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10 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 -1- 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 -2- 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 23 -3- 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 -4- 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. 27 -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 -1- 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 -2- 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 32 -3- 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. 33 -4- 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 -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, 35 -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. 36 -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] 37 -8- 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 47 5 17336.00000\8752982.2 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. 48 6 17336.00000\8752982.2 (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. 49 7 17336.00000\8752982.2 (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 50 8 17336.00000\8752982.2 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 51 9 17336.00000\8752982.2 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. 52 10 17336.00000\8752982.2 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. 53 11 17336.00000\8752982.2 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 54 12 17336.00000\8752982.2 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. 55 13 17336.00000\8752982.2 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 56 14 17336.00000\8752982.2 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. 57 15 17336.00000\8752982.2 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. 58 16 17336.00000\8752982.2 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] 59 17 17336.00000\8752982.2 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 60 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] 61 17336.00000\8752982.2 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 62 2 17336.00000\8752982.2 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. 63 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. 64 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 65 5 17336.00000\8752982.2 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. 66 6 17336.00000\8752982.2 (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. 67 7 17336.00000\8752982.2 (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 68 8 17336.00000\8752982.2 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 69 9 17336.00000\8752982.2 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. 70 10 17336.00000\8752982.2 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. 71 11 17336.00000\8752982.2 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 72 12 17336.00000\8752982.2 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. 73 13 17336.00000\8752982.2 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 74 14 17336.00000\8752982.2 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. 75 15 17336.00000\8752982.2 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. 76 16 17336.00000\8752982.2 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] 77 17 17336.00000\8752982.2 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 78 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] 79 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 80 2 17336.00000\8752982.2 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. 81 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. 82 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 83 5 17336.00000\8752982.2 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. 84 6 17336.00000\8752982.2 (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. 85 7 17336.00000\8752982.2 (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 86 8 17336.00000\8752982.2 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 87 9 17336.00000\8752982.2 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. 88 10 17336.00000\8752982.2 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. 89 11 17336.00000\8752982.2 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 90 12 17336.00000\8752982.2 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. 91 13 17336.00000\8752982.2 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 92 14 17336.00000\8752982.2 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. 93 15 17336.00000\8752982.2 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. 94 16 17336.00000\8752982.2 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] 95 17 17336.00000\8752982.2 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 96 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] 97