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10 October 12, 2016 CommissionComments 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. MEETING AGENDA TIME/DATE: 9:30 a.m. / Wednesday, October 12, 2016 LOCATION: BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside  COMMISSIONERS  Chair – Scott Matas Vice Chair – John F. Tavaglione Second Vice Chair – Dana Reed Kevin Jeffries, County of Riverside John F. Tavaglione, County of Riverside Chuck Washington, County of Riverside John J. Benoit, County of Riverside Marion Ashley, County of Riverside Deborah Franklin / Art Welch, City of Banning Lloyd White / Mike Lara, City of Beaumont Joseph DeConinck / Tim Wade, City of Blythe Ella Zanowic / Joyce McIntire, City of Calimesa Dawn Haggerty / Jordan Ehrenkranz, City of Canyon Lake Greg Pettis / Shelley Kaplan, City of Cathedral City Steven Hernandez / To Be Appointed, City of Coachella Karen Spiegel / Randy Fox, City of Corona Scott Matas / Russell Betts, City of Desert Hot Springs Adam Rush / Clint Lorimore, City of Eastvale Linda Krupa / Paul Raver, City of Hemet Dana Reed / Douglas Hanson, City of Indian Wells Michael Wilson / Glenn Miller, City of Indio Frank Johnston / Brian Berkson, City of Jurupa Valley Robert Radi / To Be Appointed, City of La Quinta Bob Magee / Natasha Johnson, City of Lake Elsinore Scott Mann / John Denver, City of Menifee Yxstian Gutierrez / Jesse Molina, City of Moreno Valley Rick Gibbs / Jonathan Ingram, City of Murrieta Berwin Hanna / Ted Hoffman, City of Norco Jan Harnik / Susan Marie Weber, City of Palm Desert Ginny Foat / Geoffrey Kors, City of Palm Springs Daryl Busch / Rita Rogers, City of Perris Ted Weill / To Be Appointed, City of Rancho Mirage Rusty Bailey / Andy Melendrez, City of Riverside Andrew Kotyuk / Crystal Ruiz, City of San Jacinto Michael S. Naggar / Michael McCracken, City of Temecula Ben Benoit / Timothy Walker, City of Wildomar John Bulinski, Director, Governor’s Appointee Caltrans District 8 COMM-COMM-00061 Riverside County Transportation Commission TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Clerk of the Board DATE: October 5, 2016 SUBJECT: Possible Conflicts of Interest — Riverside County Transportation Commission Agenda of October 12, 2016 The October 12, 2016 agenda of the Riverside County Transportation Commission includes items that may raise possible conflicts of interest. A Commissioner 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. 8A — Amendment to Interstate 15 Express Lanes Proiect Investment Grade Traffic and Revenue Study Services Agreement Consultant(s): Stantec Consulting Services, Inc. Steve Abendschein, Senior Principal 50 W. 23rd Street, 8th Floor New York, NY 10010 Agenda Item No. 8C — 91 Express Lanes Traffic Operations Center Video Systems Maintenance Agreement Consultant(s): Parsons Transportation Group Daniel Lukasik, Vice President One Centerpointe Drive, Suite 210 La Palma, CA 90623 Agenda Item No. 8E — Agreement with Mobile Relay Associates, LLC for Freeway Service Patrol Digital Radio System, Equipment, and Services Consultant(s): Mobile Relay Associates, LLC Joyce Peters, Sales Manager 15330 Vermont Avenue Paramount, CA 90723 RCTC Potential Conflicts of Interest October 5, 2016 Page 2 Agenda Item No. 10 — Call Box Program Reductions and Upgrades Consultant(s): CASE Systems Inc. Sebastian E. Gutierrez 5 Goddard Irvine, CA 92618 Agenda Item No. 126 — Closed Session — Conference With Real Property Negotiators For the Pachappa Project Item APN(s) RCPN Property Owner(s) 1 219-182-004 219-182-006 219-182-007 1086 City of Riverside 2 219-182-010 219-182-011 1087 AT&SF 3 219-182-014 219-191-001 219-094-005 219-103-015 219-103-017 1088 AT&SF 4 219-182-003 1089 UPRR 5 219-103-016 219-103-031 1090 UPRR 6 219-182-005 1091 UPRR 7 219-103-019 1092 City of Riverside 8 219-182-012 1093 City of Riverside 9 219-181-012 1094 Bates, Theodore 10 219-181-007 1095 Bobo, Kenneth For the Interstate 15 Express Lanes Project Item APN(s) RCPN Property Owner(s) 11 277-301-007 1096 Villareal, Francisco & Yolanda 12 277-301-014 1097 Farragut, George H & Lisa L 13 277-301-015 1098 Neice, George M & Gerarda 14 277-301-016 1099 Gricol, Thomas P & Christel 15 277-301-017 1100 Nelson, Steven E & Jennifer 16 277-301-018 1101 Lage, Michael & Jennifer C 17 277-301-019 1102 Votava, Larry Joseph 18 277-313-006 1103 Reynolds, Ronald L & Sydnia C 19 277-210-001 1104 Corner Stone Enterprises 20 277-330-015 1105 Finks, Irving Joseph & Diane Marie 21 277-330-014 1106 Spirit, Susanne 22 277-330-013 1107 Rauda, Boris P RCTC Potential Conflicts of Interest October 5, 2016 Page 3 23 277-330-012 1108 Carpio, Delfidio & Maria I 24 277-330-011 1109 Rechlin, Mark & Leticia Carino 25 277-330-010 1110 Bushong, Sean 26 277-330-009 1111 Fuller, Darlene J & Gilbert 27 277-330-008 1112 Eilefson, Dennia 28 277-343-006 1113 Moore, Cecil T & Ingrid J 29 277-343-005 1114 Verdusco, Veronica & Alfred Garcia 30 277-343-004 1115 Dusterer, Ernst & Corinne 31 277-343-003 1116 Jones, Joe Ann Ray 32 115-070-001 1117 BNSF 33 115-080-025 1118 Choi, Bruce Inback & Doyun 34 115-070-016 115-070-018 1119 City of Norco For the Mid County Project Item APN(s) RCPN Property Owner(s) 35 300-210-016 1085 Stagliano, Vincent J. & Peggy S. Trust 36 300-210-017 1120 lglesia Familia de Dios 37 300-210-024 1121 Merriweather, Milton & Gloria Family Trust 38 300-210-025 1122 Mikus, Carole L, Mikus Family Credit Trust 39 426-060-020 1123 Hammerschmidt, Bernice & B.E. 40 426-072-001 1124 Hammerschmidt, Bernice & B.E. Tara Byerly From: Tara Byerly Sent: Tuesday, October 11, 2016 11:19 AM To: Tara Byerly Cc: Anne Mayer; STANDIFO; Jennifer Harmon Subject: RCTC: Amended October Commission Agenda - 10.12.2016 Importance: High Good morning Commissioners: Attached is the Amended Commission Agenda for the Commission meeting tomorrow. The only change was to the order of the agenda, which has been also posted on the Commission website and the link is included below. I also included a pdf of the face portion of the Commission for your use. http://www.rctc.org/uploads/media items/october-12-2016.original.pdf AGENDA 10_Amended_N... Please let me know if you have any questions or concerns. Thank you. Respectfully, Riverside County Transportation Commission Tara Byerly Deputy Clerk of the Board Riverside County Transportation Commission PO Box 12008, Riverside, CA 92502-2208 4080 Lemon Street, 3,d Floor, Riverside, CA 92501 (951) 787-7141 I rctc.org i Tara Byerly From: Tara Byerly Sent: Wednesday, October 05, 2016 4:02 PM To: Tara Byerly Cc: Jennifer Harmon; Anne Mayer; STANDIFO Subject: RCTC: October Commission Agenda - 10.12.2016 Importance: High Good afternoon Commissioners: The October Agenda for the Commission meeting scheduled for Wednesday, October 12, 2016 @ 9:30 a.m. is available. Please copy the link: http://www.rctc.org/uploads/media items/october-12-2016.original.pdf Conflict of Conflict of Interest Form.pdf Interest Memo.p... Also, attached for your review and information is the conflict of interest memo and form. Please let me know if you have any questions. Thank you. Respectfully, =err= Riverside County Transportation Commission Tara Byerly Deputy Clerk of the Board Riverside County Transportation Commission PO Box 12008, Riverside, CA 92502-2208 4080 Lemon Street, 3rd Floor, Riverside, CA 92501 (951) 787-7141 I rctc.org i Tara Byerly From: Tara Byerly Sent: Wednesday, October 05, 2016 4:05 PM To: Tara Byerly Subject: RCTC: October Commission Agenda - 10.12.2016 Importance: High Good afternoon Commission Alternates: The October Agenda for the Commission meeting scheduled for Wednesday, October 12, 2016 @ 9:30 a.m. is available. Please copy the link: http://www.rctc.org/uploads/media items/october-12-2016.original.pdf Thank you. Riverside County Transportation Commission Tara Byerly Deputy Clerk of the Board Riverside County Transportation Commission PO Box 12008, Riverside, CA 92502-2208 4080 Lemon Street, 3rd Floor, Riverside, CA 92501 (951) 787-7141 I rctc.org i AMENDED AGENDA Revision to Agenda Item Order RIVERSIDE COUNTY TRANSPORTATION COMMISSION  www.rctc.org    AGENDA*  *Actions may be taken on any item listed on the agenda    9:30 a.m.  Wednesday, October 12, 2016    BOARD ROOM  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, Government Code Section 54954.2, and the Federal  Transit Administration Title VI, please contact the Clerk of the Board at (951) 787‐7141 if special assistance is  needed to participate in a Commission meeting, including accessibility and translation services.  Assistance is  provided free of charge.  Notification of at least 48 hours prior to the meeting time will assist staff in assuring  reasonable arrangements can be made to provide assistance at the meeting.      1. CALL TO ORDER    2. PLEDGE OF ALLEGIANCE    3. 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.    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 – SEPTEMBER 14, 2016    Riverside County Transportation Commission Agenda  October 12, 2016  Page 2  6. ADDITIONS / 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. PRESENTATION:  40TH ANNIVERSARY SPOTLIGHT – SERVICE AUTHORITY FOR FREEWAY  EMERGENCIES    8. 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.     8A. AMENDMENT TO INTERSTATE 15 EXPRESS LANES PROJECT INVESTMENT GRADE  TRAFFIC AND REVENUE STUDY SERVICES AGREEMENT  Page 1   Overview      This item is for the Commission to:      1) Approve Agreement No. 15‐31‐048‐01, Amendment No. 1 to Agreement No.  15‐31‐048‐00, with Stantec Consulting Services, Inc. (Stantec) for investment  grade traffic and revenue study services for the Interstate 15 Express Lanes  project for an additional amount of $199,400 and a total amount not to exceed  $1,399,400; and    2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to  execute the agreement on behalf of the Commission.        8B. AMENDMENT TO 91 EXPRESS LANES RCTC‐OCTA FACILITY AGREEMENT  Page 9   Overview      This item is for the Commission to:      1) Approve Agreement No. 16‐31‐025‐01, Amendment No. 1 to the 91 Express  Lanes RCTC‐OCTA Facility Agreement No. 16‐31‐025‐00, with the Orange  County Transportation Authority (OCTA) for the Corona Customer Service  Center (CSC) in the additional amounts of $50,000 for tenant improvements,  $78,316 for rent, plus a contingency amount of $6,416, for a total additional  amount not to exceed $134,732;    2) Authorize Chair or Executive Director, pursuant to legal counsel review, to  execute the agreement on behalf of the Commission; and    3) Authorize the Executive Director or designee to approve the use of the  contingency amount as may be required for the project.  Riverside County Transportation Commission Agenda  October 12, 2016  Page 3   8C. 91 EXPRESS LANES TRAFFIC OPERATIONS CENTER VIDEO SYSTEMS MAINTENANCE  AGREEMENT  Page 45   Overview      This item is for the Commission to:      1) Award Agreement No. 17‐31‐020‐00 to Parsons Transportation Group  (Parsons) for maintenance and repair of the video systems for the 91 Express  Lanes Traffic Operations Center (TOC) for a one‐year term, and two one‐year  options plus two two‐year options to extend the agreement, and authorize in  an amount not to exceed $850,934; and    2) Authorize the Chair or Executive Director, subject to legal counsel review, to  execute the agreement, including option years, on behalf of the Commission.     8D. CALTRANS MAINTENANCE AGREEMENT FOR RCTC 91 EXPRESS LANES  Page 74   Overview      This item is for the Commission to:      1) Approve Agreement No. 17‐31‐021‐00 with the California Department of  Transportation (Caltrans) for roadway maintenance of the RCTC 91 Express  Lanes for a 50‐year term in an amount not to exceed $245,104 for the initial  18‐month period;    2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to  execute the agreement on behalf of the Commission; and    3) Authorize the Executive Director to execute amendments to the agreement  related to the cost for each annual work plan following the initial period for an  additional amount not to exceed an annual increase of 3 percent.     8E. AGREEMENT WITH MOBILE RELAY ASSOCIATES, LLC FOR FREEWAY SERVICE PATROL  DIGITAL RADIO SYSTEM, EQUIPMENT, AND SERVICES  Page 98   Overview      This item is for the Commission to:      1) Award Agreement No. 17‐45‐022‐00 to Mobile Relay Associates, LLC (MRA) for  a Freeway Service Patrol (FSP) digital radio system, equipment, and services for  a three‐year term and two one‐year options to extend the agreement, in an  amount not to exceed $150,000; and    2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to  execute the agreements, including option years, on behalf of the Commission.  Riverside County Transportation Commission Agenda  October 12, 2016  Page 4  9. RCTC 91 EXPRESS LANES OPENING DAY TOLL RATES  Page 129  Overview     This item is for the Commission to receive and file the schedule of opening day toll rates for  the RCTC 91 Express Lanes.    10. CALL BOX PROGRAM REDUCTIONS AND UPGRADES  Page 155  Overview     This item is for the Commission to:   1) Approve the implementation of Call Box Scenario 3;   2) Approve Agreement No. 13‐45‐102‐02, Amendment No. 2 to Agreement  No. 13‐45‐102‐00, with CASE Systems, Inc. (CASE) to provide call box removal and  upgrade services consistent with Call Box Scenario 3, for an additional amount of  $384,240, and a total amount not to exceed $1,384,240; and   3) Authorize the Executive Director pursuant to legal counsel review, to execute the  amendment on behalf of the Commission.    11. STATE AND FEDERAL LEGISLATIVE UPDATE  Page 161  Overview     This item is for the Commission to receive and file an update on the state and federal  legislation.  12. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA    13. COMMISSIONERS / 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.    14. CLOSED SESSION     14A. CONFERENCE WITH LEGAL COUNSEL:  ANTICIPATED LITIGATION    Exposure to Litigation Pursuant to Subdivision (d)(2) of Government Code Section  54956.9    Potential Number of Case(s): 1      Riverside County Transportation Commission Agenda  October 12, 2016  Page 5   14B. CONFERENCE WITH REAL PROPERTY NEGOTIATORS    Pursuant to Government Code Section 54956.8    Agency Negotiator: Executive Director or Designee    Property Owner(s):  See Below    Item APN(s) RCPN Property Owner(s)   1 219‐182‐004  219‐182‐006  219‐182‐007  1086 City of Riverside   2 219‐182‐010  219‐182‐011  1087 AT&SF   3 219‐182‐014  219‐191‐001  219‐094‐005  219‐103‐015  219‐103‐017  1088 AT&SF   4 219‐182‐003 1089 UPRR   5 219‐103‐016  219‐103‐031  1090 UPRR   6 219‐182‐005 1091 UPRR   7 219‐103‐019 1092 City of Riverside   8 219‐182‐012 1093 City of Riverside   9 219‐181‐012 1094 Bates, Theodore   10 219‐181‐007 1095 Bobo, Kenneth   11 277‐301‐007 1096 Villareal, Francisco & Yolanda   12 277‐301‐014 1097 Farragut, George H & Lisa L   13 277‐301‐015 1098 Neice, George M & Gerarda   14 277‐301‐016 1099 Gricol, Thomas P & Christel   15 277‐301‐017 1100 Nelson, Steven E & Jennifer   16 277‐301‐018 1101 Lage, Michael & Jennifer C   17 277‐301‐019 1102 Votava, Larry Joseph   18 277‐313‐006 1103 Reynolds, Ronald L & Sydnia C   19 277‐210‐001 1104 Corner Stone Enterprises   20 277‐330‐015 1105 Finks, Irving Joseph & Diane Marie   21 277‐330‐014 1106 Spirit, Susanne   22 277‐330‐013 1107 Rauda, Boris P   23 277‐330‐012 1108 Carpio, Delfidio & Maria I   24 277‐330‐011 1109 Rechlin, Mark & Leticia Carino   25 277‐330‐010 1110 Bushong, Sean   26 277‐330‐009 1111 Fuller, Darlene J & Gilbert   27 277‐330‐008 1112 Eilefson, Dennia   28 277‐343‐006 1113 Moore, Cecil T & Ingrid J   29 277‐343‐005 1114 Verdusco, Veronica & Alfred Garcia   30 277‐343‐004 1115 Dusterer, Ernst & Corinne   31 277‐343‐003 1116 Jones, Joe Ann Ray  Riverside County Transportation Commission Agenda  October 12, 2016  Page 6   Item APN(s) RCPN Property Owner(s)   32 115‐070‐001 1117 BNSF   33 115‐080‐025 1118 Choi, Bruce Inback & Doyun   34 115‐070‐016  115‐070‐018  1119 City of Norco   35 300‐210‐016 1085 Stagliano, Vincent J. & Peggy S. Trust   36 300‐210‐017 1120 Iglesia Familia de Dios   37 300‐210‐024 1121 Merriweather, Milton & Gloria Family Trust   38 300‐210‐025 1122 Mikus, Carole L, Mikus Family Credit Trust   39 426‐060‐020 1123 Hammerschmidt, Bernice & B.E.   40 426‐072‐001 1124 Hammerschmidt, Bernice & B.E.    15. ADJOURNMENT     The next meeting of the Commission is scheduled to be held on Wednesday, November 9, 2016, Board Room, First Floor, County Administrative Center, 4080 Lemon Street,  Riverside.    RIVERSIDE COUNTY TRANSPORTATION COMMISSION ROLL CALL OCTOBER 12, 2016 County of Riverside, District I County of Riverside, District II County of Riverside, District III County of Riverside, District IV County of Riverside, District V City of Banning Present 0 0 City of Beaumont ,� 0 0 Absent 0 0 0 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 Qu i nta J7r 0 0 0 0 0 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 DETACH AND SUBMIT TO THE CLERK OF THE BOARD DATE: f 0 - 12 - / /O CHECK IF PUBLIC COMMENTS: AGENDA ITEM NO.: (AS LISTED ON THE AGENDA) NAME: ADDRESS: UBJECT OF PUBLIC COMMENTS: SSV51-4 /fah // Jay 62rdrit SUBJECT OF AGENDA ITEM: % I ) 6 kdv STREET PHONE NO.: St; /7 ge r/71r ec6;10 CITY REPRESENTINGSO (i �i /175- -0, ��7 l.d efr' J NAME OF AGENCY / ORGANIZATION / GROUP PHONE NO.: ?"747-92- y(e ZIP CODE BUSINESS ADDRESS: STREET CITY ZIP CODE AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION    MINUTES  Wednesday, September 14, 2016    1. CALL TO ORDER    The Riverside County Transportation Commission was called to order by  Chair Scott Matas at 9:30 a.m. in the Board Room at the County of Riverside  Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501.    Chair Matas provided audio/visual system instructions for the new system and noted  there are information technology staff available to help.    Jennifer Harmon, Clerk of the Board, provided voting instructions for the new audio/visual  system.    2. PLEDGE OF ALLEGIANCE    Commissioner Dana Reed led the Commission in a flag salute.    3. ROLL CALL    Commissioners/Alternates Present Commissioners Absent    Marion Ashley Andrew Kotyuk  John J. Benoit  Rusty Bailey Linda Krupa  Jan Harnik  Ben Benoit Bob Magee  Greg Pettis  John Bulinski Scott Matas  Adam Rush  Daryl Busch Jesse Molina  Michael Wilson  John Denver Michael Naggar    Joseph DeConinck Robert Radi    Ginny Foat* Dana Reed    Deborah Franklin Karen Spiegel    Rick Gibbs John F. Tavaglione    Dawn Haggerty Chuck Washington    Berwin Hanna Ted Weill    Steven Hernandez Lloyd White    Kevin Jeffries Ella Zanowic    Frank Johnston        *Arrived after the meeting was called to order Riverside County Transportation Commission Minutes  September 14, 2016  Page 2  4. PUBLIC COMMENTS    Steve Hosford, Vice President of the Inland Empire Branch of the American Public Works  Association, presented Capital Projects Manager Edda Rosso with a plaque for the  Commission’s Perris Valley Line project, which was selected as Project of the Year for large  projects.  He noted the nominated projects needed to exhibit contributions to the  community and help promote public works.      Arnold San Miguel, Southern California Association of Governments (SCAG), announced  SCAG is hosting the California Housing Summit for elected officials on October 11,   8 a.m. – 2 p.m. at the L.A. Hotel.  Flyers were distributed to the Commissioners at the dais.    5. APPROVAL OF MINUTES – JUNE 8 AND JULY 13, 2016    M/S/C (Krupa/Ashley) to approve the June 8 and July 13, 2016 minutes as  submitted.    6. ADDITIONS / REVISIONS    There were no additions or revisions to the agenda.    7. CONSENT CALENDAR    M/S/C (Franklin/Washington) to approve the following Consent Calendar items.    7A. QUARTERLY FINANCIAL STATEMENTS    Receive and file the Quarterly Financial Statements for the period ended June 30,  2016.    7B. SINGLE SIGNATURE AUTHORITY REPORT    Receive and file the Single Signature Authority report for the fourth quarter  ended June 30, 2016.    7C. QUARTERLY SALES TAX ANALYSIS    Receive and file the sales tax analysis for Quarter 1, 2016 (1Q 2016).    7D. QUARTERLY INVESTMENT REPORT    Receive and file the Quarterly Investment Report for the quarter ended June 30,  2016.  Riverside County Transportation Commission Minutes  September 14, 2016  Page 3  7E. FISCAL YEAR 2014/15 TRANSPORTATION DEVELOPMENT ACT AND MEASURE A  AUDIT RESULTS    Receive and file the Transportation Development Act (TDA) and Measure A audit  results report for Fiscal Year 2014/15.    7F. TOLL FACILITY AGREEMENT WITH CALTRANS FOR INTERSTATE 15 EXPRESS  LANES IN RIVERSIDE COUNTY    1) Approve Agreement No. 17‐31‐002‐00 with Caltrans for Interstate 15  Express Lanes in Riverside County allowing the Commission to operate toll  lanes for 50 years;  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreement on behalf of the Commission; and  3) Authorize the Executive Director, or designee, to authorize non‐funding  changes as may be required for the project.    7G. ESTABLISHING THE RCTC OPERATIONS CENTER FOR TOLL OPERATIONS    1) Authorize staff to establish an integrated toll operations office – the RCTC  Operations Center (ROC);  2) Authorize staff to pursue the purchase of an existing office building to  serve as the ROC and return to the Commission with a purchase and sale  agreement recommendation for future consideration; and  3) Authorize staff to pursue the lease of an existing office building to serve as  the ROC should a purchase of an existing office building not be possible or  advisable to meet the Commission’s near‐term requirements.    7H. REQUEST FOR ADDITIONAL FUNDS FOR THE CAJALCO ROAD WIDENING PROJECT    Approve an additional $3 million of 2009 Measure A Western County New  Corridors and/or federal Surface Transportation Program (STP) funds to cover  costs associated with an expanded environmental document for the county of  Riverside’s (County) Cajalco Road widening project.    7I. CITY OF TEMECULA REQUEST TO REPROGRAM FUNDING FROM   INTERSTATE 15/FRENCH VALLEY PARKWAY PHASE 1 TO PHASE 2    1) Approve reprogramming the balance of Transportation Uniform  Mitigation Fee (TUMF) Community Environmental Transportation  Accountability Program (CETAP) funds for the Interstate 15/French Valley  Parkway interchange improvement project from Phase 1 to Phase 2 in the  amount of $1,472,509;  Riverside County Transportation Commission Minutes  September 14, 2016  Page 4  2) Approve Agreement No. 11‐72‐036‐01, Amendment No. 1 to Agreement   No. 11‐72‐036‐00, with the city of Temecula (Temecula) for the I‐ 15/French Valley Parkway interchange improvement Phase 1 project to  reflect the decrease in funding of $1,472,509;  3) Approve Agreement No. 17‐73‐007‐00 with Temecula for the I‐15/French  Valley Parkway interchange improvement Phase 2 project funding in an  amount not to exceed $1,472,509; and  4) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreements.    7J. CONSTRUCTION FUNDING REQUEST FOR INTERSTATE 215/SCOTT ROAD  INTERCHANGE    1) Approve $8 million in federal Surface Transportation Program (STP) funds  for the Interstate 215/Scott Road interchange improvement project; and  2) Direct staff to amend the Federal Transportation Improvement Program  (FTIP) and Regional Transportation Plan (RTP) to update the project  description and funding for Phase I and Phase II improvements.    7K. 2016 EARMARK REPURPOSING OF FEDERAL FUNDS UPDATE    1) Receive and file a report on the status of the 2016 Earmark Repurposing of  Federal Funds; and  2) Approve the replacement of the earmark balance for the State Route  60/Potrero Boulevard interchange with federal funds, in the amount of  $1,439,840, at such time when the project is deemed by Caltrans to be  ready to list.    7L. FISCAL YEAR 2016/17 ANNUAL LOCAL TRANSPORTATION FUND PLANNING  ALLOCATIONS TO WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS AND  COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS    Approve an allocation of Local Transportation Fund (LTF) planning funds in the  amount of $701,250 for Western Riverside Council of Governments (WRCOG) and  $382,500 for the Coachella Valley Association of Governments (CVAG) for efforts  identified in each agency’s Fiscal Year 2016/17 LTF Program Objectives/Work Plan  (Work Plan) that supports transportation planning programs, and functions  consistent with regional and subregional plans, programs and requirements.       Riverside County Transportation Commission Minutes  September 14, 2016  Page 5  7M. AMENDMENT TO AGREEMENT WITH JACOBS PROJECT MANAGEMENT CO. FOR  CONSTRUCTION MANAGEMENT SERVICES FOR THE INTERSTATE 215 CENTRAL  WIDENING PROJECT FROM SCOTT ROAD TO NUEVO ROAD IN THE CITY OF PERRIS    1) Approve Agreement No. 12‐31‐034‐07, Amendment No. 7 to Agreement  No. 12‐31‐034‐00, with Jacobs Project Management Co. (Jacobs) to fund  the cost of extended construction management, inspection, and testing  services for the Interstate 215 Central widening project in the amount of  $441,328, plus a contingency amount of $44,000, for an additional amount  of $485,328, and a total amount not to exceed $14,690,339;  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreement on behalf of the Commission;  3) Authorize the Executive Director or designee to approve the use of the  contingency amount as may be required for the project;  4) Approve reprogramming up to $500,000 of State Transportation  Improvement Program (STIP) Regional Improvement Program (RIP) funds  from construction capital to construction support;  5) Authorize the Executive Director, pursuant to legal counsel review, to  execute Agreement No. 12‐31‐078‐03, Amendment No. 3 to Agreement  No. 12‐31‐078‐00, with Caltrans to transfer up to $500,000 of STIP‐RIP  funds from construction capital to construction support; and  6) Approve an increase of $250,000 in FY 2016/17 budget revenues and  expenditures for construction management services related to the project.    7N. AMENDMENT TO TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL  ARTERIAL AGREEMENT FOR THE INTERSTATE 15/RAILROAD CANYON ROAD  INTERCHANGE PROJECT IN THE CITY OF LAKE ELSINORE    1) Approve Agreement No. 10‐72‐016‐05, Amendment No. 5 to Agreement   No. 10‐72‐016‐00, with the city of Lake Elsinore (Lake Elsinore) for the  Interstate 15/Railroad Canyon Road interchange project to authorize an  additional $350,000 in Transportation Uniform Mitigation Fee (TUMF)  funds to complete project approval and environmental document (PA&ED)  phase for a total PA&ED phase funding amount of $2,555,000;  2) Approve Agreement No. 11‐31‐107‐05, Amendment No. 5 to Agreement   No. 11‐31‐107‐00, with SC Engineering to complete the PA&ED services  associated with the project in the amount of $230,000, plus an additional  contingency amount of $34,500 for an additional amount of $264,500, and  a total amount not to exceed $1,494,509;  3) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreements on behalf of the Commission; and  Riverside County Transportation Commission Minutes  September 14, 2016  Page 6  4) Authorize the Executive Director, or designee, to approve release of  contingency work up to the total authorized amount as may be required  for the project.    7O. AGREEMENT WITH JACOBS PROJECT MANAGEMENT COMPANY FOR  CONSTRUCTION MANAGEMENT SERVICES FOR THE CONSTRUCTION OF THE  PACHAPPA UNDERPASS PROJECT    1) Award Agreement No. 16‐31‐051‐00 to Jacobs Project Management  Company (Jacobs) to provide construction management (CM), materials  testing, and construction surveying services for the Pachappa Underpass  project, in the amount of $1,739,231, plus a contingency amount of  $260,769, for a total amount not to exceed $2 million;  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreement on behalf of the Commission; and  3) Authorize the Executive Director, or designee, to approve contingency  work as may be required for the project.    7P. LIST OF PRE‐QUALIFIED FIRMS AND AGREEMENTS FOR ON‐CALL GEOTECHNICAL  INVESTIGATION – LABORATORY AND FIELD TESTING OF MATERIALS SERVICES    1) Award the following agreements to provide on‐call geotechnical  investigation – laboratory and field testing of materials services for a three‐ year term with two one‐year options to extend the agreement, in an  amount not to exceed an aggregate value of $500,000;  a) Agreement No. 16‐31‐078‐00 with Converse Consultants  (Converse);  b) Agreement No. 16‐31‐112‐00 with Leighton Consulting Inc.  (Leighton); and  c) Agreement No. 16‐31‐113‐00 with Ninyo & Moore Geotechnical  and Environmental Sciences Consultants (Ninyo & Moore)  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreements, including option years, on behalf of the  Commission; and  3) Authorize the Executive Director, or designee, to execute task orders  awarded to contractors under the terms of the agreements.       Riverside County Transportation Commission Minutes  September 14, 2016  Page 7  7Q. AGREEMENT FOR SECURITY GUARD SERVICES AT COMMISSION‐OWNED  COMMUTER RAIL STATIONS AND CONTROL CENTER    1) Award Agreement No. 16‐24‐079‐00 to Allied Universal Security Services  (Allied Universal) for the provision of security services and leased golf carts  at the Commission‐owned commuter rail stations and control center for a   three‐year term, and two two‐year options to extend the agreement, in an  amount not to exceed $18,336,000; and  2) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreement, including option years, on behalf of the  Commission.    7R. AGREEMENTS FOR FREEWAY SERVICE PATROL TOW TRUCK SERVICES    1) Award Agreement No. 16‐45‐082‐00 to Pepe’s Towing for Freeway Service  Patrol (FSP) tow truck services on State Route 91 Beat No. 4 for a three‐ year term, and one two‐year option to extend the agreement, in an  amount not to exceed $1,330,000;  2) Award Agreement No. 16‐45‐083‐00 to Pepe’s Towing for FSP tow truck  services on SR‐60 Beat No. 7 for a three‐year term, and one two‐year  option to extend the agreement, in an amount not to exceed $1,330,000;  3) Award Agreement No. 16‐45‐103‐00 to Steve’s Towing for FSP tow truck  services on the Riverside 91 Express Lanes Beat No. 91‐T for a three‐year  term, and one two‐year option to extend the agreement, in an amount not  to exceed $1,205,000; and  4) Authorize the Chair or Executive Director, pursuant to legal counsel review,  to execute the agreements, including option years, on behalf of the  Commission.    8. TERMINATION OF SWAP AND REFUNDING OF 2009 SERIES A SALES TAX REVENUE  BONDS    Theresia Trevino, Chief Financial Officer, presented the swap termination and the 2016  Series A Sales Tax Revenue Refunding Bonds (2016 Refunding Bonds), highlighting the  following areas:     Interest rate swap considerations;   Synthetic fixed interest rate debt;   Integrated swap performance;   Swap status;   Deutsche Bank (DB) swap options;   2016 Refunding Bonds proceeds;  Riverside County Transportation Commission Minutes  September 14, 2016  Page 8   Swap termination and refunding transaction approvals; and   Next steps upon Commission approval: 1) Negotiate settlement with DB to  terminate the swap; 2) Conduct a competitive sale of the refunding bonds on  September 28; and 3) Sign closing documents on October 11 with the close on  October 12.    Commissioner Steven Hernandez expressed appreciation for a thorough presentation and  concurred with the direction the Commission is taking.  He then asked about the  termination value to DB since DB’s rating obligations were not met and if there were some  lessons learned if the Commission were to invest in swaps in the future.    Ms. Trevino expressed this is the second time the Commission paid to terminate a swap  in which the Commission was not at fault.  She discussed bond interest rates compared  to swap interest rates and the Commission’s position where there is a liability to pay even  though DB did not meet its obligations.  She then discussed the Commission’s decision  process when it entered into the swap.      Dan Wiles, Fieldman, Rolapp & Associates, Inc. (Fieldman), explained how swaps are  structured.    In response to Commissioner Dana Reed’s request for clarification regarding all potential  conflicts listed on the Conflicts of Interest (COI) memorandum distributed to the  Commissioners, Theresia Trevino replied the swap advisor Riverside Risk Advisors  (Riverside Risk) was inadvertently omitted.  Riverside Risk is a small consulting firm based  in New York and not a subsidiary to any other firm.    Commissioner Reed requested staff ensure all disclosures are provided in the COI  memorandum in order to minimize risks.    Anne Mayer concurred with Commissioner Reed’s comment.    In response to Commissioner Andrew Kotyuk’s questions regarding the impact to the  Commission if 1) there was an interest rate increase; 2) the Commission held the swap  for 6 to 12 months; and 3) there was investment rating movement.    Dan Wiles explained the possible impacts if each one of these scenarios occurred.    At Commissioner Kotyuk’s request, Dan Wiles clarified the termination fee is based on  interest movement, not on the credit rating.       Riverside County Transportation Commission Minutes  September 14, 2016  Page 9  Anne Mayer stated staff spent the past four months carefully evaluating this matter in  consultation with the Commission’s experts and financial advisors.  She expressed this  matter was presented to the Budget and Implementation Committee in June and August  and to the Commission in July, and recommends the Commission proceed.    Commissioner Kotyuk expressed appreciation for Ms. Mayer’s comments.  He stated  there were a couple of issues on other agenda items at the Western Riverside County  Programs and Projects Committee meeting in August where Commissioners needed  additional information to better understand the agenda item and where the funds are  going, such as contingency amounts.  Commissioner Kotyuk then asked staff or the  financial consultant to discuss the worst case scenario.    Dan Wiles stated the worst case scenario is DB folds and there is an immediate demand.   He explained the Commission would have to come up with the money immediately, which  commercial paper would be used and refinanced at the current market rate.  He then  discussed the current proposal for effectively terminating the swap based on a set of  market values.    Theresia Trevino added there was a comment in Fitch’s rating report received yesterday  noting the Commission’s variable rate exposure would decrease to about 10 percent of  the Commission’s outstanding debt with this transaction.    Dan Wiles stated the recommended action will allow the Commission to move prudently,  avoiding a disaster kind of situation, with an opportunity to do a well thought out and  structured transaction in a favorable market environment and enable the Commission to  remove a bit of potential volatility from its financing program.    Commissioner Tavaglione stated the bond rating agencies have the utmost respect and  confidence in the Commission’s team and supported staff’s recommendation.    At Commissioner Kevin Jeffries’ request for clarification, Steve DeBaun, legal counsel,  replied there is no action to amend the Best Best and Krieger LLP contract so there is no  COI with regards to this agenda item.    Commissioner Jeffries stated he can proceed and vote.    At Commissioner Karen Spiegel’s request, Theresia Trevino discussed how the  Commission’s Debt Management Policy was applied to this matter, specifically “the  Commission’s main objectives in the sale of debt are to:  obtain the lowest possible cost  of funds for each of the Commission’s borrowing programs; obtain the highest possible  credit ratings that allows such sufficient flexibility; and manage and minimize risk  exposure to variable rate debt and or derivatives.”    Riverside County Transportation Commission Minutes  September 14, 2016  Page 10  Dan Wiles added the termination value and the long term replacement debt will continue  to move as interest rates move.  If the Commission does not act now then it is speculating  on the market, which is not the financial advisor’s advice.    M/S/C (Jeffries/Radi) to:    1) Receive and file the presentation regarding the termination of the  Deutsche Bank (DB) swap and related issuance of the 2016 Series A Sales  Tax Revenue Refunding Bonds (2016 Refunding Bonds);  2) Approve the termination of the forward interest rate swap with DB in the  currently outstanding notional amount of $63.9 million and at an  estimated termination cost of $10.7 million;  3) Approve the refunding of the 2009 Series A Sales Tax Revenue Variable  Rate Demand Bonds (2009 Bonds), currently outstanding in the amount  of $63.9 million and integrated with the DB swap;  4) Adopt Resolution No. 16‐015, “Resolution Authorizing the Issuance and  Sale of Not to Exceed $85,000,000 Aggregate Principal Amount of  Riverside County Transportation Commission Sales Tax Revenue  Refunding Bonds (Limited Tax Bonds), the Refunding of Outstanding  Bonds and Commercial Paper, the Execution and Delivery of a Sixth  Supplemental Indenture, a Notice of Sale Pursuant to Which Such Bonds  Are to Be Sold, an Official Statement and a Continuing Disclosure  Agreement, the Publication of a Notice of Intention to Sell, and the Taking  of All Other Actions Necessary in Connection Therewith”;  5) Approve the draft Official Statement for the issuance of not to exceed  $85 million in 2016 Refunding Bonds and authorize the Executive Director  to approve and execute the printing and distribution of the final Official  Statement;  6) Approve the draft Continuing Disclosure Agreement related to the 2016  Refunding Bonds between the Riverside County Transportation  Commission and Digital Assurance Certification, L.L.C., as dissemination  agent, and authorize the Executive Director to approve and execute the  final Continuing Disclosure Agreement;  7) Approve the draft Sixth Supplemental Indenture for the 2016 Refunding  Bonds between the Riverside County Transportation Commission and  U.S. Bank National Association (US Bank), as Trustee, and authorize the  Executive Director to approve and execute the final Sixth Supplemental  Indenture;  8) Approve the draft Official Notice of Sale for the 2016 Refunding Bonds  and authorize the Chief Financial Officer to approve and execute the final  Official Notice of Sale;  Riverside County Transportation Commission Minutes  September 14, 2016  Page 11  9) Authorize the Chief Financial Officer to receive bids for the 2016  Refunding Bonds and award such bonds to the highest responsible bidder  resulting in the lowest true interest cost;  10) Approve the estimated costs of issuance of $375,000 to be paid from the  bond proceeds;  11) Award Agreement No. 17‐19‐006‐00 with Riverside Risk Advisors LLC  (Riverside Risk) for specialized swap advisory services related to the  termination of the DB swap through October 31, 2016, in the amount of  $11,000, plus a contingency amount of $4,000, for a total amount not to  exceed $15,000;  12) Approve Agreement No. 04‐19‐029‐10, Amendment No. 10 to Agreement  No. 04‐19‐029‐00, with Fieldman Rolapp & Associates, Inc. (Fieldman) for  financial advisory services related to the termination of the DB swap and  issuance of the 2016 Refunding Bonds for an additional amount not to  exceed $70,000;  13) Approve Agreement No. 05‐19‐510‐11, Amendment No. 11 to Agreement  No. 07‐31‐14‐00, with Orrick, Herrington, & Sutcliffe LLP (Orrick) for bond  counsel services related to the termination of the DB swap and issuance  of the 2016 Refunding Bonds for an additional amount of $115,000 and a  total amount not to exceed $1,975,000;  14) Approve Agreement No. 09‐19‐072‐10, Amendment No. 10 to Agreement  No. 09‐19‐072‐00, with Norton Rose Fulbright US LLP (Norton Rose) for  disclosure counsel services related to the termination of the DB swap and  issuance of the 2016 Refunding Bonds for an additional amount of  $57,500 and a total amount not to exceed $637,600; and  15) Approve the revised Debt Management Policy.    No:  Foat, Hernandez, Kotyuk, and Weill    At this time, Chair Matas left the meeting and Vice Chair John Tavaglione assumed the Chair.    9. RIVERSIDE TRANSIT AGENCY DOWNTOWN RIVERSIDE PERRIS VALLEY LINE SHUTTLE    Sheldon Peterson, Rail Manager, expressed appreciation to Riverside Transit Agency  (RTA) for partnering with the Commission.  He then presented the Downtown Riverside  Perris Valley Line (PVL) shuttle, highlighting the following areas:     Identifying the service need;   A map depicting the proposed Route 54;   The proposed Route 54 schedule; and   Shuttle plan – Annual project costs, funding for the project, and FY 2016/17  budget and short range transit plan will be amended.  Riverside County Transportation Commission Minutes  September 14, 2016  Page 12  At this time, Commissioners Berwin Hanna and Jeffries left the meeting.    In response to Commissioner Jesse Molina’s question regarding future shuttle routes,  Sheldon Peterson replied staff will continue to work with RTA to identify those routes.   When service was initiated, RTA setup shuttles in a number of different communities.    Commissioner Molina stated the city of Moreno Valley has employment centers near the  county hospital for future consideration.    Sheldon Peterson stated staff conducted outreach in that neighborhood as well as  March JPA and others to try to determine the employment base and how to best serve it.    In response to Commissioner Dawn Haggerty’s request for clarification, Sheldon Peterson  stated Metrolink added a $10 roundtrip Rams Train service to the 91 and Perris Valley  Lines for all of the team’s home games this season, which includes a shuttle.    M/S/C (Weill/Spiegel) to:    1) In partnership with the Riverside Transit Agency (RTA), establish a new  Downtown Riverside Perris Valley Line (PVL) shuttle service;  2) Approve an increase of $225,000, in the Fiscal Year 2016/17 budgeted  federal revenues and transit operating expenditures for the PVL shuttle  service; and  3) Amend the FY 2016/17 Commuter Rail Short Range Transit Plan to add  $225,000 in federal funds and operating cost for the shuttle service.    10. STATE AND FEDERAL LEGISLATIVE UPDATE    Aaron Hake, External Affairs Director, presented an update on state and federal legislative  activities, highlighting the following areas:     Bills on Governor Brown’s Desk – AB 1943 (Linder) Sponsor; AB 2170 (Frazier)  Support; AB 626 (Chiu & Low); and AB 1889 (Mullin) Support; and   Cap and Trade deal – Governor and Legislature agreement and concern over  future of California’s Cap and Trade program, Transit and Intercity Rail Capital  program, and Affordable Housing/Sustainable Communities program.    At this time, Robert Yates, Multimodal Services Director, presented the federal grants and  congratulated the city of Blythe (Blythe) and its transit partner Palo Verde Valley Transit  Agency for receiving a Federal Transit Administration (FTA) Fostering Advancements in  Shipping and Transportation for the Long‐term Achievement of National Efficiencies  (FASTLANE) Grant in the amount of $185,000.  The grant category is medical and health  Riverside County Transportation Commission Minutes  September 14, 2016  Page 13  wellness and Blythe is a very difficult location to serve for these type of trips.  He discussed  the partnerships that helped contribute to these grant applications and the Commission  acted as the grant applicant and will administer it on behalf of Blythe.  Mr. Yates stated  the Commission is contributing part of the local match with respect to establishing a  Google Transit feed, which represents a total project amount of approximately $311,000.      Commissioner Washington requested clarification on the opposition to Proposition 53  regarding the Governor’s plan to construct the master tunnel project to resolve the Bay  Delta water crisis.      Aaron Hake replied the list is quite extensive and he will verify which water agencies are  opposed.    Commissioner Joey DeConinck expressed appreciation to staff and discussed how this  program got started and all of the support it received.    M/S/C (Radi/Foat) to:    1) Receive and file an update on state and federal legislation;  2) Adopt the following bill positions:  a) AB 626 (Chiu and Low) – Oppose;  b) AB 1889 (Mullin) – Support; and  3) Oppose Proposition 53.    11. RECOGNITION OF THE COMMISSION’S 40TH ANNIVERSARY    John Standiford, Deputy Executive Director, recognized and presented the Commission’s  40th Anniversary, highlighting the following areas:     Where it all started – Created by state law in 1976; areas of responsibility and  administration; responsible for state highway coordination and short range transit  plans; and suggests a small staff;   The Commission’s first meeting minutes – January 13, 1977;   Initial member composition;   Responsibilities evolved due to Legislation; and   Events to commemorate the Commission’s 40th Anniversary:  o Open House Reception scheduled for September 29, 3 p.m. – 7 p.m.;  o Presentations at future Commission meetings;  o Special dinner at the January Commission Workshop; and  o Distribution of a commemorative book.    Riverside County Transportation Commission Minutes  September 14, 2016  Page 14  Vice Chair Tavaglione noted one of the original Commissioners was Flora Spiegel,  Commissioner Karen Spiegel’s mother‐in‐law.    Mr. Standiford noted the first Chair was Russell Beirich, who was the mayor of the city of  Palm Springs and the Commission’s former Executive Director Eric Haley was also an  original member of the Commission as a councilmember from the city of Riverside.    M/S/C to receive as an information item.    12. ITEM(S) PULLED FROM CONSENT CALENDAR FOR DISCUSSION    There were no items pulled from the Consent Calendar.    13. COMMISSIONERS/EXECUTIVE DIRECTOR’S REPORT    12A. Commissioner John Bulinski announced on September 1, Caltrans District 7  employee Jorge Lopez was struck and killed by a semi‐truck on SR‐14 in northern  Los Angeles County.  It is important to remember to slow for the Cone Zone, be  work zone alert, and move over as it is the law.  Mr. Bulinski asked everyone to  please keep Jorge and his family, friends, and coworkers in their prayers.    12B. Anne Mayer announced:     Staff efforts to reach out to the community members and schools to  discuss rail safety, including See Tracks, Think Trains banners posted  through Western County near rail crossing; and   Welcomed and introduced two new staff members – Gary Ratliff, Facilities  Administrator, and Jose Mendoza, Procurement Analyst.    13. ADJOURNMENT    There being no further business for consideration by the Riverside County Transportation  Commission, Vice Chair Tavaglione adjourned the meeting at 11:15 a.m.  The next  Commission meeting is scheduled to be held at 9:30 a.m., Wednesday, October 12, 2016,  Board Room, First Floor, County Administrative Center, 4080 Lemon Street, Riverside.    Respectfully submitted,    Jennifer Harmon  Clerk of the Board  AGENDA ITEM 7 PRESENTATION RCTC’s 40 th Anniversary Spotlight Service Authority for Freeway Emergencies October 12, 2016 Reflecting on the Past to Guide the Future The History of Call Boxes •First Highway Call Box in California in 1962 •Legislature Created SAFE’s in 1985 •RCTC Becomes a SAFE in 1986 •Cooperation with SANBAG for initial and ongoing implementation •First Call Boxes Installed in 1990 What is a SAFE? •Established by County Board of Supervisors and City Councils •Collects $1 surcharge from vehicle registrations •Can now fund other amenities including: –Changeable Message Signs –Freeway Service Patrol –Traffic Operations Centers –511/Traveler Information Upcoming Call Box Challenges •Can You Hear Me Now? Technology changes and higher costs ADA requirements Dwindling Call Volume Construction Value of providing additional Freeway Service Patrols The Good News! •Help is on the way! –Backbone call box network –IE 511 –Freeway Service Patrol AGENDA ITEM 8A Agenda Item 8A RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Michael Blomquist, Toll Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: Amendment to Interstate 15 Express Lanes Project Investment Grade Traffic and Revenue Study Services Agreement WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 15-31-048-01, Amendment No. 1 to Agreement No. 15-31-048-00, with Stantec Consulting Services, Inc. (Stantec) for investment grade traffic and revenue study services for the Interstate 15 Express Lanes project for an additional amount of $199,400 and a total amount not to exceed $1,399,400; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: The I-15 Express Lanes project is part of the Commission’s 2009 Measure A Western Riverside County Highway 10-Year Delivery Plan. The I-15 Express Lanes project will improve the I-15 freeway in northern Riverside County. The project will construct one to two tolled express lanes in each direction between the I-15/Cajalco Road interchange in Corona and the I-15/State Route 60 interchange just south of the Riverside/San Bernardino County line – approximately 15 miles. The tolled express lanes will be constructed in the existing I-15 freeway median and are planned to open in 2020. Proposed roadway improvements are anticipated to be constructed entirely within existing Caltrans freeway right of way with the majority of the improvements occurring within the existing I-I5 median. The Commission will operate and maintain the tolled express lanes after opening. The current proposed project funding and financing plan consists of five key sources: 1) Toll Revenue Bonds – Issued by the Commission and repaid from project net toll revenues. 1 Agenda Item 8A 2) Transportation Infrastructure Finance and Innovation Act (TIFIA) Loan – Subordinate debt to the toll revenue bonds to be obtained by the Commission from the U.S. Department of Transportation TIFIA program and repaid from project net toll revenues. 3) Federal Congestion Mitigation and Air Quality (CMAQ) Improvement Funds – Federal grant funds supporting surface transportation projects that contribute air quality improvements and provide congestion relief. 4) Surface Transportation Program (STP) Funds – Federal grant funds that provide flexible funding to preserve and improve the condition and performance on any federal-aid highway. 5) Measure A Sales Tax – To be funded both on a pay as you go basis and through Measure A sales tax revenue bonds issued by the Commission. The successful sale of toll revenue bonds and securing a federal TIFIA loan is dependent on many factors including the preparation of an investment grade traffic and revenue study. This study needs to support the Commission obtaining investment grade toll revenue bond ratings from Moody’s Investor Service, Fitch Ratings, and/or Standard & Poor’s Rating Service. The investment grade traffic and revenue study also supported the I-15 Express Lanes project toll policy that was developed and ultimately approved by the Commission at its June 8, 2016 meeting. At its April 8, 2015 meeting, the Commission approved the award of Agreement No. 15-31-048- 00 to Stantec for investment grade traffic and revenue study services for the I-15 Express Lanes project in the amount of $1.1 million, plus a contingency amount of $100,000, for a total amount not to exceed $1.2 million. Stantec has made significant progress in completing the investment grade traffic and revenue study and related services required for the successful sale of toll revenue bonds and to secure a federal TIFIA loan. At its June 8, 2016 meeting, the Commission adopted the final investment grade traffic and revenue study – a key milestone that sets the stage for the Commission project financing completion in 2017. Staff and Stantec have worked for several months to obtain an early bond rating known as an indicative rating that is a necessary step of the federal TIFIA loan process. Obtaining this indicative rating is a requirement in order to submit an early loan package to the federal TIFIA office. Significantly more effort by Commission staff, financial advisors, underwriters, and Stantec has been required to obtain this indicative rating from Fitch Ratings. This additional effort was needed for several reasons. First, the I-15 Express Lanes project investment grade traffic and revenue results are receiving greater scrutiny than those from the 91 Project. This is mostly due to the fact there is no express lane history on the I-15 corridor. The SR-91 corridor had over 17 years of traffic and revenue data from the OCTA 91 Express Lanes to support the Commission’s financing work in 2013. 2 Agenda Item 8A Second, more extensive bond rating requirements have been imposed at this early stage of the TIFIA process by Fitch Ratings versus those the Commission experienced as part of its 91 Project financing in 2013. As a result of these bond rating requirements, extensive vetting of the traffic and revenue study results by Fitch Ratings has required considerable time by Stantec to respond to questions, gather more data, perform additional analyses, attend meetings, and prepare formal and informal communication. The indicative bond rating has now been obtained. An initial notice of the rating was provided by Fitch Ratings on September 9, 2016. Additional funds are now required to complete the remainder of Stantec’s scope of services currently in its contract with the Commission. These remaining services are for the investment grade stage of work in 2017 and are similar to those provided at the indicative rating stage just completed. Staff recommends the Commission approve Agreement No. 15-31-048-01, Amendment No. 1 to Agreement No. 15-31-048-00, with Stantec for investment grade traffic and revenue study services for the I-15 Express Lanes project for an additional amount of $199,400 and a total amount not to exceed $1,399,400. Further, staff recommends the Commission authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $199,400 Source of Funds: Commercial Paper proceeds, 2009 Measure A Western County Highway Budget Adjustment: No GL/Project Accounting No.: 003027 65520 00009 0000 262 31 65520 Fiscal Procedures Approved: Date: 09/13/2016 Attachment: Agreement No. 15-31-048-01 with Stantec Consulting Services, Inc. 3 17336.02101\29182988.1 1 Agreement No. 15 -31-048-01 AMENDMENT NO. 1 TO AGREEMENT FOR INVESTMENT GRADE TRAFFIC AND REVENUE STUDY SERVICES FOR THE I-15 EXPRESS LANES PROJECT 1. PARTIES AND DATE This Amendment No. 1 to the Agreement for Investment Grade Traffic and Revenue Stud y Services for the I-15 Express Lanes Project is made and entered into as of this ______ day of ___________, 2016 , by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“Commission”) and STANTEC CONSULTING SERVICES INC. ("Consultant"), a New York corporation. 2. RECITALS 2.1 Commission and Consultant have entered into that certain Agreement for Investment Grade Traffic and Revenue Study Services for the I-15 Express Lanes Project , dat ed April 8, 2015 (the "Master Agreement"). 2.2 The parties now desire to amend the Master Agreement in order to revise the Scope of Services to provide additional traffic and revenue study work necessary for the I-15 Express Lanes Project (the “Project”), to revise the Sc hedule of Services, and to provide additional compensation for the additional services. 3. TERMS 3.1 The Scope of Services for the Master Agreement shall be amended to include Services, as that term is defined in the Master Agreement, required to complete the traffic and revenue study work, as more fully described in Exhibit "A" attached to this Amendment and incorporated herein by reference. 3.2 The Services, as hereby amended, shall be performed expeditiously, in accordance with the requirements for the Project. The Schedule of 4 17336.02101\29182988.1 2 Services set forth in Exhibit “A” of the Master Agreement is hereby deleted. Upon request of Commission, Consultant shall prepare a more detailed schedule for performance and completion of the Services (“Schedule”). Once approved by Commission, Consultant shall complete the Services in conformance with any such Schedule. 3.3 The maximum compensation for Services performed pursuant to this Amendment shall be One Hundred Ninety Nine Thousand, Four Hundred Dollars ($199,400), as further set forth in Exhibit "B" attached to this Amendment and incorporated herein by reference. Work shall be performed at the rates set forth in the Master Agreement. 3.4 The total compensation to be provided under the Master Agreement, as amended by this Amendment, shall not exceed One Million, Two Hundred Ninety Nine Thousand, Four Hundred Dollars ($1,299,400). 3.5 Except as amended by this Amendment, all provisions of the Master Agreement, including without limitation the indemnity and insurance provisions, shall remain in full force and effect and shall govern the actions of the parties under this Amendment. [Signatures on following page] 5 17336.02101\29182988.1 3 SIGNATURE PAGE TO AGREEMENT NO. 15-31-048-01 IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the date first herein above written. RIV ERSIDE COUNTY STANTEC CONSULTING TRANSPORTATION COMMISSION SERVICES INC. By: _____________________________ By : _____________________ Anne Mayer, Executive Director Title: _____________________ APPROVED AS TO FORM: ATTEST: By: _____________________________ By: ______________________ Best Best & Krieger LLP Counsel to the Riverside County Its: ______________________ Transportation Commission 6 Exhibit A 17336.02101\29182988.1 EXHIBIT "A" SCOPE OF SERVICES The Project is currently in the process of obtaining an indicative rating from Fitch. The next major phases of the Project will be obtaining approval for TIFIA financing, obtaining a final rating from the rating agencies, and responding to investors. These phases of the Project will require Consultant to present assumptions and results of the I-15 ELP T&R study to TIFIA, the rating agencies, and investors, to test the I-15 ELP T&R under various alternative scenarios, and to respond to questions. The indicative rating process for the Project has been far longer and required far more effort than originally anticipated. From start to end, the process of obtaining an indicative rating (still to be issued) has taken nearly 6 months, at a cost of over $100,000. Consultant participated in numerous conference calls, responded to numerous data requests, and conducted many more T&R sensitivities than anticipated for this indicative rating process. As a result, Consultant spent far more budget on this process than initially envisioned. A sample of the sensitivity trials that Consultant conducted, which are hereby incorporated into the Scope of Services, to the extent not already addressed in the Master Agreement, include: 1) Economic downside, version 1 2) Economic downside version 2 3) Value of time -10% 4) Value of time -20% 5) Value of time -30% 6) Value of reliability removed 7) Global traffic reduced 8) RCTC SR 91 express lanes not built 9) No induced demand in the I-15 corridor 10) Combined downside 1 11) Combined downside 2 12) Revenue maximization runs 13) Reduced revenue annualization factor with combined downside 1 14) Reduced revenue annualization factor with combined downside 2 The Scope of Services, as amended, shall include the additional effort required for conducting numerous T&R sensitivities, data requests, and attending meetings required for obtaining the final bond rating from the rating agencies, obtaining financing approval from TIFIA, and replying to investor inquiries. 7 Exhibit B 17336.02101\29182988.1 EXHIBIT "B" COMPENSATION 8 AGENDA ITEM 8B Agenda Item 8B RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Eric DeHate, Senior Management Analyst Michael Blomquist, Toll Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: Amendment to 91 Express Lanes RCTC-OCTA Facility Agreement WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 16-31-025-01, Amendment No. 1 to the 91 Express Lanes RCTC- OCTA Facility Agreement No. 16-31-025-00, with the Orange County Transportation Authority (OCTA) for the Corona Customer Service Center (CSC) in the additional amounts of $50,000 for tenant improvements, $78,316 for rent, plus a contingency amount of $6,416, for a total additional amount not to exceed $134,732; 2) Authorize Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director or designee to approve the use of the contingency amount as may be required for the project. BACKGROUND INFORMATION: In November 2015 the Commission approved an agreement that serves to facilitate implementation of certain portions of the cooperative agreement between OCTA and the Commission for the operation of the 91 Express Lanes. Section 2.7.2 of the cooperative agreement established the Commission’s requirement to pay for improvements to the CSC needed to accommodate additional staff as a result of the 91 Project and the sharing of the lease costs after the RCTC 91 Express Lanes opening date. The facility agreement anticipated an amendment would be required to address the build-out of the existing CSC at 2275 Sampson Avenue, Suite 100 in Corona and the Commission’s share of the building lease costs as of the opening date of the RCTC 91 Express Lanes. The build-out is required to accommodate the additional Cofiroute USA, LLC staff that will provide customer service as a result of the RCTC 91 Express Lanes. It is projected 11 additional 9 Agenda Item 8B staff will be required at the CSC to answer customer telephone calls and assist customers who visit the walk-in center. Improvements to the CSC will include the following: • Power, lighting, data, and communications; • Additional security cameras; • Sound masking system; • Additional cubicles and existing cubicle relocation; • Shelving and cabinet relocation; and • Server room cable management and heat loading review. OCTA holds a lease with CPI Properties (CPI) for the CSC. OCTA is prepared to have CPI perform the tenant improvements at the CSC. The estimated cost of the tenant improvements is not to exceed $50,000. The existing CSC lease agreement between OCTA and CPI extends through September 30, 2018, and is included as an attachment to this report. The Commission’s obligation to pay its share of the rent begins on the opening date of the RCTC 91 Express Lanes. An early 2017 opening would result in approximately 20.5 months of lease payments at a cost of approximately $78,316. The estimated costs include the base lease amount and common area maintenance expenses. Staff is requesting approval of an amendment to the facility agreement in the amount of $50,000 for tenant improvements, $78,316 for lease payments, and $6,416 for a 5 percent contingency for a total amount of $134,732. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $70,943 $63,789 Source of Funds: Toll Bond Operations and Maintenance funds and Toll Revenues Budget Adjustment: No N/A GL/Project Accounting No.: 003028 81301 00000 0000 262 31 81301 (Tenant Improvements) 009199 73001 00000 0000 591 31 73001 (Lease Payments) Fiscal Procedures Approved: Date: 09/13/2016 Attachments: 1) Draft Agreement 16-31-025-01 2) CSC Lease Agreement 10 1 17336.02100\29180110.2 AMENDMENT NO. 1 TO 91 EXPRESS LANES RCTC- OCTA FACILITY AGREEMENT (“ROFA”) This Amendment No. 1 to 91 Express Lanes RCTC-OCTA Facility Agreement No. 16-31-025-00 (“Amendment No. 1”) is made and entered into this _____ day of _________ 2016 by and between the Riverside County Transportation Commission (“RCTC”) and the Orange County Transportation Authority (“OCTA”). RCTC and OCTA are sometimes referred to herein individually as "Party", and collectively as the "Parties". Recitals A. RCTC and OCTA previously entered into that certain RCTC-OCTA Facility Agreement (“ROFA”) dated November 24, 2015, to set forth the rights and obligations of the Parties related to the lease, expansion, and joint use of the Toll Operations Center, as that term is defined in the ROFA. B. The ROFA anticipated that an amendment would be required to address the build - out of the Customer Services Center, as that term is defined in the ROFA, and CSC lease payments, both of which are the purpose of this Amendment No. 1. NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually understood and agreed as follows: 1.Defined Terms. A. For the purposes of this Amendment No. 1, the following terms shall have the meanings hereinafter provided: (i) CAM Expenses . The term “CAM Expenses” shall mean and refer to the proportionate share of certain estimated operating expenses, tax expenses, utilities costs, and other charges which are determined by Landlord in accordance with the terms of the CSC Lease. (ii) CS C Lease . The term “CSC Lease” shall mean and refer to that certain Office Lease between OCTA and C.P.I. Properties for the CSC dated April 14, 2003, as amended, a copy of which is on file at the offices of the Parties and is incorporated herein by reference, as it may be amended in the future. The current term of the CSC Lease ends on September 30, 2018. (iii) Landlord. The term “Landlord” shall mean and refer to C .P.I. Properties, LLC, the limited liability company that is the landlord under the CSC Lease. ATTACHMENT 1 11 2 17336.02100\29180110.2 (iv) Premises . The term “Premises” shall mean and refer to the CSC, which consists of approximately 4,285 rentable square feet and approximat ely 3,792 usable square feet. (v) Tenant Improvements . The term “Tenant Improvements” shall mean and refer to the build-out of the CSC as required for joint use of the CSC by RCTC and OCTA, and does not include any betterments requested by OCTA. B. Any term used herein with initial capitalized letters and not otherwise defined herein shall have the meaning set forth in the ROFA. C. Any term used herein with initial capitalized letters and not otherwise defined in the ROFA shall have the meaning set forth in the Cooperative Agreement. 2. CSC Build-Out/ Construction of Tenant Improvements. A. Implementation Plan. The Tenant Improvements are generally set forth in that certain Corona Customer Service Center Facility Build -Out Implementation Plan prepared by the PCM, dated ___________, 2016, a copy of which is on file with each of the Parties, and is incorporated herein by reference (“Implementation Plan”). OCTA has approved and concurs with the Implementation Plan. B. Final Plans. RCTC shall work with Landlord on (a) design of the Tenant Improvements, (b) preparation of construction drawings for the Tenant Improvements, (c) selection and retention of a contractor for construction of the Tenant Improvements , (d) development and approval of a work schedule and c ost proposal for construction and installation of the Tenant Improvements, and (e) payment for the design and construction of the Tenant Improvements (“Final Plans”). C. Agreement for Tenant Improvements. To the extent required by Landlord, RCTC shall work with Landlord to develop an agreement to be entered into by and between OCTA and Landlord for the Tenant Improvements (“TI Agreement”). The TI Agreement shall be in a form reasonably acceptable to OCTA. D. Approval. OCTA agrees that it will not exercise any rights of OCTA under any TI Agreement without the prior approval of RCTC. E. Cost of Tenant Improvements. In accordance with Section 2.7.3(a) of the Cooperative Agreement, RCTC shall be responsible for all costs incurred for the design and construction of the Tenant Improvements. The amount of such costs has not been definitively determined as of the date of this ROFA Amendment No. 1; however, it is preliminarily estimated by the Parties that the Tenant Improvements, including contingency, will not exceed the amount of Fifty Thousand Dollars ($50,000). F. Remittance of Funds to OCTA. RCTC shall immediately remit to OCTA in immediately available funds all amounts due for the Tenant Improvements in accordance with the Final Plans, and any TI Agreement. 12 3 17336.02100\29180110.2 3. No OCTA Betterments . The Parties recognize and agree that OCTA has not requested any betterments to the CSC. 4. CSC Lease A. Rent. In accordance with the Cooperative Agreement, following the Opening Date, all costs for rent payable under the CSC Lease for the entire Premises will be shared by the Parties in accordance with the Percentage Cost Split. The Parties acknowledge and agree that “Rent” payable under the CSC Lease includes base rent (for which a schedule is included in the CSC Lease) and additional rent (CAM Expenses which are subject to change, estimated on an annual basis and paid in monthly installments along with the base rent). RCTC’s estimated proportionate share of the Rent for the CSC from the anticipated Opening Date through September 30, 2018 is Seventy Eight Thousand Three Hundred and Sixteen Dollars ($78,316). The Parties acknowledge that the foregoing estimate is subject to change based on the actual Opening Date, changes in the amount of estimated CAM Expenses and other unforeseen expenses. B. Payment of Rent; Late Fees. Pursuant to the CSC Lease, all monthly Rent amounts (including the base rent and the monthly ins tallment of CAM Expenses) are payable on or before the first day of each month. RCTC shall pay to OCTA its proportionate share, based on the Percentage Cost Split, of all monthly Rent or other charges imposed by the Landlord on or before the date such Rent or other charges are due from OCTA to the Landlord. If any such payment for monthly Rent or other charges due from RCTC is not received by OCTA on or before the date such Rent or other charges are due from OCTA to Landlord, in addition to any other remedies OCTA may be entitled to, RCTC shall pay OCTA a late charge equal to ten percent (10%) of the amount due. In addition to such a late charge, any amounts owing from RCTC to OCTA hereunder which are not paid by the date they are due shall thereafter bear interest until paid at the interest rate described in Section 13.5 of the CSC Lease. C. Termination of Rent Obligation. In the event of termination of the Cooperative Agreement by RCTC during the term of the CSC Lease, and provided that RCTC has abandoned use of the Premises, RCTC’s obligation to OCTA for payment of Rent shall terminate. 5. Continuing Effect of Agreement. Except as amended by this Amendment No. 1, all provisions of the ROFA shall remain unchanged and in full force and effect. 6. Counterparts. This Amendment No. 1 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. 13 4 17336.02100\29180110.2 SIGNATURE PAGE TO AMENDMENT NO. 1 TO 91 EXPRESS LANES RCTC-OCTA FACILITY AGREEMENT (“ROFA”) BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND ORANGE COUNTY TRANSPORTATION AUTHORITY RIVERSIDE COUNTY ORANGE COUNTY TRANSPORTATION COMMISSION TRANSPORTATION AUTHORITY By: By: _______________________ Its: _________________________ Its: _______________________ APPROVED AS TO FORM: APPROVED AS TO FORM: BEST BEST & KRIEGER LLP WOODRUFF, SPRADLIN & SMART, APC By: ____________________________ By: _______________________ Counsel to the Riverside General Counsel to Orange County Transportation Commission County Transportation Authority 14 ,- -ft C-3-0486 STANDARD MULTI-TENANT OFFICE LEASE-GROSS AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION 'J is .. lutft~·i 1-\ccoun\.mQ l . Huntet ~,., . Busin ess i '~P t • '?:!'>'~:')! 1. Basic Provisions ("Basic Provisions"). . ,lt)TI< 1.1 Parties: This Lease ("Lease"), dated for reference purposes only _.;;.;A:.:p..=r:..:i:..:l::__l;::....:.4_,_,--=2:...:0:...:0:..:3:::..._ __________ ~, Is made by and between C. P. I. Properties ____ __;_ _______________________________________ ("Lessor") andOrange County Transportation Authority --------------------("Lessee"), (collectively the "Parties", or ind ividually a "Party"). 1.2(a) Premises : That certain portion of the Project (as defined below), known as Suite Numbers(s) _..:1:.:0:..:0:::..._ ___________ , One ( 1) floor(s), consisting of approximately 4, 285 rentable square feet and approximately --=3'-''-7:....9::..;2=------- useable square feet("Premlses"). The Premises are located at: 227 5 Sampson Avenue ,In the City of --=C:...:o-=r:...:o:..:n"-'a=------------' County of Riverside , State of California with zip code 92879 . In addition to Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as defined In Paragraph 2. 7 below) as hereinafter specified, but shall not have any rights to the roof, the exterior walls, the area above the dropped ceilings, or the utility raceways of the building containing the Premises ("Building") or to any other buildings in the Project. The Premises , the Building, the Common Areas , the land upon which they are located , along with all othe r buildings and improvements thereon, are herein collectively referred to as the "Project." The Project consists of approximately 3 0, 6 9 3 rentable square feet. (See also Paragraph 2) 1.2(b) Parking : 16 stalls unreserved and Landlord will .provide at least 5 non-exclusive visitor stalls for use by all tenant's visitors near the front entrance to the building. reserved vehicle parking spaces .at a monthly cost of $ _______ per unreserved space and $ _______ per reserved space. (See Paragraph 2.6) 1.3 Term : Five ( 5) years and _____ -_0_-_______ months ("Original Term") commendng October l, 2003 ("Commencement Date") and ending _..:::.S..;;;e.J;C.p-=t-=e:.:.:mb=.:e;;.;;r:......;3;;...0::...!..-, _2;::....:.0-=0-=8 ______________ _ ("Expiration Date"). (See also Paragraph 3) 1.4 Early Possesslon :_..::T:-=:e:-:.n;;.;;a:.:nc.:.;t=-..:::s.:.:h:.=a:.::l:.::l::....;b::.:e=---=a:.:l:..:l=-o::.:w:.:..::e..::d___:e::.:a=r=l...z.v_o=c-=c-=u:.cp:.:a:.:.n.:.:c=-y~.--..:f:..:o::.:r:::..._..:t:.:e::.:l:..:e::.:c::.o=m___:c::.o::.:.:n.:.:n:..:e:..:::c::.:t:.:i:..:o::.:n=s---=a::.:n:.:.d~ .::f.::ic.:.;x;..:t;..:u:.:r:..:i::..:z::..:a=-t.=..~::.· o.::..n:..:_-=a-=f-=t-=e-=r:........:9:....:/....:1::.:/'--0-=-=-3..:... -------------("Early Possession Date"). (See also Paragraphs 3.2 and 3.3) 1.5 Base Rent S_7_,_,..cc0_7-'0'-._2~5 _____ per month ("Base Rent)", payable on the First (1st) day of each month commencing October 1, 2003 . (See also Paragraph 4) 0 If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted l;ly 3'Yo annually so rent will ve ac:ljue;ted ae; followe;: Year 2 = $7,282.36/Month Year 3 = $7,500.83/Month Year 4 = $7,725.85/Month Year 5 = $7,957.63/Month. 1.6 Lessee's Share of Operating Expense Increase: Thirteen point six eight percent (13. 68 %) ("Lessee's Share"). lessee's Share has been calculated by dividing the approximate rentable square footage of the Premises by the total approximate square footage of the rentable space contained in the Project and shall not be subject to revision except in connection with an actual change in the size of the Premises or a change in the space available for lease in the Project. 1. 7 Base Rent and Other Monies Paid Upon Execution: (a) Base Rant $7, 07 0 . 25 for the period October 1, 2003-0ctober 31, 2003 (b) Security DepC?slt : $6, 930.00 ("Security Deposit"). (See also Paragraph 5) (c) Parking: $ N/ A forthe period------------------------ (d) Other:$ N/A for ________________________ _ (e) Total Due Upon Execution of this Lease: $.::1-=4_,_,...:0.....:0;...;0:.....'-'2"-5.:;.._ ___________ _ 1.8 Agreed Use: General offices and other legally permitted non-retail use with office buildings of comparable guality. No training, school, telemarketing or "executive suite" uses. . (See also Paragraph 6) 1.9 Base Year; Insuring Party . The Base Year is --=2;..::0.....:0:...:3:...._ __ . Lessor is the "Insuring Party•. (See also Paragraphs 4.2 and 8) 1.10 Real Estate Brokers: (See also Paragraph 15) (a) Representation : The following real estate brokers ( the "Brokers") and brokerage relationships exist In this transaction (check applicable boxes): D D 0 ----------------------------represents Lessor exclus ively ("Lessor's Broker"); ----------------------------represents Lessee exclusively ("Lessee's Broker"); or CB Richard Ellis-Vindar Batoosingh/Philip Woodford represents both Lessor and Lessee ("Dual Agency"). (b) Payment to Brokers: Upon execution and delivery or this Lease by bolh Part ies , Lessor shall pay to the Brokers the brokerage fee agreed to in a separate written agreement (or if there is no such agreement, the sum of per separate agreement or % of the total Base Rent for the brokerage services rendered by the Brokers) . . 1.11 Guarantor. The obligations of the lessee under this Lease shall be guaranteed by------------------ --------------------("Guarantor"). (See also Paragraph 37) 1.12 and 8: 00 Business Hours for the Building: 7: 00 a.m. to 6: 00 p.m., Mondays through Fridays (except Building Holidays) a.m . to 1: 00 p.m. on Saturdays (except Building Holidays). "Building Holidays" shall mean the dates of observation of New Year's Day , Pres ident's Day, Memorial Day, Independence Day, labor Day , Thanksg iving Day, Chrislmas Day, and any other federal holiday. 1.13 Lessor Supplied Services . Notwithstanding the prov isions of Paragraph 11 .1. Lessor is NOT ob li gated to provide the following : 0 Janitorial services Initials @ 1999-American Industrial Real Estate Association Page 1 of 12 REVISED Initials FORM OFG -1-9/99E ATTACHMENT 2 15 • ~ , ·et.ectri~:ty '. 0 'OlhE!r (specify): ------------------------~--~~--------------~----~~------~~---------------------1_.14 Attachments. Attached hereto are the following, all of which constitute a part of this Lease:. D an Addendum consisting of Paragraphs 1 through ..;;.3 ____ _.. _ __,,...------- 0 a plot plan depicting the PremlsE!s; . Iii a current set of the Rules and Regulations; lt1 a 1111gf'k ' etter; Tenant Improvement Material Speclflcatlone 0 a janitorial schedule; 0 other (spe~lfy): ·sign criteria. _. 2. Premises. · 2.1 . · · Letting. ~essor hereby leases to Lessee, ~nd Lessee hereby leases from Less.or, .the Premises ; for the term, at the rental, and ~pon all of the terms, covenants and conditions set forth In this Lease.· Unless otherwise provided tiereln, any statement of size set fQrth In this Lease, or .that may · have been used In calculating Rent, Is an approximation which the Parties agree Is reasonable and any payments based thereon are not SL!bjecl to revision whether or not the actual size Is more or less. Note: Lessee Is advised to verify the actual size prior to executing this Lease. 2.2 Condition. Lessor shall deliver the Premises to Lessee In a clean condition on the Commencement Date or the Early Possession Date,. whichever first occurs ("Start Date"), and warrants thai the existing electrical, plumbing, flre. sprinkler, llghUng, heaUnQ, venlilatlng and air conditioning sy~tems ("HVAC"), and all other llems which the Lessons obligated to construct pursuant to the Work Letter attached hereto, If any, other ·than those · constructed by Lessee, shall be In good operating candltion on said dale. · · · · · . 2.3 Compliance: Lessor warrants that the Improvements comprising the Premises and the Common. Areas comply with the building codes that were In effect artl'!e Ume that each such lmprovemeni, or pOrtion thereof, was constructed, and also witti all applicable iaws, cOvenants or restrictions of record, regulations, and ordinances ("Applicable Requirements") In effect on the· Start Date. Said warranty does not apply to the use to which Lessee will put the Premises, modl~catlons which_ may be required by the· Americans wllh Disabilities Act ()r any similar laws as .a result of lessee's use (see Paragraph 50), or to any Alterations or Utility Installations (as deflned In Paragraph 7.3(a)) made or to be made by Lessee. NOTE : Lessee Is responsible tor determining whether or not the zoning and other Applicable Requirements are appropriate for Lessee's Intended use, and acknowledges that p~st uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided , promptly a~er receipt of written notice from lessee setting forth with specificity the nature and extent of such nof!-compllance, recllfy the same. ·If the Applicable Requirements are hereafter changed so as to requite during the term of.this Lease the construction of i:IO addition to or an alteration of the Premises, the remediation of any Hazardous Substance, or the relnforeement or other physical modification of the Premises ("Capital Expenditure~). Lessor. and Lesse~ shall allocate the cost of such work as follows: · · · · · . (a) Subject to Paragraph 2.3(c) below,' If such Capiial Expenditures: are, required ~sa result of the specific and unique use of the Premises · by "Lessee as compared with uses by tenants In general,. Lessee shall be fully responsible 'for the cost thereof, provided , however that If such Capital Expenditure Is required during the last 2 years of this lease and .the cost thereof exceeds 6 months' Base Rent, lessee may instead terminate this Lease ·unless Lessor notifies Lessee, In writing, within 10 days after ·receipt of Lessee's termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months' Base Rent. If Lessae elects termination, Lessee shall Immediately cease the use of the Premises which requires such Capital Expenditure and deliver to lessor wrlt~en notice specifying a termination date at least 90 days· thereafter. Such termination date shall, h!Jwever,Jn no event be earlier than the last day that Lessee could legally ullllze the Premises without oo.mmenclng such Capital Expenditure. . (b) If such Capital Expenditure Is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandate(j seismic modifications), then Lessor and Lessee !!hall allocate the cost of such Capital Expenditure as follows: ~essor shall adv~nce the funds necessary for such Capital Expenditure but Lessee shall be obligated t~ pay, each monih during the rem~lnder of the term of lhls lease, on the date on which B~se ~ent Is due, an amount equal to the · product of muiUplylng ·Lessee's share of the cost of such Capital Expe~iture (the percentage specified In Paragraph 1.6 by a fraction, the numerator of which Is one, and the denominator of which Is 144 (le. 1/144th of the cost per month). Lessee shall pay interest on the unamortized balance of Lessee's share at a rate that is commercially reasonable In the judgment of Lessof's accountants. Lessee may, however, prepay Its obligation at any lime. Provided, however, that If such Capl.lal Expenditure is required during the last 2 years of this lease or If Lessor reasonably determines that U Is not economlcaHy feasible to pay Its share thereof, Less9r shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies lessor; ·tn . writing, within 10 days after receipt of lessor's termination notice that l:.essee will pay for such Capital Expenditure. If Lessor does not elect to tennlnate, and falls to tender Its share of any such Capital Expenditure, Lessee may advance sw;:h funds and. deduct same, with Interest, from Rent until Lessor's share. of such costs have been fully paid. If Lessee Is unable I~ finance Lessor's share, or If the balance of the Rent due and paya~le for the remainder of this Lease is · not sufficient to fully reimburse Lessee on an oHset basis, Lessee shall have the right to terminate this Le!!!se upon 30 days written notice to Lessor. · .. (c) Notwithstanding the above, the proviSions concerning Capital Expenditurei;"are Intended to apply only to nonvoluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are Instead triggered by le~see as a result o.f an actual or proposed change in use, change In Intensity of use, or mOdification to the Premises then, and In that event. Lessee shall be fully respoflsiole for the cost thereof, an~ Lessee shall not have any right to terminate this Lease. · · 2.4 Acknowledgements. Lessee acknowledges that: (a) Lessee·has been advised by lessor and/or Brokers to satisfy itself with respect to the condition of the Premises (Including but not limited to the electrtcal_, HVAC and flre.sprlnkler systems, security, ~ronmeotal aspects, and compliance ....;th Applicable Requirements), and their suitability for Lessee's Intended use, (b) Lessee has .made such lnvestigallon as'.JI deems necessa,Y with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, and (c) ne[thei lessor, Lessor's agents , nor Brokers have rriade any oral or written repr8$entatfons or warranties with respect to -said IJ1a!lers other than as setforth In this Lease. In addition,. Less~r acknowledges that: {I) Brokers have made no representations. promises or warranties con®mi1,1g ·Lessee's ability to honor the Lease or suitablilty to occupy the Premises, and .{II) It Is Lessor's sole responsibility to Investigate the financial capability andlor suitability of all proposed tenants . . 2.5 Le~see as Prior Owner/Occupant. ·The warranties made by· Lessor !n, Paragraph 2 shaH be of ~ force or effect If lmmedlatel~· pr ior to the Start Date, Lessee -was the owner or occupant of the Premises. hi such evenl Lessee shall be responsible for any, necessary corrective work. 2 •. 6 · Vehicle Parking. ·So long as Lessee Is not In default, and pubject t.o the Rules and Regulations attached hereto, ahd as established by Lessor fro~ time lei lime, Lessee shall be entitled to rent and use the number of parking !?paces specified In Paragraph 1 .~(b) at the rental rate applicabl~· from time to time for monthly parking as set by Lessor and/or Its licensee. · . (a) If. Lessee· commits, permits or allows any of the prohibited activiUe~ described' in the L~ase or the rules then in eHect. then Le~sor shall have the. right, without notice, In addition to such other rights and remedies that It may have. to remove or tow ~way the vehicle Involved and charge the cost to Lessee, which cost shall be Immediately payable upon demand by Lessor.· · . . . · . · . . . ' . (b) The monthly rent per parking space specified In Paragraph 1.2(b) Is subject to change vpon 30 days prior written notice to Lessee •. The rent for the parking Is payable one month In advance p·rlor to the first da~· of each cal!'ndar month . · · 2.7 Common Areas ·Definition. The ter:m "Common Areas~ Is defined as all a.reas . and facilities outside the Premises al")d within th~ exterior boundary line of the Project and .lnlerior utlllty rac~ays and lnstallallOns _within the, Premises that are provided and designated by the L,essor from lime to time for the general nonexclusive use of Lessor, lessee and other tenants of the Project and their -respective employees, suppliers, shippers, customers, cOntractors and Invitees, Including, but not limited to, common entrances, lobbieS, corridors, slalrwells, public restrooms, elevatprs. parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas. . · · 2.8 Common ~eas -Lesse~·s ~lghts. Lessor grants ·to ·Lessee, for the beneOt of Lessee and its ·employees, suppliers, shippers, contractors, customers and Invitees, during the term of this Lease, the nonexclusiv~ right to use, In common with others entitled to such ~se, the Common Areas as they exist from time to time, subject to any rights, powers, and privilegeS reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing th.a use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, In the Common Areas •. Any such storage shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, which consent may be revoked at any lime. lri the event that any unauthorized slqrage shall .occur th!!n Lessor shall have the rtght, without notice, In addition to sucli ·other rights and remedies thalli may have, to remove the p~operty and charge the cost to Lessee, which cost shall be Immediately payable upon demand by Lessor. · 2.9 Common Areas " Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to llme, to adopt, modify, amend and enforce reasonable nJies and regulalions ("Rule• and Regul!ltlons") for the management, safety, care, arid cleanliness of the grounds. lhe parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or lenanls of the Building and the Project and their Invitees . The Lessee agrees to abide by and conform to all such Rules and Regulations, and to cause Its employees, suppliers, shippers, customers. qontraclors and Invitees to so abide ahd conform. Lessor shall not be responsible to lessee for the noncompliance with said Rules and Regulations by other tenants or the Project. 10 · Common Areas-Changes. Lessor shall have lhe right , in Lessor's srle discretion, from time to time: . ~ s lnllhils @ 1999 • Amerlc~n Industrial Real Estate Association Page 2 of 12 REVISED FORM OFG·1 -9/99E 16 ; · {a) . To make changr l Common Areas, Including, without limitation, c 3 In the location, size, shape and number of the lobbies,· windows, stairways, afr shafts, elevalo ....... calators, reslrooms, driveways, enlrai')Cef?, parklnb ~,..aces, parking areas, loading and unloading areas, Ingress, egress, dfrecllon. of traffic. landscaped are!'IS. walkW!'!YS and utility racewl:!ys; remains available; (b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises (c) (d) (e) To designate other land outside .the boundaries of the Project to be a part of the Common Areas; To add 11ddillonal buildings and improvements to the CommClr. Ar6as; To use the Common Areas while engaged In m11king additional improvements, repairs or alterations to the Project, pr any portion thereof; and · (f) • To do and perform such other acts and make such other changes in. to or with respect to the Common Areas and Project as Lessor may, In the exercise of sound business judgment, deem to be appropriate. 3. Term . · 3.1 Term. The Commencement Date, ExplraUon Date and Original Term of this Lease are as specified In Paragraph .1.3. 3.2 Early Possession . If Lessee totally or partially occupies' the PremlsGs prior to the Commencement Date, the obligation to pay Base Rent shall be abated fo.r the period of such early possession. All other terms of this Lease (including but not ffmiled to the obligations to pay Lessee's Share of the Operating Expense !ncrease) shall, however, be In effect during such period. Any such early possession shall not affect the Expiration Dale. 3 .3 Delay In Possession. lessor agrees to use. its best commercially reasonable efforts to deffver possession of the Premises to Lessee by the Commencement-Dale. If, despite said efforts, Lessor Is unable to deliver possession by such dale, Lessor shall not be subject to any liability therefor; nor shall such failure affect the ·valk:iity of this Lease. Lessee .shalf not, however, be obligated ~o pay Rent or perform its other obligalio~s until Lessor defiv.ers possession of the Premises and any period of rent abatement that Lessee would otherWise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherWise have enjoyed under theterms hereof, but minus any days of delay··caused by lhe acts or . omissions of lessee. If possession Is not delivered ~llhln 60 days after the Commencement Date. as the same may be extended under the terms of any Work Letter executed by Parties, Lessee may, at Its option, by notice In writing within 10 days after lhe end of such 60 day ·perlod, cancel this Lf!ase , in which event the Parties shall be discharged from all obligations hereunder. If su.ch written nolfce Is not received by Lessor within said 10 day period, Lessee's right to cancel shalf terminate. If possession of the Premises Is not deffvered within 120 days 2fter the Commencement Dale, this Lease shall terminate unless other agreements are reached between Lessor and Lessee, in writing. · 3.4 La~see ·Compliance: Lessor shall not be required to deliver possession of the Pr~mlses 19 Lessee until Lessee CO!flplles with Its obligation to provide evidence of insurance (P41ragraph ~.5). Pending delivery of such evidence, Lessee shall be requ ired to perform aff of Its obffgatlons under this Lease from and after the Start Date, Including the payment of Rent, notwithstanding Lessor's election to withhold possession " pending receipt of such evidence of insurance. Further, If less~e Is required to perform any other condiUons prior to or concurrent with the Start Date, the'Siart Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied. 4. Rent. 4 .1. Rent Defjnect. All·monetaryobligations of Lessee to lessor under the te~ms of this lease (except fpr the Security Deposit) are deemed to be rent ("Rent"). 4'.2 · Operating Expanse Increase. Lessee shall pay to lessor during th~ term hereof, In addition to the Base Rent. Lessee's Share of the amount by which all Operating Expenses for each Comparison Year exceed.s 'lhe amount of all Operating Expense~ for the Base Year •. such excess being hereinafter referred to as the "Operating Expense Increase•, in accordance with the following provisions: · . (a) "Base Year" Is as specified in Paragraph 1.9. , · · · (b) "Comparison Year" Is defined as each calendar year during the term of this lease subsequent to the Base Year: provided, however, Lessee shall have no obllgalfon to pay a s~are of the Operating Expense ·Jncrease applicable to the first 12 months of the Lease Term (other than s1,1ch as are mandated by a governmental authority, as to which government mandated 2xpenses Lessee shall pay Lessee's Share, notwithstanding they . occur during the first twelve (12) months). Lessee's Share of the Operating Expense Increase for lhe first and last Comparison Years of the Lease. Term shall be prorated according to lhat portion of such Comparison Year as to which Lessee is respcr.slble for a share of such Increase. · (c) "OperaUng Expense!~" Include all costs Incurred by Lessor reiatlng to the ownership ~nd operation of lhe Project. calculated as if the Project was at least95% occuple~. Including, bu~ not limited to, the followi~g: (I) The operation, repair, and mainten~nce In neat, clean, safe, good order and condition, but not the replacement (see subparagraph {g)), of the following: · (aa) The Common Areas, including their surfaces, coverings, decorative items, carpets, drapes and window coverings, and Including parking · areas, loadlrig and unloading· areas, trash areas, ro :.dwilys, sidewalks, walkways, stairways, parkways. driveways, landscaped areas, striping, bumpers, Irrigation systems, Common Area lighting facilities, building exteriors and roofs, fences and gates: · (bb) All heating, air conditioning, olumbing , electrical systems, life safety equipment, communication systems and other equipment used in common by, or for the benefit of, lessees or occupants of the Project. inCluding elevators and escalators, temint directories, nre detection systems including sprinkler system maintenance and repair. (II) Trash disposal, janitorial and security services, pest control services, and 1t1e costs of any environmental inspections: {ffi) Any other service to be provided by Lessor that IS elsewhere In this Lease stated to be 110 "Operating Expense:·: . (lv) The cost of the premiums · for ··the Insurance poUcles maintained by LesSor pursuant to paragraph 8 and any deductible portion of an insured loss concerning the Building or the Common Areas; (v) · The amount of the Real Property Tax.es payable by lessor pursuant to paragraph 10; (vi) The cost of water, sewer, gas, electricity, and other publicly mandated services not separately metered; (vii) Labor, salaries, and applicable fringe benefits and costs •. materials, supplies and tools, used in maintaining and/or cleaning the Project and accounting and management fees attri!>utable to the operation of the Project; · (viii) The cost of any Capital Expenditure to the Building or the Project not covered under the provisions of Paragraph 2.3 provided; however, that Lessor. shall allocate the cost of any such Capital Expenditure over a 12 year period and Lessee shall not be required to pay more than Lessee's Share of 1/144th of the cost of such Capital Expenditure in any given month; · {lx) Replacement of equipment or Improvements that have a useful life for accounting purposes of 5 years or less. (d) Any Item of Operating Expense that Is specincalfy attributable to the Premises, the Building or to any other building in the Project or to 'the operation, repair and maintenance thereof, shall be allocated entirely to such Premises, Building , or other building. However, any such item that is not specifically attributable to the Building or to any other building or to lhe.operalion, repair and maintenance thereof, shall be equitably allocated by· Lessor to aU buildings In lhe Project. · (e) The Inclusion of the Improvements, facilities and services set forth in Subparagraph 4.2(c) shalf not be deemed to Impose an obligation upon Lessor to either have said Improvements or facilities or to provide lhose services .unless the Project already has the same, Lessor already provides the services, or Lessor has agreed elsewhere in thls ·Lease to provide the same or some of them . (f) Lessee's Share of Operating Expense Increase shalf be payable by Lessee within .10 days after a re.asonably detailed statement of actual expenses Is presented to Lessee by Lessor. AI Lessor's option, hc:>wever , an amount may be estimated by L~ssor from lime to lime In advance of Lessee's Share of the Operating Expense Increase for any Comparison Year, and the same shall be payable montryly during each 'Comparison Year of the Leese tem1. on the same day as the Base Rent is due hereunder. In the evenl ·that Lessee pays Lessor's estimate of Lessee's Share of Ope~tlng Expense Increase as aforesaid, Lessor shall deliver to Lessee williln 60 days after the expiration of each Comparison Year a reasonably detailed statement showing Lessee's Share. of lhe actual OperaUng Expense Increase Incurred during such year. If Lessee's paymen!s. under this paragraph (f) during said Comparison Year exceed Lessee's Share as indicated on said statement. Lessee shall ba entitled to credit lhe amount of such overpa~menl against Lessee's Share of OperaUng Expense Increase next falling due. If Lessee's payments under this paragraph during said Comparison Year were less than Lessee's Share as indicated on said statement. Lessee shall pay to Lessor the amount of tha deficiency within 10 days after delivery by Lessor to Lessee of said stateml:lnl. Lessor and Lessee shall forthwith. adjust between lh6m by cash payment .}..1y balance determined to exist wiU l respect to that portion of the last Comparison Year for which Lessee Is responsible as ·to Operating Expense Increases, ho!Wilhstanding that the l,..ease term may have terminated before the end or such Comparison Year. . · . (g) Operating Expenses shall not Include the costs of replac'e':nent for equipment or capital components .such as the roof~ foundations, exterior walls or a Common Area capital improvement, such as the parking l~t paving, elevators, fences that have a useful life for aceounling purposes of 5 years or more unless It Is of the type described In paragraph 4.2{c)' (viii), in whlch case their cost shalf be included as above provided. (h) Operating Expenses shall not include any expenses paid oy any tenant directly to lhlrd parties , or as . to which Lessor Is otherwise reimbursed 'by any third party, other tenant, or by insurance proceeds. · 4 .3 Payment. Lessee shall cause payment of R~nt to be received by Les~or ir:• lawful money of the United States on or before the day on which It Is due,·without offset or deduction (except as specifically permitted in !his Lease). 'Rent for any period during the term hereof which is for less than · one full calendar month shall be prorated based upon the actual riumber of days of said month. Payment of Rent shall be made to Lessor at ils address stated herein or to such other persons or place as Lessor may from time to time designate ln. wrl!lng . Acceptance of a payment whi ch is less than the amount then due shall not be a waiver of Le~sor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so. slating. In the event that any check, draft, or other Instrument of payment given by Les$ee to Lessor is d ishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 In addition to any Late Charge. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Base Rent and 04isng t: E:xpense Increase, and any remaining amount to any other outstanding charges or costs . ~ ~ Initials ® 1999 -American Industrial Real Estate Association Page 3 of 12 REVISED FORM OFG-1-9/99E 17 '. , 5.; · · S~cut.tty Deposit.· Lessee shell depr ith less~; upon execution her~of ttie Sepurily. Der as security for Lessee's faithful performance of lis obligations under this Lease. If Lessee fails It .~Rent.·or otherwise Defaults under this Lease, Le.. may use, apply or.retaih.all or any portion oi said Security Deposit for. the payment of any amount due Lessor or to reJmburse or compensate Lessqr for ·any liability, expense, l~ss or damage which Lessor may suffer or Incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor, deposit montes with lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base ·Rent increases during the term of this Lease, lessee shall, upon wrlllen request from Lessor, deposit additional inorieys with Lessor so that the total amount of the Security Deposit shall _at all limes bear the. same proportion to the increased Base Rent as the Initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change. In the business of Lessee or to accommo~ale a sublessee or assignee, lessor"shall have the right to increase the S~urlly Deposit to the .extent necessary, In Less~r's ·reasonable judgment, to account for any Increased wear and tear that the Premises may suifer as a result thereor. If a change In control of Lessee occurs during this Lease and following such change the financial ~<Cndilion .of Less.ee is, In Lessor's reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change In financial .condillon. Lessor shall not be required to keep the Security Deposit separate from Its general accounts: Within 14 days after the expiration or termlnaUon of this Lease; If Lessor elects to apply the Security Deposit only to unpaid Rent, and otherwise within 30 days after the Premises have been vacate~ pursuant to Paragraph 7 .4(c) bt;~low, Lessor shall return that J)ortion of the Security Deposit not used or applied by Lessor. No part of the Security Deposit shall be considered to be ~eld In trust, to bear Interest or ·to be prepayment for any monies to be pal~ by lessee under this Lease. · · · 6. Use. · · 6 .1 Use. Lessee shall use and occupy the Premises only for the Agreed Uue, or. any other legal use which Is reasonably comparable thereto, ·and for no other purpose. Lessee shall not use or permit the use of. the Premises In a manner lfiat·ls unlawful. c(eates damage; waste or a nuisance, or that ·disturbs occupants of or causes damage to neighboring premises or properties. Lessor ·sliall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the improvements of the Building, will not adversely , affect the mechanical, electrical, HVAC, and other systems of th$ Building, and/or will oot :Sffect th~ exierlor appearance of the !3ullding. If Lessor elects· to . withhold coheent, Lessor shall wi!hln 7 days after such request give .written notincallon 'Jf ·same, .which notice shall Include an explanation of lessor's objections to the change In the Agreed Use. · · · · · 6.2 Hazardou~ Substances. , (a) Reportable Uses Require Consent. .The term "Haz<!rdous Substance"· as used In this lease shall mean any product, substance, or waste whose presence, use; manufacture, disposal, transportation, or release, either by ih;elf or In combination with other materials expected to be on the Premises, Is either: (I) potentially Injurious to the pubilc health, safely or welfare, the envlropment or the Premises, (li) regulated or monitored by any governmental authority, or (ill) a basis for potential liability of Lessor to any governmental agency or third party under any applicable staiute or common law · theory. Hazardous Substances shall include, ·but not be limited to, hydrocarbons, petrol~um ; gasoline, and/or crude oil or any products, byproduct~ or fracUons thereof. Lessee shall not engage In any. activity In or oh the Premises which cor.sllh.i~es a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timety· compliance (at Lessee's l;li<pense) with all Applicable Requirements. "Reportable l,lse" shall mean (I) the Installation or use of any above or be_low ground storage tank, (II) the generation, possession, storage,· use, transportation, or disposal of a Hazardous ·. Substance !hat requires a permit from, or with respect to which a report, notice, registration or business "plan Is required to be filed with, any governmental authority, and/or (ill) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires · that a ·notice be given to persons entering or occupying the Premises or nelghb9rlng .propertles . Notwllhsta.ndlng the foregoing, Lessee may use any ordinary. and customary materials reasonab!y requlreq to be used In the normal course of the Agreed Use such as ordinary office supplies (ropier toner, liqt.Jid paper, glue, etc.) arid common ~usehold cleaning mateiials, so long as such use Is In compliance with all ~pllcable Requirements, Is n6l a Reportable Use, and does not expose the Premises or neighboring property to any meaningful rls~ of contamination or damage i;lr expose lesso.r to any liability therefor .. In addition. lessor may condition its· consent to any Reportable Use upon receiving su.ch ·additional asswances as Lessor reasonably deems necessary to ·protect Itself, the public, the Premises and/or the environment against damage, contarrilrtallon, Injury and/or liability, Including, but not limited to, the Installation (and ·removal on or before Lease expiration or termination) of protective modifications (such as ccinc.rete encasements) andfor Increasing the Security Deposit. (b) Duty to Inform Lessor. If Lessee knows; or has· reasonable ·cause to believe; that a Hazardous Substance has come to be located In, on, under or about the Premises, other than as previously consented to ·by Lessor, Lessee shalllmm~lalely give written notice of such feet to Les.sor, and provide lessor with a copy of any repoit, notice, claim or other documentation which It has.conceming the presence of such Hazardous Substance. . (c) 'Lessee Remediation. lessee shall not eause or permit any Hazardous Substance to be spilled or released In, on, under. or about the Premises (including through the . plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements · and take all investigatory and/or remedial actiori reasonably reCommended, ·whether or not formallY ordered or required, for the cleanup of any ,contamination of, and for the maintenance, security and/or monitoring of the Premises or·nelghborlng properties, that was caused or materially contributed to by Lessee, or . pertaining to or Involving any Hazardous Substance brought onto the Premises during the term of this Lease, by .or for Lessee, or any third partY. (d) Lessee Indemnification. Lessee shall Indemnify, defend and hold Lessor, its agents, employees, lender.s and ground lessor, if any. harmless from and against any and all loss of rents and/or damages, liabilities, judgments, Claims. expenses, penalties, and attorneys' and consultants' fees arising out of or Involving any Hazardous Substance brought onto the Premjses by or for Le!;see, or any third party (provided, howe~er, that l-essee shall have no liability under this Lease w ith respect to underground mlgraUon of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by.Lesseie). Lessee's obligations shall Include, but not be limited to, the effects of any contamination or Injury to person, property or the environment created or suffered by Lessee, and the .cost'of Investigation, removal •. (emediallon, restoration and/or abatement. and !!hall sur\live lhe expiration or termination of this Lease, No termination, cancellation or releese agreement entered Into by lessor and Lessee shall release Lessee froin Its obligations \Jnde~ this Lease with respect to HSZC!rdous SubstanCes, unless specifically so agree~ by Lessor In writing at the time of such agreement. . (e) Lessor Indemnification. Lessor and Its successors and asslgr:-s shall indemnify,· defend, reimburse and hold Lessee, Its employees and lenders, harmleSs from and agl!lnst any and all environmental damages, Including the ~?OS! of remediation, which result from Hazardous Substances which exlsted on the Premises prior to Lessee's occupancy or which are caused by the 1gro$S negligence or willful misconduct of Lessor, Its agents or employees.' Lessor's obligations, as and when required by the· Applicable Requirements. shall Include, bui not be Hmited to, the cost !lf investigaUon. r~OJoval •. remediation , restoraUon and/or abatement, and shall survive the expiration or te1mlnation of this Lease. · (f) Investigations and Remedtatlons. Lessor shaH retain the respol')slblllty ·and pay for any investigations or remediation measures required by governmental entitles having jurisdiction with resp~cl to the existence of Hazait;Jous Substances on the ·~remises prior to Lessee's occupancy, unless such remediation measure is reql.llred as a result of Lessee's use (Including "Alteration}!", as defined In panigraph 7.3(a) below) of the Premises. lri which event Lessee shall be responsible for such payment. Less~e shall cooperate fully In any such activities at the request of Lessor, Includ ing allowing Lessor arid Lessor's agents to have reasonable access to the Prell)lses · at reasonable ~mes In order to carry out lessor's Investigative and remedial responsibilities. , , . (g) Lessor Termination Option. If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of th is Lease, unless Less~ Is legally responsible therefor (In which case L~see shall make the Investigation · and remediation the~eof required : by the Applicable Requirements and this Lease shall continue In full force and effect, but subject to Lessors rights under Paragraph 6.2(d) and Paragraph 13)1 Lessor may, at Lessor's oplion, either (I) lnve~tlgate and remediate such Hazardous Substance Condition, if required, as soon as reas~nably possible, at Lessor's expense, In which event this Lease shall eonUnue In full force and effect,· or (II) If the ·estimated cost to remedlate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever Is greater, give written notice to Lessee, within 30 days ilfter receipt by lessor of knowledge of !}le occurrence of such · Haiardous Substance Condition, of Lessor's desire to terminate this Lease as of the date .60 days following .the dale of such notice. In the event Lessor elects to give a termination notice, Lessee may, wiihln 10 days thereafter, give written notice to ·l-essor of Lessee's cOmmitment to pay the amount by which the cost of the remediation of such ·H~zardous Substance Condition exceeds an amount equal to ·12 limes the then monthly· Base Rent or $100 ~000, whichever Is greater. Lessee shall provide Lessor with said funds or satisfactory assuranc_e thereof within 30 day~ following such commitment. In ~uch event, this Lease shall continue In fuU force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available. If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified In Lessor's notice of Jermlnatlon. · 6.3 · · Lessee's Compliance with Applicable Rec;~ulrements . Except as otherwise provided In this Lease, _Lessee shall, at L~ssee's sole expense, fully, dlllgenUy and In a timely manner, materially comply with all APplicable Requirements, the requirements of any applicable fire Insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate In any manner tb the Premises, ·without regard to whether said requirements are now In effect" or become effective afl~r the Start D~le . le!!see .shall, within 10 days after receipt of lesso~s written request. provide Lessor with .copies of all permits and other documents, and other Information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall Immediately upon receipt, notify ·Lessor in writing (with copies of any dC?CUmenls involved) of any threatened · or actual claim, notice, citation, warning, complaint or report pertaining to or lnyolvlng the fallurtt of Lessee or the Premises to comply wlth any Applicable Requirements. 6 .4 Inspection; Compliance. Lessor and Lessor's "Lender'' (as defined In Par3graph 30) and consultants shall have the right to enter i nto Premises at any time. In the case of an emergency, and otherwise at reasonable limes, for the purpose of Inspecting the condition of the Premises and for verifying compliance by Lessee with this Lease; The cost of any such Inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see paragraph 9.1e) Is found to exist or be immlm:nt, or 11-Je inspection Is requested -or ordered by a governmental authority. In such case, lessee shall upon request reimburse Lessor for the cost ot such Inspection, so long as such Inspection Is reasonably related to the violation or contamination. 7. Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations. Ls 7 1 Lessee's Obll~atlons. Notwflhstandlng Le!;sor's obligation to keep "the Premises In good condition af)d repa:;ee shall be ~ Initials Page 4 of 12 · ~ 1999. American Industrial Real Estate Association REVISED FORM OFG-1-9/99E 18 .re~pc:)m;lble {6~ payment or the cost thereof to ' Jr as add i llon~l rent for that portion of the cost or ~alntenance and repair or the Premises , or ~ny . equ i pment (wHerever located) that serves only .>ee or .th~ Premises , to the extent such cost Is il.. ...tlable to causes beyond norma l wear ari d tear. Lessee shall be responsible for the cost of painting, repairing or replacing wall coverlngG, and to repair or replace any Improvements wl lli the Premises . Lessor may, at Its opllon, upon reasonable nollce, elect to have Lessee perform any partl~ular such maintenanC?e or repfllrs the cost of which Is olherwlse f:.essee 's responsibility hereunder. , 7.2 Lessor's Obligations. Subject to the pro.visions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destrucllon) and 14 (Condemnallon), Lessor, subject to reimbursement pursuant to Paragraph 4.2, shall keep In good order, condition and repair the foundations, exterior walls, structural condition of Interior l)earing walls, exterior roof, fire sprinkler system , fire alarm and/or smoke detection systems, fire hydrants, and lh!' Common Areas. ·Lessee expressly waives the benelil or any statute now or hereaner ·ln effect to the extenllt Is Inconsistent with the terms of this Lease . · · · · 7.3 ·Utility Installations; Trade Fixtures; Alterations. . . (a) Definitions. The term "Utility Installations" refers to all floor and window coverings, air lines, vacuum lines. power panels, electrical distribution, securtty and fire protection systems, communication ~abllng, lighting fixtures, HVAC equipment, and plumbing In or on the Premises . The term "Trade Fixtures• shall mean Lessee's machinery and ·equipment that can be removed without doing material damage to the Premises. The term • Alterations" shall mean any modlflc:aUon of the Improvements, other than Ullllty lnstallallons or TraCie Fixtures, whether by a~dllion or deletion. ·Lessee Owned Alterations ahd/or Utility Installations• are d!tfined as Alterations and/or Utility Installations made by Lessee that are not yet owned by Lessor · pursuant to Paragraph 7.4(a). ·· . · . . · . . . (b) Consent. Lessee shall not make any.AiteraUons or Utility ln!!;tallstlons to the Premises without Lessor's prior writtim consent. Lessee may, however, 111ake non-structural Utility lnstallallons to the InteriOr of the Premises (excluding the roof) without such consent bui upon notice to Lessor, as . long as they are not visible from the outside, do not Involve puncturing, relocating or removing the roof, ceilings, floors or any existing walis . will not affect the electrical , plumbing, HVAC, and/or life safety systems, and the cumul.allve cost thereof during this .Lease as extended· does ·not eKceed $2000. Notwithstanding the foregoing, Lessee. shall not make or permlfany roof penetration$ ·and/or Install anything on the roof without the prior written approvai of Lessor. Lessor may, as a precondition to goJntlng such approval, require Lessee to ·utlll~e a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee ·shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed condllloned upon Lessee's: (I) aequlrlng all applicable govemmf!ntal permhs, (II) furnishing Lessor with CQples of bolh the permits and the plans and specifications prior to commEincemenl of the work, and (Ill) compliance with all conditions · of said permits and other Applicable Requirements In a prompt and expeditious manner. Any Alterations or Utility Installations shall be performed In a workmanlike manner with good and · sufficient materials. Lessee shall promptly upon completion furnish Lessor with asbuilt plans and specifications. For work which costs an amount In excess of one month's Base Rent. Lessor may condition Its consent upon Lessee providing a lien and completion bond lri an amount equal to 150% of the estimaled cost of such Alteration or UUilty Installation and/or upon Lessee's posting an additional Security Deposit wlth Lessor. ·(c) Liens; Bonds. Lessee shall pay; when · due, all claims for labor qr materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or materialmen's lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days notice. prior· to the commencement of any work In, on or about the Premises , and Lessor shall have the . right to .post notices cit non-responslbllfty. If lessee shall contest the .valid ity of any such lien, claim or demand , then Lessee shall , at its sole expense· defend and protect Itself, Lessor and the ·Premises against the same and shall pay and s'illsf\J any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall .furnlsh a surety bond In an amount equal to 150% of the amount of siJch contested lien, claim or demand, indemnifying Lessor against liability for the same; If Lessor elects to pa;'tlclpate .ln any such action, Lessee shall pay Lessor's attorneys' . fees and costs. · · · · · · · · · · 7.4 Ownership; Removal; Surrender; and Restoration. (a). Ownership. Subject' to Lessor's right to require removal or eleri t ownership as hereinafter provided, ~II Alterations and Utility lnstallaUons made by Lessee shall be the property of Lessee, but considered a part of the Prem.t11es . Lessor may, at any lime. elect in writing to be the owner of all or any speclned part of the Lessee Owlied Alterations and f.!UIIty Installations ... Uf!less otherwise Instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and UliUty Installations shall, at the expiration or termination of this l~sa, bacome the property of Lessor and be surrendered by Lessee with the Premises. · · · . (b) Removal. ·By delivery to Lessee of written notice from Lessor riot earlier than 90 and not later than 30 days prior to the end of the term of this. Lease, Lessor may require that any or all Lessee Owned Alterations or Utility· Installations be removed by the expiration or term ination of this Lease . Lessor n)ay require the ~emoval at any lime of all or any part of.any Lessee Owned Alterations or Utility lnstalla~ons 1)1ade without the · requi red consent. · · · · · .. (c) Surrender; Restora.tlon. Lesse~ shall surrender the Premises by the Expiration Date or any earlier termination date, with all o{ the Improvements, parts and su.rfaces thereof clean and ·free of debris, ~nd In good operating order, condition and state of repair, ordinary wear and. tear excepted. "Ordinary wear and lear" shall not Include any .damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing, If this Lease Is for 12 months or less, then Lessee shaH surrender the Premises In the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. LesseE! shall repair any d~mage occasioned by the Installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall al&o completely remove from the Premises eny and all Hazar~s Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substanc.es which were deposited via underg rcund migration from areas outside of the Project) even If such removal would .require · Lessee to perform .or pay for work that exceeds statutory requirements. Trade Fl~tures shall rell)aln the property of L~ee and shall b~ removed by Lessee. The failure by Lessee to timely vacate the Premises pursuant to th is Paragraph 7.4(c) withourthe express written consent of LE!s&Or. sh~ll .conslll~te a holdover under· the provisions of Paragraph-26 below. · 8. · lnsuranee: Indemnity.' 8.1 · Insurance. Premiums. ·The cost of the premiums for the Insurance policies maintained by Lessor pursuant to paragraph 8 are included as Operating Expenses (see paragraph 4.2 (cXiv)). Said costs shall Include Increases in the premiums resuJUng from additiona l coverage· related to requirement~ of the holder of a mortgage or deed of trust covering the Premises, Building and/or Project, Increased valuation of the Premises, Building and/or Project, and/or a general premium rate increase. Said costs shall not, however, Include any premium increases resuiUng from the nature of the occupancy of any other tenant of the Building. If the Project was not Insured for the entirety of ~e Base Year, then the b~se premium shaH be the .lowest annual premium reasonably obtainable for the required Insurance as of the· Start Date, assuming the most nominal use possible of the Building and/or Project. In· no event, however, sh~ll Lessee be responsible for any portion of the premium cost attrlbulable to ll:~blii!Y Insurance coverage In excess of $2,000,000 procur~d under Paragraph 8.2(b). · · . 8.2 Liability Insurance. . (a) Carried by Lessee. lessee shall obtain and keep In force a Commercial General Uabillty policy or Insurance prQtecllng Lessee. and Lessor as an addiUonallnsured against claims ~or bodily Injury, i>ersonal injury and proP.arty damage based _upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all arees. appurtenant thereto . Such lr;surence shall be on an oqcurrence basis providing single limit coverage In an amount not less than $1,000,000 per occurrence with an annual aggregate ~of npt less than $2,000,000, an "Additional Insured-Managers or Lessors of Premises Endorsement" and contain the "Amendment of the Pollution Exclusion Endorsement" fdr damage caused by heat, smoke or fumes from a hosUie Hre. The· policy shall not contain any Intra-Insured el(cluslons as between lnsur~ persons or organizations, but shall Include coyerage for liability assumed under this lease as an "Insured cont.-act• for the performance of Lessee's indemnity obligations under tti ls Lease.' The limits .ofsaid Insurance shall not,·however, limit the llabHity of Lessee nor relieve Lessee of any otiligation hereunder. Ali insurance carri~ by Lessee shall be primary to and not contributory with any similar Insurance carried by Lessor, whose Insurance shall be conslde~ e.xcess Insurance only. · · (b) Carried by Lessor. Lessor shall maintain liability Insurance as d~cribed In Paragraph 8.2(a), In ·addition lo, and not in lieu of, the Insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein. · . · 8.3 Property Insurance ;. Building, Improvements and Rental Value . ' : .. . (a) Building and Improvements.-Lessor shall obtain and keep In force a policy or policies of Insurance In the name of Lessor, with 'loss payable to Lessor, any ground-lessor, and to any Leild~r lrisurh1g loss ordarJ1age to the Bulitjllng and/or Project. The amount of such insurance shall be equal to the full replacement cost of the Building and/or Project, as the same shall ex ist frorri time to time,· or !he amount required by any Lender, but In no event more tha.n the commercially reasonable and available Insurable va lue thereof .. Lessee Owned Alterations and UUiity Installations, Trade Fixtures, and Lessee's personal property shall be Insured by· Lessee .under Paragraph 8.4. If the coverage Is available and ·commercially appropriate, such policy or policies shall Insure aga inst all risks of qlr~ct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any· Applicable Requ irements requiring the upgrading , demolition. reconstruction or replacement of any portion of the Premises as ttie result of a covered Joss . Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and Inflation guard protection causing an Increase In the annual property Insurance coverage amount by a factor of not less than the adjusted U.S. Departrilent of Labor Consumer Price Index for All Urban ConsumArs for the city ne~rest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $1 ,000 per occurrence. (b) Rental Value. lessor shall also '?blain and keep in force a policy or policies in the name of Lessor with loss pa¥able to Lessor and any Lender, Insuring the loss of the full Rent for one year wltl1 an extended period of Indemnity for an addlllonal180 days ("Rental Value Insurance"). Sa id Insurance shall contain an agreed valuation provision In lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period . · ~ (c) Adjacent Premises. Lessee shall pay for any increase in tile premlun.s for the property insurance of the Bu ilding and fo r th e . -~ I IUals · Initials @ 1999-American Industrial Real Estate Association Page 5 of 12 REVISED FORM OFG -1-9/99E 19 .Cornmor. ~~as brother buildings In the Project :· crease. Is caused by Lessee's acts , omissions, • Jccupancy of the Premises . • · ' (d) lessee's Improvement~ ... ce Lessor Is the Insuring Party, Lessor shall not . equired to Insure Lessee Owned Alterations and Utility Installations unless the Item In question has become the property of Lessor under the terms of this Lease. · . 8.4 .. Lessee's Property; Business Interruption Insurance. · · , (a) Property Damage. Lessee shall obtain and maintain lns~rance coverage on all of Lessee's personal property, Trade Fixtures, and . Lessee Owned Alterations and Utility .Installations. Such Insurance shall be full replacement cast coverage with a deductible of not to exceed $1 ,000 per occurrence .. The proceeds from ahy such Insurance shall be used by Lessee for the replacement of personal prope,rty, Trade Fixtures and lessee 0w1Jed Alteration~ and Utility Installations. Lessee shall provide Lessor with written evidence that such Insurance Is In force. · · ·. . (b)' Business Interruption.' Lessee shall obtain and maintain loss ·of Income and extra expense Insurance in amounts as will reimburse Lessee for direct or Indirect loss of earnings attributable to all perils co(Tlmonly Insured agal~1st by prudent lessees in the puslness of Lessee or attributable to prevention of acceSs to the Premises as a result of such perils. · (c) No Representation of Adequate Coverage. Lessor makes no ·representation that the limits or fortns ·of coverage of. insurance specified herein are adequate to cover Lessee's property, business operations or obligatlon.s·under this Lease. 8.5 · Insurance Policies. Insurance required herein shall be by companie!: duly licensed or admitted to transact business In the state w.here the Premises are located, and maintaining during the policy term a "General Policyholders Rating" of at least B+,.V; as set forth In the m.ost current issue of "Best's Insurance Guide", or such other rating as may be required by a Lender. Lessee shall . not do or permit to be done anything which invalidates the required Insurance policies. Lessee shall, prior. to the Start Date. deliver to Lessor certified copi13S of poliCies of such Insurance or ~rtificates evidencing the existence and ambunts ·of the required l~surance. No such policy shall be cancelable or:subject to modification except arter 30 days prior written notice to Lessor. Lessee shall, at least 30 days prior to the expiration of such policies, furnish Le-ssor with evidence of renewals or "insurance binders" evidencing renewal thereof, or lessor may order such Insurance and charge the cost thereof lo Lessee, which · amo)Jnt shall be payable 'by Lessee to Lessor ,upon demand. Such policies shall be for a term of at least on~ year, or the length of the remaining term of this Lease; whichever Is less. If either Party shall fail to procure and maintain the Insurance required to be carried py It, the other Party may, but shall not be required to, procure and ·maintain the same. · 8.6 ·waiver of Subrogation. Without affecting any other rights or remedl~,' Lessee and Lessor each hereby release and relieve the other, and waive their enUre right to recover dam.ages against the other, for loss of or damage to Its property arising out of or Incident to the perils required to be lrtsured against herein. The effect of such releases and waivers is not limited by the amount of Insurance carried or required , or by any deductibies applicable hereto . The 'Parties agree to have their respective property damage lnsura11ce carriers wal~e any right to .subrogation that such companies may hav~ against LessC?r or lessee, as the case may be; so long as tht~ insur~nce Is not Invalidated thereby. . · · · · · . 8.7 ·Indemnity. Except for Lessor's gross negligence or willful miscondvct; Lessee shall Indemnify, protect, defend and hold harmless the Premises, Lessor and Its agents, Lessors master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or llabiiJUes arising out of, Involving, or In connection with, the use and/or occupancy of the Premises by Lessee . If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, lessee shall .upon notice defend the same at Lessee's expense by counsel reasonably salisfactory tQ Lessor and Lessor s~all cooperate with Lessee In such defense. Lessor need not have first paid any such claim In order to be defended or Indemnified. · · · 8.8 Exemption of lessor from Liability .. Lessor ·shall not be liable for Injury or damage to the person or goods, wares, merchandise or other property of lessee, Les·see's employees, contractors,' invitees, custome.rs, or any other persdn In or about the Premises; whether such damage or Injury Is ~aused by or results from lire, steam, electricity, gas, water or rain, or trom the breakage, leakage, obstruction or other defects of pipes, fi re sprinklers, wires, appliances, plumbing, HVAC 'or lighting fixtures, or from any other causl!l. whether lh~ said Injury or damage results from · .. rondltions arising upon the Premises or upon other portions of. the Building, or from ot!ler sources or places. Les~or shall not be liable for any damages arising from any act or neglect of any other tenant t;~f Lessor nor from the fanure of Lessor td ~nforce the provisions of any other lease In the Project. Notwithstanding Lessor's negligence or .breach of this Lease, Lessor shall under no circumstances be .llable for Injury to Lessee's t?uslness or for any loss of income or profit therefrom. 9. Damage or Destruction. · 9.1 DeflniUons. (a) "Premises Partial Damage" shal mean damage or destrucl!on to the Improvements on the Premises, ·other than Lessee Owned Alterations and Utility 111stallations, which dan reasonably be repaired In 3 months or less irom .the date of the damage or .destruction, and the cost thereof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify L9ssee in writing within 30 days from the d~le of the damage or destruction a!3 to· whether or n~t the damage is Partial or Total. . . . . . . . · (b) "Premises Total Destruction" shall mean damage or destruction .tG the Improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired In 3 months or less from the dale of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify ·:..es~:.ee .in wriUng within 30 days from the date of the Clamage or destruction as to whether or not the damage Is Partial or Total. · (c) "Insured Loss" shall mean damage <;~r destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade. Fixtures, whlcti was caused by an event required to be covered by 1the Insurance described in Paragraph 8.3(a), Irrespective of any dedl!ctible amounts or coverage limits Involved. · . · (d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their .condiUon existing Immediately prior ~erelo, Including demolition, debris removal and upgrading required by the operation of Applicable Requirements, ·and without deduction for depreciation. · · . · . · (e) "Hazardous Substance Condltlon"·shall mean .the cicc;:urrence.~or discovery of a condition i nvolving the presence of, or · a contamination by, a Hazardous Substance as defined In Paragraph 6.2(a),'ln, on ; or under the Premises which requires repair, remedlatlon, or restoration. · 9.2 Partial Damage • lf!sunid loss. If a Premises Partial Damage that· is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage (~ut not lessee's Trade Fixtures or Lessee Owned Alterations and Uti!lty Installations) as soon as reasonably possible and this Lease shall continue In full force and effect; provi.ded, however, that Lessee shall, ·at Lessor's. election, make the repair of any damage.or destruction the total oo.st to repair of which Is $5,000 or less, and, In such event, Lessor shall make ariy applicable insurance proceeds available to Lessee op a reasonable basis for that purpose. Notwlthslanding the foregoing, If the required Insurance was not In force or the lnsur'!nce· proceeds are not sufficient' to effect such repair, the Insuring Party shall promptly. contribute the shortage In proceeds as and When requ ired to -complete ·sald repairs . In the eveht, however, such shortage was due to the fact that, by reason of the unique nature of the Improvements,· full replacem.ent cost Insurance coverage was not commercially reasonable and avallab!e, lessor shall have no obligatlon to pay for the shortage In Insurance proce8fjs or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, wlthln.10.days following .receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall ~mplete them as soon as · reasonably possible and this Lease shall remain In full force and eff~cl. If such funds or assurance ·ar.e not received, Lessor may nevertheless elect by written notice to Lessee within 10 days thereafter to: (I) make such restoration and repair as Is commercially reasonable with Lessor paying any shortage In proceeds, In which case this Lease shall remain In full force a.nd effect, or (II) have this lease termlnate .30 days thereafter. Lessee shall n~t be entitled to relmbursemen~ of any funds conlribl!ted by Lessee to repair any such damage or deslrucllon. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9 .3, notwithstanding that there may be some lnsu~nce coverage, but the net proceeds of any such Insurance shall be made available for the repairs If made by either Party. 9.3 . ·Partial Damage • Uninsured Loss. lf.a PremiSes Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (In which event Lessee shall make U1e repairs at Lessee's e;cpense), Less.or may. either: (I) rapslr such damage as soon as reasonably possible at Lessor's expense, In which event this lease shall continue In full force and effect or (II) terminate· this Lease by .giving written notiee to Lessee within 30 days after receipt by Lessor of knci~edge of the occurrence of such damage. Such t~rminallon shall be effective 60 days. following the date of such notice. In the event Lessor elects to terminate thi~ Lease, l:;essee ~;hall ha1e tha right wlt;lin 'iO days after receipt of the termination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessdr. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such comm!tment. In such event this lease shall continue in full force and effect,. and Lessor shall proceed 'to make such repairs as soon as reasonabiy possible after the reouired funds . are available. If Lessee does not make the required commitment, this !.,ease shall terminate as of the dale specified lri the termination notice. · · · . 9.4 · Total Destruction. NOtwithstanding any other provision hereof, If a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was eaused by the gross negligence or willful ml~_;conduct of Lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided ·1n Paragraph 8 .6. . , · 9 .5 Damage ~ear End of Term. If at any lime during the last 6 months ~f this, Lease there Is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate thls Lease: ~active 60 days following !tie date ·of occurrence of such damage by giving a written te~lnallon notice to Lessee wllhln 30 days ·after t!le· date of occurrence of such damage. Notwithstanding the foregoing, If Lessee at that lime has an exercisable option to extend this Lease or to purchase the Premises, then Les·~ee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage In Insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (I) the dale which Is 10 days after Lessee's receipt of Lessor's written ·notice purporting to terminate this Lease, or (il) the day prior to. the dale upon which such option expires. If Lessee duly exercises such opllon during such period and provides Lessor wi(ti· funds (or adequate assurance thereof) lo cover any shortage in Insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and lhls Lease shall continue In lull force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period , then this Lease shall terminate on the date specified In the termination notice and Lessee's option shall be extinguished. _1'/) 9.6 ~element of Rent; Le.ssee's Remedies. ~ ~ 1999 ·American Industrial Real Estate Assoclallon Page 6of 12 REVISED ··~ Initials FORM OFG-1-9/99E 20 ',.,....:. ,·· , (a) Abatement. In the ever remises Partial Damage or Premises 1otal Deslrt 1 or a Hazardous Substance Condition for which Lessee-is noi responsible under this Lease, the •. payable by Lessee for the period required for the r.. ., remediation or restoration of such damage shall be abated In proportion to the degree to ~hich Lessee's use of the Premi ses is impaired , but .not to exceed the proceeds received from the Rental Value insurance. Ali other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any Sl!Ch damage, destruction, · remediation , repair or restoration except as provided herein. · · . (b) Remedies. If Lessor shall be obligated to repair or restore the Premises arid does not ·commence, hi a substantial and me~mingful way , such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time pri or to the commencement of such repair or · restoration , give written notice to Lessor and to. any Lenders of which Lessee has actual notice, of Les.see's ele~tion to terminate this Lease on a .date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repai r or restoration Is not commenced within 30 d!iYS thereafter, this Lease . shall terminate as of the date specified In said notice . If the repair or restoration Is commenced within such 30 days, this Lease shall continue In full force and effect. "Commence" shall mean either tile unconditi.onal authorlzaU!Jn Qf the preparation of the required plans ; or the beginning of the ac;tual work on the Premises, whichever first occurs. · · · · · 9 .7 Termination; Advance Payments .. l,Jpon termination of th is Lease pursuant to Paragraptj 6.2(g) or Paragraph 9, <;~n equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall. In addition , retum to Lessee so much of Lessee's Security Deposit as has not been, or Is not then required to be, used by Lessor. · · . · 9 .8 .Waive Statutes.' Le~sor and Lessee agree that the tenris of.thls Le~~e s~all govern the effect of any damage lo or destruction of the Premises with r~sp~t to the termination of this Lease and hereby waive .the provisions of any pres!9nt or .fiJtlire statute to the extent Inconsistent herewith. 10. · Real Property Taxes. · . 10.1 Definitions. As used herein , the term "Real Proper:ty Taxes• shall .·Include any form of assessment; real estate, ·general, special, ordinary or extraordinary, or renta l levy or tax (other than Inheritance; personal income or estate la,(es); Improvement bond ; andfor license fee Imposed upon or levied against any legal or equitable Interest of Lessor In the Project, Lessor's .right to other income therefrom , andfor Lessor's business of leasing, by any authority having the direct or Indirect power to lax and where the funds are generated With reference to the Project address and where the proceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Project Is located . ·"Real Property Taxes" sliall also include any tax, fee, levy, assessment or charge, or any incr~e .therein , lmppsed byreasdri of events oceurrlng during the term of this Lease, including but not limited to, a change In the ownership of the Project or any portion thereof or a chan{1 :· In the Improvements thereon. · · · · 10,2 Payment of Taxes. Except as otherwise provided h1 Paragraph 10.3, ~~ssor shall pay the Real Prop.erty Taxes applicable to the Project, and said payments shall be Included In the calcu lation of Operating Expenses In accordance with the provisions of Paragraph 4 ;2 . · 10.3 Addltlonallmproverrients. Operating Expenses shall not inclui:le Rea :.:Pro~erty Taxes specified in the tax asses.sor's records and work sh~ets as being caused by additional Improvements placed upan the Project by other le~e.eli orJ)y Lessor for the exclusive enjoyment of such other less~es . Notwithstanding Paragraph 10.2 hereof, Lessee shall, ho\Yever, pay to Les~or at the t ime ·Qper~llng Expenses are payable under Paragraph 4.2, the entirety of any Increase In Real Property Taxes If assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee's ~eq!Jesl · · · . · .. 1 • • • • • • • 10.4 Joint Assessment. If the Building Is not separately assessed, Real . Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the ·land .and Improvements Included wlthl{lthe tax parcel assessed , such proportion to be determined by. Lessor from the respeptlve valuatlqns assigned In the assessor's wark sheets or such other information as may be reasonably available . Lessor's reasonable determination thereof, In good faith, shall be conclusive. · . · · · · . . · · · · 10.5 Per&Onal Prope~ Taxes. Lessee shall pay prior to delinquency all taxes assessed against a~ levied upon Lessee Own ed Alterations and Utility Installations, Trade Fixtures, furnishings , equipment and all perso·nal prop~rty of Lessee contained In the Premises. When possible , Lessee shall cause Its Lessee Owned Alterations and Utility Installations, Trade Fixtures , furnishings, equipment and all other personal property-to be assessed and billed ·Separately from the real property of Lessor. If any of Lessee's ·said property shall be assessed with lessor's real property, Les~ee shall pay Lessor the taxes attributable to Lessee's property wilhli110 days af.ler receipt of a written statellJent setting forth . the taxes applica,ble to Lessee's property. . . 11. . Utilities and Services. 11 .1 . ·Sanilces· Provided by Lessor. Lessor shall provide heating, -ventilation, air condlli~nlng, reasonable amounts of electricity fo ~ normal lighting and office machines, wa~r for reasonable and normal drinking and lavatory us.e In connection with an office, and replacement light bulbs and/or fluorescenrtubes arid ballasts for standard overhead fixtures. Lessor shall also provide Janitorial serviceS to' the Premises and Common Are~s 5 limes per week, excluding Building Holidays, or pursuant to the attached Janitorial schedule, If any. Lessor shall not, however, be required to provide janitorial services to kitchens or storage areas included wiihln the Pre-mises. · · · · 11.2 Services Exclusive to Lessee. Lessee shaH pay for ·an water, gas, heat, light, power, ll!llephone aod other utilities and services specially or exclusively supplied and/or metered exclusively to the Premises· or to Lessee, together with any taxes thereon . If a service is deleted by Paragraph 1.13 and such service Is· not separately metered to the Premises , Lessee shall pay at Lessor's option,. either .Lessee's Share or a reasonable proportion to be determined by Lessor of all charges for such jointly metered service . . . . . . 11.3 Hours of Service. Sal~ services and utilities shall be provided during times set. forth in Paragraph 1.12. Utilities and servi ces requ ired at other times sh~tll be subject to advance request and reimbursement by Lessee to Lessor of the cost thereof. · 11 .4 · Excess Usage by Lessee. Lessee shall not make connection to the utilities except by or through existing outlets and shall not Install or use machinery or equipment In or about the Premises that uses excess water, lighting or power, or suffer or permit any act that causes extra burden upon the utilities or services, lncludlng but not limited to security and trash services,· over slimdard office usage for the Project. Lessor shall require Lessee to reimburse Lessor for any excess expenses or costs that may arise out of a breach of this subparagraph by Lessee. Lessor may, In i ts sole discretion, Install at Lessee's expense supplemental equipment and/or separate-metering applicable to Less•3e's excess usage or loading . · 11 .5 Interruptions. There shall be no ~batement .of rent and Lessor shall not b~ liable In any respect whatso.ever for the inadequacy, stoppage, Interruption .or discontinuance of any utlllty or service due to riot, strike, labor dispute, breakdown, acci~ent, rep~lr or other caus~ beyond Lessor's reasonable control or In cooperation with governmental request or directions. · · 12. Assignment and SubleHing. · 12.1 Lessor's Consent Requlnid. . (a) Lessee shall I'IQI voluntarily or by operation of law assign, transf~r;· f(lortgage or encumber (colleetively, "assign or ass~gnmenl") or . sublet all or any part of Lessee's Interest In this Lease or In the Premises without Lessor's prior written consent. · . (b) Unless Lessee Is a corporation and Its stock Is publicly traded on a ~naUqnal stock exchange, a change In the control of Lessee shall . constitute an assignment requiring consent. the transfer, on a cumulative basis, of 25% or more of th~ voting control of Lessee siJE!II constitute a change In control for this purJ)ose. · · · : · (c) The Involvement of Lessee or Jts asseis in any transaction, or series ofl~nsactions (by way of merger, sale, acquisition, financing, transfer, leveraged buyout or otherwise), whether or ·not a formal assignment or hypOthecation of this · Lease or· Lessee's assets oCcurs, "which results or will ·result In a reduction of the Net Worth of Lessee by an.amount l!reaier than 25% of such Net Worth as It was represented at the lime of the execution qf this .. Lease or at the time of the most recent a~slgnment to which Lessor .has consented , or as. II .exists· Immediately prior to said transaction or transactions . constituting such reduction, whichever was or Is greater, shall be eonsldered an assignment of this lease to which Lessor may withhold its consenl. "Net Worth of Lessee". shall mean the net worth of Lessee (excluding any guarantors)· established under generally accepted accou~llng principles. · (d) An assignment or subleiUng without consent shall, at Lessor's option, be a ·Def.ault curable afler ·nolice per Paragraph 13.1(c), or a noncurable Breach without the necessity of any notice and grace period. If Lessor electS tci ·treat such unapproved assignment or subletting as a noncu r~ble Breach, Lessor may either: (l) terminate this Lease, or (II) upon 30 days written notice, Increase the monthly Base Rent to 110-to of the Base Rent then In effect. Further, In the event of such Breach and rental adjustment, (I) the purchase price .of any option to purchase ttie Premises held by Lessee shall be subject to similar adJustment to 11Q% of the price previously In effect. and (II) all fixed and non-fixed ref! tal adjustments scheduled during the remainde r of the Lease term shall be Increased to 110% of the scheduled adjusted rent. · (e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall bs limited to compensatory damages a.nd/or Injunctive relief . 12.2 Terms and Conditions Applicable to Assignment and Subletting. . (a) Regardless of Lessor's consent, no assignment or·sublettlng shall: (i) be effective without the · express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (II) rel~ase Lessee of any obligations hereunder, or (Ill) alter the primary ll~;~bility of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee. · (b) Lessor may accept Rent or performance of Lesse.e's obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay In the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a wa iver or estoppel of Lessor's right to exercise Its remedies for Lessee's Default or Breach. · · · (c) Lessor's consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting . , (d) In the event of any Default or Breach by Lesse~. l-essor may ·proceed directly against Lessee, .any Guarantors or ariyone e lse responsible for the performance of Lessee's obligations under this Lease, Including any assignee or. sublessee, without first exhausting Lessor's remedies against any other' person or enuty responsible therefore to Lessor. or any security h~d by Lessor. . (e) Each request for consent to an assignment or subletting shaH be In writing. accompanied by informa tion relevant to Lessor's d~termlnatlon as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, If any. Lessee agrees to provide Lessor with such other or addillonal information and/or documentation as may be reasonably requested . (See also Paragraph 36) . . (f) Any ass ignee of, or sublessee under, th is Lease shall, by reason bf accepting such assignment or entering Into such sublease , be © 1999-American Industrial Real Estate Association Page 7 of 12 REVISED ·A:4., ,. Initials FORM OFG-1·9199E 21 •' .-=--. • Y, -....... .de,91Tled to pave assumed and agreed to con nd comply with each and every !erin, covenar dillon and obligation herein to be observed or perfarmed by Lessee during the term of said 1;._ ,. .. men! or sublease, other than such ct'!igallons at. .. contrary to or inconsistent with provisions of an assignment or sublease to which lessor has specifically consented to In writing. . ' . . (g) lessor's consent tq any assignment or subletling shall not trsl"!sfPr ' to Ule assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer. is specifically consented to by Lessor In writing. (See Paragraph·39.2) · 12.3 Additional Terms and Condlllo~s Applicable to Subletting. The following terms and conditions shall apply to any sublet\fng by lessee of all . or any part of the Premises and .shall be deemed included in all subleases under this Lease whether or noi expressly incorporated therein ~ (a) Lessee her~by assigns and transfers to Lessor all of Lessee's Interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward lessee's obllgetioris uhder this Lease; provided, :howe".Jcr, that until a Breach shall occur In the performance of Lessee's obligations, Lessee may collect said Rent. Lessor shall not, by reason of the foregoing or a~cy asslgnm~nt of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply With any of Lessee's obligations to such sublessee . Lessee hereby Irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from· lessor stating that a Breach exists In the performance of Lessee's obllgaUons under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such no lice from · Lessor and shall pay all Rents to lessor without any obligation or right to Inquire as to whether· such Breach exists, notwithstanding any claim from Lessee to the contrary. · · · (b) In the event of a Breach by Lessee, Lessor may, at Its option, require sublessee to attom to Lessor, In which event Lessor shall undertake the obligations of the sublessor under such sublease from the lime of the exercise of said option to the expiration .. of such sublease; provided, however, lessor stiall not be ll~ble for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any ·pi'for Defaults or Breaches of such sublessor. · · · (c) Any matter requiring the consent of the subless~r under a sublease shail also require the cohse~t of lessor. (d) No subless~ shall further assign or sublet all or any part of the Premises without lessor's prior wrllten consent. (e) Lessor shall deliver a copy of any notice. o(Qefault or Breach by Lesl;ee to the sublessee, who shallt:tave the right to cure the Default of lessee within the grace period, If any, specified In such noUce. The sublessee shall have a right of reimbursement and offset from and against Le.ssee for · any such Defaults cured by the sublessee. · 13. Default; ·Breach; Remedies. . 13.1 Default; Breach. A "DafauW Is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations underthis Le~se. A "Breach" is defined as the occurrence of one or more of the following Defaults, an~ the failure of Lessee to ·cure such Default .wlthln any applicable grace period: · · · · (a) The abandonment of the Premises; or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insuri:mc;:e described in Paragraph 8.3 Is jeopardized as a result thereof, or·wilhout providing reasonable assu~ances to minimize pctential vandalism. · · · (b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a 'third party, when due, !6 provide reasonable evidence of insurance or sunity bond, 9r to fulfill ariy obligation under this. Lease whlc.h endangers or threatens Ufe or property, where such failure continues for a period of 3 business days fol19wing written notice to Lessee. · . (c) The failure by Lessee to provide (I) reasonable written evidence of compliance with Applicable Requirements. (ii) the service contracts, · (Ill) the rescission cf an unauthorized assignment or subletting, (lv) an Estoppel Certificate, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requeste~ under Paragraph 41' (easements), or (viii) any other documentation or informallon which Lessor may reasonab,ly require of Lessee under the terms of this lease, where any such failure continues for a period of 10 days following written nollce·to lessee. (d) A Default by lessee as to the terms; COV(lnants, cor.dllions or prb'!lsion:: of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those descrl.bed In subparagraphs 13.1(a), (b) or (c), above, where su9,h ~~faull continues for a period of 30 days after wrltteh notice; provided, however. that If the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then It shall not be deemed to be a Breach if L~ssee commences such cure within said 30 day pttriod and thereafter dlllgentl;r ·;Jrot;·ecutes su~ cure to completion. . · ·(e) The occurrence of any of the follOwing events: (I) the making of St:JY general arrangement or assignment for the benefit of creditors;· (II) becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor stati,Jte thereto (unless, In the case of a petition flied against lessee, the same Is dismissed within 60 days); (Ill) the appointment of a trustee or re·celver to take possession bf substantially all of Lessee's asset.s located at the Premises or of Lessee's Interest in this Lease, where possession Is no! restored to Lessee wt~in 30 days; 9r (lv)·the attachment, execution or other judicial seizure of substantially all ·of lessee's assets located at the Premises or of Lessee's interest ln ·thls Lease,.where such seiZure Is not discharged· within 30 days; provided, however, In the event that any provisiQn of this sul:!paragraph (e) Is CO[IIrarY to an¥ applicable law, suqh provlslan ·shall be of no force or effect. and not affect the. validity of the remaining provisions. · · · . · . · · (f) The dlscovef)' that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (g) If the performance of lessee's obligations 'under this Le~se Is gua'ranteed: ·(I) the death of ·a · Guarantqr, (II) ihe termination of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor's becoming Insolvent or the subject of a bankruptcy filing, (lv) a Guarantor's ·refusalto honor the guaranty, or (v) a Guarantor's breach of Its guaran~y .obligallon on an anticipatory basis, arid Lessee's failure, within 60 day$ following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of lessee, equals or exceeds the combined financial resources of Lessee and .the Guarantors that. existed al the lime of execution of this Lease. · · 13.2 Remedies. If Lessee falls to perform any of its affirmative du!les or obligations, wi~ln 10 days after written notice (or In case of an emergency, without notice), Lessor may,· at lis option, perform such duly or obligation on l.,e.ssee's behalf, Including but not limited .to the obtaining of reasonably required bonds, insurance policies, or govemmentallicenses, permits or approvals. The costs and expenses of any such performance by Lessor shall be due and payable by Lessee upon receipt of invoice therefor. If any check given to l..e5s.or by lessee shall not be honored by the bank upon which It is drawn, lessor, at Its option, may require all future payments to be made by Lessee to be by cashier's check. In the event of a Breach, lessor may, with or without further notice or demand, and without limiting Lessor In the exercise of any right or remedy which Lessor may have by reason of such Breach: (a) Terminate lessee's right to possession of the Premis~s by anY, lawful means, In which case this Lease s~alltermlnate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from lessee: (i) the unpaid Rent which had been earned · at the lime of termination; (II) the worth ·at the time of award of the amount by which the unpaid rent which would have been earned after termination until the· Ume of award exceeds the amount of such rental loss that the lessee. proves could have been reasonably avoided; (Ill) the worth at the time of award of the amount by which the unpaid rent for the balance of the tenn after the lime of award exceeds· the amount of such rental loss that the Lessee proves could be reasonably avoided; and (lv) any other amount necessary to compensate Lessor for all the det:1menl proximately caused by the Lessee's failure to perf9rm Its .obligations under this Lease or which In the ordinary course of things would be likely to result therefrom, Including but not limited to the cost of recovering possession ·of .(he Premises, expenses of releltlng, including necesfjary renovation and alteration of the Premises, reasonable attorneys' fees, and that portion of any teasing commission paid by Lessor In connection with this lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to In provision (Ill) of the Immediately preceding sentence s.h81! be ci:lmputtid by discounting such amount ·at the discount rate of the Federal Reserve Bank of the District within which the Premises are located af the time of award plus one percent. Efforts by lessor to mitigate damages caused by Lessee's Breach of .this lease shall not waive Lessor's right to reeover damages under PC!ragraph 12. If termination of this Lease Is obtained through the provisional remedy of unlawful detainer, lessor shall have the right to recover In such prOceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof In a separate ~ult. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, qr to perfonn or quit given to Lessee under It:~ unl!lwful detainer statute shall also cons II lute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13 .. 1 and'the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shatr constitute both an unlawful detainer and a Breach of this Lease entitling lessor to the remedies provided for In this Lease and/or by said statute. . (b) Continue the Lease and Lessee's .right to possession and recover ifie Rentas It becomes due, in which event Lessee may sublet or assign; subject only to reasonable limitations. Acts qf maintenance, efforts to relet, and/orthe appointment of a receiver to proleclthe. Lessor's Interests, shall not constitute a termination of the.Lessee's right to possession. (c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of.the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right tci poe~essl91i s.hall not relieve Lessee from liability under.any Indemnity provisions of this lease as to mallei's occurring or accruing during ·the term hereof or by rebson 6f Lessee's occupancy of the Premises. · · · · 13.3 Inducement Recapture. Any agreement for free or abated rent or oth~r charges , or for the giving or paying by Lessor to. or for Lessee of any cash or other bonus, Inducement or consideration ·tor Lessee's E!nterlhg Into this Leasp, all of which concessions are hereinafter referred to as "Inducement ~rovlslons", shall be deemed conditioned upon lessee's full and · faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from lh!s Lea!!e and of no further force or effect. and any rent, other charge, bonus, Inducement or cot:~sideration theretofore ·abated, given or paid by lessor under such an Inducement Provision shall be Immediately due and payable by Lessee to lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which Initialed the operation of this paragraph ;~hall not b'3 deemed a waiver by lessor of the prov isions of this paragraph unless specifically so stated In writing by Lessor at the time of such acceptance. 13.4 late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascerlc:ir.. Such costs lilCiudd, but are not limited to, processing and accounting charges, and late charges which may be Imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such a7.rhall be due, then, without any requirement for notice to Le:;see, Lessee shall p:-y to Lessor a one-time late charge equal to 10% of eac!1 such ~ .#t'..( Initials · Initials ~ 1999-American Industrial Real Estate Association Page 8 of 1'2 REVISED FORM OFG-1-9/99E 22 L •' ') ' ' ..--.... ~ . ov~rch;e amoun' or $100, whichever Is greater. lfl rUes hereby agree.thal such late charge repres e6 'air and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acc ... e of sut:h late charge by Lessor shall In no event .... ,,tute a waiver of Lessee's Default or Breach wilh respect to such overdue amount, nor prevent the exercise of any of lhe other rights and rell]edles granted hereunder. In the event that a late charge Is payable hereunder, whether or not collected, for 3 consecutive Installments of Bas~ Rent, ·then notwllhs.tandlng any provision of this Lea~e to the contrary, Base 'Rent shall , at Lessor's option, become due and payable quarterly In advance. · 13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due as to scheduled payments (~uch as Base Rent) or within 30 days following ihe dat.e on which II was due for nonscheduled paymeni. shall bear Interest from the dale when due, as to sche~uled payments, or the 31st day after It was due as to nonscheduled payments. The Interest ("Interest") charged shall be cdmputed at the rate of 10% per annum but shall not exceed. the maximum rate allowed by law. Interest Is payable In addition to the potential late charge provided for In Paragraph 13.4. · · 13.6 Breach by Le~sor. . · (a) Notice of Breach. Lessor ·shall not be deemed iri breach of th is Lease unless Lessor falls within a reasonable lime to perform an obligation required to be performed by Lessor. For. purposes .of this Paragraph, a reasonable :time shall In no event be less than 30 days after receipt by Lessor, and any Lender whose 'name and address shall have been furnished l.:essee in writing for such purpose, of written ·notice specifying wherein such obligation of Lessor has not beeri performed; provided, however, tha t If the· nature of Le ssor's obligation Is such 'that more than 30 days are reasonably required for its performance, then Lessor shall not be in breacli if performance Is commenced within such 30 day period and thereafter diligently pursued to completion. · · (b) Performance by Lessee on Behalf of Lessor. lh the event that.rielther Lessor nor Lender cures said b reach within 30 days after receipt of said notice, or If having commenced said cure they do not diligently pursue II to i:f?mpletlon, then Lessee may elect to cure said tireach at Lessee's . expense and offset from Rent the actual and .reasonable cost to perform such cure, provlqed however, that such offset shall not exceed an amount equal to the greater of one mon,th's Base Rent or the Security Deposit, reserving Lessee's ,right to seek reimbursement from Lessor. Lessee shall document the cost of sa id cure and supply said documentation to Lessor. · 14. Condemnation. If the Premises or any portion thereof are taken . under the power o f eminent domain 'or sold under the threat of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as 'to the part laken :~s qt'•the date the .condemning authority takes ti tle or possession, whichever first occurs. If more than 10% of the rentable fl.oo.r area of the Premises, or m.bre than 25% of Lessee's Reserved Parking Spaces, if any, are taken by Condemnation, Lessee may, at Lessee's option, to be exercised In writing within 10 days.after Lessor shall have g iven Lessee written notice of such taking ·(or in the absence of such notice, within 10 days after the condemning authority shall have taken possess ion) terminate this Lease as of the date the condemning authority lakes such possession . if Lessee does not terminate this Lease In accordance w ith the foregoing, th is Lease shall remain in full force and effect as to · ihe portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction In utility of the Premises caused by such Condemnation. Condemnation awards and/or p~yments shall be the property of Lessor, whether such award shall be made ·as compensation for diminution In value of the leasehold, the value of the part taken. or for severance damages; provided, however, that Lessee shall be entitled to any compensation for Lessee's relocation expenses, loss · of business goodwill and/or Trade Fixtures , .without rega rd to whether or not this ·Lease Is terminated pursuant to the provisions of th is Paragraph. All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the ·Lessee and Les!;ee sh~ll be entltlecf'to any and all compensation which is payable therefor. In the event that this Lease Is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation. 15. Brokerage Fees. · · 15.1 Additional Commission. In addiUon to the payments owed pursuant to Paragraph 1.1 0 above, and unless Lessor and the Brokers otherwise agree in writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) .If Lessee acquires from Lessor any rights to the Prem ises or other premises owned by Lessor and located within the Project, (c) If Lessee remains in possession of the Premises, with. the consent of Lessor, after the expiration of th is Lease, or (d) If Base Rent Is Increased, whether by agreement or operation of an escalation clause herein, then , Lessor shall pay Brokers a fee In accordance wllh the schedule of the Brokers in effect at the time of the execution of this Lease. · · 15.2 Assumption of Obligations. Any buyer or transferee of Lessor's Interest In this Lease shall be deemed to have assumed Lessor's obligation hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10, 15, 22 and 31 , If Lessor faUs to pay to Brokers any amounts due as and for brokerage f~s pertaining to this Lease when due, then such amounts shall accrue lnteresl In addition , if Lessor falls to pay any amounts to Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and Lessee of such failure and If Lessor falls to pay such amo~nts within 10 days after said notice, Lessee shali pay said monies to Its Broker and offset such amounts against Rent. In addition, Lessee's Broker shall be deemed to be a th ird party beneficiary of any commission agreement entered Into by and/or be,tween Lessor and Lessor's Broker for the limited purpose of collecting any brokerage fee owed. · 15 ;3 Representations and Indemnities of Broker Relationships. Lessee and Lessor each represent and warrant to the other tha t It has had no deall.ngs with any person, fmn , broker or finder (other than the Brokers, If any) In connection with this Lease, and that no one other than sa id named Brokers Is entitled to any commission or finder's fee In connection herewith. Lessee and L'lssor do each hereby agree to Indemnify, protect, defend and hold the other harmiess from and agai nst liability for ' compensation. or charges which may be clal,med by any such un~amed broker, finder or other similar party by reason of any dealings or actions of the Indemnifying Party , Including any costs, expenses, ~tlorneys' fees reasonably incurred with respec.t thereto. 16. Estoppel Certlflca~as . · · . . .,' · · · (a) Each Party (as "Responding Party") shall within 10 days after written notice from the other Party (the •Requesting Party•) execute, acknowledge and deliver to the Requesting Party a statement In writing in form slmHar to the then most current "Estoppel Certificate" form published by the American Industrial Real Estate Association, plus such addiUonal information, confirmation and/or statements as may be reasonably. requestecl by the Reques ti ng Party. · . (b) If the Responding Party shall fa ll to execute or deliver the Estoppe\ Certificate within such io day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease Is In ·full force and effect withOut modification except as may be represented by the Requesting Party, (II) there are no uncured. defaults In the Requesting Party's performance, and (Ui) if Lessorr ls the Requesting Party, not more than one month's rent has been paid In advance. Prospective purchasers and encumbrancers may rely upon the Requet:ting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the.facts contained In said Certificate. , · (c) if L8$SOr desires to finance , refinance, or sell the Premises, or any P.art thereof, Lessee !!nd all Guarantors shall deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by .such lender or purchaser, Including but not limited to Lessee's financial statements for the past 3 years . All such flnencial statelflents shall be received by Lessor arid such lender or purchaser In confidence and shall be used only for the purposes herein set fort h. · · . . 17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the Urne In question of the fee UUe to the Premises.' o r, if thi s is a sublease, of the Lessee's Interest in the prior lease. In the event of a transfer of Lessor's Ulle or Interest IJ1 the Premises or thiS Lease, Lessor shall deliver to the transferee or asslgpee (In cash or by credit) any unused Securi ty Deposit held by Lessor. Except as provided in Par~graph 15, upon such transfer or assignment and delivery of the Security Deposit, as aforesaid , the prior ·Lessor shall be relieved of ail liability with respect to the obligations and/or covenanis under this Lease thereafter to be performed. by the Lessor. Subject to the foregoing , the obligations and/Q r .covenants in this Lease to. be performed by the Lessor shall be binding only upon the Lessor as herei nabove defined. · · 18. Severability. The Invalidity of any provision of th is Lease, as determ ined by a cc;Lirt of competent jurisdiction , sl]allln no way affect the validity of any other provision hereof. . · 19. . Days. Unless otherwise specifically Indicated to the contrary, the word "days• as used In ~his lease shall mean and refer to calendar days. 20. Limitation on Liability. The obligations o f Lessor under this Lease ,;hall not constitute personal obllg&tlons of Lessor or Its partners, members, directors, officers or shareholders, and Lessee shall look to the Project. and to no other &ssets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, 'and shall not seek recourse against Lessar's partners, members, directors, officers or shareholders, or any of tl)elr personal assets for such satisfaction. · ' 21 . Time of Essence. Time Is of the essence with respect t~ the performance of ali obligations to be performed or observed by the Parties under this . Lease. 22. No Prior or Other Agreements ; Broker Disclaimer. This Lease contains al! agreements between the Parties with respect to any matter mentioned herein, and no other prlo~ or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represt~nls and warrants to the Brokers that It has made, and Is relying solely upon, Its ownlnyesllgaUon as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responstbllity with respect thereto or with respect to any default or l,lreach hereof by e ither Party. The liability (Including court costs and attorneys' fees) of any Broker w ith respect to negotiation , execution, delivery or performance by either Lessor or Lessee under this Lease or any amendment or modification hereto shall be limited to an amount up to the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker's liability shall . not be applicable to any gross negligence or willful misconduct of such Broker. 23. Notices. . 23.1 Notice Requirements. All notices .required or permitted by this Lease or applicable law shall be In writing and may be delivered in person (by hand or by courier) or may ·be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given If served In a manner specified In ~I s Paragraph 23. The addresses noted adjacent to a Pa rty's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice , except that upon · Lessee's tak ing possession of the Premises , the Pmmises shall constitute Lessee's address for notice. A copy of all notice o Lessor shall be concurrently transm itted to such party or parties at such address a$ as Lessor may from l ime to time hereafter designate in writing. © 1999 ·American Industrial Real Estate Association Page 9 of 12 REVISED ~ Initials FORM OFG-1 -9/99E 23 .. ~ . . . . ~ ·.• 2~.~·Date of Notice. Any noUce s.. Jlslered or certified mall, return receipt request ,~ be deemed given on the date of delivery shown on the .receipt card, or if no delivery date is s-uoe postmark thereon . If sent by regular mail the .., .;hall be deemed given 48 hours after the same is addressed as required herein and malted wlth postage prepaid. Notices delivered bY. Unlter.i States Express Mall or overnight courier that guarantee ne)(l day delivery shall b~ deemed given 24 hours after delivery of the same to the Postal Service or cow·ier. Notices transmitted by facsimile . transmission or similar means shall be deemed delivered upon telephone confirmation of receipt (confirmation report from fax machine Is sufficient), provided a copy is also delivered via delivery or '!'all. If notice Is received on a Saturday, Sunday or legal holiday, It shall be deemed recelvB9 on the next business day. 24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condillon hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. lessor's consent to, or appr.oval of, any act shall not be deemed to render unnecessary lh.e obtaining of lessor's consent to , or approval ot, any subsequent or similar act by Less~e. or be construed as the basis of an estoppel to enforce the prorfsion or provisions of this Lease requiring such consent. The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or condillons made by Lessee in connection therewith, which such statement!! and/or conditions shalf be of no force or effect whatsoever unless specifically agreed to in writing by Lessqr at or before the time of deposit of such payment. 25. · ()isclosures Regarding The Nature of a Real Estate Agency Relationship. r · . (a) · ·When entering Into a discussion wflh a real estate agent regarding a rea l eslate -lransaclioo, a Lessor or Lessee should from the outset understand what type of agency relationship or ~epre~enlation it has with the agent or agents In the transaction. Lessor and lessee acknqwledge being advised by the Brokers.Jn this transaction, as follows:· · (I) · Lessor's Agent. A Lesso~s agent under a .f lstlng agreement with the Lessor acts as the agent for the Lessor only. A lessor's agent or subagent has the following affirmative obligations: To the Lessor. A fiduciary duty of utmost care , integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duly of honest and fair dealing and good faith . c. A duty to disclose all facts known to the agent materially affecting the value or desirability of .the property that are not known to, or within the diligent attention and · observation of, the Parties . An agent Is not" obllgated.lo reveal to ellher Party any confidential Information obtained from the other Party which does not involve the afflrmaUve .duties set forth abov.e. · . · (II) Lessee's Agent. An agent can agree to act as age.nl for the Lessee only .. in these situations, the ·agent is not the lessor's agent, even If by agreement the agent rna~ receive compensation. for services rendered, either in full or In part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, Integrity, honesty, and loyally in dealings with the Lessee. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care In pefrormance ofthe agent's duties. b. A duly of honest and fair dealing and good faith .. c. A duly to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or . within "the dillgenhltentlon and observation of, the Parties. An agent Is .not ob!igs:ed to rfl'.'eal :o either Party any confldenliallnformation obtained from the . other Party which does not Involve the affirmative dulles set forth above. · · · (iii) Agent Representing Both Lessor and Lessee. A real estate agent, either acting directly or through one or more associate licenses, cari legally be the agent of both the Lessor and thtJ Lessee In a transa~tion, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obllgatioris to both the Lessor and the lessee:. a. A fiduciary duly cif utmost care, Integrity, honesty and loyalty in the dealings with either Lesser or the Lessee. b . :Other dulles to the Lessor and the Lessee as slated ·above In subparagraphs (I) or (II). In representing both Lessor and Lessee, the agent may not Without the express permission of the respective Party, disclose .to the other Party that the Lessor Will accept re!ll In an amount less than that Indicated In the lisUng or that the Lessee Is willing to pay a higher ren.t than that offered. The above dulles of the agent In a real estate transacUon do not relieve a Lessor..or Lessee froni the responsibility to protect the ir own interests . Lessor and Lessee should carefully rea<! all agreements to assure that they adequate)y express 'their understanding of the transaction . A real estate agent is . a person quaflfled to advise about real estate. If legal or tax advise Is desired, consult' a compet~nt professional. · · · (b) Brokers have no responsibility with respect to any default or breach hereof by either Party. The liability (inch,Jding court costs and attorneys' fees), of any Broker with respect to any breach of duty, error or omission relaUng to this Lease shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, ·that the foregoing limltallon on each Broke(s llabl!lly shall not be applicable lei any gross negligence or willful misconduct of such Broker. · · (c) Buyer and Seller agree to Identify to Brokers as "Confldenllal ~ any communication or information given Brokers that is considered by such Party to be confidential. 26. No Right To Holdover. Lessee has no right to relaln possessio11 of the Premises or. any part thereof beyond the ·expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent shall be lnt:reased to 150% of the Basa·Rent applicable Immediately preceding . the expiration or termination. ~othfng contained herein shall be construed as consent by Lessor to any holding over by Lessee. 27. Cumulative Remed!es. No remedy or .electfon !lereunder shall be deerried exclusive but shalf, wherever possible, be cumulative wflh all other remedies .atlaw or In equity. · . 28. Covenants and Conditions; Construction of Agreement. All provisions of ,this Lease to be · observed or performed by Lessee are both covenants and conditions. In construing this Lease, all headings and titles are for the convenience of the Parties only and s~alf not be considered a part o{· this Lease. Whenever required by the context, the singular shalf Include the plural and vice vers3. This Lease shall not be construed as If prepared by one of the Parties, but rather according to Its fair meaning as a whole, as if both Parties had prepared it. . 29. · Binding Effect; Choice · of law. This Lease shall be binding upon the Parties, 'their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this lel:)se shall be Initiated in the county in which the .Premises are located. · 30. Subordination: Attornment; Non-Disturbance. 30.1 Subordination. This Lease and any Op,tion granted hereby stlali be subj.::ct and subordinate to any ground lease, mortgage, deed of trust, or other hypothecaHon or security device (collecUvely, "Security Device"), now or hereafter. placed upon the Premises, to any and all advances made on the security thereof, an9 to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devlc~s (In this Lease together referred to as "Lender") shall have no liability or obligation to perform any of the obligations of Lessor under this lease. Any Lender may elect to have this lease and/or any Option granted hereby superior to the Hen of Its Security Device by giving written notice thereof to Lessee, whereupon this Lease and such Options shalf be deemed prk:ir to such Security Device, notwithstanding the rei~Uve dates of the documentation or recordation thereof. 30.2 Attornment. In the event that lessor transfers Utle to the Premises. or the Premises are acquired by another upon the foreclosure or termination of a Security Device to· which this lease is subordinated (I) Lessee shall, subject to the nondisturbance provisions of Paragraph 30.3, atlorn to such new owner, and upon request, enter Into a new lease, containing all of the terms and ,-provislons of this L~ase, with such new owner for the rema inder-of the term hereof, or, at the election of such new owner, this Lealle shall automatically become a new Lease between Lessee and such new. owner, upon all of the terms and condfllons hereof, for the remainder of the term hereof, and (II) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of lessor's obligations hereunder, except that such new ownecshall not:· (a) be liable f9r any act or omission of any prior lessor . or with respect to events occurring prior to acquisition of ownership; (b) be subject to any:.offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the r!{turn iof any security deposit paid to any prior lessor. 30.3 Non-Disturbance. With respect to Security Devices entered into by Lessor after the execution of this .Lease! Lessee's subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a "Non"Disturbance Agreement") from the Lender whl~h Non-Disturbance Agreement provides that lessee's poss9$slon of the Premises: and .this 'Lease,·includlng any options to extef)d the term hereof. will not be ·disturbed so long as Lessee is not In Breach hereof and attorns to the record owner of the Premises. Further, with in 60 days after. the execution of this Lease, Lessor shall use Its commercially reasonabie efforts to obtain a Non-Disturbance A!)f'ae"¥3nt from the holder of any pre-exlsllng Sectirlty Device whicll is secured by the Premises. In the event that lessor is unable to provide the Non-Disturbc;nce Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Npn-Disturbance Agreement. 30.4 · Self-Executing. The agreements contained In this Paragraph 30 she.ll b~ effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender In connection with a sale, financing or refin!incing of the Premises, Lessee and Lessor shalf execute such further writings as may be reasonably required t.o separately document a11y su~ordlnalion, attornment and/or Non-Disturbance Agreement provided for herein. 31 . Attorneys' Fees. If any Party or Broker ·bnngs an actlon ·or proceeding Involving the Premises whether founded In tort, contract or equity, or: to declare rights hereunder, the Prevailing Party (as hereafter defined) In any such proceeding, action, or appeal thereon, shall be entitled to reasonable altorneys'.fees. Such fees may be awarded In the same suit or reccivered In a lleparate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shaU Include, without limitation, a Party or B1'9ker who substaritlaffy obtains or defeats the relief sought, as the case may be, whether by compromise, settlement. judgment, or the abandonment by the other Party or Broker of Its claim or defense. The attorneys' fees award shall not be ·computed In accordance w.fth any court fee schedule, but shafi be such as to fully reimburse all at~orneys' fees reasonably Incurred . In addition, Lessor shall be entitled to attorneys' fees, costs and expenses incurred if) the preparation and service of notices of Default and consultation~ In connection therewith. whether or not a legal action Is subsequently commenced in connec\ion with such Default or resultrng ~reach ($2~0 15 a reasonable minimum per occurrence for such services and consultation). . . 32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter lhe Premises al any lime, in the case of · an emergency, and otherwise at reasonable times for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs , Improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities ervices, pipes and condulls through the Premises and/or other premises as long as there Is no material adverse effect to Lessee's use of the All such activities shall be without abatement of rent or liability to Lessee. Lessor may at any time place on the Premises any ordinary "For Sale" ·--41: Initials Initials @ 1999 -American Industrial Real Estate Association Page 10 of 12 REVISED FORM OFG-1·9/99E 24 • )> . . \ . slg_tl~· and L~·s~or may during !he last 6 month~ . term hereof place on the Premises any ordlna~.easeft signs. In addition, Lessor shall have the rlght'lo retain keys to the Premises and to unlo~uoors In or upon ·the Premises other than to files. L. and safes, and in the case of e!'Tiergency to enter the Premises by any reasonably appropriate means, and any such entry shall not be deemed a forcl!;>le or unlawful entry or detainer of the Premises or an evicUpn . Less~e waives any charges ~or damages or Injuries or Interference wl!h lessee's property or business In donriecUon ·therewilh. · · · 33. Auctions. Lessee shall .not conduct, nor permit to be-ronducted, any auction. upon ihe Premises wl!holjt Lessor's prior written cons.ent. Lessor shall not be obligated to exercise any standard of reasonableness In determining whether to pem•it an auction. . · 34. Signs. Lessee shall not place any sign upon !he Project wllllout Lessor's prior written consent. 35. Termination; Merger. Unless specifically stated otherwise in W(iting by Lessor., the ·voluntary or other surrender of th is Lease by Lessee, the mutual termination or cancellation hereof, or a termination he!eof by Lessor for ~reach by Lessee, shall aulomallcally te rminate any sublease or lesser estate in the Premises; provldad, however, that lessor may elect to continue any one or all exl~ting subtenancies". Lessor's failu (e within 1.0 cays foll oWing any such event to elect to the contrary by written notice to the holder of any such lesser lntl!reat, ~hall consUtute Lessor's election to have such ev!!nt c:;onstitule the termination of such Interest. . 36 . Consents. Except as otherwtse .provfded herein, wherever In this Lease the cons~nt of a Party is required to an acl by or for the other Party, such consent shall not ~e unreasonably withheld or delayed. lessor's actual reasonable costs and expenses (Including but not limited to architects',. attorneys', engineers' and other consultants' fees) Incurred In !he consideration of, or response to.-a r13qu~t by Lessee for any Lessor consent, lnc!uding but not limited to consents .to an assignment, a subletting or the presence or use of a Hazardous Substance, shalf . be paid by Lessee upon receipt or an Invoice and supporting documentation therefor.· Lesso(s consent to ~ny act, assignmel"!t or subletting: shall ,not constitute an acknowledgment that no Default o r Breach by Lessee o.f .thls Lease exists, nor shall such consent be qeemed a waiver of any !hen ~xislln9 Default or Breach, except a.s may be o~erwise specificall~· slated In wnbng by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor's consent shal! not preclude the Imposition by Les~r at the time of consent of such further or other conditions as are then re~sof'!&ble with reference to the ·p~rUcular matter fo r wh ich consent Is being given. In the event that either Party disagrees wl!h any determination made by the other her!3under and reasonably requests the reasons for such determination, the determining party shall fumls~ Its reasons In writing and in reasonable detail Within 10 busine!1S days following such requesl 37. Guarantor. · · · · 37.1 Execution .. The .Guarantors, If any, shall ei,lch execute .a guaranty In the form most recentiy publlsl1ed . by the American .lndu.strial Real . Estate Association . · · 37 .2 ·. · · Default. It shall constitute a Default of the Lessee if any G!Jarantor fails or refuses , upon request to provide: (a) evidence of the execution of !he guaranty, Including the authority of the party· signing on Guarantor's behalf to obligate Guarantor, and In the case of a corpo rate Guarantor, a certlfled copy of a resolution of Its board of directors authorizing !he m~k i ng of such ~uaranty, (b) current financial statements, (~) a.n ~Stoppel Certifiqate, or (d) written confirmation Ulat the guaranty Is still In effect.. · . · . · . · ·. · · 38. Quiet Possession. Subject to payment by lessee of !he Reht and performance of all of the covenants, conditions and provisions o ~ Lessee's part t9 be observed and performed under !his lease, Lessee shall have qu iet possession and qulefenjoyment of the Premises during the term hereof. · 39. Options. ·If Lessee is granted an Option , as defined belOw, !hen lhe following provisions shall apply. · 39.1 Definition. "Option"· shall mean: (a) the right to extend !he term of or renew this lease or to extend or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal.or first offer to lease either the Prem ises or other property of Lessor; (c) the right to purchase or the right of first refusal to purchase !he Premises or other property of Lessor. · . · · · · 39 .2 Options Personal To Original Lessee.· Any Option granied to Lessee in. this Lease Is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said origins! Lessee and ·only while the original Lessee Is In full possession oft~e .Pre~l ses ahd, If requested by Lessor, with Lessee certifying that Lessee has no Intention of !hereafter assigning or s.ubletung . . · , · 39.3 . · Multiple Options.· In the event that Lessee. has any multiple Options to extend o~ renew this Lease, a .later Option cannot. be exercised unless the prior Options have been val idly exercised. · · · ' · · · · 39.4 Effect of Default on Options. (a) Le~see shall have no .rlght to exercise an Option : (I} during the period commencing with the giving of any ootice of Default and ·continuing unUI said Default Is cured, (II) during !he period of time any. Rent is unpaid (without reG·ard to whether notice thereof Is given Lessee), (Ill) duri ng the time Lessee Is in Breach of !his Lease, or (lv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the. exercise of the Option. ' . · · · (b) The period of time within Which an Option may be exercised sh.al f not=.be ~xtended or enla_rged by reason of Lessee's lnabiliiy to exercise an Option because of !he provisions of Paragraph 39.4(a). · . .. · . · ' · (c) An Option shan terminate and be of no further fo re!! or effect, nolwllbstar:c;llng Lessee's due and timely exercise of the Option, If; after such exercise and prior to !he comm~ncement of !he .extended term or completion of the· purchase, (I) Lessee fails to pay Rent for a period of .30 days after such Rent becomes due (without any necesslly.of Lessor to give notice thereof), or (li) If Lessee commits a Breach of this Lease. · · · 40. Security Measures. Lessee hereby acknowledges that the Rent payable to LesSor hereunder ·does not include the cos!· of gua~d service or other security measures ; and that Lessor shall have no obUgation whatsoever lo provide sarn.e. Lessee assumes all responsibility for the protection of the Premises, Lessee, Its agents and Invitees and !heir property. from the acls of third partle~s . ·,In the event, however, that Lessor shoulc;l elect to provide security . services, then the cost thereof shall ~ an· Ope_rallng Expense. · · 41 . Reservations. . . . . '(a) Lessor reserves the right: (i) to grant. without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, (II) to cause the recordation of parcel maRS an~ restrictions, (iii) .to create _and/or Install new utility raceways, ~o long as such easements , rights, dedications, maps, restrictions, and utility raceways do not unreasonably Interfere with the use of !he Premises by L~see: :·Lessor may also: ch~nge · the name, ci.ddress or IIUe of the Building or Project .upon at least 90. days prio (wrillen notice; provide and Install, at lessee's expense, Building standard ·graphics on the door of the Premises and such portions of IJ'le Common Ar~as as Les$or shalf reasonably deem appropriate; grant to any lessee the exclusive right to conduct any. business as long as such exclusive right does not conHipt with any rights expressly given herein; and to place such signs, notices or displays as lessor r~sonably deems necesliary or advlsa~le upon the. rc.of, exterior of the Building or the Project or on pole signs in the Com!Jlon Areas. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. The obstruction of Lessee's view. 11ir, or light by any structure erected In the vicinity of the Building, whether by LesSor or ·third parJes, shall In no way affect this 'Lease or impose any llatilllty upon Lessor. (b) Lessor also -reserves the right to move Lessee to other space of comparable size in the Building or Project lessor must provide at least 45 days prior written notice of such move, and the new space must contain Improvements of comparable quality to those contained within the Premises. Lessor shall pay the reasonable out of pocket costs that Lessee lneurs wftll· regard to such relocation , including the expenses of· moving and necessary stationary revis ion costs. In no event, however, shall Lessor be required to pay an amount In excess of two months Base .Rent. Lessee may not be relocated more !han once during !he term of this Lease. · . . (c) Lessee shall not: (i) use a representation (phQtographlc ot otherwise) of the ~uild !ng or Projept or their l')ame(s) In connection wi th Lessee's business ; or (li) suffer or permit anyone, except In emergeilcy; to go upon the roof of the Building. · 42. Performance Under Protesl If at any time a dispute sha,l l arise ·as to any amount ~r sum of money to be paid .by one Party Jo the other under the · provisions hereof, the Party against whom !he obligation to pay !he money Is asserted !'hall have the right to make payment •under protest• and such payment shall not be regarded as a voluntary payment and there shall S\Jf'Vive the right on the part of said Party to Institute sult'tor recovery of s~ch sum . if It shall be adjudged that !here was no legal'obllgatlon on !he part of said Party to pay· such sum or any part !hereof, said Party shall be ent!Ued to recover suth svm or so much thereof as II was not legally requlr~d to pay. · · · 43. Authority. · (a) If either Party hereto Is a corporation , trust, ·limited liability company, partnership, or similar entity, each Individual executing this Lease on behalf of such entity represents and warrants that he or she Is duly authorized to execute and. deliver this leas.e on its behalf. Each party shall, within 30 days after-request, deliver to the other party satisfactory evidence of such· authority.· · · · · : · (b) If this lease Is executed by more than one person or entity as "Lessef, each such person or enuty shall be jointly and severally liable hereunder. It Is agreed that any one of the named Lessees shall be empowered to execu.e any amendment to this Lease, or other documen t ancillary thereto and bind all of the named Lessees, and Lessor may tely on .!he same as If all of the· named Lessees had executed such documenl 44. Conmct. Any conftlct between the printed provlsloris of this Lease aod the typewritten or handwritten provisions shall .be controlled by the typewritten or handwritten provisions. · 45 .' Offer. Preparation of !his Lease by either party or their agent and submission of :sam.e to ·!he other P.arty shall not be deemed an off~r to tease to the o!h~r Party. This Lease Is not Intended to be binding until executed and delivered by all partieS hereto. · · 46. Amendments. This Lease may be modified only In writing , slgn~d by the Parties ~n Interest at the lime of the modification . As long as they do not materially change Lessee's obligations hereunder, l~see agrees to make such reasonab le nonmooetarv modiHcatlon~ to this Lease as may be reasonably required by a Lender In connection with the obtaining of norinal financing or reflnanchig of the Premises . · 47. Multiple Parties. If more than one person or entity is nsmed htmlin as either La~sor.o r Lessee, such multiple Parties shall have joint and several respohsibility to comply with the terms of th is Lease. · 48. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT. 49. Mediation and Arbitration of Disputes. An Addendum requiring the Mediation and/or the A rbitration of all disputes between the Parties and/or Brokers rl lng out of this Lease 0 Is 0 Is not attached to this Lease. merlcans with Disabilities Act. In ~'le event that as a result of Lessee's use. -o r if'l l ended use, of lhe Prem ises lrie Americans wiln Disabilities . ~ lmlials · Initials @ 1999-American Industrial Real Estate Association Page 11 of 12 REVISED FORM OFG-1-9199E 25 ·f I •' ,. •· ·. ~ Ac!·or any s!tnl.lar law requires modifications or l ·.mstru~Uon or Installation of Improvements I~ or toL ;remises, Building , Project and/or Common Areas, the Parties agree that such modlncatlons, cons~n or Improvements shall be made at: 0 Lessor'~ense 0 Lessee's expense. LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. . ATIENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY .THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES . THE PARTIES ARE URGED TO: . 1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. 2 . RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INGLUDE BUT NOT BE LIMITED TO : THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING AND SIZE OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND'rHE SUITABILITY OF THE PREM ISES FOR LESSEE'S INTENDED USE. WARNING: .IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE iN WHICH THE PREMISES ARE LOCATED. The parties hereto have executed this Lease at the plac~ and on the dales specified above their respecllv,e signatures. Executed at:----'------------------- on: _________________ ~----- By LESSOR: C.P.r. Properties Magnolia Ave. CA 92879 Telephone I Facsimile 909-737-6493 i 909-£317-0£3£37 FederaiiD No . ..,......-----------~------------- LESSOR'S BROKER: CB .Richard Ellis N~:Vindar ~atoosingh/Philip Woodford Address: 4141 Inlancf Empire Blvd.,. Suite 100 Ontario, C~ 9li64 : Telephone I Facsimile · 909-41£3-2134/909-41£3-2100 Executed at .. __ _:_-'---.......... ----------------'~---- on : ByLESS!;E: . . Orange County Transportati.ori Authori t y By: __ ~~~~-~----~~~---~--------­ Name .~rinted : --====-==-.:!~F:.L....; ~--:------­ Titl.e: Chief .Executive By: ______ ~------------------------------Na~e Printed :---------=-----------=------ Title:-~ Address : 550 S . Main St. P.O : Box 14184 Orange, CA 9286~-1 .584 Telephone I Facsimile .714-560-5693/ 714-560-5791 FederaiiD No. ___ __:._ __________________ _ LESSEE'S BROKER: Atln:_. _______________ __:__~------------- Address:· _ _:_ ____ .,...--_________________ ..,:.__ :t; Telephop e I Facsimile These forms are often modified to meet changing requirements of law and needs of t!le Industry. Always write or call to make sure you are utilizing the most current form: American Industrial Real E;state Asa~latlon, 700 South Flower:Street1 Suite 600, Los Ang41les, CA ~0017. (213) 687-8777. . . . @Copyright 1999-By American Industrial Real Estate Ass~clatlon. ' All rights reserved. No part of these work~ may be reproducE:d in a~y form wUhout permission In writing. APPROVED AS TO FORM: APPROVED Initials- ~ @'1999 ·American Industrial Real Eslate Association Page 12 of 12 RE'.I ISED and A~stratiot FORM OFG-1-9/99E 26 L ADDENDUM THIS ADDENDUM dated Aprill4, 2003 is hereby made part of that Multi-Tenant Office · Lease -Gross ("Lease") between Orange County Transportation Authority ("Lessee") and ~-P. I. Properties ("Lessor") for the property commonly referred to as 2275 Sampson Avenue, Corona, California. · · Where .there is a conflict between the tenns of this Addendum and the Lease, the tenns. of this Addendum shall prevail. ' 51. Signage 52. Access Cards 53. Tenant : Improvements· · Tenant. shall be granted signage .. on the exterior fa-;ade. of the building facing Sampson A venue. All signage is subject to Landlord's sign criteria attached and approval from the City of .Corona. Tenant may use its logo. LandlordJo provide ten (10) building access carqs, tenant will pay $10.00 per ad~itional/replacement cards. Landlord to construct and pay for Tenant's improvements up to . an ·anowance oftwenty-five dollars ($25.00) per usable s<luare · ~~ . If there are any conflicting terms with the lease agreement and tllis Addendum then the Addendum shall supersede. LESSOR LESSEE Ora11ge County Transportation Authority Arthur T. Le~y . Chief Executive Officer Angelique Padilla-Hartog and .. Adm:l.nistration 5:\ YJBATOOS\OOCUMENT\ADDENOUM\Ad.!<ndom OCT MI~03.doc 27 fTI Ul Ul ~ z fTI (J) '1 r 0 0 z:::O ~""'0 z ~ I I I I I I I I I I I I I I I I ~ I I I I -1 I I I I I I I I I I I ~ I I - I I I I I I I I I I I I I I -I I I I I I I I I I I I I I I I ~ I I I I I I I I I I I I I I I I -~ I I I I I I I I I I I I I I I I EXHIBIT II A" ~ I I -•. t~=·=========~========~:;:J. .... ~--~~~~~~~ 28 ',I MC KINLEY 'EXECUTIV·E PLAZA . TENANT IMPROVEMENT MATERIALS SPECIFICATiONS QECEM~ER ~ •. 2002 1. .DEMISING PARTITIONS A. .3 5/.8", 25 gauge metal studs, 24'' on center from floor to underside of structure above. Groun9 floor height: 12~ 8", Second floor height: 10' 0" varies. B. 5/8" Type "X" Gypsum board, f layer-tenant side only. C. R-11 sound attenuation batts. ·· D. Partition taped smooth to receive paint (tape to ceiling height only w/Level4 finish). · 2. INTERIOR PARTITIONS A. 2 l/2.". or 3 5/8", 25 gauge metaL studs,. 24" on center from floor to ceiling height (Ground floor height: 10' 0", Second floor height: ·a' 6"). · B. 5/8" Type "X" Gypsum board, 1 lay~r each side. · , C. Partition taped smooth to receive paint (Level 4 finish). D. Fc,stmask at ceiling grid. · 3. PAINT A. Two (2) coats or as necessary for uniform finish. B. Frazee velvet flat acrylic-vinyl. C. Color-per tenant 4. -=NTRY DOOR ASSEMBLY A. 3' 0" X 8' 01' X 1 3/4" solid core, plain sllce9 "Cherry" veneer door. with matching edge bands. . . B. Finish: Prefinished to match architect's sample. C. Frame: Timely,· black prefinished metal{20 minute) •. D. Hardware: Schlage "AL" Series. Finish: #626 Satin Chrome. E. Hinges: Hager,· black hinge to match door frame. F. Floor or wall mounted door stops a~ req4ired by· plan, # 626 Satin Chrome finish. G. Closer: Norton H. Astragal .for pair of entry doors: Pemko. # .355-AS Extr. Anodized Aluminum w/ Silicon Seal. I. Coordinator: D.C.L ·#672 Black. J. Key to building fllaster. 29 PAGE 2 5. INTERlOR DOO~ ASSEMBLY A. 3' 0" X 7'.0" X 1 3,4" solid co re, pl ai~ sliced "Cherry" veneer door with ·matching edge bands. · · B. Finish: Prefinished tq niatch architect's sample. C. Frame: ilmely,.black prefini$hed metal. · D. ·Hardware: Schlage "AL" Series. Finish : 626 Satin Chrome. E. Hinges: Hag~r black hinge to match door frame. · F. Floor or wall mounted door stops as .required by plan, # 626 $atin Chrome finish. G. Astragal for pair of interior doors: Pemko # 355 AV Extr. Anodized ·. Aluminum with vinyl insert. 6. SUSPENDED CEILING .. . A. Grid: White enameled steel exposed T-bar, 2' 0" x 4' 0" modul~ .. Chicago Metallic. Color: White #01. B. Tile: Armstrong ·Second ·Loo.k II~ 3/4"thick or equal. Color: White# 2767. 7. UGHT FIXTURES 8. A... 2' 0" X 4' 0" iight fixture, Lithonia or-equal with white baked enamel steel . housing; 3 lamp· troffer with electronic ballast and .double -switching per · Title 24. · B. cool white lamps. C. ·. Earthquake dips as necessary .. D. Acrylic prismatic Jense . · UGHT SWITCH ASSEMBLY A. Leviton sWitch or equal. B. 120 volt, 20 Amp.· . C. Switches paired in double gang box to meet Title 24 requirements. D. Switch height at 42".A.F.F. to center line of switch. E. . White color plastic cover plate .. 9. EXITSIGN A. . Lithonia Titan S~rles #XSWlR EL, or equal. 30 PAGE3 10. ELECTRICAL WALL OUTLET A. Leviton, or eqyal, duplex receptade. B. . 15 Amp rating, Circuited in groupings per code. . C. Mounted · vertically. · D. White color. plastic cover plate. 11. TEt~PHONE WALL OUTLET A. · Single gang outlet box with .. mudring and pull string in wall, mounted Vertically.· B. Cover plate by phori~ company (white). C. Outlet height at 15" A.F.F. to center line of outlet. D. All cabling shall be the type for a ducted r~turn air system nenant proviqed). 12. FIRE PROTECTION ·· · A. Semi-recesse<:l chrome plated sprinkler heads. B. Chrome plated escutcheons located in ·center of ceiling tile. 13 ... HVAC A. · Ductwork shall be .foil jacket flex for supply and return air design, Adequate for a typical commercial tenant. AnY extraordinary requirements necessitated because of tenanes··use of the demised · premises will . be · at the. expense of the tenant. · B. Supply register: Casco perforated face diffuser with vqlume control damper, 2' 0" x. 2' 0", white enameled steel to match ceiling grid. . C. Return air register: Hart & Cooley in-grille filter model, 2' 0" x i'· 0", ~hite enameled Steel to match ceiling grid. D. Digital Programmable thermostat, 7 day/24 hour. 14. WINDOW COVERINGS {BY LANDLORD) . . A. "Shearweave ·shades" by Interior Sun ·Control, Style #4000 . . B. · Color: ·Tobacco 15. F~OORCOVE;RINGS A. Cut-Pile carpet: Designweave "Tempest Classic" (32 oz.), gluedown. B. Loop Carpet: Designweave "Montara" (26 oz.) or "Cantomar"' (26 oz.), gluedown. C. V.C.T.: Armstrong "Standard" Excelon 12" x i2" x 1/8';. Color: per. tenant. D. Base: Rappe or Burke 4" top set or cove base. Color: per tenant. :-.:.-.7"": •. •. :· ;.. __ -OO"'l:... ,...r.":.l~--i-..-.-l ::_ :.-t... ~ .... _..;..:,. ":". ·.• .. --,_. :j -·=·-... --""": ·-...:-..... :-;... .... :... --_.,.._, .... ··-. .! :_. I·-t -· • ut .__, •-1 I'-~-1 -'-"---oil••-· ·--_,_,, ·-• .,., ·-•1 --·•-•• '::f ...,..,._,, __ , -------r-.... • ._ ~ ---~ owner prior to installation. 31 • 'I -----~---~--------------· -------·----- SIGN CRITERIA FOR McKINLEY EXECUTIVE PLAZA Located at 2275 Sampson Ave. Corona, California Developet CPI Properties 13551 Magnolia Ave. Corona, California 92879 Architect Prepared by Heemstra Signs 721 Nevada St. #407 Redlands, CA 923 73 (909) 792-2407 April2003 32 ; ' ZONING Ml SIGN CRITERIA McKINLEY EXECIJTIVE PLAZA THE PURPOSE OF TinS CRITERIA IS TO ESTABUSH THE SIGN STANDARD NECESSARY TO ENSURE COORDINATED PROPORTIONAL EXPOSURE FOR ALL TENANTS. IN THE BEST INTEREST OF ALL TENANTS, McKINLEY EXECUTIVE PLAZA HAS DEVELOPED THE FOllOWING SIGN CRITERIA WHICH ALLOWS EACH TENANT ROOM FOR CREATlVITY WITHIN THE LIMITS OF THEIR LEASEHOW. TENANTS SHALL BE RESPONSffiLE FOR THE DESIGN, PERMITTlNG, FABRICATION AND INSTALLATION OF THEIR INDIVIDUAL BUSINESS SIGNS WITlllN THE LIMITS OF THIS SIGN PROGRAM. PERF:ORMANCE SHALL BE STRICIL Y ENFORCED, ANY NON-CONFORMING SIGNS SHALL BE REMOVED BY LANDLORD'S CONTRACTOR AT THE TENANT'S EXPENSE. A GENERAL RE(}mBFMENTS 1. All signs and their installation must comply with all local building and electrical codes as well as this criteria. 2 . No animated, flashing or audible signs wiD be permitted. 3 . No exposed lamps, conduits, crossovers or control devices are permitted . 4. All tenants may maintain the following signs: a. Tenant main identification sign in the space provided. b. Tenant wall plaque attached to waJJ adjacent to suite door. 5. Upon removal of any sign by tenant, any damage to the building surface will be repaired by Tenant, or by Landlord at Tenant's expense. 6. Acceptable signage on doors and windows is as follows: a. Door lettering will be permitted for tenants with glass door entrances, consisting of business name, hours & emergency pbone number. b. Door and window lettering shall consist oflvory High Perfonnance Vinyl, and not exceed 2 square feet in area. c . No signs or posters may be placed outside the leased line of the premises. 7. Sign copy will be restricted to the name of the business or principal product only. 8. All signs shall be kept in a "like new" condition. Upon notice of the Landlord, a Tenant wiU be required to refurbish any sign which does not qualifY as being of an accepted standard. 9. Signs will be free of all labels and manufacturers' advertising with the exception of code requirements. 10. All signs and installation of signs will conform to the appropriate building and electrical codes. The Tenant's sian contractor shall obtain all pennits required, prior to fabrication. ·, 33 11. Electrical service to Tenant signs shall be on Landlord's meters and billed to Tenant as a common area expense. 12. Exceptions to this criteria will not be pennitted. B APPROVALS· 1. The design and construction ofTenant's exterior sign must receive written approval by Landlord and a pennit by the City of Corona before fabrication . Landlord's approval shall be based on: a. Conformity to the sign criteria established for the Plaza, including fabrication and method of installation. b. Harmony of the proposed sign with the design standards of the Professional Plaza. 2. Landlord has the specific right to refuse approval of any sign which does not confonn to the specific criteria set forth herein or any design not in harmony with design standards of the McKinley Professional Plaza . To secure Landlord's approval, three (3) copies of the design drawings of the sign shall be submitted to the landlord or the landlords agent. The sign drawings must indicate an elevation drawing with the following information: a. The type, style, color & size of an lettering. b. The location of the sign in relation to suite frontage . c. Colors, finishes and types of materials. d . Method of attachment to wall e. Method of illumination and electrical connection 3. For approval, send three (3) copies of the complete sign to: CPI Properties 13551 Magnolia Ave . Corona, California 92879 Phone 909.737 .6493 Fax 909.737.5552 4. All signs shall have the proper pennitting from the City of Corona as required by the Corona Municipal Code prior to installation. C SPEC/FICA TIONS FOR TENANT MAIN /DENT/FICA TION SIGN· 1. Tenants will be required to use individual dimensional letters and logos (illuminated or non-iJJuminated), with acrylic faces . Non-illuminated letters shaJI be constructed of3" High Density Urethane foam with 3/16" acrylic faces, not to exceed 24" in height . Illuminated letters shall be 5" deep channelized letters with 3/16" acrylic faces, not to exceed 1 8" in height. (See Detail A for letter specifications). Signs will be installed in the area provided for such signs . Signs shall be a part of the building design and shall be compatible to the exterior facade design of the building. 2. The approved letter styles and colors are as follows : a. Approved letter style is Optima Bold ( sample : TENANT SICNAGE ) b. Approved acrylic face colors are: .Day I Night Black c. Approved Trim Cap color is : Satin black 34 d . Approved letter edge color is: Satin black. 3., Square footage for the Tenant main identification signage shall be computed as I square foot p•:r I · lineal foot of leased frontage. Total square footage for any tenant main identification sign shaD not exceed 35 square feet. (subject to the approval of the City of Corona). NOTE: The square footage ofTenant signs shall be measured by enclosing the sign elements with up to eight straight intersecting lines. 4 . Tenants wiD be aUowed l (one) main identification sign. 5 . Wording of wall signs shall consist of the buisness name only . · 6 . Signs shaD be located in areas designated in Detail B. D PROHlkll'ED SfGNS· I. Signs constituting a traffic hazard 2. Immoral or unlawful advertising 3. Animated, audible, or moving signs 4 . Off premise signs 5: Painted wall signs 6. Balloons, pennants, and flags 7. Signs affixed to vehicles for the purpose of stationary advertisement 8 . Banners and temporary advertising media E ILLuMINATED S/GNSPECIF/CAVONS: l. Illuminated channel letters shall be constructed of .040 Aluminum with baked enamel finish. Letter returns and backs shall be sealed in such a way as to prevent water penetration. Drain holes shall be provided at the lowest point of each letter or logo. The letter interior is to be a white baked enamel finish . Letter faces shall be 3/16" acrylic ( PLEXlGLAS or equal) with 3/4" black trim cap edging. Letter faces shall be attached to letter channel with a minimum of 4 screws ( painted to match trim cap ). All neon tubes, supports, connections, transformers, and electrical components shall be UIL approved and labeled . 2 . Letters shall be installed in such a way as to show no clips, straps, braces, or any visible means of attachment. All penetrations of the building shall be sealed with GE Silicone caulk to a water tight condition. 35 E NON-ILLUMINATED S/GNSPECJFICA TJQNS · 1. Non-illuminated letters shall be constructed of3" High Density Urethane foam . All surfaces to be painted the specified color with acrylic enamel paint. Foam letters shall be faced with 3/16" acrylic ( PLEXIGLAS or equal ). Letter faces shall be attached to letter body with GE silicone adhesive. Letters shall be attached to the wall with GE silicone adhesive. G fREESTANDING MQNUMENTSIQN One free standing monument sign identifying the McKINLEY EXECUTIVE PLAZA, not larger than 32 sq. ft. of sign area, and with an overall height of 4 ft. ( see Detail C ). will be allowed on the Sampson St. frontage. The Monument sign shall be placed in a landscaped area surrounded by flowers and or ground cover plantings to be approved by the Cominunity . Development Director. No other free standing tenant signs will be permitted. 36 BLANK BUILDING SIGNS DETAILB ( ILLUMINATED SIGNS I I ·,:JS, ... lli~NT~'C:N~C~ I A I I I y~tJANTis.cfJAGE ' r NON-ILLUMINATED SIGNS -IT_,..··'·'·'·~'·~~r,r,r._r,r,r,~.,r,r,~,r,r,r,r,r,r,r,r,r,r,r,r,r,r,r,r,r,~.,,r,r,r,r,r,r,r,r,r,~,r,r,r,r,r,r,r,r,r,r,_r,r,r,r,r~r,r,~, .. , ± 1 1 1 TE~_lSJaNAqE_, 1 ( SOUTH ELEVATION 2275 SAMPSON AVE ~ CORONA. CALIFORNIA . ; ~~:J .~·~ -.. ~ ... : ,·. ~ :~ ·~(: .: i :r ~j :~::·· ·~::,: ·? w it~ .. (. ·~· ?:l; ~~~~~ Ci~ ~j~~ I'*'~ ,,twm~,~~~ ,., 37 "' 2 ;= "' E ......, 01 3: 0 co ~ ~ ~ f'll c (}l ~ ~ r- ~ 0 0 ~ en ....... ~ {9 2 OJ z en (j) 0 (j) § 6i en ~ (j) £ z en (S :;u z j; 38 ,.., ~ ~ ,.., ;= ~ ...., E ~ tJ OJ 01 ~ ~ ~ c ~ 0 en .- ~ m (j) ,_. 0 0 &; tn z en z ~ ~ en G) 0 en § (j) ~ z ~ en (3 :::0 z :;:; 39 .; PHGIE NO. 8Y: !·lay. 12 2003 00:47PM P2 ~ 0 z c ~ m z -t (J) (j) z 40 INTERIOR SIGNS DETAIL A ~L · d~¥~¥5 rt~wm!fi¥!19 28" ~ ( DIRECTORY £.5,t.fS.4£\!li£!E!~#.iCJ; •M!*~ :§!?J~~ TENANT PLAQUE DIREC'IORY AVONITE Mldnig,t Sky ( G3·1 050 ) Scl'ldcaved and paint ftlled header Vinyl gcphlcs on tenCI'lt inserts Tena1t Inserts chalgecble TENANT PLAQUE AVONITE Midnight Sky ( G3·1 050 ) ~Compliant suite header Vinyl gcphlcs on tenCI'lt insert Tena1t Insert chcngecble T ~ j_ u h ~ .. ~7:::..:. (-,~::: &: .. ::: ... '-;l ~-.: :-~ ~-~ ~~1 ~~ :-;. ... h~ \~ ;·i~- ~·~~~ fi :-i :( ~?-; _ ...... ,, " ,-,; £~ \ ·r, -~ -% -, J· :-; i. >= 'Cil 4: G~ ~~ ;,{;; :.:-.~ ~t~ ~j! f.} 41 BLANK ·-(·. AMENDMENT II. TO LEASE Extension of Lease Agreement Me Kinley Executive Plaza This Amendment II to Lease ("Amendment"), dated for reference purposes as February 11, 2013, is entered into by and between C.P .I. PROPERTIES (herein after referred to as "Landlord"), whose address is 13551 Magnolia Avenue, Corona, CA 92879 and ORANGE COUNTY TRANSPORT AION AUTHORITY (OCT A) (herein after referred to as "Tenant"), whose address is 550 S. Main Street, Orange, CA 92863-1584. Recitals A. Landlord, by lease dated April 14, 2003 ("Lease"), leased to Tenant, certain space (the "Leased Premises"), consisting of approximately 4,285 Rentable Square Feet in the Me Kinley Executive Plaza located at 2275 Sampson Avenue, Ste. 100, Corona, California 92879. B. Tenant desires to extend its lease term for an additional Five (5) year term. NOW THEREFORE, Landlord and Tenant mutually agree to modify and amend said Lease as follows: Agreement 1. TERM: Five (5) years, commencing October 1, 2013 ("Commencement Date") and ending on September 30, 2018. ("Expiration Date"). 2. BASE RENT ADJUSTMENTS: Year: Year1 Year2 Year3 Year4 Year5 3. BASE YEAR: 2013 Rent Rate: $1.50 per Rentable Square Foot, Modified Gross $1.55 per Rentable Square Foot, Modified Gross $1.59 per Rentable Square Foot, Modified Gross $1.64 per Rentable Square Foot, Modified Gross $1.69 per Rentable Square Foot, Modified Gross 4. RENT ABATEMENT As incentive for Tenant to extend it Lease Term, Landlord shall grant Tenant three (3) months Free Rent. To be applied in months 1, 13 and 25 of the new lease term . 5. TENANT IMPROVEMENT WORK Landlord agrees to provide Tenant with $4.00 per RSF to repaint and carpet. Said Tenant Improvement Allowance/Concession shall be paid to Tenant by Landlord via a check within 30 days after Tenant's submission to Landlord of the paid receipts and lien releases for said work. Landlord shall, within thirty (30) days from the execution of this amendment, also correct deficiencies in the HVAC system by (a) providing one (1) "Friedrich" 36,000 BTU Hi-Wall ductless split air conditioning system, which will add capacity to the IT room and back-up the existing unit, (b) conduct duct revision as follows: i. Disconnect lobby area from the duct servicing the IT room, to allow the Lobby area to have independent supply and return duct(s) separate from the IT room supply and return duct(s). This is required to allovy~bby area to have better control of the room temperature. :D.:f ·-r- 42 ii. Add separate duct for the IT room with new supply grill and split return to each '. end of· server room, (c) and replace stained ceiling tiles in open area. Landlord certifies that the deficiencies that created the leak that stained the ceiling tiles have been corrected. Landlord also certifies that all security camera~ are functional as of the date of this agreement and will be maintained as such throughout the lease term. Landlord, within 30 days from execution of this lease amendment, also agrees to replace the current security feed DVR with a new 16 channel, 1 terabyte wall mount DVR with network access. The DVR will provide 3 weeks of recording time before recording over itself. A new DSL will be installed. Landlord grants Tenant permission to contact Landlord's security system contractor to gain network access to allow Tenant to monitor the security system cameras remotely. 6. OPTIONS TO EXTEND So long as Tenant is not in default under the terms of the lease and with not more than nine (9) months and no less than six (6) months prior written notice, Tenant shall have the option to renew the lease for one (1) additional period of five (5) years. The Base Monthly Rental Rate during the option term shall be 95o/o of the then fair market value for similar type properties in the Corona market area. 7. EXPANSION RIGHT OF FIRST REFUSAL Subject to such rights as may exist on the date of this Lease in favor of other tenants of the Building, if any, in the event Landlord shall desire to lease any space on the First Floor in the Building to any party other than a then-current tenant thereof, Landlord shall give notice ("Landlord's Leasing Notice") to Tenant setting forth the terms and conditions on which Landlord proposes to lease such space to such party. Tenant shall have the right, exercisable by notice to Landlord given on or before ten (1 0) days after the giving of Landlord's Leasing Notice, to lease such space on the terms and conditions set forth in Landlord's Leasing Notice. The basic rent and other economic terms for the expansion space shall be equal the lesser of Tenant's then rental rate or the average rent as would be payable by the bona fide third party tenant for such space. The other economic terms shall be as set forth in the third party transaction, except that any tenant improvement allowance shall be proportionately reduced (if applicable) based upon the lease term offered to Tenant, which lease term shall be coterminous with the master lease. All other items shall be as set forth in Tenant's lease document. For purposes of determining Fair Market Rate of the ROFR space, a bona fide third party tenant shall be defined as a tenant that Landlord has received a written counterproposal from and has requested that Landlord prepare a lease, or similar document, outlining the pertinent terms of the proposed transaction covering the ROFR space. If Tenant shall not elect to lease such space within such ten (1 0) day period, Landlord shall be free to lease such space on such terms and conditions and the ROFR shall be reinstated. 8. ROOFTOP COMMUNICATIONS EQUIPMENT Tenant shall have the right, without rental or other charge, to use the roof, to the extent reasonably practicable, to install, operate and maintain telecommunications antennas, microwave dishes and other communications equipment. In no event shall Tenant's Communication Equipment unreasonably interfere with the Building systems. Moreover, such use shall be subject to Tenant first obtaining Landlord's prior written approval, Tenant executing Landlord's Rooftop Access Agreement, and Tenant obtaining all required governmental approvals and providing written evidence of said approvals and insurance to Landlord. Also, in the event Tenant exercises its right to use the roof, Tenant shall be responsible for the cost to install, insure, maintain, and ultimately remove including the cost to repair damage to the roof, if any. Initials:::b:J --1-Amendment II, 2/11/13, Page 2 of 3 43 ,. ' 9 . LEASE TERMINATION OPTION Tenant shall have the option to terminate the lease at any time after the end of the 36th month of the lease term, with 6 months advance written notice to Landlord. In the event Tenant exercises the right to terminate , Tenant agrees to pay Landlord a Lease Termination Fee that is the equivalent of one (1) month of rent (at the rent rate in effect at that time) plus the unamortized leasing costs ("ULC"), which shall include Tenant Improvements, leasing commission and free rent. The following formula shall be used to calculate the Lease Termination Fee: = 1 Month Rent+( ULC of $998.30/month x number of months remaining on Lease) 10. HOLDOVER Notwithstanding anything stated to the contrary in the Lease, Tenant, with three (3) months prior written notice, shall have the right to hold over for a period up to three (3) months after the expiration of the initial term or any extension thereof at Rent in effect during the last month of the previous term. Thereafter, the holdover Rent will be 125%, of the Rent in effect during the last month of the previous term. Tenant shall not be responsible for consequential damages in the event of a holdover in the Premises . 11 . BROKERS AND/OR BROKER'S FEE: Landlord recognizes CBRE as Tenant's designated broker ("Broker11 ) and shall agree to pay Broker a full market real estate commission pursuant to the attached agreement, dated December 7 , 2012. Each signatory to this Amendment represents and warrants that he or she has full authority to sign this Amendment on behalf of the party for whom he or she signs that this Amendment binds such party. All other terms set forth in the Lease, except for those set forth herein, shall remain in full force and effect. In the event of any inconsistencies between this Amendment I and the Master Lease and/or any Addenda, the terms of this Amendment shall prevail. This Amendment shall be binding upon and inure to the benefit of the parties, their successors , assigns and personal representatives . Agreed and Accepted this3 L)}l day of /:J.pe,,,_ 2013 by: Y TRANSPORTATION AUTORITY (OCTA) AP By: Kennard R. Smart, Title : General Counsel THIS AGREEMENT HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR HIS/HER APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE DRAFTER OF THIS AGREEMENT AS TO THE LEGAL SUFFICIENCY, EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR OF THE TRANSACTION INVOLVED HEREIN. Initials :~ Amendment II, 2/11/13 , Page 3 of 3 44 AGENDA ITEM 8C Agenda Item 8C RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Reinland Jones, Toll Technology Manager THROUGH: Anne Mayer, Executive Director SUBJECT: 91 Express Lanes Traffic Operations Center Video Systems Maintenance Agreement WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Award Agreement No. 17-31-020-00 to Parsons Transportation Group (Parsons) for maintenance and repair of the video systems for the 91 Express Lanes Traffic Operations Center (TOC) for a one-year term, and two one-year options plus two two-year options to extend the agreement, and authorize in an amount not to exceed $850,934; and 2) Authorize the Chair or Executive Director, subject to legal counsel review, to execute the agreement, including option years, on behalf of the Commission. BACKGROUND INFORMATION: As a part of the RCTC 91 Express Lanes project systems integration and implementation contract (SIIC) with Cofiroute USA, LLC (Cofiroute), the existing Orange County Transportation Authority (OCTA) 91 Express Lanes TOC was relocated to a larger space at the Anaheim Hills operations center. Additionally, the video monitoring system was upgraded to allow for the addition of the Commission’s on-road closed circuit television cameras. The upgraded video monitoring will allow Cofiroute, the operator of the TOC, to control and view the on-road closed circuit television cameras for both the RCTC 91 Express Lanes and the OCTA 91 Express Lanes from the same location and the same system. The video monitoring system has been installed, and the OCTA on-road cameras and video feed are currently managed from the new system. Maintenance and repair of the video monitoring system is covered under the warranty provision of the SIIC contract for 6 months of operation, which will expire on February 9, 2017. To ensure continued maintenance and repair services beyond the warranty period, Cofiroute recommended the Commission and OCTA enter into a maintenance contract with Parsons, the architect and installer of the video monitoring system. 45 Agenda Item 8C The RCTC – OCTA facilities agreement which was approved by the Commission in October 2015, established the two parties’ desire to share use of the TOC, including ongoing maintenance and repair costs. As the lead agency providing oversight for the installation of the video monitoring system, the Commission assumed the responsibility of entering into a maintenance contract for the new video monitoring system. OCTA and the Commission will share the cost of the TOC video monitoring system maintenance contract equally for at least the first year of maintenance. OCTA anticipates replacing its on-road cameras in the coming years and is indicating the outcome of that replacement may impact its ability to share the new TOC video monitoring system with the Commission, including ongoing maintenance costs. During the development of the project, Delcan, a subcontractor to Cofiroute under the SIIC, was the vendor designated to design and develop the TOC video monitoring system due to its history as the architect and maintenance contractor of OCTA’s original TOC. In 2014, Delcan was acquired by Parsons. Subsequently, staff required a conflict of interest firewall between the Delcan team and Parsons’ project and construction management team for the 91 Project to prevent discussions regarding the 91 Project without Commission staff present. The TOC video monitoring system design and software are proprietary to Parsons, the provider of the system. Parsons also architected the complex communication network facilitates the transmission of the video feed between the on-road cameras, the 91 Express Lanes TOC, and the Caltrans TOC. This complex communication network and the Parsons proprietary software that operates the system include a high-level of security controls to prevent access by the public or hackers. Parsons’ intimate knowledge of the TOC video monitoring system and access to the proprietary software makes it a logical choice as the ongoing maintenance provider. Additionally, Parsons has been providing satisfactory maintenance services for OCTA’s pre- existing video monitoring system. The RCTC procurement manual allows the Commission to award a contract on a non-competitive basis when the Commission determines that a competitive procurement is not required by law or the applicable funding source, and that a non-competitive procurement is in the public interest and in the best interest of the Commission. In this case, no federal or state funds will be used to pay for Parsons’ services, and there is no applicable legal requirement that the services be competitively procured. Staff believes it is in the best interest of the Commission to enter into an agreement with Parsons to ensure there will be continuity in TOC video monitoring system maintenance services. Additionally, the required expertise will be available to ensure this critical system remains operational for revenue purposes over the estimated useful life of seven years. The proposed maintenance contract provides for telephone help desk services and on-site TOC hardware and software maintenance at a base price of $68,460 per year. Additionally, staff estimated a cost of $50,000 per year for on-call support services and repairs outside of the routine maintenance, which will be used on an as-needed basis. Pricing for work completed on an on-call basis will be based upon fixed labor rates and a pre-established markup on materials. Staff determined the cost of these services to be fair and reasonable based on similar prices paid by OCTA for similar services. Staff will reevaluate the level of service required for 46 Agenda Item 8C subsequent options years. The labor rates for on-call services are subject to an annual 2 percent escalation. The video monitoring system is vital to the revenue operations of the 91 Express Lanes facility; therefore, staff recommends the Commission award Agreement No. 17-31-020-00 to Parsons for a one-year term and a contract value of $118,460 with up to six years of renewal options (two one-year options and two two-year options) for a total amount not to exceed $850,934, as summarized in the table below. TOC Maintenance Base Option Years Totals Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Base Services $68,460 $68,460 $68,460 $68,460 $68,460 $68,460 $68,460 $479,220 On-Call Support Services $50,000 $51,000 $52,020 $53,060 $54,122 $55,204 $56,308 $371,714 Total contract authorization $118,460 $119,460 $120,480 $121,520 $122,582 $123,664 $124,768 $850,934 RCTC maximum obligation $59,230 $119,460 $120,480 $121,520 $122,582 $123,664 $124,768 $791,704 OCTA reimbursements $59,230 TBD TBD TBD TBD TBD TBD $59,230 OCTA will reimburse the Commission for 50 percent of the contract value through the agreement for the first year. Subsequent cost-sharing with OCTA will depend on the outcome of its on-road camera replacement. The FY 2016/17 budget, which is the first six months of the contract, includes the Commission’s share of the FY 2016/17 video monitoring system maintenance, and therefore a budget adjustment is not required. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 59,230* $791,704* *Excludes reimbursements Source of Funds: Toll Revenues; OCTA reimbursements of $29,615 (FY 2016/17) and $29,615 (FY 2017/18) Budget Adjustment: No N/A GL/Project Accounting No.: 009199 73306 00000 0000 591 31 73301 Fiscal Procedures Approved: Date: 09/13/2016 Attachment: Draft Agreement No. 17-31-020-00 47 17336.02100\29233061.2 Agreement No. 17-31-020-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR STATE ROUTE 91 TRAFFIC OPERATIONS CENTER VIDEO SYSTEMS MAINTENANCE SERVICES WITH PARSONS TRANSPORTATION GROUP, INC. 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and PARSONS TRANSPORTATION GROUP, INC. ("Consultant"), a corporation. 2. RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing maintenance services of traffic operations systems services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain system integration services for the State Route 91 traffic operations center video systems ("Project") as set forth herein. 2.3 Commission and Consultant agree that the Services, as described herein, shall be performed for the benefit of both Commission and the Orange County Transportation Authority (“OCTA”), as the joint users of the Project. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in 48 17336.02100\29233061.2 2 accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be for a period of twelve (12) months, commencing as of the date first specified above, unless earlier terminated as provided herein. Commission shall have the right, in its sole discretion, to exercise two (2) one-year options and two (2) two-year options to extend the term of the Agreement. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with any schedules for Services agreed upon in writing by the parties (“Sche dule”). Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Co nsultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet any Schedule. 3.4 Independent Contractor; Control and Payment of Subordinates . The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compe nsation insurance. 3.5 Conformance to Applicable Requirements . All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 49 17336.02100\29233061.2 3 3.7 Commission’s Representative. Commission hereby designates the Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission 's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates Daniel A. Lukasik, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purpo ses under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employe es and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the inde mnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in a ny manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. I f the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify an d hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the 50 17336.02100\29233061.2 4 indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section , in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, it s agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liabilit y Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. 51 17336.02100\29233061.2 5 The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and u nderground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants c overage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, OCTA and their directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s or OCTA’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, OCTA and their directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, OCTA or their directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 52 17336.02100\29233061.2 6 (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, OCTA and their directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, OCTA and their directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non -contributory basis for the benefit of the Commission and OCTA (if agreed to in a written contract or agreement) before the Commission’s or OCTA’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. 53 17336.02100\29233061.2 7 (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years afte r the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any appro val of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self -insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or , (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this 54 17336.02100\29233061.2 8 Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfacto ry to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the lump sum and/or hourly rates, as applicable, set forth in Exhibit "B" attached hereto. The total compensation shall not exceed One Hundred Eighteen Thousand Four Hundred Sixty Dollars ($118,460) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if aut horized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 55 17336.02100\29233061.2 9 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not r easonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.14.5 Right to Withhold Payment. Commission may withhold payment, in whole or in part, on account of Services not performed satisfactorily, delays in Consultant’s performance, other defaults, or to the extent reasonably necessary to protect Commission from or compensate Commission for claims, deman ds, causes of action, costs, expenses, liabilities, losses, damages, or injuries of any kind arising from or related to the Services. Commission shall release any withheld funds upon Consultant satisfactorily remedying the issue that resulted in the withh olding, as determined by Commission in its sole discretion. Commission shall not pay late fees to Consultant on the compensation due Consultant under the terms of this Agreement. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from th e date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 56 17336.02100\29233061.2 10 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may p rovide in writing for this purpose: CONSULTANT: COMMISSION: Parsons Transportation Group Riverside County 1 Centerpointe Drive Transportation Commission Suite 210 4080 Lemon Street, 3rd Floor La Palma, CA 90623 Riverside, CA 92501 Attn: Daniel A. Lukasik Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 57 17336.02100\29233061.2 11 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separat e written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above -referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record d ata, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, 58 17336.02100\29233061.2 12 photographs of the Project, or any publicity pertaining t o the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, OCTA and their directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission or OCTA of the Documents & Data, including any method, process, product, or concept specified or depicted . 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, OCTA and their directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, OCTA and their directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission , OCTA or their directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission, OCTA and their directors, officials, officers, agents, consultants, employees and volunteer s, for any and all legal expenses and costs, including reasonable attorney ’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance pr oceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or 59 17336.02100\29233061.2 13 relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termina tion of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have t he right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 60 17336.02100\29233061.2 14 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third -party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant pro visions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursu ant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. If applicable, Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 61 17336.02100\29233061.2 15 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or tr ade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any o ne time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one -half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub- consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation f or overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the 62 17336.02100\29233061.2 16 Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not l imited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. 63 17336.02100\29233061.2 17 Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each r espective Party. [SIGNATURES ON FOLLOWING PAGE] 64 17336.02100\29233061.2 18 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR STATE ROUTE 91 TRAFFIC OPERATIONS CENTER VIDEO SYSTEMS MAINTENANCE SERVICES WITH PARSONS TRANSPORTATION GROUP, INC. IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY PARSONS TRANSPORTATION TRANSPORTATION COMMISSION GROUP, INC. By: __________________________ By: ____________________________ Anne Mayer Signature Executive Director ___________________________ Name ____________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP General Counsel Its: ________________________ * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to RCTC. 65 Parsons Scope of Work 19 EXHIBIT "A" SCOPE OF SERVICES SR-91 Corridor Improvement Project – CCTV Systems Maintenance Contract Parsons is providing systems integration services associated with the installation of Closed -Circuit Television (CCTV), Traffic Operations Center (TOC) video equipment and centralized transportation management system software and hardware associated with the implementation of the Electronic Toll and Traffic Management (ETTM) System for the SR -91 Corridor Improvement Project. The hardware that is being installed includes the following: Item Description Production Qty. Spares Total Video Wall Components Video Wall 55” LCD Monitor Unit 18 1 19 Video Wall Processor/Controller 9 9 Video Wall Software 1 1 Fiber Extender System 23 23 Video Wall Integrated Master Controller 1 1 Video Wall Controller Rack Mount Kit 1 1 CCTV System Components CCTV Roadway Monitoring Camera System (PTZ) 20 4 24 CMS Verification Camera System (PTZ) 6 1 7 TUB Exterior Security Camera System (PTZ) 6 6 Camera System Hybrid Cable 32 32 NEMA 3R Cabinet 26 26 Servers, Storage, and Software Layer 3 G-bit Ethernet Switch 2 2 MPEG-4/H.264 Video Encoder/Server 14 14 Video Encoder Chassis 1 1 Network Video Recorder and Storage 1 1 66 Parsons Scope of Work 20 iNET ATMS Server (running MySQL) 1 1 2 iNET Software (Multi-Agency) 1 1 Parsons shall maintain the system as described in the Final Design Document from August 2015, excluding the field CCTV camera components , which document is on file at the offices of the Commission and incorporated herein by reference . Table 1 identifies the major components comprising the CCTV subsystem network and Figure 1 is a representation of the final design configuration. The numbered items in Table 1 corresponds to the numbers referenced in Figure 1, the CCTV System Architecture drawing. Table 1 – CCTV System Components 1 Item Description 1 Video Wall, comprising a 6x3 grid of 55" ultra-narrow-bezel LCD monitors: This video wall replaces the existing plasma monitors in the TMC currently used for OCTA 91 Express Lanes operations and is used to display CCTV camera images from the cameras on both the RCTC and OCTA portions of the 91 Express lanes. 2 Video Wall Processor/Controller: Used to control the video displays, allowing for 112 composite input sources and eight PC sources, with content able to be windowed, positioned, and sized anywhere across the display wall. 3 Layer-3 G-bit Ethernet Switch: Allows communication across networks. These switches are installed by the Communications Subcontractor as part of the SR -91 CIP communication system deployment. The CCTV Subcontractor connects the CCTV servers and equipment into these switches. 4 Network Video Recorder Storage and Servers: Records CCTV streams utilizing Video LAN Client (VLC) with connected Dell storage. 10 TB of stora ge to record and store all video streams for a 7-day period, matching OCTA’s current video capture procedures. Installation to be done by the CCTV Subcontractor. The storage size is based on an assumption that streaming video from eighty (80) cameras are s tored for a retention period of at least 7-days in H.264 format with a D1 (720X480) resolution at 15 frames per second. 5 iNET ATMS Server: The CCTV Subcontractor installs this server to run the Advanced Traffic Management System (ATMS) application that controls and monitors the CCTV cameras on the 91 Express Lanes. The new iNET ATMS Server presents both the Riverside and Orange County cameras on one console. 6 Layer 2 Switch: Communicates with CCTV cameras. These switches are installed by the Communications Subcontractor as part of the SR -91 CIP communication system deployment. The CCTV Subcontractor uses Ethernet cabling to provide connections to these switches. 7 Cohu Cameras: Cameras are installed as part of this Project to support three different functions: 67 Parsons Scope of Work 21 Item Description 1) CCTV cameras for monitoring the 91 Express Lanes 2) CMS verification cameras to verify messages displayed on the signs 3) Security cameras to view the exterior of the manned and unmanned TUBs 8 MPEG-4/H.264 Video Encoders: Digital conversion of existing OCTA analog CCTV video streams. 9 TMC Operator Workstations: For operation and control of the video wall system and CCTV monitoring system, including performing CCTV PTZ commands. These are outside the scope of the SIIC and will be furnished by ot hers. 10 Caltrans D-8 ATMS Servers: Host the ATMS functions. These are the existing Caltrans ATMS servers at Caltrans District 8. These servers need to be configured by Caltrans to allow viewing of the 91 Express Lanes digital video feeds. As part of t he CCTV subsystem installation effort, Caltrans District 8 is provided physical connections and IP addresses of the cameras in order to receive read -only (i.e., no control access) of all CCTV video streams. 11 Caltrans D-8 ATMS Workstations: For TMC operators to use. These are the existing Caltrans District 8 ATMS workstations for viewing the 91 Express Lanes video feeds. 12 DVI-Fiber Signal Extenders: Extends digital video signals over longer cable distances. Because all project DVI cable runs will ex ceed the maximum specified DVI cable length of 5 meters, DVI-fiber extenders, which support distances of up to 1km, are required. 13 Video Splitters: Splits the coaxial video signals, one going to the video encoders and the others feeding the existing analog video switch. The following Figure 1 presents the system architecture. The system architecture drawing references the item number from Table 1 to get a better understanding of high -level connectivity between the CCTV system components. 68 Parsons Scope of Work 22 2 3 4 5 6 7 8 9 10 11 12 13 Figure 1 - System Architecture 69 17336.02100\29233061.2 A-1 Work Tasks Task 1 - Telephone Help Desk Support The first response to a reported issue is to provide telephone help desk support to answer user questions and issues regarding video solutions. The help desk support will be available Monday- Friday 9 a.m. – 5 p.m., excluding state holidays, with an initial response time of 2 hours. Each call shall be issued a tracking or reference number. Costs for phone or facsimile use are included in the cost for this task. A list of authorized callers for help desk support shall be agreed upon prior to commencement of maintenance period. Any changes to the list of authorized callers will be provided by the Contract Manager. Task 2 - On-Site TOC Hardware and Software Maintenance If Telephone Help Desk Support does not resolve the issue, then On -site Support will be provided. This consists of providing on -site troubleshooting and fault isolation of system failures for TOC equipment. As required, TOC equipment r eplacement will occur using the spare parts inventory. Each call-out shall be issued a tracking or reference number. On -site support shall be made available Monday-Friday 8 a.m. – 5 p.m., excluding statutory holidays. Initial call out response time for high severity issues is 6 hours. In circumstances where there is a severe system failure, Parsons will respond in 2 hours from the initial request. Severe system failures include: - a complete loss of video feed to the wall displays or the NVR subsystem - an inability to control 50% or more of the PTZ-capable cameras - an inability of the NVR to produce copies of video to other media. - inability of the NVR to record any videos This Agreement covers all equipment installed as part of the 91 CIP Project as outlined in the sections above, excluding cameras and video wall equipment. It is assumed that Parsons will be provided with continued VPN access into the 91 Express Lanes TOC computer systems (i.e. Intelligent NETworks® servers) during the maintenance period. This proposal assumes a maximum of 15 on-site callouts per year. Subsequent options years may be re-evaluated. System changes made as a result of maintenance action will be documented in an updated system diagram. 70 17336.02100\29233061.2 A-2 Task 3 – As Needed Maintenance and Support Services If the failure is non-warranty related and cannot be resolved after the initial on -site troubleshooting and fault isolation call-out visit, Parsons is to be paid according to the fixed rates on a time and materials basis as identified in Exhibit “B”, at an overall cost that is not to exceed $50,000. Parsons must receive written approval from RCTC prior to commencing with any time and material work. OCTA concurrence must also be received if the work is to be funded, in whole or in part, by OCTA. Parsons will obtain RCTC direction as to whether OCTA concurrence is required. Assumptions: 1. CCTV camera maintenance is not included as part of this maintenance proposal. 2. No supplemental insurance or bonding is required. 3. No spare parts replenishment will be included. 4. Excludes routine video wall maintenance. If maintenance is required, it will be included as part of Task 3 - As Needed Maintenance and Support Services. 5. Assumes agreement with maintenance contract terms and conditions. 6. There will be no service penalties associated with system maintenance, e.g. liquidated damages or other penalties. 7. Work for Tasks 1 and 2 will be paid on a lump sum monthly basis. Work under Task 3 will be completed on a task order basis and will be invoiced upon completion o f the agreed task order. 71 17336.02100\29233061.2 B-1 EXHIBIT "B" COMPENSATION Initial term Hourly Rates for As-Needed Maintenance and Support Project Manager $215.85 Systems Engineer $175.18 Intermediate Engineer $140.77 Junior Engineer $122.62 Table 1 below is the proposed Price Schedule for maintenance activities described in this section. Table 1 – Price Schedule Item Group/Item Description Unit Unit Price Total Price Task 1 – Telephone Help Desk Support Telephone Help Desk Support LS $21,210 $21,210 Task 2 – On-site TOC Hardware and Software Maintenance iNET License Renewal LS $9,750 $9,750 On-site System Maintenance LS $37,070 $37,070 Task 3 – On-Call Maintenance and Support Services NTE $50,000 $50,000 Subtotal TOTAL MAXIMUM PRICE (PARSONS) $118,030 LS indicates that the identified Services shall be paid on a lump sum basis. The lump sum amount shown for the Unit Price indicates the total lump sum due for twelve (12) months of Services, with the total lump sum amount to be paid in equal monthly installments. [Option year pricing on following page] 72 17336.02100\29233061.2 B-2 Option Year Pricing TOC Maintenance Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Sub-total Base Services $68,460 $68,460 $68,460 $68,460 $68,460 $68,460 *As Needed Maintenance and Support Services $51,000 $52,020 $53,060 $54,122 $55,204 $56,308 Total option year price $119,460 $120,480 $121,520 $122,582 $123,664 $124,768 * Labor for On-Call support services are subject to an annual increase of 2%, which increase has been applied to each option year. RCTC may evaluate the level of service within base services and determine a reduction or increase in services is warranted. Such chan ge shall be negotiated with the Contractor. 73 AGENDA ITEM 8D Agenda Item 8D RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County transportation Commission FROM: Western Riverside County Programs and Projects Committee Reinland Jones, Toll Technology Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Caltrans Maintenance Agreement for RCTC 91 Express Lanes WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 17-31-021-00 with the California Department of Transportation (Caltrans) for roadway maintenance of the RCTC 91 Express Lanes for a 50-year term in an amount not to exceed $245,104 for the initial 18-month period; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 3) Authorize the Executive Director to execute amendments to the agreement related to the cost for each annual work plan following the initial period for an additional amount not to exceed an annual increase of 3 percent. BACKGROUND INFORMATION: On May 14, 2012, the Commission entered into a toll facilities agreement (TFA) with Caltrans granting the Commission a lease for use of the state highway right of way for the operation and maintenance of the RCTC 91 Express Lanes. Under the TFA, the Commission is obligated to perform maintenance of the toll facility in accordance with Caltrans maintenance standards and is given the right to use Caltrans or another entity to provide maintenance. The RCTC 91 Express Lanes are scheduled to open in early 2017, and at that time, the Commission will be responsible for providing ongoing maintenance. Caltrans’ integral role in the construction of the RCTC 91 Express Lanes, experience providing maintenance for the Orange County Transportation Authority (OCTA) on the existing 91 Express Lanes, and ability to perform the wide range of services required to ensure continued operation and maintenance of the 91 Express Lanes makes it an excellent choice as the roadway maintenance provider. Caltrans District 8 staff is well-prepared to perform the required maintenance services on a time and materials basis. The use of Caltrans for roadway maintenance ensures the RCTC 91 74 Agenda Item 8D Express Lanes will be maintained in accordance with Caltrans standards, facilitates the annual Caltrans maintenance certification as required by FHWA, and provides the Commission with a full breadth of emergency response equipment and personnel should the need arise. Additionally, OCTA’s successful history using Caltrans as the maintenance provider for the existing 91 Express Lanes will allow for Caltrans District 8 (Commission) and District 12 (OCTA) to work together to ensure the performance of seamless routine maintenance and coordinated emergency response. The District 8 and District 12 staff are committed to work together to find the most efficient and effective means to perform maintenance of the entire 91 Express Lanes facility minimizing the amount of time toll collection is suspended during maintenance activities. Staff is recommending Caltrans District 8 perform roadway maintenance for the RCTC 91 Express Lanes due to its breadth of experience and to establish a seamless operation with OCTA. While the maintenance will be performed by different districts, synergy between the districts allows for the ability to share assets and staff as needed. Maintenance efforts will be coordinated with the 91 Express Lanes toll operator, OCTA, California Highway Patrol, and other entities directly impacted. Routine maintenance is anticipated to coincide with the current OCTA maintenance schedule. Caltrans will provide a yearly work plan and budget for staff to review and approve. The initial work plan, which includes an 18-month work schedule at a cost of $245,104, will begin when the RCTC 91 Express Lanes opens to the public. Staff will monitor and evaluate the annual work plan to ensure safe and efficient operations. Following the initial 18 months, the projected annual work schedule cost, plus additional replenishment for spare parts, is $228,293. The proposed maintenance contract provides for routine and emergency maintenance of the roadway, including channelizer replacement, pavement marker repair, pavement repair, signage replacement, sweeping and debris removal, drainage clearing, and other maintenance items. Staff recommends a 50-year term for the agreement with Caltrans to align with the term of the TFA. Staff will work with Caltrans annually to establish a work plan and cost and recommends that the Executive Director be authorized to execute annual cost amendments that do not exceed 3 percent. Annual cost amendments exceeding 3 percent will be presented to the Commission for approval. If the Commission is not satisfied with Caltrans’ performance or determines a better option for maintenance of the RCTC 91 Express Lanes exists, the Commission has the right to terminate the contract with six months advance written notice. The Commission’s Procurement Policy Manual adopted September 9, 2015, allows for the non- competitive procurement of non-federally funded services if the services are to be provided by a government or other public entity. Contracting with Caltrans for these services will prevent unnecessary delays and allow for efficient maintenance and emergency response coordination along the 91 Express Lanes in Riverside County. Staff believes contracting with Caltrans for these services is in the best interest of the Commission and the public. 75 Agenda Item 8D Maintenance of the 91 Express Lanes roadway is essential to providing a safe, reliable, and predictable trip for 91 Express Lanes’ customers. Staff recommends the Commission approve Agreement No. 17-31-021-00 to Caltrans for a term of 50 years with the initial 18-month work plan for routine and emergency maintenance operations at a cost of $245,104. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18 Amount: $ 81,701 $163,403 Source of Funds: Toll Bond Operations and Maintenance funds and Toll Revenues Budget Adjustment: No N/A GL/Project Accounting No.: 009199 73305 00000 0000 591 31 73305 Fiscal Procedures Approved: Date: 09/13/2016 Attachments: 1) Draft Agreement No. 17-31-021-00 2) Caltrans Roadway Work Plan Exhibit A 76 17336.02100\22199255.9 Draft Freeway Maintenance Agreement 91 Express Lanes Riverside County, California ATTACHMENT 1 77 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 Freeway Maintenance Agreement by and between Riverside County Transportation Commission and State of California, Department of Transportation regarding 91 Express Lanes This Freeway Maintenance Agreement ("FMA"), is made and entered into as of _________, 2016, by and between the State of California, acting by and through the Department of Transportation ("Caltrans"), and the Riverside County Transportation Commission, a California county transportation commission ("RCTC"). Caltrans and RCTC are sometimes referred to herein, collectively, as the “Parties”. This FMA is made in consideration of the following: 1. Recitals 1.1 RCTC and Caltrans have entered into a Design-Build Cooperative Agreement, dated July 25, 2012, pursuant to which RCTC, though use of a design-build contractor, is currently undergoing construction of the 91 Corridor Improvement Project (“91 CIP”), which includes construction of the initial “Toll Facility” defined as follows: 1.1.1 Extension of the existing OCTA 91 Express Lanes approximately 7.5 miles east from the Orange/Riverside County line to I-15. 1.1.2 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 I-15 providing access and egress to and from the “RCTC 91 Express Lanes”. 1.2 RCTC and Caltrans have entered into a Toll Facility Agreement ("TFA"), effective as of May 14, 2012, under the authority of 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 entered into between RCTC, Caltrans and the Federal Highway Administration, dated August 18, 2009. The TFA provides for use of the identified portions of the State Highway right of way for the operation and maintenance of the Toll Facility. The Section 129 Agreement requires Caltrans to annually certify that RCTC is adequately maintaining the Toll Facility. 1.3 Under the TFA, RCTC must submit to Caltrans for its annual 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 this Maintenance Agreement. Pursuant to the TFA, RCTC is responsible for the maintenance of the Toll Facility in accordance with the Caltrans furnished Maintenance Standards, defined below. 1.4 Caltrans is the state agency responsible for the planning, financing, implementation and maintenance of the State Highway System serving the State of California. 78 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 1.5 The Parties desire Caltrans to maintain the Toll Facility as set forth in this FMA for the term hereof with the purpose of (a) providing safe passage for the traveling public through the Toll Facility, (b) meeting RCTC’s maintenance obligations under the TFA, (c) safeguarding all Caltrans, California Highway Patrol, RCTC, toll operator and other workers, and (d) causing minimum interference with RCTC's ability to provide a high quality transportation service to motorists and meet other obligations associated with the 91 CIP.. 1.6 The Parties do not desire Caltrans to maintain toll collection components such as ETC System, AVI, data networks, toll enforcement equipment, offices, communications centers or other facilities which are not located within the State right of way. 2. Definitions Unless the context otherwise specifies or requires an alternate meaning, for the purposes of this FMA the following terms shall have the meanings set forth in this Section 2: 2.1 Actual Costs. The term "Actual Costs" shall mean, with respect to the Maintenance Services provided pursuant to this FMA, the actual cost to Caltrans of the provision of such services, which shall be deemed to include only the following components: (a) The actual cost of Caltrans personnel engaged in performing, scheduling, supervising and managing the Maintenance Services, determined in accordance with Caltrans' actual hourly rates; (b) The actual costs of materials used by Caltrans in performing the Maintenance Services, based upon invoices or other evidence reasonably acceptable to RCTC; (c) The actual costs of equipment (loaded or billing rate) used by Caltrans in performing the Maintenance Services, based upon Caltrans standard equipment costs; (d) The actual costs of services performed by Caltrans' subcontractors authorized in advance by RCTC pursuant to the provisions of this MA; and (e) General and overhead costs to the same extent that such charges are authorized by the Laws and Regulations, the Manual, and the State Administrative Manual and are charged to public and private entities to which Caltrans furnishes comparable maintenance services. 2.2 AVI. The term “AVI” shall mean a system for automated vehicle identification which identifies vehicles as they pass through a lane or roadway and as further defined in the TFA. 2.3 Budget. The term "Budget" shall mean the annual budget for Maintenance Services established pursuant to Section 5.3 of this FMA. 2.4 Comparable State Highways. The term "Comparable State Highways" shall mean State Highways in Riverside County having traffic volumes and physical characteristics similar to those of the Toll Facility. 79 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 2.5 ETC System. The terms "Electronic Toll Collection System" and "ETC System" are interchangeable and shall each mean the systems, equipment or software used by RCTC for AVI, video surveillance, enforcement equipment, communications equipment and all other hardware necessary for electronic toll collection and operations. 2.6 Fiscal Year. The twelve month period beginning July 1 and ending June 30. 2.7 Initial Operating Period. The term "Initial Operating Period" shall mean the period beginning on the Opening Date and ending on the final day of the first complete fiscal year. The Initial Operating Period may be longer than twelve months. 2.8 Laws and Regulations. The term “Laws and Regulations” shall mean all applicable federal, state and local laws, rules, regulations, and codes related to the Maintenance Services or this FMA, including Caltrans rules, policies and procedures. 2.9 Leasehold Mortgagee. The term “Leasehold Mortgagee” shall mean the holder of any mortgage, pledge or other encumbrance or collateral assignment of this FMA, and any other agreements between the Parties related to the Toll Facility, and the beneficiary of any such assignment. 2.10 Maintenance Services. The term "Maintenance Services" shall mean all services to be provided by Caltrans as described in this FMA and in the agreed upon annual Work Plan. 2.11 Maintenance Standards. The term “Maintenance Standards” shall mean the then applicable published Caltrans maintenance schedules and standards, the 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 Comparable State Highways. 2.12 Maintenance Manual. The term "Maintenance Manual" shall mean the Caltrans Maintenance Manual, Volume I, dated July 2014, as it may be revised from time to time. 2.13 FMA. The term "FMA" shall mean this Maintenance Services Agreement. 2.14 Opening Date. The term “Opening Date” shall mean the first day on which the Toll Facility opens for public use and toll operations. 2.15 Operating Period. The term “Operating Period” shall mean each fiscal year following the Initial Operating Period. 2.16 Scheduled Maintenance. The term “Scheduled Maintenance” shall mean routine repair and maintenance services, including, but, not limited to those services listed under Section 3., subsection 3.1, Services Provided by Caltrans, to the extent such services are included in the Work Plan and the monthly maintenance schedule. 2.17 Section 129 Agreement. The term “Section 129 Agreement” shall mean 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. 80 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 2.18 Urgent Maintenance. The term “Urgent Maintenance” shall mean unplanned repair and maintenance services that are not included in the monthly maintenance schedule and require an immediate response to correct a safety issue, measures necessary for the protection of property, public emergency or allow for continued operation of the Express Lanes. 2.19 Work Plan. The term "Work Plan" shall mean the annual work plan adopted by RCTC and Caltrans in accordance with Section 5 hereof, as such work plan may be modified by the Parties in accordance with Section 5. Any other capitalized term not defined herein shall have the same meaning as set forth in the TFA. 3. Caltrans' Responsibilities 3.1 Services Provided by Caltrans. During the Term, Caltrans shall provide the following Maintenance Services in accordance with the Maintenance Standards as approved in the Work Plan:  Pavement repair  Litter/Debris removal and sweeping  Channelizer replacement  Drain clearing and cleaning  Median sign replacement  Center median barrier repair replacement  Crash cushion replacement  Striping and pavement marking repair and/or replacement  Spill or substance clean-up  Storm water maintenance  Electrical repair  HAZMAT cleanup  Storm water repair Caltrans shall provide all labor, materials, and equipment necessary to perform the work. Specialty materials to be provided by RCTC or others will be determined during the annual Work Plan and Budget process, or as otherwise agreed upon by the Parties in writing. Caltrans shall provide additional Maintenance Services as RCTC and Caltrans agree in connection with the adoption of, or modification to, the annual Work Plan. All Maintenance Services shall be performed in accordance with the Maintenance Manual, except to the extent that this FMA or the Work Plan sets higher standards for specified Maintenance Services or Maintenance Standards. 81 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 Caltrans shall advise RCTC immediately in writing of any known conflicts between the Manua l, Maintenance Standards and the Laws and Regulations, as they may be revised, and the provisions of this FMA, which FMA will be amended to conform to those revisions, except as provided for by 3.2.3. 3.1.1 Shared Cost for Joint Maintenance. Pursuant to Section 8.2 of the TFA, the Parties agree to share the costs related to joint maintenance of storm water which may drain from the Toll Facility to existing Caltrans facilities. 3.2 Urgent Maintenance Response Times. Caltrans shall take steps to ensure that Urgent Maintenance tasks are performed as quickly as reasonably possible to minimize safety hazards to the motoring public, risk to property and to minimize non-operational time of the Express Lanes. Table 1 below provides the maximum response times for specific Urgent Maintenance tasks. The stated response time begins upon notification to Caltrans, or upon Caltrans becoming aware of the need for Urgent Maintenance . Caltrans will be en-route within 30 minutes of notification. Table 1 Task Maximum Response Time Fill Potholes 2 hours to initiate repair Repair or reposition displaced barriers constituting a safety hazard 2 hours to initiate repair Temporarily repair longitudinal spalls or cracks constituting a safety hazard 24 hours to complete repair Clean up spills constituting a safety hazard En-route within 30 minutes of notification Clear drain resulting in standing water or matter constituting a safety hazard 2 hours to initiate repair 3.2.1 In all cases, Caltrans' response times may temporarily be varied at Caltrans' sole option due to diversions or reallocations of forces and equipment needed for public emergencies or Urgent Maintenance items in a manner consistent with Caltrans' customary practices for such diversions and reallocations of forces and equipment. However, frequent or persistent interruptions or delays in performing the Maintenance Services due to such diversions or reallocations shall be cause for termination of this FMA, at RCTC's sole option. If necessary, Caltrans may temporarily divert or reallocate reasonably available forces and equipment from other areas for public emergencies and Urgent Maintenance items on the Toll Facility in a manner consistent with Caltrans' customar y practices for such diversions and reallocations of forces and equipment. 3.2.2 In the event of any future modification of the Manual which reduces the level or frequency of required maintenance on Comparable State Highways, RCTC shall have the option of a) accepting such change, b) entering into an agreement with Caltrans to maintain the level and frequency of services then in effect, at a price determined in accordance with Article 7 82 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 hereof, or c) terminating this FMA on thirty (30) days notice and performing maintenance using its own employees or third party contractors. 3.2.3 In the event a future modification of the Manual requires response times faster than those shown in Table 1 the faster response times shall govern. 3.3 Scheduled Maintenance - Scheduling. Scheduled Maintenance shall be provided at the frequency set forth in the Work Plan. Scheduled Maintenance shall be performed as directed by RCTC during low volume traffic periods to minimize loss of toll revenue and disruption to traffic operations. Scheduled Maintenance shall initially occur according to the existing 91 Express Lanes maintenance window of each third Sunday from 5 am up to approximately noon (“Scheduled Maintenance Window”). The Parties shall, from time to time, review and redefine the Scheduled Maintenance Window to optimize revenue collection and Caltrans’ ability to operate effectively and efficiently. Such adjustments may require multiple maintenance windows during a month or working on non 91 Express Lanes scheduled maintenance days, as agreed upon by the Parties. At its discretion, either Party reserves the right to cancel scheduled maintenance. Caltrans shall assign a Caltrans Maintenance Supervisor level representative to work alongside RCTC’s toll operator to plan the Scheduled Maintenance activity in advance of the Scheduled Maintenance Window(s). The Scheduled Maintenance tasks will be planned in the annual Work Plan and adjusted on a monthly basis to meet the actual Toll Facility needs. Caltrans shall coordinate maintenance activities with the 91 Express Lanes operator and Caltrans District 12 maintenance. 3.4 Administrative and Management Responsibilities. Caltrans shall: 3.4.1 Hire, train and supervise all Caltrans personnel; 3.4.2 Administer all personnel matters, including labor relations, salaries, wages, benefits, working conditions, hours, terminations, and related matters; 3.4.3 Maintain documentation as required by the Manual or as reasonably requested by RCTC; 3.4.4 Deliver to RCTC, by the 25th of each month, such reports of Maintenance Services performed during the immediately preceding month as RCTC may reasonably request. Such reports shall be in sufficient detail to enable RCTC to ascertain that all required Maintenance Services were performed during such month pursuant to this MA, and shall provide all data which the Manual requires Caltrans personnel to enter into Caltrans' Maintenance Management System, as defined in the Manual. Such reports shall also indicate planned versus actual expenditures and planned versus actual work accomplished for the immediately preceding month and for Caltrans` fiscal year to date. Caltrans' retention period for all data and reports relating to the Toll Facility shall be in accordance with the Manual; 83 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 3.4.5 Establish an E-FIS or Project number in addition to county and post mile to designate the Toll Facility; and 3.4.6 Transmit, by electronic mail, copies of completed "Maintenance Daily Worksheets" or equivalent documents from the Integrated Maintenance Management System (IMMS) by noon of the first work day following receipt of such reports by the District 8 Maintenance Office. 3.4.7 Maintain self insurance in an amount sufficient to cover all risks under the FMA. 3.4.8 Establish on-call contracts to enable timely response to Urgent Maintenance. 3.4.9 Provide and maintain all equipment needed to perform the Maintenance Services. 3.4.10 Pursuant to Section 5.7 (c) and 8.9 of the TFA Caltrans shall coordinate planned maintenance closures performed under the FMA with Caltrans Traffic Management Center in Districts 8 and 12. 3.5 Deficiencies in Maintenance Services Caltrans shall initiate steps to cure any maintenance deficiencies identified by RCTC consistent with the approved Work Plan or through a modification to the Work Plan pursuant to Section 5.3 of this FMA, as applicable. 3.6 ETC System. Caltrans shall not be responsible for maintenance of the ETC System. Caltrans shall perform all Maintenance Services in a manner calculated to prevent damage to the ETC System and avoid interference with the operation of the ETC System. RCTC shall identify in writing, and Caltrans shall familiarize its personnel with, any procedures established by RCTC or its contractors to safely operate in proximity to the various components of the ETC System. Caltrans shall submit maintenance procedures to RCTC for comment and approval as to their potential damage to or impact on the operation of the ETC System. Caltrans will use best efforts to revise its maintenance procedures as necessary to eliminate any unanticipated damage to or interference with the ETC System. 3.7 Standard of Care. Caltrans shall perform all Maintenance Services in accordance with the Work Plan, applicable Caltrans standards, and in a good, workmanlike and commercially reasonable manner. 3.8 Provision of Maintenance Services by Others. 84 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 Notwithstanding any other provision hereof, RCTC, at any time and from time to time, may arrange for any item of Maintenance Services to be provided by RCTC personnel, or by third parties contracting directly with RCTC, including (i) any item of Scheduled Maintenance; or Urgent Maintenance (ii) any item of maintenance not required by then-applicable Caltrans maintenance schedules and standards. RCTC shall notify Caltrans of its intent to have any Maintenance Services (excluding Urgent Maintenance) contemplated by item (i) of the foregoing sentence provided by RCTC or by third parties not later than thirty (30) calendar days prior to the date upon which those Maintenance Services are scheduled to be performed by Caltrans or, if those Maintenance Services are to be performed by third parties under contract to Caltrans, then not later than thirty (30) days prior to award of such contract. 4. RCTC Responsibilities RCTC shall: 4.1. Make payments to Caltrans for Maintenance Services and inventory provided by Caltrans in accordance with this FMA. 4.2. Provide information to Caltrans to assist Caltrans in recommending Maintenance Services to RCTC which Caltrans deems appropriate for the Toll Facility. 4.3. At RCTC's option, RCTC, its representatives or designees may from time to time conduct inspections of the Toll Facility consistent with Laws and Regulations. Such inspections shall be coordinated with Caltrans' maintenance activities, and shall not in any way relieve Caltrans of its responsibilities to provide Maintenance Services to the Toll Facility. 4.4 To provide any instruction relating to work near ETC equipment or other specialized procedures required by RCTC. 5. Budgets and Work Plans This section sets forth the process by which Caltrans and RCTC shall work together to develop and approve the annual Work Plan and Budget for the Toll Facility. The annual Work Plan shall establish the level of Maintenance Services for each Operating Period. The Work Plan shall include the proposed Budget for the labor, materials, equipment and other resources required to perform the Maintenance Services. Upon agreement by the Parties, in writing, to the Work Plan and Budget, the Budget shall be adhered to by Caltrans in the performance of the Maintenance Services. 5.1 Initial Operating Period The Work Plan and Budget for the Initial Operating Period is based on an estimated Opening Date of January 1, 2017, and performance through the following fiscal year ending June 30, 2018. The Initial Operating Period Work Plan and Budget provides an estimate by month to facilitate adjustment of the Budget should the Opening Date be deferred or advanced. The Initial Operating Period Work Plan and Budget is attached to this FMA as Exhibit A and incorporated 85 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 herein by reference. RCTC shall notify Caltrans of the actual Opening Date 30 days in advance of such date. Maintenance Services shall commence on the Opening Date. 5.2 Annual Operating Period Not later than ninety (90) days prior to the start of each Operating Period , Caltrans shall prepare and deliver to RCTC its proposed Work Plan and Budget for the upcoming fiscal year. The Work Plan shall set forth, in detail, the Maintenance Services proposed during the Operating Period. The Budget shall include labor, equipment and all other resources required to perform the Maintenance Services. 5.2.1 Negotiations and Approval. RCTC shall review and may request adjustments to the Caltrans’ proposed Work Plan and Budget. No later than March 1 of each year Caltrans and RCTC shall complete negotiations and approve, in writing, the final Work Plan and Budget for the following operating period. 5.2.2 Interim Budget; Dispute Resolution. If Caltrans and RCTC have not reached agreement regarding the Budget by the start of an Operating Period, the Budget set forth in Exhibit A or the last approved Budget, as the case may be, shall remain in effect until a new Budget has been approved. If a new Budget has not been approved within thirty (30) days after the start of the Operating Period, the matter shall be subject to the dispute resolution process contained in Section 18.6 of the TFA. 5.3 Modifications. Caltrans shall perform Maintenance Services in accordance with the Work Plan, except for immaterial deviations therefrom which are consistent with Caltrans' customary operating procedures. The Work Plan shall not be modified (except for previously-approved adjustments between seasons and/or shifts) without the written consent of the Parties. RCTC may request that the Work Plan be modified at any time, and Caltrans shall take all reasonable steps to respond to such requests while conforming to the standards set forth in the Maintenance Manual. 5.4 Budget Overruns. If Caltrans determines at any time that the Budget then in effect will be insufficient for performance of all required Maintenance Services, Caltrans shall immediately advise RCTC in writing. At RCTC's request, Caltrans will reduce to the standard set forth in the Manual the response times listed in Section 3.2 (if such response times are then faster than those required by the Manual), will postpone specified non-safety related items of Scheduled Maintenance, or will undertake other economy measures reasonably requested by RCTC, provided that Caltrans shall continue to comply with the standards set forth in the Maintenance Manual. Should these economy measures be insufficient to restore maintenance coverage within the Budget, Caltrans will notify RCTC of the additional funds needed to achieve the maintenance standards set forth in the Maintenance Manual, and RCTC either will make such additional funds available or will undertake itself or through third parties to perform portions of the maintenance work such that Caltrans can provide the remaining maintenance work with the available budgeted funds. The 86 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 provisions of this FMA do not absolve RCTC of its obligations to maintain the Toll Facility consistent with the prior agreements of the Parties. Caltrans shall advise RCTC of any reasonably anticipated changes in the Budget, (i) not later than ten (10) days prior to any such changes arising from collective bargaining agreements between Caltrans and its personnel, and (ii) not later than ninety (90) days prior to any other changes. If RCTC objects to any projected Budget overruns, the Parties will resolve their differences according to the dispute resolution procedures set forth in Section 18.6 of the TFA. 5.5 Budget Requests; Adequate Resources. Caltrans shall submit funding requests to the State Legislature sufficient to meet the reasonably anticipated maintenance requirements of the Toll Facility. The availability of Caltrans staff or resources is expressly contingent upon the appropriation by the Legislature. Caltrans shall provide RCTC with any information reasonably requested by RCTC to verify that Caltrans has sufficient equipment, personnel and other resources to satisfy its obligations hereunder. Should Caltrans be unable to provide the level of maintenance services contemplated under this FMA due to the unavailability of resources, Caltrans shall immediately notify RCTC of that fact. At RCTC’s discretion, RCTC may terminate this FMA. RCTC agrees it shall not seek monetary damages as a result of the failure of the Legislature to appropriate adequate resources for Caltrans to perform the work. 5.6 Urgent Maintenance Notification. 5.6.1 Notification to RCTC. RCTC shall furnish to Caltrans the names, electronic mail, and telephone numbers of the RCTC contacts, designated RCTC personnel and/or contracted personnel, whom Caltrans will attempt to notify in the case of an event requiring Urgent Maintenance, indicating the times of availability of each RCTC contact. Caltrans shall immediately notify the RCTC contact of any event requiring Urgent Maintenance. If the RCTC contact is unavailable, Caltrans' responsibility for notifying RCTC of an event requiring Urgent Maintenance shall have been fulfilled when Caltrans has sent a message via electronic mail and left a voice message for the RCTC contact. 5.6.2 RCTC Consent Not Required for Urgent Maintenance. RCTC's consent shall not be required for any Urgent Maintenance. All such Urgent Maintenance shall be performed in accordance with the Manual, the Laws and Regulations and the Work Plan. 5.6.3 Notification to Caltrans. Caltrans shall furnish RCTC with the names, electronic mail, and telephone numbers of Caltrans designated personnel whom RCTC shall contact to notify of an Urgent Maintenance request. 5.7 Staffing, Equipment and Materials. 5.7.1 Caltrans Personnel. Except as authorized by RCTC pursuant to Sections 6.3.2 and 6.3.3, all Maintenance Services shall be supervised, performed or directed by qualified Caltrans employees under the sole direction and regulation of Caltrans. Said personnel shall be 87 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 trained by Caltrans to perform such functions and shall perform their duties in accordance with all applicable Caltrans standards and Laws and Regulations. Upon a finding that cause exists under Caltrans' policies or State Personnel Board rules and regulations, Caltrans shall make its best effort to resolve and if necessary reassign any Caltrans personnel whom RCTC requests for issue resolution for cause from the Toll Facility. In the event of any dispute regarding such reassignment of Caltrans personnel, such dispute shall be resolved pursuant to Article 12 of this FMA. 5.7.2 Contractors' Services. Caltrans is authorized to delegate performance of any and all Maintenance Services to private contractors or other public entities, provided that the identity, qualifications, prices and bonding of such contractors or other public entities have been established pursuant to the Laws and Regulations, and that such delegation has received the prior written consent of RCTC. All work delegated to private contractors or other public entities shall be performed in compliance with this FMA. Caltrans shall be responsible to RCTC for any work performed by a Caltrans contractor or other public entity as if such work had been performed by Caltrans itself. Caltrans shall require that all Caltrans contractors performing Maintenance Services on the Toll Facility maintain such private insurance, performance bonds and completion bonds as required by Caltrans policy and the Laws and Regulations. No liens may be placed on the Toll Facility by Caltrans or its contractors. 5.7.3 Equipment, Vehicles and Materials. Caltrans shall provide all equipment and materials, except as stated in 5.7.3 (b) or (c) necessary to perform the Maintenance Services. All equipment, vehicles and materials used by Caltrans in connection with the Maintenance Services shall be of the same or higher quality as Caltrans uses on the State highway right-of-way adjacent to the Toll Facility, or on Comparable State Highways. Caltrans shall ensure that all materials used by its contractors or other public entities in connection with the Maintenance Services shall be of the same or higher quality as Caltrans uses on the State highway right-of-way adjacent to the Toll Facility, or on Comparable State Highways. (a) Special Equipment. Caltrans shall be required to maintain the RCTC bituminous adhesive machine in good working condition to facilitate the successful replacement of channelizers during the Scheduled Maintenance window. Issues to the machine shall be reported to RCTC. (b) Provision of Materials. During establishment of the Work Plan and Budget, RCTC shall inform Caltrans of materials to be supplied by RCTC. The Initial Operating Period Work Plan and Budget identifies any special materials required and the agreement of the Parties as to the provision of such materials. Caltrans may reserve the right to approve RCTC provided materials. (c) Should the work require the procurement and availability of any materials not ordinarily in Caltrans possession or provided by RCTC, Caltrans shall obtain RCTC’s prior written approval to procure said inventory so that it is available for deployment or use as needed. Any inventory procured by Caltrans, with RCTC’s prior written approval, shall be charged to RCTC upon procurement. If this FMA is terminated, RCTC shall promptly take possession of any such inventory if it is in Caltrans’ possession. 88 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 6. Payment RCTC will pay Caltrans for Maintenance Services in accordance with the following provisions: 6.1 RCTC will reimburse Caltrans monthly in arrears its Actual Costs based on detailed itemized invoices. Invoices shall be submitted within twenty-five (25) days after the close of each monthly billing period and shall be itemized by Caltrans Highway Maintenance Program Code as set forth in the Manual. 6.2 Caltrans' charges for Maintenance Services, including the costs of labor, equipment, vehicles and materials , shall be billed at the prevailing rate charged by Caltrans . Caltrans' billing methods shall conform to Caltrans' standard practices for billing maintenance work done for others. 6.3 Caltrans shall maintain, in accordance with generally accepted accounting practices, complete and accurate records that support all billings. These records shall be made available to RCTC representatives for review during normal business hours for a period of three years after payment of said billings. For a period of three years after payment, RCTC shall have the right, using an independent auditor acceptable to Caltrans, to audit such bi llings and related accounting records. At RCTC's sole option, such billings may be audited at any reasonable interval. In the event that such audit demonstrates that the invoiced and paid costs were greater than actually incurred, Caltrans shall refund any overpayment. 6.4 Provided that no disputes arise regarding the contents of an invoice, RCTC shall pay all invoices within thirty (30) days after receipt from Caltrans. Disputes regarding invoices shall be resolved in accordance with the dispute resolution provisions set forth in Section 18.6 of the TFA. 7. Term and Termination 7.1 Term. This FMA shall become effective commencing as of the Opening Day, and shall continue in effect for a period of ____________ (the “Term”), unless earlier terminated pursuant to the termination provisions of this FMA, or extended pursuant to an amendment hereto. The indemnity provisions set forth in Section 10 hereof shall survive any termination or expiration of this FMA. 7.2 Causes of Termination. This MA and all rights and duties hereunder shall cease and terminate upon the first to occur of any of the following: 7.2.1 The expiration or termination of the TFA; 7.2.2 The election of RCTC upon a default by Caltrans pursuant to Section 8 3.2 effective on the date specified in the notification of termination, or a default by Caltrans pursuant to Sections 8.3.1 or 8.3.3 which is not cured as provided in Section 8.5.1; 89 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 7.2.3 The election of Caltrans upon a default by RCTC which is not cured as provided in Section 8.5.2; 7.2.4 The election by RCTC upon six months advance written notice to Caltrans; or 7.2.5 The election by RCTC under the circumstances set forth in Section 3.2.3 (c). 7.3 Default by Caltrans. The following shall constitute a default by Caltrans: 7.3.1 Caltrans refuses or fails to supply sufficient personnel or equipment to perform the Maintenance Services in accordance with the terms of this FMA or otherwise fails to provide all Maintenance Services as required by this FMA; 7.3.2 Caltrans repeatedly, persistently or chronically fails to perform the Maintenance Services in accordance with the terms of this FMA; or 7.3.3 Caltrans materially breaches any other provision of this FMA. For the purposes of this FMA, a material breach shall include any material failure by Caltrans to perform the Maintenance Services in accordance with the Manual. 7.4 Default by RCTC. RCTC shall be in default under this FMA if it fails to pay within forty-five (45) days after receipt, any invoice issued under Section 7 of this FMA not subject to dispute resolution procedures. 7.5 Cure of Default. 7.5.1 RCTC shall notify Caltrans in writing of any alleged default by Caltrans pursuant to Sections 8.3.1 or 8.3.3. Caltrans shall have thirty (30) days to respond to such notice. If Caltrans fails to commence or fails to diligently continue to cure any default pursuant to Sections 8.3.1 or 8.3.3 within such cure period, RCTC may, terminate this FMA upon fifteen (15) days written notice to Caltrans. In the event of such termination, RCTC shall reimburse Caltrans only for those services performed prior to such termination. 7.5.2 Caltrans shall notify RCTC in writing of any alleged default by RCTC. Upon receipt of such notice: (a) RCTC shall have thirty (30) days to respond to such notice. If RCTC fails to commence or fails to diligently continue to cure any default within such cure period, Caltrans may terminate this FMA upon fifteen (15) days written notice to RCTC. In the event of such termination, RCTC shall reimburse Caltrans only for those services performed prior to such termination. 90 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 7.5.3 Termination of this FMA for cause by either Party, as permitted above, shall not prejudice any other legal right or remedy of the terminating Party related to the alleged default. 7.6 No Effect on Other Agreements or Permits. Termination of this FMA shall not in any way jeopardize the validity of the TFA, Section 129 Agreement, or any other agreements to which RCTC and Caltrans are Parties or any permits issued by Caltrans to RCTC. To the extent there are any inconsistencies or conflicts between this FMA and the agreements identified herein, the FMA shall be secondary to the terms of those agreements and the terms of those agreements shall prevail. 8. Assignment RCTC may, without consent of Caltrans, grant to any of RCTC’s lenders or any Leasehold Mortgagee a security interest in all of its right, title and interest in this FMA. Assignment for other reasons by either Party shall be subject to approval by the other Party, which approval shall not unreasonably be withheld or delayed. In the event any of RCTC’s lenders or Leasehold Mortgagee requires (i) verification of the existence and status of this FMA, (ii) execution of documents effecting or perfecting a lender's or Leasehold Mortgagee's security interest in this FMA, or (iii) amendment or modification of this FMA in a manner which does not involve a material change of benefits to or burdens on Caltrans, Caltrans will promptly cooperate with all such requirements. 9. Indemnification and Liability 9.1 Neither Caltrans 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 RCTC and/or its employees, agents or contractors under or in connection with any work, authority or jurisdiction conferred upon RCTC under this FMA. It is understood and agreed that RCTC, to the extent permitted by law, will defend, indemnify and save harmless Caltrans and all its officers and employees from all claims, suits or actions of every name, kind and description including but not limited to, tortious, contractual, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by RCTC and/or its employees, agents or contractors under this MA. 9.2 Neither RCTC 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 Caltrans and/or its employees, agents or contractors under or in connection with any work, authority or jurisdiction conferred upon Caltrans under this FMA. It is understood and agreed that, Caltrans, to the extent permitted by law, will defend, indemnify and save harmless RCTC and all its officers and employees from all claims, suits or actions of every name, kind and description including but not limited to, tortious, contractual, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by Caltrans and/or its employees, agents or contractors under this MA. 91 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 10. Work Stoppages and Reduction 10.1 Work Stoppages. In the event of a work stoppage or other job action by Caltrans personnel, all Maintenance Services and other functions required to be performed pursuant to this FMA shall be provided at the earliest practical time by any reasonably available Caltrans resources. If Caltrans is unable to provide such service, RCTC may temporarily suspend this FMA for the duration of such work stoppage and obtain such services from third parties as permitted herein and by the TFA. 10.2 Reduction of Maintenance Services. If as a result of Force Majeure, or for any other reason, RCTC is unable to operate the Toll Facility, at RCTC's option, upon written notice from RCTC, Caltrans shall immediately reduce, to the extent reasonably requested by RCTC and consistent with the Manual and the TFA, its Maintenance Services on the Toll Facility until further notice from RCTC. If as a result of Force Majeure, or for any other reason, Caltrans is unable to maintain the Toll Facility, at Caltrans’ option, upon written notice from Caltrans, Caltrans shall immediately reduce is Maintenance Services on the Toll Facility until further notice from Caltrans. 11. Miscellaneous 11.1 Integration. This FMA, the TFA and Section 129 Agreement embody the entire and integrated understanding between Caltrans and RCTC regarding the matters expressly addressed herein and supersede all prior negotiations, representations, proposals or understandings, either written or oral, with respect to such matters expressly addressed herein. 11.2 No Third-Party Beneficiary. Nothing contained in this FMA shall create a contractual relationship with or a cause of action in favor of a third party (other than RCTC’s lenders and Leasehold Mortgagees, to the extent such parties are granted rights hereunder pursuant to Section 9) against Caltrans and/or RCTC. 11.3 Headings. The titles and headings of the sections of this MA have been inserted for convenience of reference only and are not to be considered parts hereof, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of this FMA or any provision herein or in ascertaining intent, if any question of intent should arise. 11.4 Interpretation. Unless the context clearly requires otherwise, words of masculine gender shall be construed to include the correlative words of feminine and neuter genders and vice versa, and words of singular number shall be construed to include correlative words of plural number and vice versa. Words importing persons include firms, agencies. associations and corporations. The words "herein,' "hereby," "hereof" and "hereunder" and words of similar import refer to this FMA as a whole. 11.5 FMA to be Taken as a Whole. The Parties hereby acknowledge and agree that the constituent terms and provisions of this FMA are not intended to be implemented or construed 92 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 in isolation, but rather comprise and are intended to be implemented and construed with in the context of this FMA in its entirety. Accordingly, the Parties hereby covenant and agree, to the fullest extent permitted by the Laws and Regulations, to abide by and not to challenge or dispute the validity or enforceability of any of the terms or conditions of this FMA. 11.6 Severability and Renegotiation. If any term of this FMA is found to be invalid or unenforceable by a court having proper jurisdiction, such finding shall not invalidate the remaining portions hereof, but such provisions shall remain in full force and effect; provided however, that the Parties shall immediately renegotiate, reasonably and in good faith, the term found to be invalid, as well as any other terms as necessary to achieve as nearly as possible the Parties' original contractual intent as evidenced hereby and in a manner which protects and preserves the Parties' procedural, economic and remedial expectations as set forth herein. 11.7 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. 11.8 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 FMA. 11.9 Multiple Originals. Multiple copies of this FMA may be executed, and any such executed copy shall be deemed an original for all purposes. 11.10 Governing Law. This FMA shall be governed by and construed in accordance with the laws of the State of California. Venue shall be in the California Superior Court for San Bernardino County. 11.11 Relationship to TFA. Nothing in this FMA shall have any effect upon the duties and obligations of Caltrans and RCTC with respect to each other as established under the TFA or the Section 129 Agreement. 11.12 Notices. All communication regarding the Maintenance Services provided under this FMA shall be sent as listed below, or to such other person or address as either party shall specify to the other party in writing: California Department of Transportation District 8 Attn: Deputy Director of Maintenance Riverside County Transportation Commission Attn: 93 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255.9 With a copy to: With a copy to: Department of Transportation Legal Division 4050 Taylor Street M.S. – 130 San Diego, CA 92110 Attn: Deputy Chief Counsel Counsel. 11.13 Representations and Warranties of RCTC. RCTC hereby represents and warrants that it has the authority and is duly organized and licensed with the power and authority, in conformance with all of its rules and restrictions, to execute, deliver and perform this MA, and the terms and conditions hereof are valid and binding obligations of RCTC, and the execution and delivery by RCTC of this FMA. RCTC is aware of no principle of law which would render unenforceable or illegal, as to RCTC, any provision of this FMA. To RCTC's best knowledge, there is no litigation or other proceeding pending challenging RCTC's authority to enter into this FMA or to perform this FMA in accordance with its terms and RCTC is in compliance with all applicable Laws and Regulations. Nothing in this FMA shall be construed as requiring RCTC to finance, design, construct or operate the Toll Facility or any component thereof. No further authorization is required on the part of RCTC in order to permit the execution of this FMA. 11.14 Representations and Warranties of Caltrans. Caltrans hereby represents and warrants that it is a department of the State of California, duly organized and existing under the laws and Constitution of the State of California, is authorized by the Enabling Act to execute and deliver this FMA and to perform its obligations hereunder and thereunder, and by proper action has duly authorized the execution, delivery and performance of this FMA. The terms and conditions hereof are valid and binding obligations of Caltrans, and the execution and delivery by Caltrans of this FMA does not conflict with or constitute a breach of or default under the Enabling Act or any other law or regulation applicable to Caltrans, and to the best of Caltrans' 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 FMA. To Caltrans' best knowledge, there is no litigation or other proceeding pending challenging Caltrans` authority to enter into this FMA or to perform this FMA in accordance with its terms and Caltrans is in compliance with all applicable Laws and Regulations. The representations and warranties contained herein are, as of the date of execution hereof, accurate and complete and shall survive the term of this FMA. No further authorizations are required to be obtained by or on the part of Caltrans in order to permit the execution of this FMA. [Signatures on following page] 94 SR 91 Median Improvements Maintenance Services Agreement 17336.02100\22199255. 9 SIGNATURE PAGE TO MAINTENANCE SERVICES AGREEMENT STATE OF CALIFORNIA RIVERSIDE COUNTY DEPARTMENT OF TRANSPORTATION TRANSPORTATION COMMISSION By: By: Anne Mayer, Executive Director Title: _________________________ APPROVED AS TO FORM AND APPROVED AS TO FORM: PROCEDURE: By: Glenn B. Mueller Legal Counsel Assistant Chief Counsel Best, Best & Krieger LLP Department of Transportation CERTIFIED AS TO FUNDS: By: _____________________________ [NAME] [TITLE] 95 BLANK Exhibit A Caltrans Roadway Maintenance Work Plan Time period Routine Maintenance (Every 3rd Sunday) Labor #Employees Hours OT Rate Avg OT Pay Per Hour Total Initial 18 Month (25 Closures) Closure Crew required 6 8 1.5 40 $1,920.00 $48,000.00 Delineator Repair 5 8 1.5 40 $1,600.00 $40,000.00 Sweeping 2 8 1.5 40 $640.00 $16,000.00 Graffiti 1 8 1.5 40 $320.00 $8,000.00 MAZEEP/CHP 3 8 UKN UKN Prep Crew 3 4 1.5 40 $480.00 $12,000.00 Admin/Meetings Etc 2 2 40 $160.00 $4,000.00 Labor Total $5,120.00 $128,000.00 Equipment Usage Rate/Hr Total Cone Body 8 3.34 $26.72 $668.00 Dump Body 8 4.19 $33.52 $838.00 Dump Body 8 4.19 $33.52 $838.00 Cargo Body 8 3.93 $31.44 $786.00 Utility Body 8 2.94 $23.52 $588.00 Sign Seq Trailer 8 2.97 $23.76 $594.00 Sign Seq Trailer 8 2.97 $23.76 $594.00 Sign CMS Trailer 8 3.12 $24.96 $624.00 Pickup 1/2 Ton 8 2.56 $25.60 $640.00 Sweeper High Dump 8 13.87 $110.96 $2,774.00 Cargo Body/Hoist 8 4.23 $33.84 $846.00 Front End Loader 8 5.7 $45.60 $1,140.00 $437.20 $10,930.00 Material QTY/Est Rate Total Bituminous 4 Boxes $24.35 $24.35 $438.30 Graffiti Paint 5 Gallon $31.50 $31.50 $567.00 Bituminous Machine Supplies $3,500.00 $3,500.00 $3,500.00 $55.85 $4,505.30 Urgent Response/Call Out Estimated occurrence per month Min Hours #Employees Rate Total Est Hours Total cost 18 Mo Period Pothole/Spall Repair Labor 4 3 $40.00 12 $480 $8,640.00 Equipment Utility Body 4 $2.94 4 $11.76 $211.68 Dump Body 4 $4.19 4 $16.76 $301.68 Material Bag Mix X 2 $20.00 $40.00 $720.00 Sub-Total $549 $9,873.36 Damaged/Displaced Barrier Labor 4 4 $40.00 16 $640 $11,520.00 Equipment Utility Body 4 $2.94 4 $11.76 $211.68 Dump Body 4 $4.19 4 $16.76 $301.68 Front End Loader 4 $5.70 4 $22.80 $410.40 Material Traffix/Unknown Est to Replace $15,000.00 $15,000.00 Sub-Total $691 $27,443.76 Clear Drain/Flood Labor 4 4 $40.00 16 $640 $11,520.00 Equipment Total Material Total ATTACHMENT 2 96 Exhibit A Caltrans Roadway Maintenance Work Plan Equipment Utility Body 4 $2.94 4 $11.76 $211.68 Dump Body 4 $4.19 4 $16.76 $301.68 Vactor Truck 4 $12.18 4 $48.72 $876.96 Material None $0.00 $0 $0.00 Sub-Total $717.24 $12,910.32 Spill Cleanup Labor 4 6 $40.00 24 $960 $17,280.00 Equipment Utility Body 4 $2.94 4 $11.76 $211.68 Dump Body 4 $4.19 4 $16.76 $301.68 Cone Body 4 $3.34 4 $13.36 $240.48 CMS Trailer 4 $3.12 4 $12.48 $224.64 Sign Trailer 4 $2.97 4 $12 $213.84 Sweeper 4 $13.87 4 $55.48 $998.64 Sub-Total $1,082 $19,470.96 Total Projected Workplan/Budget $143,435.30 $9,873.36 $27,443.76 $12,910.32 $19,470.96 $213,133.70 $31,970.06 $245,103.76 $13,616.88 $81,701.25 $163,402.50 (Estimates only) costs can vary based on location of incident, incident type and employees pay rate… CHP MAZEEP Contract Costs Per Hour/Mile 1 Officer $86.34 Sergeant $105.02 Mileage $0.86 Caltrans Class Pay Rates OT Rate Per Hour Highway Maint/Lndsc Worker $29.19 Equipment Operator 1 $33.60 Equipment Operator 2 $36.77 Maintenance Leadworker $40.18 Maintenance Supervisor $43.81 Maintenance Area Superintendent $47.00 $38.43 15% contingency Total Routine Maintenance Pothole/Spall Damaged Displaced Barrier Drain/Flood Spill Cleanup Sub-total Routine Maint/Response 97 AGENDA ITEM 8E Agenda Item 8E RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement with Mobile Relay Associates, LLC for Freeway Service Patrol Digital Radio System, Equipment, and Services WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Award Agreement No. 17-45-022-00 to Mobile Relay Associates, LLC (MRA) for a Freeway Service Patrol (FSP) digital radio system, equipment, and services for a three-year term and two one-year options to extend the agreement, in an amount not to exceed $150,000; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, 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 service patrol along designated freeway segments to relieve freeway congestion and facilitate rapid removal of disabled vehicles and those involved in minor accidents on local freeways. The local CHP division 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 safe and effective FSP program operations. The FSP program relies heavily on the use of a radio system to transmit communications between CHP and FSP operators. Prior to 2012, FSP radio communications were made through an analog radio system. With deteriorating coverage and reliability of that system, the Commission and the San Bernardino Associated Governments (SANBAG) identified the solution to the problem as implementing a digital radio system. As such, in April 2012 the Commission approved entering into an agreement with Lucky’s Two-Way Radios (Lucky’s) to provide a comprehensive digital radio solution for the FSP program. Overall, for the past four years, the Lucky’s digital radio 98 Agenda Item 8E system has met the FSP program’s needs. One drawback to the Lucky’s contract has been the need to secure a separate purchase order for radio installation, de-installation, and repair. This work has been performed by Radio Communication Service. The Commission’s agreement with Lucky’s is set to expire at the end of this fiscal year and SANBAG’s agreement with Lucky’s expires in October 2016. Therefore, Commission and SANBAG staff have been working jointly on a procurement for the FSP programs in the two counties to jointly continue utilizing a digital radio system. DISCUSSION: The Commission and SANBAG issued a joint request for proposals (RFP) seeking a single consultant to provide a digital radio system and equipment for the FSP program. The purpose of the RFP was to seek proposals from qualified firms to provide reliable communications between FSP drivers and CHP dispatch and supervision in field operations within the counties of Riverside and San Bernardino. Each agency is entering into a separate agreement with the successful proposer in accordance with the respective approval processes. SANBAG and Commission staff determined the weighted factor method of source selection to be the most appropriate for this procurement, as it allows the Commission to identify the most advantageous, or best-value, proposal with price and other factors considered. Non-price elements of the evaluation criteria included qualifications of the firm, staffing and project organization, and work plan as set forth under the terms of the RFP. On June 14, 2016, SANBAG released a joint RFP (16-1001521) for a FSP program digital radio system, equipment, and services. Utilizing SANBAG’s PlanetBids site, 59 vendors were notified of the RFP and 13 firms (3 located in the Inland Empire) downloaded the RFP. SANBAG held a pre-bid conference on June 21 and all requests for clarifications were due on June 22. Three bids were received prior to the July 7 deadline. The three proposers were Lucky’s (Van Nuys), Bearcom Wireless Worldwide (Dallas, Texas; local office in Riverside), and MRA (Paramount). Utilizing the evaluation criteria set forth in the RFP, all three firms were evaluated and scored by an evaluation committee comprised of Commission staff, SANBAG, and CHP. Following the technical evaluation of the proposals, the evaluation committee elected to invite all three firms to the interview phase. During this phase, the evaluation criteria was based on interviews and equipment testing. Interviews were conducted on July 19 at the CHP Traffic Management Center and subsequently, each firm was given an opportunity to demonstrate its radio system’s capabilities by providing equipment for testing. As a result of the completion of the evaluation process, the evaluation committee recommends contract award to MRA, as this firm earned the highest total evaluation score. 99 Agenda Item 8E The final ranking and total five-year contract value for each firm is listed below: Firm Contract Value Mobile Relay Associates, LLC $ 150,000 Bearcom Wireless Worldwide $ 123,545 Lucky’s Two-Way Radios $ 132,567 Although MRA has the highest contract value, staff believes it offers the best-value to the Commission. Because of the importance of having a high functioning, reliable radio system for communications, the testing portion of the evaluation process was given significant importance. MRA had minimal places throughout the two counties where radio coverage was irregular. Testing of the other two proposers’ systems indicated significant gaps in the necessary service areas as identified in the scope of work. RECOMMENDATION: Based on the information provided in this report, staff recommends the Commission approve Agreement No. 17-45-022-00 with MRA for a three-year term, and two one-year options to extend the agreement, for an amount not to exceed $150,000. Upon approval of the agreement with MRA, implementation is scheduled for October 17, 2016. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 25,000 $ 125,000 Source of Funds: State of California, SAFE Contribution from Department of Motor Vehicle Fees Budget Adjustment: No N/A GL/Project Accounting No.: 002173 81016 00000 0000 201 45 81002 Fiscal Procedures Approved: Date: 09/13/2016 Attachment: Agreement No. 17-45-022-00 100 17336.00013\29223252.1 Agreement No. 17-45-022-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR LEASE OF ULTRA HIGH FREQUENCY MOBILE RELAY STATIONS, EQUIPMENT AND MAINTENANCE SERVICES WITH MOBILE RELAY ASSOCIATES, LLC 1. PARTIES AND DATE. This Agreement is made and entered into this day of , 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and MOBILE RELAY ASSOCIATES, LLC ("Consultant"), a LIMITED LIABILITY CORPORATION. 2. RECITALS. 2.1 Consultant desires (i) to provide for the lease of Ultra High Frequency (UHF) mobile relay station(s) and associated equipment, and to ensure queue priority for Commission’s use thereof; (ii) to provide, program and install mobile radios and related equipment; and (iii) to provide maintenance services required by Commission, all on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing the foregoing services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to provide the UHF mobile relay station(s) and related equipment; to provide, program and install the mobile radios and other equipment; and to render maintenance and related services for the Freeway Service Patrol Digital Radio System Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission the lease of the UHF mobile relay station(s), all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately meet the requirements contained in this Agreement, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 101 2 17336.00013\29223252.1 3.2 Term. The term of this Agreement shall be from the date first specified above to ________________, unless earlier terminated as provided herein. The Commission, at its sole discretion, may extend this Agreement for two (2) additional single year terms. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative 102 3 17336.00013\29223252.1 for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 103 4 17336.00013\29223252.1 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 Professional Liability. [___INCLUDE ONLY IF APPLICABLE - DELETE OTHERWISE___] Consultant shall procure and maintain, and require its sub- consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 [___INCREASE IF NECESSARY - OTHERWISE LEAVE AS IS AND DELETE THIS NOTE___] per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. 104 5 17336.00013\29223252.1 The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 105 6 17336.00013\29223252.1 (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. 106 7 17336.00013\29223252.1 (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage 107 8 17336.00013\29223252.1 required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and 108 9 17336.00013\29223252.1 pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: 109 10 17336.00013\29223252.1 CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of 110 11 17336.00013\29223252.1 Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of 111 12 17336.00013\29223252.1 this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorney’s fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 112 13 17336.00013\29223252.1 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex 113 14 17336.00013\29223252.1 or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. Effective March 1, 2015, if the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. If applicable, Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or 114 15 17336.00013\29223252.1 trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight- Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited 115 16 17336.00013\29223252.1 to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 116 17 17336.00013\29223252.1 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR LEASE OF ULTRA HIGH FREQUENCY MOBILE RELAY STATIONS, EQUIPMENT AND MAINTENANCE SERVICES WITH MOBILE RELAY ASSOCIATES, LLC IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONSULTANT TRANSPORTATION COMMISSION MOBILE RELAY ASSOCIATES, LLC By: _________________________ By: ____________________________ Scott Matas Signature Chair __________________________ Name __________________________ Title Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel * A corporation requires the signatures of two corporate officers. One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation. If the above persons are not the intended signators, evidence of signature authority shall be provided to the Commission. 117 A-1 17336.00013\29223252.1 EXHIBIT "A" SCOPE OF SERVICES PURPOSE: San Bernardino Associated Governments (SANBAG) in conjunction with the Riverside County Transportation Commission (RCTC), collectively the “Agencies” and each an “AGENCY”, are seeking an experienced and qualified firm (“CONSULTANT”) to provide the lease of an Ultra High Frequency (UHF) mobile relay station(s). The mobile relay station(s) shall provide the proper radio communications equipment for the AGENCIES Inland Empire Freeway Service Patrol Program. The service and equipment is to be used by the AGENCIES’ Freeway Service Patrol Program tow truck contractors and the California Highway Patrol (CHP). The mobile relay station equipment consists of each site, its frequencies, repeaters, wiring, back-up generator, battery system, and power sources to keep the site online in a power outage; and any other required equipment parts related to each site. CONSULTANT guarantees that said mobile relay station equipment provides the radio coverage needed as identified in Section G of this Scope of Work. CONSULTANT shall also provide the compatible equipment (mobile and portable) radio devices and install them into the FSP Trucks and CHP vehicles as outlined in the scope of work. Current equipment being utilized in each of the tow trucks includes the Kenwood Nexedge VHF/UHF Digital & FM Mobile Radio model NX-800H. Portable radios being utilized are Kenwood Nexedge VHF/UHF Digital & FM Portable Radio model NX-300. Contractor is to provide both mobile and portable radios with similar specifications. Currently six (6) channels are in use and all radios in both counties must have access to all channels: 1. RCTC – SANTIAGO 2. RCTC – SUNSET 3. RCTC – SIERRA 4. SANBAG – SUNSET 5. SANBAG – SANTIAGO 6. SANBAG - CAJON In the trunking system, AGENCIES require the highest queue of any user of the mobile relay station, so that AGENCIES shall have priority access at all times. 118 A-2 17336.00013\29223252.1 “Busy-out” is defined in this scope of work as a situation where a catastrophic event or any other event occurs that causes all radio channels to become extremely busy, and busy signal is reached. Due to the fact that this service shall be used by law enforcement (California Highway Patrol) for a safety program (Freeway Service Patrol), it is essential that the AGENCIES not reach a “busy-out” signal. CONSULTANT shall provide the highest queue priority on the NEXEDGE Digital Trunking system. CONSULTANT has advised AGENCIES that they are currently the only Level 2 client on CONSULTANT radio system. CONSULTANT shall keep AGENCIES on the Level 2 priority and notify AGENCIES immediately in writing if there are plans that would impact the AGENCIES exclusive Level 2 priority. CONSULTANT to provide AGENCIES a minimum fifteen (15 days) notice in writing prior to the addition of another Level 2 priority customer coming on board the system. CONSULTANT shall monitor channel utilization and evaluate when AGENCIES require additional channels. CONSULTANT shall add more channels upon notification from AGENCIES of interference. If AGENCIES notify MRA of "interference" or "Call Blocking" MRA will investigate and discuss findings with AGENCIES before any action is agreed upon. CONSULTANT and AGENCIES will communicate about radio operations, number of channels, any possible communication access delays experienced by FSP Drivers and/or CHP no less than on a quarterly basis. If the FREQUENCY OF RADIO ACCESS DELAYS EXPERIENCED BY THE FSP PROGRAM (DRIVERS/CHP BEING ABLE TO ACCESS THE SYSTEM) IMPACTS THE PROGRAM NEGATIVELY, THEN CONSULTANT WILL ADDRESS AND ADD ADDITIONAL CHANNELS TO RESOLVE THE CONCERN WITHIN THREE (3) MONTHS OF THE NEGATIVE IMPACT BEING INDENTIFIED BY AGENCIES and MRA. The agencies will give formal notice of the need of additional channel(s) for improved connectivity. Should CONSULTANT not have made improvement within 90 days from the date of the formal notice, AGENCIES shall follow their formal procedures for the termination clause of the agreement. CONSULTANT shall: A. Initial Testing of the system A.1.1. Provide testing equipment for AGENCIES to utilize for the testing period to ensure quality of radio coverage meeting the areas identified in section G. CONSULTANT shall be prepared to provide AGENCIES equipment to test 119 A-3 17336.00013\29223252.1 coverage starting July 8, 2016 through August 5th. AGENCIES shall provide 4 portable and 2 mobile radios for testing. B. Configure/Setup base station/ Tow Truck and CHP vehicle installations B.1.1. CONSULTANT contract start date is expected to be awarded on October 6, 2016, the start of use of the radio frequency(s) is expected to be on 10/26/2016. B.1.2. CONSULTANT shall review the Inland Empire Transportation Management Center (IE TMC) base station. CONSULTANT shall ensure that proposed radios are compatible with the current base station and the existing tone remote adapter. B.1.3. CONSULTANT shall conduct a site visit at each of the AGENCIES tow operator’s location to evaluate existing vehicles in order to determine equipment, parts and materials that may be needed for installation. The evaluation will take place at 5 different locations and shall be conducted between October 3, 2016 and October 8, 2016. Tow Truck evaluations shall take place between the hours of 8:00 a.m. and 2:00 p.m. Monday through Friday. AGENCIES designated program manager for this contract shall set up official dates and times with CONSULTANT. B.1.4. CONSULTANT shall determine if NEXEDGE or Motorola MOTOTURBO or other radios are used. If NEXEDGE, CONSULTANT shall conduct installation between October 15, 2015 and October 25, 2016 between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. AGENCIES designated program manager for this contract shall set up official dates and times with CONSULTANT. Installed radios shall be programmed to current existing frequency and will be re-programmed on October 26, 2016, as described in section B.1.4.1. If consultant uses Motorola MOTOTURBO or other radio brand, CONSULTANT will need to have all radios pre-programed and ready for radio swapped as described in section B.1.4.2. B.1.4.1. If CONSULTANT has deemed that all tow truck wiring is acceptable; on October 26, 2016 between 7:00 a.m. and 2:00 p.m. CONSULTANT shall be responsible for re-programming new mobile radios in sixty (60) tow trucks, (5) CHP vehicles and two (2) radios at Inland Empire Transportation Management Center (TMC) located at 120 A-4 17336.00013\29223252.1 13892 Victoria Street, Fontana, CA 92336 (if using NEXEDGE). Primary FSP tow trucks shall be programmed on this day at a minimum. All back-up units not programmed shall be done Thursday, October 27, 2016 at a time and place designated by AGENCIES program managers. B.1.4.2. If CONSULTANT is using Motorola MOTOTURBO or other type of radio which shall require replacement of wiring, CONSULTANT shall be prepared to install all radios on October 26, 2016 between the hours of 7:00 a.m. and 2:00 p.m. CONSULTANT shall be responsible for installing new mobile radios in sixty (60) tow trucks, (5) CHP vehicles and two (2) radios at Inland Empire Transportation Management Center (TMC) located at 13892 Victoria Street, Fontana, CA 92336 (if using NEXEDGE). Primary FSP tow trucks shall be programmed on this day at a minimum. All back-up units not programmed shall be done Thursday, October 27, 2016 at a time and place designated by AGENCIES program managers. B.1.5. CONSULTANT shall be responsible for providing and programming sixty (60) tow truck mobile radios, five (5) CHP vehicle mobile radios, six (6) portable radios for CHP, and two (2) mobile radios for CHP TMC base station. The breakdown of radio units needed per county is as follows: 1. RCTC: 24 primary tow truck mobile radios, 10 back up tow truck mobile radios, 2.5 CHP vehicle mobile radios, and 1 base station mobile radio for a total of 37.5 mobile radio units needed. 2. RCTC will also purchase three (3) of the portable radios for CHP 3. SANBAG: 17 primary tow truck mobile radios, 9 back up tow truck mobile radios, 2.5 CHP vehicle mobile radios, and 1 base station mobile radio for a total of 29.5 mobile radio units needed. 4. SANBAG will also purchase three (3) of the portable radios for CHP 121 A-5 17336.00013\29223252.1 C. Maintenance to System and written correspondence C.1.1. Notification Procedures regarding Maintenance during the Operations of the FSP Program, CONSUTLANT shall provide AGENCIES email correspondence of any planned or scheduled maintenance to be performed that will impact FSP radio operations. Notification shall be at least one (1) business day prior to the scheduled maintenance. CONSULTANT shall notify the AGENCIES via text and/or email (list to be provided) any time a technician visits a site or is doing behind the scenes maintenance activity.. Even though the expectation is that there will be no impact on FSP radio operations (maintenance tasks being performed behind the scenes), the CONSULTANT will notify those on the email/text list provided prior to maintenance work being started. . C.1.2. C.1.3. CONSULTANT shall notify AGENCIES of unplanned maintenance via email correspondence, AND via text message within 30 minutes of knowledge of the outage. AGENCIES will provide a list of email addresses to email and list of phone numbers in which the CONSULTANT is to text. C.1.4. CONSULTANT shall complete maintenance outside of FSP Hours of operations, as described in section F of this scope of work. D. Equipment maintenance D.1.1. CONSULTANT shall have at minimum two (2) technicians on-call that can assist with radio and equipment troubleshooting, repair on FSP tow trucks and CHP vehicles and base station and IETMC equipment Technicians shall be available during operational hours of FSP, including construction and toll road FSP hours. D.1.2. CONSULTANT technicians shall be qualified to perform radio installations and repair radio set-up equipment (outside speakers, mics, brackets, wiring, etc.) as necessary. The radios themselves will be sent to the shop by AGENCIES for repairs when necessary. D.1.3. CONSULTANT shall provide technicians or staff qualified to repair any mobile relay station failures, and IE TMC base station related issues. 122 A-6 17336.00013\29223252.1 Response time shall be four (4) hours and repair must be done within twenty- four (24) hours from the moment AGENCIES contact CONSULTANT about issue. D.1.4. CONSULTANT shall provide technicians or staff qualified to repair any IE TMC base station related issues. If the issue lies with the base station connections, CONSULTANT shall work with Inland Empire Transportation Management Center staff to determine which party will make the repairs. Response time shall be four (4) hours or less and repair must be done within twenty-four (24) hours from the moment AGENCIES contact CONSULTANT about issue. If the issue lies with the base station radio, AGENCIES will send the radio to the CONSULTANT’S shop for repairs. D.1.5. CONSULTANT shall provide contact information for their technicians to be reached on an immediate basis during the hours described in section D1.1. CONSULTANT shall provide routine check of the radio units, IE TMC base station, and all mobile relay station equipment (antennas, backup generators, etc.) on a bi-annual basis. Agencies will arrange dates with the CONTRACTOR. E. Additions and Enhancements Provide AGENCIES requested additions and enhancements to the system. If this work constitutes an additional fee, a written estimate from the CONSULTANT and written approval by the contract administrator from the requesting AGENCY is required prior to any work taking place. F. FSP Program hours of operation – NO MAINTENANCE IS TO OCCUR DURING THESE HOURS WITH EXCEPTION OF EMERGENCY REPAIRS TO THE SYSTEM. F.1.1. SANBAG & RCTC Regular FSP Hours of operation Monday through Thursday: AM SHIFT: 5:30a.m. – 9:00a.m. PM SHIFT: 2:30p.m. - 7:00p.m. Friday AM SHIFT: 5:30a.m. – 9:00a.m. PM SHIFT: 12:30p.m. – 7:00p.m. 123 A-7 17336.00013\29223252.1 F.1.2. Construction FSP – From time to time the AGENCIES may participate in providing FSP services within a construction zone. Section G of the scope of work includes those potential areas; however, the hours of operation may vary from project to project. AGENCIES shall notify CONSULTANT of project details as needed. G. Distances at which usable signals shall be transmitted and received by the radio equipment and mobile relay station. At minimum, the following highway segments and a 2-mile radius around the length of these segments shall be covered: Riverside (each segment in both directions): Beat #1 - SR-91 from Orange County line to Lincoln Avenue Beat #2 –SR-91 from Lincoln Avenue to Magnolia Ave and I-15 from Hidden Valley Parkway to Magenolia Avenue Beat #4 –SR-91 from Magnolia Avenue to 60/91/215 Interchange Beat #7 –SR-60 from Milliken Avenue to Main St. Beat #8 –SR-60 from Central Avenue to I-215 at Alessandro Blvd. to SR-60 at Theodore St. Beat #18 –I-215 from Riverside County line to Central Avenue & SR-60 from Main St. to 60/91/215 Interchange Beat #19 –I-215 from Alessandro to Ethanac Rd. Beat #25 –I-15 from Hidden Valley Pkwy. to San Bernardino County line Beat #26 –I-15 from Magnolia Avenue to Indian Truck Trail Potential future segments needed, CONTRACT must have the potential to provide service in this area: • Segment 1: I-215 from Murrieta Hot Springs to Ethanac Road • Segment 2: I-15 from Indian Truck Trail to California Oaks • Segment 3: I-15 from California Oaks to San Diego County line 124 A-8 17336.00013\29223252.1 • Segement 4: I-10 from SR-60/I-10 Interchange to SR-86 at Avenue 50 San Bernardino (each segment in both directions): Beat #9 – I-10 from Indian Hill (Los Angeles County line) to Haven Avenue. Beat #10 –I-10 from Haven Avenue to Sierra Avenue. Beat #11 –I-10 from Sierra Avenue to Waterman Avenue Beat #5 –SR-60 from Reservoir Street (Los Angeles County line) to Milliken Avenue (Riverside County line) Beat #23 –I-15 from Jurupa St. (Riverside County line) to Sierra Avenue. Beat #14 –I-215 from Center St (Riverside County line) to 2nd St. Beat #15 –I-215 from 2nd St. to Devore Rd. Beat #29–. I-10 from Waterman to Yucaipa Blvd. Beat #31 –SR-210 from Baseline Road (LA County line) to Citrus Avenue Potential future segments needed, CONTRACT must have the potential to provide service in this area: • Segment 1: SR-210 from Citrus Avenue to I-10 • Segment 2: I-15 from Sierra Avenue to Bear Valley Road • Segment 3: SR-71 from Riverside County line to Los Angeles County line 125 A-9 17336.00013\29223252.1 126 B-1 17336.00013\29223252.1 EXHIBIT "B" SCHEDULE OF SERVICES [___INSERT___] 127 C-1 17336.00013\29223252.1 EXHIBIT "C" COMPENSATION [ATTACHED BEHIND THIS PAGE] 128 AGENDA ITEM 9 Agenda Item 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Michael Blomquist, Toll Program Director THROUGH: Anne Mayer, Executive Director SUBJECT: RCTC 91 Express Lanes Opening Day Toll Rates WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to receive and file the schedule of opening day toll rates for the RCTC 91 Express Lanes. BACKGROUND INFORMATION AND DISCUSSION: In June 2012, the Commission adopted the RCTC 91 Express Lanes toll policy (toll policy) for use in securing the project financing and development of the toll collection systems to be used on the RCTC 91 Express Lanes. The toll policy included eight goals, the establishment of discounts for high occupancy vehicles with three or more persons (HOV-3+), the use of variable pricing that established toll rates based on actual congestion levels in the corridor, and the methodology for adjusting toll rates based on traffic volumes. At the time of the toll policy adoption, staff indicated it would return prior to the RCTC 91 Express Lanes opening with an update to the toll schedule based on current corridor traffic conditions. The opening of the RCTC 91 Express Lanes is anticipated to occur in early 2017. As part of Stantec Consulting Services, Inc.’s (Stantec) ongoing services, it evaluated the current corridor traffic conditions and proposed opening day toll rates as provided in Tables 1 and 2 of Attachment 1. Proposed tolls for the first month and first year of operation are based on an hour by hour review of traffic volume and congestion levels on the RCTC 91 Express Lanes corridor for both weekdays and weekends. The traffic volume modeling incorporates views of future employment, population, and households; roadway improvements in and around the corridor; projected corridor volume on an hour by hour basis; variations in traffic by direction and day of week; and HOV-3+ traffic volumes. The use of the RCTC 91 Express Lanes was forecasted based on historical relationships observed on the existing 91 Express Lanes in Orange County. Once hourly traffic volumes are projected, the concept of traffic and revenue ramp-up is also introduced. Ramp-up is the process of a new toll facility experiencing rapid traffic growth 129 Agenda Item 9 during the early days, months, and years of operation. In the opening days of operation, a large share of motorists may choose to avoid using the new toll facility because they may be unaware that it has opened, are unfamiliar with the benefits of using the new toll facility, or have not yet obtained a toll payment transponder among other factors. As time passes and motorists become more aware of the toll facility’s existence and benefits, traffic grows rapidly before eventually stabilizing. Stantec’s evaluation of opening day traffic and toll rates accounts for the expected ramp-up of the RCTC 91 Express Lanes extension. This modeling process was described in the original investment grade traffic and revenue study (Riverside County 91 Express Lanes Extension Investment Grade Traffic and Revenue Study, dated May 9, 2012) adopted by the Commission at its June 2012 meeting. Since 2012, various changes to traffic levels and economic projections have occurred, and Stantec incorporated these changes into this analysis and opening day toll rate schedule. Table 3 of Attachment 1 provides the project volumes per hour as estimated by Stantec based on its analysis of the current traffic conditions. The initial toll rates are based on a price per mile for each traffic volume per hour range. Table 4 of Attachment 1 provides the traffic volume per hour ranges and associated toll rates. Based on the current traffic conditions and traffic volumes at opening, weekday RCTC 91 Express Lanes traffic in off peak hours are projected to fall below the 800 vehicle per hour level. Non-peak hour opening toll rates are being proposed at the minimum toll rates of $1.40 for trips to and from the Riverside/Orange county line (County Line) and McKinley Street (McKinley) and $1.80 for trips to and from the County Line and Interstate 15 South. Tables 1 and 2 of Attachment 1 provide the opening day toll rate schedule by hour of the day, day of the week, direction and trip length (County Line to/from McKinley and County Line to/from I-15 South). Staff is presenting these opening day toll rates for information consistent with the toll policy (Attachment 2). It is anticipated the opening day toll rates will require regular adjustments during the first twelve months of operations. Staff will monitor the daily traffic volumes and implement toll rate adjustments according to the toll rate schedule provided in Table 4 as needed. At the point traffic volumes per hour exceed the highest traffic volume range of 3,128 vehicles per hour provided for in Table 4, the toll rate adjustment methodology approved in the toll policy will be used. The rate per mile used in Table 4 and the methodology outlined in the toll policy are consistent with those used by the Orange County Transportation Authority (OCTA) to manage the existing 91 Express Lanes. After the Commission receives and files the opening day toll rates, staff will prepare the RCTC 91 Express Lanes toll rate schedules for posting on the 91expresslanes.com website and create the messages to be posted on the on-road pricing signs. Staff worked with OCTA staff to coordinate the presentation of RCTC toll rates to ensure a consistent message to existing 91 Express Lanes customers. 130 Agenda Item 9 Staff recommends the Committee receive and file the proposed opening day toll rate schedule for the RCTC 91 Express Lanes. There is no fiscal impact related to the receipt of the RCTC 91 Express Lanes opening day toll rates. Attachments: 1) Stantec Memorandum Dated September 8, 2016 Regarding RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information 2) RCTC 91 Express Lanes Toll Policy, Adopted June 7, 2012 131 Memo To: Michael Blomquist, Jennifer Crosson From: Sheldon Mar, Steve Abendschein Riverside County Transportation Commission Stantec Date: September 8, 2016 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information As requested by the Riverside County Transportation Commission (RCTC), Stantec has estimated opening day tolls for the SR 91 Express Lanes extension (RCTC 91 EL) which is expected t o open in early 2017. Tables 1 and 2 show our expected opening day tolls by hour, day of week, direction, and movement (to/from I-15 South, or to/from SR 91 east of I -15). During the opening day and month, RCTC 91 EL traffic from Monday to Friday, shown in Table 3, is expected to be no greater than 1,600 vehicles per hour in the westbound direction, and no greater than 850 vehicles per hour in the eastbound direction. From Monday to Friday during the AM peak period (5-10 AM) tolls for the more heavily traveled westbound direction for the trip from I-15 south of SR 91 would be $2.75 during the earlier and later hours, and $4.95 during the middle of the period (6 -8 AM) when travel demand is greatest. Tolls for the shorter trip from SR 91 westbound ea st of I-15 would be $2.10 during the earlier and later hours of the AM peak period, and $3.85 during the peak two hours from 6 -8 AM. During the PM peak period (3-8 PM) in the eastbound direction , tolls for the trip to I-15 south of SR 91 would be $2.75 from Monday t o Friday, while the shorter trip to/from SR 91 east of I -15 would be priced at $2.10. During off-peak hours or the counter -peak direction during peak hours tolls would be $1.80 to/from I-15 south of SR 91, and $1.40 for the shorter trip to / from east of I -15. During the first 12-months, traffic is expected to increase rapidly, and therefore continual monitoring will be necessary to ensure tolls are set at the appropriate levels. Traffic volumes should be reviewed regularly, and based on this review, tolls should be adjusted as needed. Tolls are assumed to rise as traffic in the express lanes cross various volume thresholds, defined in Table 4. Month 1 traffic is expected to average approximately 50% of fully ramped up level s, while revenue would be approximately 35% of the fully ramped up level. By month 12, traffic and revenue would exceed 80% of fully ramped up levels. These revenue ramp -up percentages correspond to an annual average of 60% of fully ramped up levels. The t oll rates presented in Table 4 are derived from relationships observed on the existing OCTA SR 91 Express Lanes. Rates are comparable to those charged on the existing OCTA SR 91 Express Lanes, adjusting for the level of traffic on the roadway (lower traffi c, lower tolls) and length of each RCTC 91 EL trip. The projection for month 1 and year 1 (full 12-months) tolls are based on an hour by hour review of traffic volume and congestion levels on the RCTC 91 EL corridor, for the various days of the week (weekdays, weekends). The modeling incorporates views of future employment, population, and households, roadway improvements in and around the corridor, projected corridor volume on an hour by hour basis, and variations in traffic by direction and day of week, a nd HOV-3+ traffic volumes. The capture rate of RCTC 91 EL traffic was forecasted based on relationships observed historically on the existing OCTA SR 91 Express Lanes. The concept of traffic and revenue “ramp -up” is also considered. Ramp -up is the process of a new roadway experiencing rapid traffic growth during the opening months and early years of operation. In the opening days of operation, a large share of motorists may choose to avoid using the new roadway because they may be unaware that the new roadw ay has opened, are unaccustomed to using the new road , or have not yet obtained ATTACHMENT 1 132 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 2 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information a toll payment transponder. As time passes, and motorists become more aware of the roadway’s existence and benefits, traffic rapidly grows, and eventually stabilizes. Stantec’s evaluation of opening traffic and toll rates account for the expected ramp -up of the RCTC 91 EL. This modeling process was described in the original investment grade T&R study (Riverside County 91 Express Lanes Extension Investment Grade Traffic and Reven ue Study, dated May 9, 2012). Since 2012, various changes to traffic levels and economic projections have occurred and Stantec has incorporated these changes into this analysis. Table 5 and Figure 5 present an estimated monthly progression of traffic and revenue for the first 12- months. Table 6 and 7 provide detail on how typical weekday (Monday to Thursday) tolls would progress through months 1 to 12. During month 6, a cost -of-living-adjustment (COLA) is expected to be implemented for tolls on the OCTA 91 Express Lanes. We expect that the RCTC 91 EL would also implement a matching COLA increase for tolls. Our analysis assumes that tolls will be increased by 3% (but rounded to the nearest 5 cents) from their levels in the prior month. Prior to the month 6 increase, we expect tolls to be increased 3 months prior. This preceding toll increase would be implemented in response to traffic growth in various hours and days of the week. While the Toll Policy would dictate that tolls for hours increased in month 3 should not be again increased in month 6, we believe that the month 6 toll increase for these hours is justified as the month 3 toll increases are in response to traffic growth during the ramp -up period rather than traffic growth during stabilized traffic conditions. 133 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 3 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Table 1 : Month 1 / Opening Day Tolls – Trip to/from I-15 South Toll Schedule Eastbound Toll Schedule Westbound Riverside Co. Line to I-15 at Ontario I-15 at Ontario to Riverside Co. Line ** Year 2017 $'s ** Year 2017 $'s Sun M Tu W Th F Sat Time Sun Mon Tue Wed Thur Fri Sat Midnight $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 Midnight $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 1:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 1:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 2:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 2:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 3:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 3:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 4:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 4:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 5:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 5:00 AM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 6:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 6:00 AM $1.80 $4.95 $4.95 $4.95 $4.95 $4.95 $1.80 7:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 7:00 AM $1.80 $4.95 $4.95 $4.95 $4.95 $4.95 $1.80 8:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 8:00 AM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 9:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 9:00 AM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 10:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 10:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 11:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 11:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 NOON $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 NOON $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 1:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 1:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 2:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 2:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 3:00 PM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 3:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 4:00 PM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 4:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 5:00 PM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 5:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 6:00 PM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 6:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 7:00 PM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 7:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 8:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 8:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 9:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 9:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 10:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 10:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 11:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 11:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 Riverside 91 Express Lanes Riverside 91 Express Lanes 134 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 4 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Table 2: Month 1 / Opening Day Tolls – Trip to/from SR 91 east of I-15 Toll Schedule Eastbound Toll Schedule Westbound Riverside Co. Line to McKinley Street McKinley Street to Riverside Co. Line ** Year 2017 $'s ** Year 2017 $'s Sun Mon Tue Wed Thur Fri Sat Sun Mon Tue Wed Thur Fri Sat Midnight $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 Midnight $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 1:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 1:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 2:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 2:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 3:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 3:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 4:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 4:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 5:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 5:00 AM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 6:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 6:00 AM $1.40 $3.85 $3.85 $3.85 $3.85 $3.85 $1.40 7:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 7:00 AM $1.40 $3.85 $3.85 $3.85 $3.85 $3.85 $1.40 8:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 8:00 AM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 9:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 9:00 AM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 10:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 10:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 11:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 11:00 AM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 NOON $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 NOON $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 1:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 1:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 2:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 2:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 3:00 PM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 3:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 4:00 PM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 4:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 5:00 PM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 5:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 6:00 PM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 6:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 7:00 PM $1.40 $2.10 $2.10 $2.10 $2.10 $2.10 $1.40 7:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 8:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 8:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 9:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 9:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 10:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 10:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 11:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 11:00 PM $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 $1.40 Riverside 91 Express Lanes Riverside 91 Express Lanes 135 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 5 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Table 3: Month 1 Express Traffic on RCTC 91 EL MONTH 1 Traffic WESTBOUND TRAFFIC EASTBOUND TRAFFIC From To WB M -R WB Fri WB Sat WB Sun EB M -R EB Fri EB Sat EB Sun 12:00 AM 1:00 AM 10 11 12 55 13 17 73 77 1:00 AM 2:00 AM 5 6 8 22 5 7 29 21 2:00 AM 3:00 AM 8 7 7 11 4 7 14 7 3:00 AM 4:00 AM 33 31 13 9 4 4 7 2 4:00 AM 5:00 AM 376 272 46 20 6 7 4 1 5:00 AM 6:00 AM 1,163 1,305 103 29 38 34 8 3 6:00 AM 7:00 AM 1,354 1,593 173 71 106 102 27 10 7:00 AM 8:00 AM 1,491 1,534 306 137 188 160 64 24 8:00 AM 9:00 AM 1,227 887 451 236 199 156 125 54 9:00 AM 10:00 AM 970 780 509 394 163 137 209 97 10:00 AM 11:00 AM 538 608 571 482 136 164 239 130 11:00 AM 12:00 PM 446 507 612 510 148 169 270 170 12:00 PM 1:00 PM 349 458 624 546 189 248 299 196 1:00 PM 2:00 PM 367 460 615 586 227 367 341 213 2:00 PM 3:00 PM 391 466 601 645 475 582 414 236 3:00 PM 4:00 PM 400 525 596 598 682 701 404 258 4:00 PM 5:00 PM 500 624 695 619 811 800 437 268 5:00 PM 6:00 PM 525 666 727 593 808 804 456 282 6:00 PM 7:00 PM 283 529 664 532 797 827 424 285 7:00 PM 8:00 PM 165 249 365 400 709 735 304 241 8:00 PM 9:00 PM 83 138 221 248 271 572 224 222 9:00 PM 10:00 PM 68 107 195 174 198 436 217 163 10:00 PM 11:00 PM 42 74 195 82 111 238 224 85 11:00 PM 12:00 AM 17 35 148 32 37 172 177 32 24-Hour Totals: WB M -R WB Fri WB Sat WB Sun EB M -R EB Fri EB Sat EB Sun 10,811 11,872 8,457 7,031 6,325 7,446 4,990 3,077 136 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 6 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Tolls are assumed to vary according to express lane mainline hourly traffi c thresholds, defined in Table 4. During the ramp -up period, traffic is assumed to be continually monitored and adjusted on a monthly basis. Toll rates will depend on the observed traffic levels in the express lanes. For example, if total traffic in the express lanes, measured separately by hour, day of week, and direction ranges from 0 to 800 vehicles per hour, the toll for the trip either to or from I -15 south would be $1.80, while the toll for traffic starting or ending on the SR 91 mainline east of I -15 would be $1.40. Table 4: Traffic vs. Tolls* Targets Traffic range Toll to/from I-15 South Toll to / from McKinley Toll $ / mile Toll $ / mile 0-800 vph $1.80 $0.21 $1.40 $0.21 801-1600 vph $2.75 $0.31 $2.10 $0.31 1601-2400 vph $4.95 $0.57 $3.85 $0.57 2401-2800 vph $6.35 $0.73 $4.95 $0.73 2801-3128 vph $8.25 $0.95 $6.40 $0.95 *Tolls reflect FY 2017 levels, and cost of living adjustments are assumed to be implemented every fiscal year. Tolls presented in Table 1 and 2 are set based on the traffic levels expected for Month 1(shown in Table 3). Note that for some hours, tolls are set one level above the level that would be dictated by the expected hourly traffic volume during Month 1. For example, for the average Monday to Thursday, from 7 to 8 AM, just under 1,500 vehicles per hour are expected to use the westbound RCTC 91 EL’s, which would correspond to a toll of $2.75 for a trip starting from I -15 south of SR 91. However, the proposed toll is $4.95, matching to the 160 1-2400 vph volume bracket. In this case, the toll is set at the next level because traffic growth is expected to push the toll up to the next level by the next month. Tolls are set at the higher level at opening in an effort to reduce the number of increases required shortly after opening, and throughout the course of the initial 12 months o f operations. The toll changes are not expected to materially impact traffic ramp -up. Following this toll to traffic relationship, month 12 weekday (Monday to Thursday) tolls are expected to increase to just over $6.50 (including COLA increase) during the AM peak hour in the westbound direction, and to just over $5.00 during the PM peak hour in the eastbound direction. The comparison between Month 1 and 12 westbound traffic and tolls is shown in Figures 1 and 2 on the following page. Eastbound traffic and tolls follow a similar progression, and the comparison between eastbound Month 1 and 12 traffic and tolls is shown in Figures 3 and 4. 137 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 7 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Figure 1: Westbound Tolls (Mon-Thurs), Month 1 vs. Month 12 (from I-15 South) Figure 2: Westbound Traffic (Mon-Thurs), Month 1 vs. Month 12 $0.00 $1.00 $2.00 $3.00 $4.00 $5.00 $6.00 $7.00 $8.00 12:00 AM1:00 AM2:00 AM3:00 AM4:00 AM5:00 AM6:00 AM7:00 AM8:00 AM9:00 AM10:00 AM11:00 AM12:00 PM1:00 PM2:00 PM3:00 PM4:00 PM5:00 PM6:00 PM7:00 PM8:00 PM9:00 PM10:00 PM11:00 PMWB, Mo 1 WB Mo 12 0 800 1,600 2,400 3,200 12:00 AM1:00 AM2:00 AM3:00 AM4:00 AM5:00 AM6:00 AM7:00 AM8:00 AM9:00 AM10:00 AM11:00 AM12:00 PM1:00 PM2:00 PM3:00 PM4:00 PM5:00 PM6:00 PM7:00 PM8:00 PM9:00 PM10:00 PM11:00 PMWB, Mo 1 WB Mo 12 138 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 8 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Figure 3: Eastbound Tolls (Mon-Thurs), Month 1 vs. Month 12 (to I-15 South) Figure 4: Eastbound Traffic (Mon-Thurs), Month 1 vs. Month 12 $0.00 $1.00 $2.00 $3.00 $4.00 $5.00 $6.00 $7.00 $8.00 12:00 AM1:00 AM2:00 AM3:00 AM4:00 AM5:00 AM6:00 AM7:00 AM8:00 AM9:00 AM10:00 AM11:00 AM12:00 PM1:00 PM2:00 PM3:00 PM4:00 PM5:00 PM6:00 PM7:00 PM8:00 PM9:00 PM10:00 PM11:00 PMEB mo 1 EB mo 12 0 800 1,600 2,400 3,200 12:00 AM1:00 AM2:00 AM3:00 AM4:00 AM5:00 AM6:00 AM7:00 AM8:00 AM9:00 AM10:00 AM11:00 AM12:00 PM1:00 PM2:00 PM3:00 PM4:00 PM5:00 PM6:00 PM7:00 PM8:00 PM9:00 PM10:00 PM11:00 PMEB mo 1 EB mo 12 139 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 9 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Table 5: Traffic and Revenue by Month, First 12 Months Month # Total Revenue* Total Traffic Mon-Thurs Month 1 $772,000 17,136 Month 2 $926,000 20,470 Month 3 $1,138,000 22,633 Month 4 $1,211,000 24,183 Month 5 $1,190,000 23,771 Month 6 $1,297,000 25,448 Month 7 $1,399,000 27,299 Month 8 $1,385,000 27,062 Month 9 $1,525,000 29,780 Month 10 $1,480,000 29,100 Month 11 $1,462,000 28,650 Month 12 $1,793,000 30,224 Total 12- mo $15,578,000 305,756 *Total revenue presented in FY 2017$'s, FY 2018 COLA adjustment not included Figure 5: Revenue by Direction, First 12 Months $0 $200,000 $400,000 $600,000 $800,000 $1,000,000 $1,200,000 $1,400,000 $1,600,000 $1,800,000 $2,000,000 Month 1Month 2Month 3Month 4Month 5Month 6Month 7Month 8Month 9Month 10Month 11Month 12140 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 10 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Table 6: Monday to Thursday Tolls by Month, 1 to 12, from I-15 South (Westbound) **assumes a 3% COLA increase applied in July 2017 to all hours and days of week Hr Beginning Month 1 Month 2 Month 3 Month 4 Month 5 Month 6* Month 7 Month 8 Month 9 Month 10 Month 11 Month 12 12:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 1:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 2:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 3:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 4:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 5:00 AM $2.75 $2.75 $4.95 $4.95 $4.95 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 6:00 AM $4.95 $4.95 $4.95 $4.95 $4.95 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 7:00 AM $4.95 $4.95 $4.95 $4.95 $4.95 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 $6.55 8:00 AM $2.75 $2.75 $4.95 $4.95 $4.95 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 $5.10 9:00 AM $2.75 $2.75 $2.75 $2.75 $2.75 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 10:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $2.85 11:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 12:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 1:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 2:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 3:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 4:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $2.85 5:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $2.85 6:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 7:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 8:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 9:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 10:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 11:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $4.95 Denotes a toll increase 141 September 8, 2016 Michael Blomquist, Jennifer Crosson Page 11 of 11 Reference: RCTC 91 Express Lanes Extension, Opening Day Tolls and Supporting Information Table 7: Monday to Thursday Tolls by Month, 1 to 12, to I-15 South (Eastbound) **assumes a 3% COLA increase applied in July 2017 to all hours and days of week Hr Beginning Month 1 Month 2 Month 3 Month 4 Month 5 Month 6* Month 7 Month 8 Month 9 Month 10 Month 11 Month 12 12:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 1:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 2:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 3:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 4:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 5:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 6:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 7:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 8:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 9:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 10:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 11:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 12:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 1:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 2:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 3:00 PM $2.75 $2.75 $2.75 $2.75 $2.75 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 4:00 PM $2.75 $2.75 $2.75 $2.75 $2.75 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $5.10 5:00 PM $2.75 $2.75 $2.75 $2.75 $2.75 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $5.10 6:00 PM $2.75 $2.75 $2.75 $2.75 $2.75 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $5.10 7:00 PM $2.75 $2.75 $2.75 $2.75 $2.75 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 $2.85 8:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 9:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 10:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 11:00 PM $1.80 $1.80 $1.80 $1.80 $1.80 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $1.85 $4.95 Denotes a toll increase 142 BLANK ATTACHMENT 2 5/09/2012 RCTC 91 Express Lanes Toll Policy Adopted June 7, 2012 Goals The goals for the RCTC 91 Express Lanes toll policy are to: •Provide a safe, reliable, and predictable commute for 91 Express Lanes customers; •Optimize vehicle throughput at free flow speeds; •Pay debt service and maintain debt service coverage; •Increase average vehicle occupancy; •Balance capacity and demand to serve customers who pay tolls as well as carpoolers with three or more persons who are offered discounted tolls; •Generate sufficient revenue to sustain the financial viability of the RCTC 91 Express Lanes; •Ensure all covenants in the Financing Documents are met; and •Provide net revenues for Riverside Freeway/State Route 91 corridor improvements.1 Definitions Exhibit I, “Definitions”, clarifies terms used in this RCTC 91 Express Lanes Toll Policy. Super Peak Hours The toll adjustment goals for Super Peak hours are to: a) reduce the likelihood of congestion by diverting traffic to other hours with available capacity; b) maintain free flow travel speed in the RCTC 91 Express Lanes; c) maintain travel time savings; d) accommodate projected growth in travel demand and; e) ensure that the toll road generates sufficient revenue to effectively operate the toll lanes and maintain a strong debt service position. 1 As allowable under Senate Bill 1316. 143 05/09/2012 -2- The toll for use of the RCTC 91 Express Lanes during a Super Peak hour shall be determined as follows: 1. Hourly, day, and direction traffic volumes will be continually monitored on a rolling 12 consecutive week period basis. The review period of 12 weeks may be reduced to a shorter period during times of abnormal travel patterns in the State Route 91 corridor. Such abnormal travel patterns shall include, but are not limited to, initial opening of the RCTC 91 Express Lanes and times of construction along State Route 91 or adjacent freeways or feeder routes. 2. Hourly, day, and directional traffic volumes of 3,128 or more will be flagged for further review. 3. If the hourly, day, and directional traffic volume is consistently at a level of Super Peak then the toll rate for that hour, day and direction may be increased. 4. The toll for that hour, day, and direction shall be increased, based on the average vehicle volume of the flagged hour, day, and direction identified per Section 2 above, as follows: (a) if the average flagged vehicle volume is 3,300 or more then the toll shall be increased by $1.00. (b) if the average flagged vehicle volume is between 3,200 and 3,299 then the toll shall be increased by $0.75. (c) if the average flagged vehicle volume is less than 3,200 then the toll shall not be changed. Six months after a toll increase, the most recent 12 consecutive weeks (excluding weeks with a Holiday or a major traffic anomaly caused by an accident or incident) shall be reviewed for the hour, day and direction that the toll was increased. If the traffic volume is less than 2,800 vehicles per hour, day, and direction in six or more of the weeks then the traffic volumes for that hour, day and direction for the 12 consecutive weeks shall be averaged. If the average traffic volume is less than 2,800 then the toll shall be reduced by $0.50 to stimulate demand and encourage RCTC 91 Express Lanes use. RCTC’s Board of Commissioners and customers will be informed of a toll adjustment 10 or more days prior to that toll adjustment becoming effective. Non-Super Peak Hours Non-Super Peak hours will generally remain at fixed levels within a broad band of Levels of Service, increasing annually by the Inflation Factor. 144 05/09/2012 -3- Vehicle volumes increasing from one Level of Service (LOS) to the next, would subject the toll rates to increase; the LOS for the Express Lanes are roughly defined as follows: LOS A 0 to 800 vehicles LOS B 800 to 1600 vehicles LOS C 1600 to 2400 vehicles LOS D 2400 to 2800 vehicles LOS E 2800 to 3100 vehicles Toll rates will be adopted for each LOS reflecting the time savings value to the driver as traffic moves into the next level of congestion. All tolls shall be rounded up or down to the nearest 5-cent increment. Discount Vehicles with three or more persons (HOV3+), zero emission vehicles (ZEVs), motorcycles, disabled plates and disabled veterans are permitted to ride free in the RCTC 91 Express Lanes during most hours. The exception is Monday through Friday 4:00 p.m. to 6:00 p.m. in the eastbound direction when these users pay 50 percent of the toll. The exception that these users pay 50 percent remains in effect until such time as the Orange County Transportation Authority’s (OCTA) adopted toll policy for the 91 Express Lanes results in HOV3+ users using the OCTA 91 Express Lanes riding free all day, every day. It is the intent of RCTC to adjust its toll policy to match the HOV3+ discounts OCTA provides, subject to covenants in the Financing Documents and other financing requirements. Financing Requirements RCTC shall charge and collect tolls that generate enough revenue to maintain the Debt Service Coverage Ratios as required in the Financing Documents and to operate and maintain the RCTC 91 Express Lanes in a safe condition in accordance with all applicable laws and regulations. RCTC recognizes that it must maintain a strong debt service position in order to satisfy the covenants in the Financing Documents. The requirement to maintain Debt Service Coverage Ratios and comply with Financing Document and other financing covenants will supersede the specific policies for setting and modifying tolls and discounts. Holiday Toll Schedules 145 05/09/2012 -4- Holiday toll schedules are identified on Exhibit V and shall be adjusted by the Inflation Factor at the beginning of each Fiscal Year following the opening of RCTC’s 91 Express Lanes. Interpretation These policies are intended as guidance and may be amended or superseded at any time. 146 05/09/2012 -5- Exhibit I Definitions Cash Available for Debt Service – for any Period, the excess, if any, computed on a cash basis, of: (1) the amount of RCTC 91 Express Lanes cash receipts during such Period from whatever source, including, without limitation, toll receipts, transponder revenues, and investment earnings, excluding: − proceeds of insurance, − proceeds of debt service letter of credit or other amounts held in or disbursed from the payment account, the debt service reserve account, the coverage account and the major maintenance reserve account, and − the proceeds of any bonds or loans issued or executed to provide capital improvements to the RCTC 91 Express Lanes, over (2) All Operating and Maintenance Costs incurred during such Period and not deducted in the computation of Cash Available for Debt Service in a prior Period. In computing Operating and Maintenance Costs for any Period, an appropriate prorating will be made for expenditures such as insurance premiums and taxes that would be prorated if the computation were to be made in accordance with Generally Accepted Accounting Principles. Consistently – Any six weeks of twelve consecutive weeks, excluding any week that includes a Holiday or major traffic pattern anomaly caused by an accident or incident. Debt Service – for any Period, all payments of principal, interest, premiums (if any), fees and other amounts made (including by way of prepayment) or required to be made by RCTC during such Period under the Financing Documents (debt service payments related to RCTC’s internal subordinated debt borrowings or application of revenues to pay RCTC’s sales tax revenue bonds are to be excluded from these calculations). In computing Debt Service for any Period prior to the issuance of any additional financing, subject to the specific terms of the Financing Documents, RCTC will give pro forma effect to the transactions contemplated by the Financing Documents and the use of proceeds of the additional financing. In computing Debt Service for any prospective Period, RCTC will estimate in good faith such payments on the basis of reasonable assumptions. Such assumptions will include the absence of any waivers of or amendments to any agreements and the absence of any optional or extraordinary mandatory redemption of existing financings. 147 05/09/2012 -6- Debt Service Coverage Ratio – defined specifically in the Financing Documents, which specific provisions control the implementation and setting of tolls and discounts, but generally, for any Period, the ratio of Cash Available for Debt Service for such Period to Debt Service for such Period. Financing Documents – the documents under which RCTC has issued toll revenue bonds or other financings, including financings with TIFIA, payable primarily from toll revenues. Fiscal Year – July 1 to June 30 Holiday – Any of the following holidays that occur or are recognized any day between Monday through Friday: New Year’s Day, Memorial Day, 4th of July, Labor Day, Thanksgiving and Christmas. Inflation Factor - the product of the hourly toll for the immediately preceding fiscal year, times the CPI Index Adjuster for the prior fiscal year divided by the CPI Index Adjuster for the year immediately preceding such fiscal year, but in no case less than zero. Maximum Optimal Capacity – 3,400 vehicles per hour, per day, per direction in the RCTC 91 Express Lanes facility. Non-Super Peak – Hourly period that is not Super Peak. Operating and Maintenance Costs – defined specifically in the Financing Documents, but generally, all reasonable and necessary expenses of administering, managing, maintaining and operating the RCTC 91 Express Lanes and in accordance with the operation and maintenance agreements. Period – the most recent twelve complete months. Super Peak – Hourly period, per day, and per direction with traffic volume use which meets or exceeds the Trigger Point. Trigger Point – 92 percent or more of Maximum Optimal Capacity (3,128+ vehicles per hour, per day, and per direction). Week – 12:00 a.m. Sunday to 11:59 p.m. the following Saturday. Some of the financial definitions will be modified to reflect the bond covenants in the bond financing documents. 148 ATTACHMENT 1 05/09/2012 -7- Exhibit II Toll Policy Decision Process Congestion Management Pricing in Super Peak Description / Detail Monitor adjusted hourly, directional traffic for last 12 consecutive weeks (exclude days/hours with holidays, major incidents, accidents) Flag individual adjusted hours when traffic volume is 3,128 vehicles or less per hour, per day per direction. Determine if this occurs six or more times in the 12 week period Average the traffic volume for the hour, day and direction for the 12 week period (exclude holidays, accidents, major incidents). Monitor Traffic Identify High Hourly Volumes Average High Volume Hours Average 3,200 - 3,299 Average 3.300 or more Increase Hourly Toll Rate $1.00 Increase Hourly Toll Rate $0.75 Average less than 3,200 Do Not Increase Hourly Toll Hold Adjusted Rate Constant for 6 Months Follow Adjusted Toll Rate Follow On Process NO YES YESYESYES 149 05/09/2012 -8- Exhibit III Adjusted Toll Rate Follow On Process (Super Peak Adjusted Rates Only) Description / Detail Monitor adjusted hourly, directional traffic for last 12 consecutive weeks (exclude days/hours with holidays, major incidents, accidents) Flag individual adjusted hours when traffic volume is 2,720 vehicles or less per hour, per day per direction. Determine if this occurs six or more times in the 12 week period Average the traffic volume for the hour, day and direction for the 12 week period (exclude holidays, accidents, major incidents). Adjusted Rates Frozen for 6 Months Per Super Peak Monitor Traffic in Adjusted Super Peak Periods Identify Patterns of Low Volumes for Adjusted Rates Average Hourly Traffic Volume Average greater than 2,800 Average less than or equal to 2,800 Reduce Hourly Toll Rate $0.50 Keep Price Same or Determine if Super Peak Pricing Applies 150 05/09/2012 -9- Exhibit IV Toll Policy Decision Process Non Super Peak Periods (*) The actual rates shown are the projected rates from the 91 Express Lanes Extension Investment Grade Study. Once the facility is operational, traffic volumes will be monitored and rates adjusted accordingly. Rates shown represent projected scale of toll rates by volume category (in 2012 $). Description / Detail Monitor adjusted hourly, directional traffic for last 12 consecutive weeks (exclude days/hours with holidays, major incidents, accidents) Flag individual adjusted hours when traffic volume is 3,128 vehicles or less per hour, per day per direction. Determine if this occurs six or more times in the 12 week period Average the traffic volume for the hour, day and direction for the 12 week period (exclude holidays, accidents, major incidents). Monitor Traffic Identify Hourly Volumes Average Volume Hours Average 1,601 - 2,400 Average 801 -1,600 Set Toll Category B $2.80 / $2.10 Set Toll Category C $3.75 / $2.85 Average 2,401 - 2,800 Set Toll Category D $4.70 / $3.60 If Rate Changed, Hold Adjusted Rate Constant for 6 Months YESYESYES Average less than 800 Set Toll Category A $1.55 / $1.20 Average 2.800 - 3,128 Set Toll Category E $5.45 / $4.15 YESYES 151 05/09/2012 -10- Exhibit V RCTC 91 Express Lanes Toll Schedule June 13, 2012 The charts below identify the toll schedule in effect as of opening year of RCTC’s 91 Express Lanes once a steady state condition emerges after the initial opening ramp-up period. The assumed opening year is 2017 and the toll schedule rates are in current year 2012 dollars. The toll schedule below is provided only to illustrate the projected hourly toll rates that would result from implementing RCTC’s toll policy. Prior to the first day of operation of RCTC’s 91 Express Lanes, the toll schedule will be re-evaluated to reflect then-current corridor traffic information and presented to RCTC’s Board of Commissioners for reference. In addition to the posted tolls, the RCTC 91 Express Lane toll policy allow carpoolers with three or more persons (HOV3+), zero emission vehicles (ZEVs), motorcycles, disabled plates and disabled veterans to ride free during most hours. The exception is Monday through Friday 4:00 p.m. to 6:00 p.m. in the eastbound direction when they pay 50 percent of the posted toll. 152 05/09/2012 -11- Toll Schedule Eastbound Toll Schedule Westbound Effective June 1, 2017 Riverside Co. Line to I-15 at Ontario Effective June 1, 2017 I-15 at Ontario to Riverside Co. Line ** Year 2012 $'s ** Year 2012 $'s Sun M Tu W Th F Sat Time Sun Mon Tue Wed Thur Fri Sat Midnight $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 Midnight $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 1:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 1:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 2:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 2:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 3:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 3:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 4:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 4:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 5:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 5:00 AM $1.55 $3.75 $3.75 $3.75 $3.75 $4.70 $1.55 6:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 6:00 AM $1.55 $4.70 $4.70 $4.70 $4.70 $5.45 $1.55 7:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 7:00 AM $1.55 $4.70 $4.70 $4.70 $4.70 $5.45 $1.55 8:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 8:00 AM $1.55 $3.75 $3.75 $3.75 $3.75 $3.75 $1.55 9:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 9:00 AM $1.55 $2.80 $2.80 $2.80 $2.80 $2.80 $1.55 10:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 10:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 11:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 11:00 AM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 NOON $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 NOON $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 1:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 $2.80 1:00 PM $2.80 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 2:00 PM $1.55 $2.80 $2.80 $2.80 $2.80 $3.75 $2.80 2:00 PM $2.80 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 3:00 PM $1.55 $3.75 $3.75 $3.75 $3.75 $4.70 $2.80 3:00 PM $2.80 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 4:00 PM $1.55 $4.70 $4.70 $4.70 $4.70 $4.70 $2.80 4:00 PM $2.80 $1.55 $1.55 $1.55 $1.55 $2.80 $2.80 5:00 PM $2.80 $4.70 $4.70 $4.70 $4.70 $4.70 $2.80 5:00 PM $2.80 $1.55 $1.55 $1.55 $1.55 $2.80 $2.80 6:00 PM $2.80 $4.70 $4.70 $4.70 $4.70 $5.45 $2.80 6:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 7:00 PM $1.55 $3.75 $3.75 $3.75 $3.75 $4.70 $1.55 7:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 8:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $3.75 $1.55 8:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 9:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $2.80 $1.55 9:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 10:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 10:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 11:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 11:00 PM $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 $1.55 Toll Schedule Eastbound Toll Schedule Westbound Effective June 1, 2017 Riverside Co. Line to McKinley Street Effective June 1, 2017 McKinley Street to Riverside Co. Line ** Year 2012 $'s ** Year 2012 $'s Sun Mon Tue Wed Thur Fri Sat Sun Mon Tue Wed Thur Fri Sat Midnight $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 Midnight $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 1:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 1:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 2:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 2:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 3:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 3:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 4:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 4:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 5:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 5:00 AM $1.20 $2.85 $2.85 $2.85 $2.85 $3.60 $1.20 6:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 6:00 AM $1.20 $3.60 $3.60 $3.60 $3.60 $4.15 $1.20 7:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 7:00 AM $1.20 $3.60 $3.60 $3.60 $3.60 $4.15 $1.20 8:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 8:00 AM $1.20 $2.85 $2.85 $2.85 $2.85 $2.85 $1.20 9:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 9:00 AM $1.20 $2.10 $2.10 $2.10 $2.10 $2.10 $1.20 10:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 10:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 11:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 11:00 AM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 NOON $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 NOON $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 1:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 $2.10 1:00 PM $2.10 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 2:00 PM $1.20 $2.10 $2.10 $2.10 $2.10 $2.85 $2.10 2:00 PM $2.10 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 3:00 PM $1.20 $2.85 $2.85 $2.85 $2.85 $3.60 $2.10 3:00 PM $2.10 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 4:00 PM $1.20 $3.60 $3.60 $3.60 $3.60 $3.60 $2.10 4:00 PM $2.10 $1.20 $1.20 $1.20 $1.20 $2.10 $2.10 5:00 PM $2.10 $3.60 $3.60 $3.60 $3.60 $3.60 $2.10 5:00 PM $2.10 $1.20 $1.20 $1.20 $1.20 $2.10 $2.10 6:00 PM $2.10 $3.60 $3.60 $3.60 $3.60 $4.15 $2.10 6:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 7:00 PM $1.20 $2.85 $2.85 $2.85 $2.85 $3.60 $1.20 7:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 8:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $2.85 $1.20 8:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 9:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $2.10 $1.20 9:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 10:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 10:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 11:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 11:00 PM $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 $1.20 Riverside 91 Express Riverside 91 Express Riverside 91 Express Riverside 91 Express 153 05/09/2012 -12- Exhibit VI RCTC 91 Express Lanes Holiday Schedule (*) The intent of the holiday schedule is to offer tolls that reflect holiday traffic patterns. If Christmas, New Years or Fourth of July falls on a Tuesday, Wednesday, Thursday, or Friday, the regular Friday toll schedule will be used the day before the holiday. If the day after Christmas, New Years or Fourth of July is a Friday or Monday, it is assumed these are traditionally light traffic days, therefore, a reduced rate applies (Friday after Thanksgiving rate will be used). If Christmas, New Years or Fourth of July fall on Saturday, it is assumed the Friday before is a traditionally light traffic day; therefore the stated Christmas, New Years or Fourth of July holiday toll schedule applies. It is also assumed that the Thursday before is a heavy traffic day, therefore, the regular Friday schedule applies. When reduced rates apply, the weekend HOV3+ policy will be in effect. Toll Schedule Eastbound Toll Schedule Westbound Effective June 1, 2017 Effective June 1, 2017 Riverside Co. Line to I-15 at Ontario I-15 at Ontario to Riverside Co. Line ** Year 2012 $'s ** Year 2012 $'s Weekday Weekend Time Weekday Weekend Midnight $1.55 $1.55 Midnight $1.55 $1.55 1:00 AM $1.55 $1.55 1:00 AM $1.55 $1.55 2:00 AM $1.55 $1.55 2:00 AM $1.55 $1.55 3:00 AM $1.55 $1.55 3:00 AM $1.55 $1.55 4:00 AM $1.55 $1.55 4:00 AM $1.55 $1.55 5:00 AM $1.55 $1.55 5:00 AM $2.80 $1.55 6:00 AM $1.55 $1.55 6:00 AM $3.75 $1.55 7:00 AM $1.55 $1.55 7:00 AM $3.75 $1.55 8:00 AM $1.55 $1.55 8:00 AM $2.80 $1.55 9:00 AM $1.55 $1.55 9:00 AM $1.55 $1.55 10:00 AM $1.55 $1.55 10:00 AM $1.55 $2.80 11:00 AM $1.55 $1.55 11:00 AM $1.55 $2.80 NOON $1.55 $1.55 NOON $1.55 $2.80 1:00 PM $1.55 $2.80 1:00 PM $1.55 $2.80 2:00 PM $1.55 $2.80 2:00 PM $1.55 $2.80 3:00 PM $2.80 $2.80 3:00 PM $1.55 $2.80 4:00 PM $3.75 $2.80 4:00 PM $1.55 $2.80 5:00 PM $3.75 $2.80 5:00 PM $1.55 $2.80 6:00 PM $3.75 $2.80 6:00 PM $1.55 $2.80 7:00 PM $2.80 $1.55 7:00 PM $1.55 $1.55 8:00 PM $1.55 $1.55 8:00 PM $1.55 $1.55 9:00 PM $1.55 $1.55 9:00 PM $1.55 $1.55 10:00 PM $1.55 $1.55 10:00 PM $1.55 $1.55 11:00 PM $1.55 $1.55 11:00 PM $1.55 $1.55 Riverside Co. Line to McKinley Street McKinley Street to Riverside Co. Line ** Year 2012 $'s ** Year 2012 $'s Weekday Weekend Weekday Weekend Midnight $1.20 $1.20 Midnight $1.20 $1.20 1:00 AM $1.20 $1.20 1:00 AM $1.20 $1.20 2:00 AM $1.20 $1.20 2:00 AM $1.20 $1.20 3:00 AM $1.20 $1.20 3:00 AM $1.20 $1.20 4:00 AM $1.20 $1.20 4:00 AM $1.20 $1.20 5:00 AM $1.20 $1.20 5:00 AM $2.10 $1.20 6:00 AM $1.20 $1.20 6:00 AM $2.85 $1.20 7:00 AM $1.20 $1.20 7:00 AM $2.85 $1.20 8:00 AM $1.20 $1.20 8:00 AM $2.10 $1.20 9:00 AM $1.20 $1.20 9:00 AM $1.20 $1.20 10:00 AM $1.20 $1.20 10:00 AM $1.20 $2.10 11:00 AM $1.20 $1.20 11:00 AM $1.20 $2.10 NOON $1.20 $1.20 NOON $1.20 $2.10 1:00 PM $1.20 $2.10 1:00 PM $1.20 $2.10 2:00 PM $1.20 $2.10 2:00 PM $1.20 $2.10 3:00 PM $2.10 $2.10 3:00 PM $1.20 $2.10 4:00 PM $2.85 $2.10 4:00 PM $1.20 $2.10 5:00 PM $2.85 $2.10 5:00 PM $1.20 $2.10 6:00 PM $2.85 $2.10 6:00 PM $1.20 $2.10 7:00 PM $2.10 $1.20 7:00 PM $1.20 $1.20 8:00 PM $1.20 $1.20 8:00 PM $1.20 $1.20 9:00 PM $1.20 $1.20 9:00 PM $1.20 $1.20 10:00 PM $1.20 $1.20 10:00 PM $1.20 $1.20 11:00 PM $1.20 $1.20 11:00 PM $1.20 $1.20 Riverside 91 Express Riverside 91 Express 154 Opening Day Toll Rates Riverside County Transportation Commission October 12, 2016 91 Express Lanes Toll Policy (Adopted June 2012) Timing to secure financing and develop the toll collection system Closely matched OCTA 91 Express Lanes Eight toll policy goals Discount Program Variable pricing/time-of-day pricing Methodology for adjusting toll rates based on observed traffic volume Return to commission with opening day toll rates Process for Establishing Opening Day Toll Rates Review current traffic volumes and congestion levels, growth trends for employment, population, household formation, and regional roadway improvements Establish projected volumes by eastbound and westbound direction, hour of day, and day of week Establish toll rates for each level of service traffic volume range Projected Traffic Volume and Target Volume •Express lane projected traffic volume at opening day •50%of target volume estimated at full ramp-up •Morning westbound traffic: < 1,600 vehicles/hour •Afternoon eastbound traffic: < 850 vehicles/hour •Express lane projected traffic volume at the end of year 1 (month 12) •80%of target volume estimated at full ramp-up •Express lane target volumes for operations •1,600 vehicles/hour for a single lane •3,200 vehicles/hour for the two-lane system •1,500 vehicles/hour for the 91/15 express lane connector (one express lane in each direction) Toll Rates per Traffic Volume Range ** Year 2017 $'s Time Sun Mon Tue Wed Thur Fri Sat Midnight $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 1:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 2:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 3:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 4:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 5:00 AM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 6:00 AM $1.80 $4.95 $4.95 $4.95 $4.95 $4.95 $1.80 7:00 AM $1.80 $4.95 $4.95 $4.95 $4.95 $4.95 $1.80 8:00 AM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 9:00 AM $1.80 $2.75 $2.75 $2.75 $2.75 $2.75 $1.80 10:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 11:00 AM $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 NOON $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 $1.80 Westbound….. from I-15 @ Ontario Ave. to County Line Opening Day Tolls –An Excerpt Toll Rate Adjustments During Ramp-up •Daily Review of Traffic Volumes •Direction (Eastbound/Westbound) •Day of week •Hour of day •Toll Adjustment Trigger •Consistent volume in next traffic range 5:00 PM Mon.-Thurs. Traffic Volume Traffic Range (veh./hour Projected Actual Toll Rate 0-800 $1.40 801-1600 808 $2.10 1601-2400 1,650 $3.85 2401-2800 $4.95 2801-3128 $6.40 Communicating a Toll Rate Change Party Requiring Contact Method of Communication Action Days of Advance Notification Commission Email Receive 7 Business Days OCTA Email Update Website 7 Business Days Cofiroute, USA Letter Update Toll System and Toll Rate Signs 7 Business Days Customer Toll Information Sign and Web Site View Toll Rate Schedule at 91ExpressLanes.com or on Toll Information Signs 5 Days AGENDA ITEM 10 Agenda Item 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Brian Cunanan, Commuter and Motorist Assistance Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Call Box Program Reductions and Upgrades STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve the implementation of Call Box Scenario 3; 2) Approve Agreement No. 13-45-102-02, Amendment No. 2 to Agreement No. 13-45-102-00, with CASE Systems, Inc. (CASE) to provide call box removal and upgrade services consistent with Call Box Scenario 3, for an additional amount of $384,240, and a total amount not to exceed $1,384,240; and 3) Authorize the Executive Director pursuant to legal counsel review, to execute the amendment 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. Acting in its capacity as the RC SAFE, the Commission currently operates a Motorist Assistance program within Riverside County’s freeway and highway system that is comprised of three components: 1) call boxes, 2) freeway service patrol (FSP), and 3) traveler information services including the website www.IE511.org. Funding for the Riverside County SAFE is derived from a one dollar per vehicle registration fee on vehicles registered in Riverside County. Call boxes were initially installed in Riverside County in the early 1990s. During this decade the program peaked in number with over 1,100 boxes and recorded its highest call volume over a 12-month period with over 88,000 calls. Since the late 1990s, demand for call box service has trended, and continues to trend, downward. Most recently in Fiscal Year 2015/16 only 3,667 call box calls were made. At its current level of 681 call boxes, the cost to maintain and operate the call box system on an annual basis is projected to be $311,000, or approximately $460 per box. Most of these costs are associated with the routine maintenance of the call box equipment, which includes performing corrective maintenance, preventative maintenance, knockdown and vandalism 155 Agenda Item 10 repairs, and temporary removals and reinstallations for boxes in construction areas. In May 2013, an agreement for these services was awarded by the Commission to CASE in the amount of $750,000, for a three-year term following a competitive bid. The agreement was amended in 2016 for an additional $250,000, related to the exercise of the first of two one-year option periods. Additionally, the sunset of the current network technology that the call box system operates on will require the call box hardware to be upgraded to be compatible with cell phone networks. This is projected to cost approximately $600,000, or $880 per box at current call box inventory levels. Therefore, the total cost associated with upgrading (one-time), maintaining, and operating the call box program at its current inventory level for one year is nearing $1 million. Given the declining use environment in concert with the cost to upgrade and maintain the current number of boxes, staff embarked on an analysis to consider how the program can be modernized while also being made more cost efficient. DISCUSSION: Call Box Description Each call box unit is comprised of the following components: • Breakaway pole; • Protective call box case which, contains the hardware, chipset and tilt sensor, and battery; when opened the case exposes a handset and a TTY keyboard for the hearing impaired (a 2005 enhancement); • Blue reflective sign with unique call box numbers; • Small solar panel to recharge the internal battery; and • External antenna. The components collectively operate much like a cell phone with enhanced reception. The original call boxes that were installed in the early 1990s, operated on the analog cellular network (also known as 1G or first generation), and in FY 2005/06 the call box system was upgraded to the digital cellular network (also known as 2G or second generation). This network platform is currently on a path to obsolescence and any boxes not upgraded by next year will become inoperable. AT&T, the current cellular service provider for the Commission’s call box program, is transitioning from its 2G GSM cellular network to 3G/LTE effective December 31, 2016. This transition therefore creates the need for the Commission to make a decision with respect to how it envisions the program to operate going forward. Additionally, with respect to technology, staff also investigated call box use and an appropriate number of boxes based on established use patterns. Existing Call Box System and Use Environment Originally, the call box program was implemented for the purpose of providing motorists with access to a means of communication to request assistance in the event their vehicles broke down 156 Agenda Item 10 or experienced an emergency on the highways. At the time, cell phone ownership and use was still in its infancy, and call boxes were the only lifeline available for motorists. Call boxes were generally spaced every half mile on larger 3+ lane freeways and every 1 or 2 miles on rural highways, depending on the average daily traffic volumes. Call boxes were also generally installed in pairs (one on each side of the freeway) on freeways with higher average daily traffic volumes (ADT) and in rural areas on a single roadway side where ADTs were low. The Commission currently operates and maintains 681 call boxes along various freeways and highways in Riverside County. The current system reflects previous considerations resulting in reductions approved by the Commission due to changes in call box guidelines, technology, and declining usage. The last major reduction took place in FY 2005/06, when the Commission faced a similar environment with declining call box usage and an imminent network technology upgrade on the horizon. At the time an evaluation was performed that considered call box spacing and usage factors to determine how best to optimize the call box system. This evaluation resulted in Commission approval to remove 450 call boxes from the system. This reduced the system by nearly half of its peak number and led to significant cost savings along with a more efficient operation of the call box program. This reduction, however, did nothing to slow down or put a halt to declining usage. In fact, call volumes have continued to steadily decline on average 5 percent per year for a total decline in system use approaching 36 percent. The graphic below illustrates this system performance. Call Box Calls and Number of Call Boxes Installed 23,683 20,729 15,532 9,595 7,543 6,574 5,934 5,251 5,043 5,337 4,685 3,882 3,667 1,064 1,045 975 742 660 617 613 611 608 580 570 549 545 0 200 400 600 800 1,000 1,200 0 5,000 10,000 15,000 20,000 25,000 FY04 FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 Total Call Box Calls No. of Call Boxes (Active) 157 Agenda Item 10 Call Box Reduction Considerations For the call box program, changes in technology (as described above) and the motorist landscape, since the last set of call box reductions, provides another check point to recalibrate and modernize the program. Outlined below are the analysis points, which staff considered for a reduction strategy: • Network technology upgrade needed. There is a need to update the current call box hardware, which currently operates on network technology that will become obsolete. AT&T, the current cellular service provider for the Commission’s call box program, is transitioning from its 2G GSM cellular network to 3G/LTE effective December 31, 2016. Therefore, if not upgraded, all Commission call boxes will become inoperable after this date. Staff estimates that $600,000 will be needed to convert all currently operating call boxes to the new network platform. • Call box usage continues to decline. Call box usage or demand for this service has declined substantially over the years and continues to do so. • Cell phone ownership is over 90 percent. There is a strong correlation with the decline in call box usage or demand over the years and the growth of mobile phone ownership, which continues to increase in the United States. Additionally, as these devices have become ubiquitous, so has the demand for and development of cell coverage throughout the highway system. Generally, there is cellular coverage across most parts of the county, with some carriers having a stronger coverage footprint than others. Mobile phones now often provide motorists with a convenient and safe alternative to seek assistance should a breakdown occur. • More motorist aid alternatives. While the proliferation of cell phones over the years has had the greater impact to the declining usage of call boxes, other technologies (in-vehicle communication systems such as On Star) and services have also enhanced the quality and quantity of options available for motorists in need. These services also have advanced incident management and response times. FSP is also now routinely deployed within the most congested segments. Nearly 82 centerline miles are patrolled by FSP in Riverside County during peak periods. Additionally, Transportation Management Centers, operated by Caltrans and the California Highway Patrol (CHP), monitor cameras and traffic feeds on a 24/7 basis. Lastly ongoing urban development continues to provide motorists with additional options along the highways. Even without the use of mobile phones, call boxes are no longer the only means of seeking assistance for motorists in need. Staff understands and appreciates the “lifeline service” nature of the call box program. Within that understanding, various criteria were then used to evaluate the existing call box system. The criteria included the following factors: call box site types; availability of alternatives (cell coverage, and FSP); system usage/call volumes; and urban development/proximity to other motorist aid alternatives. 158 Agenda Item 10 Evaluation of Call Box Program Scenarios Based on the aforementioned call box reduction considerations, the optimization evaluation identified four scenarios, which are presented below. Options Number (%) of Call Boxes to be Removed Number of Remaining Call Boxes Estimated Upgrade & Removal Costs Projected Maintenance & Operations Costs No Reduction 0 681 $599,000 $311,000 Scenario 1 233 (34%) 448 $487,000 $205,000 Scenario 2 401 (59%) 280 $407,000 $128,000 Scenario 3 448 (66%) 233 $385,000 $106,000 No Reduction – Assumes no change in current call box inventory but provides for technology upgrades. Scenario 1 – Applies a very conservative reduction approach that is based primarily on call box spacing and uses a standard mileage spacing for the basis of recommendation. This scenario results in rural call box spacing at 2 miles and urban boxes at 4 miles. This scenario reduces the call box system by 34 percent—leaving 448 boxes operational. This scenario results in minimal program savings of $112,000 in one-time upgrade costs and annual savings of $106,000, for maintenance and operations compared to leaving the current system inventory in place. Scenario 2 – Applies a more comprehensive approach that factors in multiple considerations, including call box site type, availability of alternative motorist aid services such as FSP, and call box usage. Caltrans recommended removal of B and C call box site types, currently comprise 160 or 23 percent of the Commission’s call boxes, therefore, these callboxes are recommended under this scenario to be removed. The exception is any B or C site type call box that averaged 10 or more calls over the past three years. An assessment of these boxes will be made to determine if they could be reconfigured to an acceptable call box site type. In general, highways currently serviced by FSP are highly developed and have shorter distances between exits. Call boxes within FSP service areas are recommended for removal with the exception of call boxes that averaged 10 or more calls. The next factor applied to the remaining call boxes in the system is based on a usage threshold that would remove boxes (and their pairs) that receive only 5 or fewer calls per year. Applying this approach reduces the call box system by 59 percent—leaving 280 boxes in service. It results in a savings of $192,000 in one-time upgrade costs and annual savings of $183,000, for maintenance and operations compared to leaving the current system inventory in place. Scenario 3 – This option expands on the moderate approach by modifying the usage threshold to remove call boxes with only six or fewer calls per year. It also applies a usage threshold to rural call box locations by proposing the elimination of boxes with three or fewer calls per year. Applying this approach reduces the call box system by 66 percent—leaving 233 boxes in service. 159 Agenda Item 10 It results in a savings of $214,000, in one-time upgrade costs and annual savings of $205,000, for maintenance and operations compared to leaving the current system inventory in place. While removal of the call box system in its entirety is also an option, staff does not recommend this option at the present time. Staff foresees, and other neighboring transportation agencies also recognize, the potential for a future where call boxes may become obsolete. Staff will continue to monitor usage and cost effectiveness of the program and will continue to recommend additional programmatic changes to the Commission as warranted. RECOMMENDATION: Based on the scenarios evaluated, staff recommends the Commission approve Call Box Scenario 3. This option reduces the system from 681 call boxes to 233 call boxes reflecting a 66 percent reduction. Accordingly, staff recommends approval of Amendment No. 2 to Agreement No. 13-45-102-00, with CASE for an additional $385,000 to provide call box upgrades and removals consistent with the objectives of Scenario 3. This option significantly reduces annual maintenance, operational, and upgrade costs and thereby frees up funds for the potential delivery of expanded and/or new motorist aid service enhancements. Upon Commission approval and execution of the amendment with CASE, a notice to proceed for the upgrades of call boxes to be retained will be issued to CASE. Concurrently the approved reduction plan would be submitted to the CHP and Caltrans for review and approval. Upon CHP and Caltran’s approval, a notice to proceed will be issued to CASE for the decommission and permanent removal of the identified call boxes. Motorist Assistance has sufficient authority in the FY 2016/17 budget to complete the recommended reduction plan, and therefore a budget amendment is not required. Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $385,000 Source of Funds: SAFE Budget Adjustment: No GL/Project Accounting No.: 202 45 73301 Fiscal Procedures Approved: Date: 09/16/2016 160 Call Box Modernization Project Riverside County Transportation Commission October 12, 2016 Brian Cunanan Commuter and Motorist Assistance Manager Multimodal Services Department Outline •Why Upgrade and Reduce Call Box Program •Review of Reduction Scenarios •Staff Recommendation •Projected Schedule •Program Enhancements Why Upgrade/Reduce •Cellular network obsolescence •Declining call box demand/usage •Compliance with statewide guidelines •Changing landscape of Riverside County •Roadside assistance alternatives Cellular Network Obsolescence •Current AT&T 2G Network will become obsolete in January 2017 •Cellular modem chipset to be upgraded –$880 per call box •Transition to Verizon 3G network Current Deployment = 681 –$600,000 One-time upgrade cost ($880 per call box) –$311,000 Annual ops/maintenance costs (~$457 per call box annually) At current inventory levels, the projected spend over the next seven years is ~$2,800,000 call boxes Declining Demand/ Use AVERAGE: 5.6 calls per call box per year Other Considerations •Caltrans has recommended removal of all Site Type B and Site Type C call boxes (Safety, Accessibility) Other Considerations •Caltrans has recommended removal of all Site Type B and C call boxes (Safety, Accessibility) •Proliferation of cell phone ownership •Continuous development across the county •Growing cellular network coverage •Roadside assistance alternatives ~92% of American adults currently own a mobile phone -Pew Research Center Reduction Scenarios Scenario 1: -2 mi spacing (rural) -4 mi spacing (urban) Scenario 2: -Remove ALL B&C sites (except if received 10 or more calls) -Remove boxes within FSP service areas (except if demonstrate 10 or more calls) -Remove remaining boxes with five or fewer calls per year (exception: 62, 74, 85, 86S, 177, 243, 371) Scenario 3: -Remove ALL B&C sites (except if received 10 or more calls) -Remove boxes within FSP service areas (except if demonstrate 10 or more calls) -Remove remaining boxes with six or fewer calls per year (exception: 62, 74, 85, 86S, 177, 243, 371 - but removed any with three or fewer calls per year. Recommend Scenario 3 Scenario 1: -2 mi spacing (rural) -4 mi spacing (urban) Scenario 2: -Remove ALL B&C sites (except if received 10 or more calls) -Remove boxes within FSP service areas (except if demonstrate 10 or more calls) -Remove remaining boxes with five or fewer calls per year (exception: 62, 74, 85, 86S, 177, 243, 371) Scenario 3: -Remove ALL B&C sites (except if received 10 or more calls) -Remove boxes within FSP service areas (except if demonstrate 10 or more calls) -Remove remaining boxes with six or fewer calls per year (exception: 62, 74, 85, 86S, 177, 243, 371 - but remove any with three or fewer calls per year. Scenario 3: -Remove ALL B&C sites (except if received 10 or more calls) -Remove boxes within FSP service areas (except if demonstrate 10 or more calls) -Remove remaining boxes with six or fewer calls per year (exception: 62, 74, 85, 86S, 177, 243, 371 - but remove any with three or fewer calls per year. Recommend Scenario 3 Scenario 3: -Remove ALL B&C sites (except if received 10 or more calls) -Remove boxes within FSP service areas (except if demonstrate 10 or more calls) -Remove remaining boxes with six or fewer calls per year (exception: 62, 74, 85, 86S, 177, 243, 371 - but remove any with three or fewer calls per year. EXCEPTIONS: -Blythe -243 and 74 -Badlands Recommend Scenario 3 Projected Schedule Oct 2016 Nov 2016 Dec 2016 Jan 2017 Feb + 2017 Issue a NTP to CASE for upgrade of call boxes to be retained Submit the board approved reduction plan to the CHP and Caltrans for review and approval. Upon CHP and Caltran’s approval, issue a NTP to CASE for the decommission and permanent removal of the identified call boxes. CASE performs call box upgrades and assessments CASE performs call box removals Staff provides call box project update to Commission By the numbers Potential motorist aid enhancements with savings realized: -Event related Freeway Service Patrol in Coachella Valley -Virtual Call Box Program (countywide benefit) Call Box Modernization Recommendation Summary •Reduce from 681 to 250 max (63% reduction) •~$207,000 in savings one-time for upgrade/reduction •~$200,000 in savings annually for O&M •Approve the implementation of Scenario 3 with exceptions presented resulting in a system no larger than 250 units; •Approve Agreement No. 13-45-102-02, Amendment No. 2 to Agreement, No. 13-45-102-00, with CASE Systems, Inc. (CASE) to provide call box removal and upgrade, for an additional amount of $384,240, and a total amount not to exceed $1,384,240; and •Authorize the Executive Director, pursuant to legal counsel review, to execute the amendment on behalf of the Commission. Staff Recommendation Questions AGENDA ITEM 11 Agenda Item 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: October 12, 2016 TO: Riverside County Transportation Commission FROM: Jillian Guizado, Senior Legislative Analyst Aaron Hake, External Affairs Director THROUGH: Anne Mayer, Executive Director SUBJECT: State and Federal Legislative Update STAFF RECOMMENDATION: This item is for the Commission to receive and file an update on the state and federal legislation. BACKGROUND INFORMATION: This staff report was drafted and published prior to the deadline for Governor Jerry Brown to sign or veto legislation from the 2015-16 legislative session. This staff report details what was known about the Governor’s action on transportation-related legislation at the time the staff report was due. Late-breaking updates on the Governor’s actions relative to the Commission’s priorities may be presented verbally at the Commission meeting. State Update Commission-Sponsored Legislation The Commission sponsored three bills in the Legislature this year. AB 1780 (Medina) dedicated 20 percent of Greenhouse Gas Reduction Fund (GGRF) monies to the Trade Corridor Improvement Fund (TCIF), which funded grade separations in Riverside County; this bill was held in Assembly Appropriations Committee. AB 2014 (Melendez), which was aimed at increasing funding and expanded service opportunities for the statewide Freeway Service Patrol (FSP) program, also died in the Assembly Appropriations Committee. However, AB 1943 (Linder), did make it to the Governor’s desk and was signed. This bill makes technical changes to a previous bill, SB 953, that gave the Commission authority to establish parking regulations at its commuter rail stations. Special thanks should be extended to the San Bernardino Associated Governments (SANBAG) and Orange County Transportation Authority (OCTA) for providing letters to the Governor supporting the Commission’s pursuit of the amendments. The Governor’s approval of AB 1943 adds another string of legislative successes to the Commission’s recent portfolio of activity in Sacramento: 161 Agenda Item 11 Bill Year Digest Result AB 1943 (Linder) 2016 Clarifies RCTC parking enforcement at Commission-owned Metrolink stations. Signed by Governor AB 2014 (Melendez) 2016 Assess FSP program resources needs and increase oversight. Died in Assembly Appropriations Committee AB 1780 (Medina) 2016 Continuously appropriates 25% of Greenhouse Gas Reduction Fund to Sustainable Trade Corridors Program. Died in Assembly Appropriations Committee AB 1721 (Linder) 2014 Allows reduced rate tolls to be charged to electric vehicles on I-15 Express Lanes. Signed by Governor SB 953 (Roth) 2014 Authorizes RCTC to enforce parking at Metrolink stations. Signed by Governor AJR 4 (Miller) 2011 Expresses Legislature’s support for TIFIA loan for SR-91. Approved, Chaptered AB 2098 (Miller) 2010 Authorizes design-build for SR-91. Signed by Governor AB 1954 (Jeffries) 2008 Authorizes express lanes on I-15, bonding authority for I-15 project. Signed by Governor SB 1316 (Correa) 2008 Transfers SR-91 tolling franchise rights in Riverside County from OCTA to RCTC, authorizes RCTC bonding and tolling authority for SR-91. Reconstitutes SR-91 Advisory Committee Signed by Governor AB 1295 (Spitzer) 2007 Transfers SR-91 tolling franchise rights from OCTA to RCTC, provides bonding and tolling authority to RCTC for both SR- 91 and I-15. Died in Assembly Appropriations Committee Climate Change Bills Climate change legislation received a great deal of attention in the capital and news media this month, as the Governor signed two bills that further this policy priority for the Administration and Majority party in the Legislature. In addition to the cap and trade expenditure agreement reached at the end of the session in August, the Governor signed into law SB 32 (Pavley) and AB 197 (E. Garcia). Assemblyman Garcia represents the 56th District, which encompasses the east side of the Coachella Valley and Imperial County. Both SB 32 and AB 197 were written in such a way that each bill was contingent on the passage of the other. In summary, SB 32 requires the California Air Resources Board (CARB) to ensure statewide greenhouse gas emissions are reduced to 40 percent below the 1990 level by the year 162 Agenda Item 11 2030. This essentially extends and deepens the California Global Warming Solutions Act of 2006, which requires CARB to reduce emissions to the 1990 level by 2020. AB 197 does four things: revises the member composition and makes other administrative changes to CARB; requires CARB to make available and update annual emissions information for each reporting facility as well as emissions sources at the local level; requires CARB, when adopting rules and regulations to achieve emissions reductions and to protect impacted and disadvantaged communities, to follow requirements that consider the social costs of emissions and prioritize emission reduction rules and regulations; and requires CARB to identify specific information for each emissions reduction measure. Bill to Distribute Federal Freight Dollars Awaits Governor’s Action As of the writing of this staff report, the Governor had not yet acted on AB 2170 (Frazier), which establishes a policy framework to distribute freight funds apportioned to California through the federal FAST Act. The bill directs all of the FAST Act funds for the National Freight Program through the TCIF, which is managed by the California Transportation Commission (CTC). The bill also prescribes a consultative role for the CARB in administering the program, a new feature that was not present during the CTC’s administration of the TCIF funds from the Proposition 1B bond. The Commission adopted a support position on AB 2170. Federal Update Submittal of Interstate 15 TIFIA Creditworthiness Review Package Commission staff submitted its application for an approximately $123 to $162 million Transportation Infrastructure Finance and Innovation Act (TIFIA) loan. Staff are working with the Commission’s Congressional delegation to encourage the US Department of Transportation (US DOT) to review the application in a timely manner, Congress on the Hook for Passing a Continuing Resolution to Keep Government Open With the House and Senate back in session, a continuing resolution (CR) to keep all functions of the federal government operating through December 9, is being negotiated. The fact that a CR is needed and will likely only be short-term sets up action for the “lame duck” session of Congress that will occur after the General Election. If the CR is only good through December, the outgoing Congress will need to decide how to fund the government through the remainder of Fiscal Year 2017. Congress’ options would range from a longer-term CR through September 30, 2017, an intermediate-length CR, or to actually conference and pass regular appropriations bills. It is being speculated the current administration will make a big effort to get something long-term through in an attempt to make a final mark on federal matters. Attachment: Legislative Matrix 163 RIVERSIDE COUNTY TRANSPORTATION COMMISSION - POSITIONS ON STATE AND FEDERAL LEGISLATION – July 2016 Legislation/ Author Description Bill Status Position Date of Board Adoption AB 4 (Linder) This bill would bring truck weight fees back to transportation accounts and would prohibit weight fee revenues from being transferred from the State Highway Account to the Transportation Debt Service Fund, the Transportation Bond Direct Payment Account, or any other fund or account for the purpose of payment of the debt service on transportation general obligation bonds, and would also prohibit loans of weight fee revenues to the General Fund. From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. (February 1, 2016). SUPPORT 3/11/15 AB 194 (Frazier) This bill provides a uniform, less-political process for tolling projects to be reviewed and approved by the state. Today, each tolling project must be approved via a bill in the Legislature. AB 194 provides the California Transportation Commission (CTC) with the authority to review and approve tolling projects, subject to specified conditions that provide for public transparency and collaboration between state and regional governments. The most important aspect of this bill is it rests decision-making authority over tolling projects with the governmental entity financially responsible for the project. The bill is sponsored by the Self-Help Counties Coalition, of which the Commission is a member. Approved by the Governor. Chaptered by Secretary of State – Chapter 687, Statutes of 2015. (October 9, 2015). SUPPORT 3/11/15 AB 218 (Melendez) This bill allows for the relinquishment from state to local control of State Route 74 in the area between the cities of Lake Elsinore and Perris. This bill is sponsored by the county of Riverside and is championed by First District Supervisor and Commissioner Kevin Jeffries. Approved by the Governor. Chaptered by Secretary of State – Chapter 553, Statutes of 2015. (October 7, 2015). SUPPORT 3/11/15 AB 626 (Chiu and Low) This bill adds a significant degree of complexity to the Public Contract Code relating to claims by contractors and subcontractors on public works contracts. AB 626 establishes a claims resolution process for public works contracts entered into on or after January 1, 2017 that is supplemental to existing claims processes spelled out in state law. The bill provides specific deadlines for public agencies to meet when reviewing and formally responding to claims submitted by contractors. Opposition to AB 626 would be consistent with previous Commission actions on legislation that add costs, delays, risk, and complexity to transportation projects. Enrolled and presented to the Governor. (September 8, 2016). OPPOSE 9/14/16 164 Legislation/ Author Description Bill Status Position Date of Board Adoption AB 914 (Brown) AB 914 authorizes San Bernardino Associated Governments (SANBAG) to implement tolling on Interstate 10 and Interstate 15 within the County of San Bernardino. The bill contains language that requires cooperative agreements between SANBAG and the Commission prior to construction commencing on SANBAG’s I-15 project. Approved by the Governor. Chaptered by Secretary of State – Chapter 702, Statutes of 2015. (October 9, 2015). SUPPORT 4/08/15 AB 1171 (Linder) This bill authorizes the widespread use of an alternative contracting method known as construction manager/general contractor (CM/GC) for projects not on the state highway system. Like design-build, CM/GC offers a streamlined private sector risk-transfer in project delivery that is capable of saving time and money on complex transportation projects. In short, CM/GC allows a project sponsor (such as the Commission) to enter into a preconstruction contract with a private entity to provide services that assist in preparing a design and schedule for the project, while reserving the option to allow that contractor to bid on the actual construction of the project. Approved by the Governor. Chaptered by Secretary of State – Chapter 413, Statutes of 2015. (October 1, 2015). SUPPORT 4/08/15 AB 1569 (Steinorth) This bill provides an exemption from the California Environmental Quality Act (CEQA) for inspection, maintenance, repair, rehabilitation, or removal of transportation projects, such as highways, roads, bridges, culverts, tunnels, transit systems, bike, and walkways. Auxiliary lane additions also qualify for the exemption if it is within existing right of way and the areas surrounding the right of way are returned to their original condition after the project is complete. Although these projects are exempted from CEQA, the project sponsor must still notify public agencies with authority over the project and comply with any local laws. These projects are not exempted from the Porter-Cologne Water Quality Control Act, the California Endangered Species Act, and other state and federal laws. In committee: Set, second hearing. Failed passage. Reconsideration granted. (April 4, 2016). SUPPORT 4/13/16 AB 1780 (Medina) This bill, beginning in the 2016–17 fiscal year, would continuously appropriate 25 percent of the annual proceeds of the fund to the California Transportation Commission for the Sustainable Trade Corridors Program, which the bill would establish, thereby making an appropriation. In committee: Set, first hearing. Referred to APPR. suspense file. (April 20, 2016). In committee: Held under submission. (May 27, 2016). SPONSOR 3/09/16 165 Legislation/ Author Description Bill Status Position Date of Board Adoption AB 1833 (Linder) This bill seeks three distinct policies that would create greater efficiencies in delivering transportation projects: Create an advanced mitigation program at Caltrans similar in concept to Riverside County’s Multiple-Species Habitat Conservation Plan; remove the sunset date on California’s participation in the federal program that allows the State to assume responsibility for review of federal environmental documents; and authorizes the State to participate in the new pilot program that allows States to substitute state environmental laws, such as the CEQA in lieu of NEPA. In committee: Set, first hearing. Referred to APPR. suspense file. (May 11, 2016). In committee: Held under submission. (May 27, 2016). SUPPORT 3/09/16 AB 1889 (Mullin) This bill clarifies existing law related to the California High Speed Rail project and previous appropriations by the State Legislature to fund construction of high speed rail. AB 1889 makes an important clarification that bookend projects are part of the blended high speed rail system and therefore eligible to receive Prop. 1A state bond funds. Enrolled and presented to the Governor. (September 9, 2016). SUPPORT 9/16/16 AB 1943 (Linder) This bill provides technical amendments to a previous bill sponsored by the Commission in 2014, SB 953 (Roth) providing the Commission with authority to establish parking regulations at its rail stations. Legislature edits to the bill’s language prevented the Commission from enforcing parking regulations. AB 1943 clarifies the law with its amendments and provides the Commission with the power to establish and enforce its rules. The bill also allows the Commission to use a third-party private party to cite and tow violators. Approved by the Governor. (September 23, 2016). SPONSOR 3/09/16 AB 2014 (Melendez) This bill would require the Department of the California Highway Patrol, in coordination with the Department of Transportation and in consultation with regional and local entities, to complete a workload study to assess resource needs to supervise existing and expanded freeway service patrols identified by regional and local entities and to submit the study to the Senate Committee on Budget and Fiscal Review and the Assembly Committee on Budget. The bill would also require the departments to prepare their annual budget requests to the Legislature to accommodate the Department of the California Highway Patrol’s oversight of increased freeway service patrols identified in the study. In committee: Held under submission. (May 27, 2016). SPONSOR 3/09/16 166 Legislation/ Author Description Bill Status Position Date of Board Adoption AB 2170 (Frazier) This bill is similar to AB 1780 (Medina) in that it directs new sources of funding to the successful TCIF program. AB 2170 directs federal formula funding for goods movement into the TCIF program. The Fixing America’s Surface Transportation (FAST) Act, approved by Congress in 2015, creates a new formula funding program for freight projects. The funds are apportioned to the states. This bill ensures that funding is distributed equitably throughout the state where regional governments such as the Commission will have a voice at the table. Enrolled and presented to the Governor. (September 9, 2016). SUPPORT 3/09/16 AB 2452 (Quirk) This bill proposes a helpful reform to the California Environmental Quality Act (CEQA) that would limit the exposure of transportation projects to delays and costly litigation. AB 2452 by East Bay Assemblyman Bill Quirk would prohibit a judge from stopping the construction or implementation of a transportation project on solely on the basis of the project’s potential contributions to greenhouse gas (GHG) emissions. From committee: Be re- referred to Com. on A. & A.R. Re-referred. (Ayes 11. Noes 0.) (April 14). Re-referred to Com. on A. & A.R. (April 14, 2016). SUPPORT 3/09/16 AB 2783 (E. Garcia) This bill directs the Strategic Growth Council (SGC) to amend the guidelines for the Affordable Housing Sustainable Communities (AHSC) program. The AHSC program is funded from Greenhouse Gas Reduction Funds (GGRF), otherwise known as cap and trade. AB 2783 allows projects in rural areas to meet lower housing density thresholds more consistent with rural development patterns. Current guidelines place rural areas of Riverside County at a competitive disadvantage for AHSC funding because Riverside County and the cities surrounding local rural areas are considered urban or suburban by the current program guidelines. Urban and suburban areas are required to have housing densities higher than what the market will typically support in a rural area. In committee: Set, first hearing. Failed passage. Reconsideration granted. (June 29, 2016). SUPPORT IN CONCEPT, SEEK AMENDMENTS 4/13/16 SB 39 (Pavley) This bill raises the maximum number of green stickers issued by the Department of Motor Vehicles (DMV) for plug-in hybrid vehicles, which allow those vehicles to travel in high-occupancy vehicle (HOV) lanes regardless of the number of occupants. SB 39 raises the cap to 85,000. . This bill represents a 112 percent increase in green stickers over a two-year period. The green sticker program expires on January 1, 2019. Referred to Com. On TRANS. (May 22, 2015). OPPOSE 6/10/15 SB 321 (Beall) This bill allows the BOE to adjust the price-based excise tax using a five-year forecast period instead of just a one-year period, thereby reducing the impact of short-term disruptions in fuel prices. SB 321 also extends the revenue- neutrality requirement to cover a three-year period instead of just one year, offering another opportunity for the BOE to smooth-out dramatic revenue swings. Finally, the bill allows the BOE to adjust the price-based excise tax every quarter, rather than once per year. Ordered to inactive file on request of Senator Beall. (June 27, 2016). SUPPORT 3/11/15 167 Legislation/ Author Description Bill Status Position Date of Board Adoption SB 885 (Wolk) Sponsored by the American Council of Engineering Companies, this bill would significantly increase litigation and financial exposure for entities that contract with design professionals by limiting the contractor’s duty to defend claims against their projects. By forbidding project owners from requiring design professionals to defend litigation against projects on which they worked, SB 885 will cause project owners to stand-in to defend the contractor’s work and then retroactively seek compensation from the contractor if the design professional is found at fault. The bill would create legal special treatment for a certain type of company, leading to inequity in who is responsible for defending lawsuits. The Commission relies heavily on the private sector for design services, which provides many benefits to the Commission, including, but not limited to: cost savings, efficiencies, and risk transfer. SB 885 would diminish these benefits of contracting for design services by requiring Riverside County taxpayers to accept the costs and risks of defending a private contractor’s work and then initiating further litigation to recoup those costs from the contractor. June 28 set for first hearing canceled at the request of author. (July 12, 2016). OPPOSE 5/23/16 SB 901 (Bates) This bill creates an advanced mitigation program at Caltrans to account for the future impacts on the environment from transportation projects. This concept is similar to Riverside County’s Multiple Species Habitat Conservation Plan and the California Transportation Commission’s annual report recommendations to the Legislature. SB 901 is similar to AB 1833 (Linder), which the Commission took action to support in March 2016, and is consistent with the Commission’s legislative platform which encourages policies that expedite projects and reduce costs. SB 901 is slightly different in that it calls for $30 million to be taken from the State Transportation Improvement Program (STIP) and State Highway Operations Preservation and Protection (SHOPP) program to pay for the advanced mitigation program. April 5 hearing postponed by committee. (March 23, 2016). SUPPORT 4/13/16 168 Legislation/ Author Description Bill Status Position Date of Board Adoption SB 1197 (Cannella) This bill allows for the expansion of intercity passenger rail service beyond the boundaries of the three existing joint powers authorities (JPAs) that operate intercity rail service today. Current law establishes the Los Angeles-San Diego- San Luis Obispo (LOSSAN) JPA and authorizes the state to contract with the JPA to operate the popular Pacific Surfliner Amtrak route. The Commission is a member agency of the LOSSAN JPA. This bill would provide the opportunity for the future Coachella Valley-San Gorgonio Pass intercity rail corridor to be operated by LOSSAN. While the governance of the Coachella Valley-San Gorgonio Pass service has not been fully vetted at this point in time, SB 1197 creates an opportunity that could be utilized in the future if it is determined by the Commission and the other LOSSAN member agencies it is best to incorporate the new corridor into the existing JPA, rather than creating a new agency or allowing Caltrans Division of Rail to operate the service. April 19 hearing postponed by committee. (April 14, 2016). SUPPORT 4/13/16 H.R. 2497 (Denham) H.R. 2497 creates a program to be administered by the U.S. Secretary of Transportation that eliminates duplicative environmental reviews and approvals of transportation projects under state and federal laws. Importantly, the bill sets a 90-day deadline for the Secretary to render a decision on applications for the program. Referred to House subcommittee on Highway and Transit. (May 22, 2015). Referred to House subcommittee on Water Resources and Environment. (May 22, 2015). SUPPORT 9/9/15 H.R. 4441 Reauthorization of the Federal Aviation Administration (FAA), known as the Aviation Innovation, Reform, and Reauthorization Act Ordered to be Reported (Amended) by the Yeas and Nays: 34 - 25. (February 11, 2016). SEEK AMENDMENTS 3/09/16 169