM-BI-00036
Rivers' a County Transportation Commission
TO: Riverside County Transportation Commission
FROM: Jennifer Harmon, Clerk of the Board
DATE: October 19, 2016
SUBJECT: Possible Conflicts of Interest Issues — Budget and Implementation Committee
Agenda of October 24, 2016
The October 24, 2016 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. 9 — Agreements for State and Federal Legislative Advocacy Services
Consultangs): Smith, Watts & Hartmann
Mark Watts, Managing Partner
915 L Street, Suite 220
Sacramento, CA 95814
Cliff Madison Government relations
Cliff Madison, President
601 Pennsylvania Avenue, NW
Washington, D.C. 20004
Ruffalo & Associates, LLC
Kathy Ruffalo, President
601 Pennsylvania Avenue, NW
South Building — Suite 900
Washington, D.C. 20004
Tara Byerly
From: Tara Byerly
Sent: Wednesday, October 19, 2016 1:32 PM
To: Tara Byerly
Cc: Jennifer Harmon; STANDIFO; Anne Mayer
Subject: RCTC: Budget and Implementation Committee Agenda - 10.24.2016
Importance: High
Good afternoon Budget and Implementation Committee Members:
Attached is the link to the Budget and Implementation Committee Agenda for the meeting scheduled @ 9:30 a.m. on
Monday, October 24.
http://www.rctc.org/uploads/media items/budget-and-implementation-committee-october-24-2016.original.pdf
Also, attached for your review and information is the conflict of interest memo and form. Please let me know if you
have any questions. Thank you.
In
Conflict of Conflict of
Interest Form.pdf Interest Memo.p...
Respectfully,
Riverside County Transportation Commission
Tara Byerly
Deputy Clerk of the Board
Riverside County Transportation Commission
PO Box 12008, Riverside, CA 92502-2208
4080 Lemon Street, 3rd Floor, Riverside, CA 92501
(951) 787-7141 I rctc.org
i
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, October 24, 2016
BOARD ROOM
County of Riverside 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 / ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. 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.
4. APPROVAL OF MINUTES – AUGUST 22, 2016
Budget and Implementation Committee
October 24, 2016
Page 2
5. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a
finding that there is a need to take immediate action on the item and that the item came to
the attention of the Committee subsequent to the posting of the agenda. An action adding
an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the
Committee members present, adding an item to the agenda requires a unanimous vote.
Added items will be placed for discussion at the end of the agenda.)
6. CONSENT CALENDAR - All matters on the Consent Calendar will be approved in a single
motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled
from the Consent Calendar will be placed for discussion at the end of the agenda.
6A. SINGLE SIGNATURE AUTHORITY REPORT
Page 1
Overview
This item is for the Committee to:
1) Receive and file the Single Signature Authority report for the first quarter
ended September 30, 2016; and
2) Forward to the Commission for final action.
7. INTERSTATE 15 EXPRESS LANES PROJECT PLAN OF FINANCE
Page 3
Overview
This item is for the Committee to:
1) Provide input and direct staff regarding the preliminary funding plan for the
Interstate 15 Express Lanes project (Project);
2) Approve an additional $50 million in federal Congestion Mitigation and Air Quality
(CMAQ) and/or Surface Transportation Block Grant (STBG) funds for a total amount
of $110 million in CMAQ and/or STBG funds for design-build costs related to the
Project and direct staff to program the funding in the 2017 Federal Transportation
Improvement Program (FTIP); and
3) Forward to the Commission for final action.
Budget and Implementation Committee
October 24, 2016
Page 3
8. MOBILE SOURCE AIR REDUCTION REVIEW COMMITTEE MAJOR EVENT CENTER
TRANSPORTATION PROGRAM GRANT
Page 7
Overview
This item is for the Committee to:
1) Approve Agreement No. 17-25-040-00 with the South Coast Air Quality Management
District (SCAQMD) for the receipt of a Mobile Source Air Pollution Reduction Review
Committee (MSRC) Major Event Center Transportation Programs grant in the amount
of $1.2 million;
2) Approve Agreement No. 17-25-037-00 with the Los Angeles – San Diego – San Luis
Obispo (LOSSAN) Rail Corridor Agency for project coordination and transportation
services with Amtrak in an amount not to exceed $1 million;
3) Approve Agreement No. 17-25-036-00 with Goldenvoice/Valley Music Travel
(Goldenvoice) for project coordination and shuttle bus transportation in an amount
not to exceed $200,000;
4) Approve an amendment of $1.2 million to the FY 2016/17 Commuter Rail Short Range
Transit Plan (SRTP) for the total grant;
5) Approve an increase to the FY 2016/17 budget of $600,000 for MSRC grant revenues
and corresponding rail and shuttle service expenditures;
6) Authorize the Chair or Executive Director, pursuant to legal counsel review, to
execute the agreements on behalf of the Commission; and
7) Forward to the Commission for final action.
9. AGREEMENTS FOR STATE AND FEDERAL LEGISLATIVE ADVOCACY SERVICES
Page 40
Overview
This item is for the Committee to:
1) Award the following agreements to provide state and federal legislative advocacy
services for a four-year term, and two two-year options to extend the agreements,
for up to an eight-year period of performance, as follows:
a) Agreement No. 17-14-009-00 with Smith, Watts & Hartmann, in an amount
not to exceed $524,000;
b) Agreement No. 17-14-010-00 with Ruffalo and Associates, LLC, in an amount
not to exceed $720,000;
c) Agreement No. 17-14-011-00 with Cliff Madison Government Relations, in an
amount not to exceed $530,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to
execute the agreements, including option years, on behalf of the Commission; and
3) Forward to the Commission for final action.
Budget and Implementation Committee
October 24, 2016
Page 4
10. 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.
11. ADJOURNMENT AND THE NEXT MEETING
The next Budget and Implementation Committee meeting is scheduled to be held at
9:30 a.m., Monday, November 28, 2016, Board Chambers, First Floor, County
Administrative Center, 4080 Lemon Street, Riverside.
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
BUDGET AND IMPLEMENTATION COMMITTEE
ROLL CALL
OCTOBER 24, 2016
County of Riverside, District II
County of Riverside, District III
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
Present
oe
❑
eer
Absent
❑
❑
❑
❑
❑
AGENDA ITEM 4
MINUTES
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
BUDGET AND IMPLEMENTATION COMMITTEE
SPECIAL MEETING
Monday, August 22, 2016
MINUTES
1. CALL TO ORDER
The meeting of the Budget and Implementation Committee was called to order by
Chair Bob Magee at 9:30 a.m., in Conference Room A at the County of Riverside
Administrative Center, 4080 Lemon Street, Third Floor, Riverside, California, 92501.
2. PLEDGE OF ALLEGIANCE
At this time, Chair Magee led the Budget and Implementation Committee in a flag salute.
3. ROLL CALL
Members/Alternates Present Members Absent
Rusty Bailey* Scott Matas
Rick Gibbs Dana Reed
Dawn Haggerty John Tavaglione
Jan Harnik Chuck Washington
Steven Hernandez*
Shelley Kaplan
Linda Krupa
Bob Magee
Michael Naggar
Lloyd White
Ella Zanowic
*Arrived after the meeting was called to order
4. PUBLIC COMMENTS
There were no requests to speak from the public.
RCTC Budget and Implementation Committee Minutes – Special Meeting
August 22, 2016
Page 2
5. APPROVAL OF MINUTES – JUNE 27, 2016
M/S (Gibbs/Naggar) to approve the minutes of June 27, 2016 meeting as
submitted.
Abstain: Kaplan and White
The minutes will be submitted for approval at the next Committee meeting as the number
of yes votes received did not constitute a quorum.
6. ADDITIONS / REVISIONS
There were no additions or revisions to 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.
M/S/C (Gibbs/Naggar) to approve the following Consent Calendar item(s):
7A. QUARTERLY FINANCIAL STATEMENTS
1) Receive and file the Quarterly Financial Statements for the period ended
June 30, 2016; and
2) Forward to the Commission for final action.
7B. SINGLE SIGNATURE AUTHORITY REPORT
1) Receive and file the Single Signature Authority report for the fourth
quarter ended June 30, 2016; and
2) Forward to the Commission for final action.
7C. QUARTERLY SALES TAX ANALYSIS
1) Receive and file the sales tax analysis for Quarter 1, 2016 (1Q 2016); and
2) Forward to the Commission for final action.
7D. QUARTERLY INVESTMENT REPORT
1) Receive and file the Quarterly Investment Report for the quarter ended
June 30, 2016; and
2) Forward to the Commission for final action.
At this time, Commissioners Steven Hernandez and Rusty Bailey joined the meeting.
RCTC Budget and Implementation Committee Minutes – Special Meeting
August 22, 2016
Page 3
8. TERMINATION OF SWAP AND REFUNDING OF 2009 SERIES A SALES TAX REVENUE
BONDS
Theresia Trevino, Chief Financial Officer, presented the interest rate swap termination
and 2016 refunding bonds, highlighting the following areas:
July 2016 Deutsche Bank swap options – Accept Deutsche Bank replacement
swap, if proposed, waive right to terminate swap, and terminate swap and pay
termination payment;
August 2016 swap recommendation – Terminate swap and pay termination
payment;
2016 refunding bonds by proceeds and terms;
Swap termination and refunding transaction approvals; and
Next steps.
Commissioner Rick Gibbs commended staff for a detailed presentation and expressed
support for the staff recommendation. He then requested staff provide a complete
background at the Commission meeting as to how the Commission entered into the
interest rate swap market.
M/S/C (Gibbs/Krupa) to:
1) Receive and file the presentation regarding the termination of the
Deutsche Bank (DB) swap and related issuance of the 2016 Series A Sales
Tax Revenue Refunding Bonds (2016 Refunding Bonds);
2) Approve the termination of the forward interest rate swap with DB in the
currently outstanding notional amount of $63.9 million and at an
estimated termination cost of $10.7 million;
3) Approve the refunding of the 2009 Series A Sales Tax Revenue Variable
Rate Demand Bonds (2009 Bonds), currently outstanding in the amount
of $63.9 million and integrated with the DB swap;
4) Adopt Resolution No. 16‐015, “Resolution Authorizing the Issuance and
Sale of Not to Exceed $85,000,000 Aggregate Principal Amount of
Riverside County Transportation Commission Sales Tax Revenue
Refunding Bonds (Limited Tax Bonds), the Refunding of Outstanding
Bonds and Commercial Paper, the Execution and Delivery of a Sixth
Supplemental Indenture, a Notice of Sale Pursuant to Which Such Bonds
Are to Be Sold, an Official Statement and a Continuing Disclosure
Agreement, the Publication of a Notice of Intention to Sell, and the Taking
of All Other Actions Necessary in Connection Therewith”;
5) Approve the draft Official Statement for the issuance of not to exceed
$85 million in 2016 Refunding Bonds and authorize the Executive Director
to approve and execute the printing and distribution of the final Official
Statement;
RCTC Budget and Implementation Committee Minutes – Special Meeting
August 22, 2016
Page 4
6) Approve the draft Continuing Disclosure Agreement related to the 2016
Refunding Bonds between the Riverside County Transportation
Commission and Digital Assurance Certification, L.L.C., as dissemination
agent, and authorize the Executive Director to approve and execute the
final Continuing Disclosure Agreement;
7) Approve the draft Sixth Supplemental Indenture for the 2016 Refunding
Bonds between the Riverside County Transportation Commission and
U.S. Bank National Association (US Bank), as Trustee, and authorize the
Executive Director to approve and execute the final Sixth Supplemental
Indenture;
8) Approve the draft Official Notice of Sale for the 2016 Refunding Bonds
and authorize the Chief Financial Officer to approve and execute the final
Official Notice of Sale;
9) Authorize the Chief Financial Officer to receive bids for the 2016
Refunding Bonds and award such bonds to the highest responsible bidder
resulting in the lowest true interest cost;
10) Approve the estimated costs of issuance of $375,000 to be paid from the
bond proceeds;
11) Award Agreement No. 17‐19‐006‐00 with Riverside Risk Advisors LLC
(Riverside Risk) for specialized swap advisory services related to the
termination of the DB swap through October 31, 2016, in the amount of
$11,000, plus a contingency amount of $4,000, for a total amount not to
exceed $15,000;
12) Approve Agreement No. 04‐19‐029‐10, Amendment No. 10 to Agreement
No. 04‐19‐029‐00, with Fieldman Rolapp & Associates, Inc. (Fieldman) for
financial advisory services related to the termination of the DB swap and
issuance of the 2016 Refunding Bonds for an additional amount not to
exceed $70,000;
13) Approve Agreement No. 05‐19‐510‐11, Amendment No. 11 to Agreement
No. 07‐31‐14‐00, with Orrick, Herrington, & Sutcliffe LLP (Orrick) for bond
counsel services related to the termination of the DB swap and issuance
of the 2016 Refunding Bonds for an additional amount of $115,000 and a
total amount not to exceed $1,975,000;
14) Approve Agreement No. 09‐19‐072‐10, Amendment No. 10 to Agreement
No. 09‐19‐072‐00, with Norton Rose Fulbright US LLP (Norton Rose) for
disclosure counsel services related to the termination of the DB swap and
issuance of the 2016 Refunding Bonds for an additional amount of
$57,500 and a total amount not to exceed $637,600;
15) Approve the revised Debt Management Policy; and
16) Forward to the Commission for final action.
At this time, Jennifer Harmon, Clerk of the Board, requested Chair Magee revisit the
approval of the June 27, 2016 minutes as additional Commissioners joined the meeting,
which could provide a quorum for approval.
RCTC Budget and Implementation Committee Minutes – Special Meeting
August 22, 2016
Page 5
At this time, Chair Magee requested a motion on the June 27, 2016 minutes.
M/S/C (Harnik/Bailey) to approve the minutes of June 27, 2016 meeting as
submitted.
Abstain: Hernandez, Kaplan, and White
9. 2016 EARMARK REPURPOSING OF FEDERAL FUNDS UPDATE
Shirley Medina, Planning and Programming Director, provided an update for the 2016
Earmark Repurposing of Federal Funds.
M/S/C (Zanowic/Gibbs) to:
1) Receive and file a report on the status of the 2016 Earmark Repurposing
of Federal Funds;
2) Approve the replacement of the earmark balance for the State Route
60/Potrero Boulevard interchange with federal funds, in the amount of
$1,439,840, at such time when the project is deemed by Caltrans to be
ready to list; and
3) Forward to the Commission for final action.
10. FISCAL YEAR 2016/17 ANNUAL LOCAL TRANSPORTATION FUND PLANNING
ALLOCATIONS TO WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS AND COACHELLA
VALLEY ASSOCIATION OF GOVERNMENTS
Lorelle Moe‐Luna, Senior Management Analyst, presented the Fiscal Year 2016/17 annual
Local Transportation Fund planning allocations to Western Riverside Council of
Governments and Coachella Valley Association of Governments.
M/S/C (Zanowic/Kaplan) to:
1) Approve an allocation of Local Transportation Fund (LTF) planning funds
in the amount of $701,250 for Western Riverside Council of Governments
(WRCOG) and $382,500 for the Coachella Valley Association of
Governments (CVAG) for efforts identified in each agency’s Fiscal Year
2016/17 LTF Program Objectives/Work Plan (Work Plan) that supports
transportation planning programs and functions consistent with regional
and subregional plans, programs, and requirements; and
2) Forward to the Commission for final action.
RCTC Budget and Implementation Committee Minutes – Special Meeting
August 22, 2016
Page 6
11. STATE AND FEDERAL LEGISLATIVE UPDATE
Jillian Guizado, Senior Legislative Analyst, provided an update on state and federal
legislative activities.
Commissioner Gibbs discussed his concerns regarding AB 626 and does not believe it will
pass in its current form.
At this time, Commissioner Michael Naggar left the meeting.
John Standiford, Deputy Executive Director, discussed the Transportation Investment
Generating Economic Recovery (TIGER) grant program, highlighting the grant received by
Los Angeles County Metropolitan Authority (Metro) and its benefit to the Commission
related to railroad grade separations. Unfortunately, the Southern California area was
vastly overlooked.
Commissioner Hernandez referred to the Presidential campaigns as both candidates are
talking about massive infrastructure dollars after being elected. He asked if there is any
information as to where these infrastructure dollars will be allocated.
John Standiford replied those are good campaign promises, however, there are no details
at this time.
M/S/C (Gibbs/Kaplan) to:
1) Receive and file an update on state and federal legislation;
2) Adopt the following bill positions:
a) AB 626 (Chiu and Low) – Oppose;
b) AB 1889 (Mullin) – Support; and
3) Oppose Proposition 53; and
4) Forward to the Commission for final action.
12. COMMISSIONERS / EXECUTIVE DIRECTOR REPORT
12A. John Standiford announced:
Ms. Guizado’s promotion to Senior Legislative Analyst. She will be working
with Aaron Hake in his new role as External Affairs Director. She has been
a staff analyst for a number of years working with the Freeway Service
Patrol, call box, and rideshare programs. He expressed it is a well‐deserved
promotion and Ms. Guizado will present on legislative issues in the future;
The Board Room audio/visual and voting system are being upgraded and
the September Commission meeting will be held in the Board Room after
the system upgrades are complete;
RCTC Budget and Implementation Committee Minutes – Special Meeting
August 22, 2016
Page 7
There will be a 40th Anniversary open house reception on September 29.
AB 1246 was signed by the Governor on September 29, 1976, creating the
transportation commission in Los Angeles, Riverside, and San Bernardino
Counties; and
A flyer was distributed to the Commissioners regarding the Orange County
91 Express Lanes pavement rehabilitation project.
13. ADJOURNMENT
There being no further business for consideration by the Budget and Implementation
Committee, the meeting was adjourned at 10:06 a.m.
Respectfully submitted,
Jennifer Harmon
Clerk of the Board
AGENDA ITEM 6A
Agenda item 6A
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Budget and Implementation Committee
FROM: Matt Wallace, Procurement Manager
THROUGH: Theresia Trevino, Chief Financial Officer
SUBJECT: Single Signature Authority Report
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Receive and file the Single Signature Authority report for the first quarter ended
September 30, 2016; and
2) Forward to the Commission for final action.
BACKGROUND INFORMATION:
Certain contracts are executed under single signature authority as permitted in the
Commission’s Procurement Policy Manual adopted in September 2015. The Executive Director
is authorized to sign services contracts that are less than $150,000 individually and in an
aggregate amount not to exceed $1 million in any given fiscal year. Additionally, in accordance
with Public Utilities Code Section 130323(c), the Executive Director is authorized to sign
contracts for supplies, equipment, materials, and construction of all facilities and works under
$50,000 individually.
The attached report details all contracts that have been executed for the first quarter ended
September 30, 2016 under the single signature authority granted to the Executive Director. The
unused capacity of single signature authority for services at September 30, 2016, is $966,000.
Attachment: Single Signature Authority Report as of September 30, 2016.
1
V:\2016\11 November\B&I\6A.A1.JM.Comm.SingleSignQ1.xlsx
CONSULTANT DESCRIPTION OF SERVICES ORIGINAL CONTRACT
AMOUNT PAID AMOUNT REMAINING
CONTRACT AMOUNT
AMOUNT AVAILABLE July 1, 2016 $1,000,000.00
Smith, Watts & Hartman State Legislative Advocacy Services 18,000.00 0.00 18,000.00
Alvarado Smith Legal Services 16,000.00 0.00 16,000.00
AMOUNT USED 34,000.00
34,000.00
$966,000.00
None N/A $- $- $-
Jose Mendoza Theresia Trevino
Prepared by Reviewed by
AMOUNT USED
SINGLE SIGNATURE AUTHORITY
AS OF September 30, 2016
Note: Shaded area represents new contracts listed in the first quarter.
AMOUNT REMAINING through September 30, 2016
Agreements that fall under Public Utilities Code 130323 (C)
2
AGENDA ITEM 7
Agenda Item 7
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Budget and Implementation Committee
FROM:
Theresia Trevino, Chief Financial Officer
Michael Blomquist, Toll Program Director
Shirley Medina, Planning and Programming Director
THROUGH: Anne Mayer, Executive Director
SUBJECT: Interstate 15 Express Lanes Project Plan of Finance
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Provide input and direct staff regarding the preliminary funding plan for the Interstate 15
Express Lanes project (Project);
2) Approve an additional $50 million in federal Congestion Mitigation and Air Quality
(CMAQ) and/or Surface Transportation Block Grant (STBG) funds for a total amount of
$110 million in CMAQ and/or STBG funds for design-build costs related to the Project and
direct staff to program the funding in the 2017 Federal Transportation Improvement
Program (FTIP); and
3) Forward to the Commission for final action.
BACKGROUND INFORMATION:
The Project will construct two tolled express lanes in each direction between the I-15/Cajalco
Road interchange and the 15/60 interchange. All proposed improvements are anticipated to be
constructed within existing Caltrans right of way with the majority of the improvements occurring
within the existing I-15 median. Right of way impacts will be limited, and some soundwalls will
be built.
With tolled express lanes, users benefit from reduced travel times achieved through congestion
pricing. Tolls to be charged will vary by time of day based on congestion levels. The I-15 Express
Lanes will provide many travel choices including carpooling, vanpooling, express bus, and single
occupant vehicle travel. A completely electronic toll collection system will be used, and all
vehicles in the tolled express lanes will be required to have a FasTrak transponder.
Environmental approval via a finding of no significant impact was obtained in May 2016, and the
Commission adopted the environmental document at its July 2016 meeting. A project and
construction management (PCM) team has been in place since April 2015. The investment grade
traffic and revenue (T&R) study was adopted by the Commission in June 2016. The Project
3
Agenda Item 7
finance team, including a financial advisor and underwriters, is in place and financial close is
expected by mid-2017. Once financial close occurs, construction will begin. The projected
Project opening is mid-2020.
Preliminary Funding Plan
In November 2015, staff presented to the Commission a preliminary funding plan for the Project
that anticipates use of toll revenue bonds, a federal loan through the Transportation
Infrastructure Finance and Innovation Act (TIFIA) program, Measure A sales tax bonds, Measure
A sales tax revenues, and federal CMAQ and/or Surface Transportation Program (STP) grant
funds. As a result of the passage of the Fixing America’s Surface Transportation Act (FAST Act),
in December 2015, the STP was renamed as the STBG program. The toll revenue bonds and TIFIA
loan are to be paid back by future tolls generated from express lane users. That preliminary
funding plan was submitted in November 2015, to the TIFIA Joint Programs Office (JPO) in a letter
of interest for a federal TIFIA loan. In January 2016, the Commission was notified by the TIFIA
JPO the Project was ready to advance to the creditworthiness phase.
Based on updated cost estimates, the investment grade T&R study, and continuous financial
modeling, staff developed a revised preliminary funding plan that was submitted to the TIFIA JPO
in September for creditworthiness review. The revised plan currently reflects a significant
decrease in toll revenue bonds and TIFIA loan offset by a significant increase in sales tax revenue
bonds and Commission contribution. The significant change between toll revenue-supported
debt and sales tax revenue-supported debt is based on the effects of applying more restrictive
rating agency criteria in order to obtain preliminary investment grade ratings for the toll revenue-
supported debt. A comparison of the preliminary funding plans as of November 2015 and
November 2016, is presented in the following table:
2015 2016
Sources:
Toll revenue bonds, including premium 143,576,000$ 18,406,000$
TIFIA loan 151,754,000 123,176,000
Sales tax revenue bonds, including premium 95,734,000 197,301,000
Investment earnings 3,054,000 1,142,000
CMAQ/STBG funds 60,000,000 110,000,000
RCTC contribution, including predevelopment costs 8,243,000 46,786,000
462,361,000$ 496,811,000$
Uses:
Commission and financing costs 164,016,000$ 200,035,000$
Design-Build and Toll Collection System costs 298,345,000 296,776,000
462,361,000$ 496,811,000$
November
4
Agenda Item 7
The current preliminary funding plan also includes a Commission equity loan of approximately
$21.2 million from sales tax revenues to fund a TIFIA debt service reserve of $18 million and toll
debt service. The loan is anticipated to be repaid with interest from available surplus revenues.
The Project finance team continues to evaluate rating agency criteria and implement financial
modeling concepts in order to decrease the level of sales tax revenues and increase the level of
toll-supported debt. The current preliminary funding plan is expected to change as the
Commission progresses through the project financing work, including the TIFIA creditworthiness
process. The final funding plan expected in spring 2017, will support the Commission as it
negotiates a federal TIFIA loan, markets and sells toll revenue and sales tax bonds, and generally
works to obtain financial close.
Federal Funds
CMAQ funds are available for transportation projects and programs that help meet the
requirements of the Clean Air Act. STBG funds are flexible and can be used for various types of
transportation improvements. The Commission is responsible for programming these funds and
previously allocated CMAQ and STP funds directly to support Measure A projects, or through a
call for projects. Given the high cost of the Project and the desire to minimize debt financing, the
Commission approved an allocation of $60 million of CMAQ and/or STBG funds for this project in
November 2015.
CMAQ funding is not available for capacity increasing projects for single occupancy vehicles, but
it is available for managed lane projects such as the Project that fall under the air quality category
of Transportation Control Measures and is categorized in the Southern California Association of
Governments’ Regional Transportation Plan/Sustainable Communities Strategy as a
Transportation Demand Management strategy.
In Riverside County, CMAQ funds are primarily apportioned to two air basins in Riverside County–
South Coast Air Basin (SCAB) and Salton Sea Air Basin (SSAB). The Commission allocates funds
for the SCAB or Western Riverside County, and the Coachella Valley Association of Governments
(CVAG) allocates SSAB CMAQ funds in Eastern Riverside County. The $60 million previously
programmed is comprised of three years of SCAB CMAQ apportionment levels, as the current
annual apportionment level is approximately $26 million and would be programmed in the FTIP
in FYs 2017/18 through 2019/20. As a result, CMAQ funds would be substantially maximized
during these years.
STBG funds are apportioned based on population across the county. Project categories eligible
for STBG funds include, but are not limited to: capacity enhancements, high occupancy vehicle
lanes, safety, road rehabilitation, active transportation, and intersection improvements. Annual
apportionment levels are approximately $29 million, and staff recommends Commission
approval for the programming of an aggregate amount of $50 million of STP funds in FYs 2017/18
through 2019/20.
5
Agenda Item 7
Financial Information
In Fiscal Year Budget: N/A Year: FY 2017/18+ Amount: $496,811,000
Source of Funds:
2009 Measure A sales tax receipts and
sales tax revenue bonds; toll revenue
bonds; TIFIA loan; federal CMAQ and/or
STBG funds
Budget Adjustment: N/A
GL/Project Accounting No.:
003027 000 59102 262 31 59102 (sales tax/toll revenue bonds)
003027 000 59102 262 31 59102 (TIFIA loan)
003027 414 41403 262 31 41401 (CMAQ/STBG funds)
Fiscal Procedures Approved: Date: 10/19/2016
6
AGENDA ITEM 8
Agenda Item 8
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Budget and Implementation Committee
FROM: Brenda Ramirez, Management Analyst
Sheldon Peterson, Rail Manager
THROUGH: Robert Yates, Multimodal Services Director
SUBJECT: Mobile Source Air Reduction Review Committee Major Event Center
Transportation Program Grant
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Approve Agreement No. 17-25-040-00 with the South Coast Air Quality Management
District (SCAQMD) for the receipt of a Mobile Source Air Pollution Reduction Review
Committee (MSRC) Major Event Center Transportation Programs grant in the amount of
$1.2 million;
2) Approve Agreement No. 17-25-037-00 with the Los Angeles – San Diego – San Luis Obispo
(LOSSAN) Rail Corridor Agency for project coordination and transportation services with
Amtrak in an amount not to exceed $1 million;
3) Approve Agreement No. 17-25-036-00 with Goldenvoice/Valley Music Travel
(Goldenvoice) for project coordination and shuttle bus transportation in an amount not
to exceed $200,000;
4) Approve an amendment of $1.2 million to the FY 2016/17 Commuter Rail Short Range
Transit Plan (SRTP) for the total grant;
5) Approve an increase to the FY 2016/17 budget of $600,000 for MSRC grant revenues and
corresponding rail and shuttle service expenditures;
6) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements on behalf of the Commission; and
7) Forward to the Commission for final action.
BACKGROUND INFORMATION:
On December 4, 2015, the Commission was awarded a two-year term MSRC special event grant
by the SCAQMD to implement rail and shuttle service to the Coachella Music and Art (Coachella)
Festival and Stagecoach Country Music (Stagecoach) Festival held each April at the city of Indio’s
Empire Polo Club. The grant awarded the Commission with $1.2 million to provide concert goers
with alternative transportation to and from one of the three-day concert events. On May 6, 2016,
SCAQMD approved an extension to provide the proposed service through April 2018.
7
Agenda Item 8
Both music events are all day events that run from Friday through Sunday night. The grant funds
will allow the Commission to provide two round trips via Amtrak on Thursday prior to the music
event from the Los Angeles Union Station to Indio and return on Monday, the day after the event
ends. The rail transportation services will be provided through an agreement with LOSSAN Rail
Corridor Agency. The grant will also allow the Commission to establish a temporary boarding
area in Indio as an in-kind match, comprised of the Proposition 1B Public Transportation
Modernization, Improvement, and Service Enhancement Account funds received by the
Commission. Lastly, shuttle services will be provided by Goldenvoice to allow passengers a
connection from Indio to the event center for those camping onsite.
Both the Coachella and Stagecoach Festivals are three-day festivals. The average daily
attendance for the Coachella and Stagecoach Festivals is approximately 99,000 and 69,600
people, respectively. The popularity of these two events provides a major economic boost for
the Coachella Valley but also severely impacts traffic levels on Interstate 10. During event
weekends, Caltrans data indicates peak vehicle trips on Friday and Monday that exceed 140,000
vehicles, making it one of the busiest travel days.
To operate this special transportation service, the Commission will collaborate and partner with
LOSSAN Rail Corridor Agency and the event promoter, Goldenvoice. This partnership will allow
for the successful implementation of ticketing and marketing required to provide and promote
services for special events. Upon approval and execution of agreements with LOSSAN Rail
Corridor Agency and Goldenvoice, staff will work to ensure the proposed service can be provided
in April 2017. In addition, staff is working in collaboration with local jurisdictions and the Greater
Palm Springs Convention and Visitors Bureau, who have provided the Commission with
enthusiastic support to provide the service.
The grant award of $1.2 million for operations costs over two years will be paid to the
Commission as work is completed. An amendment to the FY 2016/17 Commuter Rail SRTP
Table 4 in the amount of $1.2 million is required as well as adjustments to the FY 2016/17 budget
of $600,000 to increase revenues for the MSRC grant and expenditures for rail and shuttle
transportation service.
Even though these agreements and approvals are critical to moving the project forward, there
are still significant challenges ahead in order to operate the service for the April 2017 events. By
December 2016, approvals and official confirmations will be needed on various elements of the
program from the following partners: LOSSAN, Amtrak, Union Pacific Railroad, Caltrans Division
of Rail, MSRC, Goldenvoice, Valley Music Travel and the city of Indio. This has always been an
ambitious project that relies heavily on the efforts of external parties. Therefore, staff continues
to work diligently to overcome these obstacles and will provide additional updates as more
information becomes available.
8
Agenda Item 8
Financial Information
In Fiscal Year Budget: No
N/A Year: FY 2016/17
FY 2017/18 Amount: $600,000
$600,000
Source of Funds: MSRC grant Budget Adjustment: Yes
N/A
GL/Project
Accounting No.:
004000 415 41510 0102 103 25 41501 $1,200,000 (revenues)
004000 86101 00000 0102 103 25 86101 $1,200,000 (expenditures)
Fiscal Procedures Approved: Date: 10/17/2016
Attachments:
1)Draft MSRC Grant Agreement No. 17-25-040-00
2)Draft LOSSAN Agreement No. 17-25-037-00
3)Draft Goldenvoice/Valley Music Travel Agreement No. 17-25-036-00
9
Contract No. *****
1
AB 2766/MSRC WORK PROGRAM CONTRACT
1.PARTIES - The parties to this Contract are the South Coast Air Quality Management District (hereinafter
referred to as "SCAQMD") whose address is 21865 Copley Drive, Diamond Bar, California 91765-4178, and
the *** (hereinafter referred to as "CONTRACTOR") whose address is ***.
2.RECITALS
A. SCAQMD is the local agency with primary responsibility for regulating stationary source air pollution
within the geographical boundaries of the South Coast Air Quality Management District in the State of
California (State). SCAQMD is authorized under State Health & Safety Code Section 44225 (AB 2766)
to levy a fee on motor vehicles for the purpose of reducing air pollution from such vehicles and to
implement the California Clean Air Act.
B. Under AB 2766, SCAQMD's Governing Board has authorized the imposition of the statutorily set motor
vehicle fee. By taking such action, the State's Department of Motor Vehicles (DMV) is required to collect
such fee and remit it periodically to SCAQMD.
C. AB 2766 further mandates that thirty (30) percent of such vehicle registration fees be placed by
SCAQMD into a separate account for the sole purpose of implementing and monitoring programs to
reduce air pollution from motor vehicles.
D. AB 2766 creates a regional Mobile Source Air Pollution Reduction Review Committee (MSRC) to
develop a work program to fund projects from the separate account. Pursuant to approval of the work
program by SCAQMD's Governing Board, SCAQMD authorized this Contract with CONTRACTOR for
equipment or services described in Attachment 1 - Statement of Work, expressly incorporated herein by
this reference and made a part hereof of this Contract.
E. CONTRACTOR has met the requirements for receipt of AB 2766 Discretionary Funds as set forth in
CONTRACTOR's *** Program Application/Proposal dated ***.
F. CONTRACTOR is authorized to do business in the State of California and attests that it is in good tax
standing with the California Franchise Tax Board.
G. All parties to this Contract have had the opportunity to have this Contract reviewed by their attorney.
3.DMV FEES - CONTRACTOR acknowledges that SCAQMD cannot guarantee that the amount of fees to be
collected under AB 2766 will be sufficient to fund this Contract. CONTRACTOR further acknowledges that
payment under this Contract is contingent upon SCAQMD receiving sufficient funds from the DMV, and that
SCAQMD assumes no responsibility for the collection and remittance of motor vehicle registration fees.
4.AUDIT AND RECORDS RETENTION
A. CONTRACTOR shall, at least once every two years, or within two years of the termination of the
Contract if the term is less than two years, be subject to an audit by SCAQMD or its authorized
representative to determine if the revenues received by CONTRACTOR were spent for the reduction of
pollution from motor vehicles pursuant to the Clean Air Act of 1988.
B. CONTRACTOR agrees to maintain records related to this Contract during the Contract term and
continue to retain these records for a period of two years beyond the Contract term, except that in no
case shall CONTRACTOR be required to retain more than the most recent five years’ records .
SCAQMD shall coordinate such audit through CONTRACTOR'S audit staff.
South Coast
Air Quality Management District
ATTACHMENT 1
10
Contract No. *****
2
C. If an amount is found to be inappropriately expended, SCAQMD may withhold funding, or seek
reimbursement, from CONTRACTOR in the amount equal to the amount that was inappropriately
expended. Such withholding shall not be construed as SCAQMD's sole remedy and shall not relieve
CONTRACTOR of its obligation to perform under the terms of this Contract.
5. TERM - The term of this Contract is for *** (**) months from the date of execution by both parties, unless
terminated earlier as provided for in the TERMINATION clause of this Contract, the EARLY TERMINATION
clause, [leave if EARLY TERMINATION clause is used] or the term is extended by amendment of this
Contract in writing. No work shall commence prior to the Contract start date, except at CONTRACTOR's
cost and risk, and no charges are authorized until this Contract is fully executed, subject to the provisions
stated in the PRE-CONTRACT COSTS clause of this Contract.
6. SUCCESSORS-IN-INTEREST - This Contract, and the obligations arising under the Contract, shall be
binding on and inure to the benefit of CONTRACTOR and their executors, administrators, successors, and
assigns.
7. REPORTING - CONTRACTOR shall submit reports to SCAQMD as outlined in Attachment 1 - Statement of
Work. SCAQMD reserves the right to review, comment, and request changes to any report produced as a
result of this Contract.
8. TERMINATION
A. In the event any party fails to comply with any term or condition of this Contract, or fails to provide
services in the manner agreed upon by the parties, including, but not limited to, the requirements of
Attachment 1 – Statement of Work, this failure shall constitute a breach of this Contract. The non-
breaching party shall notify the breaching party that it must cure this breach or provide written notification
of its intention to terminate this contract. Notification shall be provided in the manner set forth in the
NOTICES clause of this Contract. The non-breaching party reserves all rights under law and equity to
enforce this Contract and recover damages.
B. SCAQMD reserves the right to terminate this Contract, in whole or in part, without cause, upon thirty (30)
days’ written notice. Once such notice has been given, CONTRACTOR shall, except as and to the
extent or directed otherwise by SCAQMD, discontinue any Work being performed under this Contract
and cancel any of CONTRACTOR’s orders for materials, facilities, and supplies in connection with such
Work, and shall use its best efforts to procure termination of existing subcontracts upon terms
satisfactory to SCAQMD. Thereafter, CONTRACTOR shall perform only such services as may be
necessary to preserve and protect any Work already in progress and to dispose of any property as
requested by SCAQMD.
[USE ABOVE CLAUSE B. (For most) OR, BELOW CLAUSE B. FOR PASS-THROUGH FUNDING (I.E.
ALT FUEL SCHOOL BUS PROGRAM), Choose one of the B. clauses. ALWAYS LEAVE CLAUSE C. in!]
B. Either party may terminate this Contract upon thirty (30) days written notice to the other party.
C. CONTRACTOR shall be paid in accordance with this Contract for all Work performed before the
effective date of termination under section B of the TERMINATION clause of this Contract. Before
expiration of the thirty (30) days’ written notice, CONTRACTOR s hall promptly deliver to SCAQMD all
copies of documents and other information and data prepared or developed by CONTRACTOR under
this Contract with the exception of a record copy of such materials, which may be retained by
CONTRACTOR.
9. EARLY TERMINATION - This Contract may be terminated early due to the following circumstances: The
infrastructure identified in Attachment 1, Statement of Work, becomes inoperable, and is either not
11
Contract No. *****
3
technically able to be repaired, or is too costly to repair, and such failure is not caused by CONTRACTOR’s
negligence, misuse, or malfeasance. [USE ONLY FOR FUELING/CHARGING STATIONS]
10. STOP WORK - SCAQMD may, at any time, by written notice to CONTRACTOR, require CONTRACTOR to
stop all or any part of the Statement of Work tasks in this Contract. A stop work order may be issued for
reasons including, but not limited to, the project exceeding the budget, out of scope work, delay in project
schedule, or misrepresentations. Upon receipt of the stop work order, CONTRACTOR shall immediately
take all necessary steps to comply with the order. CONTRACTOR shall resume the work only upon receipt
of written instructions from SCAQMD cancelling the stop work order. CONTRACTOR agrees and
understands that CONTRACTOR will not be paid for performing work while the stop work order is in effect,
unless SCAQMD agrees to do so in its written cancellation of the stop work order.
11. INSURANCE
A. CONTRACTOR shall furnish evidence to SCAQMD of workers' compensation insurance for each of its
employees, in accordance with either California or other states’ applicable statutory requirements prior to
commencement of any work on this Contract.
B. CONTRACTOR shall furnish evidence to SCAQMD of general liability insurance with a limit of at least
$1,000,000 per occurrence, and $2,000,000 in a general aggregate prior to commencement of any work
on this Contract. SCAQMD shall be named as an additional insured on any such liability policy, and
thirty (30) days written notice prior to cancellation of any such insurance shall be given by
CONTRACTOR to SCAQMD.
C. CONTRACTOR shall furnish evidence to SCAQMD of automobile liability insurance with limits of at least
$100,000 per person and $300,000 per accident for bodily injuries, and $50,000 in property damage, or
$1,000,000 combined single limit for bodily injury or property damage, prior to commencement of any
work on this Contract. SCAQMD shall be named as an additional insured on any such liability policy,
and thirty (30) days written notice prior to cancellation of any such insurance shall be given by
CONTRACTOR to SCAQMD.
D. CONTRACTOR shall furnish evidence to SCAQMD of Professional Liability Insurance with an aggregate
limit of not less than $5,000,000. [OPTIONAL FOR PROFESSIONAL SERVICES – USE FOR LAW
FIRMS AND SOFTWARE RELATED CONTRACTS]
E. If CONTRACTOR fails to maintain the required insurance coverage set forth above, SCAQMD reserves
the right either to purchase such additional insurance and to deduct the cost thereof from any payments
owed to CONTRACTOR or terminate this Contract for breach.
F. All insurance certificates shall be mailed to: SCAQMD, 21865 Copley Drive, Diamond Bar, CA 91765-
4178, Attention: Cynthia Ravenstein, MSRC Contracts Administrator. The SCAQMD Contract Number
must be included on the face of the certificate.
G. CONTRACTOR must provide updates on the insurance coverage throughout the term of the Contract to
ensure that there is no break in coverage during the period of contract performance. Failure to provide
evidence of current coverage shall be grounds for termination for breach of Contract.
[USE ABOVE CLAUSE OR SELF INSURANCE CLAUSE BELOW]-REMOVE BEFORE PRINTING
Self Insurance Clause:
INSURANCE - CONTRACTOR represents that it is permissibly self-insured and will maintain such self-
insurance in accordance with applicable provisions of California law throughout the term of this Contract.
CONTRACTOR shall provide evidence of sufficient coverage during the term of this Contract and any
extensions thereof that meet or exceed the minimum requirements set forth by the SCAQMD below. The
12
Contract No. *****
4
certificate of self-insurance shall be mailed to: SCAQMD, 21865 Copley Drive, Diamond Bar, CA 91765-
4178, Attention: Cynthia Ravenstein, MSRC Contracts Administrator. The SCAQMD Contract Number
must be included on the face of the certificate. If CONTRACTOR fails to maintain the required
insurance coverage, SCAQMD reserves the right to terminate the Contract or purchase such additional
insurance and bill CONTRACTOR or deduct the cost thereof from any payments owed to
CONTRACTOR. Minimum insurance coverages are as follows:
A. Worker’s compensation insurance in accordance with either California or other state’s
applicable statutory requirements.
B. General Liability insurance with a limit of at least $1,000,000 per occurrence, and
$2,000,000 in general aggregate.
C. Automobile Liability insurance with limits of at least $100,000 per person and $300,000 per
accident for bodily injuries and $50,000 in property damage, or $1,000,000 combined
single limit for bodily injury or property damage.
12. INDEMNIFICATION - CONTRACTOR agrees to hold harmless, defend and indemnify SCAQMD, its officers,
employees, agents, representatives, and successors-in-interest against any and all loss, damage, costs,
lawsuits, claims, demands, causes of action, judgments, attorney’s fees, or any other expenses arising from
or related to any third party claim against SCAQMD, its officers, employees, agents, representatives, or
successors in interest that arise or result in whole or in part, from any actual or alleged act or omission of
CONTRACTOR, its employees, subcontractors, agents or representatives in the performance of this
Contract. This Indemnification Clause shall survive the expiration or termination (for any reason) of the
Contract and shall remain in full force and effect.
13. DISCLAIMER OF WARRANTY - The purchase or lease of funded vehicles/equipment is the
CONTRACTOR’s decision. The SCAQMD does not make any express or implied warranty of
merchantability, fitness for a particular purpose or otherwise, quality or usefulness of the technology or
product. Without limiting the foregoing, the SCAQMD will not be financially responsible, or otherwise liable,
for the installation or performance of the vehicle/equipment. [REMOVE FOR MAJOR EVENT CENTER
TRANSPORTATION PROGRAM CONTRACTS]
14. PAYMENT
A. SCAQMD shall reimburse CONTRACTOR up to a total amount of *** Dollars ($***) in accordance with
Attachment 2 – Payment/Cost Schedule expressly incorporated herein by this reference and made a part
hereof of the Contract.
B. A withhold amount or percentage (if any) shall be identified in the Payment/Cost Schedule, and such
amount shall be withheld from each invoice. Upon satisfactory completion of project and final
acceptance of work and the final report, CONTRACTOR’s invoice for the withheld amount shall be
released. Proof of project completion shall include a Final Report detailing the project goals and
accomplishments, data collected during project performance, if any, documentation of significant results,
and emissions reduction input data needed for calculation of emissions reductions.
C. Any funds not expended upon early Contract termination or Contract completion shall revert to the AB
2766 Discretionary Fund. Payment of charges shall be made by SCAQMD to CONTRACTOR within
thirty (30) days after approval by SCAQMD of an itemized invoice prepared and furnished by
CONTRACTOR.
13
Contract No. *****
5
D. An invoice submitted to SCAQMD for payment must be prepared in duplicate, on company letterhead,
and list SCAQMD's contract number, period covered by invoice, and CONTRACTOR's social security
number or Employer Identification Number and submitted to:
South Coast Air Quality Management District
21865 Copley Drive
Diamond Bar, CA 91765-4178
Attn: Cynthia Ravenstein, MSRC Contracts Administrator
1. Charges for equipment, material, and supply costs, travel expenses, subcontractors, and other
charges, as applicable, must be itemized by CONTRACTOR. Reimbursement for equipment,
material, supplies, subcontractors, and other charges, as applicable, shall be made at actual cost.
Supporting documentation must be provided for all individual charges (with the exception of direct
labor charges provided by CONTRACTOR).
2. SCAQMD shall pay CONTRACTOR for travel-related expenses only if such travel is expressly set
forth in Attachment 2 – Payment/Cost Schedule of this Contract or pre-authorized by SCAQMD in
writing.
3. CONTRACTOR’s failure to provide receipts shall be grounds for SCAQMD’s non-reimbursement of
such charges. CONTRACTOR may reduce payments on invoices by those charges for which
receipts were not provided.
4. CONTRACTOR must submit final invoice no later than ninety (90) days after the termination date of
this Contract or invoice may not be paid.
[USE ABOVE CLAUSE OR, IF PASS-THROUGH FUNDING (I.E. ALT FUEL SCHOOL BUS PROGRAM), USE
THE CLAUSE BELOW]-REMOVE BEFORE PRINTING
A. SCAQMD will provide up to a maximum amount of *** Dollars ($***) in vehicle incentives for qualified
OEM, California Highway Patrol-certified, CARB-certified, alternative-fueled school buses sold or leased
to qualified customers, with the incentive amount per bus not to exceed Thirty One Thousand Dollars
($31,000) on each Type D body, dedicated CNG school bus, and Nine Thousand Dollars ($9,000) on
each Type C conventional body, dedicated LPG school bus. The actual incentive for each bus will be
adjusted to reflect any federal tax credits which will be claimed by the CONTRACTOR.
B. CONTRACTOR may submit a request for reimbursement upon proof of delivery and acceptance of an
eligible alternative-fueled school bus to customer (i.e., school districts, etc). The invoice shall include a
completed and signed Participant Agreement (Attachment A) from each customer, a copy of the sales or
lease agreement of the sales or lease agreement corresponding to each customer, including, at a
minimum, the following information: 1) the customer's name and address, including an affirmative
statement that the customer intends to operate the bus within the geographical boundaries of the South
Coast Air Quality Management District, and will scrap the bus being replaced; 2) the leasing company, if
the bus is leased; 3) make and model information; 4) Vehicle Identification Number; 5) the delivery date
and delivering dealership or retail facility; and 6) the name and phone number of a contact at the
dealership or retail facility.
C. SCAQMD will then reimburse CONTRACTOR for each qualifying alternative-fueled school bus sale or
lease agreement submitted. The SCAQMD shall reimburse CONTRACTOR within thirty (30) days of
receipt of an invoice deemed complete and correct by SCAQMD. CONTRACTOR shall not be eligible to
receive reimbursement under the Buydown Program for the resale or re-lease of any vehicle as to which
reimbursement to the CONTRACTOR has previously been made.
D. Additional funds may be added to the Contract after the initial funding amount has been exhausted
subject to the availability of remaining funds and MSRC approval.
14
Contract No. *****
6
15. COMPLIANCE WITH APPLICABLE LAWS - CONTRACTOR agrees to comply with all federal, state, and
local laws, ordinances, codes and regulations and orders of public authorities in the performance of this
Contract. CONTRACTOR must also ensure that the vehicles and/or equipment to be purchased, leased or
installed is in compliance with all applicable federal, state, and local air quality rules and regulations, and that
it will maintain compliance for the full Contract term. CONTRACTOR shall ensure that the provisions of this
clause are included in all subcontracts.
16. MOBILE SOURCE EMISSION REDUCTION CREDITS (MSERCs)
A. The MSRC has adopted a policy that no MSERCs resulting from AB 2766 Discretionary Funds may be
generated and/or sold.
B. CONTRACTOR has the opportunity to generate MSERCs as a by-product of the project if a portion of
the air quality benefits attributable to the project resulted from funding sources other than AB2766.
These MSERCs, which are issued by SCAQMD, are based upon the quantified vehicle miles traveled
(VMT) by project vehicles or other activity data as appropriate. Therefore, a portion of prospective
MSERCs, generated as a result of AB 2766 Funds, must be retired. The portion of prospective credits
funded by the AB 2766 program, and which are subject to retirement, shall be referred to as "AB 2766-
MSERCs."
C. The determination of AB 2766-MSERC's is to be prorated based upon the AB 2766 program's
contribution to the cost associated with the air quality benefits. In the case where AB 2766 Discretionary
Funds are used to pay for the full differential cost of a new alternative fuel vehicle or for the retrofitting or
repowering of an existing vehicle, all MSERCs attributable to AB 2766 Discretionary Funds must be
retired. The determination of AB 2766-MSERCs for infrastructure and other ancillary items is to be
prorated based upon the AB 2766 program’s contribution to the associated air quality benefits.
Determination of the project's overall cost will be on a case-by-case basis at the time an MSERC
application is submitted. SCAQMD staff, at the time an MSERC application is submitted, will calculate
total MSERCs and retire the AB 2766-MSERCs. CONTRACTOR would then receive the balance of the
MSERCs not associated with AB 2766 funding.
17. NOTICES - All notices that are required under this Contract shall be provided in the manner set forth herein,
unless specified otherwise. Notice to a party shall be delivered to the attention of the person listed below, or
to such other person or persons as may hereafter be designated by that party in writing. Notice shall be in
writing sent by email, U.S. Mail, express, certified, return receipt requested, or a nationally recognized
overnight courier service. In the case of email communications, valid notice shall be deemed to have been
delivered upon sending, provided the sender obtained an electronic confirmation of delivery. Email
communications shall be deemed to have been received on the date of such transmission, provided such
date was a business day (Tuesday-Friday) and delivered prior to 5:30pm Pacific Standard Time. Otherwise,
receipt of email communications shall be deemed to have occurred on the following business day. In the
case of U.S. Mail notice, notice shall be deemed to be received when delivered or five (5) business days
after deposit in the U. S. Mail. In the case of a nationally recognized overnight courier service, notice shall be
deemed received when delivered (written receipt of delivery).
SCAQMD:
South Coast Air Quality Management District
21865 Copley Drive
Diamond Bar, CA 91765-4178
Attn: Cynthia Ravenstein, MSRC Contracts Administrator, email: cravenstein@aqmd.gov
CONTRACTOR:
15
Contract No. *****
7
***
***
***
Attn: ***, email: ***
18. INDEPENDENT CONTRACTOR - CONTRACTOR is an independent contractor. CONTRACTOR, its
officers, employees, agents, representatives, or subcontractors shall in no sense be considered employees
or agents of SCAQMD, nor shall CONTRACTOR, its officers, employees, agents, representatives, or
subcontractors be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended
by SCAQMD to its employees. SCAQMD will not supervise, direct, or have control over, or be responsible
for, CONTRACTOR’s or subcontractor’s means, methods, techniques, work sequences or procedures, or for
the safety precautions and programs incident thereto, or for any failure by them to comply with any local,
state, or federal laws, or rules or regulations, including state minimum wage laws and OSHA requirements.
19. SUBCONTRACTOR APPROVAL - If CONTRACTOR intends to subcontract all or a portion of the work under
this Contract, then CONTRACTOR must first obtain written approval from SCAQMD’s Executive Officer or
designee prior to subcontracting any work. Any material changes to the subcontract(s) that affect the scope
of work, deliverable schedule, and/or payment/cost schedule shall also require the prior written approval of
the SCAQMD Executive Officer or designee. No subcontract charges will be reimbursed unless the required
approvals have been obtained from SCAQMD.
20. OWNERSHIP - Title and full ownership rights to any equipment purchased under this Contract shall at all
times remain with CONTRACTOR.
[USE ABOVE CLAUSE, OR USE CLAUSE BELOW FOR PROFESSIONAL SERVICES (SUCH AS LAW
FIRMS AND SOFTWARE RELATED CONTRACTS)]-Remove before printing
OWNERSHIP - Title and full ownership rights to any products purchased or developed under this Contract
shall at all time remain with CONTRACTOR. CONTRACTOR shall also retain title and full ownership rights
to any documents or reports developed under this Contract. All of the above shall be subject to the following
limitations:
A. PATENT RIGHTS - CONTRACTOR shall have patent rights, as well as title and full ownership rights, for
invention(s) developed under this Contract, subject to SCAQMD retaining a no-cost, nonexclusive,
nontransferable, irrevocable license to use or test such invention(s) for SCAQMD purposes.
CONTRACTOR must obtain agreements to effectuate this clause with all persons or entities obtaining an
ownership interest in the patented subject invention(s). Previously documented (whether patented or
unpatented under the patent laws of the United States, 35 U.S.C. 1 et seq., or any foreign country)
inventions are exempt from this provision. CONTRACTOR shall submit a written report to SCAQMD's
Agent disclosing each subject invention and specifying patents applied for, patents issued, and patent
application(s) abandoned and/or cosponsored participants on subject invention(s).
B. RIGHTS OF TECHNICAL DATA - SCAQMD shall have unlimited right to use technical data resulting
from performance of CONTRACTOR under this Contract. CONTRACTOR shall have the right to use
data for its own benefit.
C. COPYRIGHT - CONTRACTOR agrees to grant SCAQMD a royalty free, nonexclusive, irrevocable,
nontransferable license to produce, translate, publish, use, and dispose of all copyrightable material first
produced or composed in the performance of this Contract.
16
Contract No. *****
8
D. SOFTWARE RIGHTS - CONTRACTOR agrees to grant SCAQMD a worldwide, royalty free,
nonexclusive, irrevocable, nontransferable license in perpetuity to use any software developed by
CONTRACTOR in performing its obligations under this Contract. CONTRACTOR further agrees to
obtain the rights required from any third party for SCAQMD to have a worldwide, royalty free,
nonexclusive, irrevocable license in perpetuity to use any other software essential to performance of
CONTRACTOR'S obligations under this Contract or necessary to the operation of the software
developed by CONTRACTOR. CONTRACTOR shall provide SCAQMD with documentation confirming
CONTRACTOR'S right to assign the use of such software. CONTRACTOR shall also provide SCAQMD
with all documentation and manuals required to operate the software developed by it or third parties.
E. CONTRACTOR'S INSOLVENCY OR BANKRUPTCY, or PROJECT'S DISCONTINUATION -
CONTRACTOR agrees that in the event that CONTRACTOR becomes insolvent or files for bankruptcy
during the term of the Contract or does not complete the intent of the Contract, title to goods, services
software, and equipment purchased for the performance of this Contract with AB 2766 Discretionary
Funds shall revert to the SCAQMD.
21. SECURITY INTEREST - CONTRACTOR hereby grants SCAQMD a security interest in any and all
equipment purchased, in whole or in part, with funding provided by SCAQMD pursuant to this Contract.
CONTRACTOR acknowledges and agrees that SCAQMD shall have all lien rights as a secured creditor on
any and all equipment purchased in whole or in part by the CONTRACTOR, under this Contract or any
amendments thereto. The SCAQMD shall have lien rights in effect until the CONTRACTOR satisfies all
terms under the Contract, including but not limited to, the use and reporting requirements. Accordingly,
CONTRACTOR further agrees that SCAQMD is authorized to file a UCC filing statement or similar
security instrument to secure its interests in the equipment that is the subject of the Contract. In the
event CONTRACTOR files for bankruptcy protection, CONTRACTOR shall notify SCAQMD within 10
business days of such filing. [USE ONLY for equipment/vehicle purchases]
22. NON-DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in
recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color,
national origin, ancestry, sex, age, or physical handicap and shall comply with the provisions of the California
Fair Employment & Housing Act (Government Code Section 12900, et seq.), the Federal Civil Rights Act of
1964 (P.L. 88-352) and all amendments thereto, Executive Order No. 11246 (30 Federal Register 12319),
and all administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR shall
likewise require each subcontractor to comply with this clause and shall include in each such subcontract
language similar to this clause.
23. CITIZENSHIP AND ALIEN STATUS
A. CONTRACTOR warrants that it fully complies with all laws regarding the employment of aliens and
others, and that its employees performing services hereunder meet the citizenship or alien status
requirements contained in federal and state statutes and regulations including, but not limited to, the
Immigration Reform and Control Act of 1986 (P.L. 99-603). CONTRACTOR shall obtain from all covered
employees performing services hereunder all verification and other documentation of employees'
eligibility status required by federal statutes and regulations as they currently exist and as they may be
hereafter amended. CONTRACTOR shall have a continuing obligation to verify and document the
continuing employment authorization and authorized alien status of employees performing services
under this Contract to insure continued compliance with all federal statutes and regulations.
Notwithstanding the above, CONTRACTOR, in the performance of this Contract, shall not discriminate
against any person in violation of 8 USC Section 1324b.
17
Contract No. *****
9
B. CONTRACTOR shall retain such documentation for all covered employees for the period described by
law. CONTRACTOR shall indemnify, defend, and hold harmless SCAQMD, its officers and employees
from employer sanctions and other liability which may be assessed against CONTRACTOR or
SCAQMD, or both in connection with any alleged violation of federal statutes or regulations pertaining to
the eligibility for employment of persons performing services under this Contract.
24. ASSIGNMENT AND TRANSFER OF EQUIPMENT
A. The rights and responsibilities granted hereby may not be assigned, sold, licensed, or otherwise
transferred by CONTRACTOR without the prior written consent of SCAQMD, and any attempt by
CONTRACTOR to do so shall be void upon inception.
B. CONTRACTOR agrees to obtain SCAQMD’s written consent to any assignment, sale, license or transfer
of Equipment, if any, prior to completing the transaction. CONTRACTOR shall inform the proposed
assignee, buyer, licensee or transferee (collectively referred to here as “Buyer”) of the terms of this
Contract. CONTRACTOR is responsible for establishing contact between SCAQMD and the Buyer and
shall assist SCAQMD in facilitating the transfer of this Contract’s terms and conditions to the Buyer.
CONTRACTOR will not be relieved of the legal obligation to fulfill the terms and conditions of this
Contract until and unless the Buyer has assumed responsibility of this Contract’s terms and
conditions through an executed contract with SCAQMD. [REMOVE FOR MAJOR EVENT CENTER
TRANSPORTATION PROGRAM CONTRACTS]
25. NON-EFFECT OF WAIVER - The failure of CONTRACTOR or SCAQMD to insist upon the performance of
any or all of the terms, covenants, or conditions of this Contract, or failure to exercise any rights or remedies
hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms,
covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for
herein.
26. PROPOSAL INCORPORATION – CONTRACTOR’s Technical Proposal dated *** submitted in response to
Request for Proposal (RFP) #***, is expressly incorporated herein by this reference and made a part hereof
of this Contract. In the event of any conflict between the terms and conditions of this Contract and
CONTRACTOR’s Technical Proposal, this Contract shall govern and control. [If Project Officer wants
Proposal Incorporation, they should include the proposal in the contract file when it gets circulated for review.
- REMOVE IF NOT REQUESTED ON CRAM]
27. KEY PERSONNEL - [OPTIONAL]insert person's name is deemed critical to the successful performance of
this Contract. Any changes in key personnel by CONTRACTOR must be approved by SCAQMD. All
substitute personnel must possess qualifications/experience equal to the original named key personnel and
must be approved by SCAQMD. SCAQMD reserves the right to interview proposed substitute key
personnel. [REMOVE IF NOT REQUESTED ON CRAM]
28. TAX IMPLICATIONS FROM RECEIPT OF MSRC FUNDS - CONTRACTOR is advised to consult a tax
attorney regarding potential tax implications from receipt of MSRC funds.
29. ATTORNEYS' FEES - In the event any action is filed in connection with the enforcement or interpretation of
this Contract, each party in said action shall pay its own attorneys' fees and costs.
30. FORCE MAJEURE - Neither SCAQMD nor CONTRACTOR shall be liable or deemed to be in default for any
delay or failure in performance under this Contract or interruption of services resulting, directly or indirectly,
from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of
18
Contract No. *****
10
suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of
SCAQMD or CONTRACTOR.
31. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any
reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not
affect any other provisions of this Contract, and the Contract shall then be construed as if such
unenforceable provisions are not a part hereof.
32. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the
words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation,
construction, or meaning of the provisions of this Contract.
33. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force
and effect of an original.
34. GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby
shall be determined in accordance with the laws of the State of California. Venue for resolution of any
disputes under this Contract shall be Los Angeles County, California.
35. PRE-CONTRACT COSTS - Any costs incurred by CONTRACTOR prior to CONTRACTOR receipt of a fully
executed Contract shall be incurred solely at the risk of the CONTRACTOR. In the event that a formal
Contract is not executed, neither the MSRC nor the SCAQMD shall be liable for any amounts expended in
anticipation of a formal Contract. If a formal Contract does result, pre-contract cost expenditures authorized
by the Contract will be reimbursed in accordance with the Payment/Cost Schedule and payment provision of
the Contract.
36. CHANGE TERMS - Changes to any part of this Contract must be requested in writing by CONTRACTOR
and approved by MSRC in accordance with MSRC policies and procedures. CONTRACTOR must make
requests a minimum of 90 days prior to desired effective date of change. All modifications to this Contract
shall be in writing and signed by the authorized representatives of the parties. Fueling station location
changes shall not be approved under any circumstances.
37. PREVAILING WAGES – [USE FOR INFRASTRUCTURE AND MAINTENANCE PROJECTS]
CONTRACTOR is alerted to the prevailing wage requirements of California Labor Code section 1770 et seq .,
and the compliance monitoring and enforcement of such requirements by the Department of Industrial
Relations (“DIR”). CONTRACTOR and all of CONTRACTOR’s subcontractors must comply with the
California Public Works Contractor Registration Program and must be registered with the DIR to participate
in public works projects. CONTRACTOR shall be responsible for determining the applicability of the
provisions of California Labor Code and complying with the same, including, without limitation, obtaining from
the Director of the Department of Industrial Relations the general prevailing rate of per diem wages and the
general prevailing rate for holiday and overtime work, making the same available to any interested party
upon request, paying any applicable prevailing rates, posting copies thereof at the job site and flowing all
applicable prevailing wage rate requirements to its subcontractors. Proof of compliance with these
requirements must be provided to SCAQMD upon request. CONTRACTOR shall indemnify, defend and hold
harmless the South Coast Air Quality Management District against any and all claims, demands, damages,
defense costs or liabilities based on failure to adhere to the above referenced statutes.
19
Contract No. *****
11
38. ENTIRE CONTRACT - This Contract represents the entire agreement between CONTRACTOR and
SCAQMD. There are no understandings, representations, or warranties of any kind except as expressly set
forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any
party unless in writing and signed by the authorized representative of the party against whom enforcement of
such waiver, alteration, or modification is sought.
39. AUTHORITY - The signator hereto represents and warrants that he or she is authorized and empowered and
has the legal capacity to execute this Contract and to legally bind CONTRACTOR both in an operational and
financial capacity and that the requirements and obligations under this Contract are legally enforceable and
binding on CONTRACTOR.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
20
Contract No. *****
12
IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their
behalf by their authorized representatives.
SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT ***
By: __________________________________________ By: __________________________________________
Dr. William A. Burke, Chairman, Governing Board Name:
Title:
Date: _________________________________________ Date: _________________________________________
ATTEST:
Saundra McDaniel, Clerk of the Board
By: __________________________________________
APPROVED AS TO FORM:
Kurt R. Wiese, General Counsel
By: __________________________________________
//MSRC Master Boilerplate
Revised December 16, 2014
21
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17336.00600\29130636.3
Agreement No. 17-25-037-00
DRAFT
COOPERATIVE AGREEMENT
BETWEEN
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
LOS ANGELES-SAN DIEGO-SAN LUIS OBISPO RAIL CORRIDOR AGENCY
This Cooperative Agreement (“Agreement”) is made and entered into this ______
day of _________________ 2016 by and between the Riverside County Transportation
Commission (“Commission”) and the LOS ANGELES-SAN DIEGO-SAN LUIS OBISPO
RAIL CORRIDOR AGENCY(LOSSAN) (“Provider”). Commission and the Provider are
sometimes referred to herein individually as “Party”, and collectively as the “Parties”.
RECITALS
WHEREAS, the Coachella Valley Music Festival (“Coachella”) and the Stagecoach
Country Music Festival (“Stagecoach”) are two of the largest events (collectively, the
“Festivals”) regularly held at the Empire Polo Club in the City of Indio, California (“Indio”),
bringing in an average daily attendance in 2015 of over 98,000 and 69,000, respectively.
WHEREAS, the Commission desires to partner with other agencies and
companies to provide special round-trip rail service from Los Angeles Union Station to
Indio and shuttle service to and from the rail station in Indio and the Festivals and to
market the services and the air quality benefits of alternative commute modes (“Project”).
WHEREAS, the Project would enhance passenger accessibility and connectivity
with existing transit systems, making it possible for the Festivals’ attendees to utilize
public transportation for all, or a significant portion of, their trip to and from the Festivals.
WHEREAS, the Project would result in direct and tangible emission reductions by
eliminating automobile trips and vehicle miles traveled and reductions in traffic congestion
for all motorists on adjacent arterial streets and freeways, thereby yielding additional air
quality benefits by avoiding the emissions associated with stop and go driving and
queuing.
WHEREAS, the Commission and Provider desire to enter into this Agreement to
specify the mutual understanding and responsibilities of the Parties and define a
framework under which the transportation-related services for the Project are to be
managed, performed, and financed.
ATTACHMENT 2
22
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17336.00600\29130636.3
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, it is mutually understood and agreed by the Commission and the
Provider as follows:
TERMS
1. Incorporation of Recitals. The recitals set forth above are true and correct and are
incorporated into this Agreement as though fully set forth herein.
2. Term. This Agreement shall be effective as of the date first set forth above and
shall continue in effect until the Commission, pursuant to Section 4.1, pays the invoice for
the Services performed by the Provider for the Festivals occurring in 2018, unless earlier
terminated as provided herein or extended in writing by mutual agreement between the
Parties.
3. Responsibilities of Provider
3.1. Provider promises and agrees to furnish all labor, materials, equipment,
services, and incidental and customary work necessary to fully and adequately provide
transportation-related services for the Project, hereinafter referred to as "Services". The
Services, and anticipated costs therefor, 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. Provider shall submit a single, annual itemized invoice for the Services
performed for the Festivals within thirty (30) days after the end date of Stagecoach .
Supporting documentation must be provided for all items listed in the invoice. The invoice
shall contain the dates of the work performed for the Festivals and, if applicable, be
accompanied by detailed contractor invoices, or other demands for payment addressed
to the Provider, and documents evidencing the Provider payment of the invoices or
demands for payment. Upon receipt of an invoice from the Provider, the Commission may
request additional documentation or explanation of the costs for which reimbursement is
sought.
4. Responsibilities of Commission.
4.1. Compensation. The Commission shall pay complete and accurate invoices
submitted by Provider within thirty (30) days of receipt of the invoice, unless the
Commission disputes the eligibility of the Provider for reimbursement of all or a portion of
an invoiced amount. In the event that Commission disputes the eligibility of the Provider
for reimbursement of all or a portion of an invoiced amount, the Parties shall meet and
confer in an attempt to resolve the dispute. If the meet and confer process is unsuccessful
in resolving the dispute, the Provider may appeal Commission’s decision as to the
eligibility of one or more invoices to Commission’s Executive Director. The Provider may
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17336.00600\29130636.3
appeal the decision of the Executive Director to the full Commission Board, the decision
of which shall be final.
4.2. Maximum Compensation. Notwithstanding any provisions of this
Agreement to the contrary, the Commission’s maximum cumulative payment obligation
hereunder shall be __________________________ Dollars ($_____________), to be
used exclusively for reimbursing the Provider for the actual costs of eligible Services
expenses as described herein (“Funding Amount”), and as further detailed in Exhibit “A”.
Provider acknowledges and agrees that the Funding Amount may be less than the actual
cost of the Services, and that the Commission shall not contribute funds in excess of the
maximum authorized in this Section unless agreed to and amended by both Parties in
writing.
5. Indemnification.
5.1. The Provider shall indemnify, defend and hold the Commission, its
directors, officials, officers, employees, agents, consultants and contractors 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 breach of contract, negligent acts,
omissions or breach of law, or willful misconduct of the Provider, its officials, officers,
employees, agents, consultants or contractors in the performance of the Provider’s
obligations under this Agreement, including the payment of all reasonable attorneys fees.
5.2. The indemnification provisions set forth in this Section shall survive any
expiration or termination of this Agreement.
6. Insurance. Provider shall obtain and require its subcontractors or sub -consultants
to obtain insurance of the types and in the amounts described below for the entire term
of this Agreement.
6.1. Commercial General Liability Insurance. Occurrence version commercial
general liability insurance or equivalent form with a combined single limit of not less than
$2,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it
shall apply separately to the Services or be no less than two times the occurrence limit.
Such insurance shall:
6.1.1. Name the Commission and its officials, officers, employees, agents,
and consultants, as insureds with respect to performance of this Agreement. Such insured
status shall contain no special limitations on the scope of its protection to the above -listed
insureds.
6.1.2. Be primary and noncontributory with respect to any insurance or self
insurance programs covering the Commission and its directors, officials, officers,
employees, agents, and consultants.
24
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17336.00600\29130636.3
6.1.3. Contain standard separation of insureds provisions.
6.2. Business Automobile Liability Insurance. If Provider hires or owns any
vehicle during the term of this Agreement, Provider shall maintain business automobile
liability insurance or equivalent form with a combined single limit of not less than
$1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and
non-owned automobiles.
6.3. Workers' Compensation Insurance. Provider shall maintain workers'
compensation insurance with statutory limits and employer's liability insurance with limits
of not less than $1,000,000 per accident.
6.4. Certificates/Insurer Rating/Cancellation Notice. Provider shall, prior to
receiving any funding under this Agreement, furnish to the Commission properly executed
certificates of insurance, certified copies of endorsements, and policies, if requested by
the Commission which shall clearly evidence all insurance required in this Section.
Provider shall not allow such insurance to be cancelled, allowed to expire or be materially
reduced in coverage except on thirty (30) days prior written notice to the Commission.
6.5. Licensed Insurer. Provider shall place such insurance with insurers having
A.M. Best Company ratings of no less than A:VIII and licensed to do business in
California, unless otherwise approved, in writing, by the Commission.
7. Accounting Records.
7.1. Retention of Records. Provider shall maintain complete and accurate
records with respect to costs incurred and other records generated under this Agreement.
All such records shall be clearly identifiable. Provider shall allow representatives of the
Commission during normal business hours to examine, audit, and make transcripts or
copies of such records. Provider shall maintain all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the expiration
or termination of this Agreement and shall allow inspection hereunder during such time.
7.2. Accounting of Funds. When requested by the Commission, Provider shall
within fifteen (15) days provide the Commission with a full reporting and accounting of all
funds received pursuant to this Agreement during its term.
8. General Provisions.
8.1. Termination of Agreement. In the event either Party defaults in th e
performance of their obligations under this Agreement or breaches any of the provisions
of this Agreement, the non-defaulting Party shall have the option to terminate this
Agreement upon thirty (30) days' prior written notice to the other Party.
8.2. Force Majeure. The failure of performance by either Party (except for
payment obligations) hereunder shall not be deemed to be a default where delays or
25
-5-
17336.00600\29130636.3
defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; governmental restrictions; unusually severe
weather; inability to secure necessary labor, materials or tools; delays of any contractor,
subcontractor, railroad, or suppliers; acts of the other Party; acts or failure to act of any
other public or governmental agency or entity (other than that acts or failure to act of the
Parties); or any other causes beyond the control or without the fault of th e Party claiming
an extension of time to perform or relief from default. An extension of time for any such
cause shall be for the period of the enforced delay and shall commence to run from the
time of the commencement of the cause, if notice by the Party claiming such extension is
sent to the other Party within thirty (30) days of the commencement of the cause. Times
of performance under this Agreement may also be extended in writing by mutual
agreement between the Parties.
8.3. 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:
To Commission: Riverside County Transportation Commission
4080 Lemon Street, Third Floor
P. O. Box 12008
Riverside, California 92502-2208
Attn: Anne Mayer, Executive Director
AMayer@rctc.org
To Provider: ________________________
________________________
Attn: [INSERT NAME, TITLE]
[INSERT E-MAIL ADDRESS]
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. Notice may also be provided via
electronic mail and shall be deemed made the date sent, provided that any notice sent
via electronic mail shall also be sent by U.S. mail, per the requirements set forth in the
foregoing sentence, within twenty-four (24) hours of the notice via electronic mail. Notice
sent via electronic mail that is not followed by notice sent via U.S. mail, as required in this
paragraph, shall not be considered notice for purposes of this Agreement.
8.4. Attorneys' Fees. If any Party commences an action against the other 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’s reasonable attorneys' fees and costs
of suits.
8.5. Entire Agreement. This Agreement contains the entire Agreement of the
Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
26
-6-
17336.00600\29130636.3
understandings or agreements. This Agreement may only be modif ied in writing, signed
by both Parties.
8.6. Governing Law. This Agreement shall be governed by the laws of the State
of California. Venue shall be in Riverside County.
8.7. Amendments. This Agreement may be amended at any time by the mutual
consent of the Parties by an instrument in writing; however, no amendments or other
modifications of this Agreement shall be binding unless executed in writing by both Parties
hereto, or their respective successors or assigns.
8.8. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties. Neither this Agreement, nor any of the Parties'
rights, obligations, duties, or authority hereunder may be assigned in whole or in part by
either Party without the prior written consent of the other Party in its sole and absolute
discretion. Any such attempt of assignment shall be deemed void and of no force and
effect. Consent to one assignment shall not be deemed consent to any subsequent
assignment, nor the waiver of any right to consent to such subsequent assignment.
8.9. Waiver. No delay or omission in the exercise of any right or remedy of a
non-defaulting Party on any default shall impair such right or remedy or be construed as
a waiver. No consent or approval of either Party shall be deemed to waive or render
unnecessary such Party's consent to or approval of any subsequent act of the other Party.
Any waiver by either Party of any default must be in writing and shall not be a waiver of
any other default concerning the same or any other provision of this Agreement.
8.10. Administration.
8.10.1. Commission's Executive Director, or his or her designee, shall
administer this Agreement on behalf of Commission.
8.10.2. Provider hereby designates __________ or his or her designee,
to act as its representative to administer this Agreement on behalf of Provider ("Provider’s
Representative"). Provider’s Representative shall have full authority to represent and act
on behalf of Provider for all purposes under this Agreement.
8.11. Severability. If any term, provision, covenant or condition of this Agreement
is held to be invalid, void or otherwise unenforceable, to any extent, by any court of
competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and
each term, provision, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
8.12. Counterparts. This Agreement may be executed and delivered in any
number of counterparts, each of which, when executed and delivered shall be deemed
an original and all of which together shall constitute the same agreement. Facsimile
signatures shall be considered originals.
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-7-
17336.00600\29130636.3
8.13. Legal Authority. The Commission and Provider represent and warrant that
the persons signing below on behalf of each Party is duly authorized to execute this
Agreement on behalf of its respective Party and that, by so executing, the Parties hereto
are formally bound to the provisions of this Agreement.
[Signatures on following page]
28
-8-
17336.00600\29130636.3
DRAFT
SIGNATURE PAGE
TO
COOPERATIVE AGREEMENT
BETWEEN
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
LOS ANGELES-SAN DIEGO-SAN LUIS OBISPO RAIL CORRIDOR AGENCY
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Commission: Provider:
RIVERSIDE COUNTY _______________________
TRANSPORTATION COMMISSION _______________________
By: By: __________________________
Anne Mayer, Executive Director
Title: ________________________
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: _____________________________ By: __________________________
Best Best & Krieger LLP
Counsel to the Riverside Title: ________________________
County Transportation Commission
ATTEST:
By: _________________________
Title: ________________________
29
Exhibit “A”
17336.00600\29130636.3
EXHIBIT "A"
SCOPE OF SERVICES AND COST
[to be inserted]
30
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17336.00600\29130636.3
Agreement No. 17-25-036-00
DRAFT
COOPERATIVE AGREEMENT
BETWEEN
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
GOLDENVOICE/VALLEY MUSIC TRAVEL
This Cooperative Agreement (“Agreement”) is made and entered into this ______
day of _________________ 2016 by and between the Riverside County Transportation
Commission (“Commission”) and the GOLDENVOICE/VALLEY MUSIC TRAVEL
(“Provider”). Commission and the Provider are sometimes referred to herein individually
as “Party”, and collectively as the “Parties”.
RECITALS
WHEREAS, the Coachella Valley Music Festival (“Coachella”) and the Stagecoach
Country Music Festival (“Stagecoach”) are two of the largest events (collectively, the
“Festivals”) regularly held at the Empire Polo Club in the City of Indio, California (“Indio”),
bringing in an average daily attendance in 2015 of over 98,000 and 69,000, respectively.
WHEREAS, the Commission desires to partner with other agencies and
companies to provide special round-trip rail service from Los Angeles Union Station to
Indio and shuttle service to and from the rail station in Indio and the Festivals and to
market the services and the air quality benefits of alternative commute modes (“Project”).
WHEREAS, the Project would enhance passenger accessibility and connectivity
with existing transit systems, making it possible for the Festivals’ attendees to utilize
public transportation for all, or a significant portion of, their trip to and from the Festivals.
WHEREAS, the Project would result in direct and tangible emission reductions by
eliminating automobile trips and vehicle miles traveled and reductions in traffic congestion
for all motorists on adjacent arterial streets and freeways, thereby yielding additional air
quality benefits by avoiding the emissions associated with stop and go driving and
queuing.
WHEREAS, the Commission and Provider desire to enter into this Agreement to
specify the mutual understanding and responsibilities of the Parties and define a
framework under which the transportation-related services for the Project are to be
managed, performed, and financed.
ATTACHMENT 3
31
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17336.00600\29130636.3
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, it is mutually understood and agreed by the Commission and the
Provider as follows:
TERMS
1. Incorporation of Recitals. The recitals set forth above are true and correct and are
incorporated into this Agreement as though fully set forth herein.
2. Term. This Agreement shall be effective as of the date first set forth above and
shall continue in effect until the Commission, pursuant to Section 4.1, pays the invoice for
the Services performed by the Provider for the Festivals occurring in 2018, unless earlier
terminated as provided herein or extended in writing by mutual agreement between the
Parties.
3. Responsibilities of Provider
3.1. Provider promises and agrees to furnish all labor, materials, equipment,
services, and incidental and customary work necessary to fully and adequately provide
transportation-related services for the Project, hereinafter referred to as "Services". The
Services, and anticipated costs therefor, 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. Provider shall submit a single, annual itemized invoice for the Services
performed for the Festivals within thirty (30) days after the end date of Stagecoach .
Supporting documentation must be provided for all items listed in the invoice. The invoice
shall contain the dates of the work performed for the Festivals and, if applicable, be
accompanied by detailed contractor invoices, or other demands for payment addressed
to the Provider, and documents evidencing the Provider payment of the invoices or
demands for payment. Upon receipt of an invoice from the Provider, the Commission may
request additional documentation or explanation of the costs for which reimbursement is
sought.
4. Responsibilities of Commission.
4.1. Compensation. The Commission shall pay complete and accurate invoices
submitted by Provider within thirty (30) days of receipt of the invoice, unless the
Commission disputes the eligibility of the Provider for reimbursement of all or a portion of
an invoiced amount. In the event that Commission disputes the eligibility of the Provider
for reimbursement of all or a portion of an invoiced amount, the Parties shall meet and
confer in an attempt to resolve the dispute. If the meet and confer process is unsuccessful
in resolving the dispute, the Provider may appeal Commission’s decision as to the
eligibility of one or more invoices to Commission’s Executive Director. The Provider may
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appeal the decision of the Executive Director to the full Commission Board, the decision
of which shall be final.
4.2. Maximum Compensation. Notwithstanding any provisions of this
Agreement to the contrary, the Commission’s maximum cumulative payment obligation
hereunder shall be __________________________ Dollars ($_____________), to be
used exclusively for reimbursing the Provider for the actual costs of eligible Services
expenses as described herein (“Funding Amount”), and as further detailed in Exhibit “A”.
Provider acknowledges and agrees that the Funding Amount may be less than the actual
cost of the Services, and that the Commission shall not contribute funds in excess of the
maximum authorized in this Section unless agreed to and amended by both Parties in
writing.
5. Indemnification.
5.1. The Provider shall indemnify, defend and hold the Commission, its
directors, officials, officers, employees, agents, consultants and contractors 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 breach of contract, negligent acts,
omissions or breach of law, or willful misconduct of the Provider, its officials, officers,
employees, agents, consultants or contractors in the performance of the Provider’s
obligations under this Agreement, including the payment of all reasonable attorneys fees.
5.2. The indemnification provisions set forth in this Section shall survive any
expiration or termination of this Agreement.
6. Insurance. Provider shall obtain and require its subcontractors or sub -consultants
to obtain insurance of the types and in the amounts described below for the entire term
of this Agreement.
6.1. Commercial General Liability Insurance. Occurrence version commercial
general liability insurance or equivalent form with a combined single limit of not less than
$2,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it
shall apply separately to the Services or be no less than two times the occurrence limit.
Such insurance shall:
6.1.1. Name the Commission and its officials, officers, employees, agents,
and consultants, as insureds with respect to performance of this Agreement. Such insured
status shall contain no special limitations on the scope of its protection to the above -listed
insureds.
6.1.2. Be primary and noncontributory with respect to any insurance or self
insurance programs covering the Commission and its directors, officials, officers,
employees, agents, and consultants.
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17336.00600\29130636.3
6.1.3. Contain standard separation of insureds provisions.
6.2. Business Automobile Liability Insurance. If Provider hires or owns any
vehicle during the term of this Agreement, Provider shall maintain business automobile
liability insurance or equivalent form with a combined single limit of not less than
$1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and
non-owned automobiles.
6.3. Workers' Compensation Insurance. Provider shall maintain workers'
compensation insurance with statutory limits and employer's liability insurance with limits
of not less than $1,000,000 per accident.
6.4. Certificates/Insurer Rating/Cancellation Notice. Provider shall, prior to
receiving any funding under this Agreement, furnish to the Commission properly executed
certificates of insurance, certified copies of endorsements, and policies, if requested by
the Commission which shall clearly evidence all insurance required in this Section.
Provider shall not allow such insurance to be cancelled, allowed to expire or be materially
reduced in coverage except on thirty (30) days prior written notice to the Commission.
6.5. Licensed Insurer. Provider shall place such insurance with insurers having
A.M. Best Company ratings of no less than A:VIII and licensed to do business in
California, unless otherwise approved, in writing, by the Commission.
7. Accounting Records.
7.1. Retention of Records. Provider shall maintain complete and accurate
records with respect to costs incurred and other records generated under this Agreement.
All such records shall be clearly identifiable. Provider shall allow representatives of the
Commission during normal business hours to examine, audit, and make transcripts or
copies of such records. Provider shall maintain all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the expiration
or termination of this Agreement and shall allow inspection hereunder during such time.
7.2. Accounting of Funds. When requested by the Commission, Provider shall
within fifteen (15) days provide the Commission with a full reporting and accounting of all
funds received pursuant to this Agreement during its term.
8. General Provisions.
8.1. Termination of Agreement. In the event either Party defaults in th e
performance of their obligations under this Agreement or breaches any of the provisions
of this Agreement, the non-defaulting Party shall have the option to terminate this
Agreement upon thirty (30) days' prior written notice to the other Party.
8.2. Force Majeure. The failure of performance by either Party (except for
payment obligations) hereunder shall not be deemed to be a default where delays or
34
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defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; governmental restrictions; unusually severe
weather; inability to secure necessary labor, materials or tools; delays of any contractor,
subcontractor, railroad, or suppliers; acts of the other Party; acts or failure to act of any
other public or governmental agency or entity (other than that acts or failure to act of the
Parties); or any other causes beyond the control or without the fault of th e Party claiming
an extension of time to perform or relief from default. An extension of time for any such
cause shall be for the period of the enforced delay and shall commence to run from the
time of the commencement of the cause, if notice by the Party claiming such extension is
sent to the other Party within thirty (30) days of the commencement of the cause. Times
of performance under this Agreement may also be extended in writing by mutual
agreement between the Parties.
8.3. 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:
To Commission: Riverside County Transportation Commission
4080 Lemon Street, Third Floor
P. O. Box 12008
Riverside, California 92502-2208
Attn: Anne Mayer, Executive Director
AMayer@rctc.org
To Provider: ________________________
________________________
Attn: [INSERT NAME, TITLE]
[INSERT E-MAIL ADDRESS]
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. Notice may also be provided via
electronic mail and shall be deemed made the date sent, provided that any notice sent
via electronic mail shall also be sent by U.S. mail, per the requirements set forth in the
foregoing sentence, within twenty-four (24) hours of the notice via electronic mail. Notice
sent via electronic mail that is not followed by notice sent via U.S. mail, as required in this
paragraph, shall not be considered notice for purposes of this Agreement.
8.4. Attorneys' Fees. If any Party commences an action against the other 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’s reasonable attorneys' fees and costs
of suits.
8.5. Entire Agreement. This Agreement contains the entire Agreement of the
Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
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17336.00600\29130636.3
understandings or agreements. This Agreement may only be modif ied in writing, signed
by both Parties.
8.6. Governing Law. This Agreement shall be governed by the laws of the State
of California. Venue shall be in Riverside County.
8.7. Amendments. This Agreement may be amended at any time by the mutual
consent of the Parties by an instrument in writing; however, no amendments or other
modifications of this Agreement shall be binding unless executed in writing by both Parties
hereto, or their respective successors or assigns.
8.8. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties. Neither this Agreement, nor any of the Parties'
rights, obligations, duties, or authority hereunder may be assigned in whole or in part by
either Party without the prior written consent of the other Party in its sole and absolute
discretion. Any such attempt of assignment shall be deemed void and of no force and
effect. Consent to one assignment shall not be deemed consent to any subsequent
assignment, nor the waiver of any right to consent to such subsequent assignment.
8.9. Waiver. No delay or omission in the exercise of any right or remedy of a
non-defaulting Party on any default shall impair such right or remedy or be construed as
a waiver. No consent or approval of either Party shall be deemed to waive or render
unnecessary such Party's consent to or approval of any subsequent act of the other Party.
Any waiver by either Party of any default must be in writing and shall not be a waiver of
any other default concerning the same or any other provision of this Agreement.
8.10. Administration.
8.10.1. Commission's Executive Director, or his or her designee, shall
administer this Agreement on behalf of Commission.
8.10.2. Provider hereby designates __________ or his or her designee,
to act as its representative to administer this Agreement on behalf of Provider ("Provider’s
Representative"). Provider’s Representative shall have full authority to represent and act
on behalf of Provider for all purposes under this Agreement.
8.11. Severability. If any term, provision, covenant or condition of this Agreement
is held to be invalid, void or otherwise unenforceable, to any extent, by any court of
competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and
each term, provision, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
8.12. Counterparts. This Agreement may be executed and delivered in any
number of counterparts, each of which, when executed and delivered shall be deemed
an original and all of which together shall constitute the same agreement. Facsimile
signatures shall be considered originals.
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17336.00600\29130636.3
8.13. Legal Authority. The Commission and Provider represent and warrant that
the persons signing below on behalf of each Party is duly authorized to execute this
Agreement on behalf of its respective Party and that, by so executing, the Parties hereto
are formally bound to the provisions of this Agreement.
[Signatures on following page]
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17336.00600\29130636.3
DRAFT
SIGNATURE PAGE
TO
COOPERATIVE AGREEMENT
BETWEEN
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AND
GOLDENVOICE/VALLEY MUSIC TRAVEL
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
Commission: Provider:
RIVERSIDE COUNTY _______________________
TRANSPORTATION COMMISSION _______________________
By: By: __________________________
Anne Mayer, Executive Director
Title: ________________________
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: _____________________________ By: __________________________
Best Best & Krieger LLP
Counsel to the Riverside Title: ________________________
County Transportation Commission
ATTEST:
By: _________________________
Title: ________________________
38
Exhibit “A”
17336.00600\29130636.3
EXHIBIT "A"
SCOPE OF SERVICES AND COST
[to be inserted]
39
AGENDA ITEM 9
Agenda Item 9
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
DATE: October 24, 2016
TO: Budget and Implementation Committee
FROM: Jillian Guizado, Senior Legislative Affairs Analyst
THROUGH: Aaron Hake, External Affairs Director
SUBJECT: Agreements for State and Federal Legislative Advocacy Services
STAFF RECOMMENDATION:
This item is for the Committee to:
1) Award the following agreements to provide state and federal legislative advocacy services
for a four-year term, and two two-year options to extend the agreements, for up to an
eight-year period of performance, as follows:
a) Agreement No. 17-14-009-00 with Smith, Watts & Hartmann, in an amount not to
exceed $524,000;
b) Agreement No. 17-14-010-00 with Ruffalo and Associates, LLC, in an amount not
to exceed $720,000;
c) Agreement No. 17-14-011-00 with Cliff Madison Government Relations, in an
amount not to exceed $530,000;
2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute
the agreements, including option years, on behalf of the Commission; and
3) Forward to the Commission for final action.
BACKGROUND INFORMATION:
In keeping with the Commission’s enabling legislation to have a small but effective staff, the
Commission historically retains legislative advocates in Sacramento and Washington, D.C. These
advocates’ roles and responsibilities include, but not limited to: maintaining and elevating the
Commission’s policy agenda, shepherding grant and loan applications, fostering important
working relationships with legislators and their staffs, and providing invaluable insight on
legislative matters in both capitols.
The Commission’s current state legislative advocate is Smith, Watts & Hartmann. Mark Watts
has extensive experience working in and with state government, making him a great asset to the
Commission’s legislative efforts in the state Capitol. Mark Watts held positions on the Assembly
Ways and Means Committee staff, in the Caltrans District 7 Director’s office, and under the
Wilson Administration as the Transportation Undersecretary. Mark Watts has been instrumental
in the Commission’s various legislative successes from attaining tolling and design-build
authorization for the State Route 91 Corridor Improvement Project (91 Project), tolling authority
40
Agenda Item 9
for the Interstate 15 Express Lanes project, to most recently attaining authority for the
Commission’s contractors to enforce parking regulations at our Metrolink stations. He has also
been instrumental in placing the Commission in a leadership role in the state Capitol among
transportation stakeholders, including ensuring the Commission has the opportunity to testify at
key committee hearings, and has an audience with committee chairpersons and legislative
leaders.
One of the Commission’s current federal legislative advocates is Ruffalo and Associates, LLC. For
several years, Kathy Ruffalo has been representing the Commission in Washington, D.C. Kathy
Ruffalo’s résumé includes being appointed by Congress to serve on national policy commissions
on transportation infrastructure. She has a highly-technical knowledge base of federal
transportation policy, including intimate knowledge of federal surface transportation
authorization bills like the Fixing America’s Surface Transportation (FAST) Act. Kathy Ruffalo has
forged and maintained close relationships with authorizing committees in both the House and
the Senate.
The Commission’s other current federal legislative advocate is Cliff Madison Government
Relations. For more than a decade, the Commission has been represented by Cliff Madison, a
former staffer to the House Transportation and Infrastructure (T&I) Committee and long-time
Capitol Hill lobbyist. Cliff Madison maintains close relationships with members of Riverside
County’s House of Representatives delegation and the office of Senator Dianne Feinstein. Cliff
Madison also specializes in maintaining the Commission’s relationship with chairpersons of the
House T&I Committee.
Cliff Madison and Kathy Ruffalo were key team members in securing the $421 million
Transportation Infrastructure Finance and Innovation Act (TIFIA) loan for the 91 Project and are
currently working to support the Commission’s effort to secure another TIFIA loan for the I-15
Express Lanes project. Both Cliff Madison and Kathy Ruffalo assisted in the Commission receiving
grants for the Coachella Valley-San Gorgonio Pass Rail Corridor Study and the Blythe Wellness
Express from the Federal Railroad Administration and Federal Transit Administration,
respectively. Cliff Madison initiated the Commission’s effort to receive $75 million of Small Starts
funding for the Perris Valley Line. Kathy Ruffalo assisted in drafting amendments to federal law
to address Commission priorities pertaining to goods movement funding and policy.
Procurement Process
The Commission’s current contracts for both state and federal advocacy services expire on
December 31, 2016, necessitating a competitive bidding process to ensure the highest-quality
advocates are acquired by the Commission. As such, two separate requests for proposals (RFP)
for state (RFP No. 17-14-009-00) and federal (RFP No. 17-14-010-00) advocacy services were
released by staff on August 26, 2016.
Staff determined the weighted factor method of source selection to be the most appropriate for
these procurements, as it allows the Commission to identify the most advantageous proposal(s)
41
Agenda Item 9
with price and other factors considered. Non-price factors include elements such as
qualifications of firm, personnel, and the approach, understanding, and ability to respond to the
Commission’s needs for the services as set forth under the terms of the RFPs.
A public notice was advertised in the Press Enterprise, and the RFPs were posted on the
Commission’s PlanetBids website, which is accessible through the Commission’s website.
Utilizing PlanetBids, emails were sent to 41 firms for the state advocacy RFP and 40 firms for the
federal advocacy RFP. Through the PlanetBids site, 10 firms downloaded the state advocacy RFP,
while 13 firms downloaded the federal advocacy RFP; 1 of these firms is located in Riverside
County. Staff responded to all questions submitted by potential proposers prior to the
September 8 clarification deadline date.
One proposal for state advocacy services was received – Smith, Watts & Hartmann (Sacramento)
– and two proposals for federal advocacy services were received – Ruffalo and Associates, LLC
(Washington D.C.) and Cliff Madison Government Relations (Washington D.C.) – by the
September 22 submittal deadline. All three of the firms submitted responsive and responsible
proposals. In addition, all three firms are currently providing state and federal advocacy services
for the Commission. Utilizing the previously described evaluation criteria set forth in the RFPs,
the proposals were evaluated and scored by evaluation committees comprised of Commission
staff and outside panelists with expertise in either state or federal legislative affairs pertaining to
surface transportation issues in California.
In an attempt to understand why only existing contractors submitted proposals for these RFPs,
staff reached out to firms that downloaded one or both of the RFP documents but did not submit
a proposal. Four of the six firms that downloaded the documents responded and provided the
following reasons for not submitting proposals:
• Independent assessment of the Commission’s use of and satisfaction with the incumbent
firms;
• Consensus among the firm not to propose; and
• Too many potential conflicts of interest.
The labor rates submitted are considered fair and reasonable based on existing and previous
rates for identical services. All three contracts consist of a monthly retainer fee, recognizing the
flexibility required in the ebb and flow of legislative activity. Smith, Watts & Hartmann’s rate for
the initial four-year term decreased 16.6 percent from its current monthly retainer fee. It
proposes an 8 percent decrease from its current rate for the first two-year option and return to
its current rate for the second two-year option. Ruffalo and Associates, LLC’s rate continues to
remain flat, as it has in previous years, and it stays flat for the full eight years available under this
contract. Cliff Madison Government Relations’ rate is flat for the initial four-year term, increases
7.7 percent for the first two-year option, but then decreases by 71.4 percent for the second
two-year option. This rate from Cliff Madison Government Relations reflects a total contract
value decrease of $74,800 as a result of the firm providing a best and final offer during the
selection process. These three firms’ rates are competitive in comparison to what transportation
42
Agenda Item 9
commissions of a similar size pay for state and federal advocacy services. Table 1 indicates the
previous, current, and proposed monthly rates for advocacy services. Table 2 indicates the
monthly rates submitted by the three proposing firms.
Table 1
State Federal A Federal B
Previous Advocacy Firm Rates $5,000 $15,000 $6,500
Current Advocacy Firm Rates $6,000 $7,500 $6,500
Proposed Advocacy Firm Rates
for Initial Term $5,000 $7,500 $6,500
Table 2
State
(Smith, Watts &
Hartmann)
Federal
(Ruffalo and
Associates, LLC)
Federal
(Cliff Madison
Government Relations)
Initial 4-Year Term $5,000 $7,500 $6,500
First 2-Year Term $5,500 $7,500 $7,000
Second 2-Year Term $6,000 $7,500 $2,000
Based on the evaluation committee’s assessment of the written proposals and pursuant to the
terms of the RFPs, staff recommends following the evaluation committee’s recommendations to
award agreements to Smith, Watts & Hartmann; Ruffalo and Associates, LLC; and Cliff Madison
Government Relations for four-year initial terms with two two-year options, plus
reimbursable travel expenses of $8,000 for Ruffalo and Associates, LLC and $2,000 for
Cliff Madison Government Relations. Staff anticipates there may be a need for Kathy
Ruffalo and/or Cliff Madison to travel to California for Commission purposes, and reasonable
travel expenses are not included in the monthly rates.
Financial Information
In Fiscal Year Budget: Yes
N/A Year:FY 2016/17
FY 2017/18+ Amount: $ 114,750
$1,659,250
Source of Funds:
Measure A, Local Transportation Fund,
Freeway Service Patrol, Service
Authority Freeway Emergencies, and
Transportation Uniform Mitigation Fee
Budget Adjustment: No
N/A
GL/Project Accounting No.: 001001 65506 00000 0000 101 14 65520
Fiscal Procedures Approved: Date: 10/14/2016
Attachments:
1)Draft Agreement No. 17-14-009-00
2)Draft Agreement No. 17-14-010-00
3)Draft Agreement No. 17-14-011-00
43
17336.00000\8752982.2
Agreement No. 17-14-009-00
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR STATE LEGISLATIVE ADVOCACY SERVICES
WITH SMITH, WATTS AND HAR TMANN
1.PARTIES AND DATE.
This Agreement is made and entered into this day of 2016, by
and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co-
mmission") and SMITH, WATTS AND HARTMANN ("Consultant"), a limited liability
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 state legislative advocacy 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 state legislative interests of 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 December 30, 2020, unless earlier terminated as provided herein. The
Commission, at its sole discretion, may extend this Agreement for two (2) additional two-
ATTACHMENT 1
44
2
17336.00000\8752982.2
year terms. Consultant shall 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.
45
3
17336.00000\8752982.2
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
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.
46
4
17336.00000\8752982.2
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 [Reserved]
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
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Injury; (3) premises/operations liability; (4) products/completed operations liability; (5)
aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX)
exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form
property damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for
claims or suits by one insured against another; or (3) contain any other exclusion contrary
to this Agreement.
(iii) The policy shall give the Commission, its
directors, officials, officers, employees, and agents insured status using ISO endorsement
forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the
policy shall be “primary and non-contributory” and will not seek contribution from the
Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the Commission, 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
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.
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(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 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.
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(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.
Each insurance policy required by this Agreement shall
be endorsed to state that:
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.
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
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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
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
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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:
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.
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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.
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.
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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.
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
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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.
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.
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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
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
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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.
3.30.1 DIR Registration. Effective March 1, 2015, if the Services are
being performed as part of an applicable “public works” or “maintenance” project, then
pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all
subconsultants must be registered with the Department of Industrial Relations. If
applicable, Consultant shall maintain registration for the duration of the Project and
require the same of any subconsultants. This Project may also be subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be
Consultant’s sole responsibility to comply with all applicable registration and labor
compliance requirements.
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.
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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 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.
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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]
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SIGNATURE PAGE
TO
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR STATE LEGISLATIVE ADVOCACY SERVICES
WITH [___CONSULTANT___]
IN WITNESS WHEREOF, this Agreement was executed on the date first
written above.
RIVERSIDE COUNTY CONSULTANT
TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT]
By: _________________________ By: ____________________________
Scott Matas Signature
Chair
__________________________
Name
[NOT NEEDED IF APPROVED BY COMMISSION]
__________________________
Title
By: ____________________________
Anne Mayer
Executive Director
Approved as to Form: Attest:
By: ____________________________ By: ________________________
Best Best & Krieger LLP Its: Secretary
General Counsel
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EXHIBITS -1
17336.00000\8752982.2
EXHIBIT "A" - SCOPE OF SERVICES [ TO BE INSERTED]
EXHIBIT "B" - SCHEDULE OF SERVICES [ TO BE INSERTED]
EXHIBIT "C" – COMPENSATION [ TO BE INSERTED]
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Agreement No. 17-14-010-00
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES
WITH RUFFALO AND ASSOCIATES, LLC
1.PARTIES AND DATE.
This Agreement is made and entered into this day of , 2016,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co-
mmission") and [___NAME OF FIRM___] ("Consultant"), a [___LEGAL STATUS OF
CONSULTANT e.g., 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 federal legislative advocacy 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 federal legislative interests of 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 December 30, 2020, unless earlier terminated as provided herein. The
ATTACHMENT 2
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Commission, at its sole discretion, may extend this Agreement for two (2) additional two-
year terms. Consultant shall 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.
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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
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.
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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 [Reserved]
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
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Injury; (3) premises/operations liability; (4) products/completed operations liability; (5)
aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX)
exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form
property damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for
claims or suits by one insured against another; or (3) contain any other exclusion contrary
to this Agreement.
(iii) The policy shall give the Commission, its
directors, officials, officers, employees, and agents insured status using ISO endorsement
forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the
policy shall be “primary and non-contributory” and will not seek contribution from the
Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the Commission, 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
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.
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(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 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.
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(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.
Each insurance policy required by this Agreement shall
be endorsed to state that:
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.
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
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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
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
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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:
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.
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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.
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.
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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.
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
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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.
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.
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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
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
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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.
3.30.1 DIR Registration. Effective March 1, 2015, if the Services are
being performed as part of an applicable “public works” or “maintenance” project, then
pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all
subconsultants must be registered with the Department of Industrial Relations. If
applicable, Consultant shall maintain registration for the duration of the Project and
require the same of any subconsultants. This Project may also be subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be
Consultant’s sole responsibility to comply with all applicable registration and labor
compliance requirements.
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.
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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 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.
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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]
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SIGNATURE PAGE
TO
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES
WITH [___CONSULTANT___]
IN WITNESS WHEREOF, this Agreement was executed on the date first
written above.
RIVERSIDE COUNTY CONSULTANT
TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT]
By: _________________________ By: ____________________________
Scott Matas Signature
Chair
__________________________
Name
[NOT NEEDED IF APPROVED BY COMMISSION]
__________________________
Title
By: ____________________________
Anne Mayer
Executive Director
Approved as to Form: Attest:
By: ____________________________ By: ________________________
Best Best & Krieger LLP Its: Secretary
General Counsel
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EXHIBITS -1
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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]
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17336.00000\8752982.2
Agreement No. 17-14-011-00
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES
WITH CLIFF MADISON GOVERNMENT RELATIONS
1.PARTIES AND DATE.
This Agreement is made and entered into this day of , 2016,
by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co-
mmission") and [___NAME OF FIRM___] ("Consultant"), a [___LEGAL STATUS OF
CONSULTANT e.g., 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 federal legislative advocacy 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 federal legislative interests of 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 December 30, 2020, unless earlier terminated as provided herein. The
ATTACHMENT 3
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Commission, at its sole discretion, may extend this Agreement for two (2) additional two-
year terms. Consultant shall 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.
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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
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.
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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 [Reserved]
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
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Injury; (3) premises/operations liability; (4) products/completed operations liability; (5)
aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX)
exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form
property damage; and (9) independent consultants coverage.
(ii) The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for
claims or suits by one insured against another; or (3) contain any other exclusion contrary
to this Agreement.
(iii) The policy shall give the Commission, its
directors, officials, officers, employees, and agents insured status using ISO endorsement
forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(iv) The additional insured coverage under the
policy shall be “primary and non-contributory” and will not seek contribution from the
Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04
13, or endorsements providing the exact same coverage.
(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the Commission, 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
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.
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(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 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.
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(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.
Each insurance policy required by this Agreement shall
be endorsed to state that:
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.
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
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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
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
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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:
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.
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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.
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.
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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.
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
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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.
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.
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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
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
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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.
3.30.1 DIR Registration. Effective March 1, 2015, if the Services are
being performed as part of an applicable “public works” or “maintenance” project, then
pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all
subconsultants must be registered with the Department of Industrial Relations. If
applicable, Consultant shall maintain registration for the duration of the Project and
require the same of any subconsultants. This Project may also be subject to compliance
monitoring and enforcement by the Department of Industrial Relations. It shall be
Consultant’s sole responsibility to comply with all applicable registration and labor
compliance requirements.
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.
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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 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.
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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]
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SIGNATURE PAGE
TO
RIVERSIDE COUNTY TRANSPORTATION COMMISSION
AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES
WITH [___CONSULTANT___]
IN WITNESS WHEREOF, this Agreement was executed on the date first
written above.
RIVERSIDE COUNTY CONSULTANT
TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT]
By: _________________________ By: ____________________________
Scott Matas Signature
Chair
__________________________
Name
[NOT NEEDED IF APPROVED BY COMMISSION]
__________________________
Title
By: ____________________________
Anne Mayer
Executive Director
Approved as to Form: Attest:
By: ____________________________ By: ________________________
Best Best & Krieger LLP Its: Secretary
General Counsel
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EXHIBITS -1
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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]
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