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04 April 11, 2012 Commission• • • TIME/DATE: LOCATION: Riverside (ounly Transportation Commission MEETING AGENDA 9:30a.m. I Wednesday, April 11, 2012 BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside &-COMMISSIONERS ~ Chair -John J. Benoit First Vice Chair -Karen Spiegel Second Vice Chair -Marion Ashley Bob Buster, County of Riverside John F. Tavaglione, County of Riverside Jeff Stone, County of Riverside John J. Benoit, County of Riverside Marion Ashley, County of Riverside Bob Botts I Don Robinson, City of Banning Roger Berg I Jeff Fox, City of Beaumont Joseph DeConinck I To Be Appointed, City of Blythe Ella Zanowic I Jeff Hewitt, City of Calimesa Mary Craton I Barry Talbot, City of Canyon Lake Greg Pettis I Kathleen DeRosa, City of Cathedral City Steven Hernandez I Eduardo Garcia, City of Coachella Karen Spiegel I Eugene Montanez, City of Corona Scott Matas I Yvonne Parks, City of Desert Hot Springs Adam Rush I Ike Bootsma, City of Eastvale Larry Smith I Robert Youssef, City of Hemet Douglas Hanson I Patrick Mullany, City of Indian Wells Glenn Miller I Michael Wilson, City of Indio Frank Johnston I Micheal Goodland, City of Jurupa Valley Terry Henderson I Don Adolph, City of La Quinta Bob Magee I Melissa Melendez, City of Lake Elsinore Darcy Kuenzi I Wallace Edgerton, City of Menifee Marcelo Co I Richard Stewart, City of Moreno Valley Rick Gibbs I Kelly Bennett, City of Murrieta Berwin Hanna I Kathy Azevedo, City of Norco Jan Harnik I William Kroonen, City of Palm Desert Ginny Foat I Steve Pougnet, City of Palm Springs Daryl Busch I AI Landers, City of Perris Scott Hines I Gordon Moller, City of Rancho Mirage Steve Adams I Andy Melendrez, City of Riverside Andrew Kotyuk I Scott Miller, City of San Jacinto Ron Roberts I Jeff Comerchero, City of Temecula Ben Benoit I Timothy Walker, City of Wildomar To Be Appointed, Governor's Appointee RECORDS Comments are welcomed by the Commission. If you wish to provide comments to the Commission, please complete and submit a Speaker Card to the· Clerk of the Board. • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 9:30a.m. Wednesday, April 11, 20 12 BOARDROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside, CA In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission's website, www.rctc.org. In compliance with the Americans with Disabilities Act and Government Code Section 54954.2, if special assistance is needed to participate in a Commission meeting, please contact the Clerk of the Board at {951} 787-7141. Notification of at least 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1 . CAll TO ORDER 2. PlEDGE OF AllEGIANCE 3. ROll CAll 4. PUBliC COMMENTS -Each individual speaker is limited to speak three {3) continuous minutes or less. The Commission may, either at the direction of the Chair or by majority vote of the Commission, 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. In addition, the maximum time for public comment for any individual item or topic is thirty {30) minutes. Also, the Commission may terminate public comments if such comments become repetitious. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Commission shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items . Riverside County Transportation Commission Agenda April 11, 2012 Page 2 Under the Brown Act, the Commission should not take action on or discuss matters • raised during public comment portion of the agenda that are not listed on the agenda. Commission members may refer such matters to staff for factual information or to be placed on the subsequent agenda for consideration. 5. APPROVAL OF MINUTES-FEBRUARY 2-3 AND MARCH 14, 2012 6. ADDITIONS I REVISIONS -The Commission 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 Commission subsequent to the posting of the agenda. An action adding an item to the agenda requires 2!3 vote of the Commission. If there are less than 2!3 of the Commission members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda. 7. CONSENT CALENDAR -All matters on the Consent Calendar will be approved in a single motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the Consent Calendar will be placed for discussion at the end of the agenda. 7A. AGREEMENT WITH RIVERSIDE TRANSIT AGENCY FOR THE STATE ROUTE 91 SHUTTLE SERVICE FOR THE RIVERSIDE COUNTY EMPLOYEE • PARKING LOT Page 1 Overview This item is for the Commission to: 1) Approve Agreement No. 12-31-069-00 with Riverside Transit Agency (RTA) for shuttle service for the Riverside County employee parking lot for a two-year term in the amount of $218,400; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 78. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICE Page 11 Overview This item is for the Commission to: 1) Award Agreement No. 12-45-045-00 to Pepe's Towing (Pepe's) for tow truck services on Beat No. 18 of the Freeway Service Patrol (FSP) program for a three-year term, and two one-year options to • extend the agreement, in an amount not to exceed $1 ,520,000; • • • Riverside County Transportation Commission Agenda April 11, 201 2 Page 3 2) Award Agreement No. 12-45-046-00 to Pepe's for tow truck services on Beat No. 19 of the FSP program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1 ,015,000; and 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 7C. LEASE OF FREQUENCIES AND REPEATERS FOR FREEWAY SERVICE PATROL DIGITAL RADIO COMMUNICATIONS Page 40 Overview This item is for the Commission to: 1) Approve Agreement No. 12-45-071-00 with Lucky's Two-Way Radios (Lucky's) for lease of frequencies and repeaters for Freeway Service Patrol (FSP) digital radio communications for a term of 38 months in an amount not to exceed $25,000; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission . 7D. AGREEMENT WITH TRILLIUM SOLUTIONS, INC. FOR GOOGLE TRANSIT DATA FEED SERVICES SUPPORTING THE INLAND EMPIRE 511 SYSTEM Page49 Overview This item is for the Commission to: 1) Approve Agreement No. 11-41-142-01, Amendment No. 1 to Agreement 11-41-142-00, with Trillium Solutions, Inc. (Trillium), for Google Transit data feed services for the Inland Empire 511 (IE511) system in an amount not to exceed $60,000; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission . Riverside County Transportation Commission Agenda April 11, 2012 Page 4 7E. AGREEMENT WITH THE FEDERAl TRANSIT ADMINISTRATION FOR THE • PROJECT CONSTRUCTION GRANT AGREEMENT FOR THE PERRIS VAllEY LINE AND PROGRAMMING OF CONGESTION MITIGATION AIR QUALITY FUNDS Page 52 Overview This item is for the Commission to: 1) Approve Agreement No. 12-33-073-00 with the Federal Transit Administration (FTA) for the Project Construction Grant Agreement (PCGA) for the Perris Valley Line (PVL) extension commuter rail project; 2) Approve programming $4 7,611,000 of Congestion Mitigation and Air Quality (CMAQ) funds for the PVL construction phase; and 3) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 7F. FEDERAl SURFACE TRANSPORTATION REAUTHORIZATION UPDATE Page 68 Overview This item is for the Commission to receive an update on federal surface transportation reauthorization. 8. STATE ROUTE 91 TOll FACILITY AGREEMENT Page 71 Overview This item is for the Commission to: 1) Approve Agreement No. 12-31-067-00 with the California Department of Transportation (Caltrans) for a toll facility within State Route 91 in an amount not to exceed $6,000; and 2) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. • • • • • Riverside County Transportation Commission Agenda April 11, 2012 Page 5 9. COOPERATIVE AGREEMENT WITH THE STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR THE REIMBURSEMENT OF STATE ROUTE 91 HIGH OCCUPANCY VEHICLE PROJECT FREEWAY SERVICE PATROL COSTS Page 120 Overview This item is for the Commission to: 1) Approve Agreement No. 12-45-074-00 with the State of California Department of Transportation (Caltrans) for Freeway Service Patrol (FSP) service support during the construction of the State Route 91 high occupancy vehicle (SR-91 HOV) project; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 10. PRESENTATION FOR THE STATE ROUTE 91 HIGH OCCUPANCY VEHICLE PROJECT 11. 12. Overview This item is for the Commission to receive an oral presentation on the SR-91 high occupancy vehicle project by Dennis Green from Green Com, Inc. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA COMMISSIONERS I EXECUTIVE DIRECTOR REPORT Overview This item provides the opportunity for the Commissioners and the Executive Director to report on attended meetings/conferences and any other items related to Commission activities. 13. CLOSED SESSION 14 . 13A. CONFERENCE WITH LEGAL COUNSEL Existing Litigation Pursuant to Section 54956.9(a) Case Number: Case No. RIC 532489 ADJOURNMENT The next Commission meeting and is scheduled to be held at 9:30 a.m., Wednesday, May 9, 2012, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. ---------------------------------------- URGENCY ITEM 13. CLOSED SESSION 13A. CONFERENCE WITH LEGAL COUNSEL Existing Litigation Pursuant to Section 54956.9(a) Case Number: Case No. RIC 532489 138. CONFERENCE WITH REAL PROPERTY NEGOTIATORS Pursuant to Government Code Section 54956.8 Agency Negotiator: Property Owners: Item APN(s) 1 210-190-013 210-190-023 Executive Director. or Designee See the List Below Property Owner(s) L R Miller Properties LLC Tara Byerly From: Sent: To: Subject: Attachments: Importance: Tara Byerly Wednesday, April 04, 2012 2:32PM Tara Byerly RCTC Commission Agenda-April 11, 2012 Conflict of Interest Memo.pdf; Conflict of Interest Form. pdf High Good Afternoon Commissioners: The April Commission Agenda for the IPad Users is available. Please copy this link: http://www .rete .erg/uploads/media items/commission-meeting-march-14-20 12-ipad-compatible- agenda. original. pdf In addition, attached is the conflict of interest memo and the form for your review. Please let me know if you have any questions. Respectfully, TaraS. Byerly Senior Administrative Assistant 4080 Lemon Street, 3rd Floor Riverside, CA 92501 (951) 787-7141 1 Tara Byerly From: Tara Byerly Sent: To: Wednesday, April 04, 2012 2:33PM Tara Byerly Subject: RCTC Commission Agenda-April11, 2012 Importance: High Good Afternoon Commission Alternates: Attached below is the link to the April 11, 2012 Commission Meeting Agenda. Please copy the link below and paste it into a web page http://www. rctc.org/uploads/media items/commission-meeting-march-14-20 12-ipad-compatible- agenda.original.pdf Respectfully, TaraS. Byerly Senior Adlninistrative Assistant 4080 Lemon Street, 3rd Floor Riverside, CA 92501 (951) 787-7141 1 Riverside County Transportation Commission TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Office and Board Services Manager DATE: April4, 2012 SUBJECT: Possible Conflicts of Interest Issues -Riverside County Transportation Commission Agenda of April 11 , 2012 The April 11 , 2012 agenda of the Riverside County Transportation Commission 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. 78-Agreements for Freeway Service Patrol Tow Truck Service Consultant(s): Pepe's Towing 2000 W. Key Street Colton, CA 92324 Jose Acosta, President RCTC Conflict of Interest Form Purpose: This form is provided to assist members of the RCTC Commissioners in meeting requirements of Government Code Section 84308 and 87100 in documenting conflict of interests as related to RCTC Commission/Committee agenda items. Instructions: Under certain circumstances, RCTC Commission may be required to disclose and disqualify themselves from participating in, influencing, or voting on an agenda item due to personal income, real property interests, investments, business positions, or receipt of campaign contributions. If applicable, Commissioners must personally state the following information, for entry into the public record, prior to consideration of the involved agenda item(s) and turn in the completed form to the Clerk of the Board prior to leaving the meeting. An 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 1 2 months or 3 months following the conclusion from any entity or individual. I. Board Member Information Board Member Name City/County Name Meeting Date II. Campaign Contributions 1. I have a disqualifying campaign contribution of over $250 from f/t.._-j/~J T~·(4-~ ' (Identify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item~. Subject: f>rGI\....~co-rr frL. t=""IL ..;::;;~lr( cf t::-f\...1/c..U.: /lf7 'N: '-"7"'et() 2. I have a disqualifying campaign contribution of over $250 from c ~Lc..~ ' 11'dentify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item , Subject: 3. I have a disqualifying campaign contribution of over $250 from ' (Identify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item , Subject: 4. I have a disqualifying campaign contribution of over $250 from ' (Identify the name of the company and/or Individual) and therefore I am abstaining from participation on Agenda item , Subject: Ill. Financial Interest 1 . I have a financial interest of , from/in (State income, real property interest, investment or business position) (Identify name of company or property location) and therefore I am abstaining from participation on Agenda Item __ , Subject: 2. I have a financial interest of , from/in !State income, real property anterest, investment or business position) (Identify name of company or property location) and therefore I am abstaining from participation on Agenda Item · , Subject: IV. Signature Board Member Signature: /')/VI~~ Date: 4--IL -12 ~~./'+/?._ ld"A A0/fL.f:;/ Please remember you must state the information into the public record prior to consideration of the involved agenda item(s) and turn in the completed form to the Clerk of the Board prior to leaving the meeting. RIVERSIDE COUNTY TRANSPORTATION COMMISSION ROLL CALL APRIL11, 2012 County of Riverside, District I County of Riverside, District II County of Riverside, District Ill County of Riverside, District IV County of Riverside, District V City of Banning City of Beaumont City of Blythe City of Calimesa City of Canyon Lake City of Cathedral City City of Coachella City of Corona City of Desert Hot Springs City of Eastvale City of Hemet City of Indian Wells City of Indio City of Jurupa Valley City of La Quinta City of Lake Elsinore City of Menifee City of Moreno Valley City of Murrieta City of Norco City of Palm Desert City of ·Palm ·Springs City of Perris City of Rancho Mirage City of Riverside City of San Jacinto City of Temecula City of Wildomar Governor's Appointee, Caltrans District 8 Absent r:J D r:J D r:J D r:J D r:J D (] D Ll D LJ fi 0 D LJ D (] D ,CJ D •['] D ft D ;r D )Z{ $' (] D RIVERSIDE COUNTY TRANSPORTATION COMMISSION COMMISSIONER SIGN-IN SHEET APRIL 11, 2012 NAME AGENCY E MAIL ADDRESS 1 / r R-,-v co ,,, - \<.:..../ I I /) CALIFORNIA April 4, 2012 Ms. Jennifer Harmon Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, California 92502 RE: April 11th RCfC Meeting Dear Ms. Harmon: This letter serves as official notice that Council Member Larry Spicer, City of Indian Wells, will serve as the voting member at the April 11th RCfC meeting. Please contact me at (760) 346-2489 should you have any questions. Sincerely, RJW/ct 44-950 Eldorado Drive -Indian Wells. Califorma 92210-7497 -V (760) 346-2489 F (760) 346-0407 www.lndianWells.com • • AGENDA ITEM 5 • • MINUTES • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION MINUTES Thursday, February 2, 2011 WELCOME AND WORKSHOP OVERVIEW The Riverside County Transportation Commission Workshop was called to order by Chair John J. Benoit at 1:45 p.m., at the Embassy Suites -La Quinta, 50-777 Santa Rosa Plaza, La Quinta, CA. Chair Benoit provided welcoming comments. Anne Mayer, Executive Director, provided an overview of the topics for discussion at the workshop. IE 511 DEMONSTRATION AND DISCUSSION Robert Yates, Multimodal Services Manager, presented a demonstration and update of the IE511 system, highlighting the new application for mobile devices. He announced consultant staff was available during the first day of the workshop to assist anyone with downloading the IE511 application. Commissioner Larry Smith requested staff provide flyers regarding the new IE511 application that can be distributed at the cities. Robert Yates confirmed. REGIONAL ISSUES AND COOPERATION John Standiford, Deputy Executive Director, presented a regional perspective of transportation, discussing the following areas: • Population, employment, unemployment, average housing value, and sales tax revenue for a seven-county region -Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura; • Examples of regional cooperation -Metrolink, Self-Help Counties Coalition, rideshare, and the Proposition 1 B Goods Movement program; • Definition, key components, potential new revenue sources, and timeline of the 2012 Regional Transportation Plan (RTP); • Toll facilities in Southern California; and • Transportation efforts in detail by county . Riverside County Transportation Commission Minutes February 2-3, 2011 Page 2 At Commissioner Bob Botts' request, John Standiford and Anne Mayer provided details regarding dedicated, tolled truck lanes from the ports to Interstates 10 and/or 1 5, including an elasticity study. Vice Chair Karen Spiegel updated the Commission on the Southern California Association of Governments (SCAG) RTP discussions regarding active transportation. The Commissioners briefly discussed the impacts of active transportation. LEGISLATIVE UPDATE Aaron Hake, Government Relations Manager, provided an update on the current situation in Washington, D.C. regarding the reauthorization bill. Mark Watts, legislative advocate for the Commission, provided an update on state legislative matters impacting transportation. At Commissioner Roger Berg's request, Mark Watts briefly discussed the issue of environmental streamlining. Anne Mayer added that in the federal reauthorization bill, there is a provision that would allow CEQA to take precedence. She then discussed the importance of the legislative advocacy efforts. The Commission workshop adjourned at 3:45 p.m. to conduct the Commission meeting. The Commission workshop reconvened at 4:38 p.m. RIVERSIDE COUNTY RAIL UPDATE Sheldon Peterson, Rail Manager, presented an overview of passenger rail in Riverside County including commuter rail, the Los Angeles-San Diego-San Luis Obispo (LOSSAN) Rail Corridor Agency, and intercity rail. Anne Mayer provided additional information on the LOSSAN legislation and the Commission's rail track rights. Robert Yates, Multimodal Services Director, provided an update on high-speed rail including the proposed memorandum of understanding (MOU) and the priority projects. At Commissioner Terry Henderson's request, Anne Mayer confirmed this MOU is not an endorsement of high-speed rail. • • • • • • Riverside County Transportation Commission Minutes February 2-3, 2011 Page 3 Commissioner Berwin Hanna stated the city of Norco's opposition to the 1-1 5 alignment for high-speed rail. In response to Commissioner Gibbs regarding liability for the Commission related to the MOU, Anne Mayer stated there is no liability for the Commission as the MOU contains a termination clause. In Commissioner Douglas Hanson's absence, Commissioner Roger Berg shared Commissioner Hanson's idea for running service between the Coachella Valley and the Downtown Riverside Station. Anne Mayer stated Union Pacific Rail Road will not allow discussion of running any passenger rail service on its tracks. However, Riverside Transit Agency and Sunline Transit Agency are collaborating on a joint bus service that will run between the Coachella Valley and the Downtown Riverside Station. At Commissioner Bob Botts' request, Anne Mayer discussed the items the Commission did and did not receive as a result of the Colton Crossing agreement and MOU. At Chair Benoit's request, Anne Mayer outlined the revised ad hoc committee structure related to rail. M/S/C (Stone/Adams) to: 1) Approve Memorandum of Understanding No. 12-25-044-00 with California High-Speed Rail Authority (CHSRA), the Southern California Association of Governments (SCAG), and the partner Southern California transportation agencies; 2) Authorize the Chair, pursuant to legal counsel review, to execute the MOU on behalf of the Commission in order to protect the Commission's passenger rail rights on the LOSSAN Corridor and ensure the Commission's involvement in ongoing regional rail investment discussions; and 3) Approve the list of priority projects and authorize the Executive Director to negotiate the project list as necessary on behalf of the Commission . Riverside County Transportation Commission Minutes February 2-3, 2011 Page 4 ADJOURNMENT There being no further business for consideration by the Riverside County Transportation Commission, the workshop adjourned at 5:44 p.m. The Commission workshop will continue at 9:15 a.m., Friday, February 3, Embassy Suites -La Quinta, 50-777 Santa Rosa Plaza, La Quinta, CA. Respectfully submitted, Jennifer Harmon Clerk of the Board • • • • • • Riverside County Transportation Commission Minutes February 2-3, 2011 Page 5 MINUTES Friday, February 3, 2011 The second day of the Riverside County Transportation Commission Workshop was called to order by Vice Chair Karen Spiegel at 9:18 a.m., at the Embassy Suites - La Quinta, 50-777 Santa Rosa Plaza, La Quinta, CA. MOBILITY 21 UPDATE Marnie Primmer provided on overview of Mobility 21 including its membership, mission, goals and objectives, advocacy efforts, and the balance of needs between business and public sector. In response to Commissioner Henderson's question regarding funding, Marnie Primer stated Mobility 21 is funded by sponsorships and registration fees from the annual summit and membership dues. LONG TERM REVENUE FORECAST Dan Wiles, Principal from Fieldman, Rolapp and Associates, presented the long term revenue forecast sales tax projections from Beacon Economics, including positive indicators, sales tax growth rates, and 2009 Measure A estimates and projections. DELIVERY PLAN SUCCESSES AND FINANCING THE FUTURE Anne Mayer presented a review of last year's challenges and accomplishments, discussing the following areas: • Measure A revenues; • State and federal funding; • Previous policy decisions and assumptions; • Measure A funding; · • Original Delivery Plan; • Recalibrated Delivery Plan; • State Route 60 update; • Active projects completed and under construction; and • Next steps. Vice Chair Spiegel commended Commissioner Joey DeConinck for his commitment to the Commission due to his considerable commute and majority focus of the agenda items related to Western County . Riverside County Transportation Commission Minutes February 2-3, 2011 Page 6 Anne Mayer briefly discussed the MOU with the geographic areas regarding State Transportation Improvement Program funds. In response to Commissioner Andrew Kotyuk's question regarding Indian gaming and infrastructure, Anne Mayer stated the Commission does not have a mechanism to address this issue and believes this would be based on local land uses decisions and collaboration/coordination with the tribes. At Anne Mayer's request, Mark Watts briefly discussed a proposed Indian gaming compact from several years ago that would have dedicate funds for transportation, however it was unsuccessful due to legal challenges. At Commissioner Douglas Hanson's request, Juan Perez, Director of Transportation for Riverside County, provided an update on the 1-1 0 Bypass project between Hargrave Street, in the city of Banning and Apache Trail in the Cabazon area, as well as potential additional bypass projects. Anne Mayer then discussed the Commission's role and responsibilities for this project. Commissioner Marion Ashley discussed the importance of constructing one or more bypasses along 1-1 0 and the measures being taken by the county of Riverside and local jurisdictions to do so. Anne Mayer requested feedback from the Commissioners on the project priorities presented. Commissioner Ashley concurred with staff's direction, adding that the interchange area in the city of Beaumont, where Interstate 10 and State Routes 60 and 79 meet, needs to be addressed. Commissioner Darcy Kuenzi stated she believes an important east-west corridor is the realignment of SR-74 along Ethanac Road. She also identified the extension of Metrolink into the San Jacinto Valley as another project that needs to be addressed. Anne Mayer discussed the importance of the smaller geographic areas, or zones, to work collaboratively to identify priority projects. She also suggested the issue of extending Metrolink service as a topic at next year's Commission workshop. In response to Vice Chair Spiegel's question regarding the gap closure on SR-71 between the 71/91 interchange and the San Bernardino Co1,1nty line, Anne Mayer • • responded that while it is included in the 2009 Measure A, it is not included in the • first 10-Year Western Riverside County Highway Delivery Plan. • • • Riverside County Transportation Commission Minutes February 2-3, 2011 - Page 7 CLOSING REMARKS Vice Chair Spiegel thanked the Commissioners for their attendance and commended staff for its excellent presentations. ADJOURNMENT There being no further business for consideration by the Riverside County Transportation Commission, the workshop adjourned at 11 :38 a.m. Respectfully submitted, Jennifer Harmon Clerk of the Board • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION MINUTES Wednesday, March 14, 2012 1. CALL TO ORDER The Riverside County Transportation Commission was called to order by Chair John J. Benoit at 9:33 a.m. in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Chair Benoit led the Commission in a flag salute. 3. ROLL CALL Commissioners/ Alternates Present Steve Adams Marion Ashley Ben Benoit John J. Benoit Roger Berg Bob Botts Daryl Busch Bob Buster* Marcelo Co Mary Craton Joseph DeConinck Kathleen DeRosa* Ginny Foat Berwin Hanna Douglas Hanson Jan Harnik Terry Henderson Steven Hernandez Scott Hines Frank Johnston Darcy Kuenzi Bob Magee Scott Matas Glenn Miller Adam Rush Larry Smith Karen Spiegel John F. Tavaglione Ray Wolfe Ella Zanowic *Arrived after the meeting was called to order Commissioners Absent Rick Gibbs Andrew Kotyuk Ron Roberts Jeff Stone Riverside County Transportation Commission Minutes March 14,2012 Page 2 4. PUBliC COMMENTS Anne Mayer, Executive Director, presented five-year service awards to Megan Kavand, Accounting Technician, and Armando Rodriguez, Accounting Clerk. Chair Benoit, Commissioner Marion Ashley, and Anne Mayer expressed their appreciation and gratitude to Ray Wolfe for his dedication as the District 8 Director of Caltrans. Mr. Wolfe accepted a position as the Executive Director of the San Bernardino Associated Governments. Ray Wolfe expressed appreciation for the opportunity to be a part of the Commission and all it has accomplished and expressed his commitment to work more collaboratively between the two counties. A.A. Barney Barnett discussed the goal for a Metrolink station in Highgrove and how it relates to the Southern California Association of Governments (SCAG) Regional Transportation Plan for 2012 -2035 and the Perris Valley Line (PVL) connection. He submitted documents to the Clerk of the Board for distribution to the Commissioners. Mr. Barnett also expressed concern that the Commission owns excess property in Highgrove that could be used for mass transit between the two counties. At this time, Commissioner Bob Buster arrived at the meeting. Commissioner John Tavaglione, as Supervisor for the Highgrove area, requested staff meet with Mr. Barnett and review the basis for the Commission's position to not construct a station in Highgrove and report back to the Commission. At this time, Commissioner Kathleen DeRosa arrived at the meeting. Chair Benoit requested the public exit the Board Room and called on legal counsel to announce the closed session item. Steve DeBaun, legal counsel, announced the closed session item. At this time, Commissioner Tavaglione left the meeting. Commissioners Ashley, J. Benoit, Buster, Kuenzi, and Rush recused themselves due to a conflict of interest on Agenda Item No. 5, "Closed Session". • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 3 5. CLOSED SESSION 5A. CONFERENCE WITH LEGAL COUNSEL Existing litigation Pursuant to Section 54956.9(a) Case Number: Case No. RIC 10001108 There was no announcement from Closed Session item. 6. APPROVAL OF MINUTES-FEBRUARY 2, 2012 7. M/S/C (Busch/Kuenzi) to approve the minutes as submitted. Abstain: Craton and Foat PUBLIC HEARING -RESOLUTIONS OF NECESSITY FOR THE ACQUISITION OF FEE, EASEMENT, AND TEMPORARY CONSTRUCTION EASEMENT INTERESTS IN PORTIONS OF CERTAIN REAL PROPERTY, BY EMINENT DOMAIN, MORE PARTICULARLY DESCRIBED AS ASSESSOR PARCEL NO. 311-120-022 (CAL TRANS PARCEL NUMBERS 22406-1, 22406-2, 22406-3, 22406-4, 22406-5, AND 22406-6) AND ASSESSOR PARCEL NO . 311-180-032 (CAL TRANS PARCEL NUMBERS 22408-1, 22408-2, AND 22408-3), FOR FREEWAY PURPOSES, INCLUDING THE WIDENING AND MAINTENANCE OF INTERSTATE 215 FROM SCOTT ROAD TO NUEVO ROAD, IN RIVERSIDE COUNTY, CALIFORNIA At this time, Chair Benoit opened the public hearing and requested legal counsel to explain the nature and scope of the hearing. Steve DeBaun explained the purpose of this hearing is for the Board to consider the adoption of Resolutions of Necessity Nos. 12-001 and 12-011, to acquire by eminent domain certain real property for purposes including the widening and maintenance of Interstate 21 5 from Scott Road to Nuevo Road, in Riverside County. He stated at the conclusion of this hearing the Board will be asked to adopt the resolutions of necessity and provided the findings. Jennifer Harmon, Clerk of the Board, verified the proofs of mailing that certify the notices were sent to the property owners of said parcel numbers are on file at the Commission . Riverside County Transportation Commission Minutes March 14, 2012 Page 4 Mark Lancaster, Interim Right of Way Manager, stated the Commission is requested to determine and find that the full requirements for the adoption of a resolution of necessity have been met and satisfied. He described the project, highlighting the following areas: • Maps depicting the 1-215 Central Widening project between Scott Road and Nuevo Road, and the locations of the Stephens/Blake property and the Laurel Palms Apartments; • Property owner concerns and the Commission's responses; • Maps depicting the current design and the modified design; and • Staff recommendations and findings. In response to Anne Mayer's request about the status of the Stephens/Blake property, Mark Lancaster stated the property owners are not contesting acquisition of this property. He explained the Commission is being asked to adopt a resolution of necessity for this property because it is in probate and there are title issues. Therefore, staff is running a parallel path to ensure timely resolution of the title and probate issues. In response to Commissioner Adam Rush's question regarding why the Laurel Paims property was continued from the January agenda, Anne Mayer replied it was continued to ensure there was adequate time to address the property owner's concerns. Jennifer Harmon stated the Commission has received one request to be heard regarding the Laurel Palms property and no other written objections, protests, or requests to speak have been received. Chair Benoit called upon any persons with an interest m the property who wish to be heard on this matter. Kevin Jones, J.K. Properties, Inc. I H.K. Realty, Inc., general counsel representing the Laurel Palms Apartments Inc., stated 110 families live in this community and will be substantially impacted due to a lack of a better plan. He referred to Commissioner Rush's comment and stated the hearing was continued because the second level review meeting had not been conducted, noting once the hearing was scheduled, it was held in the property owner's absence as a synopsis of the noise study was not submitted to them. Mr. Jones outlined the four requirements to adopt a resolution of necessity and discussed his issues with each requirement as to why he believes they have not been met. He stated the city of Perris' support for this project should not be the deciding factor when impacting 11 0 families. • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 5 Anne Mayer replied it is significant if the community in which the project is being constructed is not interested in having an interchange located at a certain place. She explained the Commission looked at realigning the ramp to avoid the Laurel Palms property but in doing so, any other realignment would have resulted in affecting other properties. She discussed the required first and second level review processes, noting the right of way expert and the design coordinator from Caltrans Headquarters were the hearing officers. It was confirmed the design team and the Commission did everything necessary for this parcel. The Commission has been working with this property owner since October 2011 in an attempt to resolve their issues. The owner's decision to not attend the second level review hearing was their own. If the Commission does not proceed with the resolution of necessity to acquire the right of way, it will not be able to obtain the funding from the California Transportation Commission for the project. Staff has continued to express its willingness to continue a dialog with the property owner to address the concerns. The property owner did request a synopsis of the noise study, however, if staff excerpts pieces of a comprehensive technical study, then all of the information is not being provided to the property owner. She expressed staff will continue to be available to discuss the property owner's concerns, however, redesigning the project is not one of the feasible alternatives . At Chair Benoit's request, Mark Lancaster provided detailed information regarding sound reflection and the findings of the noise study, stating there was no additional mitigation necessary along this ramp as a 1 2 to 14-foot sound wall will be constructed along the entire property of the Laurel Palms apartments as well as an 8-foot barrier along the ramp. Commissioner Daryl Busch expressed it is important to note the elevation of 1-215 freeway is lower than the Laurel Palms apartments where the sound wall will be built. Commissioner Darcy Kuenzi discussed the importance of this project and requested staff continue to work with the property owner to address their concerns. She then expressed her support for adopting the resolutions of necessity. In response to Commissioner Rush's question related to just compensation, Steve DeBaun replied the finding that is required as part of this process is that an offer was sent and the process to determine just compensation was as required by applicable state and federal law. He added there has been no appraisal submitted by the property owner . Riverside County Transportation Commission Minutes March 14,2012 Page 6 Anne Mayer then explained the appraisal process required by law. . Commissioner Rush requested clarification of the impacts the property owner's counsel discussed if the Commission agrees his statements are relative to noise and construction. Chair Benoit explained the difference of opinion was stated by the property owner's counsel in that if this noise is so significant, residents will move out and the property is devalued completely and the only fair compensation would be to purchase the property. Chair Benoit expressed this is not the subject of what is being discussed, the finding is whether or not the process used to evaluate the square footage being taken met the state law. Commissioner Terry Henderson clarified there will be ongoing negotiations. She then asked if there is an option to have the decibel levels calculated after construction. Mark Lancaster provided additional details regarding the sound wall, the barrier, and the noise study. He explained for the second level review meeting, it was Caltrans' and legal counsel's recommendation not to provide excerpts or highlights of the noise study and staff informed the property owner and its representative of this recommendation. Additionally, the author of the noise study attended the second level review meeting to address the property owner's questions and concerns. Mark Lancaster stated the property owner was given several dates for the second level review meeting and none of these dates fit the client's schedule .. Staff then asked for a date that fit the client's schedule and that was the date the second level review meeting was held, however, the property owner did not attend the meeting. Chair Benoit asked Mr. Jones to provide final comments on behalf of the property owner. Kevin Jones stated Government Code Section 7267.2 requires an offer of just compensation and the square footage offer does not include the impact from the sound reflection. Mr. Jones expressed the property owner's concern is the D Street on-ramp modification, in conjunction with the sound wall, will cause sound reflection issues for the Laurel Palms residents. Chair Benoit then called upon all other persons who wish to be heard on this matter. There were no requests to speak. At this time, Chair Benoit closed the public hearing. • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 7 M/S/C (Kuenzi/Rush) to: 1) Conduct a hearing to consider the adoption of resolutions of necessity, including providing all parties interested in the affected properties and their attorneys, or their representatives, an opportunity to be heard on the issues relevant to the Resolutions of Necessity; 2) Make the following findings as hereinafter described in this report: 3) a) The public interest and necessity require the proposed project; b) The project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury; c) The real property to be acquired is necessary for the project; and d) The offer of just compensation has been made to the property owners. Adopt Resolution of Necessity No. 12-001, "Resolution of Necessity for the Acquisition of Fee, Easement and Temporary Construction Easement Interests in Portions of Certain Real Property, by Eminent Domain, More Particularly Described as Assessor Parcel No. 311-120-022 (Caltrans Parcel Numbers 22406-1, 22406-2, 22406-3, 22406-4, 22406-5 and 22406- 6), for Freeway Purposes, Including the Widening and Maintenance of Interstate 215 from Scott Road to Nuevo Road, in Riverside County, California"; and 4) Adopt Resolution of Necessity No. 12-011, "Resolution of Necessity for the Acquisition of Easement and Temporary Construction Easement Interests in Portions of Certain Real Property, by Eminent Domain, More Particularly Described as Assessor Parcel No. 311-180-032 (Caltrans Parcel Numbers 22408-1, 22408-2 and 22408-3), for Freeway Purposes, Including the Widening and Maintenance of Interstate 215 from Scott Road to Nuevo Road, in Riverside County, California." Abstain: Ashley 8. ADDITIONS I REVISIONS There is a revision to attachment 1 to Agenda Item No. 11, "Commercial Paper Program Standby Letter of Credit" . Riverside County Transportation Commission Minutes March 14, 2012 Page 8 9. CONSENT CALENDAR Due to the number of Commissioners either abstaining or casting a "no" vote for Agenda Item No. 9E, "Memorandum of' Understanding with the Western Riverside County Regional Conservation Authority for the Transfer of Funds to Meet the Multiple Species Habitat Conservation Plan Obligations", Chair Benoit pulled the item for a separate vote to be taken under Agenda Item No. 12, "Items Pulled from the Consent Calendar". Commissioner Steven Hernandez requested Agenda Item No. 9P, "Grade Separation Priority Update Study for Riverside County Projects Located on the Alameda Corridor East", be pulled for discussion. M/S/C (Harnik/Adams) to approve the following Consent Calendar items: Abstain on 9G: Ashley Abstain on 9N: Rush 9A. QUARTERLY FINANCIAL STATEMENTS Receive and file the Quarterly Financial Statements for the period ended December 31, 2011 . 9B. QUARTERLY SALES TAX ANALYSIS Receive and file the sales tax analysis for Quarter 3 (Q3) 2011. 9C. REPORT ON EXPENDITURE OF PROCEEDS FROM 2010 BONDs· Receive and file the report on the expenditure of the proceeds from the 2010 Bonds. 9D. REVISION OF DEBT MANAGEMENT POLICIES 1) Approve the revisions to the Commission's Debt Management Policy; and 2) Adopt Resolution No. 12-010, "A Resolution of the Riverside County Transportation Commission Regarding the Revised Debt Management Policy". • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 9 9F. FISCAL YEAR 2011/12 TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL PROGRAM -PROGRAMMING REQUESTS 1) Approve the removal of the Interstate 15/Schleisman Road interchange project from the TUMF Regional Arterial program and replace it with the Interstate 15/Limonite Avenue interchange improvement project in the city of Eastvale, and terminate Agreement No. 06-72-522-00 with the county of Riverside for the 1-15/Schleisman Road interchange; 2) Approve Agreement No. 12-72-059-00 with the city of Moreno Valley to program $5,665,000 of TUMF Regional Arterial funds for the Moreno Valley Perris Boulevard (Cactus Avenue to Perris Valley Storm Drain (PVSD) Lateral "B") construction phase; 3) Authorize the Executive Director to execute the agreement, pursuant to legal counsel review; and 4) Approve the removal of the Ramona Expressway extension project, Seventh Street to Cedar Street, and replace it with the Ramona Expressway widening project, Sanderson Avenue to State Street in the city of San Jacinto, and terminate Agreement No. 06-72-520-00 with the city of San Jacinto . 9G. PROPOSITION 1B STATE-LOCAL PARTNERSHIP PROGRAM FORMULA PROGRAM PROJECT RECOMMENDATIONS 1) Approve programming State-Local Partnership Program (SLPP) formula funds on the following projects: Perris Valley Line, State Route 91 Corridor Improvement Project (SR-91 CIP), Interstate 21 5 Central widening (Scott Road to Nuevo Road), and Foothill Parkway; and 2) Authorize the Executive Director to determine the appropriate programming amount for each project. 9H. MEASURE A LOCAL STREETS AND ROADS FIVE-YEAR CAPITAL IMPROVEMENT PLAN FOR THE CITY OF JURUPA VALLEY Approve the city of Jurupa Valley's FYs 2012-16 Measure A Five-Year Capital Improvement Plan (CIP) for Local Streets and Roads . Riverside County Transportation Commission Minutes March 14, 201 2 Page 10 91. AGREEMENT WITH UNION PACIFIC RAILROAD FOR CONSTRUCTION, OPERATION AND MAINTENANCE OF THE MARLBOROUGH CONNECTION 1) Approve Agreement No. 12-33-063-00, with Union Pacific Railroad (UP) for construction, operation and maintenance of the Marlborough connection between the UP's Riverside Industrial Lead (UPRIL) and the San Jacinto Branch Line (SJBL); and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 9J. AMENDMENT TO COMMISSION'S FISCAL YEAR 2007/08 AND FISCAL YEAR 2011/12 RAIL PROGRAM SHORT RANGE TRANSIT PLAN 1) 2) Amend the Commission's Commuter Rail Program FY 2011/12 Short Range Transit Plan (SRTP) to reflect the allocation of $10 million in Federal Transit Administration (FTA) Section 5309 program funds to the Commuter Rail State of Good Repair project; and Amend the Commission's Commuter Rail Program FY 2007/08 SRTP to reflect deobligation of $123, 131 in Local Transportation Fund (LTF) funds from the Commission Station Capital Improvement Program. 9K. PROPOSITION 1B FISCAL YEAR 2010/11 CALIFORNIA TRANSIT SECURITY GRANT PROGRAM -CALIFORNIA TRANSIT ASSISTANCE FUND AND SUPPORTING RESOLUTION Adopt Resolution No. 12-008, "Resolution of the Riverside County Transportation Commission Appointing Individuals to Act on Behalf of the Commission for the Purpose of Applying and/or Accepting Grants Awarded to the Commission's Rail Program". 9L. MASTER AGREEMENT AND PROGRAM SUPPLEMENTS FOR STATE FUNDED TRANSIT PROJECTS WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION 1) Adopt Resolution No. 12-007, "Authorization for the Execution of a Master Agreement and Program Supplements for State- Funded Transit Projects" with California Department of Transportation (Caltrans); • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 11 2) Approve Agreement No. 12-25-060-00 with Caltrans for state- funded transit projects; and 3) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 9M. FEDERAL CONGESTION MITIGATION AND AIR QUALITY FUNDING FOR THE MEASURE A REGIONAL RIDESHARE PROGRAM 1) Approve the programming of $2.7 million in federal Congestion Mitigation and Air Quality (CMAQ) funds for continuation of the Regional Rideshare Program in FYs 2012!13 through 2017/18; and 2) Authorize staff to program the CMAQ funds for the Regional Rideshare Program in the Federal Transportation Improvement Program (FTIP). 9N. CAL TRANS COMMUNITY -BASED TRANSPORTATION PLANNING GRANTS 1) Adopt Resolution No. 12-013 "Resolution of the Riverside County Transportation Commission Approving the Application for California Department of Transportation Planning Grant 2) Program Funds"; Authorize the Executive Director, pursuant to legal counsel review, to execute agreements and/or amendments, which may be necessary for the submittal of a Community-Based Transportation Planning Grant on behalf of the Commission in partnership with the University of California at Riverside (UCR); and 3) Authorize the Executive Director to sign a support letter for the county of Riverside's Community-Based Transportation Planning Grant for a comprehensive planning effort for the Winchester Community. 90. TIGER IV DISCRETIONARY GRANTS: STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT 1) Direct staff to prepare a Transportation Investment Generating Economic Recovery (TIGER) grant application and Transportation Infrastructure Finance and Innovation ACT (TIFIA) letter of interest (LOI) submittal package to U.S. Department of Transportation (U.S. DOT) for the SR-91 Corridor Improvement Project (SR-91 CIP); Riverside County Transportation Commission Minutes March 14,2012 Page 12 2) Authorize the Executive Director to submit the grant application and TIFIA LOI; and 3) Authorize the Executive Director to submit future TIGER grant applications and TIFIA LOI for the SR-91 CIP if necessary. 90. FEDERAL SURFACE TRANSPORTATION REAUTHORIZATION UPDATE Receive and file an update on federal surface transportation reauthorization. 10. PROPOSED POLICY GOALS AND OBJECTIVES FOR FISCAL YEAR 2012/13 BUDGET Michele Cisneros, Accounting and Human Resources Manager, presented the proposed policy goals and objectives for FY 2012/13 Budget, and discussed the following areas: • • • • Budget development; Commission policy goals; Financial and administrative policies; and Next steps . In response to Commissioner Henderson's request to specifically identify a goal or objective that is different than the prior year, Michele Cisneros replied the IE511 system; working with Caltrans and regional agencies to develop a preservation and maintenance plan for highways and arterials; and the flexibility to use state and federal transportation revenues to address regional priorities. M/S/C (Henderson/Craton) to approve the proposed Commission Policy Goals and Objectives for the FY 2012/13 Budget. 11. COMMERCIAL PAPER PROGRAM STANDBY LETTER OF CREDIT Theresia Trevino, Chief Financial Officer, presented the Commission's commercial paper program, discussing the following areas: • Commercial paper (CP) basics; • Establishment, evolution, and continuation of the CP program; • CP program illustration and activity; • letter of credit support; and • Transaction documents. • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 13 In response to Commissioner Douglas Hanson's question regarding the cost of the standby letter of credit, Theresia Trevino replied the cost is just under $1.6 million over two and a half years. If the Commission had remained with Bank of America, its potential downgrade would have resulted in a higher interest rate, eliminating any savings. Dan Wiles, Principal from Fieldman, Rolapp and Associates, added that the interest rate from the Bank of Tokyo and Union Bank are current market rates. He then discussed the reasons the Commission decided not to continue with Bank of America. Commissioner Larry Smith asked if the commercial notes were to become a term loan, what interest rate would be tied to those notes. Anna Sarabian, Fieldman, Rolapp and Associates, replied if the Commission were to go to a term loan situation, the rate is based on the higher of three, the federal funds rate, the bank rate, or the one-month rate, plus a certain spread. She stated based on the current situation, the highest of the three is seven and a half percent plus the two percent rate. At Commissioner Smith's request, Theresia Trevino explained the conversion of basis points to a percent of interest. In response to Commissioner Jan Harnik's question regarding risk, Dan Wiles replied the two banks have a common parent and concurred that while there is a slightly higher risk, it is not significant. M/S/C (Ashley/Henderson) to: 1) Adopt Resolution No. 12-009, "Resolution of the Riverside County Transportation Commission Ratifying and Confirming Prior Authorization Relating to Its Commercial Paper Notes, Including the Execution and Delivery of Substitute Credit Agreements and Related Documents, and Supplement to Offering Memorandum and the Taking of All Other Actions Necessary in Connection Therewith"; 2) Ratify the draft Reimbursement Agreement by and between the Commission and Bank of Tokyo-Mitsubishi UFJ, Ltd. (Bank of Tokyo), relating to the Commission's Commercial Paper Notes, Series A and authorization for the Executive Director and/or other authorized representative to approve and execute the final Reimbursement Agreement; Riverside County Transportation Commission Minutes March 14,2012 Page 14 3) Ratify the draft Fee Agreement between the Commission and Bank of Tokyo relating to the Commission's Commercial Paper Notes, Series A and authorization for the Executive Director and/or other authorized representative to approve and execute the final Fee Agreement; 4) Ratify the draft Reimbursement Agreement by and between the Commission and Union Bank, N.A. (Union Bank), relating to the Commission's Commercial Paper Notes, Series B and authorization for the Executive Director and/or other authorized representative to approve and execute the final Reimbursement Agreement; 5) Ratify the draft Fee Agreement between the Commission and Union Bank relating to the Commission's Commercial Paper Notes, Series B, and authorization for the Executive Director and/or other authorized representative to approve and execute 6) 7) the final Fee Agreement; Ratify any necessary or desirable amendments to the commercial paper dealer agreements between the Commission and Barclays Capital Inc. (Barclays) and between the Commission and Bank of America Merrill Lynch (BAML); Approve the draft supplement to the offering memorandum for the issuance of $120 million in Commercial Paper Notes, Series A and Series B and authorize the Executive Director and/or other authorized representative to approve distribution of the supplement to the offering memorandum by Barclays and BAML; and 8) Approve the estimated costs related to the amendment of the letter of credit and authorize the Executive Director to execute related professional service agreements, as required. 12. ITEM(S) PULLED FROM CONSENT CALENDAR 9E. MEMORANDUM OF UNDERSTANDING WITH THE WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY FOR THE TRANSFER OF FUNDS TO MEET THE MULTIPLE SPECIES HABITAT CONSERVATION PLAN OBLIGATIONS This item was taken after Agenda Item No. 10 and before Agenda Item No. 11 to ensure a quorum for the vote. • • • • • • Riverside County Transportation Commission Minutes March 14, 2012 Page 15 Cathy Bechtel, Project Development Director, provided a brief overview of the memorandum of understanding between the Commission and the Regional Conservation Authority (RCA) related to the Multiple Species Habitat Conservation Plan for Western Riverside County. At Commissioner Mary Craton's request, Cathy Bechtel confirmed the funding contribution is essential for RCA to purchase certain land that became available. M/S/C (Ashley/Berg} to: 1) 2) Approve Memorandum of Understanding (MOU) No. 12-31-064-00 with the Western Riverside County Regional Conservation Authority (RCA) for the transfer of funds to meet the Western Riverside County Multiple Species Habitat Conservation Plan (WRC MSHCP) obligations; and Authorize the Chair, pursuant to legal counsel review, to execute the MOU on behalf of the Commission . No: Botts, Buster, DeRosa, Harnik, Henderson, Kuenzi, Magee, Matas, Miller, Rush, and Smith At this time, Commissioners Buster, Hanson, Magee, Matas, and Miller left the meeting. 9P. GRADE SEPARATION PRIORITY UPDATE STUDY FOR RIVERSIDE COUNTY PROJECTS LOCATED ON THE ALAMEDA CORRIDOR EAST Commissioner Hernandez stated the priority ranking has been very successful in the Coachella Valley. He expressed his belief that the Avenue 62 and Avenue 66 grade separation projects will receive funding. He stated as the grade separations are completed, it is important to draw attention to other corridors that are integral to goods movement in the Coachella Valley, specifically the eastbound interchanges on the 1-10 and SR-86. John Standiford, Deputy Executive Director, stated the focus of this item is on the grade separation study. It is staff's intention to bring a more comprehensive item that raises his concern to the Eastern Riverside County Programs and Projects Committee, which will go above and beyond this grade separation study . Riverside County Transportation Commission Minutes March 14, 2012 Page 16 M/S/C (Hernandez/Hines) to: 1) Approve the Grade Separation Priority Update Study for Riverside County projects located on the Alameda Corridor East (ACE); and 2) Based on study, direct staff to develop a 2012 grade separation funding strategy. 13. COMMISSIONERS/EXECUTIVE DIRECTOR'S REPORT 13A. Commissioner Craton announced SCAG is holding its 4 7'h Annual Conference and General Assembly scheduled for April 4-5. An agenda was distributed to the Commissioners. 13B. Commissioner Ginny Foat announced the memorial service for Tribal Chairman Richard Milanovich, Agua Caliente Band of Cahuilla Indians, is scheduled for March 21 at the Palm Springs Convention Center. 13C. Commissioner Joey DeConinck introduced the city of Blythe's City Manager David Lane and Transit Manager George Colangeli. • 13D. Anne Mayer announced: • • The Senate passed the transportation bill and it now moves to the House; and • Riverside Transit Agency (RTA) is celebrating its 35'h anniversary. The California Transportation Foundation is honoring Larry Rubio, RTA Executive Director, as the Manager of the Year. 14. ADJOURNMENT There being no further business for consideration by the Riverside County Transportation Commission, the meeting was adjourned at 11 :40 a.m. The next Commission meeting is scheduled to be held at 9:30 a.m., Wednesday, April 11, 2012, in the Board Room, at the County of Riverside Administrative Center, 4080 Lemon Street, Riverside, California. Respectfully submitted, Jennifer Harmon Clerk of the Board • • AGENDA ITEM,7A • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April11,2012 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Mark Lancaster, Interim Right of Way Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement with Riverside Transit Agency for the State Route 91 Shuttle Service for the Riverside County Employee Parking Lot WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) 2) Approve Agreement No. 12-31-069-00 with Riverside Transit Agency (RTA) for shuttle service for the Riverside County employee parking lot for a two-year term in the amount of $218,400; and Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: As a part of the construction of the State Route 91 High Occupancy Vehicle (SR-91 HOV) project, the westbound Ninth Street on ramp will be moved from its current location at Ninth Street to a new location at Tenth Street. This relocation of the on ramp will affect the county employee parking lots, both temporarily and permanently, on Vine Street between Ninth and Eleventh Streets. During the design phase of the SR-91 HOV project, Caltrans was able to reconfigure the parking lots to recoup all of the existing parking spaces on a permanent basis. However, during construction, portions of the parking lots will be unavailable for use. Due to limited parking nearby, the Commission has agreed to make the Downtown Metrolink e~st parking auxiliary lot available and to provide shuttle service, at no cost to the employees, to and from the station and the County Administrative Center during business hours. The construction affecting the employee parking lots will be phased and reinstated in stages to maximize the number of spaces available for employee parking. RTA has agreed to implement and operate a temporary shuttle service on a reimbursable basis during construction. The service will operate Monday through Agenda Item 7 A 1 Friday, approximately every 15 minutes, between 6:30 a.m. to 8:30 a.m., 11 :30 a.m. to 1 :30 p.m. and 4:30 p.m to 6:30 p.m. This schedule can be adjusted to accommodate county employee needs and as construction progresses. The estimated annual cost of this service is $109,200 and will be available for a period of up to two years. While the duration of this service is anticipated to be .less than two years based on a time estimation provided by Caltrans, the actual duration won't be known until the SR-91 HOV construction contractor provides a schedule. Financial Information .In Fiscal Year Budget: I N/A I Year: I FY 2012/13 + Amount: I $218,400 Source of Funds: 11989 Measure A Highway Funds Budget Adjustment: I N/A GL/Project Accounting No.: 003005 81401 222 31 81401 Fiscal Procedures Approved: ~~ I Date: I 03/19/12 Attachment: Draft Agreement with RTA Agenda Item 7 A 2 • • • • • • CO-OPERATIVE AGREEMENT NO. 12-004 BETWEEN RIVERSIDE TRANSIT AGENCY AND RIVERSIDE COUNTY TRANSPORTATION COMMISSION THIS AGREEMENT is made and entered into this-~ day of March 2012, by and between the Riverside Transit Agency, I 825 Third Street, Riverside, California 92507, (hereinafter referred to as "AGENCY") and the Riverside County Transportation Commission, 4080 Lemon Street, 3rd Floor, Riverside, California 92501 (hereinafter referred to as " the Commission"). WITNESSETH: WHEREAS, the Commission requires assistance from AGENCY to provide Riverside County employees and the general public with convenient, safe, and accessible transportation through the provision of a temporary shuttle service during the State Route 91 High Occupancy Vehicle construction project (SR-91 HOY construction project); and WHEREAS, AGENCY agrees to implement and operate a temporary shuttle service between the Riverside-Downtown Metrolink Station east side auxiliary lot, located at Tenth Street and Commerce Street, and the Riverside County Administration Center, hereinafter referred to as Route 54; and WHEREAS, the Commission agrees to provide operating costs for the AGENCY to provide these temporary shuttle services for Route 54; NOW, THEREFORE, it is mutually understood and agreed by AGENCY and the Commission as follows: ARTICLE 1. COMPLETE AGREEMENT A. This Agreement, including all exhibits and documents incorporated herein and made applicable by reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of the agreement between AGENCY and the Commission and it 3 Agreement # 12-004 Riverside Transit Agencv Riverside County Transportation Commission supersedes all pnor representations, agreements, understandings and communications with respect thereto. B. Changes to any portion of this Agreement shall not be binding except when specifically confirmed in writing by an authorized representative of AGENCY and the Commission by way of a written amendment to this Agreement and issued in accordance with the provisions contained in this Agreement. ARTICLE 2. SEVERABILITY If any provision, term or condition of this Agreement is held to be invalid, illegal or unenforceable, in whole or in part, then such provision, term or condition shall not affect the validity of any remaining provision, term or condition of this Agreement. All remaining provisions, terms and conditions of this Agreement shall continue in full force and effect. ARTICLE 3. AUTHORITY DESIGNEE A. The Chief Executive Officer of AGENCY, or designee, shall have the authority to act for and exercise any of the rights of AGENCY as set forth in this Agreement, subsequent to and in accordance with, the authorization granted by AGENCY'S Board ofDirectors. B. The Executive Director, or designee of the Commission, shall have the authority to act for and exercise any of the rights ofRCTC as set forth in this Agreement. ARTICLE 4. TERM OF AGREEMENT This Agreement shall commence on or about April 1, 2012, and shall continue in full force and effect during the SR-91 HOY construction project which has an estimated completion date ofFebruary 28, 2014, unless earlier terminated or extended as provided in this Agreement. ARTICLE 5. RESPONSIBILITIES OF AGENCY A. AGENCY shall provide services necessary to operate bus Route 54 service, as further described in the attached Exhibit A: Route 54 Service Description. 2 4 • • • • • • Agreement# I 2-004 R 1verside Transit Agencv Riverside Count\ Transponation Commission B. AGENCY shall submit a monthly invoice to the Commission by the tenth business day of the month. Each monthly invoice will include daily revenue service hours and ridership data. C. AGENCY shall cause a Certificate of Insurance to be generated, by AGENCY'S insurance company, which names the Commission as additional insured and provides insurance coverage in the following minimum amounts: 1. Commercial General Comprehensive Liability Insurance (contractual liability included) with a limit of not less than $1,000,000 per occurrence, and $2,000,000 general aggregate, 2. Automobile Liability, with a combined single limit liability for primary bodily injury and primary property damage for not less than $1,000,000, and 3. Workers' Compensation as required under California Jaw. ARTICLE 6. RESPONSIBILITIES OF RCTC A. The Commission agrees to provide operating costs on a monthly basis as determined by AGENCY's monthly reconciliation reports for the services as shown in Exhibit A, Route 54 Service Description, which is attached to and by this reference incorporated into and made a part of this Agreement. B. Reimbursement will be provided to RT A with 1989 Measure A Highway Funds. C. RCTC agrees to remit payment to RTA for all properly documented invoices no later than 30 days from the date ofthe approved invoice. ARTICLE 7. REVENUE OBLIGATION AGENCY and the Commission mutually agree that the Commission's estimated operating cost obligation under this Agreement shall be approximately $109,200 for a twelve-month period. This cost obligation shall be based upon actual service hours provided at a current rate of $70/hour which will be subject to reasonable increases throughout the term of the Agreement. 3 5 ARTICLE 8. INDEMNIFICATION Agreement# 12-004 R1verside Transit Agency Riverside Count' Transportation Commission A. AGENCY shall defend, indemnify and hold RCTC, its officers, agents and employees harmless from and against any and all liability, loss, expense (including reasonable attorney's fees), or claims for injury or damages arising out of or in connection with the performance of this Agreement and/or the provision of the Route 54 service due to the negligent or intentional acts or omissions of AGENCY, its officers, agents, employees or contractors. B. RCTC shall defend, indemnify and hold AGENCY, its officers, agents and employees harmless from and against any and all liability, loss, expense (including reasonable attorney's fees), or claims for injury or damages arising out of or in connection with the performance of this Agreement due to the negligent or intentional acts or omissions ofRCTC, its officers, agents, or employees. ARTICLE 9. INDEPENDENT CONTRACTOR A. AGENCY'S relationship to the Commission m the performance of this Agreement is that of an Independent Contractor. AGENCY'S personnel performing services under this Agreement shall at all times be under AGENCY'S exclusive direction and control and shall be employees of AGENCY and not employees ofthe Commission. AGENCY shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, worker's compensation and similar matters. B. The Commission's relationship to AGENCY m the performance of this Agreement is that of an Independent Contractor. The Commission's personnel performing services under this Agreement shall at all times be under RCTC'S exclusive direction and control and shall be employees of the Commission and not employees of AGENCY. The Commission shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, worker's compensation and similar matters. 4 6 • • • • • • ARTICLE 10. TERMINATION Agreement # 12-004 Rivers1de Transit Agency Riverside County Transportation Commission A. Either party may terminate this Agreement for its convenience any time, in whole or in part, by giving the other party written notice thereof. Upon termination, the Commission shall pay AGENCY its allowable costs incurred to date of that portion terminated, and AGENCY shall cease the expenditure of funds which are expected to be reimbursed by Commission. B. AGENCY may terminate this Agreement for the Commission's default if the Commission breaches any material provision of this Agreement and fails to cure such breach within thirty (30) calendar days of receipt of written notice from AGENCY. If AGENCY so terminates for default, then the Commission shall pay AGENCY its payment for actual bus usage incurred to date of termination based on the actual number of revenue service hours provided, not to exceed the maximum revenue obligations stated in Article 7. That payment shall be provided in full to AGENCY within thirty (30) calendar days of receipt ofthe Notice ofTermination. C. The Commission may terminate this Agreement for AGENCY'S default if AGENCY breaches any material provision of this Agreement and fails to cure such breach within thirty (30) calendar days of receipt of written notice from the Commission. If the Commission so terminates for default, then the Commission shall pay AGENCY its payment for actual bus usage incurred to date of termination based on the actual number of revenue service hours provided, not to exceed the maximum revenue obligations stated in Article 6. That payment shall be provided in full to AGENCY within thirty (30) calendar days of receipt of the Notice ofTermination. ARTICLE 11. AUDIT AND INSPECTION OF RECORDS A. AGENCY shall permit the authorized representative of the Commission, during standard business hours, to examine, inspect and audit all records and accounts pertaining to this Agreement. AGENCY shall make such items readily accessible to the Commission during the term of this Agreement and for a period of four (4) years from the date of final payment by the Commission hereunder. B. The Commission shall permit the authorized representative of AGENCY, 5 7 Agreement #12-004 Rivers1de Transit Agency Riverside Countv Transponation Commission during standard business hours, to examine, inspect and audit all records and accounts pertaining to this Agreement. The Commission shall make such items readily accessible to AGENCY during the term of this Agreement and for a period of four ( 4) years from the date of final payment to AGENCY hereunder. ARTICLE 12. FORCE MAJEURE Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to: any incidence of fire or flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material act or omission by the other party; or strike, when satisfactory evidence of such cause is presented to the other party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the party not performing. ARTICLE 13. NOTICES All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of said notice(s) in person, via electronic mail, or by depositing said notices in the U.S. mail, registered or certified mail, returned receipt requested, postage prepaid and addressed as follows: TO COMMISSION: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor P.O. Box 12008 Riverside, CA 92502-2208 ATTENTION: Anne Mayer Executive Director (951) 787-7141; Fax: (951) 787-7920 6 8 TO AGENCY: Riverside Transit Agency 1825 Third Street P.O. Box 59968 Riverside, CA 92517-1968 ATTENTION: Vince Rouzaud Chief Procurement & Logistics Officer (951) 565-51 80 Fax: (951) 565-5001 • • • • • • Agreement# 12-004 Rivers1de Transit Agency Ri1"ers1de County Transponation Comm1ssion ARTICLE 14. FEDERAL, STATE AND LOCAL LAWS A. AGENCY warrants that in the performance of this Agreement, it shall comply with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and regulations promulgated thereunder. B. The Commission warrants that in the performance of this Agreement, it shall comply with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and regulations promulgated thereunder. ARTICLE 15. GOVERNING LAW AND VENUE The Jaw of the State of California, without regard to any conflicts of Jaw provisions, shall govern any action or claim arising out of this Agreement. The parties agree that the venue for any action or claim arising out of or related to this Agreement shall be Riverside County. If any action or claim concerning this Agreement is brought by a third party, the parties agree to use their best efforts to obtain a change of venue to Riverside County . [Signatures on following page] 7 9 Agreement # 12-004 Riverside Transit Agency Riverside Countv Transportation Commission SIGNATURE PAGE TO AGREEMENT NO. 12-004 IN WITNESS WHEREOF, the parties hereto have caused this AgreementNo. 12-004 to be executed on the date first above written. RIVERSIDE TRANSIT AGENCY RIVERSIDE COUNTY TRANSPORTATION COMMISSION By ____________________ __ By __________________________ _ Larry Rubio Chief Executive Officer APPROVED AS TO FORM: By ________________________ __ Kennard R. Smart, Jr. General Counsel Anrie Mayer Executive Director APPROVED AS TO FORM: By __________________________ _ 8 10 Best, Best & Krieger LLP General Counsel • • • • AGENDA ITEM 78 • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 11, 2012 TO: Riverside County Transportation Commission Western Riverside County Programs and Projects Committee FROM: Jillian Edmiston, Staff Analyst Brian Cunanan, Commuter and Motorists Assistance Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Agreements for Freeway Service Patrol Tow Truck Service WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) 2) Award Agreement No. 12-45-045-00 to Pepe's Towing (Pepe's) for tow truck services on Beat No. 18 of the Freeway Service Patrol (FSP) program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1 ,520,000; Award Agreement No. 12-45-046-00 to Pepe's for tow truck services on Beat No. 19 of the FSP program for a three-year term, and two one-year options to extend the agreement, in an amount not to exceed $1 ,015,000; and 3) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: In 1986, the Commission established itself as the Riverside County Service Authority for Freeway Emergencies (RC SAFE) after the enactment of SB 1199 in 1985. The purpose of the formation of SAFEs in California was to provide call box services and, with excess funds, provide additional motorist aid services. Funding for RC SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Initially, these funds were used only for the call box program. As additional motorist aid services were developed, SAFE funds were also used to provide FSP and the Inland Empire 511 traveler information services as part of a comprehensive motorist aid system in Riverside County. In 1990, Proposition C was passed to fund transportation improvements and to help reduce traffic congestion in California. From this, the FSP program was created by Caltrans, which developed the corresponding Local Funding Allocation 11 Agenda Item 78 Plan to received match. distribute funds to partiCipating jurisdictions. In addition to funding from Caltrans, agencies are required to contribute a 25 percent local For the Commission, SAFE revenues are used to meet this match requirement. The Commission, acting in its capacity as the SAFE, is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 3:00 p.m. (1 :00 p.m. on Fridays) to 7:00p.m. In Fiscal Year 2010/11, FSP performed over 45,000 assists. Beat Beat Description Number of Assists 1 SR-91 Orange County line to Lincoln Avenue 6,177 2 SR-91 Lincoln Avenue to Magnolia Avenue 2,805 4 SR-91 Magnolia Avenue to 60/91 /21 5 Interchange 5,118 7 SR-60 Milliken Street to Main Street 6,379 8 SR-60/21 5 Interchange to Theodore Street 4,508 18 1-21 5 Riverside County line to Alessandro 7,477 19 1-215 Alessandro to SR-74/41h Street 2,395 25 1-15 Hidden Valley Parkway to SR-60/1-15 6,219 Interchange 26 1-15 Hidden Valley Parkway to Temescal Canyon 4,673 Road TOTAl ASSISTS 45,751 Staff sought a compet1t1ve solution to award tow service contracts to qualified firms for Beat Nos. 18 and 19, two of the nine total beats administered by the Commission. Beat No. 18 operates on Interstate 215 from the Riverside County line to Alessandro Boulevard and requires the use of three tow trucks during normal service hours. Beat No. 19 operates on Interstate 21 5 from Alessandro Boulevard to State Route 74/41h Street, which requires the use of two tow trucks during normal service hours. Procurement Process This procurement was conducted in accordance with established Commission procurement policies and procedures. Staff established certain minimum Agenda Item 78 12 • • • • • • qualifications required of each potential proposer and developed a weighted evaluation criterion to select qualified tow services contractors for Beat Nos. 18 and 19. Non-price elements of the evaluation criteria included experience, the relative qualifications of the firms, proposed work plan, and the proposer's ability to respond to the requirements set forth under the terms of the request for proposals (RFP). RFP No. 12-45-045-00 was released and advertised by the Commission on January 30, 2012. A pre-proposal conference was conducted by the Commission on February 14, and was attended by two firms. Staff responded to all questions submitted by potential proposers prior to the March 1 proposal deadline. Two responsive and responsible firms -Navarro's Towing and Recovery (Navarro's) and Pepe's -submitted proposals in response to the RFP for services on Beat No. 18. One responsive and responsible firm -Pepe's -submitted a proposal in response to the RFP for services on Beat No. 19. Staff reached out to several tow firms to determine why these firms did not submit a proposal in response to the RFP. Reasons for not submitting a proposal included the firm's new yard in Riverside was not completed in time, a significant distance between the beat and a yard, and financial issues. An evaluation committee cons1stmg of representatives from the CHP Inland Division, San Bernardino Associated Governments, and Commission staff evaluated each proposal in accordance with the evaluation criteria set forth in the RFP. The Committee performed site visits, interviewed the proposing firms, and provided final scoring based on a comprehensive evaluation of each firm's written proposal and interview. Beat No. 18 Proposals submitted in response to Beat No. 18 were scored by the evaluation committee based upon the criteria set forth in the RFP. The two firms submitted hourly rates for tow services that ranged from a low of $51.7 4 per hour to a high of $53.00 per hour. Beat No. 18 services are currently provided by Pepe's at an hourly rate of $51.00. The all-inclusive hourly service rate for this beat, as well as Beat No. 19, includes all direct costs (e.g., fuel, labor, equipment), indirect costs (e.g., fringe benefits, overhead), and profit to provide the subject services. The overall rankings, inclusive of pncmg, listed from highest to lowest total evaluation score for Beat No. 18 are as follows: Firm Hourly Rate Overall Ranking Pepe's $51.74 pt Navarro's $53.00 2nd Agenda Item 7B 13 Based on the overall score according to the evaluation criteria listed in the RFP, the evaluation committee recommends Pepe's for award of Beat No. 18. Beat No. 19 Pepe's is the only firm that submitted a responsive and responsible proposal .in response to the RFP for services on Beat No. 19. The proposal was scored by the evaluation committee based upon the criteria set forth in the RFP. Pepe's proposed hourly rate for tow services is $51.74. Beat No. 19 services are currently provided by Pepe's at an hourly rate of $52.00. Based on the overall score according to the evaluation criteria listed in the RFP, the evaluation committee recommends Pepe's for award of Beat No. 19. Pepe's currently provides service for five of the Commission's FSP beats. Pepe's has performed satisfactorily and has a good working relationship with staff. CONCLUSION: Staff recommends Pepe' s for award of Beat Nos. 18 and 1 9 based on the evaluation process discussed. Additionally, Pepe's has had an exceptional working relationship with the Commission for several years. • The proposed all-inclusive hourly rate of $51.74 by Pepe's for Beat Nos. 18 and 19 • a.re considered fair and reasonable based upon adequate price competition under the RFP process and the historical cost experience of the Commission for comparable services. As noted above, current hourly rates for these two beats range from $51.00 to $52.00. Staff recommends the award of Agreement No. 12-45-045-00 to Pepe's for tow truck services on Beat No. 18 in an amount not to exceed $1 ,520,000 and Agreement No. 1 2-45-046-00 to Pepe' s for tow truck services on Beat No. 19 in an amount not to exceed $1,015,000. The Commission's standard form FSP services agreement will be entered into with Pepe's for each beat subject to any changes pursuant to legal counsel review. All obligations incurred by the Commission under the terms of these awards are funded using state funds and local SAFE revenues and are subject to continued funding from the state of California for the Riverside County FSP prog'ram. The FY 2012/13 cost of $507,000 will be included in the FY 2012/13 budget. Agenda Item 7B 14 • • Financial Information In Fiscal Year Budget: J N/A I Year: J FY 2012/13 + Amount: I $2,535,000 Source of Funds: I State of California SAFE DMV Fees Budget Adjustment: I N/A GL!Project Accounting No.: 002173 81014 201 45 81002 Fiscal Procedures Approved: ~~ I Date: I 03/15/12 Attachment: Standard Form FSP Services Agreement • • Agenda Item 78 15 • • • Note Items in red/bold/underline will be filled in with contract execution Agreement No. 12-45-045-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES, AND [NAME OF CONTRACTOR] FOR FREEWAY SERVICE PATROL FOR BEAT NO. 2S WITHIN RIVERSIDE COUNTY 1. PARTIES AND DATE. 1.1 This Contract ("Contract") is made and entered into this X1h day of Month, 2012, by and between the Riverside County Transportation Commission, a public entity, acting as the Riverside County Service Authority for Freeway Emergencies (referred to herein as "SAFE"), and [NAME OF FIRM], a [LEGAL STATUS OF . CONTRACTOR e.g., CORPORATION] (referred to herein as "CONTRACTOR"). SAFE and CONTRACTOR are sometimes individually referred to herein as "Party" and collectively as "Parties" . 1.2 The California Highway Patrol herein referred to as "CHP" and California Department of Transportation, herein referred to as "Caltrans" are hereby expressly designated as third-party beneficiaries of CONTRACTOR's performance under this Contract. 2. RECITALS. 2.1 WHEREAS, the Riverside County Transportation Commission ("RCTC") is a California County Transportation Commission existing under the authority of Section 130050 et seq. of the California Public Utilities Code; 2.2 WHEREAS, RCTC is authorized, pursuant to Section 2550 et seq. of the California Streets and Highways Code, to act as SAFE for purposes of providing a motorist aid system, including provision of freeway service patrols; 2.3 WHEREAS, SAFE requires the services of a CONTRACTOR to provide the freeway service patrol professional services as described in the Scope of Services; 2.4 WHEREAS, SAFE has determined that CONTRACTOR is best qualified to perform the required services; 17336.0002A\6030198.4 16 2.5 WHEREAS, the CONTRACTOR is able and willing to perform the • required services under the terms and conditions of this Contract; 2.6 WHEREAS, RCTC is the short range transportation planning agency for Riverside County, and programs federal, state, and local funds. RCTC has entered into a Memorandum of Understanding with Caltrans and CHP to fund peak period freeway service patrols on selected freeway segments in Riverside County; and 2.7 WHEREAS, Section 21718 (a) of the California Vehicle Code specifically authorized CHP to be responsible for freeway service patrols stopping on freeways for the purpose of rapid removal of impediments to traffic. Article 3, Section 91, of the Streets and Highways Code, states that Caltrans has responsibility to improve and maintain the state highways. Caltrans also has the responsibility for traffic management and removing impediments from the highways. NOW, THEREFORE, for the consideration hereinafter stated, SAFE and CONTRACTOR agree as follows: 3. TERMS. 3.1 General Scope of Services. 3.1.1. Contract Oversight. Caltrans and CHP will jointly oversee the Services. Both agencies will have responsibility for overseeing Service performance and ensuring that the CONTRACTOR abides by the terms of this Contract. CHP is responsible for dispatch services to incident locations within the CONTRACTOR's patrol limits. The dispatching will be done in accordance with this Contract. A Standard Operating Procedures ("SOP") manual will be given to the CONTRACTOR explaining the types of incidents to which his/her operators may be dispatched. 3.1.2 Beat Descriptions. The Freeway Service Patrol ("FSP") will operate on selected freeway segments referred to herein as "beats". Each beat has specific turnaround locations and designated drop locations identified by the CHP. Exhibit "A-1" shows the specific limits, number of tow trucks, number of back-up trucks and hours of operation and Exhibit "A-2" details the fiscal years 2013, 2014, and 2015 holidays for the CONTRACTOR's specific beat. SAFE reserves the right to add or delete holidays to the work schedule, provided that SAFE provides CONTRACTOR seven (7) days advanced notice of such addition or deletion. Travel time to and from the beat will be at the expense of the CONTRACTOR. At any time during the term of this Contract, SAFE reserves the right to adjust beat specifications to better accommodate demand for the Services. These changes can occur during the course of this Contract through written change orders. If warranted and during the hours of operation of the Services, the 17336.0002A \6030198.4 2 17 • • • • • CONTRACTOR may be requested to temporarily reassign his/her FSP operators/trucks to locations outside the assigned beat 3.1.3 Description of Services. CONTRACTOR shall be responsible for those services set forth in this Section 3.1.3, hereinafter referred to as "Services." The purpose of the FSP program is to provide for the rapid removal of disabled vehicles and vehicles involved in minor accidents from the freeway. Where conditions permit, safe removal of small debris will be required. CONTRACTOR vehicles shall be exclusively dedicated to the Services during the hours of operation. All vehicle maintenance activities shall be conducted during non-Services hours. When conducting the Services on an FSP shift, the CONTRACTOR's vehicle shall display all FSP markings and the vehicle operator shall wear an FSP uniform, as detailed in Exhibit "A-3". The CONTRACTOR's vehicle operators shall assist motorists involved in minor accidents and those with disabled vehicles. They shall be responsible for clearing the freeway of automobiles, small trucks and small debris. When and where conditions warrant, service may be executed on the freeway shoulders. Where conditions do not warrant, vehicle operators will remove the vehicles from the freeway to provide service. The FSP vehicles shall continuously patrol their assigned beat, respond to CHP dispatches for Services, use the designated turnaround locations and use the CHP identified designated drop locations . All FSP services shall be provided at no cost to the motorist FSP vehicle operators shall not be accept gratuities, perform secondary towing services, recommend secondary tows, orrecommend repair/body shop businesses. FSP vehicle operators may be required to change flat tires, provide "jump" starts, provide one gallon of gasoline or diesel fuel, temporarily tape cooling system hoses and refill radiators. Vehicle operators may spend a maximum of ten (1 0) minutes per disablement in attempting to mobilize a vehicle. If a vehicle cannot be mobilized within the ten (1 0) minute time limit, it shall be towed to a designated drop location identified by the CHP. The motorist can request the FSP vehicle operator to call the CHP Communications center to request a CHP rotational tow or other services. FSP operators shall not be allowed to tow as an independent contractor from an incident that occurred during the FSP shift unless called as a rotation tow by CHP. If called as a rotation tow after a FSP shift, the vehicle operator must remove all FSP markings and change his/her FSP uniform. There may be some instances where FSP operators may be requested to provide assistance to CHP officers. FSP operators shall follow the instructions of the CHP officer at the scene of any incident within the scope of the FSP program. 3.1.4. The SOP Manual. To promote a safe work environment and for the maintenance of professionalism, the most current version of the SOP manual shall, at all times, be followed by the CONTRACTOR and its vehicle operators. The I 7336 0002A\6030198.4 3 18 SOP manual, as such manual may from time to time be amended, is incorporated into this Contract by reference. CONTRACTOR shall be notified and provided with a copy of any changes to the SOP manual. Drivers found not to be in compliance with FSP procedures, as set forth in the SOP manual or this Contract, may be suspended or terminated from the FSP program and the CONTRACTOR may be fined three (3) times the hourly Contract rate in one (1) minute increments until a replacement vehicle is provided (Driver and Truck must return to beat compliant with all FSP requirements), or fined for the entire shift at three (3) times the hourly rate at the discretion of the FSP Field Supervisors. 3.1.5 Check ln. Upon arrival at the location for each instruction to provide Services, and upon completion of each such request, CONTRACTOR shall check in with the CHP field supervisor using the radio provided by SAFE as set forth in Section 3.2, entitled "Equipment Requirements". 3.2 Equipment Requirements. CONTRACTOR shall comply with all equipment requirements outlined in RFP No. FSP12-45-045-00. Notwithstanding any other provision contained in the RFP, radio and AVL equipment shall be supplied by SAFE and installed (mounted) in all CONTRACTOR vehicles by SAFE's installation vendor, and shall remain mounted in all CONTRACTOR vehicles at all times. 3.3 Commencement of Services. The CONTRACTOR shall commence work upon receipt of a written Notice to Proceed from SAFE. 3.4 Term. The term of this Contract shall be from Month 1, 2012 through Month 31, 2015 unless earlier terminated as provided herein. SAFE, at its sole discretion, may renew this Contract for a total of two (2) separate one year terms, based on the option-year rates. SAFE shall also have the right to renew this Contract from one month up to a one year term after the initial term by providing notice as provided below. SAFE must provide written notice to CONTRACTOR no less than ninety (90) days prior to the end of the applicable term, indicating its renewal of the Contract. CONTRACTOR shall complete the Services within the term of this Contract, and shall meet any other established schedules and deadlines. All applicable indemnification provisions of this Contract shall remain in effect following the termination of this Contract. If SAFE, at its sole discretion, renews this Contract for one or both of the additional separate one year terms as provided, the option-year rates shall be as follows: SCHEDULE OF HOURLY RATES Classification Option Year 1 Hourly Rate Option Year 2 Hourly Rate Contract -tow truck operators $ per hour $ per hour 3.5 SAFE's Representative. SAFE hereby designates the .. SAFE Executive Director or his or her designee, to act as its Representative for the • • performance of this Contract ("SAFE's Representative"). SAFE's Representative shall • have the authority to act on behalf of SAFE for all purposes under this Contract. 17336.0002A \6030198.4 4 19 • SAFE's Representative shall also review and give approval, as needed, to the details of CONTRACTOR's work as it progresses. CONTRACTOR shall not accept direction or orders from any person other than the SAFE's Representative or his or her designee. 3.6 CONTRACTOR'S Representative. CONTRACTOR hereby designates [INSERT NAME, TITLE], to act as its representative for the performance of this Contract ("CONTRACTOR's Representative"). CONTRACTOR's Representative shall have full authority to act on behalf of CONTRACTOR for all purposes under this Contract. The CONTRACTOR's Representative shall supervise and direct the Services, using his 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 Contract. CONTRACTOR shall work closely and cooperate fully with SAFE's Representative and any other agencies which may have jurisdiction over or an interest in the Services. CONTRACTOR's Representa- tive shall be available to the SAFE staff at all reasonable times. Any substitution in CONTRACTOR's Representative shall be approved in writing by SAFE's Representative. 3. 7 Substitution of Key Personnel. CONTRACTOR has represented to SAFE that certain key personnel will perform and coordinate the Services under this Contract. Should one or more of such personnel become unavailable, CONTRACTOR may substitute other personnel of at least equal competence upon written approval by SAFE's Representative .. In the event that SAFE's Representative and CONTRACTOR cannot agree as to the substitution of the key personnel, SAFE shall be entitled to terminate this Contract for cause, pursuant to the provisions of Section 3.15. The key personnel for performance of this Contract are: [LIST NAMES AND TITLES]. • 3.8 Review of Work and Deliverables. All reports, working papers, and • similar work products prepared for submission in the course of providing Services under this Contract may be required to be submitted to SAFE's Representative in draft form, and SAFE's Representative may require revisions of such drafts prior to formal submission and approval. In the event that SAFE's Representative, in his or her sole discretion, determines the formally submitted work product to be inadequate, SAFE's Representative may require CONTRACTOR to revise and resubmit the work at no cost to SAFE. Upon determination by SAFE that CONTRACTOR has satisfactorily completed the Services required under this Contract and within the term set forth in Section 3.4, SAFE shall give CONTRACTOR a written Notice of Final Completion. Upon receipt of such notice, CONTRACTOR shall incur no further costs hereunder, unless otherwise specified in the Notice of Completion. CONTRACTOR may request issuance of a Notice of Final Completion when, in its opinion, it has satisfactorily completed all Services required under the provisions of this Contract. 3.9 Appearance at Hearings. If and when required by SAFE, CONTRACTOR shall render assistance at public hearings or other meetings related to the performance of the Services. 3.10 Standard of Care: Licenses. CONTRACTOR represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Contract. CONTRACTOR shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. CONTRACTOR warrants that all employees and subcontractors shall have 17336.0002A\6030198.4 5 20 sufficient skill and experience to perform the Services assigned to them. CONTRACTOR further represents and warrants to SAFE that its employees and subcontractors have all licenses, permits, qualifications (including medical certification) 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 Contract. CONTRACTOR shall perform, at its own cost and expense and without reimbursement from SAFE, any services necessary to correct errors or omissions which are caused by the CONTRACTOR's failure to comply with the standard of care provided for herein, and shall be fully responsible to SAFE for all damages and other liabilities provided for in the indemnification provisions of this Contract arising from the CONTRACTOR's errors and omissions. Any employee of CONTRACTOR or its subcontractors who is determined by SAFE to be uncooperative, incompetent, a threat to the adequate or timely completion of the Services, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to SAFE, shall be promptly removed from performing the Services by the CONTRACTOR and shall not be re-employed to perform any of the Services. 3.11 Opportunity to Cure. SAFE may provide CONTRACTOR an opportunity to cure, at CONTRACTOR's expense, all errors and omissions which may be disclosed during performance of the Services. Should CONTRACTOR fail to make such correction in a timely manner, such correction may be made by SAFE, and the cost thereof charged to CONTRACTOR. • 3.12 Inspection of Work. CONTRACTOR shall allow SAFE's • Representative to inspect or review CONTRACTOR's performance of Services in progress at any time. SAFE/Caltrans/CHP also reserves the right to audit all paperwork demonstrating that CONTRACTOR participates in an employee alcohol/drug-testing program and the DMV Pull Notice Program. 3.13 Laws and Regulations. CONTRACTOR 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 Services, including all Cai/OSHA requirements, and shall give all notices required by law. CONTRACTOR shall be solely liable for all violations of such laws and regulations in connection with Services. -If the CONTRACTOR performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to SAFE, CONTRACTOR shall be solely responsible for all costs arising therefrom. CONTRACTOR shall defend, indemnify and hold SAFE, their officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.14 Damage Complaints. Upon receiving a damage complaint from a motorist assisted by the CONTRACTOR, that the CONTRACTOR damaged their vehicle while lending assistance, the CONTRACTOR shall notify CHP immediately regarding the nature of the damage complaint and its disposition. The CONTRACTOR shall reply to the motorist by telephone within twenty-four (24) hours of receiving the • damage complaint notification. If necessary, the CONTRACTOR shall send either his or 17336.0002A \6030198.4 6 21 • • • her authorized representative or his or her insurance company representative to inspect the vehicle and complete an incident report within forty-eight (48) hours after receiving the damage complaint. If the investigation shows that damage to the vehicle could have been caused by the CONTRACTOR, the CONTRACTOR shall negotiate in good faith to try and resolve the issue and shall report to the CHP the result of the negotiations. All complaints shall be resolved within a reasonable period of time after being received. 3.14.1 Complaint Review Committee. The FSP Technical Advisory Committee ("FSP TAC") is composed of voting members from CHP, SAFE and Caltrans. Voting members of the FSP T AC are hereby designated as the members of the Damage Complaint Review Committee ("DCRC"). If the DCRC finds that justifiable complaints are not resolved within a reasonable time frame, it can recommend that payment to the CONTRACTOR in the amount of the damage claim may be deducted from the CONTRACTOR's monthly invoice. 3.15 Termination. 3.15.1 Notice; Reason. · SAFE may, by written notice to CONTRACTOR, terminate this Contract, in whole or in part, including, without limitation, the geographical territory covered by this Contract, at any time by giving written notice to CONTRACTOR of such termination, and specifying the effective date thereof ("Notice of Termination"). Such termination may be for SAFE's convenience or because of CONTRACTOR's failure to perform its duties and; obligations under this Contract, including, but not limited to, the failure of CONTRACTOR to timely perform Services pursuant to the Scope of Services described in Section 3, entitled "Terms," as well as Section 7 of the RFP. CONTRACTOR may not terminate this Contract except for cause. 3.15.2 Discontinuance of Services. Upon receipt of the written Notice of Termination, CONTRACTOR shall discontinue all affected Services as directed in the Notice of Termination, and deliver to SAFE all Documents and Data, as defined in this Contract, as may have been prepared or accumulated by CONTRACTOR in performance of the Services, whether completed or in progress. 3.15.3 Effect of Termination For Convenience. If the termination is to be for the convenience of SAFE, SAFE shall compensate CONTRACTOR for Services fully and adequately provided through the effective date of termination as provided in the Notice of Termination. Such payment shall include a pro-rated amount of profit, if applicable, up through such effective date, but no amount shall be paid for anticipated profit on unperformed Services past such effective date. CONTRACTOR shall provide documentation deemed adequate by SAFE's Representative to show the Services actually completed by CONTRACTOR prior to the effective date of termination. This Contract shall terminate on the effective date of the Notice of Termination. 3.15.4 Effect of Termination for Cause. If the termination is for cause, CONTRACTOR shall be compensated for those Services which have been fully and adequately completed and accepted by SAFE as of the effective date of termination as provided in the Notice of Termination. In such case, SAFE may take over the work 17336.0002A\6030198.4 7 22 and prosecute the same to completion by contract or otherwise. Further, • CONTRACTOR shall be liable to SAFE for any reasonable additional costs or damages incurred to revise work for which SAFE has compensated CONTRACTOR under this Contract, but which SAFE has determined in its sole discretion needs to be revised, in part or whole. Termination of this Contract for cause may be considered by SAFE in determining whether to enter into future contracts with CONTRACTOR. 3.15.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Contract. 3.15.6 Procurement of Similar Services. In the event this Contract is terminated, in whole or in part, as provided by this Section, SAFE may procure, upon such terms and in such manner as it deems appropriate, services similar to those terminated. 3.15.7 Waivers. CONTRACTOR, in executing this Contract, shall be deemed to have waived any and all claims for damages which may otherwise arise from SAFE's termination of this Contract, for convenience or cause, as provided in this Section. 3.15.8 Authorization to Terminate. The Executive Director of SAFE shall have the full authority and discretion to exercise SAFE's rights under this Section 3.15, entitled "Termination". • 3.16 Trend Meetings. CONTRACTOR shall attend, or send a designated management-level representative, to all trend meetings (i.e. required FSP TAC meeting which meets every other month). These trend meetings will encompass focused and informal discussions concerning, but not limited to: scope, Services, schedule, current progress of Services, relevant cost issues, and future objectives. CONTRACTOR shall be responsible for having a representative attend all meetings (i.e. FSP TAC meetings) that has the ability to make management-level decisions on the behalf of the CONTRACTOR. If the CONTRACTOR cannot have a management-level representative at a meeting, CONTRACTOR shall notify SAFE and CHP prior to the meeting. Management-level attendance at these meetings shall be considered part of the CONTRACTOR'.s contractual respon·sibility. Meetings are scheduled, and CONTRACTOR will be notified of such schedule, no later than three (3) working days prior to the meeting. 3.17 Fees and Payment. 3.17 .1 Amount to be Paid. Subject to the provisions set forth below for Services satisfactorily performed hereunder, SAFE shall pay the CONTRACTOR on a Time and Materials basis a ceiling price NOT TO EXCEED DOLLARS ($ ). 3.17.2 Maximum Payment is the Ceiling Price. SAFE shall not be obligated to pay costs which exceed the ceiling price set forth above, except as provided in Sections 3.15 and 3.17 .1 0. CONTRACTOR agrees to use its best efforts to • perform the services and all obligations under this Contract within such ceiling price. 1 7336.0002A\6030198.4 8 23 • • • 3.17 .3 Hourly Rate. For its performance of the Services, the CONTRACTOR shall be paid for labor expended directly in the performance of the Services at the rates specified below. The CONTRACTOR shall not be entitled to reimbursements for any expenses unless approved in advance in writing. SCHEDULE OF HOURLY RATES Classification Hourly Rate Contract -tow truck operators $ 3.17.4 Payment Coverage. The compensation herein above specified will cover and include all applicable labor surcharges such as taxes, insurance and fringe benefits, as well as indirect costs, overhead, general and administrative expense, and profit. 3.17.5 Fines. Fines for starting late; leaving early; taking more than 15-minutes worth of breaks per 3-hour shift; or being ordered out of service by a CHP or Caltrans supervisor for Contract infractions shall be deducted from the CONTRACTOR's monthly invoice at three (3) times the hourly rate. 3.17.6 Invoices. Invoices for CONTRACTOR's Services shall be submitted monthly on forms approved by SAFE. Invoices will be routinely verified by CHP. To ensure prompt payment, most billing disputes may be resolved within ten (10) working days of written notice of dispute. However, at SAFE's discretion, reconciliation of disputed fines that sum to less than 2% of the months' Invoice may be corrected on the next month's Invoice to ensure prompt payment of the major portion of the invoice. Each Invoice shall include a cover sheet bearing a certification as to the accuracy of the statement signed by the CONTRACTOR's authorized officer. 3.17.6.1 Monthly Progress Reports. As part of its Invoice, CONTRACTOR shall submit a Monthly Progress Report, in a form determined by SAFE, which will cover the Invoice period and include spreadsheets showing hours expended for each day of the month per vehicle per beat, and the total for the term of the Contract to date. Submission of such Monthly Progress Report by CONTRACTOR shall be a condition precedent to receipt of payment from SAFE for each monthly Invoice submitted. 3.17.6.2 Payment Schedule. Invoice periods shall be based upon a calendar month, beginning with the first day of the month. SAFE shall reimburse CONTRACTOR for Services adequately provided under this Contract within thirty (30) days of receiving the current period invoice with no errors. If the Invoice is completed incorrectly by the CONTRACTOR it will delay payment. If SAFE fails to pay any amount owed to CONTRACTOR under this Contract within thirty (30) days after receipt of the invoice, CONTRACTOR may give SAFE a notice of failure to pay which shall set forth the invoice(s) and amount(s) which CONTRACTOR believes are thirty (30) days 17336.0002A\6030198.4 9 24 overdue. SAFE shall pay any undisputed invoice(s) and amount(s) within thirty (30) • days of receipt of a notice of failure to pay. 3.17.7 Authorization to Inspect and Audit. The CONTRACTOR shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Contract. All such records shall be clearly identifiable. The CONTRACTOR shall permit the authorized representatives of SAFE, and any other government agency to inspect, audit and make transcripts or copies of any and all records, including ledgers and books of account, invoices, vouchers, cancelled checks, and any other documents, of CONTRACTOR relating to it and its subcontractor's performance under this Contract from date of Contract through and until expiration of three (3) years after completion of the Contract. Contracts with the CONTRACTOR's subcontractors shall include such provisions for such audits, as applicable. For purposes of audit, the date of completion of the Contract shall be the date of SAFE's payment for CONTRACTOR's final billing (so noted on the invoice) under this Contract, or a period of ninety (90) days from the date of SAFE's Notice of Final Acceptance. 3.17.8 Taxes. CONTRACTOR shall pay any sales, use, or other taxes, if any, attributable to the provision of the Services. 3.17.9 Source of Funding. It is understood that SAFE funding for the Services is being provided primarily from the State's FSP Funding program and the Department of Motor Vehicles ("DMV") Registration Fees (funding source for Motorist • Assistance Programs). It is acknowledged that at any time funds from the State and DMV Registration Fees are not available to SAFE for the full amount of this Contract, SAFE may terminate this Contract pursuant to Section 3.15 entitled "Termination." 3.17 .1 0 Extra Work. At any time during the term of this Contract, SAFE may request CONTRACTOR to perform Extra Work. "Extra Work" shall mean any work which is determined by SAFE to be necessary for proper completion of the Services, but which the Parties did not reasonably anticipate would be necessary at the time of the execution of this Contract and was not included in the Scope of Services. Extra Work, if any, shall be reimbursed at the same hourly rate as identified in Section 3.17.3. CONTRACTOR shall not perform, nor be compensated for Extra Work without obtaining authorization in the form of a written Extra Work Order issued by SAFE's Representative. For instance, Construction FSP services as it relates to construction activity can be considered Extra Work. In the event an Extra Work Order is not issued and signed by SAFE's Representative, CONTRACTOR shall not provide such Extra Work. However, no compensation or reimbursement for Extra Work shall be paid if it is not authorized by SAFE and if the cumulative total of such Extra Work under the Contract exceeds $25,000. All Extra Work in a cumulative total in excess of $25,000 must be approved in advance by amendment to this Contract. 3.17.11 Most Favored Customer. CONTRACTOR agrees that, throughout the term of this Contract, it shall not enter into any FSP services agreement with any government agency with whom it has either existing contractual relationship or • has no contractual relationship that predates this Contract, pursuant to which 17336.0002A\6030198.4 10 25 • • • CONTRACTOR agrees to charge FSP services fees less than those as indicated in this Contract for substantially the same level of FSP services contemplated by this Contract. Should SAFE establish that such lower fees have been agreed to by CONTRACTOR with another government agency, CONTRACTOR agrees to renegotiate the fees or to refund SAFE an amount equal to the difference between the fees indicated in this Contract and the fees charged to other government agency customer. 3.18 Delay in Performance. 3.18.1 Excusable Delays. Neither Party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by an Excusable Delay. Should CONTRACTOR be delayed or prevented from the timely performance of any act or Services required by the terms of the Contract by an Excusable Delay, Contractor's schedule for completion of tasks affected by such delay may be extended as set forth in Section 3.18.2. But in every case, CONTRACTOR's failure to perform must be reasonably beyond the control, and without the fault or negligence of the CONTRACTOR. Excusable Delays are acts of God or of the public enemy, acts or omissions of SAFE or other governmental agencies in either their sovereign or contractual capacities, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather. 3.18.2 Written Notice. If CONTRACTOR believes it is entitled to an extension of time due to conditions set forth in subsection 3.18.1, CONTRACTOR shall provide written notice to the SAFE within seven (7) working days from the time CONTRACTOR knows, or reasonably should have known, that performance of the Services will be delayed due to such conditions. Failure of CONTRACTOR to provide such timely notice shall constitute a waiver by CONTRACTOR of any right to an excusable delay in time of performance. 3.18.3 Mutual Contract. Performance of any Services under this Contract may be delayed upon mutual agreement of the Parties. Upon such agreement, CONTRACTOR's Schedule of Services (as defined in their Proposal) shall be extended as necessary by SAFE. CONTRACTOR shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.19 Status of CONTRACTOR/Subcontractors. 3.19.1 Independent Contractor. The Services shall be performed by CONTRACTOR or under its supervision. CONTRACTOR will determine the means, methods and details of performing the Services subject to the requirements of this Contract. SAFE retains CONTRACTOR on an independent contractor basis and not as an employee, agent or representative of the SAFE. CONTRACTOR retains the right to perform similar or different services for others during the term of this Contract. Any additional personnel performing the Services under this Contract on behalf of CONTRACTOR shall at all times be under CONTRACTOR's exclusive direction and control. CONTRACTOR shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. 17336.0002A\6030198.4 ]] 26 CONTRACTOR shall be responsible for all reports and obligations respecting such • personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, disability insurance, and workers' compensation insurance. 3.19.2 Assignment or Transfer. CONTRACTOR shall not assign, hypothecate, or transfer, either directly or by operation of law, this Contract or any interest herein, without the prior written consent of SAFE. 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. Notwithstanding the foregoing, SAFE may transfer or assign any and all of its rights and obligations under this Contract, including, without limitation the rights to terminate this Contract, as assigned, pursuant to Section 3.15 hereof. 3.19.3 Subcontracting. CONTRACTOR shall not subcontract any portion of the work or Services required by this Contract, except as expressly stated herein, including the Scope of Services, without prior written approval of the SAFE. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Contract. SAFE shall have no liability to any subconsultant(s) for payment for services under this Contract or other work performed for CONTRACTOR, and any subcontract entered into by CONTRACTOR pursuant to the conduct of services under this Contract shall duly note that the responsibility for payment for the technical services or any other work performed shall be the sole responsibility of CONTRACTOR. 3.20 Ownership of Materials and Confidentiality. 3.20.1 Documents & Data; Licensing of Intellectual Property. All 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, spreadsheets, or data magnetically or otherwise recorded on computer diskettes, prepared by or on behalf of CONTRACTOR under this Contract ("Documents and Data"}, shall be made available to SAFE at all times during this Contract and shall become the property of SAFE upon the completion of the term of this Contract, except that CONTRACTOR shall have the right to retain copies of all such Documents and Data for its records. Should CONTRACTOR, either during or following termination of this Contract, desire to use any Documents and Data, it shall first obtain the written approval of SAFE. This Contract creates a no-cost, non-exclusive, and perpetual license for SAFE to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in the Documents and Data which are prepared or caused to be prepared by CONTRACTOR under this Contract ("'ntellectual Property"). CONTRACTOR shall require all subcontractors to agree in writing that SAFE is granted a no-cost, non-exclusive, and perpetual license for any Intellectual Property the subcontractor prepares under this Contract. CONTRACTOR represents and warrants that CONTRACTOR has the legal right to license any and all Intellectual Property prepared or caused to be prepared by CONTRACTOR under this Contract. SAFE shall not be limited in any way in its use of the Intellectual Property at any time, provided that any such use not within the purposes intended by this Contract shall be at SAFE's sole risk. 17336 0002A\60301984 12 27 • • • • • 3.20.2 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 CONTRACTOR in connection with the performance of this Contract shall be held confidential by CONTRACTOR to the extent permitted by law, including, without limitation, the California Public Records Act, Government Code section 6250 et seq. Such materials shall not, without the prior written consent of SAFE, be used by CONTRACTOR for any purposes other than the performance of the Services as provided herein. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services, except as provided herein. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is generally known, or becomes known, to the related industry shall be deemed confidential. CONTRACTOR shall not use SAFE's name or insignia, photographs, or any publicity pertaining to the Services in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the prior written consent of SAFE. 3.21 Indemnification. CONTRACTOR shall indemnify and hold SAFE, RCTC, CHP, Caltrans and their directors, officials, officers, agents, contractors, consultants, employees, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of, or incident to, alleged negligent acts, omissions, or willful misconduct of the CONTRACTOR, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services or this Contract, including without limitation, the payment of all consequential damages and other related costs and expenses. CONTRACTOR shall defend, at CONTRACTOR'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 SAFE, RCTC, CHP, Caltrans or their directors, officials, officers, agents, contractors, consultants, employees, and volunteers. CONTRACTOR shall pay and satisfy any judgment, award, or decree that may be rendered against SAFE, RCTC, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers, in any such suit, action, or other legal proceeding. CONTRACTOR shall reimburse SAFE, RCTC, CHP, Caltrans and their directors, officials, officers, agents, consultants, employees, and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. CONTRACTOR's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the CONTRACTOR, SAFE, RCTC, CHP, Caltrans or their directors, officials, officers, agents, consultants, employees, and volunteers. 3.22 Insurance. 3.22.1 Time for Compliance. CONTRACTOR shall not commence work under this Contract until it has provided evidence satisfactory to SAFE that it has secured all insurance required under this section. In addition, CONTRACTOR shall not 17336 0002A \60301984 13 28 allow any subcontractor to commence work on any subcontract until it has secured all • insurance required under this section. 3.22.2 General Liability Insurance. CONTRACTOR shall procure a Commercial General Liability Insurance Policy in amounts and form set forth below: 3.22.2.1 Commercial General Liability Insurance. A policy of Commercial General Liability which provides limits of not less than: a. Per occurrence: b. Project Specific Aggregate: c. Products/Completed Operations: d. Personal Injury Limit: $2,000,000 $4,000,000 $1,000,000 $1,000,000 3.22.2.2 General Liability Policy Coverage. Any general Liability policy provided by CONTRACTOR hereunder shall include the following coverage: a. Premises and Operations b. Products/Completed Operations with limits of at least one million dollars ($1 ,000,000) per occurrence to be maintained for three (3) years following acceptance of the work by SAFE. c. Contractual Liability expressly including liability assumed under this Contract. d. · Independent Contractor's Liability. If CONTRACTOR is unable to provide Commercial General Liability Insurance with the four million dollar ($4,000,000) project specific aggregate limits indicated in Section 3.22.2.1 above, or the two million dollar ($2,000,000) per occurrence limits in Section 3.22.2.2 above, CONTRACTOR shall provide an Excess or umbrella option which achieves twice the per occurrence limits. 3.22.2.3 Additional Insured Endorsement. Any general liability policy provided by CONTRACTOR hereunder shall also contain an additional insured endorsement which applies its coverage to RCTC, SAFE, CHP Caltrans and their officers, agents and employees. Any self-funded program and/or insurance policy of any of the foregoing referenced agencies shall be excess only and not contributing to such coverage. 3.22.2.4 Form of General Liability Insurance Policies. All general liability policies shall be written to apply to all bodily injuries, including death, property damage, personal injuries and other covered loss, however, occasioned, occurring during the policy term, and shall specifically insure the performance by CONTRACTOR of that part of the indemnity agreement contained in this Contract relating to liability for injury to or death of persons and damage to property per project, • per location aggregate endorsement. If the coverage contains one or more aggregate • limits, a minimum of 50% of any such aggregate limit must remain available at all times; 17336.0002A \6030198.4 14 29 • • • if over 50% of any aggregate limit has been paid or reserved, SAFE may require additional coverage to be purchased by CONTRACTOR to restore the required limits. CONTRACTOR may combine primary, umbrella and as broad as possible excess liability coverage to achieve the total limits indicated above. Any umbrella or excess liability policy shall include the Additional Insured Endorsement described above. 3.22.3 Comprehensive Automobile Liability Insurance. CONTRACTOR shall procure Comprehensive Automobile Liability Insurance written for bodily injury, including death, and property damage, however occasioned occurring during the policy term, in the amount of not less than one million dollar ($1 ,000,000), combined single limits per occurrence, applicable to all owned, non-owned and hired vehicles. This coverage shall include contractual liability. 3.22.4 Statutorv Worker's Compensation and Employer's Liability Insurance. CONTRACTOR shall maintain a policy of California Worker's Compensation coverage in statutory amount and Employer's Liability coverage for not less than one million dollars ($1 ,000,000) per occurrence for all employees of CONTRACTOR engaged in services or operations under this Contract. CONTRACTOR's policy shall contain the following provision, or CONTRACTOR shall provide endorsements on forms approved by SAFE to add the following provision to its insurance policy: the insurer shall agree to waive all rights of subrogation against SAFE, RCTC, CHP, Caltrans and the members of their Board of Directors and their officers, agents, employees and volunteers. Coverage shall include the following endorsements: 3.22.4.1 Broad Form All -States endorsement. 3.22.5 Subcontractor's Insurance. CONTRACTOR shall make certain that any and all subcontractors hired by the CONTRACTOR are insured in accordance with this Contract. If any subcontractor's coverage does not comply with the foregoing provisions, CONTRACTOR shall indemnify and hold SAFE, RCTC, CHP and Caltrans harmless of and from any damages, loss or cost or expense pursuant to Section 3.21, Indemnification, incurred by any of them as a result thereof. 3.22.6 General Provisions. 3.22.6.1 Evidence of Insurance. CONTRACTOR shall, as soon as practicable following the placement of insurance required hereunder, but in no event later that the effective date of this Contract, deliver to SAFE certificates of insurance evidencing the same, together with appropriate separate endorsements thereto, evidencing that CONTRACTOR has obtained such coverage for the period of this Contract. CONTRACTOR shall deliver certified copies of the actual insurance policies specified herein, within thirty (30) days after commencement of work. Thereafter, copies of renewal policies, or certificates and appropriate separate endorsements thereof, shall be delivered to SAFE within thirty (30) days prior to the expiration of the term of any policy required herein. CONTRACTOR shall permit SAFE at all reasonable times to inspect any policies of insurance of CONTRACTOR which CONTRACTOR has not delivered to SAFE. 17336.0002A\6030198.4 15 30 3.22.6.2 Claims Made Coverage. If coverage is written on a • "claims made" basis, the Certificate of Insurance shall clearly so state. In addition to the coverage requirements specified above, such policy shall provide that: a. The policy retroactive date coincides with or preceded CONTRACTOR's commencement of work under this Contract (including subsequent policies purchased as renewals or replacements). b. CONTRACTOR will make every effort to maintain similar insurance during the required extended period of coverage following expiration of this Contract, including the requirement of adding all additional insureds. c. If insurance is terminated for any reason, CONTRACTOR shall purchase an extended reporting provision of at least two (2) years to report claims arising in connection with this Contract. d. The policy allows for reporting of circumstances or incidents that might give rise to future claims. 3.22.7 Failure to Obtain or Maintain Insurance: SAFE Remedies. CONTRACTOR's failure to procure the insurance specified herein, or failure to deliver certified copies or appropriate certificates of such insurance, or failure to make. the • premium payments required by such insurance, shall constitute a material breach of this Contract, and SAFE may, at its option, obtain and pay for such insurance and deduct from payments due to CONTRACTOR such amounts paid, or terminate this Contract for any such default by CONTRACTOR. 3.22.8 No Litigation of Obligations. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the CONTRACTOR, and any approval of said insurance by SAFE or its insurance contractor(s), are not intended to or shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the CONTRACTOR pursuant to this Contract, including, but not limited to, the provisions concerning indemnification. 3.22.9 Notice of Cancellation of Change of Coverage. All insurance and the certificates of insurance provided by CONTRACTOR must evidence that the insurer providing the policy will give SAFE thirty (30) days written notice, at the address shown in Section 3.30, Notices, of this Contract, in advance of any lapse, cancellation, reduction or other adverse change respecting such insurance. 3.22.1 0 Qualifvino Insurer. All policies of insurance required hereby shall be issued by companies which have been approved to do business in the State of California by the State Department of Insurance, and which hold a current policy holder's alphabetic and financial size category rating of not less than A: VIII according to the current Best Current Rating Guide, or a company of equal financial • stability as determined by SAFE. 17336.0002A \6030198.4 16 31 • • • 3.22.11 Review of Coverage. SAFE retains the right at any time to review the coverage, form and amount of insurance required herein and may require CONTRACTOR to obtain additional insurance reasonably sufficient in coverage, form, amount to provide adequate protection against the kind and extent of risk which exists at the time of change in insurance required. 3.22.12 Safety. CONTRACTOR shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the CONTRACTOR 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. 3.23 Prohibited Interests . 3.23.1 Solicitation. CONTRACTOR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Contract. Further, CONTRACTOR 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 CONTRACTOR, any fee, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, SAFE shall have the right to rescind this Contract without liability. 3.23.2 Conflict of Interest. For the term of this Contract, no member, officer or employee of SAFE, during the term of his or her service with SAFE, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. 3.23.3 Conflict of Employment. Employment by the CONTRACTOR of personnel currently on the payroll of SAFE shall not be permitted in the performance of this Contract, 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 CONTRACTOR of personnel who have been on SAFE payroll within one year prior to the date of execution of this Contract, where this employment is caused by, and or dependent upon, the CONTRACTOR securing this or related Contracts with SAFE, is prohibited. 3.24 Equal Opportunity Employment. CONTRACTOR represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, 17336.0002A\6030!98.4 17 32 employee, or applicant for employment because of race, religion, color, national origin, • ancestry, sex, age, disability (including HIV and AIDS), mental disability, medical condition (cancer), marital status, denial of family and medical care leave, or denial of pregnancy disability leave. 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. Employment and Housing Act (Gov. Code Section 12900 et seq.) and the applicable regulations promulgated thereunder (Cal. Admin. Code, Tit 2, Section 7285.0 et seq.): The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, Sec 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this Contract by reference and made a part hereof as if set forth in full. CONTRACTOR shall include the provisions of this Section in all of CONTRACTOR's subcontracts with respect to work under this Agreement, unless exempted by the Regulations. CONTRACTOR shall also comply with all relevant provisions of SAFE's Minority Business Enterprise program, Affirmative Action Plan, or other related SAFE programs or guidelines currently in effect or hereinafter enacted. 3.25 Right to Employ Other CONTRACTORs. SAFE reserves the right to employ other CONTRACTORs in connection with the Services. 3.26 Governing Law. The validity of this Contract and of any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be • governed by and construed with the laws of the State of California. 3.27 Venue. The Parties acknowledge and agree that this Contract was entered into and intended to be performed in Riverside County, California. The Parties agree that the venue for any action or claim brought by any Party will be the Central District of Riverside County. Each Party hereby waives any law or rule of court which would allow them to request or demand a change of venue. If any action or claim concerning this Contract is brought by any third party, the Parties agree to use their best efforts to obtain a change of venue to the Central District of Riverside County. 3.28 Time of Essence. Time is of the essence for each and every provision of this Contract 3.29 Headings. Article and section headings, paragraph captions, or marginal headings contained in this Contract are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.30 Notices. All notices hereunder and communications regarding interpretation of the terms of this Contract or changes thereto shall be given to the respective Parties at the following addresses, or at such other addresses as the respective Parties may provide in writing for this purpose: 17336.0002A\6030198.4 18 33 • • • • CONTRACTOR: Name Title Address City, State Zip Attn: -------- SAFE: Riverside County Service Authority for Freeway Emergencies FSP Program P.O. Box 12008 Riverside, CA 92502-2208 Attn: Brian Cunanan 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. 3.31 Contract Documents and Conflicting Provisions. This Contract consists of, in addition to the Exhibits attached hereto and incorporated by reference herein, the following documents ("Contract Documents"): (1) Request for Proposal No. FSP12-45-045-00, including all of the Exhibits attached thereto and incorporated therein by reference and any amendment or addendum thereto (the "RFP"); and (2) CONTRACTOR's response thereto, including any amendments or addendums ("CONTRACTOR's Proposal"). ·In the event that provisions of this Contract conflict in any way with the provisions of the RFP, and/or CONTRACTOR's Proposal, the terms of this Contract shall control. In the event that the provisions of the RFP conflict with CONTRACTOR's Proposal, the terms of the RFP shall control. Otherwise, the Contract Documents are intended to be complementary. Services required by one of the Contract Documents and not by others shall be performed as required by all. In the event that provisions of any attached Exhibits conflict in any way with the provisions set forth in this Contract, the language, terms and conditions contained in this Contract shall control the actions and obligations of the Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 3.32 Amendment or Modification. No supplement, modification, or amendment of this Contract shall be binding unless executed in writing and signed by both Parties. 3.33 Entire Contract. This Contract contains the entire Contract of the Parties relating to the subject matter hereof and supersedes all prior negotiations, Contracts or understandings. 3.34 Invalidity; Severability. If any portion of this Contract is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.35 No Waiver. Failure of CONTRACTOR 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 17336.0002A \6030198.4 19 34 deemed a waiver or relinquishment of such other right or power at any other time or • times. 3.36 Counterparts. This Contract may be signed in one or more counterparts, any one of which shall be effective as an original document. 3.37 Attorneys' Fees and Costs. If any legal action is instituted to enforce or declare any Party's rights hereunder, each Party, including the prevailing Party, must bear its own costs and attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees directly arising from any third party legal action against a Party hereto and payable under Section 3.21, Indemnification. 3.38 Consent. Whenever consent or approval of any Party is required under this Contract, that Party shall not unreasonably withhold nor delay such consent or approval. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first herein written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: ______________________ _ John J. Benoit, Chair APPROVED AS TO FORM: By: ~--~-------------------Best Best & Krieger LLP, Counsel to the Riverside County Service Authority for Freeway Emergencies 17336.0002A \6030198.4 20 35 [CONTRACTOR'S COMPANY NAME} [LEGAL STATUS OF CONTRACTOR] By: ______________________ _ (Name) (Title) Attest: By: Its: Secretary • • • EXHIBIT "A" Exhibit "A-1" Beat Descriptions Exhibit "A-2" Preliminary List of FSP Holidays • • 17336 0002A \6030198.4 21 36 • • • EXHIBIT "B" Compensation and Payment [INSERT FINAL PRICE PROPOSALS FROM CONTRACTOR'S PROPOSAL] 17336. 0002A \6030198.4 22 37 • • • I 7336,0002A\60301 984 Attachment G-1: BEAT 18 AREA MAP RFP No. 12-45-045-00 Agreement No. 12-45-045-00 RIVERSIDE COUNTY FREEWAY SERVICE PATROL ,Hoghgrove 23 38 Missit-...r. :.:;rovP- J~l~r;::h f\k ReSer~•f! B;;:o:.e fii Moreno iy~~~\~F~~Y;'ti~~~ley Attachment G-2: BEAT NO. 19 AREA MAP RFP No. 12-45-045-00 Agreement No. 12-45-046-00 RIVERSIDE COUNTY FREEWAY SERVICE PATROL Woodcresl Harf~r~ A\prin9s C OtW-d.y ~ark :r~os;tr~~on (;rove !'.:: Mao date •§.20·1·1 Gee~ I~:- I 7336.0002A \6030198.4 24 39 • • • • AGENDA ITEM 7C • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April11,2012 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Brian Cunanan, Multimodal Services Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Lease of Frequencies and Repeaters for Freeway Service Patrol Digital Radio Communications WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1 ) 2) Approve Agreement No. 12-45-071-00 with Lucky's Two-Way Radios (Lucky's) for lease of frequencies and repeaters for Freeway Service Patrol (FSP) digital radio communications for a term of 38 months in an amount not to exceed $25,000; and Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: The Commission, acting in its capacity as the Service Authority for Freeway Emergencies (SAFE), is the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments (referred to as beats) to relieve freeway congestion and facilitate the rapid removal of disabled vehicles and those involved in minor accidents on local freeways. In FY 2010/11, FSP provided nearly 46,000 assists. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 3:00p.m. (1 :00 p.m. on Fridays) to 7:00 p.m. The local CHP provides daily field supervision ·of the FSP tow operators, for both Riverside and San Bernardino County FSP programs, to ensure service performance. Clear communication between CHP, CHP dispatch, and all FSP operators is critical to program operations . Agenda Item 7C 40 DISCUSSION: The FSP program relies heavily on the use of the radio system to transmit communications between CHP and FSP operators. Currently, FSP communications run through an analog radio system. Over the years, the coverage of FSP beat areas and reliability of this analog system has deteriorated. Therefore, a solution was sought by the Commission and San Bernardino Associated Governments (SANBAG), the SAFE for San Bernardino County. Acquiring digital radio has been the goal and came with specific needs. SANBAG took the lead and researched various options for better radio coverage for the FSP program. In partnership with CHP, various providers of digital radio systems were evaluated. An evaluation of the signal strength, coverage, costs, and reliability of the various systems was performed with Bearcom, Fisher Wireless, and Lucky's as well as Riverside County/San Bernardino County. Incomplete radio solutions or higher costs eliminated Bearcom, Fisher Wireless, and County radio systems from consideration. Lucky's provided a comprehensive solution and the coverage needed to support both the Commission and SANBAG FSP programs. In addition, Lucky's is granting the FSP program exclusivity to prevent busy-outs. Busy-outs give CHP officers and FSP operators a busy tone or signal in a time of crisis when all lines are busy. After thorough testing by the FSP CHP officers, they viewed this as the best radio solution that provided the coverage needed. As a result of its assessment, SANBAG is recommending approval of an agreement with Lucky's at its Plans and Programs Committee on March 21 , 201 2, and then its Board on April 4, 2012. Given that the Commission shares CHP FSP officers with SANBAG, maintaining a compatible radio system for both counties is in the best interest of all parties in order to achieve interoperability, ease of use, and operational efficiency. Therefore, staff recommends that the Commission approve Agreement No. 12-45-071-00 with Lucky's for the lease of frequencies and repeaters ( $22 per month per radio unit) for the FSP service in an amount not to exceed $25,000 for a term of 38 months commencing May 1, 2012. Further, Lucky's is a well qualified provider of radio coverage services, and staff has determined that the monthly fee is at a commercially reasonable rate. Upon approval of the Lucky's agreement, all 21 FSP tow trucks and 9 back-up tow trucks will be outfitted with new digital radio equipment. The quality of digital radio will bring more reliable and secure communications between FSP operators and CHP officers. In addition, migrating to this new digital radio system will make the program compliant with Federal Communications Commission mandates requiring the adoption of Narrow Band performance standards to be enforced by January 2013. Agenda Item 7C 41 • • • • I Financial Information I In Fiscal Year Budget: I Yes I FY 2011/12 Amount: I $ 1,056 N/A Year: FY 2012/13 + $23,944 Source of Funds: I State of California Budget Adjustment: I No SAFE DMV Fees N/A GL/Project Accounting No.: 002173 81016 201 45 81002 Fiscal Procedures Approved: ~~ J Date: I 03/19/12 Attachment: Lucky's Two-Way Radio Draft Agreement • • Agenda Item 7C 42 • • • lUCKY'S TWO-WAY RADIOS P.O. Box 7835 Van Nuys, CA 91409 (818) 894-3566 lease Agreement -DRAFT FORM Agreement No. 12-45-071-00 This lease Agreement ("Agreement") is made this ___ day of ___ , 20 __ , by and between lucky's Two-Way Radios, Van Nuys, CA 91409, hereinafter referred to as "lessor", and the Riverside County Transportation Commission acting as the Riverside County Service Authority for Freeway Emergencies, hereinafter referred to as" lessee". 1. For and in consideration of the covenants and conditions herein contained, lessor hereby leases to lessee, and lessee does hereby rent and hire from lessor, the use of lessor's mobile relay station equipment located at Sunset Peak, Santiago Peak, and Sansivine Peak in California ("Premises"). The mobile relay station equipment as defined within this Agreement consists of each site, it's frequencies, its repeaters, wiring, and any other parts related to each site. lessor agrees to make the use of the mobile relay station equipment available to the lessee on a, shared basis for the full term of this Agreement. The lessee agrees and understands that the lessor will not be in any way responsible for downtime on the mobile relay station due to mechanical or electrical failure which includes an act of nature (wind, falling tower, lightning, earthquake, fire, etc.). lessor agrees to repair the mobile relay station in a reasonable time according to the failure. The parties agree that in every instance "reasonable time" means 24 hours with the exception of an unusual circumstance such as an area wide catastrophic event at which time the parties shall discuss timing of repair. 2. In the trunking system, lessee shall have the highest queue of any user of the mobile relay station so that, in any situation, lessee shall have priority access at all times. Trunking repeaters will be set up so that one repeater shall be dedicated to lessee traffic at each site to avoid or prevent a "busy-out" situation. For the purposes of this agreement, the term "busy-out" is defined as a situation where a catastrophic event or any other event occurs that causes all radio channels to become extremely busy, and a busy signal is reached. Due to the fact that this agreement shall be used by law enforcement (California Highway Patrol) for a safety program (Freeway Service Patrol), it is essential that the lessee not reach a "busy-out" signal. 3. lessee shall pay to lessor the sum of $6,336.00 __________________ per year, payable in __ 12 __ installments of __ $528.00 each, payable in advance commencing with the second month's use. Invoice must arrive by the first of the prior month for payment to be turned around with 45 days or the 151 h of the succeeding month. The not-to-exceed amount of this contract is $25,000.00 over a thirty-eight (38) month term which includes a $4,936.00 contingency to be used by the lessor only with written permission by the lessee. Exhibit "B" is incorporated into this Agreement and details payment schedule breakdown. lessee shall pay to the lessor the sum of $1,056.00 concurrently with the execution of this lease as payment for the first and last month's rent. On the 45th day after payment is due the lessee will be delinquent, and service will be disconnected. A $20 reconnection fee will be charged. Because law enforcement is involved in use of lessor's frequencies, prior to service being disconnected and $20 reconnection fee being assessed, lessor shall notify lessee within five business days in writing about the delinquency and allow an additionall0-15 business days for payment turnaround. 43 Agreement No. 12-45-071-00 4. The rental rate specified in paragraph 3 will cover Lessee's use of Lessor's mobile relay station in association • ___ 24 __ units and control stations. An additional fee will be charged for any additional radios. Frequency (s) authorized are: __ Santiago ________ with sub-audible tone of _______ only. Sunset _________ with sub-audible tone of _______ only. __ Sansivine _______ with sub-audible tone of _______ only. 5. The term of this Agreement shall be through June 30' 2015, unless earlier terminiated in accordance with this Agreement. The term shall commence on the date of the installation of Lessee's radio system. 6. Lessee shall submit monthly checks made payable to LUCKY'S TWO-WAY RADIOS, P.O. Box 7835, Van Nuys, CA 91409. 7. Notwithstanding the provisions of preceding paragraph 5, this lease shall terminate upon Lessor's being prevented by the action of the Federal, State, County, or Municipal governments or any other authority from continuing to use the premises in the same manner and for the same purposes for which they are to be used by Lessee pursuant to this Agreement. Lessor shall, within 60 days of such termination, notify and refund to Lessee the prorated amount of monthly fees identified herein for the time period affected by such termination. Either party may, in its own discretion terminate this Agreement by giving sixty (60) days prior written notice to the other. . • 8. The Lessee will be solely responsible for the proper and legal use of all radio equipment at all times. Lessee will comply with all FCC rules and regulations. Lessor shall maintain the mobile relay station equipment at all times in good condition and repair, and in accordance with all federal and state laws, rules, and regulations. 9. Indemnity-Lessee agrees to indemnify, defend, and hold harmless the Lessor and its authorized officers, employees, and agents for any damage caused by the Lessee's use of the Premises during the term of this Agreement, except to the extent any such damages or expenses suffered by the Lessor are the result of the Lessor's negligent or wrongful acts or the acts of any persons acting under or on behalf of the Lessor and/or where the Lessee is found to have no liability by reason of any immunity arising by or from statute or common law in connection with the fulfillment of Lessee's constitutional and statutory public responsibilities, where such indemnification and/or defense is prohibited by law. The Lessor is not responsible for any loss of business or money due to downtime on the mobile relay station. The Lessor will credit the Lessee on a prorated basis for downtime on the mobile relay station only when downtime exceeds 24 hours. Lessee shall notify the Lessor within two hours of its knowledge of such failure. Lessor shall defend, indemnify and hold harmless Lessee and its officers, employees, contractors, and agents for any damages or expenses, other than loss of business, arising out of injury to persons or property to the extent cause by the sole negligence or wrongful acts of Lessor, its employees, agents, or contractors. 10. The distance at which usable radio signals may be transmitted and received by the radio equipment and or • mobile relay station herein under shall be as set forth in Exhibit "A" attached hereto and incorporated herein by reference. Lessee is hereby notified that all radio systems are subject to degradation of service from natural and 44 • • • Agreement No. 12-45-071-00 man-made phenomena such as interference, intermodulation, co-channel interference, power lines, ignition noise and interference from users of the same or adjacent radio frequencies. The Lessor is not responsible for interference due to any of the above or other causes, however will make every effort to resolve the interference, including relocation to another frequency. 11. Lessee will not furnish communication service for hire or render the service to others by use of these frequencies. The foregoing shall not limit Lessee's ability to make the frequencies available for use by contractors of Lessee in the provision of Freeway Service Patrol Services. 12. If Lessee does not make payments stated in paragraph 3 of this Agreement or if Lessee is otherwise in default or in violation of this Agreement and fails to correct such default or violation upon notice by Lessor, Lessor may declare entire unpaid balance immediately due and payable. In the event suit is brought against the Lessee by reason of a default or violation on the part of the Lessee, Lessee hereby promises to pay the Lessor court costs and reasonable attorney's fees. 13. All notices and demands required, or permitted to be given or made hereunder, shall by in writing and shall be deemed duly given upon actual delivery, if delivery is by hand; or upon receipt by the transmitting party of confirmation or answer back if delivery is by facsimile (or e-mail); or five days following receipt of delivery. Each notice to be sent at the address indicated below or to any other address or person that the respective party may later designate by written notice delivered pursuant hereto: Lessee: Lessor: Riverside County Service Authority for Freeway Emergencies 4080 Lemon Street, 3'd Floor Riverside, CA 92501 Attn: Brian Cunanan Phone:951-787-7141 Fax: 951-787-7920 Lucky's Two-Way Radios P.O. Box 7835 Van Nuys, CA 91409 Attn: ______________________ __ Phone: ----------------------- Fax: -------------------------- 14. This Agreement shall be governed by the laws of the State of California and constitutes the entire agreement between the parties and supersedes all prior negotiations, discussions, and preliminary understanding. This Agreement may be amended by the parties as they shall mutually agree in writing. Lessee may not assign this Agreement except with the prior written approval of Lessor . IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates set forth below. 45 RIVERSIDE COUNTY TRANSPORTATION COMMISSION ACTING AS THE RIVERSIDE COUNTY SERVICE AUTHORITY FOR FREEWAY EMERGENCIES By: John J. Benoit, Chair APPROVED AS TO FORM: By: Best Best & Krieger LLP General Counsel 46 Agreement No. 12-45-071-QO • LUCKY'S TWO-WAY RADIOS By: Name: Title: • • Agreement No. 12-45-071-00 • EXHIBIT A DISTANCES AT WHICH USABLE SIGNALS SHALL BE TRANSMITIED AND RECEIVED BY THE RADIO EQUIPMENT AND/OR MOBILE RELAY STATION At minimum, the following highway segments and a 2mile radius around the length of these segments shall be covered. Riverside: (each in both directions) RVBeat #1-SR-91 from Orange County line to Lincoln Ave. RVBeat #2-SR-91 from Lincoln Ave. to Magnolia Ave. RVBeat #4-SR-91 from Magnolia Ave. to 60/91/215 RVBeat #7 -SR-60 from Milliken St. to Main St. RVBeat #8 -SR-60/215 Interchange to Theodore St. RVBeat #18 -1-215 from Riverside County line to Alessandro RVBeat #19 -1-215 from Alessandro to SR-74/4th St . • RVBeat #25 -1-15 from Hidden Valley Pkwy. to SR-60/1-15 Interchange RVBeat #26 -1-15 from Hidden Valley Pkwy. to Temescal Canyon Rd. 1-15 from Temescal Canyon Rd. to Temecula Parkway 1-215 from SR-74/41h St. to 1-15 San Bernardino: (each in both directions) SBBeat #1-1-10 from Indian Hill (Los Angeles County line) to Haven Avenue SBBeat #2 -1-10 from Haven Avenue to Sierra Avenue SBBeat #3 -1-10 from Sierra Avenue to Waterman Avenue SBBeat #4-SR-60 from Reservoir Street (Los Angeles County line) to Milliken Avenue SBBeat #5 -1-15 from Jurupa Street (Riverside County Line) to Summit Avenue SBBeat #6 -1-215 from Center Street (Riverside County line) to 2nd Street SBBeat #7-1-215 from 2nd Street to Palm/Kendall Avenue SBBeat #8-1-10 from Waterman Avenue to University Avenue SR-210 from LA County Line to the 1-10 Freeway 1-15 from Summit Avenue to Nisqualli Road in Victorville • 1-215 from Palm/Kendall Avenue to 1-15/1-215 interchange 1-10 from University Avenue to Riverside County Line. 47 Agreement No. 12-45-071-00 • EXHIBIT B Payment Schedule Overview of Contract 12-45-071-00 with Lucky's Two-Way Radios for FSP digital radio frequencies Contract Term: May 1, 2012 -June 30, 2015 Monthly Number Fiscal Year Number of months rate of units Total cost FY 11/12 2 $22.00 24 $1,056.00 FY 12/13 12 $22.00 24 $6,336.00 FY 13/14 12 $22.00 24 $6,336.00 FY 14/15 12 $22.00 24 $6,366.00 Contingency $4,936.00 TOTAL 38 $22.00 24 $25,000.00 RCTC shall pay first and last months payment at commencement of contract per the contract. Compensation is based on a per month per active mobile unit radio rate of $22.00. • Contract not to exceed $25,000.00 • 48 • AGENDA ITEM 70 • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April11,2012 TO: Riverside County Transportation Commission FROM: Brian Cunanan, Commuter and Motorists Assistance Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement with Trillium Solutions, Inc. for Google Transit Data Feed Services Supporting the Inland Empire 511 System STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 11-41-142-01, Amendment No. 1 to Agreement 11-41-142-00, with Trillium Solutions, Inc. (Trillium), for Google Transit data feed services for the Inland Empire 511 (IE511) system in an amount not to exceed $60,000; and 2) Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission . BACKGROUND INFORMATION: The Commission, in partnership with the San Bernardino Associated Governments (SANBAG), operates and maintains the IE511 traveler information system, which launched in April 2010. The system provides motorists with access to real-time freeway travel information and incident information on Southern California highways via the telephone service by dialing 511 from any land line or cell phone or accessing the map on the companion website, (www.ie511.org). IE511 is designed to promote mobility by fostering more informed travel decisions to avoid congestion, as well as provide more choices for the individual commuter by identifying all travel options available to Riverside and San Bernardino County residents. Inland Empire commuters can access transit, Metrolink, carpooling, vanpooling, carpool lane, and toll road information, as well as detailed park and ride lot information for the entire Southern California region. Since its launch, IE511 has serviced over 887,000 telephone users and over 503,000 online users. Traffic information is by far the most requested information; however, the range of information provided by IE511 is multimodal and includes 49 Agenda Item 70 ridesharing, and bus and rail trip planning. Google Transit, a free public • transportation planning tool that combines agency data with Google Maps, serves as the trip planning engine for IE511. DISCUSSION: Transit agencies wanting to partner with Google and share its transit data (i.e. transit stop, route, schedule, and fares) through Google Transit must establish a data feed according to Google's General Transit Feed Specification (GTFS). Currently, the Commission contracts with Trillium to help its public transit operators to process, validate, and host a transit data feed according to the google specification. This includes a bulk license for the web-based WebSchedule GTFS publishing tool, as well as support and maintenance services for stakeholders that need help or instructions for making data updates. As a partner in IE511, SANBAG is in need of such services and, as a short term solution, would like to utilize the Commission's agreement with Trillium to provide some of its transit agencies in San Bernardino County with an approved GTFS feed so that those operators can be part of the IE511 transit trip planner feature. The total costs for Barstow Transit, Morongo Basin Transit Authority, Mountain Area Regional Transit Authority, Needles Transit, and Victor Valley Transit Authority is $12,000 per year. This includes $10,200 for a WebSchedule license, support and maintenance services, and $1,800 for data update services if needed each year. • The Commission's current Agreement No. 11-41-142-00 with Trillium is for an amount not to exceed $35,000 and expires on June 30, 2016. SANBAG will in return reimburse the Commission for all of the actual costs associated with providing this service to the SAN BAG transit agencies. Future IE511 /Rideshare agreements will build in these reimbursable Trillium costs. RECOMMENDATION: IE511 has proven to be a valuable tool for Inland Empire residents and constituents for managing their travel and commute efforts. IE511 's transit trip planning functionality promotes mobility and makes it easier for users seeking transit information to get information specific to their schedule and commute route. As such, staff recommends amending the Trillium agreement to include Google Transit data feed services for the SANBAG transit agencies mentioned above. This will increase the Trillium contract to a not to exceed amount of $95,000. The Commission will invoice SANBAG against the "Special Projects" project of the current IE511 /Rideshare reimbursable agreement, which contains appropriate budget authority. Agenda Item 70 50 • • Financial Information In Fiscal Year Budget: I Yes I I FY2011!12 Amount: j $12,000 N/A Year: FY 2012/13+ $48,000 Source of Funds: I Local Agency Reimbursement Budget Adjustment: J N/A GL!Project Accounting No.: 632113 65520 263 41 65520 Fiscal Procedures Approved: ~~ I Date: I 03/15!12 • • Agenda Item 7D 51 • AGENDA ITEM 7E • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April11,2012 TO: Riverside County Transportation Commission FROM: Edda Rosso, Capital Projects Manager Shirley Medina, Programming and Planning Manager THROUGH: Anne Mayer, Executive Director Agreement with the Federal Transit Administration for the Project SUBJECT: Construction Grant Agreement for the Perris Valley Line and Programming of Congestion Mitigation Air Quality Funds STAFF RECOMMENDATION: This item is for the Commission to: 1) 2) 3) Approve Agreement No. 12-33-073-00 with the Federal Transit Administration (FT A) for the Project Construction Grant Agreement (PCGA) for the Perris Valley Line (PVL) extension commuter rail project; Approve programming $47,611,000 of Congestion Mitigation and Air Quality (CMAQ) funds for the PVL construction phase; and Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND IN FORMAT/ON: The FT A PCGA is a special type of grant agreement FT A uses for making a major investment in a new fixed guideway system -rapid rail, light rail, commuter rail, exclusive bus/high occupancy vehicle lanes, or ferry service -or an extension to an existing fixed guideway system. PCGAs are authorized under federal transit law and are the designated means for providing Small Starts funds to projects with a federal maximum share of $75 million. A PCGA establishes the terms and conditions for federal financial participation in a Small Starts project; defines the project; sets the maximum amount of federal Small Starts funding for the project; covers the period of time for completion of the project; and facilitates efficient management of the project in accordance with applicable federal statutes, regulations, and policy. In preparation for the Commission's submittal of the PCGA for the PVL, pending approval of the federal environmental document expected later this month, staff is requesting the Commission's approval to have the Executive Director sign and submit Agreement No. 12-33-073-00 . Agenda Item 7E 52 An element of the PCGA is the financial plan, which must identify the funding for • the project. For the PVL, construction funding, including construction management costs is $179.561 million and is proposed to be funded with federal CMAQ, FTA Small Starts, State Transportation Improvement Program (STIP), and Measure A funds in the following amounts: CMAQ $ 47,611,000 FT A Small Starts 73,040,000 STIP 52,978,000 Measure A 5,932,000 Total $ 179,561,000 The Commission has been successful in obtaining FT A Small Starts funding commitments through grants designated either through federal legislation or in the federal budget. STIP funds will be allocated by the California Transportation Commission once the final environmental document is approved. At the March 2012 meeting, the Commission approved programming Proposition 1 B State-Local Partnership Program (SLPP) funds for construction of the PVL. However, a new labor compliance law (AB 436) has the potential of increasing the construction costs of SLPP projects by requiring a payment to the Department of Industrial Relations for labor compliance monitoring (monitoring of federal wage • rates). AB 436 applies to future state bond projects and will require additional monitoring and modification to standard contract language. Since AB 436 is a new law and specific guidance is forthcoming, staff determined CMAQ funds would be better suited for the PVL project rather than SLPP funds and recommends programming of $47.611 million of CMAQ funds on the project in place of the SLPP funds. Financial Information In Fiscal Year Budget: I N/A I Year: I FY 2012/13 + Amount: I $47,611,000 Source of Funds: lcMAQ Budget Adjustment: I N/A GL!Project Accounting No.: 003823 414 41403 221 33 41401 Fiscal Procedures Approved: ~~ I Date: I 03/27/12 Attachment: Draft PCGA Agenda Item 7E 53 • • • • UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION PROJECT CONSTRUCTION GRANT AGREEMENT (FTA PCGA-XX-XXXX, Date) On the date the authorized official of the Federal Transit Administration (FTA), U.S. Department of Transportation, signs this Project Construction Grant Agreement, the Government (FTA) has awarded Federal assistance in support of the Project described below. Upon execution of this Project Construction Grant Agreement by the Grantee named below, the Grantee affirms this Award by the Government (FTA) and enters into this Project Construction Grant Agreement with FTA. The following documents are incorporated by reference and made part of this Project Construction Grant Agreement: (1) "Federal Transit Administration Master Agreement," FTA MA(18), October 1, 2011, http:/ /www.fta.dot.gov/documents/18-Master.pdf; (2) The Certifications and Assurances applicable to the Project that the Grantee has selected and provided to FTA; and (3) Any Award notification containing special conditions or requirements, if issued . 1 54 • • • FTAAWARD The Government (FTA) hereby awards a Project Construction Grant as follows: Project Number(s): CA-03-0812 Grantee: Riverside County Transportation Commission Statutes Authorizing the Project: 49 U.S.C. §§ 5309(b), 5309(e) Baseline Cost Estimate: $247,215,735 Estimated Net Project Cost: $74,999,999 Maximum FTA Amount Awarded [including this amendment]: $74,999,999 Amount of This FT A Award: $73,039,999 Maximum Federal Small Starts Financial Contribution: $74,999,999 Maximum Percentages of FTA Participation: 82.5% Maximum Percentages of Section 5309 Small Starts Participation: 30.34% Dates of U.S. Department of Labor Certifications of Public Transportation Employee Protection Arrangements: Original Project (or Amendment) Numbers CA-03-0812 Revenue Operations Date: November 2014 Certification Dates [Qate) Project Description: The Project is a 24-mile extension of the 512-mile Southern California Regional Rail Authority (SCRRA) Metrolink commuter rail system. The Project will extend the Metrolink 91 Line, currently providing service from Riverside to downtown Los Angeles via Fullerton. The anticipated 2014 opening year operating schedule will include a total of twelve daily trips, with six from the South Perris Station to the Riverside-Downtown Station (with continuing service on the Metrolink 91 Line to Los Angeles (LA) Union Station) and six from LA Union Station to the South Perris Station. Upon start up, the Project will have four new stations. For a more detailed description, see Attachments 1 and 2 to the Project Construction Grant Agreement. 2 55 TABLE OF CONTENTS Project Construction Grant Agreement Terms and Conditions Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 11 Section 12 Section 13 Section 14 Section 15 Section 16 Section 17 Execution by Grantee Definitions Previous Federal Grants and Documents Baseline Cost Estimate Net Project Cost Estimated Net Project Cost Limitations of the Federal Funding Commitment Federal Funding-Other Sources Local Financial Commitment-Capital Costs Authorization to Advance Project Without Prejudice Local Financial Commitment-Operation and Maintenance Costs Obligation to Complete the Project Baseline Schedule Revenue Operations Date Environmental Protection Applicable Law and Federal Requirements Notices Creation, Contents and Execution of the Agreement and Amendments to the Agreement Affirmation by Grantee's Attorney Attachment 1 Attachment 1A Attachment 1B Attachment 2 Attachment 3A Attachment 3B Attachment 4 Attachment 5 Attachment 6 Attachment 7 Attachment 8 Scope of the Project Map of Project Vicinity Map of Project Footprint Project Description Baseline Cost Estimate Project Budget Baseline Schedule Prior Grants and Related Documents Schedule of Federal Funding Environmental Mitigation Before and After Study 3 56 • Page 4 5 6 7 7 7 8 8 8 9 9 10 10 10 11 11 11 12 13 • 14 15 16 17 18 21 24 25 26 27 28 29 • • • • UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAl TRANSIT ADMINISTRATION PROJECT CONSTRUCTION GRANT AGREEMENT Terms and Conditions THIS FEDERAL TRANSIT ADMINISTRATION PROJECT CONSTRUCTION GRANT AGREEMENT (Agreement) is entered into by the Riverside County Transportation Commission (Grantee) and the United States of America, acting through the Federal Transit Administration of the United States Department of Transportation (FTA or Government). WHEREAS, the Grantee has determined through its local planning process that construction and acquisition of the Perris Valley Line Extension Commuter Rail Project (hereafter, the "Project") will serve the transportation needs for western Riverside County; WHEREAS, the Grantee has developed a Financing Plan, as defined herein, using a combination of local, state, and Federal funds to finance the costs of the Project, and in accordance with that plan, has requested a Grant, as defined herein, of Federal financial assistance for the Project; WHEREAS, the Government has determined that the Project is based on the results of planning and alternatives analysis; justified based on the Government's review of the local land use policies supportive of public transportation, the cost effectiveness of the Project, and the Project's effect on local economic development; and supported by an acceptable degree of local financial commitment; WHEREAS, the Government has decided to enter into this Agreement to support the Grantee's development and construction of the Project up to a Maximum Federal Small Starts Financial Contribution of $74,999,999 in capital funds, subject to all the terms and conditions herein; and WHEREAS, the Government and the Grantee have agreed that their respective duties and responsibilities for completion of the Project shall be determined by and under the terms and conditions of this Agreement and this Agreement shall be recognized as the sole understanding between the Government and the Grantee in consideration of the mutual promises set forth herein; THEREFORE, the Government and the Grantee agree to the specific terms, conditions, and provisions set forth in this Agreement including, in particular, the specific terms of the following Sections and Attachments . 4 57 SECTION 1. DEFINITIONS "Agreement" means this Federal Transit Administration Project Construction Grant Agreement (PCGA) and consists of all parts and documents identified in Section 17 of this Agreement, "Creation, Contents and Execution of Agreement and Amendments to the Agreement," and will include all future addenda, substitutions, modifications and amendments as and when legally executed and effective. "Baseline Cost Estimate" means the document described in Section 3 of this Agreement and set forth in Attachment 3A to this Agreement. The Baseline Cost Estimate reflects the total anticipated cost of the Project as of the Date of this Agreement. "Complete the Project" means to accomplish all of the scope and activities of the Project as described in Attachment 1 to this Agreement, "Scope of the Project," and Attachment 2 to this Agreement, "Project Description." "Date of this Agreement" means the date the Government awards this Project Construction Grant Agreement. "Estimated Net Project Cost" means the amount that is calculated by subtracting the cost that can reasonably be financed from the Grantee's revenue from the total anticipated cost of the Project as reflected in the "Baseline Cost Estimate," Attachment 3A to this Agreement. The Estimated Net Project Cost is set forth in Section 5 of this Agreement. "Financing Plan" means the plan accepted by the Government that describes the Grantee's financial condition and demonstrates the Grantee's capability to Complete the Project, and to maintain and operate the Project together with its existing public transportation system. This Financing Plan includes all explanatory, supporting and supplementary documents, commitments, and agreements accepted or approved and relied upon by the Government. "Government" means the United States of America, acting through the Federal Transit Administration of the United States Department of Transportation. "Grantee" means Riverside County Transportation Commission. "Grant" means the obligation and award of Federal financial assistance pursuant to 49 U.S.C. Chapter 53. "local Share" means that portion of the Grantee's local financial commitment that is the Grantee's required share of the Net Project Cost under this Agreement. "Master Agreement" means the standards terms and conditions applicable to recipients of Federal financial assistance pursuant to 49 U.S.C. Chapter 53. The Master Agreement is updated and published annually. The Master Agreement is incorporated by reference and made part of this Agreement; in Federal Fiscal Year 2012, it is identified as FTA Form MA(18)(0ctober 1, 2011). 5 58 • • • • • • "Maximum Federal Small Starts Financial Contribution" means the limit of Federal capital "Small Starts" financial participation in the Project through the award of funding pursuant to 49 U.S.C. § 5309(e). The amount of the "Maximum Federal Small Starts Financial Contribution" is set forth in Section 6 of this Agreement, "limitations of the Federal Funding Commitment." "Net Project Cost" means the cost of the Project that cannot reasonably be financed from the Grantee's revenues. "Project" means the public and multi-modal transportation improvements the Grantee has promised to carry out as a condition of this Project Construction Grant. A description of the Project is set forth in Attachment 1, "Scope of the Project." Activities to carry out the project scope are set forth in Attachment 2, "Project Description." "Project Costs" mean all costs eligible for Federal financial participation under the terms of this Agreement and consistent with the cost principles set forth in Section 9 of the Master Agreement, "Payments." "Revenue Operations Date" means the date certain by which the Grantee shall commence revenue operations of the Project as defined in Section 13 of this Agreement. SECTION 2. PREVIOUS FEDERAL GRANTS AND DOCUMENTS (a) Federal law, procedure, and policy require the completion of a project development process and environmental and historic preservation reviews prior to the award and execution of this Agreement. Prior grants of Federal funds for these reviews and other project activities are described in Attachment 5 to this Agreement. These grants (and any other previous documents identified in Attachment 5, including Letters of No Prejudice) are incorporated by reference and made part of this Agreement, except for the terms and conditions thereof specifically superseded by this Agreement. Further, in executing this Agreement, the Grantee assures the Government that the certifications and assurances made by the Grantee (or on behalf of the Grantee by a third party) upon which the Government relied in these prior actions were made in good faith and to the best of the Grantee's knowledge and belief, and that the Grantee has no present knowledge of facts or circumstances substantially affecting the continued validity of these certifications and assurances that the Grantee has not formally conveyed to the Government prior to the Government's awards of funding set forth in this Agreement. (b) This Agreement does not discharge or rescind any of the terms, conditions, or obligations establish€d under the documents set forth in Attachment 5 unless specifically stated otherwise herein. Furthermore, the terms, conditions and obligations of this Agreement take precedence over the provisions of all prior agreements between the Government and the Grantee related to the Project and will be controlling for all actions related to the Project taken after the Date of this Agreement, unless specifically stated otherwise herein. (c) No amendments will be sought or approved to increase the amount of funds in the prior Grants listed in Attachment 5 beyond the amounts described in this Agreement as available to the Project . 6 59 SECTION 3. BASELINE COST ESTIMATE The Baseline Cost Estimate (BCE) is set forth in Attachment 3A to this Agreement. The BCE is comprised of all activities necessary to Complete the Project and reflects the total anticipated costs of the Project as of the Date of this Agreement. The BCE is derived from the most recent cost estimates of the individual third party contracts and force account work and reflects appropriate escalation and contingencies, and the milestones set forth in Attachment 4 to this Agreement, "Baseline Schedule." The BCE will not be amended or modified during the construction of the Project. The Government will use the BCE to monitor the Grantee's construction of the Project and the Grantee's compliance with certain terms and conditions of this Agreement. The Grantee will submit cost reports as required by this Agreement and in a format consistent with the units set forth in the BCE so that the Government can, with reasonable diligence, reconcile the Grantee's reports with the BCE. SECTION 4. NET PROJECT COST (a) This Grant is to assist in the payment of actual eligible costs within the scope of the Project under this Agreement, minus any amount that can reasonably be financed from revenues of the Grantee. If the funds awarded under this Grant exceed the amount necessary to finance the Federal share, the excess funds are not available to the Grantee for payment of costs beyond the scope of this Project supported by this Grant. (b) The portion of the Net Project Cost that may be financed by the Government with capital small starts funds may not exceed the amount of the Maximum Federal Small Starts Financial Contribution for this Project as stated in Section 6 of this Agreement, "Limitations of the Federal Funding Commitment." (c) The Grantee acknowledges that Federal funds may be used only to reimburse eligible expenses for the Project. Should the Government determine that Federal funds have been used to reimburse any expenses that were ineligible for Federal reimbursement, the Government will direct the Grantee either to reimburse the Government with local funds not already committed to the Project or to reduce the total project costs by the amounts found to have been ineligible. SECTION 5. ESTIMATED NET PROJECT COST (a) The Government's determination to provide financial assistance for the Project is based in significant part upon the Grantee's estimated costs as set forth in the Baseline Cost Estimate, Attachment 3A to this Agreement. The Estimated Net Project Cost reported in Attachme_nt 3A is $74,999,999. (b) The Estimated Net Project Cost financed under this Agreement is limited by the amount of the Maximum FTA Amount Awarded. The amount of the Estimated Net Project Cost and the Maximum FT A Amount Awarded are stated on the first page of this Agreement. The amount reimbursable by the Government is limited to the lesser of either the Maximum FTA Amount Awarded or the maximum percentage of FTA participation permitted by Federal law and regulation. Additional funds will not be provided until a Grant amendment awarding additional funds and amending this Project Construction Grant Agreement is executed. 7 60 • • • • • • SECTION 6. LIMITATIONS OF THE FEDERAL FUNDING COMMITMENT (a) With its Award set forth in this Agreement, the Government obligates $73,039,999 in Federal capital small starts financial assistance for the Project. The sources of this Federal financial assistance are set forth in the "Project Budget," Attachment 3B to this Agreement. These funds are in addition to all previous Federal financial commitments to the development of the Project as set forth in the schedule of "Prior Grants and Related Documents," Attachment 5 to this Agreement. (b) With its Award set forth in this Agreement, the Government also acknowledges its intent to provide Federal capital small starts financial assistance for the Project in addition to the amount set forth in Paragraph (a) of this Section 6. The amount of additional capital small starts funds the Government may provide will not exceed $73,039,999. The anticipated sources Federal financial assistance in this additional amount is listed in Attachment 6 to this Agreement, "Schedule of Federal Funds for the Project." Additional funds obligated pursuant to this Paragraph will be subject to all the terms, conditions, and obligations established by this Agreement. Accordingly, it is expected that the award of additional funds will be processed through amendments to this Agreement. (c) The Maximum Federal Small Starts Financial Contribution for this Project under the capital small starts category of funds is limited to $74,999,999, which is the sum of the amounts set forth in Paragraphs (a) and (b) of this Section 6. SECTION 7. FEDERAL FUNDING-OTHER SOURCES The Maximum Federal Small Starts Financial Contribution specified in Section 6(c) of this Agreement does not include funds from Federal sources other than the capital small starts program under 49 U.S.C. § 5309. Should such other Federal funds be provided for the Project in addition to the Federal capital small starts funds set forth in Attachment 6 to this Agreement, the limitation of the Federal funding commitment set forth in Section 6 of this Agreement shall not apply to those funds. Accordingly, such additional funds shall be excluded from the calculation of the Maximum Federal Small Starts Financial Contribution. Funds awarded pursuant to this Section will be subject to all other terms, conditions and obligations set forth in the Agreement. SECTION 8. LOCAL FINANCIAL COMMITMENT-CAPITAL COSTS (a) As a condition precedent to the Government's Award of this Project Construction Grant, the Grantee has developed and adopted a Financing Plan for funding all Project Costs necessary to Complete the Project. In addition to the amount of Federal funds requested, the Financing Plan includes a statement identifying the state, local and private sources of funding and the amount of funds available for and committed to the Project from each such source. This Financing Plan, as accepted and relied upon by the Government, is hereby incorporated by reference and made part of this Agreement, together with the supporting documentation identified in the Financing Plan, including formal funding agreements and third-party commitments. (b) The Grantee hereby commits and certifies that it will provide funds in an amount sufficient to ensure full and timely payment of Project Costs as necessary to Complete the Project, together with the Federal contribution as identified and limited by Section 6 of this Agreement . 8 61 (c) The Grantee hereby commits and certifies that the Local Share portion of its financing commitment will be provided from funding sources other than Federal funds (except as may otherwise be authorized by Federal statute), receipts from the use of Project facilities or equipment (except as may otherwise be authorized by Federal statute), or revenues of the public transportation system in which such facilities or equipment are used. (d) Given the Estimated Net Project Cost as set forth in Section 5 of this Agreement, the Grantee's financial commitment to the Net Project Cost is estimated to total $43,051,735. This amount constitutes the Local Share needed to match the Maximum Federal Small Starts Financial Contribution for the Project and Other Federal Sources. (e) The Grantee agrees to notify the Government of any change in circumstances or commitments that adversely affects the Grantee's plan to fund the Project Costs necessary to Complete the Project as set forth in the Financing Plan. In its notification, the Grantee shall advise the Government of what actions the Grantee has taken or plans to take to ensure adequate funding resources and reaffirm its commitment to the Government as set forth in Paragraph (b) of this Section 8. SECTION 9. AUTHORIZATION TO ADVANCE PROJECT WITHOUT PREJUDICE The Grantee may incur costs or expend local funds for all phases of the Project as is reasonably necessary to advance the Project prior to an award of Federal financial assistance without prejudice to possible future Federal participation in or reimbursement of the Project Costs to the extent that such costs are incurred in accordance with all applicable Federal requirements and this Agreement. It is understood that the authority conferred on the Grantee to advance the Project without prejudice does not constitute a legal commitment by the Government to obligate and award Federal funds. SECTION 10. LOCAL FINANCIAL COMMITMENT-OPERATION AND MAINTENANCE COSTS (a) As a condition precedent to the Government's Award of this Project Construction Grant, the Grantee has developed and adopted a Financing Plan for funding the future operation and maintenance of the Project that also takes into consideration the Grantee's continuing financial responsibilities to operate, maintain and reinvest in its existing public transportation system. This Financing Plan, as accepted by the Government, is hereby incorporated by reference and made part of this Agreement, together with the supporting documentation identified in the Financing Plan, including formal funding agreements and third-party commitments, and serves to demonstrate stable and dependable funding sources, which are an essential part of the Grantee's Application for this Project Construction Grant. (b) With the Execution of this Agreement the Grantee assures the Government that it has stable and dependable funding sources, sufficient in amount and degree ofcommitment, to operate and maintain its entire public transportation system at an adequate and efficient level of service, including the future operation and maintenance of the Project without additional Federal assistance beyond the amounts set forth in the Financing Plan. The foregoing assurance does not preclude the Grantee from altering service through contracts with private providers of public transportation services. 9 62 • • • • • • (c) The Grantee agrees to notify the Government of any change in circumstances or commitments that adversely affects the Grantee's plan to fund the operation and maintenance costs of the Project as set forth in the Financing Plan. In its notification, the Grantee shall advise the government of what actions the Grantee has taken or plans to take to ensure adequate funding resources and reaffirm its commitment to the Government as set forth in Paragraph (b) of this Section 10. SECTION 11. OBliGATION TO COMPLETE THE PROJECT The Government has no obligation to provide any financial assistance for the Project beyond the Maximum Federal Small Starts Financial Contribution. If the total Federal funding provided under Section 6 of this Agreement, Limitations of the Federal Funding Commitment, is insufficient to undertake revenue operation of the Project and the subsequent activities necessary to Complete the Project, the Grantee agrees to Complete the Project and accepts sole responsibility for the payment of any additional costs (overruns). SECTION 12. BASEliNE SCHEDULE The Baseline Schedule is set forth in Attachment 4 to this Agreement. The Baseline Schedule demonstrates how the Grantee intends to Complete the Project and meet the Revenue Operations Date. The Government will use the Baseline Schedule to monitor the Grantee's construction of the Project and compare planned to actual Project implementation. Accordingly, the Baseline Schedule will not be amended or modified during the construction of the Project, although the actual schedule of the Project may be modified from time to time as necessary and appropriate. The Grantee agrees to notify the Government of any change in circumstances or commitments that may affect the Grantee's ability to achieve the Revenue Operations Date, and what actions the Grantee has taken or plans to take to minimize any further slippage in its construction of the Project. SECTION 13. REVENUE OPERATIONS DATE (a) The Grantee agrees to achieve revenue operations of the Project on or before November 2014, the Revenue Operations Date, in accordance with the terms and conditions of this Agreement. (b) The Revenue Operations Date is a significant term of this Agreement. The Grantee's failure to achieve the operational functions of the Project on or before the Revenue Operations Date will constitute a breach of this Agreement. Upon the Grantee's request, the Government may determine, in its sole discretion, to waive a breach or an anticipatory breach of this Agreement and extend the Revenue Operations Date, provided that there is an unavoidable delay in achieving the operational goals of the Project resulting from an event or circumstance beyond the control of the Grantee, or the Government determines that allowing the delay is in the best interests of the United States and the success of the Project. Requests by the Grantee for waiver of a breach or anticipatory breach of this Agreement and extension of the Revenue Operations Date shall be submitted promptly to the Government, in writing, with appropriate documentation. In the exercise of its sole discretion to waive the breach and extend the Revenue Operations Date, the Government will take into consideration the actions and measures taken by the Grantee to meet its commitment to achieve the operational goals of the Project on or before the scheduled Revenue Operations Date . 10 63 (c) Delays in appropriations of funds from the Congress shall not constitute a basis for extension of the Revenue Operations Date. (d) The Government's consent to extend the Revenue Operations Date pursuant to Paragraph (b) of this Section 13 does not constitute a basis for additional Federal financial assistance beyond the Maximum Federal Small Starts Financial Contribution. SECTION 14. ENVIRONMENTAL PROTECTION As a condition precedent to this Agreement, the Government and the Gr.antee have assessed the environmental impacts of the Project, as required by the National Environmental Policy Act and other applicable law. The results of this assessment and the mitigation measures adopted for this Project are set forth in Attachment 7 to this Agreement, Environmental Mitigation. The Grantee acknowledges that it shall not withdraw or substantially change any of the mitigation measures set forth in either Attachment 7 or the Government's environmental record for the Project without express written approval from the Government. On a periodic basis the Grantee will provide the Government a written report on the Grantee's progress in carrying out these mitigation measures. SECTION 15. APPLICABLE LAW AND FEDERAL REQUIREMENTS All awards of Federal financial assistance for this Project are governed by the Federal statutory, regulatory, and program requirements identified in the Master Agreement, FTA MA(18), dated October 1, 2011, which is incorporated by reference and made part ofthis Project Construction Grant Agreement. The Master Agreement will continue to govern the Project unless and until it is modified by FTA. If neither Federal statute nor regulation nor Federal common law governs the interpretation of the provisions of this Agreement, the state law of the State of California will apply. This provision is intended only to supplement Section 2.c of the Master Agreement, "Application of Federal, State, and Local Laws, Regulations, and Directives." SECTION 16. NOTICES Notices required by this Agreement will be addressed as follows: As to the Government: Leslie T. Rogers Regional Administrator Federal Transit Administration, Region IX 201 Mission Street, Suite 1650 San Francisco, CA 94105 11 64 • • • • • • As to the Grantee: Anne Mayer Executive Director Riverside County Transportation Commission P.O. Box 12008 Riverside, CA 92502-2208 SECTION 17. CREATION, CONTENTS, AND EXECUTION OF THE AGREEMENT AND AMENDMENTS TO THE AGREEMENT (a) This Project Construction Grant Agreement consist$ of the text of this Agreement, the several Attachments to this Agreement, the Master Agreement, the Grantee's application for Federal financial assistance, and the Government's environmental record for the Project. (b) There are several identical counterparts of this Agreement in typewritten hard copy; each counterpart is to be fully executed in writing by the parties and each counterpart is deemed to be an original having identical legal effect. When signed and dated by the authorized official of the Government, this instrument will constitute an Award that should be executed by the Grantee within ninety (90) days of the date of the Government's Award (FTA Award). The Government may withdraw its Award of financial assistance and obligation of funds if this Agreement is not executed within the ninety (90) day period. Upon full execution of this Agreement by the Grantee, the effective date will be the date the Government awarded funding under this Agreement as set forth below. (c) Simultaneous to the execution of this Agreement in typewritten hard copy, the Agreement will be executed by electronic means through FTA's electronic award and management system. To the extent any discrepancy may arise between the typewritten version and the electronic version of this Agreement, the typewritten version will prevail. Any inconsistency between the Grantee's application and the terms and conditions of this Agreement will be resolved according to the clear meaning of the provisions of this Agreement and the Attachments hereto. (d) Amendments to any of the documents referenced in this Section 17 will be made in accordance with the requirements and procedures set forth in FTA Circular 5010.1D, "FTA Project Management Guidelines" (November 1, 2008), as may be amended from time to time. THE GOVERNMENT HEREBY AWARDS THIS PROJECT CONSTRUCTION GRANT THIS DAY OF _____ , 2012. Signature:-------------- Peter M. Rogoff Federal Transit Administrator United States Department of Transportation 12 65 EXECUTION BY GRANTEE The Grantee, by executing this Agreement, affirms this FTA Award; adopts and ratifies all statements, representations, warranties, covenants, and materials the Grantee has submitted to FTA; consents to this Award; and agrees to all terms and conditions set forth in this Agreement. THE GRANTEE HEREBY EXECUTES THIS PROJECT CONSTRUCTION GRANT THIS DAY OF ______ , 2012. Signature: _____________ _ Name: Anne Mayer Title of Grantee Official: Executive Director Name of Grantee Organization: Riverside County Transportation Commission ATIESTED BY: Signature:-------------- Name: Title of Attesting Official: Name of Organization: 13 66 • • • • • • AFFIRMATION BY GRANTEE'S ATTORNEY As the undersigned Attorney for the Grantee, I affirm to the Grantee that I have examined this Agreement and the proceedings taken by the Grantee relating to this Agreement. As a result of my examination I hereby affirm to the Grantee the Execution of the Agreement by the Grantee is duly authorized under State and local law. In addition, I find that in all respects the Execution of this Agreement is due and proper and in accordance with applicable State and local law. Further, in my opinion, this Agreement constitutes a legal and binding obligation of the Grantee in accordance with the terms of the Agreement. Finally, I affirm to the Grantee that, to the best of my knowledge, there is no legislation or litigation pending or imminent that might adversely affect the full implementation of the Project in accordance with the terms thereof. DATED THIS DAY OF------' 2012. AFFIRMED BY: Signature:---------------- Name: Title of Official: Name of Organization: 14 67 • AGENDA ITEM 7F • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 11 , 201 2 TO: Riverside County Transportation Commission FROM: Aaron Hake, Government Relations Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Federal Surface Transportation Reauthorization Update STAFF RECOMMENDATION: This item is for the Commission to receive an update on federal surface transportation reauthorization. BACKGROUND INFORMATION: On March 14, the United States Senate passed S. 1813, "Moving Ahead for Progress in the 21 51 Century (MAP-21 )",by a 74-22 vote. This bipartisan milestone was instantly hailed by the transportation industry across the nation while simultaneously all eyes focused on the House of Representatives, which at the time this report was written, had not decided on a path for its version of a surface transportation bill. The Senate overcame several difficult challenges with non-germane amendments, including attempts to attach prov1s1ons relating to contraception to the transportation bill, the Keystone XL pipeline, and other controversial matters. Senate leadership in both parties allowed for a fairly open amendment process for germane policies proposed by Senators, making for a lengthy process, but ultimately resulting in the movement of the entire bill. MAP-21 is the product of several committees and was spearheaded by Senator Barbara Boxer, Chair of the Environment and Public Works Committee, which has jurisdiction over highway matters. Senator Dianne Feinstein also voted for the final bill and worked on prov1s1ons that attempt to reduce bureaucracy in the delivery of transportation projects. Staff and lobbyists are combing through the final package of amendments adopted into MAP-21 in preparation for a potential conference committee with the House of Representatives, the last opportunity to seek changes in the bill before it is submitted to the President. As stated in previous reports to the Commission, MAP-21 is notable for the following policies supported by the Commission: Agenda Item 7F 68 • • • • Expanded and more flexible Transportation Infrastructure Finance and Innovation Act (TIFIA) program; Increase in formula dollars sent to the Commission for highway projects; A new, albeit small, goods movement program and creation of a national goods movement strategy; and Project delivery streamlining . Meanwhile, the House of Representatives has had little discernible movement on H.R. 7, the bill that narrowly passed the Transportation and Infrastructure (T&I) Committee in February. One sign of progress has been the House's acquiescence to drop a controversial provision in H.R. 7 that would have reversed three decades of precedent in funding public transit through the Highway Trust Fund (HTF) and moving transit to one-time General Fund sources. This destabilization of transit funding was universally decried by the industry and found bipartisan opposition. Aside from the transit provisions, the main debate in the House has focused on the length of the bill and the price tag. House T&l Chairman Representative John Mica (R-FL) has insisted on a five-year bill, which is typical of previous surface transportation bills, arguing that the industry needs longer-term funding stability • and predictability to plan and deliver projects. Indeed, this is a central tenet of the • Commission's legislative platform in Washington. The challenge has been, with the HTF receiving declining receipts from the excise tax on fuels, revenue is not available to sustain today's funding levels for long periods of time without relying on the General Fund. A shorter-term bill, therefore, is less difficult to pay for with offsets for the spending. Thus, the tension within the GOP conference is between those that want a smaller price tag and those that want long-term stability. Democrat support has been non-existent, mainly due to the GOP's process in writing the bill without reaching out or incorporating their input. Also, Democrats have been staunchly opposed for the oil drilling provisions used to pay for the bill. H.R. 7 contains provisions favorable to the Commission including project delivery streamlining that goes beyond what is in the Senate's bill, further increases in local control of formula highway dollars, and a TIFIA program. H.R. 7 also reduces restrictions on tolling and innovative financing. At the time this report was written, the House was wrangling over a short-term extension of current authorizations for the highway and transit programs, as well as the federal excise tax on motor fuels. With the current program expiring on March 31 and the peak of construction season approaching, there is intense pressure to make sure that there is no lapse in funding and averting a shut-down similar to what happened to the Federal Aviation Administration (FAA) last year. Democrats in the House and Senate had been signaling their opposition to a Agenda Item 7F 69 • • • • short-term extension sought by House Republicans to give them enough time to rewrite and pass H.R. 7. This was a tactic to pressure the House to simply pass MAP-21. Staff will orally present the results of this debate and the impact to the Commission. Overall, there is a sense among Congressional leadership that inaction on a transportation bill could spark blame and voter anger towards the faction that stands in the way of passage. In an election year, it seems that both parties in both chambers are sensitive to making sure that progress continues on transportation. All sides are touting the bill as a potential jobs creator; a point that the Commission would agree with. Staff urges Commissioners to be in touch with their Representatives in the House and national associations to which they belong to and encourage swift House action on its version of a highway reauthorization bill so that a conference committee can craft a bill to be sent to the President. The current federal surface transportation program expires March 31 . Agenda Item 7F 70 • AGENDA ITEM 8 ~· • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April 11 , 201 2 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Michael Blomquist, Toil Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: State Route 91 Toll Facility Agreement WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 12-31-067-00 with the California Department of Transportation (Caltrans) for a toll facility within State Route 91 in an amount not to exceed $6,000; and 2) Authorize the Executive Director, pursuant to legal counsel execute the agreement on behalf of the Commission . BACKGROUND INFORMATION: 1 0-Year Delivery Plan and Tolling review, to Due to the passage in 2002 of the 2009 Measure A, in December 2006, the Commission adopted the 2009 Measure A Western County Highway 1 0-Year Delivery Plan ( 1 0-Year Delivery Plan). The 1 0-Year Delivery Plan calls for the development of tolled express lane corridors within SR-91 and Interstate 1 5. Toiling Authority In September 2008, SB 1 316 (Correa) was signed into California law. SB 1316 was jointly sponsored by the Orange County Transportation Authority (OCTA) and the Commission and paved the way for each agency to advance its long-term plan for tolled express lanes within the SR-91 corridor. For OCT A, SB 1316 extended its existing franchise agreement to operate the existing 91 Express Lanes through 2065. For the Commission, SB 1316 provided the Commission with the state tolling authority needed by authorizing for 50 years the charging of tolls for use of tolled express lanes within the SR-91 corridor between the Orange/Riverside County line and 1-1 5. SB 1316 also gave the Commission the ability to sell toll Agenda Item 8 71 revenue bonds, use of toll revenue for other transportation purposes within the SR-91 corridor, and franchise agreement rights and responsibilities. In August 2009, the Commission obtained the federal tolling authority needed for the SR-91 tolled express lanes through the execution of a three-party agreement between the Commission, Caltrans, and the Federal Highway Administration. This agreement addresses the use of toll revenues and annual maintenance requirements. Development of the SR-91 Corridor Improvement Project (SR-91 CIP) The SR-91 CIP will widen the SR-91 through Corona, extend the ex1stmg 91 Express Lanes from the Orange County line to 1-15, improve five local interchanges, reconstruct a portion of the 1 5/91 interchange, and other regular and express lane improvements within the SR-91 corridor. Due to the high priority of delivering these improvements, the SR-91 CIP is being fast-tracked by advancing several work phases concurrently. These concurrent work phases include preliminary engineering, environmental permitting, right of way acquisition, utility planning, interagency agreements, and. design-build (contractor procurement and planning for final design and construction). Design-Build Method of Project Delivery and Cooperative Agreement In March 2010, the California Transportation Commission approved the Commission's use of the design-build method of project delivery for the SR-91 CIP under SB X2 4 and the statewide design-build pilot program. Separately, to minimize the litigation and delay risk of using design-build, the Commission also sought design-build authority through AB 2098 (Miller), which was ultimately passed and signed into law. Commission staff and Caltrans negotiated and reached agreement on a design-build cooperative agreement specific to the SR-91 CIP that addresses roles, responsibilities, and the myriad of foreseeable issues in advance of final design and construction. The Commission approved this design-build cooperative agreement at its July 2011 meeting. Toll Facility Agreement Consistent with the state tolling authority granted through SB 1316, Commission staff and Caltrans have negotiated a toll facility agreement (TFA) for the 50-year period of the Commission's tolled express lanes within the SR-91 corridor. The design-build cooperative agreement described previously governs the Commission/Caltrans relationship from 2012-2017 (design and construction period) Agenda Item 8 72 • • • • • • while the TFA governs from approximately 2017-2067 (operations and maintenance period). The following are some key provisions of this TFA: • Caltrans grants a 50-year lease to Commission for use of the SR-91 median to operate and maintain a tolled express lane system at a cost of $1 0/month; • The Commission is responsible for operating, mainta1n1ng, policing, administering, toll collection, customer service, and all related work for the tolled express lanes; • The Commission will gain Caltrans' approval of a Traffic Operations Plan prior to opening to assure safe and efficient operations consistent with traffic engineering principles; • The Commission shall have authority to impose and collect tolls and fees, and Caltrans shall have no rights or interests in these tolls and fees; • The Commission can establish toll policy and pricing without Caltrans approval; • The Commission can use any operation and toll collection technology compliant with state and federal law, shall coordinate such technology with OCT A, and be consistent with other Commission/OCT A cooperative agreements related to operation of tolled express lanes; • Caltrans retains responsibility· for operation and maintenance of the general purpose lanes; • Each agency shall notify the other of planned maintenance and coordinate to minimize impacts to both tolled express and general purpose lanes; • Future extension of the tolled express lanes, if any, will be governed by then- current design and construction standards and a future cooperative agreement; • • • • • • • • Any future extension, once operational, will be governed by this TFA; The Commission shall prepare a maintenance plan and perform maintenance; Caltrans shall annually certify that the maintenance meets the requirements of the section 1 29 federal tolling agreement; Caltrans and the Commission may enter into a future maintenance agreement whereby Commission pays Caltrans to perform the maintenance of the tolled express lanes; The Commission shall maintain a suitable reserve fund for capital improvements and maintenance for 50 years meeting the Commission's bond financing requirements; The Commission shall contract for police services for the tolled express lanes at a level equivalent to those services provided for the adjacent general purpose lanes; The Commission shall procure and maintain an appropriate level of general liability insurance and name Caltrans as an insured party; At the conclusion of the 50-year lease, the tolled express lanes including all signs, gantries, traffic control devices, video and enforcement equipment, and other equipment used for operation shall become Caltrans' property; and A dispute resolution process is established within the TFA . Agenda Item 8 73 Staff is seeking Commission approval of the TFA and authorization for the • Executive Director to execute the agreement on behalf of the Commission. Financial Information In Fiscal Year Budget: l· N/A j Year: I FY 2017/18- Amount: I $6,000 FY 2066/67 Source of Funds: I Toll Revenue Budget Adjustment: I N/A GL/Project Accounting No.: XXX-31-73001 (Lease expense) Fiscal Procedures Approved: ~~ I Date: I 03/15/12 Attachment: Toll Facility Agreement • • Agenda Item 8 74 • • • Riverside County SR 91 [Add Post-mile] Agreement No. 08-1518 CALTRANS/RCTC TOLL FACILITY AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY AGREEMENT NO. 08-1518 I. Parties and Date. This Toll Facility Agreement ("Agreement") entered into effective on ____ _ 2012, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "Caltrans," and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION, referred to herein as "RCTC." Caltrans and RCTC are sometimes referred to herein, individually, as "Party" and, collectively, as the "Parties". 2. Recitals . 2.1 WHEREAS, RCTC is a county transportation commiSSIOn responsible for planning and implementing transportation improvements within and adjacent to Riverside County. 2.2 WHEREAS, Caltrans is the State agency vested with the ownership of, and which is responsible for the design, construction, maintenance, and operation of the California State Highway System. 2.3 WHEREAS, pursuant to its rights granted under Section 130240, et seq., of the Public Utilities Code; Section 143 of the Streets and Highways Code, Section 6800, et seq., of the Public Contracts Code, and the Section 129 Agreement (defined below) RCTC is studying the possible construction of tolled and non-tolled improvements and the potential operation of a toll facility on State Route 91 in order to improve traffic conditions within and adjacent to Riverside County. 2.4 WHEREAS, Caltrans is the owner of the State Highway System including the right of way over and on which the toll facility may be constructed. Assuming that the above described project is built and concurrent with the commencement of the term of this Agreement, as set forth in Section 4.2(a), Caltrans grants a lease to RCTC for use of the identified portions of the State Highway right of way for the operation and maintenance of the Toll Facility. 2.5 WHEREAS, the Parties have, prior to or concurrent with this Agreement, negotiated and entered into a Design-Build Cooperative Agreement for the potential construction 17336.02100\7011972.3 75 ofthe Initial Toll Facility (defined below) as well as the initial phase ofthe CIP General Purpose • Lanes (defined below). 2.6 WHEREAS, the Parties acknowledge the Ultimate Project (defined below), if constructed at all, will be constructed in phases, with the Initial Toll Facility and the initial phase of the CIP General Purpose Lanes to be constructed pursuant to the Design-Build Cooperative Agreement and any future phases to be constructed pursuant to future agreements to be entered into between RCTC and Caltrans, as further set forth herein. 2.7 WHEREAS, the purpose of this Agreement is to set forth the roles and responsibilities of Cal trans and RCTC as relates to the potential use, maintenance and operation of the Toll Facility, assuming said Toll Facility is built. 2.8 WHEREAS, the Parties acknowledge that full compliance with the California Environmental Quality Act ("CEQA"), the National Environmental Policy Act ("NEPA") and other laws are a precondition to any approval or construction of any portion or phase of the Ultimate Project. 2.9 WHEREAS, the Parties acknowledge and agree that nothing in this Agreement commits RCTC to approving or constructing the Toll Facility, or any portion thereof. 2.10 WHEREAS, the Parties expressly agree that this Agreement does not in fact operate to approve any project or its construction and that RCTC retains the ability to select the "no build" alternative from those alternatives being analyzed through the CEQA and NEPA • environmental review process. NOW THEREFORE, for good and valuable consideration, the receipt ofwhich is hereby acknowledged, it is mutually understood and agreed by RCTC and Caltrans as follows. 3. Definitions. 3.1 A VI. The term "A VI" shall mean a system for automatically identifying vehicles as they pass through a lane of roadway, which may consist generally of (a) Interrogator devices installed in the roadway or on elevated structures located above or hear the monitored roadway; (b) Transponder devices attached to vehicles which contain, and may transmit to an interrogator device, identifying account information; and (c) Any alternative or later generation technology designed to achieve such purpose .. 3.2 Caltrans. The term "Caltrans" shall be defined as the California Department of Transportation. 2 17336.02100\7011972.3 76 • • • • 3.3 Caltrans Parties. The term "Caltrans Parties" shall mean all or any of Caltrans, the designated Caltrans Representative, and any officials, agents and employees ofCaltrans. 3.4 CHP. The term "CHP" shall refer to the California Highway Patrol or any successor agency charged with law enforcement on the State Highway System. 3.5 CIP General Purpose Lanes. The term "CIP General Purpose Lanes" shall refer to those general purpose lanes and related corridor improvements that may be constructed by RCTC in conjunction with construction ofthe Initial Toll Facility and/or as part ofthe Ultimate Project. 3.6 Claims. The term "Claims" shall mean any costs, claims, damages, demands, losses, expenses, suits or actions brought or liability imposed by law on account of death, personal injury or damage to real or personal property. 3.7 Critical Safety Standard. The term "Critical Safety Standard" shall mean a (i) standard adopted and published by the FHW A or Caltrans; (ii) applied to all similarly situated existing State transportation facilities; and (iii) necessary to correct an anticipated or actual imminent and substantial endangerment to life or safety. 3.8 Days. The term "Days" shall be defined as calendar days. 3.9 Design-Build Cooperative Agreement. The term "Design-Build Cooperative Agreement" shall be defined as that certain separate agreement entered into by and between RCTC and Caltrans relating to the parties' respective obligations for the potential design and construction ofthe Initial Toll Facility and the identified non-toll facilities, as the same may be amended from time to time 3.10 FHWA. The term "FHWA" shall refer to the Federal Highways Administration or to any delegatee or successor, as the case may be. 3.1 1 General Purpose Lanes. The term "General Purpose Lanes" shall be defined as those non-tolled, traditional highway improvements, including but not limited to freeway lanes, ramps, shoulders, structures, embankments, cut slopes, drainage facilities, utilities, safety devices, traffic control devices, or signage owned arid operated by Caltrans, including the CIP General Purpose Lanes, once such lanes have been accepted by Caltrans for inclusion into the State Highway System pursuant to the terms of the Design-Build Cooperative Agreement, or a future design-build cooperative agreement for future Phases, as applicable. 3.12 Index. The term "Index" shall be defined as the Consumer Price Index, All Items for Urban Wage Earners and Clerical Workers in the Los Angeles-Riverside-Orange County, California Area, 1982-84=1 00, published by the United States Department of Labor, Bureau of Labor Statistics. 3.13 Initial Toll Facility. The term "Initial Toll Facility" shall be defined as the first portion of the Ultimate Toll Facility being considered for construction by RCTC. The attached Exhibit "A" sets forth a general description of the Initial Toll Facility. 3 17336.02100\70119723 77 3.14 Maintenance Agreement. The term "Maintenance Agreement" shall be defined • as that certain agreement for maintenance of the Toll Facility to be entered into by and between RCTC and either Caltrans or another entity selected by RCTC, assuming the Toll Facility is built, to perform required maintenance of the Toll Facility as further described in this Agreement. 3.15 Maintenance Standards. The term "Maintenance Standards" shall be defined as the then applicable published Caltrans maintenance schedules and standards, the Caltrans Maintenance Manual, or any applicable Caltrans guidance of statewide application, which is in effect at that time, to the same extent and manner that Caltrans is applying the same manual or guidance to the maintenance of its own existing facilities of substantially equivalent size, location and character, including the General Purpose Lanes. 3.16 Major Modifications. The term "Major Modifications" shall be defined as material changes, alterations, modifications, improvements or additions to the Toll Facility or General Purpose Lanes which are proposed to be undertaken by RCTC which are not Phases of the proposed Ultimate Toll Facility. 3.17 Minor Modifications. The term "Minor Modifications" shall be defined as the installation of any new, and not replacement, signs, gantries, and other tolling equipment, traffic control devices and video surveillance and enforcement equipment, and other similar equipment necessary for the safe and efficient operation of the Toll Facility which were not included or accepted as part of the Initial Toll Facility. 3.18: OCTA. The term "OCTA" shall be defined as the Orange County Transportation Authority. 3.19 91 Express Lanes. The term "91 Express Lanes" shall be defined as, jointly, the new Toll Facility being considered for construction in Riverside County and the existing OCT A 91 Express Lanes located in Orange County. 3.20 OCT A 91 Express Lanes. The term "OCT A 91 Express Lanes" shall be defined as the existing four-lane, 1 0-mile high occupancy toll facility constructed in the median of the State Route 91 freeway, between the Orange/Riverside County line and the State Route 55 freeway, which is leased to OCT A by Caltrans and operated by OCTA. 3.21 Phases. The term "Phases" shall be defined as portions of the proposed Ultimate Toll Facility or CJP General Purpose Lanes which may be part of the Initial Toll Facility, assuming said improvements are built, or which may be designed and constructed, in phases, at a later time, if at all. 3.22 RCTC. The term "RCTC" shall be defined as the Riverside County Transportation Commission. 3.23 RCTC Parties. The term "RCTC Parties" shall mean all or any of RCTC, the designated RCTC Representative, and any officials, agents and employees ofRCTC. 4 17336.02100\7011972.3 78 • • • • • 3.24 RCTC-OCT A Cooperative Agreement. The term "RCTC-OCTA Cooperative Agreement" shall be defined as that certain separate agreement negotiated and entered into by and between RCTC and OCTA to address, among other things, relinquishment of OCTA's rights, interests and obligations in the Riverside County portion of the State Highway Route 91 toll lane, and coordination and cooperation in implementing policies, procedures and rules governing the potential construction of the Toll Facility and the mutual operation of the 91 Express Lanes by RCTC and OCTA, assuming the Toll Facility is built. 3.25 Section 129 Agreement. The term "Section 129 Agreement" shall be defined as that certain agreement, dated August 18, 2009, entered into by and among the Federal Highway Administration, United States Department of Transportation ("FHWA"), Caltrans and RCTC. 3.26 State. The term "State" shall mean the State of California. 3.27 Toll Facility. The term "Toll Facility" shall be defined as the Initial Toll Facility, once completed and placed into operation, assuming said facility is built, and any subsequent Phases of the Ultimate Toll Facility, once completed and placed into operation. 3.28 Third Party Claim. The term "Third Party Claim" shall mean a Claim asserted by a person or entity against Caltrans or RCTC other than a Caltrans Party or an RCTC Party. 3.29 Traffic Operations Plan. The term "Traffic Operations Plan" shall have the meaning set forth in Section 5.2 of this Agreement. 3.30 Ultimate Toll Facility. The term "Ultimate Toll Facility" shall be defined as the tolled portion of the Ultimate Project, as further described in Exhibit "A" to this Agreement, as the same may be modified pursuant to the environmental review process for the Ultimate Project under NEPA, CEQA, or pursuant to any other subsequent environmental review. 3.31 Ultimate Project. The term "Ultimate Project" shall be defined as the entire scope of the RCTC State Route 91 Express Lanes and related corridor improvement project proposed to be completed by RCTC, including the Ultimate Toll Facility, the General Purpose Lanes and other non-toll improvements, structures and appurtenances included as part of the Ultimate Project, unless the no-build alternative is selected, as described and depicted in Exhibit "B" to the Agreement, as the same may be modified pursuant to the environmental review process for the Ultimate Project under the NEPA, CEQA, or pursuant to any other subsequent environmental review . 5 17336.02100\70119723 79 4. Use of Caltrans' right of way. 4.1 Grant of Lease. (a) Concurrent with the effective date of the term of this Agreement, as set forth in Section 4.2(a) below, Caltrans hereby grants to RCTC a lease and such other rights, real property interest or authority for RCTC to utilize Caltrans' right of way for the Initial Toll Facility (the "Lease"), assuming said facility is built. The Caltrans right of way subject to the Lease is preliminarily described in Exhibit "C" ("Leased Property"). Prior to commencing toll operations on any segment or Phase of the Initial or ·Ultimate Toll Facility, RCTC shall prepare a draft legal description ofthat segment or Phase ofthe Initial or Ultimate Toll Facility. Upon review and approval of the draft legal description by Caltrans, the approved legal description(s) shall collectively amend and supersede the preliminary description of the Leased Property, as set forth in the attached Exhibit "C", and shall reflect the legal description of the real property interests being leased by RCTC. The Parties shall record an amendment(s) to the Memorandum of Agreement to reflect the amended and superseded legal description, once approved. The Lease shall include any improvements now or hereafter located on the Leased Property. Such rights shall be provided at a cost of $10.00 per month. From and after the date of this Agreement, Caltrans shall not sell, convey, transfer, lease or otherwise diminish or encumber its right, title or interest in the real property required for the Ultimate Toll Facility so as to inhibit its ability to lease said property to RCTC as set forth herein. (b) The parties recognize the rights conveyed by this Agreement including, without limitation, the Lease, may be over, under or on existing State right of way which crosses several local jurisdictions and which is improved with, among other things, an existing State Highway and other improvements such as local roads and utilities. While RCTC is granted exclusive use and possession of the surface of the Leased Property for operation of the Toll Facility, it is understood that this Agreement is subject to all existing rights conveyed to others, including, but not limited to, local entities and utilities, and Caltrans is not obligated to clear, remove, relocate or otherwise extinguish the rights of third parties as a condition of this Agreement. Similarly, this Agreement does not preclude Caltrans from issuing new encroachment permits to third parties nor does it preclude Caltrans from amending or extending the term of existing encroachment permits, provided that RCTC is first provided notice of any new encroachment permits proposed or amendments to existing encroachment permits, is afforded an opportunity to review and consent to the issuance/amendment of such permits and provided that such permits do not materially impact RCTC's use and operation of the Toll Facility. Moreover, this Agreement does not preclude Caltrans from requesting that existing utilities be relocated or preclude Caltrans from causing utilities to be relocated, provided that RCTC is first provided notice and an opportunity to review and consent to such relocation, and provided that such relocation does not impact RCTC's use and operation of the Toll Facility. (c) Care and Protection of State Highways. This Agreement is specifically subject to the terms and provisions of Division 1, Chapter 3 of the Streets and Highways Code 6 17336 02100\7011972.3 80 • • • • (Streets and Highways Code section 660 et seq.) and any subsequent amendment thereto, as may be applicable. (d) The Lease shall initially apply to the Initial Toll Facility. After construction and acceptance of the Initial Toll Facility and initial phase of the CIP General Purpose Lanes, RCTC shall have the option, consistent with the terms of this Agreement, to extend the area subject to the Lease and to apply those other rights, real property interests or authority to the real property within the footprint of, and which is necessary for, the construction and operation of the Ultimate Toll Facility. Upon the exercise by RCTC of such option from time to time, the Parties shall amend this Agreement and the Memorandum of Agreement attached hereto in order to extend RCTC's rights related to the Ultimate Toll Facility, to the extent consistent with this Agreement. 4.2 Term of Use Rights. (a) The term of this Agreement and the rights described above in Section 4.1 (a) shall be fifty (50) years commencing as of the first day on which the Initial Toll Facility opens for public use and toll operations, assuming said facility is built. At the end of the foregoing specified period, RCTC shall have no further authority to impose or collect a toll, and the term of this Agreement shall not be extended, unless authorized by the Legislature. (b) Notwithstanding any other provision of this Agreement, if the "no build" alternative is chosen as a result of the completion of environmental review for the Ultimate • Project, this Agreement shall immediately terminate without liability to either Party. • 4.3 Contingent Upon OCTA Action. This Agreement shall be expressly contingent upon action by OCT A pursuant to Public Utilities Code section 130240, subdivision (k), section 130244, subdivision (g). 5. Operational Issues. 5.1 Operation of Toll Facility. RCTC shall be responsible for the operation of the Toll Facility including, but not limited to, performing, or causing to be performed, the administrative, toll collection, and traffic management activities associated with the operation of the Toll Facility for use by the general public. 5.2 Traffic Operations Plan. (a) RCTC shall, at least sixty (60) business days prior to the first day on which any portion of the Toll Facility opens for public use, submit to Caltrans for its review and, if appropriate, approval, a Traffic Operations Plan. (b) The Traffic Operations Plan will include an operational traffic analysis of the Initial Toll Facility and its interface with the connecting and adjacent public facilities, including any other tolled facilities. The following information and relevant underlying assumptions shall be provided for the peak a.m. and peak p.m. periods and other timeframes in 7 17336.02100\7011972.3 81 which the operation of the Initial Toll Facility changes from that in effect during the peak period • operation and for operating scenarios other than the initial operating scenario: 1. Existing and projected volumes; 11. Types of vehicles allowed or excluded from the Initial Toll Facility; 111. Weaving lengths at each end of the Initial Toll Facility; IV. Enforcement areas and procedures; and v. Delays and queues. (c) RCTC shall be consistent with Caltrans' then-current policies and practices when distributing video feeds to media outlets and internet providers. RCTC shall observe Caltrans' then-current policies and practices when displaying Changeable Message Sign (CMS) with the exception of displaying toll pricing and toll lane advertising. (d) The Traffic Operations Plan is intended solely to assure that the Toll Facility is operated in a safe and efficient manner consistent with applicable traffic engineering principles and the adjacent General Purpose Lanes, and is not intended to in any way infringe upon RCTC's rights as set forth in Sections 5.3 through 5.5 of this Agreement, or any other rights or obligations ofRCTC hereunder or otherwise relating to the Toll Facility. (e) Caltrans shall provide any comments to, or its approval of, the Traffic Operations Plan within twenty (20) business days of RCTC's submission of the plan. Caltrans' approval of the Traffic Operations Plan shall not be unreasonably withheld. (f) The Traffic Operations Plan shall be updated and amended for any subsequent Phase of the Ultimate Toll Facility. 5.3 Tolls: (a) RCTC shall have authority to impose and collect tolls, fees and charges for use of the Toll Facility and entrance onto the Leased Property pursuant to applicable State and federal law. Cal trans shall have no direct right, title and interest in and to the toll revenues. (b) RCTC shall have authority to establish and adjust toll pricing without approval from Caltrans and to collect tolls using A VI tolling technology or other technology chosen by RCTC, provided that any such actions shall be in compliance with applicable State and federal laws and standards and shall be coordinated with OCT A policies and rules pursuant to the RCTC-OCT A Cooperative Agreement. (c) All toll equipment utilized for the Toll Facility shall be compatible with Title 21 or future equivalent standard. 8 17336.02100\7011972.3 82 • • • • • (d) Any wireless communication equipment installed by RCTC shall not interfere or adversely affect the operation of any Caltrans' roadside electronic equipment existing at the time RCTC installs its wireless communication equipment. 5.4 RCTC shall have the sole right to establish policies and rules governing use of the Toll Facility, including toll systems, vehicle occupancy rules, vehicle classifications, tolling policies, business rules, toll rates and evasion/enforcement policies, provided that any such policies and rules shall be in compliance with State and federallaws and shall be coordinated with OCT A policies and rules pursuant to the RCTC-OCT A Cooperative Agreement. 5.5 Safety Investigations and Safety Related Improvements.· (a) Caltrans may, at its sole cost, perform safety investigations and analysis relating to the Toll Facility. Caltrans and RCTC shall cooperatively review the recommendations of the investigations, if any, and jointly determine corrective action necessary, if any, to remedy any identified deficiency or any potential safety enhancement. RCTC shall fund and implement the jointly identified corrective action or enhancement to the Toll Facility. (b) After consultation with RCTC, including the collaboration described in paragraph (c) below, Caltrans may, if the identified safety issue has a safety index that qualifies the proposed improvement project for funding under the SHOPP 201.010 Program, as detailed in Section 4 of the most recent version of the California Highway Safety Improvement Program (HSIP) Guidelines, or any successor guidance published by Caltrans and adopted pursuant to 23 U.S.C. section 152, issue an order to make a modification to the Toll Facility for safety reasons (a "Safety Improvement Order" or "SIO"). (c) Caltrans and RCTC shall work collaboratively on the scope, design and schedule for implementation of Safety Improvement Orders. Caltrans, acting in good faith, shall take into consideration all relevant factors including, but not limited to, the extent of the risk which the modification purports to address, and all concerns of RCTC as the Party responsible for the Toll Facility during the term of this Agreement. RCTC, acting in good faith, shall take into consideration all relevant factors including, but not limited to, the extent of the risk which the modification purports to address, and all concerns of Caltrans as the Party generally responsible for the safety of the State Highway System. (d) Cost for the modificatjons agreed upon in an SIO shall be negotiated between Caltrans and RCTC in good faith, and allocated between each Party based on the SIO to be implemented. (e) The modifications agreed upon shall be implemented by RCTC in accordance with (i) Caltrans' normal time frames for safety enhancements of similar scope; or (ii) the Safety Improvement Order. If RCTC is unable or unwilling to implement an SIO agreed upon by the Parties, Caltrans may unilaterally implement such SIO, and such right shall not be subject to enjoinder per Section 18.6 of this Agreement. Unless otherwise determined pursuant to Section 18.6, RCTC shall reimburse Caltrans for a portion of its actual and reasonable costs associated with the implementation of such SIO, as determined pursuant to paragraph (d) above. 9 I 7336 021 00\7011972.3 83 Caltrans shall assume all liability for any SIO unilaterally implemented by Caltrans, unless the • dispute resolution process set forth in Section 18.6 ultimately results in the determination that the SIO was warranted or appropriate, in which case the provisions of the foregoing sentence shall apply. 5.6 Operation ofGeneral Purpose Lanes. (a) In the case of any major incidents on or blockages of the General Purpose Lanes caused by accidents or debris, Caltrans shall, consistent with available resources and constraints, promptly take reasonable action to assist CHP or the selected law enforcement agency in performing its duties, consistent with the policies and practices of Caltrans and the relevant law enforcement agency, and Caltrans shall be responsible for its own costs related thereto. (b) Caltrans shall be responsible for operation and maintenance of the General Purpose Lanes. (c) Caltrans shall provide RCTC prior written notification of any proposed major maintenance, improvement or other modifications to the General Purpose Lanes and shall coordinate the same with RCTC in order to minimize any disruptions to operation of the Toll Facility and to minimize potential impacts of such activities on the Toll Facility. 5.7 Traffic Management-RCTC Rights and Responsibilities. (a) RCTC shall be responsible for traffic management within the Toll Facility • and towing in response to incidents located within the Toll Facility. Motorists shall be notified of any closures of the Toll Facility through RCTC owned CMS or similar means. The Caltrans Traffic Management Centers located in San Bernardino (District 8) and Orange (District 12) counties shall be notified of any closure of the Toll Facility so that Caltnins can broadcast such closure through it Traveler Information System and ITS field elements. (b) The Parties agree that RCTC is authorized to establish and implement additional safety policies, as RCTC deems necessary, for the Toll Facility in addition to those required by law and this Agreement. Such additional safety policies shall be consistent with applicable law. Oversize, overweight and overlength restrictions set by RCTC for the Toll Facility shall be coordinated with OCTA's policies pursuant to the RCTC-OCTA Cooperative Agreement, and shall be included in the Traffic Operations Plan. Oversize, overweight and/or overlength permits shall not be issued by RCTC for vehicles using the State Highway System. (c) Operations of the Toll Facility may be interrupted as RCTC may deem necessary or advisable for reasons of, among other things, construction, repair, maintenance, improvement, modification, security, emergency and public safety. RCTC shall notify Caltrans five (5) days in advance of any planned closure of the Toll Facility. Notification of planned closures shall be made to the Caltrans Traffic Management Centers located in San Bernardino (District 8) and Orange (District 12) counties. 10 17336 02100\7011972.3 84 • • • • (d) In the case of any major incidents on or blockages of the Toll Facility caused by accidents or debris, RCTC shall, consistent with available resources and constraints, promptly take reasonable action to assist CHP or the selected law enforcement agency in performing its duties, consistent with the policies and practices of RCTC and the relevant Jaw enforcement agency, and RCTC shall be responsible for its own costs related thereto. (e) As part of its traffic management activities, RCTC shall provide for the real time sharing of operational data including, but not limited to, traffic volumes, video surveillance feeds, loop detector data and changeable message board data through Caltrans' existing data collection systems. RCTC shall provide Caltrans with traffic volume, occupancy and other data related to the Toll Facility for use in state-wide reports and engineering studies. 5.8 Changes in Standards. (a) Caltrans, after coordination and consultation with RCTC, may issue an order for RCTC to make a modification to the Toll Facility based on adoption of new standards by FHW A or Caltrans ("Standards Modification Order"), provided that any required modification is to the same extent being imposed by Caltrans on existing State-operated and fu~ded transportation facilities of substantially equivalent size, location and character. (b) The timing, scope, design and schedule for implementation of modifications to the Toll Facility under a Standards Modification Order will be proposed by Caltrans and will be subject to RCTC's' reasonable comment and approval. The modifications agreed upon shall be paid for by RCTC and implemented in consideration of (i) the time in which Caltrans' applies such improvements to existing facilities it owns and operates of a substantially equivalent size, location and character; (ii) the time period for implementation set forth in the revised standard, if any; and (iii) the timing for implementation of a pending or scheduled Major Modification, repair or rehabilitation affecting the affected area or structure that is not part of the Standards Modification Order, where implementation of such Standards Modification Order would reasonably be included within the scope of work of the modification. (c) Caltrans, acting in good faith, shall consider any request by RCTC for alteration or deferral of a particular modification under a Standards Modification Order, taking into consideration the anticipated availability of RCTC funds, the remaining term of this Agreement in light ofRCTC's obligations to its bond-holders and other lenders, the schedule for upcoming repair and rehabilitation of the Toll Facility, the extent of inconvenience and delay necessitated by the modification and the extent of the risk or public benefit which the modification purports to address. (d) In the case of a Standards Modification Order to address a Critical Safety Standard, after the aforementioned coordination and consultation has occurred, if RCTC fails to implement a mutually approved Standards Modification Order by the deadline contained in the Standards Modification Order, Caltrans reserves the right and authority, but not the obligation, to enter onto the Toll Facility, and to implement the modifications called for in such Standards Modification Order and, unless otherwise determined pursuant to Section 18.6, to invoice RCTC 11 I 7336.02100\7011972.3 85 for the actual and reasonable cost of implementation. Caltrans shall assume all liability for such • Standards Modification Order unilaterally implemented by Caltrans. 6. Phasing of Toll Facility; Approval ofUitimate Project. 6.1 Design-Build Cooperative Agreement. The Parties intend that the Initial Toll Facility, the General Purpose Lanes and other non-toll improvements will be completed pursuant to the terms of the separate Design-Build Cooperative Agreement, provided that nothing in this Agreement is intended to obligate RCTC to complete the Initial Toll Facility. 6.2 Ultimate Project. RCTC shall be permitted to construct the Ultimate Project, including Phases of the Ultimate Toll Facility, provided that nothing in this Agreement is intended to obligate RCTC to complete the Ultimate Project, the Ultimate Toll Facility or any additional Phase(s) thereof. If, however, construction of such improvements by RCTC has been initiated and has not been completed, RCTC is obligated to bring any pre-existing facility back to a condition which is substantially the same as the condition as it was on the date of commencement of construction activities. 6.3 Additional Phases of Toll Facility. The Parties shall timely negotiate and enter into such design and construction cooperative agreements required for implementation of additional phases of the Ultimate Project, including additional Phases of the Toll Facility. The Parties agree that such design and construction agreements shall be substantiaiiy in accordance with the terms of the Design-Build Cooperative Agreement. Subsequent phases of the Ultimate Toll Facility may require a Project Report and a re-evaluation, update, or recirculation of an • environmental analysis. RCTC shall comply with all design and construction standards applicable at the time of approval of the project plans (as modified by the applicable design and construction cooperative agreement), as well as the terms of the applicable design and construction cooperative agreement. 6.4 Application of Agreement to Future Phases. As applicable, the terms of this Agreement, including, but not limited to, the Lease, shall apply to all Phases once completed, accepted by RCTC and Caltrans pursuant to the terms of the applicable design and construction cooperative agreement for the relevant Phase, and placed into operation. 7. Modification ofToll Facility. 7.1 Major Modification ofToll Facility. (a) RCTC shall submit any proposed Major Modification to Caltrans for approval pursuant to the Caltrans' encroachment permit process, as set forth in Streets & Highways Code Section 670, et. seq., as may be amended, and as further established in the relevant Caltrans' procedures manual in effect at the time. Caltrans shall not unreasonably withhold or delay approval of an encroachment permit for a Major Modification, and shall grant such encroachment permit so long as the Major Modification is consistent with the terms of this Agreement and with State and federal standards. Should Caltrans fail to timely issue an encroachment permit for a Major Modification that is in compliance with the terms set forth in 12 I 7336.02100\701 I 972.3 86 • • • • the foregoing sentence, such failure shall be submitted to the dispute resolution process contained in this Agreement. (b) If RCTC requires any modification that is not within the Toll Facility, a Caltrans encroachment permit shall be required per Caltrans' standard requirements for RCTC, and, as applicable, for its contractors, which permit shall be timely granted by Caltrans upon approval ofthe modifications. The parties acknowledge that Major Modifications not within the Toll Facility may require a separate agreement pursuant to the procedures set forth in the Caltrans Project Development Procedures Manual. (c) Major Modifications shall be completed in accordance with all applicable laws and environmental regulations, and to applicable Caltrans/FHW A standards and policies to the extent that Caltrans is.applying the same standards to its own existing transportation facilities of substantially equivalent size, location and character. (d) RCTC shall coordinate construction of Major Modifications with Cal trans to minimize any impacts to the General Purpose Lanes. Unless otherwise agreed upon by the Parties, Caltrans shall provide oversight of construction activities related to the Major Modifications at no cost to RCTC, consistent with its policies in effect at the time of procurement of a contractor by RCTC to complete the Major Modifications. (e) Upon completion of the Major Modifications, RCTC shall, within 180 Days, provide revised "as-built" plans to Caltrans which address the Major Modifications including, as applicable, all contract records, survey documents, records of surveys, and structure as-built documents according to Caltrans requirements. Should RCTC fail to provide the "as- built" plans within the timeframe specified herein, Caltrans shaH provide notice of such failure to RCTC. The notice shall state that if RCTC does not submit the "as-built" plans within thirty (30) days of receipt ofthe notice, Caltrans shall be entitled to prepare the plans and bill RCTC for the actual costs thereof. (f) RCTC shall procure, on its own behalf or through a contract requirement with any contractor, and as a condition precedent to any modification to the Toll Facility, a policy or policies of insurance naming Caltrans, its employees and agents as an additional insured with coverage provided to Caltrans to the same degree as provided to RCTC. Such insurance shall be primary and non-contributory with any insurance maintained by Caltrans. Such policy or policies shall be consistent with the insurance coverage requirement published by Caltrans in its Standard Specifications or Standard Special Provisions in effect at the time of commencement of construction of the Major Modifications. 7.2 Minor Modification ofToll Facility. (a) RCTC shall have the right to erect and maintain signs, gantries, and other tolling equipment and to install and utilize traffic control devices and video surveillance and enforcement equipment, and other similar equipment necessary for the safe and efficient operation of the Toll Facility. All signs utilized by RCTC for the Toll Facility located within or adjacent to Caltrans' right of way shall comply with the California Manual on Uniform Traffic 13 17336.02100\7011972.3 87 Control Devices ("MUTCD") or the applicable State and federal standards operative at the time • of purchase of such signs following procurement of a contractor or vendor therefor. Signs, gantries, or other tolling equipment shall not be installed in a manner which negatively impacts the General Purpose Lanes or in a manner which would cause the General Purpose Lanes to no longer conform to their original design or to applicable State or federal standards in effect at the time of installation. (b) Any installation of new, and not replacement of existing, signs, gantries, and other tolling equipment, traffic control devices and video surveillance and enforcement equipment, and other similar equipment necessary for the safe and efficient operation of the Toll Facility which were not included or accepted as part of the Initial Toll Facility shall be considered "Minor Modifications" if they are installed within the Toll Facility. RCTC shall be responsible for the installation and maintenance of said Minor Modifications. To effectuate the purposes of this section, and to maintain an accurate history of all improvements placed in the State Right of Way, RCTC agrees to submit to Caltrans a completed encroachment permit including RCTC-approved engineering plans, prior to performing any Minor Modifications. 7.3 Caltrans Implementation of Modifications. If RCTC requests that Caltrans implement, on behalf of RCTC, modifications to the Toll Facility, RCTC shall reimburse Caltrans for staff time and shall pay for costs associated with such Modifications. Any such work performed by Caltrans shall be pursuant to a separate agreement to be negotiated between the Parties. 8. Maintenance of Toll Facility. 8.1 RCTC Responsibility for Toll Facility Maintenance. RCTC shall be responsible for maintenance of the Toll Facility, unless RCTC contracts such obligations to Caltrans. 8.2 Shared Costs for Joint Maintenance. The Parties agree to share the costs related to joint maintenance for storm water which may drain from the Toll Facility to existing Caltrans facilities. The costs for such maintenance shall be based on the ratio of non-permeable surface area attributable to each Parties' facilities, which shall be determined in accordance with the Caltrans' Storm Water Quality Handbook, SWPPP/WPCP Preparation Manual. Unless otherwise agreed upon by the Parties, Caltrans shall be responsible for storm water maintenance activities in accordance with Best Management Practices for storm water, and shall invoice RCTC for its share of actual maintenance costs based on the foregoing formula. 8.3 Additional Integrated Maintenance Issues. The Parties shall, in good faith, address any additional integrated maintenance, permit and maintenance liability issues that may arise following commencement of operations of the Toll Facility, and shall, in good faith, and subject to a separate written agreement or an amendment hereto, determine a cost split and shared responsibility for such integrated maintenance issues, if any. 8.4 Maintenance Plan to be Prepared and Implemented by RCTC. 14 17336.02100\7011972.3 88 • • • • • (a) Prior to commencement of operations of the Toll Facility, RCTC shall submit to Caltrans for its approval a maintenance plan for the Toll Facility (which, to the extent that RCTC engages Caltrans to perform maintenance services, shall be the work plan adopted pursuant to the Maintenance Agreement). (b) RCTC shall be responsible for the maintenance of the Toll Facility in accordance with the Maintenance Standards. (c) Caltrans shall furnish the Maintenance Standards to RCTC on a timely basis. Receipt of the Maintenance Standards by RCTC shall constitute notice as to the contents therein. RCTC shall not be held responsible for implementing any changes to any such Caltrans Maintenance Standards expressed in such sources unless and until a manual is received or actual notice thereof is given to RCTC. (d) RCTC shall, in good faith, coordinate its schedule to consider potential impacts of RCTC's maintenance activities on the Toll Facility on the operation of the General Purpose Lanes. 8.5 Caltrans Annual Maintenance Review. Caltrans shall annually review the maintenance of the Toll Facility per the certification requirements set forth in the Section 129 Agreement and, if such maintenance has been undertaken in accordance with the Maintenance Standards, Cal trans shall timely certify the adequacy of such maintenance to FHW A as contemplated by the Section 129 Agreement. If, after inspection, it is Caltrans' opinion that appropriate maintenance of the Toll Facility has not been performed as required under this Agreement and Caltrans is not performing such maintenance under a Maintenance Agreement, Caltrans shall provide RCTC with a written notification of the specific items requiring maintenance. RCTC shall provide Caltrans with a plan to promptly initiate steps to cure the identified deficiencies. If Caltrans is performing such maintenance under a Maintenance Agreement, Caltrans shall promptly initiate steps to cure the identified deficiencies. Notwithstanding any other provision of this Agreement, Caltrans makes no warranty that if a party other than Caltrans is providing maintenance and Caltrans' inspection has determined that the appropriate maintenance as required under this Agreement has not occurred, that said negative finding will not be transmitted to FHWA or otherwise remain confidential. 8.6 Option to Enter Maintenance Agreement with Caltrans. The Parties may enter into a Maintenance Agreement pursuant to which maintenance services may be provided by Caltrans, unless RCTC determines otherwise. Such contract, if entered into by the Parties, shall provide for reimbursement ofCaltrans for maintenance services as ~et forth therein . 15 17336.02100\7011972.3 89 8. 7 Responsibilities If a Party Other than Cal trans is Providing Maintenance of the Toll Facility. (a) The scope of Caltrans oversight responsibilities if a party other than Caltrans is providing maintenance of the Toll Facility shall be as follows: (i) At least annually, Caltrans shall review the maintenance of the Toll Facility per the certification requirements set forth in the Section 129 Agreement. (ii) If such maintenance has been undertaken in accordance with the maintenance required under this Agreement, Caltrans shall timely certify the adequacy of such maintenance to FHW A as contemplated by the Section I 29 Agreement. (iii) If, after inspection, it is Caltrans' opinion that appropriate maintenance of the Toll Facility has not been performed in accordance with the maintenance required under this Agreement, Caltrans shall provide RCTC with a written notification of the specific items requiring maintenance. (b) If clause (iii) above is applicable, RCTC shall provide Caltrans with a plan to promptly initiate steps to cure maintenance deficiencies identified by Caltrans. (c) Notwithstanding any other provision of this Agreement, Caltrans makes no warranty that if a party other than Caltrans is providing maintenance and Caltrans' inspection • has determined that the appropriate maintenance as required under this Agreement has not • occurred, that said negative finding will not be transmitted to FHWA or otherwise remain confidential. 8.8 Right of Entry onto General Purpose Lanes. Caltrans hereby grants to RCTC, and its contractors, a right of entry onto the General Purpose Lanes, as required for RCTC to conduct maintenance activities with its own or its contractors' forces, or by contract. RCTC contractors shall, prior to entry onto the General Purpose Lanes, obtain from Caltrans an encroachment permit for such entry pursuant to Caltrans' standard practices and shall provide to Caltrans evidence of insurance reasonably sufficient for the work to be conducted by the RCTC contractor, as determined by RCTC, under which Caltrans shall be added as an additional insured. RCTC may enter into the General Purpose Lanes without an encroachment permit to remove debris or to perform other activities related to the clean-up of an accident which is not confined to the Toll Facility. 8. 9 Coordination of Maintenance Schedule. The Parties shall coordinate maintenance schedules with each other in order to minimize impacts of maintenance activities on the General Purpose Lanes or the Toll Facility. Each Party shall notify the other Party five (5) days in advance of any planned closure that may reasonably impact the facility operated by the other Party. 8.10 Coordination of Major Repairs, Modifications and Rehabilitation. The Parties shall cooperate and coordinate, as may be appropriate, in connection with major pavement and 16 J 7336.02100\7011972.3 90 • • • • structures repa1r, modification and rehabilitation of the General Purpose Lanes or the Toll Facility. 9. Reserve Funds. RCTC shall establish and maintain adequate reserve funds for maintenance and capital improvements, as required by RCTC's bond financing for the Project. Such reserve funds shall be sufficient to adequately maintain the Toll Facility in accordance with Maintenance Standards and to provide for transfer of the Toll Facility back to Caltrans at the end of the term of this Agreement in accordance with the requirements contained herein. 10. Responsibility for Costs. 10.1 Costs for Maintenance, Operation and Rehabilitation of Toll Facility. Except as otherwise set forth herein, RCTC shall bear all costs of maintenance, operation and rehabilitation ofthe Toll Facility for the duration of the Agreement and any extension hereof. 1 0.2 Costs for Caltrans Services Requested by RCTC. Other than expressly set forth herein or except as otherwise agreed upon by the Parties, RCTC shall be responsible for the costs of any services of Ca1trans requested by RCTC including, but not limited to, the cost of Pavement Management System testing if RCTC requests Caltrans perform such tests for the Toll Facility. 1 1. Public Safety/Policing. 11.1 California Highway Patrol (CHP) police services. (a) RCTC shall have the option to engage police services from CHP for the Toll Facility. (b) At RCTC's request, Caltrans shall assist RCTC in negotiation of the police services contract with CHP. 11.2 RCTC Right to Utilize Alternate California Law Enforcement Agency. RCTC shall have the right to use a California Jaw enforcement agency other than CHP to provide police services on the Toll Facility, provided that such agency is a governmental entity that utilizes or can support the Statewide Integrated Traffic Records System (SWITRS) database, or such other highway safety program then in use by CHP or Caltrans for accident monitoring, or other comparable database or monitoring program subject to CHP approval. 11.3 Level of Police Services. The Parties agree that police services for the Toll Facility shall be equivalent to that provided on comparable Caltrans-operated transportation routes. 1 1.4 Toll violation enforcement. RCTC shall have the right to: (a) Engage services of CHP or other law enforcement agency to apprehend and/or cite toll violators in accordance with State law . 17 1733602!00\701 1972.3 91 (b) Initiate civil and administrative actions and other toll enforcement and • collection actions against toll violators consistent with applicable law. (c) Enforce all private rights against toll violators. (d) Engage private security to identify toll violators (e) Take other legally permissible actions to collect, enforce and protect toll revenues. 11.5 No Right to Toll Facility Customer Information. This Agreement shall not provide Caltrans with any independent right to any Toll Facility customer information. 11.6 Compliance with Laws. RCTC shall follow all applicable traffic enforcement laws and regulations and both Parties shall comply with all applicable privacy laws with respect to customer information. 12. Caltrans Closures of Toll Facility. 12.1 Emergency Use of Toll Facility. Except as otherwise specified herein, Caltrans shall not be entitled to close the Toll Facility or to allow the general public to utilize the Toll Facility without cost except in the case of an emergency. As used in this section, an "emergency" shall mean a circumstance that poses an immediate and grave threat to life or safety, or a serious environmental hazard that cannot be abated except by closure of the Toll Facility. Closures of or traffic on the General Purpose Lanes that cause an inconvenience to the public shall not be considered, on their own, an emergency, as used herein. Closures due to emergencies shall be limited to the shortest reasonable time to address the emergency situation and each Party shall act with all due diligence to address such emergency. Unless infeasible due to the nature of the emergency, Caltrans shall notify RCTC in advance of any intended closure ofthe Toll Facility due to an emergency (and if not feasible, Caltrans shall notify RCTC as soon as reasonably practicable). The prohibitions of this paragraph shall not apply to closures initiated or implemented by Caltrans staff at the request or order of the California Highway Patrol or other authorized law enforcement agency. 12.2 Closures Necessitated by Construction or Maintenance Activities. Should a closure of all or a portion of the Toll Facility be required to accommodate Caltrans' construction or maintenance activities on the General Purpose lanes adjacent to the Toll Facility, Caltrans shall submit a closure plan and closure criteria to RCTC for approval no Jess then ten (1 0) days prior to any such proposed closure. No closure of the Toll Facility shall be permitted for the purposes specified in this Section 12.2 unless and until RCTC has approved the closure plan and closure criteria. Caltrans shall make its best efforts to conduct construction and maintenance activities in such a manner as to minimize any required closures of the Toll Facility. 13. Financing. 13.1 Responsibility for Project Financing. RCTC shall be responsible for project financing, unless otherwise agreed upon by the Parties. 18 17336.02100\7011972.3 92 • • • 13.2 Caltrans Assistance with Information Requirements. Caltrans shall provide reasonable assistance with any reporting, documentation and other reasonably necessary informational requirements ofRCTC's lenders/bond holders. (a) Except for periodic estoppel certificates to bondholders or lenders regarding RCTC's compliance under this Agreement (and any other agreement between the Parties relating to the 91 Express Lanes, including any Maintenance Agreement between Caltrans and RCTC), obligations under the Section 129 Agreement and any opinions requiredto come from Caltrans, any assistance shall be for informational purposes only and final reporting, documentation, projections, etc. shall be solely the responsibility of RCTC or the entity seeking bond revenues or other financing. Any prospectus or other public statement or offering shall include an express statement that neither the full faith and credit, nor the taxing authority of the State of California is pledged to the payment of principal or interest or otherwise offered as backing for the statement or offering. (b) Caltrans shall not certify that the financing meets Securities and Exchange Commission criteria, and shall not give any warranties related thereto. 14. Representations and Warranties. 14.1 Representations and Warranties of Caltrans. In addition to the other representations and warranties of Caltrans contained herein, Caltrans hereby represents and warrants as follows: • (a) Caltrans is a department of the Executive branch of the State of California, • duly organized and existing under the Jaws and Constitution of the State of California, is authorized to execute and deliver this Agreement and to perform its obligations hereunder and by proper action has duly authorized the execution, delivery and performance of this Agreement. (b) The execution and delivery by Caltrans of this Agreement and the consummation of the transactions contemplated hereby, is not in conflict with, or a breach of or a default under any law or regulation applicable to Caltrans, and to the best ofCaltrans' knowledge after due inquiry, there is no restriction or prohibition which would impair or render unenforceable or illegal, as to Caltrans, any provision of this Agreement including, without limitation, the Lease, or any other related agreement to which it is a party. (c) Caltrans has determined that RCTC will incur substantial cost and expense to design, develop, acquire, construct, install and operate the Toll Facility, and that it is necessary, appropriate and reasonable to provide the assurances, protections, rights and warranties contained herein. (d) No litigation is pending or, to the best knowledge of Caltrans, threatened challenging the authority of Caltrans to enter into this Agreement, and Caltrans is in compliance with all applicable laws and regulations. (e) Caltrans owns and controls the State Highway System, subject to those existing rights granted to third parties. 19 17336 0210017011972.3 93 (t) The representations and warranties of Caltrans contained herein are, as of the date of execution hereof and thereof, accurate and complete. 14.2 Representations and Warranties ofRCTC. In addition to the other representations and warranties of RCTC contained herein, RCTC hereby represents and warranties as follows: (a) RCTC has the authority to execute, deliver and perform this Agreement, and the terms and conditions hereof are valid and binding obligations of RCTC. (b) The execution and delivery by RCTC of this Agreement and the consummation of the transactions contemplated hereby is not in conflict with, or a breach of or a default under any law or regulation applicable to RCTC, and to the best of RCTC's knowledge after due inquiry, there is no restriction or prohibition which would impair or render unenforceable or illegal, as to RCTC, any provision of this Agreement, or any other related agreement to which it is a party. (c) To RCTC's best knowledge, there is no litigation in effect challenging RCTC's authority to enter into this Agreement and RCTC is in compliance with all applicable laws and regulations. (d) RCTC makes no warranties or representations that the activities undertaken by it pursuant to this Agreement will result in actual construction of the Toll Facility, or any portion thereof, or that, if constructed, any of the same will be commercially or • technologically viable or of any specified quality or fit for any intended use or function (all of • which such warranties and representations are hereby expressly disclaimed). (e) The representations and warranties of RCTC contained herein are, as of the date of execution hereof and thereof accurate and complete. 15. Allocation of Responsibility; Liability 15.1 RCTC Obligations Related to Toll Facility. As between Caltrans and RCTC, RCTC shall be responsible for operating, maintaining, policing, administering and collecting tolls for the use of the Toll Facility, subject to and in accordance with the terms of this Agreement, except to the extent RCTC engages Caltrans to perform maintenance as provided in Section 8, or any other services, and CHP to perform police services as provided in Section 11. 15.2 RCTC Indemnification ofCaltrans Parties. RCTC shall indemnify, hold harmless and defend Caltrans Parties from any Third-Party Claim to the extent such Third-Party Claim results from any negligent act or omission of RCTC in the performance of the activities described in Section 15.1 above, except to the extent that such Third-Party Claim is attributable to or arises out of any of the matters described in Section 1 5.3 below. 15.3 Caltrans Indemnification of RCTC Parties. Caltrans shall indemnify, hold harmless and defend RCTC Parties from any Third-Party Claims attributable to or arising out of any negligent act or omission or willful misconduct ofCaltrans. 20 17336.0210017011972.3 94 • • • • 15.4 Waiver of Other Indemnity Rights. Except as provided in Sections 15.2 and 15.3, RCTC and Caltrans each waive any and all rights to indemnity of any kind (whether equitable, comparative, express or implied) from the Caltrans Parties and RCTC Parties, respectively, with respect to Third-Party Claims. 15.5 Resolution of Claims When Caltrans and RCTC are Named Joined Defendants. If Caltrans and RCTC are named joined defendants pursuant to a Third Party Claim arising under this Agreement, the legal issues between the plaintiff(s) bringing forth such claim and Caltrans and RCTC, as joined defendants, shall be resolved first without consideration as to the allocation or apportionment of liability or damages between Caltrans and RCTC, if any liability or damages can be allocated or apportioned between them. A determination regarding allocation or apportionment of liability or damages between Caltrans and RCTC shall be made following final resolution ofthe Third Party Claim, either in a separate or second phase of trial or by some other mechanism the Parties may agree upon. 15.6 Resolution of Inverse Condemnation Claims. If either Caltrans or RCTC is named as a defendant pursuant to a Third Party Claim for inverse condemnation arising out of or related to the Toll Facility ("Inverse Claim"), the legal issues between the plaintiff(s) bringing forth the Inverse Claim and either Caltrans or RCTC, as applicable, shall be resolved first without consideration as to the allocation or apportionment of liability or damages between Caltrans and RCTC, if any liability or damages can be allocated or apportioned between them. The Party that is not a named defendant shall have the right, at its sole cost and expense, to participate in the defense and resolution of the Inverse Claim. Within ninety (90) days of the final resolution ofthe Inverse Claim, either Caltrans or RCTC may refer to the dispute resolution process set forth in Section 18.6 of this Agreement the apportionment of liability or damages for the Inverse Claim between Caltrans and RCTC. Liability or damages will be apportioned based on the extent to which the Claim is found to have arisen out of RCTC's construction or operation of the Toll Facility. As respects the Initial Toll Facility, the provisions set forth in this Section 15.6 shall have no further force or effect five (5) years from the date the Initial Toll Facility is placed into operation. As respects any subsequent Phase of the Ultimate Toll Facility, this Section 15.6 shall have no further force or effect five (5) years after such Phase is placed into operation. 16. Records. The Parties shall hold all administrative draft and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for operation and/or maintenance of the Toll Facility in confidence to the extent permitted by law. Where applicable, the provisions of California Government Code section 6254.5(e) shall govern the disclosure of such documents in the event that the Parties share said documents with each other. The Parties shall not distribute, release, or share said documents with anyone other than employees, agents, and consultants of the Parties or OCT A who require access to such documents for a purpose related to operation and maintenance of the Toll Facility without the written consent of the Party authorized to release them, unless required or authorized to do so by law. 17 . Insurance. 21 17336.02100\701 !9723 95 17.1 Commercial General Liability Insurance. (a) RCTC shall procure and maintain throughout the term of this Agreement comprehensive general liability insurance protecting RCTC from risks arising from RCTC's activities covered under this Agreement. Such liability insurance policy shall include coverage for bodily injury and property damage. If RCTC uses existing coverage to comply with the requirements contained in this Section 17 and that coverage does not meet these requirements, RCTC agrees to amend, supplement, or endorse the existing coverage to meet the requirements herein. (b) Caltrans shall be included as an insured under the insurance policy(ies) described in this Section 17. As respects Caltrans, for claims arising out of the activities contemplated in this Agreement, such insurance shall be primary and non-contributory with any insurance maintained by Caltrans. (c) The insurance coverage required shall be m amount not less than $25 million general aggregate per year. 17.2 Evidence of Coverage. (a) Evidence of insurance in compliance with the requirements of this Section 17 shall be furnished to Caltrans by providing complete copies of the underlying policy(ies) of insurance in RCTC's possession, including all addenda and exclusions as well as by standard • certificates of insurance. Neither the insurance policies nor the additional insured endorsements • shall contain provisions or exclusions inconsistent with this Agreement. Such policies or endorsements shall include a notice of cancellation, of not less than 30 days (1 0 days for non- payment of premiums), to Caltrans. (b) Such insurance shall be issued by a company or companies authorized to transact business in the State. 17.3 Denial of Coverage. If the insurance carriers for the policies of insurance described in this Section 17 deny coverage to RCTC or Caltrans with respect to any Claims reported to such carriers, Caltrans and RCTC shall cooperate in good faith to establish whether, to what extent, and how to fund the cost of contesting the denial of coverage. 1 8. Default/Remedies. 18.1 Default. Subject to the extensions of time set forth in this Agreement and/or any extensions agreed upon by the Parties, failure or delay by either Party to perform any material term or provision of this Agreement constitutes a breach under this Agreement. The Party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence. 18.2 Notice of Default. The non-breaching Party shall give written notice of breach to the Party in breach, specifying the alleged breach. Except as otherwise expressly provided in this Agreement, any failures or delays by either Party in asserting any of its rights or remedies as 22 17336.02100\7011972.3 96 • • • • to any breach shall not operate as a waiver of any breach or of any such rights or remedies. Delays by either Party in asserting any of its rights and remedies shall not deprive either Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 18.3 Failure to Cure. In the event that the breaching Party fails to commence to cure, correct or remedy a breach within thirty (30) calendar days following receipt of written notice, or thereafter fails to diligently complete such cure, correction or remedy, a default of this Agreement shall be deemed to have occurred, and the defaulting Party shall be liable to the non- defaulting Party for any damages caused by such default. 18.4 Rights and Remedies. In the event of a default, the non-defaulting Party may exercise the right to seek damages, specific performance or other injunctive or equitable relief. The exercise of a Party's rights and remedies shall be cumulative with the exercise of other rights and remedies. The Parties agree that, during the period in which RCTC is operating the Toll Facility, termination for default shall not be an available remedy of Caltrans. Caltrans also acknowledges that it shall not have the right to collect or retain toll revenues on account of damages or otherwise. 18.5 Lenders rights and remedies. (a) Leasehold Mortgages. The holder of any mortgage, pledge or other encumbrance or collateral assignment of this Agreement, including the Lease, and any other agreements between the Parties related to the Initial. Toll Facility, the Toll Facility and/or the Ultimate Toll Facility, and the beneficiary of any such deed of trust or assignment shall be referred to in this Agreement as a "Leasehold Mortgagee"; and the mortgage, pledge, hypothecation, deed oftrust, assignment, or other security instrument shall be referred to in this Agreement as a "Leasehold Mortgage". Leasehold Mortgages shall be subject to the following: (i) The provisions set forth in Section 20.2(c) ofthis Agreement. (ii) RCTC shall provide to Caltrans a fully executed copy of the original note or other evidence of indebtedness secured by any Leasehold Mortgage, together with written notice of the address of the Leasehold Mortgagee (or the address of a trustee, fiscal agent or other person or entity acting on behalf of a number of Leasehold Mortgagees) to which notices may be sent. In the event of an assignment of such Leasehold Mortgage, a copy thereof, together with written notice of the address of the assignee thereof (or the address of a trustee, fiscal agent or other person or entity acting on behalf of a number of assignees) to which notices may be sent, shall be delivered to Caltrans. (iii) All rights acquired by Leasehold Mortgagees under any Leasehold Mortgage shall be subject to each and all of the provisions of this Agreement, and to all rights of Caltrans hereunder, none of which provisions or rights is or shall be waived by Caltrans by reason of the giving of such Leasehold Mortgage; but nothing herein shall limit or restrict the rights of Leasehold Mortgagees as set forth in this section. Caltrans and RCTC agree that while any Leasehold Mortgage is in existence, there shall be no agreement between Caltrans and 23 17336.02100\7011972.3 97 RCTC for any modification or amendment of this Agreement that may have a material adverse • impact on the rights of the Leasehold Mortgagee without the consent of the Leasehold Mortgagee, provided that such consent shall not be unreasonably withheld or delayed. The Leasehold Mortgagee shall use its reasonable best efforts to respond to any request for a modification or amendment within a reasonable period of time. (iv) Notwithstanding any foreclosure of any such Leasehold Mortgage, RCTC shall remain liable to Caltrans for the payment of all sums owed to Caltrans hereunder and the performance of all of the provisions of this Agreement which are to be carried out and performed by RCTC. (b) Rights and Obligations of Leasehold Mortgagees. As long as any Leasehold Mortgage created in accordance with this section shall remain unsatisfied and Caltrans has received the information specified in Section 18.5(a)(ii) above, the following provisions shall apply: (i) In the event Caltrans shall have issued a notice of default under Section 18.2 hereof, a copy of which Caltrans shall deliver to the Leasehold Mortgagee, and RCTC shall have failed to commence cure of the default within the specified cure period, Caltrans shall provide notice to the Leasehold Mortgagee of RCTC's failure to cure ("Failure to Cure Notice"). Upon receipt of the Failure to Cure Notice, the Leasehold Mortgagee shall have the right (but not the obligation) to remedy such default or cause the same to be remedied by its qualified and competent designee to effect such cure (a "Substituted Entity"); and Caltrans shall accept such performance by or at the instigation of such Leasehold Mortgagee or Substituted Entity as if the same had been done by RCTC. The Leasehold Mortgagee shall have thirty (30) days following receipt from Caltrans of the Failure to Cure Notice to commence cure of the default, provided that prior to commencing any cure of an RCTC default, the Leasehold Mortgagee shall first provide notice to Caltrans of its intent to commence cure as permitted hereunder. (ii) RCTC hereby constitutes and appoints the Leasehold Mortgagee as its authorized RCTC representative and attorney-in-fact with full power, in RCTC's name, place and stead, and at RCTC's sole cost and expense, to enter upon the Toll Facility and to perform all acts required or permitted to be performed herein, but only in the event that RCTC is in default hereunder, and fails to timely commence cure of such default, as evidenced by Caltrans' issuance of the Failure to Cure Notice. (iii) In the event that the default of RCTC is such that the Leasehold Mortgagee, in order to cure the default, shall be required to assume all of RCTC's rights and obligations hereunder, the Leasehold Mortgagee shall execute all documents reasonably requested by Caltrans effecting such assumption. (iv) Any payment to be made or action to be taken by a Leasehold Mortgagee hereunder shall be deemed properly to have been made or taken by the Leasehold Mortgagee if such payment is made or action is taken by a nominee, agent, or assignee of the right of such Leasehold Mortgagee. 24 17336.02100\7011972.3 98 • • • • • (v) The Parties hereto shall give the Leasehold Mortgagee notice of any proceedings for condemnation of all or part of the Toll Facility or this Agreement. The Leasehold Mortgagee shall have the right to intervene and be made a party to any such condemnation proceedings, and Caltrans and RCTC do hereby consent that the Leasehold Mortgagee may be made such a party or an intervener. (vi) No Leasehold Mortgagee, nor any owner of the leasehold estate whose interest shall have been acquired by, through, or under any Leasehold Mortgage or whose interest shall have been derived immediately from any holder thereof, shall become personally liable under the provisions of this Agreement unless and until such time as the Leasehold Mortgagee or such owner elects to assume any rights of RCTC hereunder. Upon any permitted assignment of this Agreement, including the Lease, by a Leasehold Mortgagee or any party whose interest shall have been derived immediately therefrom, the assignor shall be relieved of any further liability which may accrue hereunder from and after the date of such assignment, provided that the assignee shall execute and deliver to Caltrans a recordable instrument of assumption wherein such assignee shall assume the rights and obligations ofRCTC and agree to perform and observe all provisions of this Agreement as applicable to RCTC. (vii) If the holders of more than one such Leasehold Mortgage shall provide written notice to Caltrans of Leasehold Mortgagee's intent to cure a default of RCTC, Caltrans shall accept such notice and cure from the holder whose Leasehold Mortgage was the earliest to be recorded . (viii) The rights granted herein to Leasehold Mortgagees shall be enforceable by such Leasehold Mortgagees. In the event any action or proceeding is brought to enforce or interpret the provisions hereof or to seek damages arising under this Agreement or performance hereunder, or to declare the rights of the Parties hereto or of such Leasehold Mortgagees, the prevailing party (including such Leasehold Mortgagees, if prevailing) shall be entitled to costs and expenses actually and reasonably incurred (including reasonable attorneys' fees). (c) Cooperation. Caltrans and RCTC shall cooperate by including in this Agreement, by suitable amendment from time to time, any provision which may reasonably be requested by any proposed lender for the purpose of implementing the lender and Leasehold Mortgagee protection provisions contained in this Agreement and allowing such lender reasonable means to protect and preserve its lien (including the lien of the Leasehold Mortgage) on the occurrence of a default under the terms of this Agreement. Caltrans and RCTC each agree to execute and deliver (and to acknowledge, if necessary, for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect the term or any payments due under this Agreement nor otherwise in any other material respect adversely affect any rights ofCaltrans or RCTC under this Agreement. 18.6 Dispute resolution. (a) RCTC and Caltrans shall make a good faith attempt to resolve all disputes. In the case of a dispute, the following procedure shall govern: 25 I 7336.02100\701 1972.3 99 ( l) Representatives of Caltrans and RCTC shall attempt to • resolve the dispute within fifteen ( 15) Days, or such longer period as agreed on by the Parties. (2) If the representatives of Caltrans and RCTC are unable to resolve the dispute, the matter shall be referred to a senior officer of Caltrans (with authority to resolve the dispute) and to the RCTC Executive Director. The foregoing senior officers of the Parties shall attempt to resolve the dispute within fifteen (15) Days, or such longer period as agreed on by the Parties. (3) If the senior officer of Caltrans and the RCTC Executive Director are unable to resolve the dispute, and if the disputed amount claimed by a Party does not exceed $500,000 and, in the aggregate, unresolved disputes do not exceed $5,000,000, either Party may demand that the dispute be submitted to binding arbitration. The amounts specified in the foregoing sentence shall be subject to annual adjustment, commencing as of the first day on which the Initial Toll Facility is placed into toll operations, in an amount equal to the percentage increase in the Index as of the effective date hereof. ( 4) If the dispute does not meet the specifications above, the Parties may agree to submit the dispute to arbitration or other form of alternative dispute resolution, or either Party may seek any other legal remedies available. (b) Not by way of limitation, the following provisions ofthis Agreement shall be specifically subject to the dispute resoiution provisions set forth in this section: Section 5.5, Section 5.9 and Section 8.5. (c) Available remedies to the Parties shall include, without limitation, (i) injunctive relief and other equitable remedies, (ii) specific performance, (iii) termination, in whole or in part, of any obligation on the part of the prevailing Party to reimburse the losing Party for the disputed work at issue conducted by the losing Party, (iv) the right of the prevailing Party to recover monies paid to the losing Party as reimbursement for the disputed work at issue, or portions thereof, conducted by the losing Party, and (v) the right of the prevailing Party to reimbursement for costs incurred in conducting or completing work ordered by the losing Party. 19. Transfer Back to State. 19.1 Transfer of Property to Cal trans at End of Term. At the end of the term of this Agreement, including any extension terms, or upon any earlier termination of this Agreement pursuant to the terms set forth in Public Utilities Code section 130244(c)(6), all personal property ofRCTC owned by RCTC and related to the Toll Facility, including the signs, gantries, other tolling equipment, traffic control devices and video surveillance and enforcement equipment, and other similar equipment utilized for the operation of the Toll Facility, excluding any computer software or hardware for which a license may be required, shall automatically become the property of Caltrans. Such property shall be transferred to Caltrans in its "as is" condition subject to all faults, liens and encumbrances. 26 17336.02100\7011972.3 100 • • • • 19.2 Condition of Toll Facility at End of Term. Per Public Utilities Code section 130240(g) and 130244(c)(6), the Toll Facility shall be returned to Caltrans in a condition that meets the performance and maintenance standards established by Caltrans for existing State- operated transportation facilities of substantially equivalent size, location and character. The Parties agree that, if RCTC complies with the Maintenance Standards, the Toll Facility shall be deemed to meet the performance and maintenance standards ofCaltrans. 19.3 Transfer of Obligations for Toll Facility to Caltrans. At the end of the term of this Agreement, including any extension terms, all maintenance and other obligations of RCTC shall become the responsibility of Caltrans, other than, unless otherwise agreed upon by the Parties, any then-existing financing obligations ofRCTC to third parties that relate to the Toll Facility. I 9.4 Punch List. The Parties agree that a punch list, to include all outstanding maintenance and repair obligations of RCTC related to the Toll Facility, shall be developed by the Parties one (1) year prior to transfer of the Toll Facility to Caltrans. RCTC shall complete all agreed upon items on the punch list prior to the end of the term of this Agreement. 19.5 Transfer of Records at End of Term. At the end of the term of this Agreement, RCTC shall transfer to Caltrans all records pertaining to material maintenance, operations, unresolved complaints, safety and modifications of the Toll Facility generated within five (5) years prior to termination of this Agreement and maintained by RCTC. 20. Other Miscellaneous Standard Provisions . 20.1 Approvals. (a) Caltrans' Approvals. Whenever Caltrans' comment, approval or consent is required under this Agreement, such comment, approval or consent shall not be unreasonably withheld or delayed and, unless otherwise expressly provided herein, Caltrans' consent or approval shall be deemed given if Caltrans has not responded to RCTC's request therefor within twenty-one (21) Days (or such other time period specified in this Agreement) after such request is received, or for Major Modifications, within a reasonable period of time, not to exceed the timeframe set forth by Jaw for the encroachment permit process. (b) RCTC Approvals. Whenever RCTC's comment, approval or consent is required under this Agreement, such comment, approval or consent shall not be unreasonably withheld or delayed and, unless otherwise expressly provided herein, RCTC's consent or approval shall be deemed given if RCTC has not responded to Caltrans's request therefor within twenty-one (21) Days (or such other time period specified in this Agreement) after such request is received, provided that such time may be extended by mutual agreement. 20.2 Assignment of Agreement. (a) Except as provided in clause (c) below, any proposed assignment ofthis Agreement to a private entity shall require Caltrans' approval, in its sole discretion. Any proposed assignment shall require three (3) months prior written notice to Caltrans. Any potential assignee shall immediately upon request provide information reasonably required by • 27 17336.02100\7011972.3 101 Caltrans to determine whether said potential assignee can meet the obligations of this • Agreement. RCTC may assign its right, title and interest in and to toll revenues without Caltrans' approval. This paragraph is not intended to and shall not limit the rights of any Leasehold Mortgagee as set forth in Section 18.5 of this Agreement. (b) Any proposed assignment of this Agreement to a public entity shall require three (3) months prior written notice to Caltrans. Such notice shall include provision to Caltrans of evidence that the proposed assignee has the demonstrated financial ability to meet its obligations under this Agreement. Caltrans shall approve such assignment, within fifteen business (15) days of receiving notice from RCTC, unless it reasonably determines that the proposed assignee cannot meet the obligations of this Agreement. This paragraph is not intended to and shall not limit the rights of any Leasehold Mortgagee as set forth in Section 18.5 of this Agreement. Any potential assignee shall immediately upon request provide information reasonably required by Caltrans to determine whether said potential assignee can meet the obligations of this Agreement. (c) RCTC may, without the consent of Caltrans, assign, pledge, mortgage or otherwise encumber its respective interests in this Agreement including, without limitation, the Lease and any other related agreements, and/or any rights emanating therefrom, in order to secure financing or refinancing for the Toll Facility provided that RCTC retains responsibility for fulfilling the material obligations herein. Any amendment to the terms of this Agreement required as a result of a proposed refinancing, including, but not limited to, defeasance of existing bonds and issuance of new bonds, shall be subject to Caltrans' approval which shall not be unreasonably withheld or delayed. • (d) Following any permitted assignment of this Agreement, RCTC shall be relieved of any further liability which may accrue hereunder from and after the date of such assignment, provided that the assignee shall execute and deliver to Caltrans a recordable instrument of assumption wherein such assignee shall assume the rights and obligations of RCTC and agree to perform and observe all provisions of this Agreement. 21. Subcontracting. RCTC may, in its sole discretion and in compliance with all applicable legal requirements, enter into subcontracts with third party contractors or consultants for performance of any of its obligations hereunder. Such rights of RCTC include the right of RCTC to subcontract for operation and/or maintenance of Toll Facility and, except as expressly set forth herein, for performance of any other obligations of RCTC under this Agreement. 22. Covenant to Cooperate. The Parties agree to take all reasonable steps; within the confines of existing laws, regulations or policy; for the effective implementation, operation and maintenance of the Toll Facility. While understanding the Parties cannot control the actions of the public or the ultimate users of the State Highway System nor can they control nature or acts of God, the Parties expressly agree to take all reasonable and necessary steps to avoid or minimize the effect of operational conflicts between the Toll Facility and the General Purpose Lanes. Such reasonable and necessary steps shall include, but not be limited to, maintenance by Caltrans, in good condition and repair, that portion of the General Purpose Lanes providing ingress to and egress from the Toll Facility. 28 17336.02100\7011972.3 102 • • • • 23. Designation of Representatives. Caltrans shall designate a Caltrans representative to represent Caltrans and RCTC shall designate an RCTC representative to represent RCTC. All communications between the two agencies shall be channeled through the designated representatives. 24. Notice. Any notice provided pursuant to or required by this Agreement shall be in writing and shall be deemed sufficiently provided when sent by certified mail, return receipt requested, to the Parties at the following addresses: RCTC: Riverside County Transportation Commission 4080 Lemon Street, Third Floor Riverside, California 92501 Attn. ------- Fax: ------- CAL TRANS: Attn. ________ _ Fax: Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail, first class postage prepaid, addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service . 25. 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 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 the 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. 26. Bankruptcy; Estate of the Debtor. Upon the filing, petition or application for relief of the Bankruptcy Court, RCTC agrees and stipulates that the Initial Toll Facility and/or any element of the Ultimate Toll Facility, excluding any toll plazas, gantries and equipment cabinets; conduit, fiber, cameras, readers, signage and supporting or related computerized communications systems; and other toll related toll operations equipment and systems, are integrated elements of the State Highway System. RCTC further acknowledges that its interest in the Initial Toll Facility and/or any element of the Ultimate Toll Facility, other than the excluded equipment and systems referenced in the foregoing sentence, are possessory rights derived from this Agreement 29 17336.02100\701 1972.3 103 including, without limitation, the Lease. RCTC agrees and acknowledges that the integrated • elements of the State Highway System as noted above are also an integral element of the national federal aid highway system whose continued and efficient operation strongly implies the public's interest in travelling safety and the inter-regional transportation of goods and services. 27. Access for Maintenance or Operations Purposes. Access to any portion of the Toll Facility by Caltrans and to the General Purpose Lanes by RCTC for maintenance and/or operations purposes of either Party shall be through notice and coordination with the other Party. 28. Airspace Reserved. Airspace over any portion of the Ultimate Toll Facility is hereby expressly reserved to the Caltrans, with the exception of toll collection equipment, gantries and toll enforcement equipment. 29. Liens. RCTC agrees that under no circumstance shall RCTC allow any lien to attach to any portion of the General Purpose Lanes or to any portion of the Ultimate Toll Facility arising out of or related to the actions of RCTC and/or any of its contractors, whether constructed, completed or accepted. To the extent any lien is recorded or asserted in violation of the foregoing, RCTC agrees to promptly act to remove or satisfy said lien. Satisfaction or removal may be by payment, procurement of bond or otherwise. 30. Amendment, Repeal or Supersession. References to statutes, manuals or policies shall be deemed to incorporate any future amendment or supersession of said statutes, manuals or policies. If said statute, manual or policy has been repealed and if no amendment or supersession has been promulgated or effected, or if the effect of amendment or supersession is materially • different from the predecessor statute, manual or policy, then Parties agree to meet and confer and amend the Agreement as warranted. 31. Agreement is Contractual in Nature and Not Mere Implementation of Statute. The Parties agree this Agreement and its terms are contractual in nature and not the mere implementation of otherwise applicable statutes or authorities. 32. No Partnership or Joint Venture. In no event shall this Agreement be construed as establishing a partnership or joint venture or similar relationship between the Parties. 33. 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. 34. 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. 30 1733602100\7011972.3 104 • • • • 35. Captions. The captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof, or in any way affect the interpretation of this Agreement. 36. Interpretation. The Parties acknowledge that this Agreement is the product of mutual arms-length negotiation and drafting and that each Party has been represented by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction which provides that ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. 37. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties hereunder. 38. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in the California Superior Court for San Bernardino County. 39. Third Party Beneficiaries. There are no third party beneficiaries of this Agreement, and this Agreement is not intended, and shall not be construed, to be for the benefit of, or be enforceable by, any other person or entity whatsoever. 40. Entire Agreement. This Agreement, the attached exhibits and any other documents specifically referenced and incorporated herein constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede all prior verbal or written agreements and understandings between the Parties with respect to the matters addressed in this Agreement. · 41. Memorandum of Agreement I Further Assurances. RCTC and Caltrans agree to execute and record a memorandum of this Agreement, in the form attached hereto as Exhibit "D", against the Leased Property. The Parties further agree to execute any additional instruments as may be reasonably necessary to carry out the purposes and intent of this Agreement and to fulfill their respective obligations hereunder. 42. Time of the Essence. Time is of the essence in the performance of this Agreement. [Signatures on following page] 31 173360210017011972.3 105 SIGNATURE PAGE TO TOLL FACILITIES AGREEMENT STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: ___________ _ Title: APPROVED AS TO FORM AND PROCEDURE: By:. ___________ _ Attorney, Department of Transportation 17336.02100\7011972.3 32 106 RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: ____________ _ Title: APPROVED AS TO FORM: Legal Counsel Best, Best & Krieger LLP • • • • Exhibit "A" General Description oflnitial and Ultimate Toll Facility Initial Toll Facility The Initial Toll Facility which comprises the minimum and first portion of the Ultimate Toll Facility to be constructed under the Ultimate Project is presented in Figure I and includes: Extension of the existing OCTA 91 Express Lanes approximately 7.5 miles east from the Orange/Riverside County line to 1-15. Addition of a direct connector from the "RCTC 91 Express Lanes" to the median of I-15 south of SR-91 to Ontario Avenue. The tolled lanes include one-lane connectors approximately 2.8 miles in each direction in the median of 1-15 providing access and egress to and from the "RCTC 91 Express Lanes". Additional Phases-Ultimate Toll Facility • The additional Phases of work that may be added and constructed to provide for the •• Ultimate Toll Facility presented in Figure 1 below include: Extension ofthe tolled express lanes on J-15 south ofSR-91 from Ontario Avenue approximately 1.9 miles south to Cajalco Road. Addition of direct connectors from the "RCTC 91 Express Lanes" to the median ofl-15 extending approximately 1.4 miles north ofSR-91 to Hidden Valley Parkway. Figure 1 Initial and Ultimate Toll Facilities Map 17336.02100\7011972.3 107 lEGEND ltilti~l bt f.t:thty ~ liltimiltJ?~,,~~~.)olit~ 17336.02100\7011972.3 • • 34 • 108 • • • Exhihit .. Ir" Dl'scription of Ultimate Projec.t Tho;; de~o.:ription of the Ultimate Project which comprises of tht: Initial Toll Facility, Ultimate Toll Facility and other non-toll roadway improvements as depicted below in Figure 2 and Figure 3 and commonly referred to as '·Initial Project .. and .. Future Phased hnprovcments .. include: 17336.02100\7011972.3 • Extension of ihe existing OCTA 91 Express Lanes appruximatdy 7.5 miles east ti·om the Orange/l{iverside County line to 1-15. • Addition of a dircd connector from the ''RCTC 91 Express Lanes'' to the median of l-15 south of SR-91 to Ontario Avenue. The tolled lanes include one-lane connectors approximately 2.8 miles in each direction in the median of l-15 providing access and egress to aml from the ··RCTC 91 Express Lanes". Extension of the tolled express lanes on 1-15 south of SR-91 from Ontmio Avenue apprQximatcly 1.9 miles S()uth to Cajalco Road. Addition of direct connectors from the .. RCTC 9! Express Lanes·· to the median of I-15 extending approx.imately 1.4 miles north of SR-91 to Hidden Valley Parkway . Addition of one general PU11)0Sc lane in each direction on the SR-9! from SR-71 to 1-15 Addition of general purpose lanes and other roadway improvements on SR-9! extending east of 1-15 on SR-9 I 3.3 miles to Pierce Street in the City of Riverside. Addition of one general purpose Janes in each direction from the SR- 71 /SR-91 interchange to SR-241 in Orange County. • Add a new freeway-to-Jh;cway ennnectvr from eastbound SR-91 to northbound SR-71. Add other related improvements to the SR-91/SR-71 interchange • Add direct connectors to and from the north at 1-15. Add one-lane connectors in each direction from the SR-91 tolloo Express Lanes to futuro;; Express Lanes or HOV lanes in the median of 1-15. Extend the one lane Express Lane in each direction in the median of 1-15 approximately one and one half mile north to Hidden Valley Parkway . Exhibit B-1 109 17336.02100\7011972.3 :;~~ ~lEGEND - ~~~ 1 SR-91 )li!! lnitialProjm "1 Ultiinali'Projen j <-Westbournllan~ ! -+ wlbournllaors ! ~15 ! Initial Proje<t tlhim.J!i' Proji'O t NMhbound tallfS + Southbound lanos lniti.11Pmje<t Future Phased tmp<O'o"$llttl!S Figure 2 Ultimate Proj.:ct Map fUTURE PHASED 1Ml'IIOVEMEHT5 Phase 1 · Tolllfd hfll5S lane Dire<T Conne<lors to and from 1·1S North Phase 2-Gmt~al P~ lanes from SR-241 toSR-71 Phase J · SR-71/SR-91 inter<han~ improvemenu Phase4-SR-91 GeneraiP~lane imprOYPI!lf'lltl east of 1-15 Phase 5-htendTolltd E'<!lfts> lanes on l-IS from Ontario Avenue to Ca)alco Road Figure 3 Typical Cross-Section W!5T60UNO Exhibit B-2 110 • • !AS! SOUND • • • • Exhibit "C' Legal Description of Leased Property-Initial Toll facility The following legal description ofthe Initial Toll Facility is presented in draft based on current project information with the intent to define the property interests granted to Riverside County Transportation Commission (RCTC) by California Department of Transportation (Caltrans) for the operation and maintenance Initial Toll Facility as further defined under this Agreement. The final legal description will be developed and included as part of this Agreement through an amendment following the completion of the design and construction of the Initial Toll Facility. General Description The stationing shown herein is Project Schematic Engineering Stationing based on centerline alignments described as follows and shown on SR-91 Corridor Improvement Project Roadway Concept Plan Sheets 1 through 8, inclusive, prepared by Parsons dated June 10,2011: Being strips of varying width over and along the SR-91 from Station 0+00 (Riverside County/Orange County Line) to 398+74.93, the 1-15 from Station 2036+00 to 2155+08 and the SR-91 to l-15 Flyover from Station from 1340+00 to 1427+50. SR-91 Centerline Alignment: Beginning at the intersection of the Riverside County/ Orange County Line with the Centerline of the SR-91, being Station 0+00.00; thence North 68°49'44" East 1336.19 feet to station 13+36.19 and the beginning of a curve concave northwest having a radius of 3000.00 feet; thence easterly along said curve 1282.29 feet through a central angle of 24°29'24" to an equation station, the station Back is 26+18.48, the station Ahead is 21+91.83; thence North 44°20'21" East 2233.25 feet to station 44+29.08 and the beginning of curve concave southeast having a radius of 4000.00 feet; thence easterly along said curve 2103.38 feet through a central angle of30°07'43" to station 65+32.46; thence North 74°28'04" East 5150.24 feet to station 116+82.70 and the beginning of a curve concave south having a radius of 4000.00 feet; thence easterly along said curve 2682.67 feet through a central angle of 38°25'35" to station 143+65.37; thence South 67°06'21" East 1604.31 feet to station 159+69.68 and the beginning of a curve concave northeasterly having a radius of 4000.01 feet; thence along said curve 938.48 feet through a central angle of 13°26'34" to station 169+08.16; thence South 80°32'54" East 3792.52 feet to station 207+00.68; thence South 9°27'06" West 12.00 feet to the beginning of a new offset centerline, the beginning station being 207+00.68, also being the beginning of a curve concave north having a radius of 4000.00 feet, a radial line to said beginning bears South 9°27'06" West; thence easterly along said curve 1382.61 feet through a central angle of 19°48' 16" to station 220+83.29; thence North 79°38'49" East 3748.42 feet to station 258+ 31.71 and the beginning of a curve concave north having a radius of 5000.00 feet; thence easterly along said curve 1600.00 feet through a central angle of 18°20'05" to station 274+31.71; thence on a non-tangent line South 81°54'58" East 8347.11 feet to station 357+ 78.82 and the beginning of a curve concave north having a radius of 3000.00 feet; thence easterly along said curve 1400.61 feet through a central angle of 26°44'59" to station 371+79.43; thence North 71°20'03" East 2695.49 feet to station 398+74.92. Exhibit C-1 I 7336 02100\701 1972.3 1 1 1 SR-91 to 1-15 Flyover Alignment: Beginning at a point on the above described centerline of the SR-91 said point being at station 330+00.00, said point also having the Flyover Alignment station of 1330+00.00 for the purpose of this description; thence South 81 °54'58" East 3384.64 feet to station 1363+84.64 and the beginning of a curve concave north having a radius of 1500.00 feet; thence easterly and northeasterly along said curve a distance of 740.26 feet through a central angle of 28°16'33" to station 1371+24.90; thence North 69°48'28" East 594.84 feet to station 1377+19.74 and the beginning of a curve concave southwesterly having a radius of 1600.00 feet; thence northeasterly, easterly, southeasterly, and southerly along said curve a distance of 2812.53 feet through a central angle of 100°42'59" to station 1405+32.27 and a point on the centerline ofthe 1-15 (the 1-15 station for this point is 2170+79.73); thence along said centerline South 9°28'33" East 2358.43 feet to station 1428+90.70 (the 1-15 station for this point is 2148+50.00). 1-15 Centerline Alignment: Beginning at the intersection of the centerline of the SR-91 as described above with the centerline of the I-15, said intersection being SR-91 station 395+11.99 and 1-15 station 2190+46.09, also being a point on a curve concave westerly having a radius of 5000.14 feet, a radial line to said point bears North 68°48'39" East; thence southerly along said curve 1022.22 feet through a central angle of 11 °42' 48" to station 2180+23.87; thence South 9°28'33"East 3302.64 feet to station 2147+21.23 and the beginning of a curve concave northeasterly having a radius of 3999.90 feet; thence southerly and southeasterly along said curve 2283.96 feet through a central angle of32°42'58" to station 2124+37.27; thence South 42°11 '31" East 901.20 feet to station 2115+36.07 and the beginning of a curve concave southerly having a radius of3999.99 feet; thence southeasterly and southerly along said curve 2759.57 feet through a central angle of 39°31 '41" to station 2087+76.50; thence South 2°39'50"East 396.96 feet to station 2083+79.54 and the beginning of curve concave easterly having a radius of3998.74 feet; thence southerly along said curve 755.35 feet through a central angle of 10°49'23" to station 2076+24.19; thence South 13°29' 13"East 445.91 feet to station 2071+78.27 and the beginning of a curve concave westerly having a radius of 3999.91 feet; thence southerly along said curve 1619.59 feet through a central angle of 23°11 '58" to station 2055+58.69; thence South 9°42'45"West 412.90 feet to station 2051+45.79 and the beginning of a curve concave easterly having a radius of 5000.00 feet; thence southerly along said curve 3070.13 feet through a central angle of35°1 0'52" to station 2020+75.66; thence South 25°28'07"East 2816.23 feet to station 1992+59.43 and the beginning of a curve concave northeasterly having a radius of 4999.67 feet; thence along said curve 1711.09 feet through a central angle of 19°36'32" to station 1975+48.34. Exhibit C-2 17336.02100\7011972.3 112 • • • • Route Station Width SR-91 0+00 to 9+ 36.18 58.00' 9+36.18 to 13+36.18 Transition from 58.00' to 63.00' 13+36.10 to 20+92.35 63.00' 20+92.35 to 26+ 18.48 Back = 21 +95 .83 85.00' Ahead 21+95.83 Ahead to 25+95.89 Transition from 85.00' to 80.00' 25+95.89 to 3 1+64.00 80.00' 3 1+64.00 to 35+09.30 Transition from 80.00' to 77.00' 35+09.30 to 44+29.08 Transition from 77 .00' to 72.00' 44+29.08 to 1 1 6+82.70 72.00' 116+82.70 to 128+37.09 Transition from 72.00' to 78.00' 128+37.09 to 302+64.94 78.00' 302+64.94 to 340+00.00 Transition from 78.00' to 136.00' WB SR-91 340+00.00 to 369+ 30.60 Transition from 27.25' to Toll 24.68' • Entrance EB SR-91 340+00.00 to 391+00.00 Transition from 27.25' to Toll Exit 23.00' SR-91 to 1-340+00.00= 1340+00.00 Flyover Station to 81.50' 15 Flyover 1358+09.64 1358+09.64 to 1362+ 10.17 Transition from 81.50' to 1 01.00' 1362+10.17 to 1374+00.00 69.50' 1374+00.00 to 1380+40.08 Transition from 69.50' to 116.33' 1380+40.08 to 1427+50.00 = 2148+50.00 57.50' I-15 Station 1-15 2155+08 to 2115+50 70' 21 15+50 to 2107+00 Transition 70' to 71' 2107+00 to 2036+00 71' Exhibit C-3 • 17336.02100\7011972.3 113 • • • Exhibit "D" Form of Memorandum of Agreement RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Riverside County Transportation Commission P.O. Box 12008, Riverside, CA 92502-2208 Attention: Clerk of the Board Exempt fi·om Recording tees per Government Code* 27383 (Space above tor Recorder's use) MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY THIS MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY ("Memorandum of Agreement") is made and entered into on , 20 1_ by and between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "Caltrans," and the RIVERSIDE COUNTY TRANSPORT A TJON COMMISSION, referred to herein as "RCTC." Caltrans and RCTC are sometimes referred to herein individually as "Party", and collectively as the "Parties". This Memorandum of Agreement is made in reference to that certain Caltrans/RCTC Toll Facility Agreement (Including Real Property Lease) State Route 91 Express Lanes in Riverside County ("TF A") made and entered into by and between the Parties on , 201 Pursuant to the TFA, Caltrans agreed to lease to RCTC that certain freeway right ofway legally described in Exhibit "A", attached hereto and incorporated herein by reference, for a term of fifty (50) years, commencing as of the first day on which the full Initial Toll Facility (as defined in the TFA) opens for public use and toll operations, assuming said facility is built. All of the terms and conditions of the TF A are made part of this Memorandum of Agreement as though fully set forth herein. The Parties shall record a lease commencement date certification setting forth the actual commencement date of the lease described herein, provided that if no such document is recorded, the lease commencement date shall be deemed to be the actual date the full Initial Toll Facility opens for public use and toll operations. Signatures on following page Exhibit D-1 17336.02100\70119723 114 • • • SIGNATURE PAGE TO MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY * Signatures must be notarized . 17336.02100\7011972.3 State of California Department of Transportation: By: ----------------------------* Its; __________________________ __ Date: -------------------------- Approved as to legal form: By: ------------------------- Its: Riverside County Transportation Commission: By: * Its: Date: -------------------------- Approved as to legal form: BEST BEST & KRIEGER LLP By: --------------------------- General Counsel to Riverside County Transportation Commission Exhibit D-2 115 • • • 17336.02100\7011972.3 EXHIBIT "A" TO MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY Description ofCaltrans right of way subject to lease under the TFA [Attached behind this page] Exhibit D-3 116 • NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF CALIFORNIA) ) ss. COUNTY OF RIVERSIDE) On ______ , 201 before me, ___________ , notary public, personally appeared __________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. • I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. • WITNESS my hand and official seal. Signature ofNotary Public A IT ACHED TO: MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY Exhibit D-4 17336.02100\7011972.3 117 NOTARY ACKNOWLEDGMENT (California All-Purpose Acknowledgment) STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE) On ______ , 201_ before me, ___________ , notary public, personally appeared --:----------' who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies ), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the Jaws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ofNotary Public A IT ACHED TO: MEMORANDUM OF AGREEMENT (INCLUDING REAL PROPERTY LEASE) STATE ROUTE 91 EXPRESS LANES IN RIVERSIDE COUNTY 17336 02100\7011972.3 118 • • • Toll Facility Agreement State Route 91 Corridor Improvement Project for the ... .,~r~i~,~ County Transportation Commi$Si:9rt '~ ;:.,~~~{:,,~-i ' ,,., ,'•_ .' ' . .· ·. _,. :.···1·>~*{•,~ .• +'~. w 91 PROJECT FAST FORWARD Tolling in Riverside 2009 Western County Highway 10-Year Delivery Plan SR-91 Corridor Improvement Project - Freeway Widening - Tolled Express Lanes Interstate 15 Corridor Improvement Project - Freeway Widening - Tolled Express Lanes Franchise agreement rights 91 PROJECT FAST FORWARD SB 1316 (Correa), bill signed 2008 State Tolling Authority Authorize to toll, issue bonds Tolls to be used within the corridor Express Lanes revert to Caltrans in 50 years l1lllmnl Riverside County Transportation Commission Design-Build Phase: 2012-2017 Addresses ... RCTC's use of design-build for design, construction, utility relocation, property acquisition, etc. Defines ... Roles and responsibilities for each agency for project funding, design oversight, quality, inspection, etc. Operations and Maintenance Phase: 2017-2067 Addresses ... RCTC's SO years of lease rights for tolled express lanes within the corridor Defines ... RCTC's use, operation, maintenance, reporting, public safety, policing, etc. - ----------- More TFA Key Provisions... 91 PROJECT FAST FORWARD Caltrans retains O&M responsibility of GP lanes RCTC maintenance, Caltrans certification Reserves for improvements and maintenance Caltrans owns the facility at then end of 50 years Dispute resolution process established Qis; =o -u::T ..., Q) 0 CD (C ..., OJ Q) -3 0 0~ :::;· c CD -· 0~ r-+ - Q-u m • AGENDA ITEM 9 • • • • • RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: April11,2012 TO: Riverside County Transportation Commission FROM: THROUGH: Brian Cunanan, Commuter and Motorists Assistance Manager Anne Mayer, Executive Director ----------------------------------------1 Cooperative Agreement with the State of California Department of SUBJECT: Transportation for the Reimbursement of State Route 91 High Occupancy Vehicle Project Freeway Service Patrol Costs STAFF RECOMMENDATION: This item is for the Commission to: 1 ) 2) Approve Agreement No. 12-45-074-00 with the State of California Department of Transportation (Caltrans) for Freeway Service Patrol (FSP) service support during the construction of the State Route 91 high occupancy vehicle (SR-91 HOV) project; and Authorize the Chair, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: The Commission, acting in its capacity as the Service Authority for Freeway Emergencies, IS the principal agency in Riverside County, in partnership with Caltrans and the California Highway Patrol (CHP), managing the FSP program. The purpose of the FSP program is to provide a continuously roving tow services patrol along designated freeway segments, referred to as beats, to relieve freeway congestion and facilitate the. rapid removal of disabled vehicles and those involved in minor accidents on local freeways. Contracts to provide FSP tow service are competitively bid as needed for each beat. Currently, the Commission contracts with four tow truck operators to provide service on a total of nine beats Monday through Friday during the peak commute hours, 5:30 a.m. to 8:30 a.m. and 3:00 p.m. (1 :00 p.m. on Fridays) to 7:00 p.m. In FY 2010/11, FSP performed over 45,000 assists. DISCUSSION: In addition to normal FSP service hours, FSP is also used to provide support for construction projects as a transportation mitigation strategy. Hours of support for 120 Agenda Item 9 this type of activity vary with the project needs (periodic night-time wuri,., :16C:vvo y • closures, limited ramp closures, elimination of the freeway shoulders) and traffic flows. It is Caltrans' desire to provide FSP service during the construction of the SR-91 HOV project to assist in transportation system management efforts and expedite the removal of freeway impediments in construction zones. The proposed Caltrans agreement provides up to $864,000 in state funding to cover 100% of the costs associated with service provided by the Commission's contracted FSP tow operators and the Commission's administrative overhead costs over a five-year period. In addition to providing traffic congestion relief and reducing accidents, this supplemental FSP service will also help improve the air quality in construction zones. Financial Information In Fiscal Year Budget: I Yes I I FY 2011/12 Amount: I $ 64,000 N/A Year: FY 2012/13 + $800,000 Source of Funds: I State of California Budget Adjustment: T No GL!Project Accounting No.: 002173 45 41508 201 45 41505 Fiscal Procedures Approved: ~~ I Date: T 03/27/12 Attachment: Draft Cooperative Agreement No. 12-45-074-00 Agenda Item 9 121 • • • • • Riverside County Transportation Commission (RCTC) Agreement Number 08A2074 Page 2 of 12 SECTION Ill IT IS MUTUALLY AGREED: !n consideration of the foregoing and the mutual promises of the parties hereto, LOCAL AGENCY and DEPARTMENT agree as follows: 1. Notification of Parties 2. a. LOCAl AGENCY's Project Manager is Brian Cunanan (951) 787-7141 b. DEPARTMENT's Contract Manager is AI Afaneh (909) 383-6262 c. All notices herein provided to be given, or which may be given, by either party to the other, shall be deemed to have been fully given when made in writing and received by the parties at their respective addresses: Riverside County Transportation Commission (RCTC) Attention: Brian Cunanan RCTC Representative 4080 Lemon Street, 3rd Floor Riverside, CA 92501-2208 California Department of Transportation DISTRICT 08fTraffic Operations Attention: AI Afaneh, Contract Manager/DTM 464 Fourth Street, 6th Floor San Bernardino, CA 92401-1400 Period of Performance Work under this Agreement shall begin on April1, 2012, contingent upon approval of this Agreement by DEPARTMENT, and will terminate on March 31,2017, unless extended by amendment. 3. Changes in Terms/Amendment This Agreement may only be amended or modified by mutual written agreement of the parties 4. Termination This Agreement may be terminated by either party for any reason by giving written notice to the other party at least thirty (30) days in advance of the effective date of such termination. In the event of termination by said notice, funds reimbursed to LOCAL AGENCY will include all authorized non-cancelable obligations and prior costs incurred. 5. Cancellation In the event of a disaster or an unforeseen emergency or other good cause, DEPARTMENT and LOCAl AGENCY may cancel a scheduled FSP service shift under this Agreement upon prior written notice. DEPARTMENT will not reimburse costs for canceled service transmitted and received by LOCAL AGENCY more than twelve (12) hours prior to the beginning of that canceled FSP service shift. DEPARTMENT agrees that if cancellation is not made at !east twelve(12) hours prior to the scheduled detail and the Subcontractor(s) cannot be notified of such cancellation. the Subcontractor(s) shall be paid a minimum of two (2) hours for 123 Riverside County Transportation Commission (RCTC) Agreement Number 08A2074 Page 1 of 12 COOPERATIVE AGREEMENT THIS AGREEMENT (Agreement), April1, 2012, is between the State of California, acting by and through its Department of Transportation, referred to herein as DEPARTMENT, and the Riverside County Transportation Commission, hereinafter referred to as LOCAL AGENCY. RECITALS 1. DEPARTMENT and LOCAL AGENCY, pursuant to Streets and Highways Code section 114 (a), are authorized to enter in this Agreement affecting State highways within the jurisdiction of LOCAL AGENCY. 2. lOCAl AGENCY has agreed to implement Freeway Service Patrol (FSP) hereinafter the Project, subject to the terms and conditions of this Agreement. The Project Description (Scope of Work and Cost Estimate) is attached hereto as Attachment Ill. 3. The lOCAl AGENCY's governing body, under the authority of local ordinances, if applicable, if authorized to provide services or funding as described and specified herein pursuant to the lOCAl AGENCY resolution attached hereto as Attachment I. 4. All services performed by lOCAl AGENCY pursuant to this Agreement are intended to be performed in accordance with all applicable Federal, State, and LOCAl AGENCY laws, ordinances, regulations, and DEPARTMENT encroachment permits, published manuals, policies, and procedures. 5. Project funding is as follows: FUND TITLE SHA FUND SOURCE STATE DOllAR AMOUNT $864,000.00 6. This Agreement is exempt from legal review and approval by the Department of General Services, pursuant to PCC section 10295. SECTION I LOCAL AGENCY AGREES: To satisfactorily complete all Project Work described in Attachment Ill. SECTION II DEPARTMENT AGREES: DEPARTMENT agrees that when conducting an audit of the costs claimed by LOCAL AGENCY under the provisions of this Agreement, DEPARTMENT will rely to the maximum extent possible on any prior audit of lOCAL AGENCY pursuant to the provisions of State and applicable Federal laws. In the absence of such an audit, work of other auditors will be relied upon to the extent that such work is acceptable to DEPARTMENT when planning and conducting additional audits. 122 • • • • • • Riverside County Transportation Commission (RCTC) Agreement Number 08A2074 Page 3 of 12 that shift. LOCAL AGENCY agrees to make reasonable efforts to notify the Subcontractor(s) of the cancellation. All cancellation notices to LOCAL AGENCY must be transmitted by DEPARTMENT and received by LOCAL AGENCY, FSP coordinator during normal business hours between 8:00AM and 5:00 PM, Monday through Friday, excluding LOCAL AGENCY holidays. s. Cost Limitation a. The total amount payable to LOCAL AGENCY pursuant to this Agreement by DEPARTMENT shall not exceed $864,000.00. b. Rates for these services shall be: 1. FSP Contracted Service Rates (Hourly) Per tow vehicle 2. LOCAL AGENCY's Administrative Costs $35.00-$80.00 Actual Cost not to exceed 8% cost of provided tow services c. It is agreed and understood that this Agreement fund limit is an estimate and that DEPARTMENT will only reimburse the cost of services actually rendered as authorized by the DEPARTMENT Contract Manager at or below that fund limitation established hereinabove. 7. Allowable Costs a. The method of payment for this Agreement will be based on actual allowable costs. DEPARTMENT will reimburse LOCAL AGENCY for expended actual allowable direct and indirect costs, including, but not limited to labor costs, employee benefits, and travel (overhead is reimbursable only if the LOCAL AGENCY has an approved indirect cost allocation plan) and contracted consultant services costs incurred by LOCAL AGENCY in performance of the Project work, not to exceed the cost reimbursement limitation set forth in 5.a, above. Actual costs shall not exceed the estimated wage rates, labor costs, travel and other estimated costs and fees set forth in Attachment Ill without prior written agreement between DEPARTMENT and LOCAL AGENCY. b. Reimbursement of LOCAL AGENCY expenditures will be authorized only for those allowable costs actually incurred by LOCAL AGENCY in the performance of the Project work. LOCAL AGENCY must not only have incurred the expenditures on or after the Effective Date of this Agreement and before the Termination Date, but must have also paid for those costs to claim any reimbursement c. Travel expenses and per diem rates are not to exceed the rate specified by the State of California Department of Personnel Administration for similar employees (i.e. non-represented employees) unless written verification is supplied that government hotel rates are not commercially available to LOCAL AGENCY, or its contractors, its subcontractors, and/or its subrecipients, at the time and location required as specified in the California Department of Transportation's Travel Guide Exception Process . 124 Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 4 of 12 d. DEPARTMENT will reimburse LOCAL AGENCY for all allowable Project costs no more frequently than monthly in arrears as promptly as DEPARTMENT fiscal procedures permit upon receipt of itemized signed invoices in triplicate. Invoices shall reference this Agreement Number and shall be signed and submitted to the Contract Manager at the following address: California Department of Transportation District 08/Traffic Operations /DTM Attention: AL Afaneh, Contract Manager 464 Fourth Street, 61h Floor San Bernardino, CA 92401-1400 e. Invoices shall include the following information: 3. Reports a. b. 1. Names of the LOCAL AGENCY Personnel performing work 2. Dates of Service 3. Locations of Service (LOCAL AGENCY-address) LOCAL AGENCY shall submit written progress reports with each set of invoices to allow the DEPARTMENT's Contract Manager to determine if LOCAL AGENCY is performing to expectations, is on schedule, is within funding cost limitations, to communicate interim findings, and to afford occasions for airing difficulties respecting special problems encountered so that remedies can be developed. Any document or written report prepared as a requirement of this Agreement shall contain, in a separate section preceding the main body of the document, the number and dollar amounts of all contracts and subcontracts relating to the preparation of those documents or reports. c. LOCAL AGENCY will provide five (5) copies and one (1) electronic version of the final written report to the DEPARTMENT's Contract Manager. 9, local Match Funds a. Except where expressly allowed in writing herein, reimbursement of credits for local matching funds will be made or allowed only for work performed on and after the start date and prior to the termination date of this Agreement, unless expressly permitted as local match expenditures made prior to the effective date of this Agreement pursuant to Government Code section 14529.17 or by prior executed SB 2800 Agreement for Local Match Fund Credit. b. LOCAL AGENCY agrees to contribute at least the statutorily or other required local contribution of matching funds (other than state or federal funds), if any is specified within this Agreement or in any Attachment hereto, toward the actual cost of the services described in Attachment Ill or the amount, if any described in an executed SB 2800 (Streets and Highways Code section 164.53) agreement for local match fund credit, whichever is greater. LOCAL AGENCY shall contribute not less than its required match amount toward the services described herein on a proportional monthly or quarterly basis coinciding with its usual invoicing frequency. 125 • • • • • • Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 5 of 12 10. Cost Principles a. lOCAl AGENCY agrees to comply with Title 2 Code of Federal Regulations (CFR) Part 225, Cost Principles for State, Local, and Indian Tribal Governments (2 CFR 225), and Title 49 CFR Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments (49 CFR 18). b. LOCAL AGENCY agrees, and will assure that its contractors and subcontractors will be obligated to agree, that (a) Title 48 CFR Part 31, Contract Cost Principles and Procedures (48 CFR 31 ), shall be used to determine the allowability of individual Project cost items and (b) all parties shall comply with Federal administrative procedures in accordance with 49 CFR 18. Every sub-recipient receiving Project funds as a contractor or sub-contractor under this Agreement shall comply with Federal administrative procedures in accordance with 49 CFR 18. c. d. Any Project costs for which LOCAL AGENCY has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR 225, 48 CFR 31, or 49 CFR 18, are subject to repayment by LOCAL AGENCY to DEPARTMENT. Should LOCAL AGENCY fail to reimburse moneys due DEPARTMENT within thirty (30) days of discovery or demand, or within such other period as may be agreed in writing between the Parties hereto, DEPARTMENT is authorized to intercept and withhold future payments due LOCAL AGENCY from DEPARTMENT or any third-party source, including, but not limited to, the State Treasurer, the State Controller or any other fund source . lOCAl AGENCY agrees to include Project in the schedule of projects to be examined in LOCAL AGENCY's annual audit and in the schedule of projects to be examined under its single audit prepared in accordance with Office of Management and Budget Circular (OMS) A-133. e. Prior to LOCAL AGENCY seeking reimbursement of indirect costs, LOCAL AGENCY must prepare and submit annually to the DEPARTMENT an indirect cost rate proposal and a central service costs allocation plan (if any) in accordance with 2 CFR 225 and Local Program Procedures Manual (LLP 04-10). 11. Americans with Disabilities Act By signing this Agreement LOCAL AGENCY assures DEPARTMENT that it complies with the applicable provisions of the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) 12. Indemnification a. Nothing in the provisions of the Agreement is intended to create duties or obligations to or rights in third parties to this Agreement or affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the operation, maintenance and repair of State highways different from the standard of care imposed by law. b. Neither DEPARTMENT nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by LOCAL AGENCY under or in connection with any work, authority or conduct conferred upon LOCAL AGENCY under this Agreement. It is understood and agreed that, LOCAL AGENCY shall fully defend, indemnify and 126 Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 6 of 12 save harmless DEPARTMENT and all of its officers and employees from all claims, suits or actions of every name, kind and description arising out of this Agreement, including but not limited to, any tortious, contractual, inverse condemnation or other theories or assertions of liability ocurring by reason of anything done or omitted to be done by LOCAL AGENCY under or in connection with any work, authority or conduct delegated to lOCAL AGENCY under this Agreement. 13. Non-Discrimination a. During the performance of this Agreement, LOCAL AGENCY and aH of its subcontractors, if any, shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, denial of family and medical care leave, and denial of pregnancy disability leave. LOCAL AGENCY and its subcontractors shaH ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. LOCAl AGENCY and its sub-contractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code section 12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by this reference and are made a part hereof as if set forth in full. LOCAL AGENCY and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. b. LOCAL AGENCY shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. 14. Funding Requirements a. It is mutually understood between the parties that this Agreement may have been written for the mutual benefit of both parties in order to avoid program and fiscal delays that would occur if the Agreement was executed only after ascertaining the availability of a congressional or legislative appropriation of funds. b. . This Agreement is valid and enforceable only if sufficient funds are made available to DEPARTMENT by the United States Government and/or the California State Legislature for the purpose of this Project. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress or the State Legislature that may affect the provisions, terms or funding of this Agreement in any manner. c. It is mutually agreed that if the Congress or the State Legislature does not appropriate sufficient funds for the program and Project, this Agreement shall be amended to reflect any reduction in funds. d. DEPARTMENT has the option to void this Agreement under the thirty (30} day termination clause or to amend this Agreement to reflect any reduction of funds. In the event of an unscheduled termination, the DEPARTMENT Contract Manager may reimburse lOCAl AGENCY is accordance with the provisions of Article 4 of this Section Ill. 127 • • • • • • Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 7 of 12 15. Records Retention a. LOCAL AGENCY, its contractors and subcontractors shall establish and b . maintain an accounting system and records that properly accumulate and segregate incurred Project costs and matching funds by line item for the Project. The accounting system of LOCAL AGENCY. its contractors and aH subcontractors shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. All accounting records and other supporting papers of LOCAL AGENCY, its contractors and subcontractors connected with Project performance under this Agreement shall be maintained for a minimum of three (3) years from the date of final payment to LOCAL AGENCY and shall be held open to inspection. copying, and audit by representatives of DEPARTMENT, the California State Auditor, and auditors representing the federal government. Copies thereof will be furnished by LOCAL AGENCY, its contractors, and its subcontractors upon receipt of any request made by DEPARTMENT or its agents. In conducting an audit of the costs and match credits claimed under this Agreement, DEPARTMENT will rely to the maximum extent possible on any prior audit of LOCAL AGENCY pursuant to the provisions of federal and State law. In the absence of such an audit, any acceptable audit work performed by LOCAL AGENCY's external and internal auditors may be relied upon and used by DEPARTMENT when planning and conducting additional audits. For the purpose of determining compliance with Title 21, California Code of Regulations, Section 2500 et seq., when applicable, and other matters connected with the performance of LOCAL AGENCY's contracts with third parties pursuant to Government Code section 8546.7, LOCAl AGENCY, LOCAL AGENCY's contractors and subcontractors and DEPARTMENT shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such materials available at their respective offices at all reasonable times during the entire Project period and for three {3) years from the date of final payment to LOCAL AGENCY under this Agreement DEPARTMENT, the California State Auditor, or any duly authorized representative of DEPARTMENT or the United States Department of Transportation, shall each have access to any books. records, and documents that are pertinent to a Project for audits, examinations, excerpts, and transactions, and lOCAl AGENCY shall furnish copies thereof if requested. c. LOCAL AGENCY, its contractors and subcontractors will permit access to all records of employment. employment advertisements, employment application forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission, or any other agency of the State of California designated by DEPARTMENT, for the purpose of any investigation to ascertain compliance with this Agreement. 16. Disputes a. Any dispute concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by the DEPARTMENT Contract Officer, who may consider any written or verbal evidence submitted by LOCAl AGENCY . b. Neither the pendency of a dispute nor its consideration by the Contract Officer will excuse LOCAL AGENCY from full and timely performance in accordance with the terms of the Agreement. 128 Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 8 of 12 17. Subcontractors LOCAl AGENCY shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by DEPARTMENT's Contract Manager, unless expressly included (subcontractor identified) in Attachment 111 Any subcontract in excess of $25,000 entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to LOCAL AGENCY's subcontractors. 18. Third Party Contracting a_ LOCAL AGENCY shall not award a construction contract over $10,000 or other contracts over $25,000 [excluding professional service contracts of the type which are required to be procured in accordance with Government Code Sections 4525 (d), (e) and (f)] on the basis of a noncompetitive negotiation for work to be performed under this Agreement without the prior written approval of DEPARTMENT. Contracts awarded by LOCAL AGENCY, if intended as local match credit, must meet the requirements set forth in this Agreement regarding local match funds. b. Any subcontract entered into by LOCAL AGENCY as a result of this Agreement shall mandate that travel and per diem reimbursements and third-party contract reimbursements to subcontractors will be allowable as Project costs only after those costs are incurred and paid for by the subcontractors. c. If local match is a requirement of these funds, lOCAL AGENCY must ensure that local match funds used for the Project meet the requirements outlined in this Agreement in the same manner as is required of all other Project expenditures. d. in addition to the above, the preaward requirements of third party contractor/consultants with local agencies must be consistent with Local Program Policy (LPP 00-05). 19. Disabled Veterans Business Enterprise a. Should Military and Veterans Code sections 999 et seq. be applicable to LOCAL AGENCY, LOCAL AGENCY shall meet the 3% Disabled Veterans Business Enterprises goals (or LOCAl AGENCY's applicable higher goals) in the award of every contract for Project work to be performed under this Agreement. b. LOCAl AGENCY shall have the sole duty and authority under this Agreement and each amendment to determine whether these referenced code sections are applicable to LOCAL AGENCY and, if so, whether participation asserted by those contractors of LOCAL AGENCY were sufficient as outlined in Military and Veterans Code sections 999 et seq. 20. Drug-Free Workplace Certification By signing this Agreement, LOCAL AGENCY hereby certifies under penalty of perjury under the laws of the State of California that lOCAL AGENCY will comply with the requirements of the Drug-Free Workplace Act of 1990 (Government Code section 8350 et seq.) and will provide a drug-free workplace by doing all of the following: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code section 8355(a). 129 • • • • • • 21. b. Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 9 of 12 Establish a Drug-Free Awareness Program as required by Government Code section 8355(b) to inform employees about all of the following: 1. the dangers of drug abuse in the workplace, 2. the person's or organization's policy of maintaining a drug-free workplace, 3. any available counseling, rehabilitation, and employee assistance programs, and 4. penalties that may be imposed upon employees for drug abuse violations. c_ Provide as required by Government Code section 8355(c}, that every employee who works on the proposed contract or grant: 1. will receive a copy of the company's drug-free policy statement, and 2. will agree to abide by the terms of the company's statement as a condition of employment on the contract or grant. Failure to comply with these requirements may result in suspension of payments under this Agreement or termination of this Agreement or both, and LOCAL AGENCY may be ineligible for the award of any future state contracts if DEPARTMENT determines that any of the following has occurred: (1) LOCAL AGENCY has made a false certification or, (2) AGENCY violates the certification by failing to carry out the requirements as noted above . Relationship of Parties It is expressly understood that this is an Agreement is executed by and between two (2) independent governmental entities and that this is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of an independent party. 22. Equipment Purchase (By LOCAL AGENCY) a. Prior authorization in writing by the DEPARTMENT Contract Manager shall be required before LOCAL AGENCY enters into any non-budgeted purchase order or subagreement exceeding $500 for supplies, equipment, or consultant services. LOCAL AGENCY shall provide an evaluation of the necessity or desirability of incurring such costs. b. For the purchase of any item, service or consulting work not covered in the attached Project Description (Attachment Ill) and exceeding $500, three (3) competitive quotations must be submitted with the request or the absence of bidding must be adequately justified, and prior authorization must be obtained from the DEPARTIIIIENrs Contract Manager. C. Any equipment purchased as a result of this Agreement is subject to the following: LOCAL AGENCY shall maintain an inventory record for each piece of non-expendable equipment purchased or built with funds provided under the terms of this Agreement. The inventory record of each piece of such equipment shall include the date acquired, total cost, serial number, model identification (on sale, in accordance with established DEPARTMENT procedures, purchased equipment), and any other information or description necessary to identify said equipment. Non-expendable equipment so inventoried are those items of equipment that have a normal life expectancy of one (1) year or more and an approximate unit price of $5,000 or more. In addition, theft-sensitive items of 130 Riverside County Transportation Commission (RCTC) Agreement Number 08A2074 Page 10 of 12 equipment costing less than $5,000 shall be inventoried. A copy of the inventory record must be submitted to DEPARTMENT upon request by DEPARTMENT d. At the conclusion of the Agreement, or if the Agreement is terminated, lOCAl AGENCY may either keep the equipment and credit DEPARTMENT in an amount equal to its fair market value or self such equipment at the best price obtainable at a public or private sale in accordance with established DEPARTMENT procedures and credit DEPARTMENT in an amount equal to the sales price. If lOCAl AGENCY elects to keep the equipment. fair market value shall be determined, at lOCAl AGENCY expense, on the basis of a competent, independent appraisal of such equipment Appraisals shall be obtained from an appraiser mutually agreeable to DEPARTMENT and lOCAl AGENCY. If itlOCAl AGENCY is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by DEPARTMENT. e. CFR 49, Part 18.32 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the Project. f. Any subagreement entered into as a result of this Agreement shall contain all of the provisions of this Article. 23. Disabled ·Access Review Disabled access review by the Department of General Services (Office of State Architect) is required for the construction of all publicly funded buildings, structures, sidewalks, curbs and related facilities. No construction contract will be awarded by lOCAl AGENCY unless lOCAl AGENCY plans and specifications for such facilities conform to the provisions of sections 4450 and 4454 of the California Government Code, if applicable. Further requirements and guidance are provided in Title 24 of the California Administrative Code and the Americans with Disabilities Act (42 USC 12101, et. seq.). 24. Fire Marshal Review The State Fire Marshal adopts building standards for fire safety and panic prevention. Such regulations pertain to fire protection design and construction, means of egress and adequacy of exits, installation of fire alarms, and fire extinguishment systems for any DEPARTMENT owned or DEPARTMENT occupied buildings per Section 13108 of the Health and Safety Code. When applicable. lOCAl AGENCY must assure that any relevant Project plans meet the standards of the State Fire Marshal to ensure consistency with DEPARTMENT fire protection standards. 25. Environmental Clearance Environmental clearance of Project by lOCAl AGENCY and/or DEPARTMENT is required prior to requesting funds for right of way purchase or construction No department or agency shall request funds nor shall any department/agency board or commission authorize expenditures of funds for any project, except feasibility or planning studies, which may have a significant effect on the environment unless such a request is accompanied by an environmental impact report per California Public Resources Code section 21102. The California Environmental Quality Act (CEQA), in California Public Resources Code section 21080(b)(10), does provide an exemption for rail projects which institute or increase passenger or commuter services on rail or highway rights-of-way already in use. 131 • • • • • • 26. Riverside County Transportation Commission (RCTC) Agreement Number 08A2074 Page 11 of 12 Labor Code Compliance: Prevailing Wages If the work performed on this Project is done under contract and falls within the Labor Code section 1720(a) (1) definition of a "public work" in that it is_construction, alteration, demolition. installation, repair or maintenance LOCAL AGENCY must conform to the provisions of Labor Code sections 1720 through 1815, all applicable regulations and coverage determinations issued by the Director of Industrial Relations_ LOCAL AGENCY agrees to include prevailing wage requirements in its contracts for public work. Work performed by LOCAL AGENCY's own forces is exempt from the Labor Code's prevailing wage requirements. 27. Prevailing Wage Requirements in Subcontracts 28. 29. lOCAl AGENCY shall require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreement when the work to be performed by the subcontractor is a "public work" as defined in Labor Code section 1720(a)(1)_ Subcontracts shall include all prevailing wage requirements set forth in LOCAL AGENCY's contracts_ Project Close Out The Agreement Expiration Date refers to the last date for LOCAL AGENCY to incur valid Project costs or credits and is the date the Agreement expires. LOCAL AGENCY has sixty (60) days after that Expiration Date to make final allowable payments to Project contractors or vendors, prepare the Project Closeout Report, and submit the final invoice to DEPARTMENT for reimbursement for allowable Project costs_ Any unexpended Project funds not invoiced by that sixtieth (60th) day will be reverted and will no longer be accessible to reimburse late Project invoices. State-Owned Data a. LOCAL AGENCY agrees to comply with the following requirements to ensure the preservation, security, and integrity of State-owned data on portable computing devices and portable electronic storage media: 1_ Encrypt all State-owned data stored on portable computing devices and portable electronic storage media using government-certified Advanced Encryption Standard (AES) cipher algorithm with a 256-bit or 128-bit encryption key to protect DEPARTMENT data stored on every sector of a hard drive, including 2. 3. 4_ 5. 6. 7_ temp files. cached data, hibernation files, and even unused disk space. Data encryption shall use cryptographic technology that has been tested and approved against exacting standards, such as FIPS 140-2 Security Requirements for Cryptographic Modules. Encrypt, as described above, all State-owned data transmitted from one computing device or storage medium to another. Maintain confidentiality of all State-owned data by limiting data sharing to those individuals contracted to provide services on behalf of the State, and limit use of State information assets for State purposes only. Install and maintain current anti-virus software, security patches. and upgrades on all computing devices used during the course of the Agreement Notify the Contract Manager immediately of any actual or attempted violations of security of State-owned data, including lost or stolen computing devices, files, or portable electronic storage media containing State-owned data_ Advise the owner of the State-owned data, the agency Information Security Officer, and the agency Chief Information Officer of vulnerabilities that may present a threat to the security of State-owned data and of specific means of protecting that State-owned data. 132 Riverside County Transportation Commission (RCTC) Agreement Number 08A207 4 Page 12 of 12 b. To use the State-owned data only for State purposes under this Agreement c. To not transfer State-owned data to any computing system, mobile device, or desktop computer without first establishing the specifications for information integrity and security as established for the original data fi!e(s) Reference State Administrative Manual (SAM) section 5335.1. ATTACHMENTS: The following attachments are incorporated into and are made a part of this Agreement by this reference and attachment I LOCAL AGENCY Resolution II. FSP Task Order Ill. Form ADM 1511 Subcontracting Provisions/list and Tow Operator Scope of Work IV. Sample Invoice V. Invoice Dispute Form VI. Accounting and Audit Guidelines IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first herein above written: STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By:---------- Title: Contract Officer Date: ______ _ 133 RIVERSIDE COUNTY TRANSPORTATION COMMISSION (RCTC) LOCAL AGENCY NAME By:----------- Title:------------'----- Date: _______ _ By:----------- Title:------------ Date: _______ _ By:----------...,...- Title:------------ Date:--------- • • • • • • AGENDA ITEM 10 PRESENTATION