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HomeMy Public PortalAbout11 November 9, 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, November 9, 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 / Charles Townsend, 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-00062 Tara Byerly From: Tara Byerly Sent: Wednesday, November 02, 2016 4:26 PM To: Tara Byerly Cc: Jennifer Harmon; Anne Mayer; STANDIFO Subject: RCTC: November Commission Agenda - 11.09.2016 Importance: High Good afternoon Commissioners: The November Agenda for the Commission meeting scheduled for Wednesday, November 9, 2016 @ 9:30 a.m. is available. Please copy the link: http://www.rctc.org/uploads/media items/november-9-2016.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, num. nom L 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 1 Tara Byerly From: Tara Byerly Sent: Wednesday, November 02, 2016 4:28 PM To: Tara Byerly Subject: RCTC: November Commission Agenda - 11.09.2016 Importance: High Good afternoon Commission Alternates: The November Agenda for the Commission meeting scheduled for Wednesday, November 9, 2016 @ 9:30 a.m. is available. Please copy the link: http://www.rctc.org/uploads/media items/november-9-2016.original.pdf Respectfully, 11111111 ammo Riverside County Transportation Commission Tara Byerly Deputy Clerk of the Board Riverside County Transportation Commission PO Box 12008, Riverside, CA 92502-2208 4080 Lemon Street, 3rd Floor, Riverside, CA 92501 (951) 787-7141 I rctc.org i Riverside County Transportation Commission TO: Riverside County Transportation Commission FROM: Jennifer Harmon, Clerk of the Board DATE: November 2, 2016 SUBJECT: Possible Conflicts of Interest — Riverside County Transportation Commission Agenda of November 9, 2016 The November 9, 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. Aaenda Item No. 68 — Amendment to the 91 Express Lanes Operator Agreement Consultant(s): Cofiroute USA, LLC Jan Mittermeier, Chief Operating Officer 20 Pacifica, Suite 420 Irvine, CA 92618 Aaenda Item No. 6D — Agreement for Final Design and Right of Way Acquisition for the Construction of the Interstate 215/Placentia Avenue Interchange Improvement Project Consultant(s): T.Y. Lin International F. Clark Fernon, Vice President 3633 East Inland Empire Blvd., Suite 900 Ontario, CA 91764 Aaenda Item No. 6F — Mobile Source Air Pollution Reduction Review Committee Major Event Center Transportation Program Grant Consultant(s): Goldenvoice/Valley Musical Travel Michael Medvin, Cid Entertainment Transportation 1 S. Broad Street, Suite 1710 Philadelphia, PA 19107 RCTC Potential Conflicts of Interest November 2, 2016 Page 2 Agenda Item No. 61— Agreements for State and Federal Legislative Advocacy Services Consultant(s): Smith, Watts & Hartmann Mark Watts, Managing Partner 915 L Street, Suite 220 Sacramento, CA 95814 Cliff Madison Government relations Cliff Madison, President 601 Pennsylvania Avenue, NW Washington, D.C. 20004 Ruffalo & Associates, LLC Kathy Ruffalo, President 601 Pennsylvania Avenue, NW South Building — Suite 900 Washington, D.C. 20004 RCTC Conflict of Interest Form Purpose: This form is provided to assist members of the RCTC Commissioners in meeting requirements of 87100 in documenting conflict of interests as related to RCTC RCTC Commission may be required to disclose and disqualify or voting on an agenda item due to personal income, real positions, or receipt of campaign contributions. If applicable, the following information, for entry into the public record, prior to item(s) and turn in the completed form to the Clerk of the Board RCTC member may not participate in any discussion or action a campaign contribution of more than $250 is received in the past conclusion from any entity or individual. Government Code Section 84308 and Commission/Committee agenda items. Instructions: Under certain circumstances, themselves from participating in, influencing, property interests, investments, business Commissioners must personally state consideration of the involved agenda prior to leaving the meeting. An concerning a contract or amendment if 12 months or 3 months following the I. Board Member Information Board Member Name City/County Name Meeting Date II. Campaign Contributions 1. I have a disqualifying campaign contribution and therefore I am abstaining from participation 2. I have a disqualifying campaign contribution and therefore I am abstaining from participation 3. I have a disqualifying campaign contribution and therefore I am abstaining from participation 4. I have a disqualifying campaign contribution and therefore I am abstaining from participation of over $250 from CL._LA— ' ikk/f.Jt IS —GA/ , (Identify the name of the company and/or Individual) on Agenda item & 1 , Subject: f -6 /t\- ( r - `4, /-'ram w ! -P tick e-- , s 7-z4-7-d sa /. =� /� , ;�.�--c of over $250 from (Identify the name of the company and/or Individual) on Agenda item , Subject: . of over $250 from (Identify the name of the company and/or Individual) on Agenda item , Subject: . of over $250 from , (Identify the name of the company and/or Individual) on Agenda item , Subject: . III. Financial Interest 1. I have a financial interest of , from/in (State income, and therefore I am abstaining from participation 2. I have a financial interest of real property interest, investment or business position) (Identify name of company or property location) on Agenda Item , Subject: , from/in (State income, and therefore I am abstaining from participation real property interest, investment or business position) (Identify name of company or property location) on Agenda Item , Subject: IV. Signature Board Member Signature: (4/14C-- c 41 Date: 1 f� Cj i� Please remember you must state the information into the public record prior to consideration of the involved agenda item(s) and turn in the completed form to the Clerk of the Board prior to leaving the meeting. RIVERSIDE COUNTY TRANSPORTATION COMMISSION www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda 9:30 a.m. Wednesday, November 9, 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 / ROLL CALL 2. PLEDGE OF ALLEGIANCE 3. 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. 4. APPROVAL OF MINUTES – OCTOBER 12, 2016 Riverside County Transportation Commission Agenda November 9, 2016 Page 2 5. 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. 6. CONSENT CALENDAR – All matters on the Consent Calendar will be approved in a single motion unless a Commissioner(s) requests separate action on specific item(s). Items pulled from the Consent Calendar will be placed for discussion at the end of the agenda. 6A. SINGLE SIGNATURE AUTHORITY REPORT Page 1 Overview This item is for the Commission to receive and file the Single Signature Authority report for the first quarter ended September 30, 2016. 6B. AMENDMENT TO THE 91 EXPRESS LANES OPERATOR AGREEMENT Page 3 Overview This item is for the Commission to: 1) Approve Agreement No. 13-31-105-01, Amendment No. 1 to Agreement No. 13-31-105-01, the operator agreement (ORCOA) between the Orange County Transportation Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute), for a net reduction in operations and maintenance services for the 91 Express Lanes in an amount of $2,900,947, and a total amount not to exceed $31,196,999; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. 6C. TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL PROGRAM – PROJECT DELIVERY UPDATE Page 19 Overview This item is for the Commission to receive and file a status report on the Transportation Uniform Mitigation Fee (TUMF) Regional Arterial program. Riverside County Transportation Commission Agenda November 9, 2016 Page 3 6D. AGREEMENT FOR FINAL DESIGN AND RIGHT OF WAY ACQUISITION FOR THE CONSTRUCTION OF THE INTERSTATE 215/PLACENTIA AVENUE INTERCHANGE IMPROVEMENT PROJECT Page 22 Overview This item is for the Commission to: 1) Award Agreement No. 16-31-066-00 to T.Y. Lin International (T.Y. Lin) to perform final engineering services and prepare plans, specifications, and cost estimate (PS&E) for the construction of the Interstate 215/Placentia Avenue interchange improvements project (Project) in the amount of $3,412,700, plus a contingency amount of $341,300 for potential changes in scope, for a total amount not to exceed $3,754,000; 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 contingency work as may be required for the Project; 4) Approve Agreement No. 17-31-039-00 with Caltrans for the final design and right of way (ROW) acquisition of the Project; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement and future non-funding related amendments to this agreement; 6) Authorize the Executive Director, pursuant to legal counsel review, to execute utility agreements required for the Project in an amount not to exceed $1.2 million; and 7) Authorize the Executive Director, pursuant to legal counsel review, to acquire required parcels and mitigation property for the Mid County Parkway (MCP) project in accordance with the Commission’s ROW policies and procedures and subject to available funding. 6E. MOBILE SOURCE AIR POLLUTION REDUCTION REVIEW COMMITTEE TRANSPORTATION CONTROL MEASURE PARTNERSHIP PROGRAM Page 64 Overview This item is for the Commission to: 1) Approve Agreement No. 17-25-016-00 with the South Coast Air Quality Management District (SCAQMD) for a grant from the Mobile Source Air Pollution Reduction Review Committee (MSRC) Transportation Control Measure Partnership Program in the amount of $1,909,241; 2) Approve Agreement No. 17-25-038-00 with the city of Riverside for the Rustin Avenue Sidewalk Improvement and Bike Lane project in the amount not to exceed $600,000; Riverside County Transportation Commission Agenda November 9, 2016 Page 4 3) Approve an amendment in the amount of $1,909,241 to the FY 2016/17 Commuter Rail Short Range Transit Plan (SRTP); 4) Approve an increase in revenues and expenditures of $1,909,241 in the FY 2016/17 budget related to the MSRC grant; and 5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission. 6F. MOBILE SOURCE AIR POLLUTION REDUCTION REVIEW COMMITTEE MAJOR EVENT CENTER TRANSPORTATION PROGRAM GRANT Page 91 Overview This item is for the Commission to: 1) Approve Agreement No. 17-25-040-00 with the South Coast Air Quality Management District (SCAQMD) for the receipt of a Mobile Source Air Pollution Reduction Review Committee (MSRC) Major Event Center Transportation Programs grant in the amount of $1.2 million; 2) Approve Agreement No. 17-25-037-00 with the Los Angeles – San Diego – San Luis Obispo (LOSSAN) Rail Corridor Agency for project coordination and transportation services with Amtrak in an amount not to exceed $1 million; 3) Approve Agreement No. 17-25-036-00 with Goldenvoice/Valley Music Travel (Goldenvoice) for project coordination and shuttle bus transportation in an amount not to exceed $200,000; 4) Approve an amendment of $1.2 million to the FY 2016/17 Commuter Rail Short Range Transit Plan (SRTP) for the total grant; 5) Approve an increase to the FY 2016/17 budget of $600,000 for MSRC grant revenues and corresponding rail and shuttle service expenditures; and 6) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission. 6G. OCTA 2016 ANGELS EXPRESS AGREEMENT Page 124 Overview This item is for the Commission to: 1) Approve Agreement No. 17-25-014-00 with the Orange County Transportation Authority (OCTA) for the cost sharing of the 2016 Angels Express Service for an initial one-year term in an amount not to exceed $33,176, with additional option years for the 2017 season and beyond upon mutual written agreement by both agencies in an amount not to exceed an annual 5 percent increase; 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. Riverside County Transportation Commission Agenda November 9, 2016 Page 5 6H. TRANSIT TRANSFER AND LICENSE AGREEMENTS Page 132 Overview This item is for the Commission to: 1) Approve Agreement No. 17-25-015-00 with Omnitrans for reimbursement of transit transfers effective January 1, 2017, for an indefinite term cancelable by either party with a 30-day notice in an amount approximating $15,000 annually; 2) Approve Agreement No. 17-25-033-00 with Megabus Northeast LLC (Megabus) for use of the Commission’s Riverside-Downtown Station for a three-year term, with two two-year options to extend the agreement, in an estimated revenue amount of $117,245 for the full term of all the options; and 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission. 6I. AGREEMENTS FOR STATE AND FEDERAL LEGISLATIVE ADVOCACY SERVICES Page 164 Overview This item is for the Commission to: 1) Award the following agreements to provide state and federal legislative advocacy services for a four-year term, and two two-year options to extend the agreements, for up to an eight-year period of performance, as follows: a) Agreement No. 17-14-009-00 with Smith, Watts & Hartmann, in an amount not to exceed $524,000; b) Agreement No. 17-14-010-00 with Ruffalo and Associates, LLC, in an amount not to exceed $720,000; c) Agreement No. 17-14-011-00 with Cliff Madison Government Relations, in an amount not to exceed $530,000; 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. 7. INTERSTATE 15 EXPRESS LANES PROJECT PLAN OF FINANCE Page 222 Overview This item is for the Commission to: 1) Provide input and direct staff regarding the preliminary funding plan for the Interstate 15 Express Lanes project (Project); and Riverside County Transportation Commission Agenda November 9, 2016 Page 6 2) Approve an additional $50 million in federal Congestion Mitigation and Air Quality (CMAQ) and/or Surface Transportation Block Grant (STBG) funds for a total amount of $110 million in CMAQ and/or STBG funds for design-build costs related to the Project and direct staff to program the funding in the 2017 Federal Transportation Improvement Program (FTIP). 8. PRESENTATION: 40TH ANNIVERSARY SPOTLIGHT – VOTER APPROVED SALES TAX MEASURES 9. ITEM(S) PULLED FROM CONSENT CALENDAR AGENDA 10. 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. 11. CLOSED SESSION 11A. CONFERENCE WITH REAL PROPERTY NEGOTIATORS Pursuant to Government Code Section 54956.8 Property: 291 Corporate Terrace Circle, Corona 92882 – APN 115-680-012 Negotiating Party: Rexco Corporate Terrace, LLC; and Tim Hawke, President, Strata Realty Property: 301 Corporate Terrace Circle, Corona 92882 – APN 115-680-011 Negotiating Party: Corporate Terrace Properties, LLC and Tim Hawke, President, Strata Realty Agency Negotiator: Anne Mayer or Michael Blomquist Under Negotiation: Price and terms of payment 12. ADJOURNMENT The next meeting of the Commission is scheduled to be held on Wednesday, December 14, 2016, Board Room, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION ROLL CALL NOVEMBER 9, 2016 County of Riverside, District I County of Riverside, District II Present Absent a a a a County of Riverside, District III a a County of Riverside, District IV a a County of Riverside, District V City of Banning a City of Beaumont a :)2L. City of Blythe City of Calimesa City of Canyon Lake a a a City of Cathedral City a 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 ,( a a 1:7 City of Rancho Mirage a a a a a a 7 a a a City of La Quinta City of Lake Elsinore City of Menifee City of Moreno Valley City of Murrieta City of Norco City of Palm Desert City of Palm Springs City of Perris a a a 2r a a a a a City of Riverside City of San Jacinto City of Temecula City of Wildomar Governor's Appointee, Caltrans District 8 a a a a AGENDA ITEM 4 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION    MINUTES  Wednesday, October 12, 2016    1. CALL TO ORDER    The Riverside County Transportation Commission was called to order by  Chair Scott Matas at 9:32 a.m. in the Board Room at the County of Riverside  Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501.    Chair Matas recognized today is Yom Kippur.  He expressed the Commission meeting  happened to come in conflict with this important religious holiday this year.  Staff inquired  with Commissioners to move the meeting to Thursday, October 13, however, a quorum  could not be obtained.  The Commission respectfully acknowledges the importance and  meaning of this day.    2. PLEDGE OF ALLEGIANCE    Commissioner Ginny Foat led the Commission in a flag salute in memory of the  Palm Springs Officers Jose “Gil” Vega and Lesley Zerebny who were killed on October 8.      Commissioner Foat expressed gratitude on behalf of the city of Palm Springs to the  Commissioners and the cities in Riverside County for the incredible support that poured  into the city.  A memorial service is scheduled on October 18 at 11:00 a.m. at the Palm  Springs Convention Center.    At this time, Chair Matas requested a moment of silence in honor of the fallen officers.    3. ROLL CALL    Commissioners/Alternates Present Commissioners Absent    Marion Ashley Dawn Haggerty Scott Matas Yxstian Gutierrez  Rusty Bailey Berwin Hanna Michael Naggar Steven Hernandez  Ben Benoit Jan Harnik Robert Radi Kevin Jeffries  John J. Benoit Jonathan Ingram Dana Reed Adam Rush  John Bulinski Frank Johnston Charles Townsend John F. Tavaglione  Daryl Busch Shelley Kaplan Chuck Washington   Joseph DeConinck Andrew Kotyuk Lloyd White   Ginny Foat Linda Krupa Michael Wilson   Randy Fox Bob Magee Ella Zanowic   Deborah Franklin Scott Mann     Riverside County Transportation Commission Minutes  October 12, 2016  Page 2  4. PUBLIC COMMENTS    Anne Mayer, Executive Director, presented Toll Project Manager David Thomas with a   5‐year service award.    Arnold San Miguel, Southern California Association of Governments (SCAG), announced  SCAG released the Sustainability Planning Grant proposal on September 26.  The  applications are due by November 28 and there is a webinar on October 13 from   1:00 p.m. – 2:00 p.m.    5. APPROVAL OF MINUTES – SEPTEMBER 14, 2016    M/S/C (J. Benoit/Wilson) to approve the September 14, 2016 minutes as  submitted.     Abstain: Haggerty and Townsend    6. ADDITIONS / REVISIONS    There were no additions or revisions to the agenda.    7. PRESENTATION:  40TH ANNIVERSARY SPOTLIGHT – SERVICE AUTHORITY FOR FREEWAY  EMERGENCIES    John Standiford, Deputy Executive Director, presented the RCTC’s 40th Anniversary  Spotlight for the Service Authority for Freeway Emergencies (SAFE), highlighting the  following areas:     The 40th Anniversary Open House Reception held on September 29;   The history of call boxes – First call box installed in 1962 in Los Angeles County;  Legislature created SAFE’s in 1985; RCTC becomes a SAFE in 1986; Cooperation  with San Bernardino Associated Governments for initial and ongoing  implementation; and the first call boxes installed in 1990;   What is SAFE? – Established by County Board of Supervisors and City Councils,  collects $1 surcharge from vehicle registration, can now fund other amenities  including:  o Changeable Message Signs;  o Freeway Service Patrol (FSP);  o Traffic Operations Centers;  o 511/Traveler Information; and   Upcoming call box challenges – Technology changes and higher costs, ADA  requirements, dwindling call volume, construction, and value of providing  additional FSPs.  Riverside County Transportation Commission Minutes  October 12, 2016  Page 3  8. CONSENT CALENDAR    M/S/C (Krupa/Harnik) to approve the following Consent Calendar items.    8A. AMENDMENT TO INTERSTATE 15 EXPRESS LANES PROJECT INVESTMENT GRADE  TRAFFIC AND REVENUE STUDY SERVICES AGREEMENT    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    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.    8C. 91 EXPRESS LANES TRAFFIC OPERATIONS CENTER VIDEO SYSTEMS  MAINTENANCE AGREEMENT    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.       Riverside County Transportation Commission Minutes  October 12, 2016  Page 4  8D. CALTRANS MAINTENANCE AGREEMENT FOR RCTC 91 EXPRESS LANES    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    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.    9. RCTC 91 EXPRESS LANES OPENING DAY TOLL RATES    Michael Blomquist, Toll Program Director, presented the opening day toll rates for the  91 Express Lanes, highlighting the following areas:     Background for the 91 Express Lanes Toll Policy Adopted June 2012;   Process for establishing opening day toll rates;   Projected traffic volume and target volume;   Toll rates per traffic volume range from the County Line to / from I‐15 South and  from the County Line to / from McKinley Street;   Opening day tolls – an excerpt for westbound from I‐15 at Ontario Avenue to  County Line;   Toll rate adjustments during ramp‐up – Daily review of traffic volumes and toll  adjustment trigger;   Communicating a toll rate change – Days of advance notification to the  Commission, OCTA, and Cofiroute, USA is seven business days, and to the  customer it is five days.    Riverside County Transportation Commission Minutes  October 12, 2016  Page 5  At Commissioner John Benoit’s requested, Michael Blomquist explained in detail the  pricing signage commuters will see and provided examples.   He explained considerable  time was spent on designing those signs in terms of number of characters, visibility, what  destinations will be called for customer recognition whether to use two or three prices.      In response to Commissioner Foat’s question regarding the high occupancy vehicle  (HOV)+ lanes and the cost, Michael Blomquist replied the HOV usage is approximately 20‐ 25 percent during peak hours.  He stated carpool has been a single lane in each direction  with an HOV2+ requirement.  The Commission is fundamentally changing both the  number of lanes from one to two lanes, and the occupancy requirement from two to  three.  He stated there are very good estimates of existing usage by carpoolers and the  value of time toll payers has in paying a toll for the lanes.  Based on that the rates and  capacities have been set, and the toll policies are set in a way staff thinks the lanes will be  filled optimizing that traffic flow.  He stated an advantage of the Commission’s toll policy  was the ability to adjust up and down based on actual traffic volumes seen in the lanes  over the prior 12‐week period.    At Anne Mayer’s request to share the HOV3+ toll rates, Mr. Blomquist replied the HOV3+  toll rates for both the Commission and OCTA’s segments will be free 24 hours a day seven  days a week with the exception of the eastbound direction from 4:00 p.m. – 6:00 p.m.  where it would be a 50 percent toll rate.    In response to Commissioner Randy Fox’s request for clarification regarding access points  and rates, Michael Blomquist discussed the access points for the Riverside 91 Express  Lanes, noting a customer could use just the Commission’s portion, just the OCTA’s  portion, or both.  He then discussed the corresponding rates.    Anne Mayer expressed appreciation for the Commissioners’ questions and comments.   She stated in terms of the carpool, there is a huge incentive for people to start carpooling.   She explained with the opening of the toll lanes and in partnership with Riverside Transit  Agency (RTA), the CommuterLink express bus service will be expanded for commuters  along this corridor.  She expressed it is more about getting people through the corridor  as opposed to individual cars.    At Commissioner Jonathan Ingram’s request, Michael Blomquist discussed the 91 Express  Lanes marketing campaign.    M/S/C (J. Benoit/Radi) to receive and file the schedule of opening day toll rates  for the RCTC 91 Express Lanes.       Riverside County Transportation Commission Minutes  October 12, 2016  Page 6  10. CALL BOX PROGRAM REDUCTIONS AND UPGRADES    Brian Cunanan, Commuter and Motorist Assistance Manager, presented the call box  program reductions and upgrades, highlighting the following areas:     Upgrade and reduce:  o Cellular network obsolescence ‐ transition from 2G to 3G network;   o Declining call box demand/usage;  o Compliance with statewide guidelines;  o Changing landscape of Riverside County; and  o Roadside assistance alternatives.   Current deployment = 681 call boxes – $600,000 one‐time upgrade cost, and  assuming no reductions are made annual operations/maintenance costs equates  to $311,000 each year;   Declining demand and use – A chart that reflects call box usage since FY 2004:  Average for last year is 5.6 calls per call box per year;   Other considerations:  o Caltrans recommended removal of all Site Type B and C call boxes;  o Proliferation of cell phone ownership;  o Continuous development across the county;  o Growing cellular network coverage; and   Reduction scenarios and recommended Scenario 3 – Remove all B and C sites,  remove call boxes within FSP service areas, remove remaining boxes with six or  fewer calls per year with the exceptions of Blythe, 243 and 74, and the Badlands;   Projected schedule – October 2016 through February 2017+; and   Call box modernization summary:  reduce from 681 to 250 call boxes, result in a  one‐time savings of $207,000 for upgrade/reduction; and $200,000 annually for  operations and maintenance.    In response to Commissioner Jan Harnik’s question regarding upgrading to 4G instead of  3G, Brian Cunanan replied it is the statewide standard.  Staff can discuss with the network  provider and provide an update to the Commission.    Commissioner Ben Benoit added the faster data speeds of the 4G and LTE networks are  unnecessary for call boxes.  The call boxes need good coverage, which 3G provides.    Commissioner Jonathan Ingram suggested ways of combining technologies to benefit the  toll lanes as well as call box efficiencies that could benefit the traveling public, including  IE511.    Commissioner Foat suggested eliminating all call boxes in Riverside County and consider  helping upgrade the cellular areas.  She then asked if there is a requirement of the SAFE  program to maintain some level of call boxes.  Riverside County Transportation Commission Minutes  October 12, 2016  Page 7  Brian Cunanan explained there are factors that necessitate maintaining a call box system  such as 1) motorists traveling through the state expect some degree of continuity  especially when traveling through Los Angeles, Orange, and San Bernardino Counties; and  2) not all motorists have the use of a cellphone.  Mr. Cunanan stated with respect to  potentially boosting cell coverage in weaker signal areas, staff can look into this and  report back to the Commission.    Anne Mayer stated Commissioner Foat’s concerns regarding old technology also applies  in other areas such as Metrolink ticket vending machines.  Most people can buy their  ticket using a mobile device.  There is a very small percentage of riders that are completely  cash dependent so there is a significant discussion at Metrolink about removing the ticket  vending machines.  As technology continues to change, the Commission will continue to  face these issues.    Commissioner J. Benoit stated there are state programs that allow people to apply for a  very low cost or no cost cell phone for emergency purposes.  He stated the Commission  should be fully aware of these programs, how to refer people, and help these people to  meet Commissioner Foat’s concerns.  He suggested to reevaluate the call box program in  five years and commended staff’s work on the program.    In response to Chair Matas’ request for clarification regarding Riverside County working  on upgrading broadband services, Commissioner J. Benoit replied the broadband upgrade  is to bring a stronger, more robust internet service to all parts of the County.  It does not  interact with cellular service.    In response to Commissioner Deborah Franklin’s question regarding cost savings,  Brian Cunanan replied some of the savings could be used for supplemental FSP, especially  during event‐related traffic volume periods in the Coachella Valley.  He stated staff will  provide an update at a Commission meeting earlier next year.    Commissioner Harnik expressed support for Commissioner J. Benoit’s suggestion to  reevaluate this program in the future.    Commissioner Shelly Kaplan noted in a recent local survey, 17 percent of the respondents  indicated they did not own a cell phone.  There still is an issue out there and it will be an  ongoing upgrade overtime.    M/S/C (Harnik/Reed) 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  Riverside County Transportation Commission Minutes  October 12, 2016  Page 8  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    Aaron Hake, External Affairs Director, presented an overview for the state and federal  legislative activities.    M/S/C to receive and file an update on the state and federal legislation.    At this time, Commissioners Rusty Bailey and Bob Magee left the meeting.    12. ITEM(S) PULLED FROM CONSENT CALENDAR FOR DISCUSSION    There were no items pulled from the Consent Calendar.    13. COMMISSIONERS/EXECUTIVE DIRECTOR’S REPORT    13A. Commissioner Reed read his comments concerning the Commission meeting on  September 14, when Anne Mayer and Theresia Trevino presented a detailed plan  to extricate the Commission from dealings with Deutsche Bank (DB).  He continued  two days later the Wall Street Journal broke a story that DB is facing a possible  fine of $14 billion from the U.S. Justice Department for certain alleged unlawful  activities dating as far back as 2008.  He expressed appreciation to Ms. Mayer and  Ms. Trevino for their perseverance in keeping the Commission out of harm’s way.    He initially intended to send his comments to the Commissioners via email,  however, there was concern regarding a potential Brown Act violation.  He called  attention to the Attorney General guidance regarding serial communications.    13B. Commissioner Harnik announced SCAG held its Housing Summit on October 11.  It emphasized the importance of transportation and all different modalities of  transportations, and how it affects housing and the wellbeing of communities.   Also, there are two earthquake preparedness initiatives available to elected  officials and city managers through SCAG, scheduled in Riverside on October 31,  9:00 a.m. – Noon and in Coachella on November 9 from 9:00 a.m. – Noon.    13C. Commissioner Foat expressed gratitude to the Riverside County Board of  Supervisors (BOS), specifically Commissioner J. Benoit, for cancelling the  October 18 BOS meeting as it would have been in conflict with the Palm Spring  Officers’ memorial service.  Riverside County Transportation Commission Minutes  October 12, 2016  Page 9  13D. Anne Mayer announced:     Commissioners are encouraged to share their thoughts on any subject.   She thanked Commissioner Reed for his kind comments regarding the  interest rate swap agenda item from the September Commission meeting.   She provided an update regarding the interest rate swap termination and  stated the Commission closed the refunding transaction this morning; and   The public scoping meetings for the Coachella Valley‐San Gorgonio Pass  Rail Corridor service will be held:  o Tonight in Riverside;  o October 13 in Indio; and  o October 17 at LA Metro headquarters.  A flyer was distributed to the Commissioners at the dais.    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       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  Riverside County Transportation Commission Minutes  October 12, 2016  Page 10   Item APN(s) RCPN Property Owner(s)   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   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.    Commissioners Michael Naggar and Chuck Washington recused themselves from items 35‐40  due to a conflict of interest.    There were no announcements from the Closed Session items.       Riverside County Transportation Commission Minutes  October 12, 2016  Page 11  15. ADJOURNMENT    There being no further business for consideration by the Riverside County Transportation  Commission, Chair Matas adjourned the meeting in the memory of Palm Springs Officers  Jose “Gil” Vega and Lesley Zerebny at 10:57 a.m.  The next Commission meeting is  scheduled to be held at 9:30 a.m., Wednesday, November 9, 2016, Board Room, First  Floor, County Administrative Center, 4080 Lemon Street, Riverside.    Respectfully submitted,    Jennifer Harmon  Clerk of the Board  AGENDA ITEM 6A Agenda item 6A RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Budget and Implementation Committee Matt Wallace, Procurement Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Single Signature Authority Report BUDGET AND IMPLEMENTATION COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to receive and file the Single Signature Authority report for the first quarter ended September 30, 2016. BACKGROUND INFORMATION: Certain contracts are executed under single signature authority as permitted in the Commission’s Procurement Policy Manual adopted in September 2015. The Executive Director is authorized to sign services contracts that are less than $150,000 individually and in an aggregate amount not to exceed $1 million in any given fiscal year. Additionally, in accordance with Public Utilities Code Section 130323(c), the Executive Director is authorized to sign contracts for supplies, equipment, materials, and construction of all facilities and works under $50,000 individually. The attached report details all contracts that have been executed for the first quarter ended September 30, 2016 under the single signature authority granted to the Executive Director. The unused capacity of single signature authority for services at September 30, 2016, is $966,000. Attachment: Single Signature Authority Report as of September 30, 2016 1 J:\2016\11 November\6A.JM.A1.RCTC.SingleSignQ1.xlsx CONSULTANT DESCRIPTION OF SERVICES ORIGINAL CONTRACT AMOUNT PAID AMOUNT REMAINING CONTRACT AMOUNT AMOUNT AVAILABLE July 1, 2016 $1,000,000.00 Smith, Watts & Hartman State Legislative Advocacy Services 18,000.00 0.00 18,000.00 Alvarado Smith Legal Services 16,000.00 0.00 16,000.00 AMOUNT USED 34,000.00 34,000.00 $966,000.00 None N/A $- $- $- Jose Mendoza Theresia Trevino Prepared by Reviewed by AMOUNT USED SINGLE SIGNATURE AUTHORITY AS OF September 30, 2016 Note: Shaded area represents new contracts listed in the first quarter. AMOUNT REMAINING through September 30, 2016 Agreements that fall under Public Utilities Code 130323 (C) 2 AGENDA ITEM 6B Agenda Item 6B RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee THROUGH: Anne Mayer, Executive Director SUBJECT: Amendment to the 91 Express Lanes Operator Agreement WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 13-31-105-01, Amendment No. 1 to Agreement No. 13-31-105-01, the operator agreement (ORCOA) between the Orange County Transportation Authority (OCTA), the Commission, and Cofiroute USA, LLC (Cofiroute), for a net reduction in operations and maintenance services for the 91 Express Lanes in an amount of $2,900,947, and a total amount not to exceed $31,196,999; and 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission. BACKGROUND INFORMATION: In May 2013 the Commission approved the ORCOA to facilitate the joint operation of the 91 Express Lanes between the Commission and OCTA (Parties) through the use of the existing contractor, Cofiroute. The scope of work included in the ORCOA identifies the Parties’ responsibilities that are shared and those that are unique to each agency. It also establishes the Parties’ financial obligation for their respective responsibilities. As the Commission moves toward the opening of the 91 Express Lanes and the scope of work is more defined, certain elements of the agreement need to be amended. While certain items were identified in the agreement to be addressed before opening, others were unanticipated operational changes that require a modification to the scope of work. The ORCOA included a negotiated annual 3 percent escalation increase to the annual lump sum price. However, based on a review of the consumer price index over the past three years, staff has determined a 2 percent annual increase through July 2021 to be more reasonable. This change results in a $922,314 reduction to the ORCOA. The scope of work includes the provision of a customer assistance specialist (CAS). The CAS was to be provided by Cofiroute for on-road customer assistance. However, the Commission was informed by the California Highway Patrol that the Commission is required to operate on-road customer assistance services through the Freeway Service Patrol (FSP) program as designated 3 Agenda Item 6B by the Freeway Service Patrol Act. Subsequently, staff competitively procured dedicated on- road customer assistance services for the 91 Express Lanes, and the Commission awarded a FSP agreement to a firm in September. As a result of this change, an amendment is necessary to remove the CAS from the scope of work and to reduce the Commission’s share of the agreement by $2,235,128. The scope of work requires Cofiroute to provide maintenance of the on-road equipment, vehicles, and facilities. However, it does not address who is responsible for providing the vehicles to be used and maintained by Cofiroute. OCTA has provided Cofiroute with service vehicles for use on its portion of the 91 Express Lanes, and the Commission needs to provide three maintenance trucks for use on the Commission’s extension of the 91 Express Lanes in Riverside County. Cofiroute provided the Commission with three separate bids for the maintenance trucks and will purchase the trucks from the lowest bidder. The estimated cost of the trucks, equipment, uniforms, and equipment rental for the term of the contract is $256,495. The proposed changes to the ORCOA costs are as follows: Original Agreement Amount $34,097,946 Escalation Reduction to 2 percent ($922,314) CAS Reduction ($2,235,128) Maintenance Vehicles $256,495 Revised Agreement Amount $31,196,999 Staff requests approval of an amendment to the ORCOA to change the annual escalation rate, remove the CAS from the scope of work, and include the purchase of service vehicles and related costs resulting in a net reduction of $2,900,947. The FY 2016/17 budget includes a 3 percent escalation, CAS costs, and cost for purchasing and maintaining the maintenance trucks. The amount related to CAS costs has been transferred to the FSP expenses budget; therefore, a budget adjustment is not required. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: ($218,544) ($2,682,403) 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 73302 Fiscal Procedures Approved: Date: 10/17/2016 Attachment: ORCOA Amendment No. 13-31-105-01 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 1 924805.1 AMENDMENT NO. 1 OCTA AGREEMENT NO. C-3-1529 RCTC AGREEMENT NO. 13-31-105-01 AMONG ORANGE COUNTY TRANSPORTATION AUTHORITY, RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND COFIROUTE USA, LLC. THIS AMENDMENT NO. 1 TO AGREEMENT is entered into this _______ day of ______________, 2016, (the “Entered Into Date”) by and among the Orange County Transportation Authority, a public corporation of the state of California (the “AUTHORITY”); the Riverside County Transportation Commission, a public agency (the “COMMISSION”); and Cofiroute USA, LLC., a Delaware limited liability company (“CONTRACTOR”). The AUTHORITY, the COMMISSION and CONTRACTOR are sometimes individually referred to herein as a “Party” and collectively as the “Parties.” The AUTHORITY and the COMMISSION are sometimes individually referred to herein as an “Agency” and collectively as the “Agencies.” WITNESSETH: WHEREAS, the Parties have entered into that certain three party operating agreement, OCTA Agreement No. C-3-1529, RCTC Agreement No. 13-31-105-00, dated as of May 24, 2013 (the “Operating Agreement”), pursuant to which AUTHORITY and COMMISSION engaged CONTRACTOR to provide management and operational services for the 91 Express Lanes, with the mutual intent of the Agencies of operating said lanes as a single, seamless toll facility from the customer’s perspective, as further detailed herein. WHEREAS, the Parties desire to amend the terms of the Operating Agreement in order to eliminate Customer Assistance Specialist (“CAS”) from the Joint Statement of Work, and move these services to the AUTHORITY Statement of Work, as CONTRACTOR will not provide these ATTACHMENT 1 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 2 924805.1 services for COMMISSION. WHEREAS, the COMMISSION desires to amend the COMMISSION Statement of Work to remove the pre-operations costs related to CAS. WHEREAS, the COMMISSION desires to amend the COMMISSION Statement of Work to include terms regarding certain maintenance vehicles to be acquired by CONTRACTOR, and to provide an allowance for equipment and vehicle rentals. NOW, THEREFORE, for valuable and adequate consideration, receipt of which is hereby acknowledged, it is mutually understood and agreed by the AUTHORITY, the COMMISSION and CONTRACTOR as follows: 1. Capitalized terms not otherwise defined in this Amendment No. 1 shall have the meanings ascribed to such terms in the Operating Agreement. 2. The Joint Statement of Work contained in Exhibit “A” of the Operating Agreement is hereby amended to revise or remove the provisions related to CAS, as set forth in Exhibit “A” attached to this Amendment No. 1. 3. The AUTHORITY Statement of Work contained in Exhibit “B” of the Operating Agreement is hereby amended to add the provisions related to CAS, as set forth in Exhibit “B” attached to this Amendment No. 1. 4. The COMMISSION Statement of Work contained in Exhibit “C” of the Operating Agreement is hereby amended to add the provisions related to maintenance vehicles, remove the pre-operations costs related to CAS, and to make other changes as set forth in Exhibit “C” attached to this Amendment No. 1. 5. Article 7(F) shall be amended, in its entirety, to read as follows: The Monthly Lump Sum Price and the additional payments described in Articles 7(B)(2)(a) and 7(C)(2)(b), except as may be expressly set forth in the COMMISSION Statement of Work or the AUTHORITY Statement of Work, shall be subject to an automatic annual 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 3 924805.1 increase in accordance with this Article 7(F). For the period commencing July 1, 2016 through June 30, 2021, the automatic annual increase shall be two percent (2%) per year. 6. Article 7(J)(1) shall be amended, in its entirety, to read as follows: (1) AUTHORITY's and COMMISSION's respective maximum cumulative payment obligation, hereunder, for the Joint Statement of Work, for the period commencing on the Effective Date through June 30, 2021, shall not exceed Twenty Six Million, Four Hundred Fifty Nine, Thousand, Three Hundred Twelve dollars ($26,459,312), (excluding from the maximum cumulative payment obligation, an amount equal to: (1) the Temporary Supplement Amount; (2) the difference between the New Monthly Lump Sum Payment and the Monthly Lump Sum Price, or (3) any Resumption Costs, as each may be applicable) which shall include all amounts payable to CONTRACTOR for its performance of the Joint Statement of Work, and for all subcontracts, leases, materials and costs arising from, or due to termination of, this Agreement. 7. Article 7(J)(2) shall be amended, in its entirety, to read as follows: AUTHORITY's maximum cumulative payment obligation, hereunder, for the AUTHORITY Statement of Work, for the period commencing on the Effective Date through June 30, 2021, shall not exceed Four Million, One Hundred Thirty Five Thousand, Two Hundred Four Dollars ($4,135,204), which shall include all amounts payable to CONTRACTOR for its performance of the AUTHORITY Statement of Work, and for all subcontracts, leases, materials and costs arising from, or due to termination of, this Agreement. 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 4 924805.1 8. Article 7(J)(3) shall be amended, in its entirety, to read as follows: COMMISSION’s maximum cumulative payment obligation, hereunder, for the COMMISSION Statement of Work, for the period commencing on the Effective Date through June 30, 2021, shall not exceed One Million, Six Hundred Thirty-Seven Thousand, Eight Hundred Seventy Four Dollars ($1,637,874), which shall include all amounts payable to CONTRACTOR for its performance of the COMMISSION Statement of Work, and for all subcontracts, leases, materials and costs arising from, or due to termination of, this Agreement. 9. Article 7, Payment, subsection K is amended in its entirety to read as follows: K. The amount of the Monthly Lump Sum Price payable by AUTHORITY and COMMISSION, respectively, during the annual periods following the Actual Opening Date shall be determined by adjusting the baseline sums set forth below in accordance with Article 7(F) from the Entered Into Date. The baseline sum for purposes of calculating the amount of the Monthly Lump Sum Price for the first six (6) months following the Actual Opening Date shall be Four Hundred Thirty-Seven Thousand, Fifty Dollars and Thirty-Four Cents ($437,050). The baseline sum for purposes of calculating the Monthly Lump Sum Price for the period commencing six (6) months following the Actual Opening Date through June 30, 2021 shall be Four Hundred Eighteen Thousand, Five Hundred Eighty-Four Dollars and Nine Cents ($418,584.09). 10. COUNTERPARTS This instrument may be executed in two or more counterparts, each of which shall be 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 5 924805.1 deemed an original, but all of which together shall constitute one and the same instrument. 11. GOVERNING LAW; VENUE This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles. The parties agree that exclusive original jurisdiction and venue for any legal action or proceeding, at law or in equity, that is permitted to be brought by a party in court arising out of this Agreement shall be in the Superior Court for the County of Riverside, California or the Superior Court for the County or Orange, California. 12. CONTINUING EFFECT. Except as amended by this Amendment No. 1, all provisions of the Operating 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 No. 1. [Signatures on following page] 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 6 924805.1 SIGNATURE PAGE TO AMENDMENT NO. 1 TO OCTA AGREEMENT NO. C-3-1529 RCTC AGREEMENT NO. 13-31-105-01 AMONG ORANGE COUNTY TRANSPORTATION AUTHORITY, RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND COFIROUTE USA, LLC. RIVERSIDE COUNTY ORANGE COUNTY TRANSPORTATION COMMISSION TRANSPORTATION AUTHORITY By: By: _______________________ Its: ________________________ Its: _______________________ APPROVED AS TO FORM: APPROVED AS TO FORM: BEST BEST & KRIEGER LLP By: ____________________________ By: _______________________ Counsel to the Riverside General Counsel to Orange County Transportation Commission County Transportation Authority COFIROUTE USA, LLC By: Gary L. Hausdorfer Chairman and Chief Executive Officer 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 A-1 924805.1 EXHIBIT A AMENDMENTS TO JOINT STATEMENT OF WORK Exhibit A of the Operating Agreement shall be amended as described herein. 1. Delete Section 1-4 OPERATIONS REQUIREMENTS, subsection C-5: C-5 Customer Assistance Specialist (CAS) o Uniforms o Transportation and Vehicles 2. Section A-2, GENERAL BUSINESS ADMINISTRATION, subsection A-2.3 Policies and Procedures, shall be amended to remove Customer Assistance Specialist from the list of functional areas for which policies and procedures are identified. 3. Section C-1, STAFFING, subsection C-1.2 Required Key Personnel, shall be amended to provide CAS manager for the OCTA Portion only, and to provide coordination with COMMISSION provided Freeway Services Patrol (FSP) for the RCTC Portion. As revised, subsection C-1.2 shall read as follows: An Operations Manager — responsible for maintenance of on-road equipment and cameras, maintenance of generators and UPS, and management of 24/7 TOC for both portions of the 91 Express Lanes facility, CAS for OCTA Portion only, and coordination with COMMISSION FSP for RCTC Portion. Responsibilities include managing and scheduling Caltrans maintenance and CHP patrols and other contracted road repair and maintenance work as may be necessary from time to time for each AGENCY. 4. Section C-3, ROUTINE OPERATIONS AND MAINTENANCE, subsection C-3.5 Accident/Incident Reporting, shall be amended to provide CAS manager for the OCTA Portion only, and to provide coordination with COMMISSION provided Freeway Services Patrol (FSP) for the RCTC Portion. As revised, subsection C-3.5 shall read as follows: The CONTRACTOR shall report to the AGENCIES all incidents involving fire, robber, accidents, or similar events in a timely manner per SOP and documented by an Accident/Incident (A/I) report as necessary. Reports from customers and other sources concerning accidents and/or incidents shall be verified and reported as required by the SOP to allow for rapid and efficient dispatch as required. The CONTRACTOR shall maintain a complete record and log of all accidents and incidents and shall notify the AGENCIES in accordance with the approved SOP. The CONTRACTOR shall also maintain a record of motorist assists (number, type of assist, and time of day) which shall be summarized and included in the operating reports to the 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 A-2 924805.1 AGENCIES. FSP shall provide the CONTRACTOR the record of motorist assist identified above for RCTC portion only. 5. Add the following to Section C-3 ROUTINE OPERATION AND MAINTENANCE OVERVIEW, subsection C-3.8 Uniforms C-3.8 Uniforms-ETTM employees The CONTRACTOR shall provide uniforms to all CONTRACTOR employees who, as a regular part of their job, come in contact with the AGENCIES' customers or the general public. ETTM personnel wear uniforms when working on the road; other contract staff must dress in a professional manner. The CONTRACTOR shall provide an adequate number of uniforms, along with a professional cleaning service, to assure that each CONTRACTOR employee has a clean uniform. Uniforms shall be conformed to identify both OCTA and RCTC 91 Express Lanes operations. 6. Delete the following portion of Section C-4 TRAFFIC OPERATIONS, subsection C-4.1, Emergency Services Coordination, related to the operation of CAS: A CAS will be operated by the CONTRACTOR as directed by the AGENCIES. 7. Delete Section C-5 CUSTOMER ASSISTANCE SPECIALIST (CAS): C-5.1 Uniforms- The CONTRACTOR shall provide uniforms to all personnel who, as a regular part of their job, come in contact with the AGENCIES' customers or the general public. Presently, Customer Assistance Specialist (CAS) members and ETTM personnel wear uniforms when working on the road; other contract staff dresses in a professional manner. The CONTRACTOR shall provide an adequate number of uniforms, along with a professional cleaning service, to assure that each employee has a clean uniform. Uniforms shall be conformed to identify both OCTA and RCTC 91 Express Lanes operations. C-5.2 Transportation and Vehicles, The CONTRACTOR shall operate a customer service patrol/motorist service program which is provided to promote safety and rapid travel through the Express Lanes. This service utilizes uniformed attendants who are dispatched from the toll plaza to patrol the lanes for disabled vehicles, road hazards, accidents, and other incidents which affect the safety and efficiency of the toll lanes. Attendants may tow vehicles, change tires, provide small quantities of gasoline, remove debris and help support in lane activities by the CHP and/or Caltrans when requested. The 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 A-3 924805.1 service currently operates with 5 to 6 patrol attendant positions during the following hours: • Monday-Friday — 5:00 a.m. to 9:00 p.m. • Saturday — 8:00 a.m. to 7 p.m. • Sunday — 8:00 a.m. to 9:00 p.m. The CAS responds to the following events on a regular basis. • Assist with a traffic incident • Assist with a traffic break • Assist with vehicle battery failures • Assist with clearing of channelizers or buffer debris • Flat tire assistance (change or inflate) • Gasoline/Diesel fuel assistance • Assist California Highway Patrol • Provide information • Assist with vehicle mechanical failure • Assist with overheated vehicle 8. Section C-5.2 Transportation and Vehicles, shall be amended in its entirety to read as follows: The CONTRACTOR shall operate all AGENCY provided vehicles necessary to perform the Work in conformance with the Agreement. The AGENCIES will provide vehicles to support maintenance services. A procedure shall be implemented to allow for operation of the vehicles in a clean and safe manner. The CONTRACTOR shall be responsible for the maintenance of the vehicles. The CONTRACTOR shall utilize AGENCY provided vehicles as necessary to carry out all aspects of the work. 9. Amend ORCOA Exhibit A, Attachment 1, to remove the performance requirements related to CAS. As amended, Attachment 1 shall read as follows: ORCOA Exhibit A Attachment 1— Performance Measures PERFORMANCE & MEASUREMENTS FOR TRAFFIC OPERATIONS 1. Initial & Secondary Review Performance This performance standard affects Traffic Operations Center (TOC) employees. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 A-4 924805.1 A. Measure=All initial & secondary reviews that are forwarded by RAMS to the TOC/Roadside Operations departments will be completed and to the processing department within 15 days of receipt by the TOC/Roadside Operations. Measurement Source: Productivity Report from CONTRACTOR Intranet B. Initial and Secondary Review Errors This measurement refers to the percentage of plate misread errors that occur. Measure= the monthly performance standard for plate misread errors is established at misreads = or less than .4% of the number of plates read in a given month. Measurement Source: Plate Misread Error Report from CONTRACTOR Intranet Measurement Notes: The plate read error rate performance standard will be waived if either one or both of the following occur: If the back office system (RAMS) or the in-lane system fails to perform as expected, creating a backlog of images for CONTRACTOR staff to review, the performance measure will be waived for the period of time it reasonably takes CONTRACTOR staff to review the backlog. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 B-1 924805.1 EXHIBIT B AUTHORITY STATEMENT OF WORK Exhibit B of the Operating Agreement shall be amended to add the following Customer Assistance Specialist (CAS) related provisions to the AUTHORITY Statement of Work. 1. OPERATIONS REQUIREMENTS: CONTRACTOR shall perform and provide as applicable: Customer Assistance Specialist (CAS) o Uniforms o Transportation and Vehicles 2. GENERAL BUSINESS ADMINISTRATION, Policies and Procedures shall be provided for Customer Assistance Specialist. 3. TRAFFIC OPERATIONS, Emergency Services Coordination: A CAS will be operated by the CONTRACTOR as directed by the AGENCY. 4. CUSTOMER ASSISTANCE SPECIALIST (CAS) a. Uniforms. The CONTRACTOR shall provide uniforms to all Customer Assistance Specialist (CAS) members. The CONTRACTOR shall provide an adequate number of uniforms, along with a professional cleaning service, to assure that each CAS employee has a clean uniform. Uniforms shall be conformed to identify AUTHORITY 91 Express Lanes operations. b. Transportation and Vehicles. The CONTRACTOR shall operate all AGENCY provided vehicles necessary to perform the Work in conformance with the Agreement. The AGENCY will provide vehicles to support motorist/roadside service. A procedure shall be implemented to allow for operation of the vehicles in a clean and safe manner. The CONTRACTOR shall be responsible for the maintenance of the vehicles. The CONTRACTOR shall utilize AGENCY provided vehicles as necessary to carry out all aspects of the work. The CONTRACTOR shall operate a customer service patrol/motorist service program which is provided to promote safety and rapid travel through the Express Lanes. This service utilizes uniformed attendants who are dispatched from the toll plaza to patrol the lanes for disabled vehicles, road hazards, accidents, and other incidents which affect the safety and efficiency of the toll lanes. Attendants may tow vehicles, change tires, provide small quantities of gasoline, remove debris and help support in lane activities by the CHP and/or Caltrans when requested. The service currently operates with 5 to 6 patrol attendant positions during the following hours: • Monday-Friday — 5:00 a.m. to 9:00 p.m. • Saturday — 8:00 a.m. to 7 p.m. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 B-2 924805.1 • Sunday — 8:00 a.m. to 9:00 p.m. The CAS responds to the following events on a regular basis. • Assist with a traffic incident • Assist with a traffic break • Assist with vehicle battery failures • Assist with clearing of channelizers or buffer debris • Flat tire assistance (change or inflate) • Gasoline/Diesel fuel assistance • Assist California Highway Patrol • Provide information • Assist with vehicle mechanical failure • Assist with overheated vehicle 5. PERFORMANCE & MEASUREMENTS FOR CAS Performance response time refers to the time it takes CAS Tow Truck drivers to respond to incidents on the 91 Express Lanes ("Lanes") after notification by TOC and/or California Highway Patrol (CHP). Response times are dependent upon prompt notification to the CAS Tow Truck Driver of the incident by CHP and/or TOC and severity of traffic congestion at the time of the incident. Measure= The average monthly performance standard for response time by CAS Tow Truck drivers to incidents on the Lanes is established at 20 minutes per call. Measurement Source: Response Time Report from CONTRACTOR Intranet 6. The CAS Services under this AUTHORITY Statement of Work shall be provided for the following Monthly Lump Sum Price: Thirty-Three Thousand, Seven Hundred Sixty-Six Dollars and Twenty-Six Cents ($33,766.26) and subject to Article 7(F), which was amended in this amendment. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 C-1 924805.1 EXHIBIT C COMMISSION STATEMENT OF WORK 1. TERMS REGARDING MAINTENANCE VEHICLES a. CONTRACTOR shall purchase three (3) maintenance trucks (the “Vehicles”), to be equipped with accessories to be used by CONTRACTOR in connection with performance of the Services under this Agreement, at a price agreed upon in advance by the COMMISSION. CONTRACTOR shall provide the COMMISSION with a bill of materials to be installed on the Vehicles as accessories to maintain safe operations of the Vehicles, subject to approval by the COMMISSION. Accessories and installation of such accessories shall be CONTRACTOR’s responsibility. CONTRACTOR shall obtain three (3) quotes for accessories and installation. CONTRACTOR’s labor may be reimbursed at an Operations Manager level not to exceed 24 hours. CONTRACTOR shall be reimbursed for the total amount of the invoiced costs for the purchase of the Vehicles and for the accessories and installation thereof, provided such costs are in accordance with the price/cost agreed upon in advance by the COMMISSION, and provided that such costs do not exceed the amount identified in the table below, without written approval of the COMMISSION’s Executive Director. b. Following purchase of the Vehicles, CONTRACTOR shall provide a written notice to COMMISSION identifying the make, model and year of each of the Vehicles. Said notice shall be incorporated into this Agreement by reference. Title to the Vehicles shall be held by CONTRACTOR during the term of this Agreement, except as otherwise provided below, and will be used by CONTRACTOR for maintenance purposes in accordance with the terms of this Agreement. The CONTRACTOR shall maintain the Vehicles in accordance with this Agreement and shall provide the COMMISSION the maintenance logs upon request. c. The COMMISSION has determined that it is in its best interests and the best use of funds to have CONTRACTOR purchase the Vehicles as specified herein. In addition, the COMMISSION has determined that it is in its best interest of COMMISSION for CONTRACTOR to hold title to the Vehicles in the name of CONTRACTOR in order to reduce the cost that could result from operation, maintenance and repair of the Vehicles, as well as the cost of Vehicle registration and insurance. d. Title in the Vehicles shall be conveyed by the CONTRACTOR to the COMMISSION upon expiration or termination of this Agreement pursuant to the terms and conditions of this Agreement. In addition, the COMMISSION shall have the right to demand that title in the Vehicles be conveyed to the COMMISSION at any time prior to expiration or termination of this Agreement. Conveyance of title in the Vehicles to the COMMISSION pursuant to this Exhibit “C” shall be for consideration in the total amount of One Dollar ($1.00). The parties agree to cooperate with each other in the execution of any documentation required to convey title in the Vehicles to the COMMISSION. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17336.02100\29000227.4 C-2 924805.1 2. EQUIPMENT AND VEHICLE RENTAL. CONTRACTOR shall be entitled to rent equipment and vehicles, on an as needed basis, subject to COMMISSION prior approval, for a not to exceed total annual sum of Twenty Thousand Dollars ($20,000), which annual sum shall be subject to escalation pursuant to Article 7(F) of the Operating Agreement, as amended herein. Reimbursement for equipment and vehicle rental at actual rental cost may be made pursuant to this Exhibit “C”. Leased vehicles shall be used in accordance with the terms of the Agreement, and this Exhibit “C”. 3. AMENDMENT TO EXHIBIT “C” OF OPERATING AGREEMENT. Exhibit “C” of the Operating Agreement shall be amended to remove the following items from the Work Description chart: Item 7, Training for a full-time Customer Assistance Specialist (CAS) Item 8, Training for four (4) full-time CAS Drivers 4. AMENDMENT TO PRE-OPERATIONS SERVICES COSTS. The total compensation for Pre-Operations Services, as set forth in Exhibit “C” of the Operating Agreement, shall be increased by One Hundred Forty-Five Thousand, Eight Hundred Nineteen Dollars and Ninety-Six Cents ($145,819.96). The new total compensation amount for Pre-Operations Services shall not exceed One Million, Two Hundred Twenty-Four Thousand, Four Hundred Thirty-Six Dollars ($1,224,436). 18 AGENDA ITEM 6C Agenda Item 6C RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Shirley Medina, Planning and Programming Director THROUGH: Anne Mayer, Executive Director SUBJECT: Transportation Uniform Mitigation Fee Regional Arterial Program – Project Delivery Update WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to receive and file a status report on the Transportation Uniform Mitigation Fee (TUMF) Regional Arterial program. BACKGROUND INFORMATION: Per the 2008 TUMF restated Memorandum of Understanding (MOU) between the Commission and the Western Riverside Council of Governments (WRCOG) and the WRCOG Administrative Plan, the Commission receives 46.39 percent of TUMF revenues. Of the Commission’s share, 50 percent is allocated to the TUMF Regional Arterial program with the remaining 50 percent allocated to projects designated under the Community and Environmental Transportation Acceptability Program (CETAP) corridors. These corridors include Riverside-Orange County, Riverside-San Bernardino County, North-South, and East-West corridors. In 2004, the Commission approved a total of 24 projects for Western Riverside County TUMF Regional Arterial program in addition to funding allocated to the Commission’s State Route 79 realignment project for a total of 25 projects. Of the 24 local agency regional arterial projects, two were substituted, and four projects were suspended. As a result, 20 local agency projects remain in the program. Total TUMF revenues and expenditures since inception reported by the Commission through June 30, 2016, are as follows: 19 Agenda Item 6C CETAP Regional Arterials Total Revenues, including interest $ 166,951,517 $ 166,705,596 $ 333,657,113 Expenditures (127,503,132) (135,537,300) (263,040,432) Balance 39,448,385 31,168,296 70,616,681 Outstanding Commitments (39,448,385) (16,361,821) (55,810,206) Uncommitted Balance $ 0 $ 14,806,475 $ 14,806,475 The majority of the regional arterial projects are under agreement. These projects have also either completed construction or are under construction, attached. The Commission approved one developer credit reimbursement agreement with the city of Corona in the amount of $3,051,636. The Commission approved an annual 10 percent set aside of budgeted Regional Arterial funds for this developer credit reimbursement and to date the developer has been reimbursed $2.5 million. There are three projects remaining to be programmed for the construction phase as follows: • Interstate 15/Railroad Canyon Interchange • Interstate 15/Limonite Avenue Interchange • Van Buren Boulevard, Washington Street to Wood Road Preliminary project estimates for the above projects would require $80 million or more to fully fund construction. FY 2016/17 TUMF revenue projections total $18.5 million, with $9.25 million for regional arterials and $9.25 million for CETAP. Based on current revenue estimates, it could take several years to accrue enough funds to complete funding for the above three projects. Therefore, staff does not anticipate including additional projects into the Regional Arterial program until such time these projects are fully funded. Attachment: TUMF Project Delivery Status 20 TUMF Regional Arterial Program - Current Project Delivery Status (Including Original 24 Projects Approved Sept 2004) 1 Corona Green River, Dominguez Ranch Rd - SR 91 Funding Complete X Funded phase. 2 Corona Foothill Parkway Extension Funding Complete X 3 Corona I-15/El Cerrito Rd Funding Complete X 4 Riverside Co.I-15/Limonite IC *Needs Cons Funds X Substituted project that replaced I-15/Schleisman IC in 2012. Riverside Co.I-15/Schleisman IC Substituted Environmental issues. Replaced with Limonite IC. Riverside Co.I-15/Clinton Keith Rd Funding Complete X Project funded & completed with non TUMF funding sources. -Riverside Co.New IC at Eastern Bypass Suspended X In 2009, Commission approved suspension of the project and transferred funding balance to SR79. 5 Riverside Co.Bundy/Scott Road improvements Funding Complete X PA&ED funded phase. 6 Riverside Co.SR79 - widen Thompson-Domenigoni Funding Complete X 7 Riverside Co.Van Buren Bridge, Clay - SAR Funding Complete X 8 Riverside Co.Van Buren, Washington -Wood Needs R/W, Cons X -Riverside Co.Eastern Bypass, Auld - I-15 Suspended In 2009, Commission approved suspension of project and transferred funding balance to SR 79. -Riverside Co.Potrero Blvd, San Tim-Oak Valley-SR79 Suspended No agreement for project. Postponed. 9 Riverside SR91/Van Buren IC Funding Complete X 10 Riverside Van Buren, Andrew - Garfield Funding Complete X 11 Riverside Van Buren, SAR - Jackson Funding Complete X 12 San Jacinto Ramona Expwy - Sanderson - WCL Funding Complete X -San Jacinto Ramona Expwy - Seventh - Cedar Substituted Environmental issues. Replaced with Sanderson-Eagle 13 San Jacinto Ramona Expwy Ext., Sanderson - Eagle *Funding Complete X In 2012, Commission approved as substitution. 14 Temecula I-15/French Valley Pkwy Funding Complete X Project phased. STIP funds programmed for Cons. 15 Temecula I-15/SR79 IC Funding Complete X 16 Temecula Western Bypass Study Funding Complete X Study complete. 17 Moreno Valley Perris Blvd, PVSD Lateral B - Cactus Funding Complete X 18 Moreno Valley Perris Blvd, Ironwood - Manzanita Funding Complete X 19 Lake Elsinore I-15 Railroad Canyon IC Needs Cons funds X Project currently finishing PA&ED 20 Perris Perris Blvd, Ramona Expwy - PVSD Lat. B Funding Complete X Bolded projects require future construction programming. *Substitution Projects Project Status Agency Project CommentNo. #Programming Status Under Cons Cons Comp/ Invoicing Cons Complete/ Closed OutPre-Cons ATTACHMENT 1 21 AGENDA ITEM 6D Agenda Item 6D RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Alex Menor, Capital Projects Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Agreement for Final Design and Right of Way Acquisition for the Construction of the Interstate 215/Placentia Avenue Interchange Improvement Project WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Award Agreement No. 16-31-066-00 to T.Y. Lin International (T.Y. Lin) to perform final engineering services and prepare plans, specifications, and cost estimate (PS&E) for the construction of the Interstate 215/Placentia Avenue interchange improvements project (Project) in the amount of $3,412,700, plus a contingency amount of $341,300 for potential changes in scope, for a total amount not to exceed $3,754,000; 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 contingency work as may be required for the Project; 4) Approve Agreement No. 17-31-039-00 with Caltrans for the final design and right of way (ROW) acquisition of the Project; 5) Authorize the Executive Director, pursuant to legal counsel review, to execute the agreement and future non-funding related amendments to this agreement; 6) Authorize the Executive Director, pursuant to legal counsel review, to execute utility agreements required for the Project in an amount not to exceed $1.2 million; and 7) Authorize the Executive Director, pursuant to legal counsel review, to acquire required parcels and mitigation property for the Mid County Parkway (MCP) project in accordance with the Commission’s ROW policies and procedures and subject to available funding. BACKGROUND INFORMATION: The Commission has studied opportunities to improve mobility in Western Riverside County since 1998. The Community and Environmental Transportation Acceptability Process (CETAP) is one of the elements of the Riverside County Integrated Project (RCIP), initiated by Riverside County (County) in 1998. The other two elements of the RCIP are the Riverside County General Plan and 22 Agenda Item 6D the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP). The primary purpose of CETAP was to determine where to locate possible major new transportation facilities to serve the current and future transportation needs of Western Riverside County while preserving critical habitat. CETAP represented a balanced approach to the provision of important transportation improvements, while limiting the impacts on communities and the environment. Major transportation facilities invariably have impacts, but the benefits of new transportation facilities to Western Riverside County are substantial and the actions are critical to sustaining mobility for the County’s future. The CETAP corridors are part of the overall system of transportation improvements and the corridors do not stand alone, however these corridors are an integral part of the County’s general plan and the MSHCP. As part of the CETAP process, the Commission approved moving forward with project level environmental studies for the MCP project on December 13, 2003. At its April 2015 meeting, the Commission as the lead agency under the California Environmental Quality Act (CEQA) certified the final environmental impact report, adopted findings pursuant to CEQA, adopted a mitigation monitoring and reporting program, adopted a statement of overriding considerations, and approved the MCP project. As the lead agency under the National Environmental Policy Act, the Federal Highway Administration approved the final environmental impact statement on April 15, 2015, and issued a record of decision for the MCP project in August 2015. At its January 2016 meeting, the Commission authorized staff to proceed with design and ROW acquisition for the Project as the first construction contract for the MCP project notwithstanding the current legal challenges to the MCP project. At its March 2016 meeting, the Commission approved an agreement with Overland, Pacific and Cutler, Inc. (OPC) to provide ROW support services for the MCP project. DISCUSSION: The first project related to the MCP is the construction of a new interchange at I-215 and Placentia Avenue in the city of Perris. Procurement Process for Final Design Pursuant to Government Code 4525 et seq, selection of architect, engineer, and related services shall be on the basis of demonstrated competence and on professional qualifications necessary for the satisfactory performance of the services required. Therefore, staff used the qualification method of selection for the procurement of PS&E services for the Project. Evaluation criteria included elements such as qualifications of firm, staffing and project organization, project understanding and approach, and the ability to respond to the requirements set forth under the terms of a request for qualifications (RFQ). 23 Agenda Item 6D RFQ No. 16-31-066-00 for preparation of plans, specifications, and estimates for the Project was released by staff on June 30, 2016. A public notice was advertised in the Press Enterprise, and the RFQ was posted on the Commission’s Planet Bids website, which is accessible through the Commission’s website. Through Planet Bids, 92 firms downloaded the RFQ; 23 of these firms are located in Riverside County. A pre-submittal meeting was held on July 14 and attended by 17 firms. Staff responded to all questions submitted by potential proposers prior to the July 28 clarification deadline date. Six firms – AECOM; Jacobs Engineering Group, Inc. (Jacobs); Michael Baker International, Inc. (Michael Baker); Moffatt & Nichol; Parsons Transportation Group, Inc.; and T.Y. Lin; – submitted responsive and responsible statements of qualifications prior to the 2:00 p.m. submittal deadline on August 4. Based on the evaluation criteria set forth in the RFQ, the firms were evaluated and scored by an evaluation committee comprised of Commission, Bechtel, city of Perris, and Caltrans staff. Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFQ, the evaluation committee shortlisted and invited four firms (AECOM, Jacobs, Michael Baker, and T.Y. Lin) to the interview phase of the evaluation and selection process. Interviews were conducted on August 24. The evaluation committee conducted a subsequent evaluation of each firm, based on both written and interview components presented to the evaluation committee by each proposer. Accordingly, the evaluation committee recommends contract award to T.Y. Lin to provide PS&E services for the Project, as it earned the highest total evaluation score. Subsequently, staff negotiated the scope of work (including the appropriate level of effort, labor categories/mix, etc.), cost, and schedule proposal received from T.Y. Lin for the Project services and established a fair and reasonable price. The proposed cost, including contingency, is $3,754,000. Staff anticipates advertising for the construction contract by early 2019. Other Agreements A cooperative agreement with Caltrans will be needed to identify the Commission and Caltrans responsibilities for acquisition of right of way and for final design, or preparation of plans, specifications, and estimate for the Project. In addition, the Project will require separate agreements with impacted utility companies, i.e. gas, water, sewer, telephone, cable, and electric at an estimated cost of $1.2 million. It is anticipated approximately 438 assessor parcels will be impacted by the MCP project, including the first segment related to the Project. The properties are comprised of residential, commercial, industrial, and agricultural uses and are almost twice as many as the SR-91 Corridor Improvement Project. Current estimated right of way acquisition costs for the MCP are $237 million; costs for the Project represent approximately 3.3 percent of the total cost. OPC will provide right of way support services for the MCP project. Based on Commission feedback 24 Agenda Item 6D related to approval processes for previous Commission projects requiring significant right of way acquisition, staff has considered a proper balance of timing and legal requirements. Therefore, staff recommends authorization for the Executive Director, pursuant to legal counsel review, to acquire required parcels and mitigation property for the MCP project in accordance with the Commission’s right of way policies and procedures and subject to available funding. Recommendation Staff recommends award of Agreement No. 16-31-066-00 to T.Y. Lin to perform PS&E services for the Project, based on the final negotiated project scope and cost of $3,412,700, plus the contingency amount of $341,300, for a total amount not to exceed $3,754,000. Staff also recommends approval of Agreement No. 17-31-039-00 with Caltrans to define each agency’s responsibilities for the acquisition of right of way and preparation of PS&E. Additionally, staff recommends authorization for the Executive Director to approve utility agreements for the Project and to acquire required parcels and mitigation property for the MCP project. There are sufficient funds in the FY 2016/17 budget for the PS&E services, utility relocations, and right of way acquisitions, and a budget amendment is not required. Subsequent years’ final design, utility relocation, and right of way acquisition costs will be budgeted, subject to available funding. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 7,250,000 $234,704,000 Source of Funds: 2009 Measure A Western County New Corridors Budget Adjustment: No N/A GL/Project Accounting No.: 612317 81102 00000 0000 261 31 81102 $3,754,000 (final design) 612317 81402 00000 0000 261 31 81401 $1,200,000 (utilities relocation) 612302 81401 00000 0000 261 31 81401 $237,000,000 (ROW acquisition) Fiscal Procedures Approved: Date: 10/18/2016 Attachments: 1) Exhibit Map – Placentia Interchange 2) Agreement No. 16-31-066-00 with T.Y. Lin 3) Cooperative Agreement No. 17-31-039-00 with Caltrans 25 26 AGREEMENT NO. 16-31-066-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR PREPARATION OF PLANS, SPECIFICATIONS AND ESTIMATES (PS&E) WITH T.Y. LIN INTERNATIONAL 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 T.Y. LIN ("Consultant"), a [___LEGAL STATUS OF CONSULTANT e.g., CORPORATION___]. 2. RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing the preparation of plans, specifications, and estimates to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the Interstate 215/Placentia Avenue Interchange Improvements Project ("Project") as set forth herein. 3. TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to ________________, unless earlier terminated as provided herein. ATTACHMENT 2 27 Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 28 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. 29 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 Professional Liability. Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $1,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. 30 3.12.4 Aircraft Liability Insurance. Prior to conducting any Services requiring use of aircraft, Consultant shall procure and maintain, or cause to be procured and maintained, aircraft liability insurance or equivalent form, with a single limit as shall be required by the Commission. Such insurance shall include coverage for owned, hired and non-owned aircraft and passengers, and shall name, or be endorsed to name, the Commission, Caltrans and their directors, officials, officers, employees and agents as additional insureds with respect to the Services or operations performed by or on behalf of the Consultant. 3.12.5 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. 31 (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. 32 (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: 3.12.6 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. 3.12.7 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. 3.12.8 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received 33 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. 3.12.9 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 Three Million Four Hundred Twelve Thousand Seven Hundred Dollars ($3,412,700) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 34 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: 35 CONSULTANT: COMMISSION: T.Y. Lin International Riverside County 3633 East Inland Empire Blvd. Transportation Commission Suite 900 4080 Lemon Street, 3rd Floor Ontario, CA 91764 Riverside, CA 92501 Attn: Karen Chapman Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. 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 36 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 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. 37 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 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. 38 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 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. 39 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 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 40 to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight- Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require 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. 41 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] 42 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR PREPARATION OF PLANS, SPECIFICATIONS AND ESTIMATES (PS&E) WITH T.Y. LIN INTERNATIONAL IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY T.Y. LIN TRANSPORTATION COMMISSION INTERNATIONAL By: _________________________ By: ____________________________ [INSERT NAME] Signature Chair __________________________ Name [NOT NEEDED IF APPROVED BY COMMISSION] __________________________ Title By: ____________________________ Anne Mayer Executive Director Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 1. Exhibit "A"- Scope of Services 2. Exhibit "B" - Schedule of Services 3. Exhibit "C" - Compensation [ATTACHED BEHIND THIS PAGE] 43 44 AGREEMENT 08-1603 Project No. 0817000014 EA 0F321 08-RIV-215-29.06/30.01 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 1 of 16 COOPERATIVE AGREEMENT State Independent Quality Assurance This AGREEMENT, effective on _______________________________, is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and: Riverside County Transportation Commission, a public corporation/entity, referred to hereinafter as RCTC. RECITALS 1.PARTNERS are authorized to enter into a cooperative agreement for improvements to the state highway system (SHS) per the California Streets and Highways Code sections 114 and 130. 2. For the purpose of this AGREEMENT, construct new Placentia Avenue interchange in the City of Perris on Interstate 215 will be referred to hereinafter as PROJECT. The project scope of work is defined in the PROJECT initiation and approval documents (e.g. Project Study Report, Permit Engineering Evaluation Report, or Project Report). 3.All responsibilities assigned in this AGREEMENT to complete the following PROJECT COMPONENTS will be referred to hereinafter as OBLIGATIONS: •Plans, Specifications, and Estimate (PS&E) •Right of Way Support (R/W SUPPORT) •Right of Way Capital (R/W CAPITAL) 4. This AGREEMENT is separate from and does not modify or replace any other cooperative agreement or memorandum of understanding between PARTNERS regarding the PROJECT. 5. The following work associated with this PROJECT has been completed or is in progress: •RCTC approved the Environmental Impact Report on April 8, 2015, under EA 0F320. •FHWA approved the Environmental Impact Statement on April 15, 2015, under EA 0F320. 6. In this AGREEMENT capitalized words represent defined terms, initialisms, or acronyms. 7. PARTNERS hereby set forth the terms, covenants, and conditions of this AGREEMENT, under which they will accomplish OBLIGATIONS. ATTACHMENT 3 45 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 2 of 16 RESPONSIBILITIES Sponsorship 8. RCTC is the SPONSOR for the PROJECT COMPONENTS in this AGREEMENT. Funding 9. Funding sources, funding amounts, and invoicing/payment details are documented in the FUNDING SUMMARY. The FUNDING SUMMARY is incorporated and made an express part of this AGREEMENT. PARTNERS will execute a new FUNDING SUMMARY each time the funding details change. The FUNDING SUMMARY will be executed by a legally authorized representative of the respective PARTNERS. The most current fully executed FUNDING SUMMARY supersedes any previous FUNDING SUMMARY created for this AGREEMENT. Replacement of the FUNDING SUMMARY will not require an amendment to the body of this AGREEMENT unless the funding changes require it. 10. Each PARTNER is responsible for the costs they incur in performing the OBLIGATIONS of this AGREEMENT unless otherwise stated in this AGREEMENT. Implementing Agency 11. RCTC is the IMPLEMENTING AGENCY for PS&E. 12. RCTC is the IMPLEMENTING AGENCY for RIGHT OF WAY. 13. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will provide a Quality Management Plan (QMP) for that component as part of the PROJECT MANAGEMENT PLAN. The Quality Management Plan describes the IMPLEMENTING AGENCY’s quality policy and how it will be used. The Quality Management Plan is subject to CALTRANS review and approval. 14. Any PARTNER responsible for completing WORK shall make its personnel and consultants that prepare WORK available to help resolve WORK-related problems and changes for the entire duration of the PROJECT including PROJECT COMPONENT work that may occur under separate agreements. Independent Quality Assurance 15. CALTRANS will provide Independent Quality Assurance for the portions of WORK within the existing and proposed SHS right-of-way. 46 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 3 of 16 CALTRANS’ Independent Quality Assurance efforts are to ensure that RCTC’s quality assurance activities result in WORK being developed in accordance with the applicable standards and within an established Quality Management Plan. Independent Quality Assurance does not include any efforts necessary to develop or deliver WORK or any validation by verifying or rechecking work performed by another party. When CALTRANS performs Independent Quality Assurance it does so for its own benefit. No one can assign liability to CALTRANS due to its Independent Quality Assurance. CEQA/NEPA Lead Agency 16. RCTC is the CEQA Lead Agency for the PROJECT. 17. FHWA is the NEPA Lead Agency for the PROJECT. Environmental Permits, Approvals and Agreements 18. PARTNERS will comply with the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements as those commitments and conditions apply to each PARTNER’s responsibilities in this AGREEMENT. 19. Unless otherwise assigned in this AGREEMENT, the IMPLEMENTING AGENCY for a PROJECT COMPONENT is responsible for all PROJECT COMPONENT WORK associated with coordinating, obtaining, implementing, renewing, and amending the PROJECT permits, agreements, and approvals whether they are identified in the planned project scope of work or become necessary in the course of completing the PROJECT. 20. The PROJECT requires the following environmental requirements/approvals: ENVIRONMENTAL PERMITS/REQUIREMENTS 401, Regional Water Quality Control Board National Pollutant Discharge Elimination System (NPDES), State Water Resources Control Board Plans, Specifications, and Estimate (PS&E) 21. As IMPLEMENTING AGENCY for PS&E, RCTC is responsible for all PS&E WORK except those PS&E activities and responsibilities that are assigned to another PARTNER in this AGREEMENT and those activities that may be specifically excluded. 47 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 4 of 16 22. CALTRANS will be responsible for completing the following PS&E activities: CALTRANS Work Breakdown Structure Identifier (If Applicable) Independent Quality Assurance 23. RCTC will prepare Utility Conflict Maps identifying the accommodation, protection, relocation, or removal of any existing utility facilities that conflict with construction of the PROJECT or that violate CALTRANS’ encroachment policy. RCTC will provide CALTRANS a copy of Utility Conflict Maps for CALTRANS' concurrence prior to issuing the Notices to Owner and executing the Utility Agreement. All utility conflicts will be addressed in the PROJECT plans, specifications, and estimate. Right of Way (R/W) 24. As IMPLEMENTING AGENCY for R/W, RCTC is responsible for all R/W SUPPORT WORK except those R/W SUPPORT activities and responsibilities that are assigned to another PARTNER in this AGREEMENT and those activities that may be specifically excluded. 25. CALTRANS will be responsible for completing the following R/W SUPPORT activities: CALTRANS Work Breakdown Structure Identifier (If Applicable) Independent Quality Assurance 26. The selection of R/W personnel and WORK within the completed PROJECT’s SHS right-of- way will be performed in accordance with federal and California laws and regulations, and CALTRANS’ policies, procedures, standards, practices, and applicable agreements. 27. RCTC will make all necessary arrangements with utility owners for the timely accommodation, protection, relocation, or removal of any existing utility facilities that conflict with construction of the PROJECT or that violate CALTRANS’ encroachment policy. 48 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 5 of 16 28. RCTC will provide CALTRANS a copy of conflict maps, Relocation Plans, proposed Notices to Owner, Reports of Investigation, and Utility Agreements (if applicable) for CALTRANS' concurrence prior to issuing the Notices to Owner and executing the Utility Agreement. All utility conflicts will be fully addressed prior to Right of Way Certification and all arrangements for the protection, relocation, or removal of all conflicting facilities will be completed prior to construction contract award and included in the PROJECT plans, specifications, and estimate. 29. RCTC will determine the cost to positively identify and locate, protect, relocate, or remove any utility facilities whether inside or outside SHS right-of-way in accordance with federal and California laws and regulations, and CALTRANS’ policies, procedures, standards, practices, and applicable agreements including but not limited to Freeway Master Contracts. 30. RCTC will provide a land surveyor licensed in the State of California to be responsible for surveying and right-of-way engineering. All survey and right-of-way engineering documents will bear the professional seal, certificate number, registration classification, expiration date of certificate, and signature of the responsible surveyor. 31. RCTC will utilize a public agency currently qualified by CALTRANS or a properly licensed consultant for all right-of-way activities. A qualified right-of-way agent will administer all right-of-way consultant contracts. RCTC will submit a draft Right of Way Certification document to CALTRANS six (6) weeks prior to the scheduled Right of Way Certification milestone date for review. RCTC will submit a final Right of Way certification document to CALTRANS for approval prior to the PROJECT advertisement. 32. Physical and legal possession of right-of-way must be completed prior to construction advertisement, unless PARTNERS mutually agree to other arrangements in writing. Right of way conveyances must be completed prior to OBLIGATION COMPLETION, unless PARTNERS mutually agree to other arrangements in writing. 33. CALTRANS’ acceptance of right-of-way title is subject to review of an Updated Preliminary Title Report provided by RCTC verifying that the title is free of all encumbrances and liens. Upon acceptance, RCTC will provide CALTRANS with a Policy of Title Insurance in CALTRANS’ name. 34. The Riverside County Transportation Commission is responsible for hearing and adopting Resolutions of Necessity. 49 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 6 of 16 Schedule 35. PARTNERS will manage the schedule for OBLIGATIONS through the work plan included in the PROJECT MANAGEMENT PLAN. Additional Provisions 36. PARTNERS will perform all OBLIGATIONS in accordance with federal and California laws, regulations, and standards; FHWA STANDARDS; and CALTRANS STANDARDS. 37. CALTRANS retains the right to reject noncompliant WORK, protect public safety, preserve property rights, and ensure that all WORK is in the best interest of the SHS. 38. Each PARTNER will ensure that personnel participating in OBLIGATIONS are appropriately qualified or licensed to perform the tasks assigned to them. 39. PARTNERS will invite each other to participate in the selection of any consultants who participate in OBLIGATIONS. 40. CALTRANS will issue, upon proper application, the encroachment permits required for WORK within SHS right-of-way. Contractors and/or agents, and utility owners will not work within the SHS right-of-way without an encroachment permit issued in their name. CALTRANS will provide encroachment permits to PARTNERS, their contractors, consultants and agents, and utility owners at no cost. If the encroachment permit and this AGREEMENT conflict, the requirements of this AGREEMENT shall prevail. 41. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will coordinate, prepare, obtain, implement, renew, and amend any encroachment permits needed to complete the PROJECT COMPONENT WORK. 42. If any PARTNER discovers unanticipated cultural, archaeological, paleontological, or other protected resources during WORK, all WORK in that area will stop and that PARTNER will notify all PARTNERS within twenty-four (24) hours of discovery. WORK may only resume after a qualified professional has evaluated the nature and significance of the discovery and a plan is approved for its removal or protection. 43. PARTNERS will hold all administrative drafts and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for the PROJECT in confidence to the extent permitted by law and where applicable, the provisions of California Government Code section 6254.5(e) shall protect the confidentiality of such documents in the event that said documents are shared between PARTNERS. 50 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 7 of 16 PARTNERS will not distribute, release, or share said documents with anyone other than employees, agents, and consultants who require access to complete the PROJECT without the written consent of the PARTNER authorized to release them, unless required or authorized to do so by law. 44. If a PARTNER receives a public records request pertaining to OBLIGATIONS, that PARTNER will notify PARTNERS within five (5) working days of receipt and make PARTNERS aware of any disclosed public documents. PARTNERS will consult with each other prior to the release of any public documents related to the PROJECT. 45. If HM-1 or HM-2 is found during a PROJECT COMPONENT, the IMPLEMENTING AGENCY for that PROJECT COMPONENT will immediately notify PARTNERS. 46. CALTRANS, independent of the PROJECT, is responsible for any HM-1 found within the existing SHS right-of-way. CALTRANS will undertake, or cause to be undertaken, HM MANAGEMENT ACTIVITIES related to HM-1 with minimum impact to the PROJECT schedule. CALTRANS, independent of the PROJECT will pay, or cause to be paid, the cost of HM MANAGEMENT ACTIVITIES related to HM-1 found within the existing SHS right-of-way. 47. If HM-1 is found within the PROJECT limits and outside the existing SHS right-of-way, responsibility for such HM-1 rests with the owner(s) of the parcel(s) on which the HM-1 is found. RCTC, in concert with the local agency having land use jurisdiction over the parcel(s), will ensure that HM MANAGEMENT ACTIVITIES related to HM-1 are undertaken with minimum impact to PROJECT schedule. The costs for HM MANAGEMENT ACTIVITIES related to HM-1 found within the PROJECT limits and outside the existing SHS right-of-way will be the responsibility of the owner(s) of the parcel(s) where the HM-1 is located. 48. If HM-2 is found within the PROJECT limits, the public agency responsible for the advertisement, award, and administration (AAA) of the PROJECT construction contract will be responsible for HM MANAGEMENT ACTIVITIES related to HM-2. 49. CALTRANS’ acquisition or acceptance of title to any property on which any HM-1 or HM-2 is found will proceed in accordance with CALTRANS’ policy on such acquisition. 50. RCTC will accept, reject, compromise, settle, or litigate claims of any non-AGREEMENT parties hired to complete OBLIGATIONS. 51 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 8 of 16 51. PARTNERS will confer on any claim that may affect OBLIGATIONS or PARTNERS’ liability or responsibility under this AGREEMENT in order to retain resolution possibilities for potential future claims. No PARTNER will prejudice the rights of another PARTNER until after PARTNERS confer on the claim. 52. If the PROJECT expends state or federal funds, each PARTNER will comply with the federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards of 2 CFR, Part 200. PARTNERS will ensure that any for-profit party hired to participate in the OBLIGATIONS will comply with the requirements in 48 CFR, Chapter 1, Part 31. When state or federal funds are expended on the PROJECT these principles and requirements apply to all funding types included in this AGREEMENT. 53. If the PROJECT expends state or federal funds, each PARTNER will undergo an annual audit in accordance with the Single Audit Act and the federal Office of Management and Budget (OMB) Circular A-133. 54. If the PROJECT expends federal funds, any PARTNER that hires an A&E consultant to perform WORK on any part of the PROJECT will ensure that the procurement of the consultant and the consultant overhead costs are in accordance with Chapter 10 of the Local Assistance Procedures Manual. 55. If WORK stops for any reason, IMPLEMENTING AGENCY will place the PROJECT right- of-way in a safe and operable condition acceptable to CALTRANS. 56. If WORK stops for any reason, each PARTNER will continue to implement all of its applicable commitments and conditions included in the PROJECT environmental documentation, permits, agreements, or approvals that are in effect at the time that WORK stops, as they apply to each PARTNER’s responsibilities in this AGREEMENT, in order to keep the PROJECT in environmental compliance until WORK resumes. 57. Fines, interest, or penalties levied against a PARTNER will be paid by the PARTNER whose action or lack of action caused the levy. 58. If there are insufficient funds available in this AGREEMENT to place PROJECT right-of-way in a safe and operable condition, the appropriate IMPLEMENTING AGENCY will fund these activities until such time as PARTNERS amend this AGREEMENT. That IMPLEMENTING AGENCY may request reimbursement for these costs during the amendment process. 52 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 9 of 16 59. RCTC will furnish CALTRANS with the Project History Files related to the PROJECT facilities on SHS within sixty (60) days following the completion of each PROJECT COMPONENT. RCTC will prepare the Project History File in accordance with the Project Development Procedures Manual, Chapter 7. All material will be submitted neatly in a three- ring binder and on a CD ROM in PDF format. GENERAL CONDITIONS 60. PARTNERS understand that this AGREEMENT is in accordance with and governed by the Constitution and laws of the State of California. This AGREEMENT will be enforceable in the State of California. Any PARTNER initiating legal action arising from this AGREEMENT will file and maintain that legal action in the Superior Court of the county in which the CALTRANS district office that is signatory to this AGREEMENT resides, or in the Superior Court of the county in which the PROJECT is physically located. 61. All CALTRANS’ OBLIGATIONS under this AGREEMENT are subject to the appropriation of resources by the Legislature, the State Budget Act authority, and the allocation of funds by the California Transportation Commission. 62. 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, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS under this AGREEMENT. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless RCTC and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under this AGREEMENT. 63. 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, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon RCTC under this AGREEMENT. It is understood and agreed that RCTC, to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by RCTC, its contractors, sub-contractors, and/or its agents under this AGREEMENT. 53 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 10 of 16 64. PARTNERS do not intend this AGREEMENT to create a third party beneficiary or define duties, obligations, or rights in parties not signatory to this AGREEMENT. PARTNERS do not intend this AGREEMENT to affect their legal liability by imposing any standard of care for fulfilling OBLIGATIONS different from the standards imposed by law. 65. PARTNERS will not assign or attempt to assign OBLIGATIONS to parties not signatory to this AGREEMENT without an amendment to this AGREEMENT. 66. RCTC will not interpret any ambiguity contained in this AGREEMENT against CALTRANS. RCTC waives the provisions of California Civil Code section 1654. A waiver of a PARTNER’s performance under this AGREEMENT will not constitute a continuous waiver of any other provision. 67. A delay or omission to exercise a right or power due to a default does not negate the use of that right or power in the future when deemed necessary. 68. If any PARTNER defaults in its OBLIGATIONS, a non-defaulting PARTNER will request in writing that the default be remedied within thirty (30) calendar days. If the defaulting PARTNER fails to do so, the non-defaulting PARTNER may initiate dispute resolution. 69. PARTNERS will first attempt to resolve AGREEMENT disputes at the PROJECT team level. If they cannot resolve the dispute themselves, the CALTRANS district director and the executive officer of RCTC will attempt to negotiate a resolution. If PARTNERS do not reach a resolution, PARTNERS’ legal counsel will initiate mediation. PARTNERS agree to participate in mediation in good faith and will share equally in its costs. Neither the dispute nor the mediation process relieves PARTNERS from full and timely performance of OBLIGATIONS in accordance with the terms of this AGREEMENT. However, if any PARTNER stops fulfilling OBLIGATIONS, any other PARTNER may seek equitable relief to ensure that OBLIGATIONS continue. Except for equitable relief, no PARTNER may file a civil complaint until after mediation, or forty-five (45) calendar days after filing the written mediation request, whichever occurs first. PARTNERS will file any civil complaints in the Superior Court of the county in which the CALTRANS district office signatory to this AGREEMENT resides or in the Superior Court of the county in which the PROJECT is physically located. 70. PARTNERS maintain the ability to pursue alternative or additional dispute remedies if a previously selected remedy does not achieve resolution. 54 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 11 of 16 71. If any provisions in this AGREEMENT are found by a court of competent jurisdiction to be, or are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other AGREEMENT provisions invalid, inoperative, or unenforceable, and those provisions will be automatically severed from this AGREEMENT. 72. If during performance of WORK additional activities or environmental documentation is necessary to keep the PROJECT in environmental compliance, PARTNERS will amend this AGREEMENT to include completion of those additional tasks. 73. Except as otherwise provided in the AGREEMENT, PARTNERS will execute a formal written amendment if there are any changes to OBLIGATIONS. 74. When WORK performed on the PROJECT is done under contract and falls within the Labor Code section 1720(a)(1) definition of "public works" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code section 1771, PARTNERS shall conform to the provisions of Labor Code sections 1720 through 1815, and all applicable provisions of California Code of Regulations found in Title 8, Division 1, Chapter 8, Subchapter 3, Articles 1-7. PARTNERS shall include prevailing wage requirements in contracts for public work and require contractors to include the same prevailing wage requirements in all subcontracts. Work performed by a PARTNER’s own employees is exempt from the Labor Code's Prevailing Wage requirements. 75. If WORK is paid for, in whole or part, with federal funds and is of the type of work subject to federal prevailing wage requirements, PARTNERS shall conform to the provisions of the Davis-Bacon and Related Acts, 40 U.S.C. § 276(a). When applicable, PARTNERS shall include federal prevailing wage requirements in contracts for public work. WORK performed by a PARTNER’s employees is exempt from federal prevailing wage requirements. 76. PARTNERS agree to sign a CLOSURE STATEMENT to terminate this AGREEMENT. However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, maintenance and ownership articles will remain in effect until terminated or modified in writing by mutual agreement or expire by the statute of limitations. 77. PARTNERS intend this AGREEMENT to be their final expression that supersedes any oral understanding or writings pertaining to the OBLIGATIONS. The requirements of this AGREEMENT shall preside over any conflicting requirements in any documents that are made an express part of this AGREEMENT. 55 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 12 of 16 DEFINITIONS AGREEMENT – This agreement including any attachments, exhibits, and amendments. CALTRANS STANDARDS – CALTRANS policies and procedures, including, but not limited to, the guidance provided in the Project Development Procedures Manual (PDPM) and the CALTRANS Workplan Standards Guide for the Delivery of Capital Projects (WSG) [which contains the CALTRANS Work Breakdown Structure (WBS) and was previously known as the WBS Guide] and is available at http://www.dot.ca.gov/hq/projmgmt/guidance.htm. CEQA (California Environmental Quality Act) – The act (California Public Resources Code, sections 21000 et seq.) that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those significant impacts, if feasible. CFR (Code of Federal Regulations) – The general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government. CLOSURE STATEMENT – A document signed by PARTNERS that verifies the completion of all OBLIGATIONS included in this AGREEMENT and in all amendments to this AGREEMENT. FHWA – Federal Highway Administration. FHWA STANDARDS – FHWA regulations, policies and procedures, including, but not limited to, the guidance provided at www.fhwa.dot.gov/topics.htm. FUNDING PARTNER – A PARTNER that commits funds in this AGREEMENT to fulfill OBLIGATIONS. A FUNDING PARTNER accepts the responsibility to provide the funds it commits in this Agreement. FUNDING SUMMARY – An executed document that includes a FUNDING TABLE and invoicing and payment methods. FUNDING TABLE – The table that designates funding sources, types of funds, and the PROJECT COMPONENT in which the funds are to be spent. Funds listed on the FUNDING TABLE are “not-to-exceed” amounts for each FUNDING PARTNER. GAAP (Generally Accepted Accounting Principles) – Uniform minimum standards and guidelines for financial accounting and reporting issued by the Federal Accounting Standards Advisory Board that serve to achieve some level of standardization. See http://www.fasab.gov/accepted.html. HM-1 – Hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law whether it is disturbed by the PROJECT or not. 56 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 13 of 16 HM-2 – Hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the PROJECT. HM MANAGEMENT ACTIVITIES – Management activities related to either HM-1 or HM-2 including, without limitation, any necessary manifest requirements and disposal facility designations. IMPLEMENTING AGENCY – The PARTNER responsible for managing the scope, cost, and schedule of a PROJECT COMPONENT to ensure the completion of that component. IQA (Independent Quality Assurance) – CALTRANS’ efforts to ensure that another PARTNER’s quality assurance activities are in accordance with the applicable standards and the PROJECT’s Quality Management Plan (QMP). When CALTRANS performs Independent Quality Assurance it does not develop, produce, validate, verify, re-check, or quality control another PARTNER’s work products. NEPA (National Environmental Policy Act of 1969) – This federal act establishes a national policy for the environment and a process to disclose the adverse impacts of projects with a federal nexus. OBLIGATIONS – All WORK responsibilities and their associated costs. OBLIGATION COMPLETION – PARTNERS have fulfilled all OBLIGATIONS included in this AGREEMENT and have signed a CLOSURE STATEMENT. PARTNER – Any individual signatory party to this AGREEMENT. PARTNERS – The term that collectively references all of the signatory agencies to this AGREEMENT. This term only describes the relationship between these agencies to work together to achieve a mutually beneficial goal. It is not used in the traditional legal sense in which one PARTNER’s individual actions legally bind the other PARTNER. 57 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 14 of 16 PROJECT COMPONENT – A distinct portion of the planning and project development process of a capital project as outlined in California Government Code, section 14529(b). • PID (Project Initiation Document) – The work required to deliver the project initiation document for the PROJECT in accordance with CALTRANS STANDARDS. • PA&ED (Project Approval and Environmental Document) – The work required to deliver the project approval and environmental documentation for the PROJECT in accordance with CALTRANS STANDARDS. • PS&E (Plans, Specifications, and Estimate) – The work required to deliver the plans, specifications, and estimate for the PROJECT in accordance with CALTRANS STANDARDS. • R/W (Right of Way) –The project components for the purpose of acquiring real property interests for the PROJECT in accordance with CALTRANS STANDARDS. • R/W (Right of Way) SUPPORT –The work required to obtain all property interests for the PROJECT. • R/W (Right of Way) CAPITAL – The funds for acquisition of property rights for the PROJECT. • CONSTRUCTION – The project components for the purpose of completing the construction of the PROJECT in accordance with CALTRANS STANDARDS. • CONSTRUCTION SUPPORT – The work required for the administration, acceptance, and final documentation of the construction contract for the PROJECT. • CONSTRUCTION CAPITAL – The funds for the construction contract. PROJECT MANAGEMENT PLAN – A group of documents used to guide the PROJECT’s execution and control throughout that project’s lifecycle. PS&E (Plans, Specifications, and Estimate) – See PROJECT COMPONENT. QMP (Quality Management Plan) – An integral part of the PROJECT MANAGEMENT PLAN that describes IMPLEMENTING AGENCY’s quality policy and how it will be used. R/W (Right of Way) CAPITAL – See PROJECT COMPONENT. R/W (Right of Way) SUPPORT – See PROJECT COMPONENT. 58 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 15 of 16 SHS (State Highway System) – All highways, right-of-way, and related facilities acquired, laid out, constructed, improved, or maintained as a state highway pursuant to constitutional or legislative authorization. SPONSOR – Any PARTNER that accepts the responsibility to establish scope of the PROJECT and the obligation to secure financial resources to fund the PROJECT COMPONENTS in this AGREEMENT. A SPONSOR is responsible for adjusting the PROJECT scope to match committed funds or securing additional funds to fully fund the PROJECT COMPONENTS in this AGREEMENT. If this AGREEMENT has more than one SPONSOR, funding adjustments will be made by percentage (as outlined in Responsibilities). Scope adjustments must be developed through the project development process and must be approved by CALTRANS as the owner/operator of the SHS. WORK – All efforts to complete the OBLIGATIONS included in this AGREEMENT as described by the activities in the CALTRANS Workplan Standards Guide for the Delivery of Capital Projects (WSG). 59 AGREEMENT 08-1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 16 of 16 SIGNATURES PARTNERS are empowered by California Streets and Highways Code section 114 and 130 to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT. Signatories may execute this AGREEMENT through individual signature pages provided that each signature is an original. This AGREEMENT is not fully executed until all original signatures are attached. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION John Bulinski District Director Certified as to funds: Lisa Pacheco District Budget Manager RIVERSIDE COUNTY TRANSPORTATION COMMISSION Anne Mayer Executive Director Approved as to form and procedure: Best, Best and Krieger Legal Counsel 60 AGREEMENT 08 - 1603 Project No. 0817000014 EA 0F321 08-RIV-215-29.06/30.01 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 1 of 2 FUNDING SUMMARY NO. 01 FUNDING TABLE v. 12 IMPLEMENTING AGENCY  RCTC RCTC Source FUNDING PARTNER Fund Type PS&E R/W SUPPORT R/W CAPITAL Totals Local RCTC Measure 4,600,000 5,000,000 20,900,000 30,500,000 Totals 4,600,000 5,000,000 20,900,000 30,500,000 61 FUNDING SUMMARY No. 01 AGREEMENT 08 - 1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 2 of 3 Invoicing and Payment Plans, Specifications, and Estimate (PS&E) 1. No invoicing or reimbursement will occur for the PS&E PROJECT COMPONENT. Right of Way Support (R/W SUPPORT) 2. No invoicing or reimbursement will occur for the R/W SUPPORT PROJECT COMPONENT. Right of Way Capital (R/W CAPITAL) 3. No invoicing or reimbursement will occur for the R/W CAPITAL PROJECT COMPONENT. 62 FUNDING SUMMARY No. 01 AGREEMENT 08 - 1603 Project No. 0817000014 PACT Project Development Agreement 2015-03-12 (Created 09/28/16) 3 of 3 Signatures PARTNERS are empowered by California Streets and Highways Code sections 114 and 130 to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this FUNDING SUMMARY on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this FUNDING SUMMARY. Signatories may execute this FUNDING SUMMARY through individual signature pages provided that each signature is an original. This FUNDING SUMMARY is not fully executed until all original signatures are attached. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION John Bulinski District Director Date District Budget Manager HQ Accounting RIVERSIDE COUNTY TRANSPORTATION COMMISSION Anne Mayer Executive Director Date 63 AGENDA ITEM 6E Agenda Item 6E RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Brenda Ramirez, Management Analyst Sheldon Peterson, Rail Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Mobile Source Air Pollution Reduction Review Committee Transportation Control Measure Partnership Program WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 17-25-016-00 with the South Coast Air Quality Management District (SCAQMD) for a grant from the Mobile Source Air Pollution Reduction Review Committee (MSRC) Transportation Control Measure Partnership Program in the amount of $1,909,241; 2) Approve Agreement No. 17-25-038-00 with the city of Riverside for the Rustin Avenue Sidewalk Improvement and Bike Lane project in the amount not to exceed $600,000; 3) Approve an amendment in the amount of $1,909,241 to the FY 2016/17 Commuter Rail Short Range Transit Plan (SRTP); 4) Approve an increase in revenues and expenditures of $1,909,241 in the FY 2016/17 budget related to the MSRC grant; and 5) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission. BACKGROUND INFORMATION: On April 1, 2016, the Commission was awarded a MSRC Transportation Control Measure Partnership Program grant by the SCAQMD to address first mile/last mile mobility associated with Metrolink stations in Riverside County. The grant awarded the Commission $1,909,241 to implement strategies that are essential to improving mobility and making the commuter rail system expansion more successful in reducing emissions. The Commission will also use $690,759 of available Proposition 1B Public Transportation Modernization, Improvement, and Service Enhancement Account program funds as a local match to the MSRC grant. After the grant award, Commission staff began working with Parsons Brinkerhoff, one of three on-call rail consultants, to compile a work plan that will identify recommendations for improving 64 Agenda Item 6E mobility. The consultant will identify projects that will significantly improve the active transportation connection and access to all Metrolink stations by pedestrians and bicyclists. To address these mobility challenges, the project will review safe and effective bike storage, clear access paths at the stations, and nearby pedestrian and bicycle access at each Metrolink station. The work plan will incorporate all of the Commission’s nine Metrolink stations and provide recommendations and guidance to implement those projects with the remaining MSRC grant funds. During the development of the Riverside-Hunter Park/UCR Station, staff identified additional pedestrian improvements are needed on the adjacent street of Rustin Avenue to link the station to high density residential neighborhoods and create a safe bike path to UC Riverside. City of Riverside (Riverside) staff is supportive of this effort and agreed to enter into a cooperative agreement for the city to complete the work on its right of way in an amount not to exceed $600,000. This project was included in the grant application and supported by the MSRC. In addition, Riverside has a separate grant for a bike storage structure and bike sharing at the Riverside-Downtown Station, and Commission staff has commenced discussions with the city regarding implementation of this project at the station with the intent to enter into another cooperative agreement for these bike projects. For additional community projects, staff will be reaching out to other jurisdictions to ensure their approved pedestrian and bicycle path plans are incorporated into the Commission’s work plan and identify additional active transportation improvements. The grant award of $1,909,241 will be paid to the Commission as work is performed. An amendment to the FY 2016/17 Commuter Rail SRTP Table 4 in the amount of $1,909,241 is required as well as adjustments to the FY 2016/17 budget of $1,909,241 to increase revenues for the MSRC grant and expenditures. Financial Information In Fiscal Year Budget: No Year: FY 2016/17 Amount: $1,909,241 revenues ($1,909,241) expenditures $0 net impact Source of Funds: MSRC grant Budget Adjustment: Yes GL/Project Accounting No.: 004019 415 41510 103 25 41501 $1,909,241 (revenues) 004019 81301 00000 0102 103 25 81301 $1,909,241 (expenditures) Fiscal Procedures Approved: Date: 10/15/2016 Attachments: 1) Draft MSRC Grant Agreement No. 17-25-016-00 2) Draft City of Riverside Cooperative Agreement No. 17-25-038-00 65 ATTACHMENT 1 66 67 68 69 70 71 72 73 74 75 76 77 78 17336.00600\29281559.3 Agreement No. 17-25-038-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION MSRC FUNDING COOPERATIVE AGREEMENT WITH THE CITY OF RIVERSIDE FOR RIVERSIDE HUNTER PARK/UCR METROLINK STATION IMPROVEMENTS 1.Parties and Date. This Agreement is made and entered into this ____ day of ______________, 201_, by and between the Riverside County Transportation Commission, hereinafter referred to as "RCTC," and the City of Riverside, hereinafter referred to as "Agency”. 2.Recitals. 2.1 Pursuant to Health & Safety Code Section 44225 (AB 2766), a fee is levied on motor vehicles to be used for reduction of air pollution from such vehicles in order to implement the California Clean Air Act. The fee is managed by the South Coast Air Quality Management District (“SCAQMD”). 2.2 Under AB 2766, thirty percent (30%) of the vehicle registration fees collected are held by SCAQMD in a separate account for the purpose of implementing and monitoring programs to reduce air pollution from motor vehicles. The Mobile Source Air Pollution Reduction Review Committee (MSRC) developed a work program to fund projects from this account. 2.3 RCTC entered into that certain AB 2766/MSRC Transportation Control Measure Partnership Program Contract (Contract No. MS16094) with SCAQMD, pursuant to which SCAQMD agreed to provide MSRC grant funding to RCTC for implementation of certain projects designed to promote “first mile/last mile” access to commuter rail, increase rail ridership and reduce emissions associated with vehicle cold starts, in cooperation with RCTC member entities, including the Agency (the “MSRC Contract”). 2.4 RCTC had the need for a pedestrian access project and Agency prepared a project proposal for the project described in Exhibit “A” in accordance with RCTC’s request. 2.5 The proposal submitted by Agency describes a priority project which RCTC has determined merits funding, and Agency is eligible to receive MSRC grant funds. Agency’s proposal is referred to herein as the “Project”. 2.6 SCAQMD has approved the Project, and has included the Project in the MSRC Contract as a project to be funded thereunder. 2.7 On November 9, 2016, RCTC’s Board of Directors approved the programming by RCTC of up to _____________ ($______) in MSRC grant funds to be matched with __________ ($_________) in Agency funds for the Project. ATTACHMENT 2 79 2 17336.00600\29281559.3 RCTC shall disburse MSRC grant funds received from SCAQMD to Agency for the Project in accordance with the terms of this Agreement. 2.8 The parties acknowledge and agree that federal Congestion Mitigation Air Quality (CMAQ) funding previously allocated to Agency will be reduced in an amount equal to the amount of MSRC grant funds allocated to Agency hereunder. 3. Terms. 3.1 Definition; Term of Agreement. A. Definitions. 1. Days - As used in this Agreement, “days” shall be calendar days. 2. Effective Date – Refers to the date first specified above. 3. Funding Plan – The plan included as part of the attached Exhibit “B” specifying the funding amounts and funding sources for the Project. 4. MSRC Funds – The MSRC grant funds provided by SCAQMD pursuant to the MSRC Contract for the Project, which RCTC shall provide to Agency as a subrecipient of RCTC under this Agreement. 5. Project – The project proposed by Agency, as described in Exhibit "A", which has been reviewed and approved by RCTC. B. Term. The term of this Agreement shall commence on the Effective Date, and shall continue in effect for forty-two (42) months from the effective date of the MSRC Contract, unless otherwise extended pursuant to an amendment to this Agreement, or terminated as provided herein. 3.2 Grant Terms; Agency Responsibilities. A. Scope of Grant; Cost Overruns. Agency shall use the MSRC Funds described hereunder exclusively to implement the Project. Agency shall be solely responsible for implementing the Project in the manner described herein. The MSRC Funds described in Exhibit “B” of this Agreement are specifically for the Project and make up the entire amount which RCTC has authorized for the Project. Any subsequent amendments to the Project scope or description or additional services to be provided are not covered by this Agreement, and the funding for any such amendments or additional services shall be the sole responsibility of Agency, unless such amendments or additional services are approved in writing by RCTC prior to the provision of such amendments or additional services. B. Incorporation of MSRC Contract. The MSRC Contract is on file at the offices of the parties hereto, and is incorporated herein by reference. All applicable 80 3 17336.00600\29281559.3 provisions of the MSRC Contract binding on RCTC, as the “Contractor” thereunder, shall apply to Agency. By signing below, Agency represents and warrants that it has read and is familiar with the terms of the MSRC Contract, and agrees to comply therewith. In addition, Agency shall be responsible for including any relevant provisions of the MSRC Contract in its contracts for the Project. RCTC shall have the right to enforce the terms of the MSRC Contract as such terms apply to Agency. In the case of a conflict between the MSRC Contract and this Agreement, the terms of this Agreement shall govern. C. Approval by RCTC; Responsibility of Recipient for Project Compliance with MSRC Contract. Any use of MSRC Funds provided pursuant to this Agreement shall be subject to the review and approval of RCTC. Notwithstanding any approval by RCTC of the Project or the use of MSRC Funds, Agency shall be solely responsible and liable for compliance with all rules and regulations applicable to the MSRC Funds. Approval by RCTC of the Project does not evidence any opinion of or representation by RCTC of the Project’s compliance with applicable rules and regulations regarding use of the MSRC Funds, or with the MSRC Contract. If SCAQMD determines that any MSRC Funds were not spent in accordance with rules and regulations applicable to the MSRC Funds, or with the MSRC Contract, Agency shall be solely responsible for reimbursement of all such improperly expended funds and shall make such reimbursement in the manner specified in this Agreement. D. Funding Reimbursement by Agency. If it is determined pursuant to a Project audit that any MSRC Funds provided pursuant to this Agreement have been improperly expended, Agency shall, at the direction of the agency performing the audit (e.g. RCTC or SCAQMD), reimburse within thirty (30) days the full amount of such improperly expended funds. The funds shall be reimbursed to the agency identified by RCTC with a notice to RCTC that the reimbursement was accomplished. RCTC shall also have the right to deduct any improperly expended MSRC Funds from future reimbursements of MSRC Funds to Agency. E. Cost Savings. In the event that bids for the Project are lower than anticipated, or there are cost savings for any other reason, the Funding Plan shall be revised to apply such cost savings proportionately to each funding source listed in the Funding Plan. Agency shall inform RCTC of any cost savings and the parties shall amend this Agreement to reflect the revisions to the Funding Plan. RCTC’s Executive Director and the Agency Manager shall be authorized to execute any such amendment. F. Failure of SCAQMD to Disburse Funds. RCTC shall have no obligation to reimburse Agency for any Project costs unless and until SCAQMD has provided the MSRC Funds to RCTC in accordance with the terms of the MSRC Contract. RCTC shall not be liable to Agency for any delays or failure of SCAQMD to provide the MSRC Funds obligated to Agency hereunder. Reimbursement of Project costs shall be in accordance with the terms of this Agreement, and the MSRC Contract. G. Stop Work Order. If SCAQMD issues a stop work order under the MSRC Contract, RCTC shall notify Agency of such order, and all work subject to reimbursement under this Agreement shall cease until the stop work order is cancelled 81 4 17336.00600\29281559.3 by SCAQMD. Work completed while the stop work order is in effect shall not be eligible for reimbursement under this Agreement. 3.3 Additional Responsibilities of Agency A. Indemnification. To the fullest extent permitted by law, Agency shall defend, indemnify and hold RCTC, SCAQMD, and their directors, officials, officers, employees, agents and/or volunteers free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner arising out of or incident to any acts, omissions or willful misconduct of Agency or any of its directors, officials, officers, employees, agents, volunteers, or service providers arising out of or in connection with Agency's performance of this Agreement, or the Project, including, without limitation, the payment of consequential damages and attorneys' fees. Further, Agency shall defend, at its own expense, including the payment of attorneys' fees, RCTC, SCAQMD, and their officials, officers, employees, agents and/or volunteers in any legal action based upon such acts, omissions or willful misconduct. Agency shall reimburse RCTC, SCAQMD, and their directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. B. Standard of Care; Performance Standards. 1. Agency shall implement the Project in a skillful and competent manner and in accordance with all applicable local, state, and federal laws, rules and regulations. Agency shall be responsible to RCTC for any errors or omissions in its execution of this Agreement or the implementation of the Project. 2. Agency shall meet or exceed the following performance standards for the Project: a. Adhere to the timeline set forth in this Agreement or as subsequently approved by RCTC. b. Expend the funding specified herein entirely on the Project. c. Implement the Project in a manner consistent with Exhibit "A" and all provisions of this Agreement. d. Provide Project reporting to RCTC in a manner consistent with this Agreement. e. Comply with all applicable requirements and restrictions imposed by the MSRC Contract, and/or related to the MSRC Funds. f. Comply with prevailing wage requirements (California Labor Code Sections 1770 et seq.). 82 5 17336.00600\29281559.3 C. Insurance. Agency shall obtain and require its subcontractors or sub-consultants to obtain insurance of the types and in the amounts described below for the entire term of this Agreement. 1. Commercial General Liability Insurance. Agency shall maintain and require its consultants and contractors to maintain sufficient insurance to cover the risks associated with the Project. Such insurance shall be in an amount of at least $1,000,000 per occurrence, and $2,000,000 general aggregate. 2. Business Automobile Liability Insurance. Agency shall maintain business automobile liability insurance or equivalent form with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 3. Workers' Compensation Insurance. Agency shall maintain workers' compensation insurance with statutory limits and employer's liability insurance with limits of not less than $1,000,000 per accident. 4. Endorsements. The commercial general and automobile liability insurance policies described above shall: a. Name RCTC, SCAQMD and their officials, officers, employees, agents, and consultants, as insureds with respect to performance of this Agreement. Such insured status shall contain no special limitations on the scope of its protection to the above-listed insureds. b. Be primary and noncontributory with respect to any insurance or self-insurance programs covering RCTC, SCAQMD and their directors, officials, officers, employees, agents, and consultants. c. Contain standard separation of insureds provisions. 5. Certificates/Insurer Rating/Cancellation Notice. Agency shall, prior to receiving any funding under this Agreement, furnish to RCTC properly executed certificates of insurance, certified copies of endorsements, and policies, if requested by RCTC which shall clearly evidence all insurance required in this Section. Agency shall not allow such insurance to be canceled, allowed to expire or be materially reduced in coverage except on thirty (30) days prior written notice to RCTC. D. Obligation to Provide Match Funding. Agency shall provide funding at least equal to the amounts shown in Exhibit “B”, attached hereto and incorporated by reference, as a match to the MSRC Funds provided for the Project. E. Public Outreach Plan. Agency shall prepare, and submit to RCTC for approval, a public outreach plan in accordance with the requirements of the MSRC Contract (“Public Outreach Plan”). Agency shall comply with and implement the approved Public Outreach Plan. The Public Outreach Plan may be subject to review, comment and 83 6 17336.00600\29281559.3 approval by SCAQMD. Agency shall revise the Public Outreach Plan as necessary to obtain SCAQMD approval. F. Invoices. Agency shall maintain and create the necessary Project invoices, records, reports and financial accounts to permit disbursement of MSRC Funds to Agency in accordance with the requirements of the MSRC Contract. Final invoices for the Project shall be submitted to RCTC no later than sixty (60) days following the termination date of this Agreement to ensure eligibility for reimbursement. 3.4 RCTC's Rights and Responsibilities. A. Disbursement of Funds. RCTC shall coordinate with SCAQMD and Agency in the authorization and the disbursement of MSRC Funds in an amount up to that shown in Exhibit “B”, Funding Plan, for the Project. RCTC shall promptly disburse MSRC Funds to Agency upon receipt thereof, for eligible Project costs, from SCAQMD. B. Time Extensions. RCTC will consider requests for extensions of time if the reason for delay is above and beyond the Agency’s control. 4. Accounting Records. 4.1 Retention of Records. Agency shall maintain complete and accurate records with respect to costs incurred and other records generated under this Agreement. All such records shall be clearly identifiable. Agency shall allow representatives of RCTC and SCAQMD during normal business hours to examine, audit, and make transcripts or copies of such records. Agency shall maintain all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the expiration of this Agreement and shall allow inspection hereunder during such time. 4.2 Accounting of Funds. When requested by RCTC, Agency shall within fifteen (15) days provide RCTC with a full reporting and accounting of all MSRC Funds received pursuant to this Agreement during its term. 5. Project Reports - Quarterly Reporting: Agency shall prepare and submit to RCTC quarterly milestone reports detailing the Project’s progress including a financial status report and milestone progress report, and any other items specified in Exhibit “A”, in a form approved by RCTC, and in accordance with all requirements of SCAQMD. Project reports shall be subject to review, comment and approval by SCAQMD. Agency shall revise Project reports as necessary to obtain SCAQMD approval. 6. Audit. 6.1 RCTC shall notify Agency in writing, by the end of the fiscal year, if Agency is required to conduct an annual financial audit of records pertaining to the Project. If an audit is required, it shall be completed and submitted to RCTC by December 31st of the following fiscal year ("Audit Deadline"). In order to ensure compliance with the Audit Deadline, Agency shall respond promptly to the auditor's requests for documentation and records. 84 7 17336.00600\29281559.3 6.2 RCTC may, in its sole and absolute discretion, grant an extension of the Audit Deadline upon written request of the Agency, which request shall include an explanation for the delay. No extension of the Audit Deadline shall exceed ninety (90) days. 6.3 Agency shall promptly resolve all audit matters to the satisfaction of RCTC. 6.4 If Agency fails to complete the audit by the Audit Deadline or by the date of any authorized extension, or if Agency fails to promptly resolve all audit matters to the satisfaction of RCTC, RCTC shall have the right, in addition to any other rights or remedies hereunder, to suspend performance under this Agreement. 6.5 Agency may be subject to an audit by SCAQMD or its authorized representative to determine if the MSRC Funds were spent for the reduction of pollution from motor vehicles pursuant to the Clean Air Act of 1988. Agency shall comply with any and all audit requirements of SCAQMD. 7. General Provisions. 7.1 Relationship of Parties. Agency is solely responsible for the Project. This Agreement does not create a joint venture or any partnership between Agency and RCTC. Agency and any persons or entities retained by Agency or any contractor of Agency shall be retained on an independent contractor basis and shall not be employees or agents of RCTC. 7.2 Termination of Agreement. A. RCTC may, by written notice to Agency terminate the whole or any part of this Agreement at any time, with or without cause, by giving written notice to Agency of such termination, and specifying the effective date thereof. Agency may not terminate this Agreement except for cause. Upon receipt of notice of termination, Agency shall immediately cease expenditure of MSRC Funds conveyed pursuant to this Agreement and promptly return all unexpended MSRC Funds to RCTC or as RCTC may direct. B. In the event this Agreement is terminated in whole or in part as provided in subsection A of this Section, RCTC may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. C. If this Agreement is terminated as provided in subsection A of this Section, RCTC may require Agency, when implementing a Project, to provide to RCTC all finished or unfinished documents, including but not exclusive to, data, studies, drawings, and reports, prepared by Agency in connection with the performance of this Agreement. 7.3 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: 85 8 17336.00600\29281559.3 To RCTC: Riverside County Transportation Commission 4080 Lemon Street, Third Floor P. O. Box 12008 Riverside, California 92502-2208 Attn: Anne Mayer, Executive Director To Agency: City of Riverside Public Works Department 3900 Main Street, 4th Floor Riverside, CA 92522 Attn: _______ Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid and addressed to the party at its applicable address. Notice may also be provided via electronic mail and shall be deemed made the date sent, provided that any notice sent via electronic mail shall also be sent by U.S. mail, per the requirements set forth in the foregoing sentence, within twenty-four (24) hours of the notice via electronic mail. Notice sent via electronic mail that is not followed by notice sent via U.S. mail, as required in this paragraph, shall not be considered notice for purposes of this Agreement. 7.4 Attorneys' Fees. If any party commences an action against the other arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party’s reasonable attorneys' fees and costs of suits. 7.5 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 modified in writing, signed by both parties. 7.6 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 7.7 Time of Essence. Time is of the essence for each and every provision of this Agreement. 7.8 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Agency without the prior written consent of RCTC. 7.9 Administration. A. RCTC's Executive Director, or his or her designee, shall administer this Agreement on behalf of RCTC. 86 9 17336.00600\29281559.3 B. Agency hereby designates the [City Manager], or his or her designee, to act as its representative to administer this Agreement on behalf of Agency ("Agency's Representative"). Agency's Representative shall have full authority to represent and act on behalf of Agency for all purposes under this Agreement. 7.10 Severability. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 7.11 Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures shall be considered originals. 7.12 Incorporation of Recitals. The Recitals set forth above are true and correct and are incorporated into this Agreement by reference as though fully set forth herein. 7.13 Incorporation of Exhibit. This Agreement contains two (2) exhibits (Exhibit “A” and Exhibit “B”) which are attached hereto and incorporated into this Agreement by reference. 7.14 Legal Authority. RCTC and Agency represent and warrant that the persons signing below on behalf of each party is duly authorized to execute this Agreement on behalf of its respective party and that, by so executing, the parties hereto are formally bound to the provisions of this Agreement. [Signatures on following page] 87 10 17336.00600\29281559.3 SIGNATURE PAGE TO MSRC FUNDING COOPERATIVE AGREEMENT FOR RIVERSIDE HUNTER PARK/UCR METROLINK STATION IMPROVEMENTS IN WITNESS WHEREOF, the parties hereto have executed the Agreement on the Effective Date. RCTC: RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: _________________________ Anne Mayer, Executive Director AGENCY: THE CITY OF RIVERSIDE By: __________________________ Title: ________________________ APPROVED AS TO FORM: By: _________________________ Best Best & Krieger LLP Counsel to the Riverside County Transportation Commission APPROVED AS TO FORM: By: __________________________ Title: ________________________ ATTEST: By: __________________________ Title: ________________________ 88 Exhibit A 17336.00600\29281559.3 EXHIBIT "A" SCOPE OF WORK AND PROJECT LOCATION [map attached behind this page] 89 Exhibit B 17336.00600\29281559.3 EXHIBIT "B" FUNDING PLAN [attached behind this page] 90 AGENDA ITEM 6F Agenda Item 6F RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Budget and Implementation Committee Brenda Ramirez, Management Analyst Sheldon Peterson, Rail Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Mobile Source Air Pollution Reduction Review Committee Major Event Center Transportation Program Grant BUDGET AND IMPLEMENTATION COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 17-25-040-00 with the South Coast Air Quality Management District (SCAQMD) for the receipt of a Mobile Source Air Pollution Reduction Review Committee (MSRC) Major Event Center Transportation Programs grant in the amount of $1.2 million; 2) Approve Agreement No. 17-25-037-00 with the Los Angeles – San Diego – San Luis Obispo (LOSSAN) Rail Corridor Agency for project coordination and transportation services with Amtrak in an amount not to exceed $1 million; 3) Approve Agreement No. 17-25-036-00 with Goldenvoice/Valley Music Travel (Goldenvoice) for project coordination and shuttle bus transportation in an amount not to exceed $200,000; 4) Approve an amendment of $1.2 million to the FY 2016/17 Commuter Rail Short Range Transit Plan (SRTP) for the total grant; 5) Approve an increase to the FY 2016/17 budget of $600,000 for MSRC grant revenues and corresponding rail and shuttle service expenditures; and 6) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission. BACKGROUND INFORMATION: On December 4, 2015, the Commission was awarded a two-year term MSRC special event grant by the SCAQMD to implement rail and shuttle service to the Coachella Music and Art (Coachella) Festival and Stagecoach Country Music (Stagecoach) Festival held each April at the city of Indio’s Empire Polo Club. The grant awarded the Commission with $1.2 million to provide concert goers with alternative transportation to and from one of the three-day concert events. On May 6, 2016, SCAQMD approved an extension to provide the proposed service through April 2018. 91 Agenda Item 6F Both music events are all day events that run from Friday through Sunday night. The grant funds will allow the Commission to provide two round trips via Amtrak on Thursday prior to the music event from the Los Angeles Union Station to Indio and return on Monday, the day after the event ends. The rail transportation services will be provided through an agreement with LOSSAN Rail Corridor Agency. The grant will also allow the Commission to establish a temporary boarding area in Indio as an in-kind match, comprised of the Proposition 1B Public Transportation Modernization, Improvement, and Service Enhancement Account funds received by the Commission. Lastly, shuttle services will be provided by Goldenvoice to allow passengers a connection from Indio to the event center for those camping onsite. Both the Coachella and Stagecoach Festivals are three-day festivals. The average daily attendance for the Coachella and Stagecoach Festivals is approximately 99,000 and 69,600 people, respectively. The popularity of these two events provides a major economic boost for the Coachella Valley but also severely impacts traffic levels on Interstate 10. During event weekends, Caltrans data indicates peak vehicle trips on Friday and Monday that exceed 140,000 vehicles, making it one of the busiest travel days. To operate this special transportation service, the Commission will collaborate and partner with LOSSAN Rail Corridor Agency and the event promoter, Goldenvoice. This partnership will allow for the successful implementation of ticketing and marketing required to provide and promote services for special events. Upon approval and execution of agreements with LOSSAN Rail Corridor Agency and Goldenvoice, staff will work to ensure the proposed service can be provided in April 2017. In addition, staff is working in collaboration with local jurisdictions and the Greater Palm Springs Convention and Visitors Bureau, who have provided the Commission with enthusiastic support to provide the service. The grant award of $1.2 million for operations costs over two years will be paid to the Commission as work is completed. An amendment to the FY 2016/17 Commuter Rail SRTP Table 4 in the amount of $1.2 million is required as well as adjustments to the FY 2016/17 budget of $600,000 to increase revenues for the MSRC grant and expenditures for rail and shuttle transportation service. Even though these agreements and approvals are critical to moving the project forward, there are still significant challenges ahead in order to operate the service for the April 2017 events. By December 2016, approvals and official confirmations will be needed on various elements of the program from the following partners: LOSSAN, Amtrak, Union Pacific Railroad, Caltrans Division of Rail, MSRC, Goldenvoice, Valley Music Travel and the city of Indio. This has always been an ambitious project that relies heavily on the efforts of external parties. Therefore, staff continues to work diligently to overcome these obstacles and will provide additional updates as more information becomes available. 92 Agenda Item 6F Financial Information In Fiscal Year Budget: No N/A Year: FY 2016/17 FY 2017/18 Amount: $600,000 $600,000 Source of Funds: MSRC grant Budget Adjustment: Yes N/A GL/Project Accounting No.: 004000 415 41510 0102 103 25 41501 $1,200,000 (revenues) 004000 86101 00000 0102 103 25 86101 $1,200,000 (expenditures) Fiscal Procedures Approved: Date: 10/17/2016 Attachments: 1) Draft MSRC Grant Agreement No. 17-25-040-00 2) Draft LOSSAN Agreement No. 17-25-037-00 3) Draft Goldenvoice/Valley Music Travel Agreement No. 17-25-036-00 93 Contract No. ***** 1 AB 2766/MSRC WORK PROGRAM CONTRACT 1.PARTIES - The parties to this Contract are the South Coast Air Quality Management District (hereinafter referred to as "SCAQMD") whose address is 21865 Copley Drive, Diamond Bar, California 91765-4178, and the *** (hereinafter referred to as "CONTRACTOR") whose address is ***. 2.RECITALS A. SCAQMD is the local agency with primary responsibility for regulating stationary source air pollution within the geographical boundaries of the South Coast Air Quality Management District in the State of California (State). SCAQMD is authorized under State Health & Safety Code Section 44225 (AB 2766) to levy a fee on motor vehicles for the purpose of reducing air pollution from such vehicles and to implement the California Clean Air Act. B. Under AB 2766, SCAQMD's Governing Board has authorized the imposition of the statutorily set motor vehicle fee. By taking such action, the State's Department of Motor Vehicles (DMV) is required to collect such fee and remit it periodically to SCAQMD. C. AB 2766 further mandates that thirty (30) percent of such vehicle registration fees be placed by SCAQMD into a separate account for the sole purpose of implementing and monitoring programs to reduce air pollution from motor vehicles. D. AB 2766 creates a regional Mobile Source Air Pollution Reduction Review Committee (MSRC) to develop a work program to fund projects from the separate account. Pursuant to approval of the work program by SCAQMD's Governing Board, SCAQMD authorized this Contract with CONTRACTOR for equipment or services described in Attachment 1 - Statement of Work, expressly incorporated herein by this reference and made a part hereof of this Contract. E. CONTRACTOR has met the requirements for receipt of AB 2766 Discretionary Funds as set forth in CONTRACTOR's *** Program Application/Proposal dated ***. F. CONTRACTOR is authorized to do business in the State of California and attests that it is in good tax standing with the California Franchise Tax Board. G. All parties to this Contract have had the opportunity to have this Contract reviewed by their attorney. 3.DMV FEES - CONTRACTOR acknowledges that SCAQMD cannot guarantee that the amount of fees to be collected under AB 2766 will be sufficient to fund this Contract. CONTRACTOR further acknowledges that payment under this Contract is contingent upon SCAQMD receiving sufficient funds from the DMV, and that SCAQMD assumes no responsibility for the collection and remittance of motor vehicle registration fees. 4.AUDIT AND RECORDS RETENTION A. CONTRACTOR shall, at least once every two years, or within two years of the termination of the Contract if the term is less than two years, be subject to an audit by SCAQMD or its authorized representative to determine if the revenues received by CONTRACTOR were spent for the reduction of pollution from motor vehicles pursuant to the Clean Air Act of 1988. B. CONTRACTOR agrees to maintain records related to this Contract during the Contract term and continue to retain these records for a period of two years beyond the Contract term, except that in no case shall CONTRACTOR be required to retain more than the most recent five years’ records . SCAQMD shall coordinate such audit through CONTRACTOR'S audit staff. South Coast Air Quality Management District ATTACHMENT 1 94 Contract No. ***** 2 C. If an amount is found to be inappropriately expended, SCAQMD may withhold funding, or seek reimbursement, from CONTRACTOR in the amount equal to the amount that was inappropriately expended. Such withholding shall not be construed as SCAQMD's sole remedy and shall not relieve CONTRACTOR of its obligation to perform under the terms of this Contract. 5. TERM - The term of this Contract is for *** (**) months from the date of execution by both parties, unless terminated earlier as provided for in the TERMINATION clause of this Contract, the EARLY TERMINATION clause, [leave if EARLY TERMINATION clause is used] or the term is extended by amendment of this Contract in writing. No work shall commence prior to the Contract start date, except at CONTRACTOR's cost and risk, and no charges are authorized until this Contract is fully executed, subject to the provisions stated in the PRE-CONTRACT COSTS clause of this Contract. 6. SUCCESSORS-IN-INTEREST - This Contract, and the obligations arising under the Contract, shall be binding on and inure to the benefit of CONTRACTOR and their executors, administrators, successors, and assigns. 7. REPORTING - CONTRACTOR shall submit reports to SCAQMD as outlined in Attachment 1 - Statement of Work. SCAQMD reserves the right to review, comment, and request changes to any report produced as a result of this Contract. 8. TERMINATION A. In the event any party fails to comply with any term or condition of this Contract, or fails to provide services in the manner agreed upon by the parties, including, but not limited to, the requirements of Attachment 1 – Statement of Work, this failure shall constitute a breach of this Contract. The non- breaching party shall notify the breaching party that it must cure this breach or provide written notification of its intention to terminate this contract. Notification shall be provided in the manner set forth in the NOTICES clause of this Contract. The non-breaching party reserves all rights under law and equity to enforce this Contract and recover damages. B. SCAQMD reserves the right to terminate this Contract, in whole or in part, without cause, upon thirty (30) days’ written notice. Once such notice has been given, CONTRACTOR shall, except as and to the extent or directed otherwise by SCAQMD, discontinue any Work being performed under this Contract and cancel any of CONTRACTOR’s orders for materials, facilities, and supplies in connection with such Work, and shall use its best efforts to procure termination of existing subcontracts upon terms satisfactory to SCAQMD. Thereafter, CONTRACTOR shall perform only such services as may be necessary to preserve and protect any Work already in progress and to dispose of any property as requested by SCAQMD. [USE ABOVE CLAUSE B. (For most) OR, BELOW CLAUSE B. FOR PASS-THROUGH FUNDING (I.E. ALT FUEL SCHOOL BUS PROGRAM), Choose one of the B. clauses. ALWAYS LEAVE CLAUSE C. in!] B. Either party may terminate this Contract upon thirty (30) days written notice to the other party. C. CONTRACTOR shall be paid in accordance with this Contract for all Work performed before the effective date of termination under section B of the TERMINATION clause of this Contract. Before expiration of the thirty (30) days’ written notice, CONTRACTOR s hall promptly deliver to SCAQMD all copies of documents and other information and data prepared or developed by CONTRACTOR under this Contract with the exception of a record copy of such materials, which may be retained by CONTRACTOR. 9. EARLY TERMINATION - This Contract may be terminated early due to the following circumstances: The infrastructure identified in Attachment 1, Statement of Work, becomes inoperable, and is either not 95 Contract No. ***** 3 technically able to be repaired, or is too costly to repair, and such failure is not caused by CONTRACTOR’s negligence, misuse, or malfeasance. [USE ONLY FOR FUELING/CHARGING STATIONS] 10. STOP WORK - SCAQMD may, at any time, by written notice to CONTRACTOR, require CONTRACTOR to stop all or any part of the Statement of Work tasks in this Contract. A stop work order may be issued for reasons including, but not limited to, the project exceeding the budget, out of scope work, delay in project schedule, or misrepresentations. Upon receipt of the stop work order, CONTRACTOR shall immediately take all necessary steps to comply with the order. CONTRACTOR shall resume the work only upon receipt of written instructions from SCAQMD cancelling the stop work order. CONTRACTOR agrees and understands that CONTRACTOR will not be paid for performing work while the stop work order is in effect, unless SCAQMD agrees to do so in its written cancellation of the stop work order. 11. INSURANCE A. CONTRACTOR shall furnish evidence to SCAQMD of workers' compensation insurance for each of its employees, in accordance with either California or other states’ applicable statutory requirements prior to commencement of any work on this Contract. B. CONTRACTOR shall furnish evidence to SCAQMD of general liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in a general aggregate prior to commencement of any work on this Contract. SCAQMD shall be named as an additional insured on any such liability policy, and thirty (30) days written notice prior to cancellation of any such insurance shall be given by CONTRACTOR to SCAQMD. C. CONTRACTOR shall furnish evidence to SCAQMD of automobile liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries, and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage, prior to commencement of any work on this Contract. SCAQMD shall be named as an additional insured on any such liability policy, and thirty (30) days written notice prior to cancellation of any such insurance shall be given by CONTRACTOR to SCAQMD. D. CONTRACTOR shall furnish evidence to SCAQMD of Professional Liability Insurance with an aggregate limit of not less than $5,000,000. [OPTIONAL FOR PROFESSIONAL SERVICES – USE FOR LAW FIRMS AND SOFTWARE RELATED CONTRACTS] E. If CONTRACTOR fails to maintain the required insurance coverage set forth above, SCAQMD reserves the right either to purchase such additional insurance and to deduct the cost thereof from any payments owed to CONTRACTOR or terminate this Contract for breach. F. All insurance certificates shall be mailed to: SCAQMD, 21865 Copley Drive, Diamond Bar, CA 91765- 4178, Attention: Cynthia Ravenstein, MSRC Contracts Administrator. The SCAQMD Contract Number must be included on the face of the certificate. G. CONTRACTOR must provide updates on the insurance coverage throughout the term of the Contract to ensure that there is no break in coverage during the period of contract performance. Failure to provide evidence of current coverage shall be grounds for termination for breach of Contract. [USE ABOVE CLAUSE OR SELF INSURANCE CLAUSE BELOW]-REMOVE BEFORE PRINTING Self Insurance Clause: INSURANCE - CONTRACTOR represents that it is permissibly self-insured and will maintain such self- insurance in accordance with applicable provisions of California law throughout the term of this Contract. CONTRACTOR shall provide evidence of sufficient coverage during the term of this Contract and any extensions thereof that meet or exceed the minimum requirements set forth by the SCAQMD below. The 96 Contract No. ***** 4 certificate of self-insurance shall be mailed to: SCAQMD, 21865 Copley Drive, Diamond Bar, CA 91765- 4178, Attention: Cynthia Ravenstein, MSRC Contracts Administrator. The SCAQMD Contract Number must be included on the face of the certificate. If CONTRACTOR fails to maintain the required insurance coverage, SCAQMD reserves the right to terminate the Contract or purchase such additional insurance and bill CONTRACTOR or deduct the cost thereof from any payments owed to CONTRACTOR. Minimum insurance coverages are as follows: A. Worker’s compensation insurance in accordance with either California or other state’s applicable statutory requirements. B. General Liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in general aggregate. C. Automobile Liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage. 12. INDEMNIFICATION - CONTRACTOR agrees to hold harmless, defend and indemnify SCAQMD, its officers, employees, agents, representatives, and successors-in-interest against any and all loss, damage, costs, lawsuits, claims, demands, causes of action, judgments, attorney’s fees, or any other expenses arising from or related to any third party claim against SCAQMD, its officers, employees, agents, representatives, or successors in interest that arise or result in whole or in part, from any actual or alleged act or omission of CONTRACTOR, its employees, subcontractors, agents or representatives in the performance of this Contract. This Indemnification Clause shall survive the expiration or termination (for any reason) of the Contract and shall remain in full force and effect. 13. DISCLAIMER OF WARRANTY - The purchase or lease of funded vehicles/equipment is the CONTRACTOR’s decision. The SCAQMD does not make any express or implied warranty of merchantability, fitness for a particular purpose or otherwise, quality or usefulness of the technology or product. Without limiting the foregoing, the SCAQMD will not be financially responsible, or otherwise liable, for the installation or performance of the vehicle/equipment. [REMOVE FOR MAJOR EVENT CENTER TRANSPORTATION PROGRAM CONTRACTS] 14. PAYMENT A. SCAQMD shall reimburse CONTRACTOR up to a total amount of *** Dollars ($***) in accordance with Attachment 2 – Payment/Cost Schedule expressly incorporated herein by this reference and made a part hereof of the Contract. B. A withhold amount or percentage (if any) shall be identified in the Payment/Cost Schedule, and such amount shall be withheld from each invoice. Upon satisfactory completion of project and final acceptance of work and the final report, CONTRACTOR’s invoice for the withheld amount shall be released. Proof of project completion shall include a Final Report detailing the project goals and accomplishments, data collected during project performance, if any, documentation of significant results, and emissions reduction input data needed for calculation of emissions reductions. C. Any funds not expended upon early Contract termination or Contract completion shall revert to the AB 2766 Discretionary Fund. Payment of charges shall be made by SCAQMD to CONTRACTOR within thirty (30) days after approval by SCAQMD of an itemized invoice prepared and furnished by CONTRACTOR. 97 Contract No. ***** 5 D. An invoice submitted to SCAQMD for payment must be prepared in duplicate, on company letterhead, and list SCAQMD's contract number, period covered by invoice, and CONTRACTOR's social security number or Employer Identification Number and submitted to: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Cynthia Ravenstein, MSRC Contracts Administrator 1. Charges for equipment, material, and supply costs, travel expenses, subcontractors, and other charges, as applicable, must be itemized by CONTRACTOR. Reimbursement for equipment, material, supplies, subcontractors, and other charges, as applicable, shall be made at actual cost. Supporting documentation must be provided for all individual charges (with the exception of direct labor charges provided by CONTRACTOR). 2. SCAQMD shall pay CONTRACTOR for travel-related expenses only if such travel is expressly set forth in Attachment 2 – Payment/Cost Schedule of this Contract or pre-authorized by SCAQMD in writing. 3. CONTRACTOR’s failure to provide receipts shall be grounds for SCAQMD’s non-reimbursement of such charges. CONTRACTOR may reduce payments on invoices by those charges for which receipts were not provided. 4. CONTRACTOR must submit final invoice no later than ninety (90) days after the termination date of this Contract or invoice may not be paid. [USE ABOVE CLAUSE OR, IF PASS-THROUGH FUNDING (I.E. ALT FUEL SCHOOL BUS PROGRAM), USE THE CLAUSE BELOW]-REMOVE BEFORE PRINTING A. SCAQMD will provide up to a maximum amount of *** Dollars ($***) in vehicle incentives for qualified OEM, California Highway Patrol-certified, CARB-certified, alternative-fueled school buses sold or leased to qualified customers, with the incentive amount per bus not to exceed Thirty One Thousand Dollars ($31,000) on each Type D body, dedicated CNG school bus, and Nine Thousand Dollars ($9,000) on each Type C conventional body, dedicated LPG school bus. The actual incentive for each bus will be adjusted to reflect any federal tax credits which will be claimed by the CONTRACTOR. B. CONTRACTOR may submit a request for reimbursement upon proof of delivery and acceptance of an eligible alternative-fueled school bus to customer (i.e., school districts, etc). The invoice shall include a completed and signed Participant Agreement (Attachment A) from each customer, a copy of the sales or lease agreement of the sales or lease agreement corresponding to each customer, including, at a minimum, the following information: 1) the customer's name and address, including an affirmative statement that the customer intends to operate the bus within the geographical boundaries of the South Coast Air Quality Management District, and will scrap the bus being replaced; 2) the leasing company, if the bus is leased; 3) make and model information; 4) Vehicle Identification Number; 5) the delivery date and delivering dealership or retail facility; and 6) the name and phone number of a contact at the dealership or retail facility. C. SCAQMD will then reimburse CONTRACTOR for each qualifying alternative-fueled school bus sale or lease agreement submitted. The SCAQMD shall reimburse CONTRACTOR within thirty (30) days of receipt of an invoice deemed complete and correct by SCAQMD. CONTRACTOR shall not be eligible to receive reimbursement under the Buydown Program for the resale or re-lease of any vehicle as to which reimbursement to the CONTRACTOR has previously been made. D. Additional funds may be added to the Contract after the initial funding amount has been exhausted subject to the availability of remaining funds and MSRC approval. 98 Contract No. ***** 6 15. COMPLIANCE WITH APPLICABLE LAWS - CONTRACTOR agrees to comply with all federal, state, and local laws, ordinances, codes and regulations and orders of public authorities in the performance of this Contract. CONTRACTOR must also ensure that the vehicles and/or equipment to be purchased, leased or installed is in compliance with all applicable federal, state, and local air quality rules and regulations, and that it will maintain compliance for the full Contract term. CONTRACTOR shall ensure that the provisions of this clause are included in all subcontracts. 16. MOBILE SOURCE EMISSION REDUCTION CREDITS (MSERCs) A. The MSRC has adopted a policy that no MSERCs resulting from AB 2766 Discretionary Funds may be generated and/or sold. B. CONTRACTOR has the opportunity to generate MSERCs as a by-product of the project if a portion of the air quality benefits attributable to the project resulted from funding sources other than AB2766. These MSERCs, which are issued by SCAQMD, are based upon the quantified vehicle miles traveled (VMT) by project vehicles or other activity data as appropriate. Therefore, a portion of prospective MSERCs, generated as a result of AB 2766 Funds, must be retired. The portion of prospective credits funded by the AB 2766 program, and which are subject to retirement, shall be referred to as "AB 2766- MSERCs." C. The determination of AB 2766-MSERC's is to be prorated based upon the AB 2766 program's contribution to the cost associated with the air quality benefits. In the case where AB 2766 Discretionary Funds are used to pay for the full differential cost of a new alternative fuel vehicle or for the retrofitting or repowering of an existing vehicle, all MSERCs attributable to AB 2766 Discretionary Funds must be retired. The determination of AB 2766-MSERCs for infrastructure and other ancillary items is to be prorated based upon the AB 2766 program’s contribution to the associated air quality benefits. Determination of the project's overall cost will be on a case-by-case basis at the time an MSERC application is submitted. SCAQMD staff, at the time an MSERC application is submitted, will calculate total MSERCs and retire the AB 2766-MSERCs. CONTRACTOR would then receive the balance of the MSERCs not associated with AB 2766 funding. 17. NOTICES - All notices that are required under this Contract shall be provided in the manner set forth herein, unless specified otherwise. Notice to a party shall be delivered to the attention of the person listed below, or to such other person or persons as may hereafter be designated by that party in writing. Notice shall be in writing sent by email, U.S. Mail, express, certified, return receipt requested, or a nationally recognized overnight courier service. In the case of email communications, valid notice shall be deemed to have been delivered upon sending, provided the sender obtained an electronic confirmation of delivery. Email communications shall be deemed to have been received on the date of such transmission, provided such date was a business day (Tuesday-Friday) and delivered prior to 5:30pm Pacific Standard Time. Otherwise, receipt of email communications shall be deemed to have occurred on the following business day. In the case of U.S. Mail notice, notice shall be deemed to be received when delivered or five (5) business days after deposit in the U. S. Mail. In the case of a nationally recognized overnight courier service, notice shall be deemed received when delivered (written receipt of delivery). SCAQMD: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Cynthia Ravenstein, MSRC Contracts Administrator, email: cravenstein@aqmd.gov CONTRACTOR: 99 Contract No. ***** 7 *** *** *** Attn: ***, email: *** 18. INDEPENDENT CONTRACTOR - CONTRACTOR is an independent contractor. CONTRACTOR, its officers, employees, agents, representatives, or subcontractors shall in no sense be considered employees or agents of SCAQMD, nor shall CONTRACTOR, its officers, employees, agents, representatives, or subcontractors be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended by SCAQMD to its employees. SCAQMD will not supervise, direct, or have control over, or be responsible for, CONTRACTOR’s or subcontractor’s means, methods, techniques, work sequences or procedures, or for the safety precautions and programs incident thereto, or for any failure by them to comply with any local, state, or federal laws, or rules or regulations, including state minimum wage laws and OSHA requirements. 19. SUBCONTRACTOR APPROVAL - If CONTRACTOR intends to subcontract all or a portion of the work under this Contract, then CONTRACTOR must first obtain written approval from SCAQMD’s Executive Officer or designee prior to subcontracting any work. Any material changes to the subcontract(s) that affect the scope of work, deliverable schedule, and/or payment/cost schedule shall also require the prior written approval of the SCAQMD Executive Officer or designee. No subcontract charges will be reimbursed unless the required approvals have been obtained from SCAQMD. 20. OWNERSHIP - Title and full ownership rights to any equipment purchased under this Contract shall at all times remain with CONTRACTOR. [USE ABOVE CLAUSE, OR USE CLAUSE BELOW FOR PROFESSIONAL SERVICES (SUCH AS LAW FIRMS AND SOFTWARE RELATED CONTRACTS)]-Remove before printing OWNERSHIP - Title and full ownership rights to any products purchased or developed under this Contract shall at all time remain with CONTRACTOR. CONTRACTOR shall also retain title and full ownership rights to any documents or reports developed under this Contract. All of the above shall be subject to the following limitations: A. PATENT RIGHTS - CONTRACTOR shall have patent rights, as well as title and full ownership rights, for invention(s) developed under this Contract, subject to SCAQMD retaining a no-cost, nonexclusive, nontransferable, irrevocable license to use or test such invention(s) for SCAQMD purposes. CONTRACTOR must obtain agreements to effectuate this clause with all persons or entities obtaining an ownership interest in the patented subject invention(s). Previously documented (whether patented or unpatented under the patent laws of the United States, 35 U.S.C. 1 et seq., or any foreign country) inventions are exempt from this provision. CONTRACTOR shall submit a written report to SCAQMD's Agent disclosing each subject invention and specifying patents applied for, patents issued, and patent application(s) abandoned and/or cosponsored participants on subject invention(s). B. RIGHTS OF TECHNICAL DATA - SCAQMD shall have unlimited right to use technical data resulting from performance of CONTRACTOR under this Contract. CONTRACTOR shall have the right to use data for its own benefit. C. COPYRIGHT - CONTRACTOR agrees to grant SCAQMD a royalty free, nonexclusive, irrevocable, nontransferable license to produce, translate, publish, use, and dispose of all copyrightable material first produced or composed in the performance of this Contract. 100 Contract No. ***** 8 D. SOFTWARE RIGHTS - CONTRACTOR agrees to grant SCAQMD a worldwide, royalty free, nonexclusive, irrevocable, nontransferable license in perpetuity to use any software developed by CONTRACTOR in performing its obligations under this Contract. CONTRACTOR further agrees to obtain the rights required from any third party for SCAQMD to have a worldwide, royalty free, nonexclusive, irrevocable license in perpetuity to use any other software essential to performance of CONTRACTOR'S obligations under this Contract or necessary to the operation of the software developed by CONTRACTOR. CONTRACTOR shall provide SCAQMD with documentation confirming CONTRACTOR'S right to assign the use of such software. CONTRACTOR shall also provide SCAQMD with all documentation and manuals required to operate the software developed by it or third parties. E. CONTRACTOR'S INSOLVENCY OR BANKRUPTCY, or PROJECT'S DISCONTINUATION - CONTRACTOR agrees that in the event that CONTRACTOR becomes insolvent or files for bankruptcy during the term of the Contract or does not complete the intent of the Contract, title to goods, services software, and equipment purchased for the performance of this Contract with AB 2766 Discretionary Funds shall revert to the SCAQMD. 21. SECURITY INTEREST - CONTRACTOR hereby grants SCAQMD a security interest in any and all equipment purchased, in whole or in part, with funding provided by SCAQMD pursuant to this Contract. CONTRACTOR acknowledges and agrees that SCAQMD shall have all lien rights as a secured creditor on any and all equipment purchased in whole or in part by the CONTRACTOR, under this Contract or any amendments thereto. The SCAQMD shall have lien rights in effect until the CONTRACTOR satisfies all terms under the Contract, including but not limited to, the use and reporting requirements. Accordingly, CONTRACTOR further agrees that SCAQMD is authorized to file a UCC filing statement or similar security instrument to secure its interests in the equipment that is the subject of the Contract. In the event CONTRACTOR files for bankruptcy protection, CONTRACTOR shall notify SCAQMD within 10 business days of such filing. [USE ONLY for equipment/vehicle purchases] 22. NON-DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color, national origin, ancestry, sex, age, or physical handicap and shall comply with the provisions of the California Fair Employment & Housing Act (Government Code Section 12900, et seq.), the Federal Civil Rights Act of 1964 (P.L. 88-352) and all amendments thereto, Executive Order No. 11246 (30 Federal Register 12319), and all administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR shall likewise require each subcontractor to comply with this clause and shall include in each such subcontract language similar to this clause. 23. CITIZENSHIP AND ALIEN STATUS A. CONTRACTOR warrants that it fully complies with all laws regarding the employment of aliens and others, and that its employees performing services hereunder meet the citizenship or alien status requirements contained in federal and state statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986 (P.L. 99-603). CONTRACTOR shall obtain from all covered employees performing services hereunder all verification and other documentation of employees' eligibility status required by federal statutes and regulations as they currently exist and as they may be hereafter amended. CONTRACTOR shall have a continuing obligation to verify and document the continuing employment authorization and authorized alien status of employees performing services under this Contract to insure continued compliance with all federal statutes and regulations. Notwithstanding the above, CONTRACTOR, in the performance of this Contract, shall not discriminate against any person in violation of 8 USC Section 1324b. 101 Contract No. ***** 9 B. CONTRACTOR shall retain such documentation for all covered employees for the period described by law. CONTRACTOR shall indemnify, defend, and hold harmless SCAQMD, its officers and employees from employer sanctions and other liability which may be assessed against CONTRACTOR or SCAQMD, or both in connection with any alleged violation of federal statutes or regulations pertaining to the eligibility for employment of persons performing services under this Contract. 24. ASSIGNMENT AND TRANSFER OF EQUIPMENT A. The rights and responsibilities granted hereby may not be assigned, sold, licensed, or otherwise transferred by CONTRACTOR without the prior written consent of SCAQMD, and any attempt by CONTRACTOR to do so shall be void upon inception. B. CONTRACTOR agrees to obtain SCAQMD’s written consent to any assignment, sale, license or transfer of Equipment, if any, prior to completing the transaction. CONTRACTOR shall inform the proposed assignee, buyer, licensee or transferee (collectively referred to here as “Buyer”) of the terms of this Contract. CONTRACTOR is responsible for establishing contact between SCAQMD and the Buyer and shall assist SCAQMD in facilitating the transfer of this Contract’s terms and conditions to the Buyer. CONTRACTOR will not be relieved of the legal obligation to fulfill the terms and conditions of this Contract until and unless the Buyer has assumed responsibility of this Contract’s terms and conditions through an executed contract with SCAQMD. [REMOVE FOR MAJOR EVENT CENTER TRANSPORTATION PROGRAM CONTRACTS] 25. NON-EFFECT OF WAIVER - The failure of CONTRACTOR or SCAQMD to insist upon the performance of any or all of the terms, covenants, or conditions of this Contract, or failure to exercise any rights or remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for herein. 26. PROPOSAL INCORPORATION – CONTRACTOR’s Technical Proposal dated *** submitted in response to Request for Proposal (RFP) #***, is expressly incorporated herein by this reference and made a part hereof of this Contract. In the event of any conflict between the terms and conditions of this Contract and CONTRACTOR’s Technical Proposal, this Contract shall govern and control. [If Project Officer wants Proposal Incorporation, they should include the proposal in the contract file when it gets circulated for review. - REMOVE IF NOT REQUESTED ON CRAM] 27. KEY PERSONNEL - [OPTIONAL]insert person's name is deemed critical to the successful performance of this Contract. Any changes in key personnel by CONTRACTOR must be approved by SCAQMD. All substitute personnel must possess qualifications/experience equal to the original named key personnel and must be approved by SCAQMD. SCAQMD reserves the right to interview proposed substitute key personnel. [REMOVE IF NOT REQUESTED ON CRAM] 28. TAX IMPLICATIONS FROM RECEIPT OF MSRC FUNDS - CONTRACTOR is advised to consult a tax attorney regarding potential tax implications from receipt of MSRC funds. 29. ATTORNEYS' FEES - In the event any action is filed in connection with the enforcement or interpretation of this Contract, each party in said action shall pay its own attorneys' fees and costs. 30. FORCE MAJEURE - Neither SCAQMD nor CONTRACTOR shall be liable or deemed to be in default for any delay or failure in performance under this Contract or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of 102 Contract No. ***** 10 suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of SCAQMD or CONTRACTOR. 31. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not affect any other provisions of this Contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof. 32. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Contract. 33. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force and effect of an original. 34. GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. Venue for resolution of any disputes under this Contract shall be Los Angeles County, California. 35. PRE-CONTRACT COSTS - Any costs incurred by CONTRACTOR prior to CONTRACTOR receipt of a fully executed Contract shall be incurred solely at the risk of the CONTRACTOR. In the event that a formal Contract is not executed, neither the MSRC nor the SCAQMD shall be liable for any amounts expended in anticipation of a formal Contract. If a formal Contract does result, pre-contract cost expenditures authorized by the Contract will be reimbursed in accordance with the Payment/Cost Schedule and payment provision of the Contract. 36. CHANGE TERMS - Changes to any part of this Contract must be requested in writing by CONTRACTOR and approved by MSRC in accordance with MSRC policies and procedures. CONTRACTOR must make requests a minimum of 90 days prior to desired effective date of change. All modifications to this Contract shall be in writing and signed by the authorized representatives of the parties. Fueling station location changes shall not be approved under any circumstances. 37. PREVAILING WAGES – [USE FOR INFRASTRUCTURE AND MAINTENANCE PROJECTS] CONTRACTOR is alerted to the prevailing wage requirements of California Labor Code section 1770 et seq ., and the compliance monitoring and enforcement of such requirements by the Department of Industrial Relations (“DIR”). CONTRACTOR and all of CONTRACTOR’s subcontractors must comply with the California Public Works Contractor Registration Program and must be registered with the DIR to participate in public works projects. CONTRACTOR shall be responsible for determining the applicability of the provisions of California Labor Code and complying with the same, including, without limitation, obtaining from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, making the same available to any interested party upon request, paying any applicable prevailing rates, posting copies thereof at the job site and flowing all applicable prevailing wage rate requirements to its subcontractors. Proof of compliance with these requirements must be provided to SCAQMD upon request. CONTRACTOR shall indemnify, defend and hold harmless the South Coast Air Quality Management District against any and all claims, demands, damages, defense costs or liabilities based on failure to adhere to the above referenced statutes. 103 Contract No. ***** 11 38. ENTIRE CONTRACT - This Contract represents the entire agreement between CONTRACTOR and SCAQMD. There are no understandings, representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any party unless in writing and signed by the authorized representative of the party against whom enforcement of such waiver, alteration, or modification is sought. 39. AUTHORITY - The signator hereto represents and warrants that he or she is authorized and empowered and has the legal capacity to execute this Contract and to legally bind CONTRACTOR both in an operational and financial capacity and that the requirements and obligations under this Contract are legally enforceable and binding on CONTRACTOR. (THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK) 104 Contract No. ***** 12 IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their behalf by their authorized representatives. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT *** By: __________________________________________ By: __________________________________________ Dr. William A. Burke, Chairman, Governing Board Name: Title: Date: _________________________________________ Date: _________________________________________ ATTEST: Saundra McDaniel, Clerk of the Board By: __________________________________________ APPROVED AS TO FORM: Kurt R. Wiese, General Counsel By: __________________________________________ //MSRC Master Boilerplate Revised December 16, 2014 105 -1- 17336.00600\29130636.3 Agreement No. 17-25-037-00 DRAFT COOPERATIVE AGREEMENT BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND LOS ANGELES-SAN DIEGO-SAN LUIS OBISPO RAIL CORRIDOR AGENCY This Cooperative Agreement (“Agreement”) is made and entered into this ______ day of _________________ 2016 by and between the Riverside County Transportation Commission (“Commission”) and the LOS AN GELES-SAN DIEGO-SAN LUIS OBISPO RAIL CORRIDOR AGENCY(LOSSAN) (“Provider”). Commission and the Provider are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. RECITALS WHEREAS, the Coachella Valley Music Festival (“Coachella”) and the Stagecoach Country Music Festival (“Stagecoach”) are two of the largest events (collectively, the “Festivals”) regularly held at the Empire Polo Club in the City of Indio, California (“Indio”), bringing in an average daily attendance in 2015 of over 98,000 and 69,000, respectively. WHEREAS, the Commission desires to partner with other agencies and companies to provide special round-trip rail service from Los Angeles Union Station to Indio and shuttle service to and from the rail station in Indio and the Festivals and to market the services and the air quality benefits of alternative commute modes (“Project”). WHEREAS, the Project would enhance passenger accessibility and connectivity with existing transit systems, making it possible for the Festivals’ attendees to utilize public transportation for all, or a significant portion of, their trip to and from the Festivals. WHEREAS, the Project would result in direct and tangible emission reductions by eliminating automobile trips and vehicle miles traveled and reductions in traffic congestion for all motorists on adjacent arterial streets and freeways, thereby yielding additional air quality benefits by avoiding the emissions associated with stop and go driving and queuing. WHEREAS, the Commission and Provider desire to enter into this Agreement to specify the mutual understanding and responsibilities of the Parties and define a framework under which the transportation-related services for the Project are to be managed, performed, and financed. ATTACHMENT 2 106 -2- 17336.00600\29130636.3 NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually understood and agreed by the Commission and the Provider as follows: TERMS 1. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 2. Term. This Agreement shall be effective as of the date first set forth above and shall continue in effect until the Commission, pursuant to Section 4.1, pays the invoice for the Services performed by the Provider for the Festivals occurring in 2018, unless earlier terminated as provided herein or extended in writing by mutual agreement between the Parties. 3. Responsibilities of Provider 3.1. Provider promises and agrees to furnish all labor, materials, equipment, services, and incidental and customary work necessary to fully and adequately provide transportation-related services for the Project, hereinafter referred to as "Services". The Services, and anticipated costs therefor, are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2. Provider shall submit a single, annual itemized invoice for the Services performed for the Festivals within thirty (30) days after the end date of Stagecoach. Supporting documentation must be provided for all items listed in the invoice. The invoice shall contain the dates of the work performed for the Festivals and, if applicable, be accompanied by detailed contractor invoices, or other demands for payment addressed to the Provider, and documents evidencing the Provider payment of the invoices or demands for payment. Upon receipt of an invoice from the Provider, the Commission may request additional documentation or explanation of the costs for which reimbursement is sought. 4. Responsibilities of Commission. 4.1. Compensation. The Commission shall pay complete and accurate invoices submitted by Provider within thirty (30) days of receipt of the invoice, unless the Commission disputes the eligibility of the Provider for reimbursement of all or a portion of an invoiced amount. In the event that Commission disputes the eligibility of the Provider for reimbursement of all or a portion of an invoiced amount, the Parties shall meet and confer in an attempt to resolve the dispute. If the meet and confer process is unsuccessful in resolving the dispute, the Provider may appeal Commission’s decision as to the eligibility of one or more invoices to Commission’s Executive Director. The Provider may 107 -3- 17336.00600\29130636.3 appeal the decision of the Executive Director to the full Commission Board, the decision of which shall be final. 4.2. Maximum Compensation. Notwithstanding any provisions of this Agreement to the contrary, the Commission’s maximum cumulative payment obligation hereunder shall be __________________________ Dollars ($_____________), to be used exclusively for reimbursing the Provider for the actual costs of eligible Services expenses as described herein (“Funding Amount”), and as further detailed in Exhibit “A”. Provider acknowledges and agrees that the Funding Amount may be less than the actual cost of the Services, and that the Commission shall not contribute funds in excess of the maximum authorized in this Section unless agreed to and amended by both Parties in writing. 5. Indemnification. 5.1. The Provider shall indemnify, defend and hold the Commission, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or breach of law, or willful misconduct of the Provider, its officials, officers, employees, agents, consultants or contractors in the performance of the Provider’s obligations under this Agreement, including the payment of all reasonable attorneys fees. 5.2. The indemnification provisions set forth in this Section shall survive any expiration or termination of this Agreement. 6. Insurance. Provider shall obtain and require its subcontractors or sub-consultants to obtain insurance of the types and in the amounts described below for the entire term of this Agreement. 6.1. Commercial General Liability Insurance. Occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $2,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Services or be no less than two times the occurrence limit. Such insurance shall: 6.1.1. Name the Commission and its officials, officers, employees, agents, and consultants, as insureds with respect to performance of this Agreement. Such insured status shall contain no special limitations on the scope of its protection to the above-listed insureds. 6.1.2. Be primary and noncontributory with respect to any insurance or self insurance programs covering the Commission and its directors, officials, officers, employees, agents, and consultants. 108 -4- 17336.00600\29130636.3 6.1.3. Contain standard separation of insureds provisions. 6.2. Business Automobile Liability Insurance. If Provider hires or owns any vehicle during the term of this Agreement, Provider shall maintain business automobile liability insurance or equivalent form with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 6.3. Workers' Compensation Insurance. Provider shall maintain workers' compensation insurance with statutory limits and employer's liability insurance with limits of not less than $1,000,000 per accident. 6.4. Certificates/Insurer Rating/Cancellation Notice. Provider shall, prior to receiving any funding under this Agreement, furnish to the Commission properly executed certificates of insurance, certified copies of endorsements, and policies, if requested by the Commission which shall clearly evidence all insurance required in this Section. Provider shall not allow such insurance to be cancelled, allowed to expire or be materially reduced in coverage except on thirty (30) days prior written notice to the Commission. 6.5. Licensed Insurer. Provider shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by the Commission. 7. Accounting Records. 7.1. Retention of Records. Provider shall maintain complete and accurate records with respect to costs incurred and other records generated under this Agreement. All such records shall be clearly identifiable. Provider shall allow representatives of the Commission during normal business hours to examine, audit, and make transcripts or copies of such records. Provider shall maintain all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the expiration or termination of this Agreement and shall allow inspection hereunder during such time. 7.2. Accounting of Funds. When requested by the Commission, Provider shall within fifteen (15) days provide the Commission with a full reporting and accounting of all funds received pursuant to this Agreement during its term. 8. General Provisions. 8.1. Termination of Agreement. In the event either Party defaults in the performance of their obligations under this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party shall have the option to terminate this Agreement upon thirty (30) days' prior written notice to the other Party. 8.2. Force Majeure. The failure of performance by either Party (except for payment obligations) hereunder shall not be deemed to be a default where delays or 109 -5- 17336.00600\29130636.3 defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, railroad, or suppliers; acts of the other Party; acts or failure to act of any other public or governmental agency or entity (other than that acts or failure to act of the Parties); or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform or relief from default. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement between the Parties. 8.3. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose: To Commission: Riverside County Transportation Commission 4080 Lemon Street, Third Floor P. O. Box 12008 Riverside, California 92502-2208 Attn: Anne Mayer, Executive Director AMayer@rctc.org To Provider: ________________________ ________________________ Attn: [INSERT NAME, TITLE] [INSERT E-MAIL ADDRESS] Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid and addressed to the Party at its applicable address. Notice may also be provided via electronic mail and shall be deemed made the date sent, provided that any notice sent via electronic mail shall also be sent by U.S. mail, per the requirements set forth in the foregoing sentence, within twenty-four (24) hours of the notice via electronic mail. Notice sent via electronic mail that is not followed by notice sent via U.S. mail, as required in this paragraph, shall not be considered notice for purposes of this Agreement. 8.4. Attorneys' Fees. If any Party commences an action against the other arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party’s reasonable attorneys' fees and costs of suits. 8.5. Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, 110 -6- 17336.00600\29130636.3 understandings or agreements. This Agreement may only be modified in writing, signed by both Parties. 8.6. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 8.7. Amendments. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing; however, no amendments or other modifications of this Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors or assigns. 8.8. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. Neither this Agreement, nor any of the Parties' rights, obligations, duties, or authority hereunder may be assigned in whole or in part by either Party without the prior written consent of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment. 8.9. Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of either Party shall be deemed to waive or render unnecessary such Party's consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.10. Administration. 8.10.1. Commission's Executive Director, or his or her designee, shall administer this Agreement on behalf of Commission. 8.10.2. Provider hereby designates __________ or his or her designee, to act as its representative to administer this Agreement on behalf of Provider ("Provider’s Representative"). Provider’s Representative shall have full authority to represent and act on behalf of Provider for all purposes under this Agreement. 8.11. Severability. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 8.12. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures shall be considered originals. 111 -7- 17336.00600\29130636.3 8.13. Legal Authority. The Commission and Provider represent and warrant that the persons signing below on behalf of each Party is duly authorized to execute this Agreement on behalf of its respective Party and that, by so executing, the Parties hereto are formally bound to the provisions of this Agreement. [Signatures on following page] 112 -8- 17336.00600\29130636.3 DRAFT SIGNATURE PAGE TO COOPERATIVE AGREEMENT BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND LOS ANGELES-SAN DIEGO-SAN LUIS OBISPO RAIL CORRIDOR AGENCY IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. Commission: Provider: RIVERSIDE COUNTY _______________________ TRANSPORTATION COMMISSION _______________________ By: By: __________________________ Anne Mayer, Executive Director Title: ________________________ APPROVED AS TO FORM: APPROVED AS TO FORM: By: _____________________________ By: __________________________ Best Best & Krieger LLP Counsel to the Riverside Title: ________________________ County Transportation Commission ATTEST: By: _________________________ Title: ________________________ 113 Exhibit “A” 17336.00600\29130636.3 EXHIBIT "A" SCOPE OF SERVICES AND COST [to be inserted] 114 -1- 17336.00600\29130636.3 Agreement No. 17-25-036-00 DRAFT COOPERATIVE AGREEMENT BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND GOLDENVOICE/VALLEY MUSIC TRAVEL This Cooperative Agreement (“Agreement”) is made and entered into this ______ day of _________________ 2016 by and between the Riverside County Transportation Commission (“Commission”) and the GOLDENVOICE/VALLEY MUSIC TRAVEL (“Provider”). Commission and the Provider are sometimes referred to herein individually as “Party”, and collectively as the “Parties”. RECITALS WHEREAS, the Coachella Valley Music Festival (“Coachella”) and the Stagecoach Country Music Festival (“Stagecoach”) are two of the largest events (collectively, the “Festivals”) regularly held at the Empire Polo Club in the City of Indio, California (“Indio”), bringing in an average daily attendance in 2015 of over 98,000 and 69,000, respectively. WHEREAS, the Commission desires to partner with other agencies and companies to provide special round-trip rail service from Los Angeles Union Station to Indio and shuttle service to and from the rail station in Indio and the Festivals and to market the services and the air quality benefits of alternative commute modes (“Project”). WHEREAS, the Project would enhance passenger accessibility and connectivity with existing transit systems, making it possible for the Festivals’ attendees to utilize public transportation for all, or a significant portion of, their trip to and from the Festivals. WHEREAS, the Project would result in direct and tangible emission reductions by eliminating automobile trips and vehicle miles traveled and reductions in traffic congestion for all motorists on adjacent arterial streets and freeways, thereby yielding additional air quality benefits by avoiding the emissions associated with stop and go driving and queuing. WHEREAS, the Commission and Provider desire to enter into this Agreement to specify the mutual understanding and responsibilities of the Parties and define a framework under which the transportation-related services for the Project are to be managed, performed, and financed. ATTACHMENT 3 115 -2- 17336.00600\29130636.3 NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually understood and agreed by the Commission and the Provider as follows: TERMS 1. Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 2. Term. This Agreement shall be effective as of the date first set forth above and shall continue in effect until the Commission, pursuant to Section 4.1, pays the invoice for the Services performed by the Provider for the Festivals occurring in 2018, unless earlier terminated as provided herein or extended in writing by mutual agreement between the Parties. 3. Responsibilities of Provider 3.1. Provider promises and agrees to furnish all labor, materials, equipment, services, and incidental and customary work necessary to fully and adequately provide transportation-related services for the Project, hereinafter referred to as "Services". The Services, and anticipated costs therefor, are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2. Provider shall submit a single, annual itemized invoice for the Services performed for the Festivals within thirty (30) days after the end date of Stagecoach. Supporting documentation must be provided for all items listed in the invoice. The invoice shall contain the dates of the work performed for the Festivals and, if applicable, be accompanied by detailed contractor invoices, or other demands for payment addressed to the Provider, and documents evidencing the Provider payment of the invoices or demands for payment. Upon receipt of an invoice from the Provider, the Commission may request additional documentation or explanation of the costs for which reimbursement is sought. 4. Responsibilities of Commission. 4.1. Compensation. The Commission shall pay complete and accurate invoices submitted by Provider within thirty (30) days of receipt of the invoice, unless the Commission disputes the eligibility of the Provider for reimbursement of all or a portion of an invoiced amount. In the event that Commission disputes the eligibility of the Provider for reimbursement of all or a portion of an invoiced amount, the Parties shall meet and confer in an attempt to resolve the dispute. If the meet and confer process is unsuccessful in resolving the dispute, the Provider may appeal Commission’s decision as to the eligibility of one or more invoices to Commission’s Executive Director. The Provider may 116 -3- 17336.00600\29130636.3 appeal the decision of the Executive Director to the full Commission Board, the decision of which shall be final. 4.2. Maximum Compensation. Notwithstanding any provisions of this Agreement to the contrary, the Commission’s maximum cumulative payment obligation hereunder shall be __________________________ Dollars ($_____________), to be used exclusively for reimbursing the Provider for the actual costs of eligible Services expenses as described herein (“Funding Amount”), and as further detailed in Exhibit “A”. Provider acknowledges and agrees that the Funding Amount may be less than the actual cost of the Services, and that the Commission shall not contribute funds in excess of the maximum authorized in this Section unless agreed to and amended by both Parties in writing. 5. Indemnification. 5.1. The Provider shall indemnify, defend and hold the Commission, its directors, officials, officers, employees, agents, consultants and contractors free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any breach of contract, negligent acts, omissions or breach of law, or willful misconduct of the Provider, its officials, officers, employees, agents, consultants or contractors in the performance of the Provider’s obligations under this Agreement, including the payment of all reasonable attorneys fees. 5.2. The indemnification provisions set forth in this Section shall survive any expiration or termination of this Agreement. 6. Insurance. Provider shall obtain and require its subcontractors or sub-consultants to obtain insurance of the types and in the amounts described below for the entire term of this Agreement. 6.1. Commercial General Liability Insurance. Occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $2,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Services or be no less than two times the occurrence limit. Such insurance shall: 6.1.1. Name the Commission and its officials, officers, employees, agents, and consultants, as insureds with respect to performance of this Agreement. Such insured status shall contain no special limitations on the scope of its protection to the above-listed insureds. 6.1.2. Be primary and noncontributory with respect to any insurance or self insurance programs covering the Commission and its directors, officials, officers, employees, agents, and consultants. 117 -4- 17336.00600\29130636.3 6.1.3. Contain standard separation of insureds provisions. 6.2. Business Automobile Liability Insurance. If Provider hires or owns any vehicle during the term of this Agreement, Provider shall maintain business automobile liability insurance or equivalent form with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 6.3. Workers' Compensation Insurance. Provider shall maintain workers' compensation insurance with statutory limits and employer's liability insurance with limits of not less than $1,000,000 per accident. 6.4. Certificates/Insurer Rating/Cancellation Notice. Provider shall, prior to receiving any funding under this Agreement, furnish to the Commission properly executed certificates of insurance, certified copies of endorsements, and policies, if requested by the Commission which shall clearly evidence all insurance required in this Section. Provider shall not allow such insurance to be cancelled, allowed to expire or be materially reduced in coverage except on thirty (30) days prior written notice to the Commission. 6.5. Licensed Insurer. Provider shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by the Commission. 7. Accounting Records. 7.1. Retention of Records. Provider shall maintain complete and accurate records with respect to costs incurred and other records generated under this Agreement. All such records shall be clearly identifiable. Provider shall allow representatives of the Commission during normal business hours to examine, audit, and make transcripts or copies of such records. Provider shall maintain all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the expiration or termination of this Agreement and shall allow inspection hereunder during such time. 7.2. Accounting of Funds. When requested by the Commission, Provider shall within fifteen (15) days provide the Commission with a full reporting and accounting of all funds received pursuant to this Agreement during its term. 8. General Provisions. 8.1. Termination of Agreement. In the event either Party defaults in the performance of their obligations under this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party shall have the option to terminate this Agreement upon thirty (30) days' prior written notice to the other Party. 8.2. Force Majeure. The failure of performance by either Party (except for payment obligations) hereunder shall not be deemed to be a default where delays or 118 -5- 17336.00600\29130636.3 defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, railroad, or suppliers; acts of the other Party; acts or failure to act of any other public or governmental agency or entity (other than that acts or failure to act of the Parties); or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform or relief from default. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement between the Parties. 8.3. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose: To Commission: Riverside County Transportation Commission 4080 Lemon Street, Third Floor P. O. Box 12008 Riverside, California 92502-2208 Attn: Anne Mayer, Executive Director AMayer@rctc.org To Provider: ________________________ ________________________ Attn: [INSERT NAME, TITLE] [INSERT E-MAIL ADDRESS] Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. mail, first class postage prepaid and addressed to the Party at its applicable address. Notice may also be provided via electronic mail and shall be deemed made the date sent, provided that any notice sent via electronic mail shall also be sent by U.S. mail, per the requirements set forth in the foregoing sentence, within twenty-four (24) hours of the notice via electronic mail. Notice sent via electronic mail that is not followed by notice sent via U.S. mail, as required in this paragraph, shall not be considered notice for purposes of this Agreement. 8.4. Attorneys' Fees. If any Party commences an action against the other arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party’s reasonable attorneys' fees and costs of suits. 8.5. Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, 119 -6- 17336.00600\29130636.3 understandings or agreements. This Agreement may only be modified in writing, signed by both Parties. 8.6. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 8.7. Amendments. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing; however, no amendments or other modifications of this Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors or assigns. 8.8. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. Neither this Agreement, nor any of the Parties' rights, obligations, duties, or authority hereunder may be assigned in whole or in part by either Party without the prior written consent of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment. 8.9. Waiver. No delay or omission in the exercise of any right or remedy of a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of either Party shall be deemed to waive or render unnecessary such Party's consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.10. Administration. 8.10.1. Commission's Executive Director, or his or her designee, shall administer this Agreement on behalf of Commission. 8.10.2. Provider hereby designates __________ or his or her designee, to act as its representative to administer this Agreement on behalf of Provider ("Provider’s Representative"). Provider’s Representative shall have full authority to represent and act on behalf of Provider for all purposes under this Agreement. 8.11. Severability. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 8.12. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures shall be considered originals. 120 -7- 17336.00600\29130636.3 8.13. Legal Authority. The Commission and Provider represent and warrant that the persons signing below on behalf of each Party is duly authorized to execute this Agreement on behalf of its respective Party and that, by so executing, the Parties hereto are formally bound to the provisions of this Agreement. [Signatures on following page] 121 -8- 17336.00600\29130636.3 DRAFT SIGNATURE PAGE TO COOPERATIVE AGREEMENT BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND GOLDENVOICE/VALLEY MUSIC TRAVEL IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. Commission: Provider: RIVERSIDE COUNTY _______________________ TRANSPORTATION COMMISSION _______________________ By: By: __________________________ Anne Mayer, Executive Director Title: ________________________ APPROVED AS TO FORM: APPROVED AS TO FORM: By: _____________________________ By: __________________________ Best Best & Krieger LLP Counsel to the Riverside Title: ________________________ County Transportation Commission ATTEST: By: _________________________ Title: ________________________ 122 Exhibit “A” 17336.00600\29130636.3 EXHIBIT "A" SCOPE OF SERVICES AND COST [to be inserted] 123 AGENDA ITEM 6G Agenda Item 6G RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Western Riverside County Programs and Projects Committee Brenda Ramirez, Management Analyst Sheldon Peterson, Rail Manager THROUGH: Anne Mayer, Executive Director SUBJECT: OCTA 2016 Angels Express Agreement WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 17-25-014-00 with the Orange County Transportation Authority (OCTA) for the cost sharing of the 2016 Angels Express Service for an initial one-year term in an amount not to exceed $33,176, with additional option years for the 2017 season and beyond upon mutual written agreement by both agencies in an amount not to exceed an annual 5 percent increase; 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. BACKGROUND INFORMATION: The Commission is actively promoting and partnering with various agencies to provide public transportation options to special events. Through the successful partnership with OCTA, the Commission has been able to provide Riverside County residents with the option of using the Angels Express Service, a commuter rail train operated by Metrolink, to attend selected Angels baseball games. The service, which is offered at $7 round trip, provides round-trip services to selected Friday home games at Angel Stadium via the Metrolink Inland Empire-Orange County Line. The popularity of this service has previously allowed OCTA to obtain Mobile Source Air Pollution Reduction Review Committee grant funding for the service. For the 2016 season, the grant was not available; therefore, the Commission and OCTA will have to pay Metrolink for the operating costs of the service. Ridership data collected has continued to show a year over year growth since the inception of the service. Ridership counts have indicated a 110 percent increase over last year’s ridership on those special round trips. Agreement No. 17-25-014-00 authorizes staff to continue cost sharing the operations of this service under the agreement terms, and the Commission agrees to 124 Agenda Item 6G reimburse OCTA up to $33,176 for the service provided during the 2016 season and in subsequent years subject to a 5 percent increase. Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $33,176 Source of Funds: Local Transportation Fund funds Budget Adjustment: No GL/Project Accounting No.: 004014 86101 00000 0000 103 25 86101 Fiscal Procedures Approved: Date: 10/17/2016 Attachment: Draft OCTA Agreement No. 17-25-014-00 125 ATTACHMENT 1 126 127 128 129 130 131 AGENDA ITEM 6H Agenda Item 6H RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County transportation Commission FROM: Western Riverside County Programs and Projects Committee Brenda Ramirez, Management Analyst Sheldon Peterson, Rail Manager THROUGH: Anne Mayer, Executive Director SUBJECT: Transit Transfer and License Agreements WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Approve Agreement No. 17-25-015-00 with Omnitrans for reimbursement of transit transfers effective January 1, 2017, for an indefinite term cancelable by either party with a 30-day notice in an amount approximating $15,000 annually; 2) Approve Agreement No. 17-25-033-00 with Megabus Northeast LLC (Megabus) for use of the Commission’s Riverside-Downtown Station for a three-year term, with two two-year options to extend the agreement, in an estimated revenue amount of $117,245 for the full term of all the options; and 3) 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: In a continued effort to provide ease of multimodal connections at the Commission’s Riverside- Downtown Station, the Commission desires to enter into agreements with Omnitrans and Megabus. Both operators will provide vital connections to passengers and patrons using the Commissions station as a transportation network hub. The Commission currently has transfer agreements with local public transit providers such as Riverside Transit Agency, SunLine Transit Agency, and the city of Corona. The transfer agreements provide the Commission the ability to partner with Metrolink and provide reimbursements to the local transit providers for transferring passengers that present valid one- way, round-trip, seven day passes or monthly Metrolink passes. This facilitates free transfers for the passengers to and from a Metrolink station. The agreement with Omnitrans will be effective January 1, 2017, in time for the next Omnitrans schedule change with the initial route to be a direct connection between the Riverside-Downtown Station and the San Bernardino Depot. The anticipated annual cost for these transfers is projected at $15,000, and the term is open until 132 Agenda Item 6H either party requests to cancel the agreement with a 30-day notice. Adjustments to the rate and acceptable routes can be made through subsequent annual amendments. In addition to public transit providers using the Commission’s Riverside-Downtown Station, other providers such as Amtrak and Megabus require license agreements to use the Commission’s facilities. Megabus provides its customers a non-stop trip from the Commission’s Riverside- Downtown Station to Las Vegas, and the current agreement expires December 31, 2017. Beginning January 1, 2017, Agreement No. 17-25-033-00 sets a first-year $1,200 monthly rate of compensation payable to the Commission to offset maintenance and security costs at the station. The monthly rate will be increased by 5 percent annually. After the initial three-year term, with the agreement may be extended by two two-year options. Financial Information In Fiscal Year Budget: Yes Year: FY 2016/17 Amount: $15,000 Omnitrans $14,400 Megabus Source of Funds: Local Transportation Fund funds; license fees Budget Adjustment: No GL/Project Accounting No.: 004014 86101 00000 0000 103 25 86101 $15,000 (expenditures) 244001 416 41608 0000 103 24 41608 $14,400 (revenues) Fiscal Procedures Approved: Date: 10/17/2016 Attachments: 1) Draft Omnitrans Transfer Agreement No. 17-25-015-00 2) Draft Megabus License Agreement No. 17-25-033-00 133 17336.00013\29140550.3 1 DRAFT INTERAGENCY FIXED ROUTE TRANSFER AGREEMENT BETWEEN THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND OMNITRANS THIS INTERAGENCY FIXED ROUTE TRANSFER AGREEMENT is effective as of this ___ day of __________ 2016 by and between Omnitrans, 1700 West Fifth Street, San Bernardino, CA 92411 (hereinafter referred to as “OMNITRANS”), and Riverside County Transportation Commission, 4080 Lemon Street, 3rd Floor, Riverside, California 92501, a public agency (hereinafter referred to as “RCTC”). OMNITRANS and RCTC are sometimes referred to herein, collectively, as the “Parties”. RECITALS A. RCTC and OMNITRANS desire to enter into this Agreement to define RCTC’s financial commitments, and OMNITRANS’ commitments related to funding to be provided by RCTC. B. OMNITRANS, a Joint Powers Authority, provides fixed route services operating in the San Bernardino Valley. OMNITRANS’ service area is bounded by the San Bernardino Mountains to the north, the Los Angeles County Line to the west, the Riverside County Line to the south, and the Yucaipa Valley on the east. C. OMNITRANS provides public transportation services operating to, within, or through Riverside County. D. The purpose of this Agreement is to facilitate ridership by passengers originating on OMNITRANS’ system and desiring to transfer to Metrolink commuter rail services. E. OMNITRANS has an existing transfer agreement with the Southern California Regional Rail Authority (SCRRA or METROLINK) that includes the Metrolink stations within this Agreement. F. The Parties desire to enter into this Agreement to facilitate transfers between the transportation systems described herein and thereby provide greater convenience and mobility for transportation users. Now, therefore, in consideration of their mutual obligations set forth herein, the Parties agree as follows: 1.Subject to paragraph 2 of this Agreement, OMNITRANS will accept valid Metrolink fare media as transfers having a value equal to OMNITRANS’ base fare on Route 215 between all Route 215 bus stops between San Bernardino and Riverside as identified in Exhibit “A”. ATTACHMENT 1 134 17336.00013\29140550.3 2 2. OMNITRANS shall honor valid Metrolink fare media for a single local boarding along OMNITRANS’ Route 215 bus stops between Riverside and San Bernardino, during the period from one hour before to one hour after Metrolink’s service hours on Route 215, under the following conditions. a. One-way tickets valid for the date of travel will be honored on boardings from the downtown Riverside Metrolink Station and San Bernardino Transit Center following the extension of Metrolink to the San Bernardino Transit Center. b. Round-trip tickets valid for the date of travel will be honored on boardings to and from the downtown Riverside Metrolink Station or the San Bernardino Transit Center following the extension of Metrolink to the San Bernardino Transit Center. c. Seven-day passes will be honored on boardings to and from the downtown Riverside Metrolink Station or the San Bernardino Transit Center following the extension of Metrolink to the San Bernardino Transit Center if already validated on the day of travel. d. Monthly passes will be honored on boarding to and from the downtown Riverside Metrolink Station or the San Bernardino Transit Center following the extension of Metrolink to the San Bernardino Transit Center. 3. OMNITRANS shall be reimbursed by RCTC as provided herein at the rate of one-half of one OMNITRANS base fare charge per boarding for which no fare was collected. OMNITRANS’ current base fare is $1.75 and OMNITRANS will notify RCTC of base fare changes, which will replace the current base fare. Pursuant to OMNITRANS’ transfer agreement with SCRRA, the other half of the fare charge will be reimbursed by SCRRA. 4. For purposes of counting transferring passengers, the number of passengers transferring to OMNITRANS from METROLINK or to METROLINK from OMNITRANS shall be defined as the number of transferring passengers from whom no fare was collected by OMNITRANS. OMNITRANS shall estimate the number of passengers transferring between the OMNITRANS system and METROLINK service using 100 percent ridership counts (farebox) conducted by OMNITRANS. 5. OMNITRANS shall submit quarterly invoices to RCTC for reimbursement for transfers. OMNITRANS shall not seek reimbursement from RCTC for any fare, or portion thereof, which is to be paid by SCRRA under OMNITRANS’ transfer agreement with SCRRA. Invoices shall specify the number of transfers to and from METROLINK, and the agreed reimbursement rate specified in paragraph 3 above. Invoices shall reference the agreement number and shall be submitted as follows: To RCTC: Riverside County Transportation Commission Attn: Rail Department 4080 Lemon Street, 3rd Floor Riverside, CA 92501 135 17336.00013\29140550.3 3 6. Complete and accurate invoices submitted by the 30th day following the end of the quarter shall be paid within thirty (30) days of receipt of the invoice. 7. Disagreements concerning the number of passengers transferring between METROLINK and OMNITRANS services shall be resolved by making a good faith effort to create a joint survey team, to include authorized representative of each of RCTC and OMNITRANS, whose task would be to conduct a passenger survey to determine transfer rates. 8. To facilitate effective operations and communications, the results of the transfer program will be reviewed quarterly by RCTC and OMNITRANS during the first year of this Agreement. 9. Each Party shall cooperate in the dissemination of information to the public regarding the transfer document and the services offered by the other Party. 10. Each Party shall notify the other in advance of implementing plans for changes in its operations and/or services, which may affect the other Party’s operations and/or services. 11. Each Party shall notify the other Party within thirty (30) days of adopting any fare changes that might affect reimbursement rates or any aspect of transfer privileges. 12. OMNITRANS agrees to indemnify and hold RCTC harmless from and against all losses, damages, actions and expenses (including attorney’s fees) on account of bodily injury to or death of any person or damage to or loss of use of property incident to or arising from operations of OMNITRANS under the terms of this Agreement. 13. Each Party reserves the right to cancel this Agreement upon thirty (30) days prior written notice to the other Party. 14. Notices hereunder shall be sent to the Parties as follows: TO OMNITRANS: Omnitrans 1700 West Fifth Street San Bernardino, CA 92411 Attention: Jeremiah Bryant Service Planning Manager TO RCTC: Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92501 Attention: Sheldon Peterson Rail Manager 15. This Agreement constitutes the entire agreement between the Parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing by the Parties. 16. This Agreement is made and entered into in the State of California and in all respects is to be interpreted, enforced and governed by and under the laws of California. 136 17336.00013\29140550.3 4 17. This Agreement may be executed in counterparts, each of which will constitute an original. Facsimile signatures may be used to effectuate and bind the Parties to the terms and conditions of this Agreement, and shall have the same force and effect as original signatures. 18. Each of the individuals executing this Agreement represents that he or she is duly authorized to bind and act on behalf of such Party. 137 17336.00013\29140550.3 5 DRAFT INTERAGENCY FIXED ROUTE TRANSFER AGREEMENT IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. XXXXXX to be executed on the date first above written. OMNITRANS RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Chief Executive Officer By: Executive Director APPROVED AS TO FORM: By: General Counsel APPROVED AS TO FORM By: Best Best & Krieger LLP General Counsel to the Riverside County Transportation Commission 138 17336.00013\29140550.3 6 EXHIBIT “A” “Insert Copy of Route” 139 17336.00603\7669938.2 LICENSE AGREEMENT Between RIVERSIDE COUNTY TRANSPORTATION COMMISSION and MEGABUS NORTHEAST, LLC ATTACHMENT 2 140 17336.00603\7669938.2 2 LICENSE AGREEMENT between RIVERSIDE COUNTY TRANSPORTATION COMMISSION and MEGABUS NORTHEAST, LLC THIS LICENSE AGREEMENT (this "Agreement"), made and entered into this __ day of ______________, by and between RIVERSIDE COUNTY TRANSPORTATION COMMISSION (“COMMISSION”), a county transportation commission with its principal office for the transaction of business at 4080 Lemon Street, 3rd Floor, Riverside, CA 92501 and MEGABUS NORTHEAST, LLC ("MEGABUS"), a Delaware limited liability company with its principal office for the transaction of business at 160 S. Route 17 North, Paramus, New Jersey 07652. WITNESSETH: WHEREAS, COMMISSION owns and operates the Riverside Downtown Station (the "Station") located at 4066 Vine Street, Riverside, CA; and WHEREAS, MEGABUS is in the business of providing, for transportation purposes, the following services: private fixed route passenger bus service; and WHEREAS, it is the desire of COMMISSION and MEGABUS by this Agreement to set forth the terms and conditions by which MEGABUS will provide such services at the Station; NOW THEREFORE, for and in good consideration of the mutual covenants conditions, and agreements hereinafter contained, it is hereby agreed by and between the parties as follows: 1. Premises. COMMISSION hereby grants to MEGABUS and MEGABUS accepts from COMMISSION, upon the terms and conditions set forth in this Agreement, a non-exclusive license to enter upon the certain roadways and parking areas located perpendicular to the front of the Station, which roadways and bus loading areas are more accurately depicted on Exhibit "A" attached hereto and made a part hereof (the "Licensed Premises"). COMMISSION reserves all rights to the use of the Licensed Premises in its sole discretion. 2. Term. (a) Initial Term. The term of this Agreement shall be for three years, commencing on the date hereof (the "Commencement Date") and terminating on the first (1st) anniversary of such date, unless terminated sooner pursuant to the provisions of this Agreement. The parties may agree to another Commencement Date by both signing a memorandum to such effect. (b) Option to Extend. COMMISSION hereby grants to MEGABUS the option to extend the term of this Lease for three (3) additional periods of two (2) year each following the initial term set forth in paragraph 2(a) above (such periods being herein referred to as the "Renewal 141 17336.00603\7669938.2 3 Term(s)"), upon condition that at the date of exercise of the option to extend, MEGABUS is not and has not been in default in the performance of any of its obligations under this Agreement beyond any curing thereof within any applicable period of notice and grace. With respect to each separate renewal term, MEGABUS shall provide written notice to COMMISSION, within 180 days prior to the end of the term then in effect, of its intent not to exercise each Renewal Term. Otherwise renewal under these Agreement terms and conditions will be automatic provided that MEGABUS is not in default of any term or condition of this Agreement beyond any applicable cure period. "Term", when use herein, includes the Initial Term and all Renewal Terms opted for by Lessee. 3. Use. (a) MEGABUS covenants and agrees that it will enter upon and use the Licensed Premises solely for the non-exclusive purpose of embarking and disembarking of passengers of the bus transportation service operated by MEGABUS, and for such other activities as may be incidentally related to the provision of such service, and for no other use. MEGABUS acknowledges and agrees that neither it, nor its agents, employees nor affiliates nor its vehicles are or shall be permitted to enter upon and/or use any other portion of the Station, including, but not limited to, any interior portion of structures constituting a portion of the Station, unless such entry and use is specifically set forth herein or except as the same may be used by the general public. MEGABUS further agrees that the entry upon and use of the Licensed Premises as contemplated herein shall occur no more frequently than eight (8) times per day for a duration of not more than twenty (20) minutes per entry upon the Licensed Premises, at the times set forth on Schedule 3(a) attached hereto and made a part hereof, which schedule may be amended from time-to-time upon the mutual agreement of the parties. In the event MEGABUS shall desire to enter upon the Licensed Premises more or less frequently than as set forth herein, it shall not do so without having first obtained the written consent of COMMISSION to such increased or decreased use, which consent shall not be unreasonably withheld or delayed. (b) MEGABUS shall, at its own cost and expense, promptly observe and comply with all applicable laws, ordinances, requirements, orders, directives, rules and regulations of the federal, state, county, municipal or town governments and of all applicable governmental authorities, including, without limitation, all rules and regulations of COMMISSION concerning the operation and use of the Station or affecting its entry upon and conduct of its business upon the Licensed Premises, whether the same are in force at the commencement of the term of this Agreement or may be in the future passed, enacted or directed. (c) MEGABUS shall not use or allow the Licensed Premises, or any part thereof, to be used or occupied for an unlawful or non-transportation purpose or in violation of the Rules and Regulations of COMMISSION affecting the Licensed Premises or in any manner which may interfere with use of the Station for commuter rail purposes, constitute a nuisance, public or private, or make void or voidable any insurance then in force with respect thereto, or for any purpose or any manner which would cause a default under this Agreement. (d) MEGABUS covenants and agrees that it is fully aware that the Station is a public facility and as such, is used by the general public; and that COMMISSION shall retain 142 17336.00603\7669938.2 4 absolute general management and supervisory control over the Station. MEGABUS will not discriminate against any employee or applicant, customer or invitee of employment because of race, creed, color, sex, disability or national origin. 4. Method of Operation. In the performance of its obligations and in the conduct of its business, MEGABUS shall: (a) Provide bus transportation services which are necessary to meet the needs of the transportation public, provided such services are in conformance with the terms of this Agreement. (b) Charge reasonable and competitive prices for all services offered. (c) Provide methods and hours of operation, standards of management and employees, standards of quality, service, maintenance and repairs to COMMISSION for prior written approval which consent shall not be unreasonably withheld or delayed. (d) Upon reasonable objection from COMMISSION or its representative concerning the conduct, demeanor or appearance of any officer, employee, agent, representative or contractor of MEGABUS, immediately take all reasonable remedial steps necessary to overcome the objection. (e) Cooperate with COMMISSION in all matters relating to the security, as well as the safe and efficient operation of the Station by COMMISSION and shall require its employees to do so. (f) Agree that all advertising from, at, or relating' to the Station is under the direct control of COMMISSION. COMMISSION retains all rights as to placement of signs, street furniture, architectural embellishments, public relations efforts and any other advertising effort in any way related to the Station and its intended use. 5. Fees. MEGABUS covenants and agrees to pay to COMMISSION all amounts indicated below on the first day of each calendar month without set-off, deduction or diminution, the first such payment to include also any prorated annual Minimum Fees for the period from the date of the commencement of the Term to the first day of the first full calendar month in the Term. (a) Minimum Fees. The annual minimum fee ("Minimum Fee") for the entire Licensed Premises, regardless of the number of times per day during any given month that MEGABUS may enter upon the Licensed Premises, shall be Fourteen Thousand Four Hundred and No/100 Dollars ($14,400.00). The Minimum Fee shall be paid in equal, consecutive monthly installments in the amount of One Thousand Two Hundred and No/1 00 Dollars ($1,200.00) each on the first (1st) day of each month of the term hereof. Notwithstanding the foregoing, the Minimum Fee payable hereunder may be adjusted upon the mutual agreement of the parties hereto. Notwithstanding the foregoing, the Minimum Fee for the entire Licensed Premises during each Renewal Term, if any, shall be equal to the amount of the Minimum Fee paid during the immediately preceding term, plus Five Percent (5.00%), calculated cumulatively. 143 17336.00603\7669938.2 5 (b) Adjustment to Minimum Fee. In the event MEGABUS shall desire to enter upon the Licensed Premises on more or less than eight (8) occasions per day during any given month during the Term hereof, and shall have received COMMISSION’s prior consent to such increased or decreased usage of the Licensed Premises, MEGABUS shall pay to COMMISSION an adjusted fee which shall be determined in accordance with the formula set forth on Schedule 5(b) attached hereto and shall be based on the number of occasions per day that MEGABUS intends to enter upon the Licensed Premises commencing on the first day of the first month immediately following the month in which MEGABUS requests and receives COMMISSION's consent to such increased or decreased usage ("Adjusted Minimum Fee"). Notwithstanding the foregoing, any adjustments to the Minimum Fee shall at all times be subject to the prior approval of COMMISSION, which approval shall not be unreasonably withheld or delayed. (c) No Right of Offset; No Reimbursement. MEGABUS has no right of offset or counterclaim for any of the amounts due COMMISSION under this Agreement. Furthermore, MEGABUS shall not be entitled to any reimbursement of or credit for amounts paid in advance to COMMISSION hereunder for rights of entrance upon the Licensed Premises which are not actually utilized by MEGABUS. (d) Late Charge. Any installment of the Minimum Fee or any Adjusted Minimum Fee not received within ten (10) days from the date when it is due shall be subject to a late charge of five percent (5%) of such installment. 6. Taxes. MEGABUS shall pay before they become delinquent any and all taxes that are lawfully due and payable by MEGABUS to any governmental body by reason of the operation of MEGABUS' business or use of the Licensed Premises or the Station. COMMISSION is exempt from the payment of real estate taxes for premises held for transportation purposes as set forth under California state law. COMMISSION and MEGABUS shall use their best efforts to preserve this exemption and to cooperate fully with each other in such regard. 7. [Reserved]. 8. Common Areas. (a) Common Areas. The term "Common Areas" shall mean the exterior areas and facilities within or upon the Station which are: (i) not leased to a tenant, or (ii) by nature not leasable to a tenant. Common Areas shall include but shall not be limited to all parking areas and facilities, roadways, driveways, entrances and exits sidewalks, located within or outside the Station property, COMMISSION for the common or joint use and benefit of all tenants in the Station, their employees, customers and invitees. COMMISSION grants to MEGABUS' customers a nonexclusive license to use the Common Areas in common with others during the Term, subject to the exclusive control and management thereof at all times by COMMISSION and subject, further, to all rights of COMMISSION as set forth herein. Nothing herein shall permit MEGABUS, its agents or employees to use the Common Areas without the prior consent of COMMISSION, which consent shall not be unreasonably withheld or delayed. 144 17336.00603\7669938.2 6 (b) Management and Operation of Common Areas. COMMISSION will operate and maintain or will cause to be operated and maintained, the Common Areas, in a manner deemed by COMMISSION to be reasonable and appropriate and in the best interests of the Station. COMMISSION will have the right: (i) to establish, modify and enforce non-discriminatory rules and regulations with respect to the Common Areas; (ii) to enter into, modify and terminate easements and other agreements pertaining to the use and maintenance of the Common Areas and any portions thereof; (iii) to close all or any portion of the Common Areas to such extent as may, in the opinion of COMMISSION, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein; (iv) to close temporarily any or all portions of the Common Areas; and (v) to do and perform such other acts in and to said areas and improvements as, in the exercise of good business judgment, COMMISSION shall determine to be advisable. 9. Maintenance and Repairs. COMMISSION shall maintain and keep the Station in good repair. Notwithstanding the foregoing, MEGABUS shall repair, at its sole expense, any damage to the Station including cleaning oil or fuel spills, the Licensed Premises, the buildings and/or any appurtenances thereto caused by MEGABUS, its employees, agents or invitees. MEGABUS shall not be entitled to any partial or total abatement of fees for periods during which repairs are required to be made, whether such repairs are the responsibility of COMMISSION or MEGABUS. 10. Access to the Licensed Premises. MEGABUS agrees that COMMISSION shall have such rights to enter upon the Licensed Premises, including rights of ingress and egress, as shall be necessary or desirable to enable COMMISSION to exercise its powers, rights, duties and obligations as are set forth in this Agreement or as COMMISSION may otherwise deem appropriate. A coordinated plan will be developed to identify the available bus loading areas for this service. COMMISSION shall further have the right to enter and grant licensees the right to enter the Licensed Premises for any purpose which COMMISSION may deem necessary or desirable, including, without limitation, to make structural repairs to the Station or the Licensed Premises or any other repairs for which COMMISSION is responsible, or for exhibiting the Licensed Premises to prospective purchasers, mortgagees, governmental representatives or tenants, and to inspect the Licensed Premises to determine whether MEGABUS' use of the Licensed Premises is in conformance with MEGABUS' covenants. This right of inspection shall include but not be limited to the right, on reasonable notice and during normal hours of operation, to conduct interviews of MEGABUS' personnel, if any. 11. Alterations. MEGABUS shall have no right or authority to and shall make no alterations, additions or improvements in or to the Licensed Premises. 145 17336.00603\7669938.2 7 12. Indemnification and Defense. (a) Indemnification. MEGABUS hereby agrees to indemnify, assume all liability for and hold harmless the COMMISSION and its officers, employees, agents and representatives, to the maximum extent allowed by law, from all actions, claims, suits, penalties, obligations, liabilities, damages to property, costs and expenses (including, without limitation, any fines, penalties, judgments, actual litigation expenses and experts’ and actual attorneys’ fees), environmental claims or bodily and/or personal injuries or death to any persons, arising out of or in any way connected to MEGABUS’ entry onto the Station or the Licensed Premises or the acts or omissions of MEGABUS in connection with or arising from the performance of MEGABUS’ activities pursuant to this Agreement or arising out of or in connection with such activities, whether the foregoing is by MEGABUS or anyone directly or indirectly employed or under contract with MEGABUS or acting on behalf of MEGABUS, and whether such damage or claim shall accrue or be discovered before or after the termination of this Agreement. The indemnity shall apply except in the case of the sole negligence or willful misconduct of the COMMISSION, its officers, employees, agents or representatives, and is in addition to any other rights or remedies under the law or under this Agreement. (b) Defense. Upon written notice from COMMISSION, MEGABUS agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against COMMISSION, its officials, officers, employees, agents and volunteers by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which MEGABUS has an obligation to assume liability for and/or to indemnify or save and hold harmless the COMMISSION, its officers, employees, agents and representatives. MEGABUS shall pay all the costs incident to such defense, including, but not limited to, attorneys’ fees, investigators’ fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal. The indemnity and other rights afforded to the COMMISSION by this Section shall survive the revocation or termination of this Agreement. 13. Insurance. (a) At all times throughout the term of this Agreement, MEGABUS and its subcontractors shall maintain and comply with the terms of insurance set forth on Exhibit “B” attached hereto and made a part hereof (the "Insurance Requirements"). (b) MEGABUS hereby waives any and every claim for recovery from COMMISSION for any and all loss of or damage to any vehicle owned, used or maintained by MEGABUS or those in privity with MEGABUS (unless such loss or damage is shown to have been caused by COMMISSION). MEGABUS further waives any claim for recovery from COMMISSION for any and all loss of or damage to the Licensed Premises or to the contents 146 17336.00603\7669938.2 8 thereof, which loss or damage is covered by valid and collectible physical damage insurance policies, to the extent that such loss or damage is recoverable under said insurance policies. Inasmuch as this waiver will preclude the assignment of any such claim or subrogation or otherwise, MEGABUS agrees to give to each insurance company which has issued, or in the future may issue, to its policies of physical damage insurance, written notice of the terms of this waiver, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver. MEGABUS shall require each sublessee or assignee to include similar waivers of subrogation in favor of COMMISSION in the subleases or assignments entered into with such sublessees or assignees. 14. Fire or Other Casualty. In the event that the Licensed Premises are rendered wholly inaccessible and unuseable due to fire or other casualty, COMMISSION shall be entitled to the proceeds of all applicable insurance maintained by COMMISSION and may, at its option: (a) Terminate this Agreement by giving MEGABUS written notice thereof within thirty (30) days from the date of said damage or destruction; or (b) Repair or replace the Licensed Premises to substantially the same condition as prior to the damage or destruction to the extent said insurance proceeds therefor are available to COMMISSION. If the Licensed Premises shall be damaged in part by fire or other casualty, but still remains partially accessible and useable, COMMISSION shall, unless it determines in its sole discretion that to do so in not in the best interests of the COMMISSION, repair the Licensed Premises to substantially the same condition as prior to the damage to the extent of the proceeds of insurance available to COMMISSION. During the period of such repairs and restorations, this Agreement shall continue in full force and effect without abatement of fees. 15. Eminent Domain. In the event that all or any portion of the Licensed Premises shall be taken by any governmental authority under the exercise of its right of eminent domain or similar right (or by act in lieu thereof), all right, title and interest in and to any award granted (or sums paid in lieu thereof) shall belong entirely to COMMISSION, and MEGABUS hereby assigns to COMMISSION all of its interest, title or claim, if any, in and to such award (or sums paid in lieu thereof), including, but not limited to, any part of such award attributable to MEGABUS' interest in the Licensed Premises, if any. In the event of a partial taking, fees shall not be reduced or otherwise abated, provided, however, that COMMISSION shall make commercially reasonable efforts to provide alternative space upon which MEGABUS may conduct the activities contemplated hereunder. In the event of a material or total taking, in COMMISSION's sole opinion, COMMISSION retains the right to terminate this Agreement. In the event that this Agreement is terminated pursuant to this Section, MEGABUS shall not have any claim against COMMISSION for the balance of the unexpired term of this Agreement. 16. Default and Remedies. (a) Any one or more of the following events shall constitute an "Event of Default" hereunder: 147 17336.00603\7669938.2 9 (i). If MEGABUS fails to pay any installment of minimum fees or adjusted fees within ten (10) days after it is due; (ii). If MEGABUS fails to remedy a default by it with respect to any of the other covenants, conditions and agreements contained herein or in any rider, exhibit, or other addendum hereto, within ten (10) days after notice thereof; provided, however, that in the event of a default which does not involve the payment of money and which cannot reasonably be cured within ten (10) days, MEGABUS shall not be in default of this Agreement if MEGABUS: (A) gives written notice to COMMISSION within ten (10) days after the aforesaid notice of default of MEGABUS' intent to cure; (B) within said ten (10) day period, delivers evidence to COMMISSION of the commencement of the cure; (C) diligently and in good faith uses best efforts to continue said cure; and (D) completes said cure expeditiously; (iii) Unless beyond the control of MEGABUS, if MEGABUS ceases its entry upon and use of the Licensed Premises for a period of five (5) consecutive days or otherwise ceases to conduct its business therein; or (iv) If MEGABUS shall: (A) apply for or consent to the appointment of or the taking of possession by a receiver, liquidator, custodian or trustee of itself or of all or a substantial part of its property; (B) admit in writing its inability or be generally unable to pay its debts as such debts become due; (C) make a general assignment for the benefit of its creditors; (D) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect); (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, a petition filed against itself in an involuntary case under such Bankruptcy Code; or 148 17336.00603\7669938.2 10 (v) If a proceeding or case shall be commenced without the application or consent of MEGABUS in any court of competent jurisdiction seeking (A) liquidation, reorganization, dissolution, winding up or composition or adjustment of debts; (B) the appointment of a trustee, receiver, liquidator, custodian or the like of MEGABUS or of all or any substantial part of its assets; or (C) similar relief under any law relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of debts, and MEGABUS fails to controvert such action or proceeding in a timely and appropriate manner, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continued unstayed and in effect for a period of thirty (30) days; or any order for relief against MEGABUS shall be entered in an involuntary case under such Bankruptcy Code; and (vi) Any representation or warranty made by MEGABUS herein, or in any report, certificate, financial statement or other instrument furnished pursuant hereto or any of the foregoing shall prove to be false, misleading or incorrect in any material respect as of the date made. (b) If an Event of Default shall occur, COMMISSION may, in addition to any other right or rights which COMMISSION may have, serve a written five (5) days' notice of cancellation of this Agreement upon MEGABUS and upon the expiration of said five (5) days, this Agreement and the term hereunder shall end and expire as fully and completely as if the date of expiration of such five (5) day period were the day herein definitely fixed for the end and expiration of this Agreement and the term thereof, and MEGABUS shall then quit and surrender the Licensed Premises to COMMISSION and shall otherwise cease its use and entry upon the Licensed Premises, but MEGABUS shall remain liable as hereinafter provided. If the five (5) day notice of cancellation shall have been given and the term shall expire as aforesaid, or if any execution or attachment shall be issued against MEGABUS or any of MEGABUS' property whereupon the Licensed Premises shall be taken or occupied by someone other than MEGABUS, then and in either of such events, COMMISSION may, without notice, re-enter the Licensed Premises and terminate MEGABUS' and the legal representative of MEGABUS' or any other users' of the Licensed Premises entry upon and use thereof by summary proceedings or otherwise and remove their effects, if any should be located thereon, and hold the Licensed Premises as if this Agreement had not been made, but MEGABUS shall remain liable hereunder as hereinafter provided. COMMISSION reserves the right to store MEGABUS' effects at MEGABUS' expense. (c) In case of any such default, re-entry, expiration and/or termination by summary proceedings or otherwise (i). All Minimum Fees, Adjusted Minimum Fees, and other sums then to be paid by MEGABUS pursuant to this Agreement shall immediately become due thereupon and be paid up to the time of such re-entry, termination and/or expiration, together with such reasonable expenses as COMMISSION may incur for legal expenses, attorneys' fees, brokerage, 149 17336.00603\7669938.2 11 and/or putting the Licensed Premises in good order; (ii). COMMISSION may re-license use of the Licensed Premises or any part or parts thereof, either in the name of COMMISSION or otherwise, for a term or terms, which may at COMMISSION's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Agreement and may grant concessions or free fees; and/or (iii). MEGABUS or the legal representatives of MEGABUS shall also pay COMMISSION as liquidated damages for the failure of MEGABUS to observe and perform MEGABUS' covenants herein contained any deficiency between the fees and other sums hereby reserved and/or covenanted to be paid and the net amount, if any, of the fees collected on account of the licensing of the Licensed Premises for each month of the period which would otherwise have constituted the balance of the term of this Agreement. In computing such damages, there shall be added to the said deficiency such reasonable expenses as COMMISSION may incur in connection with re-licensing, such as legal expenses, attorneys' fees, and for keeping the Licensed Premises in good order. COMMISSION, at COMMISSION's option, may make such alterations, repairs and replacements as are reasonably necessary or desirable for the purpose of re-licensing the Licensed Premises; and the making of such alterations shall not operate or be construed to release MEGABUS from liability hereunder as aforesaid. To the fullest extent permitted by law, neither the failure or refusal of COMMISSION to re-license the Licensed Premises or any part or parts thereof nor, in the event that the Licensed Premises are re-licensed, the failure of COMMISSION to collect the fees under such re-licensing, shall release or affect MEGABUS' liability for damages, and COMMISSION shall not in any way be liable for same, but, if COMMISSION fails to collect such fees, MEGABUS is hereby authorized to collect the same and apply the same to any indebtedness owing to COMMISSION. Any such damages shall be paid in monthly installments by MEGABUS on the days specified in this Agreement and any suit brought to collect the amount of the deficiency for any month or months shall not prejudice in any way the rights of COMMISSION to collect the deficiency for any subsequent month or months by a similar proceeding. Any such action may be an action for the full amounts of all fees then due or to be due to, and all damages then suffered or to be suffered by COMMISSION. Mention in this Agreement of any particular remedy shall not preclude COMMISSION from resorting to any other remedy, in law or in equity. The foregoing remedies and rights of COMMISSION are cumulative. 17. Failure to Insist on Strict Performance. The failure of COMMISSION to insist, in any one or more instances, upon a strict performance of any covenant, term, provision or agreement of this Agreement shall not be construed as a waiver or relinquishment thereof, but the same shall continue and remain in full force and effect, notwithstanding any law, usage or custom to the contrary. The receipt by COMMISSION of fees with knowledge of the breach of any covenant or agreement hereunder shall not be deemed a waiver of the rights of COMMISSION with respect to such breach, and no waiver by COMMISSION of any provision hereof shall be deemed to have been made unless expressed in writing and signed by COMMISSION. 18. Surrender of Licensed Premises. (a) MEGABUS shall, upon the termination of this Agreement, by lapse of time or otherwise, cease its entry upon and use of the Licensed Premises and shall return the Licensed 150 17336.00603\7669938.2 12 Premises to COMMISSION in as good condition as it was on the Commencement Date, loss by fire or other unavoidable casualty and reasonable wear and tear excepted. It is understood and agreed that the exception made as to "loss by fire or other unavoidable casualty" does not include damages, fires or casualties caused or contributed to by the act or neglect of MEGABUS, its servants, agents, employees, invitees or licensees and not compensated for by insurance. (b) Except for cessation upon the expiration or earlier termination of the term of this Agreement, no cessation of MEGABUS' entry upon and use of the Licensed Premises shall be valid or effective unless agreed to and accepted in writing by COMMISSION. The provisions of this Section shall survive the termination or expiration of this Agreement. 19. Holding Over. Should MEGABUS fail to cease its entry upon and use of or to otherwise vacate the Licensed Premises at the termination, expiration or cancellation hereof, such holding over shall operate and be construed to be a license from month to month only, unless otherwise agreed in writing, subject to the conditions and provisions of this Agreement and at minimum fees equal to one hundred fifty percent (150%) of that paid by MEGABUS under this Agreement for the period just ended. No such holding over or payment or acceptance of fees resulting therefrom shall constitute or be deemed reconfirmation or renewal of this Agreement. Nothing in this Section shall be construed as consent by COMMISSION to the entry upon and use of the Licensed Premises after the expiration, cancellation or termination of this Agreement. 20. Expenses and Attorneys' Fees. In the event of litigation between the parties hereto, the losing party shall pay to the other all reasonable attorneys' fees and expenses and all other expenses which may be incurred by such party. 21. Obligations of MEGABUS. If MEGABUS fails to perform any of its obligations hereunder, COMMISSION may, after three (3) days' notice to MEGABUS of its intention to do so (but COMMISSION shall not be obligated to) perform same, and in such event, MEGABUS shall reimburse COMMISSION for the cost thereof and said reimbursement shall be due and payable upon demand by COMMISSION and shall bear interest at a rate which is the sum of eighteen percent (18%), except that if such rate exceeds the maximum rate of interest allowed by applicable statutes, the interest rate will be reduced to the maximum rate permitted by law. 22. Assignment. (a) Except as otherwise set forth herein, neither MEGABUS, nor MEGABUS' legal representatives or successors-in-interest by operation of law or otherwise, shall assign this Agreement or permit the Licensed Premises or any part thereof to be used by others without the prior written consent of COMMISSION, which consent shall not be unreasonably withheld or delayed. Any consent by COMMISSION to any act of assignment shall be held to apply only to the specific transaction thereby authorized and MEGABUS agrees to remain fully liable under the Agreement even subsequent to such assignment. Such consent shall not be construed as a waiver of the duty of MEGABUS or the legal representatives or assigns of MEGABUS, to obtain from COMMISSION consent to any other or subsequent assignment, or as modifying or limiting the rights of COMMISSION under the foregoing covenant by MEGABUS not to assign without such consent. Any violation of any provision of this Agreement, whether by act or omission, by any 151 17336.00603\7669938.2 13 assignee or occupant, shall be deemed a violation of such provision by MEGABUS, it being the intention and meaning of the parties hereto that MEGABUS shall assume and be liable to COMMISSION for any and all acts and omissions of any and all assignees. If this Agreement shall been assigned, COMMISSION may, and is hereby empowered to, collect fees from the assignee. In such event, COMMISSION may apply the net amount received by it to the fees herein reserved, and no such collection shall be deemed a waiver of the covenant herein against assignment, or the acceptance of the assignee, undertenant or occupant as licensee, or a release of MEGABUS from the further performance of the covenants herein contained on the part of MEGABUS. The term "assign", as used herein, shall include but not be limited to: 1. An assignment of a part interest in this Agreement, as well as any assignment from one co-licensee to another; and 2. An assignment, or conveyance, whether by operation of law or otherwise of any principal of MEGABUS' interest herein. It also includes any transfer of ownership or control of MEGABUS whether voluntarily, by operation of law or otherwise. 23. Federal, State, County and Local Law. MEGABUS shall comply at its own cost and expense with all federal, state, county and local laws, ordinances, rules or regulations now or hereinafter in force which may be applicable to MEGABUS' entry upon and use of the Licensed Premises, including obtaining and paying for all licenses and permits necessary for the operation thereon and payment of all fees and charges assessed insofar as they are applicable thereto. 24. Environmental Matters. (a) Compliance with Environmental Laws. MEGABUS covenants that the Licensed Premises shall be kept free of Hazardous Materials, and neither MEGABUS, nor any occupant of the Licensed Premises, shall use, transport, store, dispose of or in any manner deal with Hazardous Materials on the Licensed Premises, except in compliance with all applicable federal, state and local laws, ordinances, rules and regulations. MEGABUS shall comply and ensure compliance by all occupants of the Licensed Premises, with all applicable federal, state and local laws, ordinances, rules and regulations, and shall keep the Licensed Premises free and clear of any liens imposed pursuant to such laws, ordinances, rules or regulations as a direct result of any action or inaction on the part of MEGABUS. In the event that MEGABUS receives any notice or advice from any governmental agency or any source whatsoever with respect to Hazardous Materials on, from or accepting the Licensed Premises, MEGABUS shall immediately notify COMMISSION. MEGABUS shall conduct and complete all investigations, studies, sampling and testing, and all remedial actions necessary to clean up and remove all Hazardous Materials from the Licensed Premises placed there as a direct result of any action or inaction on the part of MEGABUS in accordance with all applicable federal, state and local laws, ordinances, rules and regulations. The term "Hazardous Materials", as used in this Agreement, shall include, without limitation, petroleum and petroleum products and derivatives, asbestos, radon, polychlorinated biphenyls ("PCBs"), urea formaldehyde foam insulation, explosives, radioactive materials, laboratory waste and medical waste (including, without limitation, contaminated clothing, body fluids, contaminated medical instruments and equipment, catheters, used bandages, gauze, needles and 152 17336.00603\7669938.2 14 other sharps), and any chemicals, materials or substances designed or regulated as hazardous or as toxic substances, materials or waste under any environmental law. Anything contained herein to the contrary notwithstanding, MEGABUS shall have no liability under this Section 24 for contamination shown to have been present prior to the date hereof. (b) Notices. MEGABUS shall immediately notify COMMISSION in writing of: (i). Any enforcement, clean-up, removal or other governmental or regulatory action instituted, completed or threatened pursuant to any Hazardous Materials laws; (ii). Any claim made or threatened by any person against MEGABUS or the Licensed Premises relating to damage, contribution, cost, recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Materials actually handled by MEGABUS; (iii). Any reports made to any environmental agency arising out of or in connection with any Hazardous Materials actually handled by MEGABUS on the Licensed Premises; and (iv). Any reports made to any environmental agency arising out of or in connection with any Hazardous Materials actually handled by MEGABUS in, on or removed from the Licensed Premises, including any complaints, notices, warnings, reports or asserted violations in connection therewith. MEGABUS shall also supply to COMMISSION as promptly as possible, and in any event within five (5) business days after MEGABUS first received or sends the same, copies of all claims, reports, complaints, notices, warnings, or asserted violations relating in any way to Hazardous Materials actually handled by MEGABUS on the Licensed Premises, or MEGABUS' use thereof. MEGABUS shall promptly deliver to COMMISSION copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the Licensed Premises by MEGABUS. The obligations and liabilities of MEGABUS under this Article shall survive the expiration or earlier termination of this Agreement. 25. Assumption of Risk and Waiver. To the maximum extent allowed by law, MEGABUS releases COMMISSION from and assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, the Station, the Licensed Premises, COMMISSION's property and any other property of, or under the control or custody of MEGABUS, which is on or near the Station or the Licensed Premises. MEGABUS’ assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the Station or the Licensed Premises, accident or fire or other casualty on the Station or the Licensed Premises, or electrical discharge and noise or vibration resulting from the transit operations on or near the Station or the Licensed Premises. The term "COMMISSION" as used in this Section shall include any other persons or companies employed, retained or engaged by COMMISSION. MEGABUS, on behalf of itself and its Personnel, as a material part of the consideration for this Agreement, hereby waives all claims and demands against the COMMISSION for any such loss, damage or injury of MEGABUS and/or its Personnel. In that connection, MEGABUS waives, for itself and its Personnel, the benefit of California Civil Code 153 17336.00603\7669938.2 15 Section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor. _______ MEGABUS Initials The provisions of this Section shall survive the termination of this Agreement. As used in this Section, "Personnel" means the MEGABUS, or its officers, directors, affiliates, or anyone directly or indirectly employed by MEGABUS or for whose acts MEGABUS is liable. 26. Miscellaneous. (a) This Agreement shall inure to the benefit of and shall be binding upon COMMISSION and MEGABUS and their respective successors and assigns. (b) This Agreement shall be governed by and construed in accordance with the laws of the State of California, with venue in Riverside County. (c) It is expressly understood that this Agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the Licensed Premises to MEGABUS. This Agreement is not exclusive and the COMMISSION specifically reserves the right to grant other rights of entry within the vicinity of the Licensed Premises. (d) All notices, certificates or other communications hereunder shall be sufficient if sent by registered or certified United States mail, postage prepaid, addressed, if to COMMISSION, to 4080 Lemon Street, 3rd Floor, Riverside, CA 92501, Attention: Executive Director, with a copy to Steve DeBaun, Esq., Best, Best & Krieger LLP, 3390 University Avenue 5th Floor, Riverside, CA 92501, or to such other person(s) or address(es) as COMMISSION may hereafter direct by giving notice as provided herein, with a copy sent to COMMISSION's general counsel at the address set forth above; to MEGABUS, at the address set forth at the beginning of this Agreement, or to such other person or address as MEGABUS may hereafter direct by giving notice as provided herein. (e) This Agreement shall completely and fully supersede all other prior understandings or agreements, both written and oral, between COMMISSION and MEGABUS relating to the use of the Licensed Premises. (f) If any clause, provision or section of this Agreement shall be ruled invalid by any court of competent jurisdiction, the invalidity of such clause, provision or section shall not affect any of the remaining provisions hereof. (g) This Agreement may be simultaneously executed in several counterparts, 154 17336.00603\7669938.2 16 each of which shall be an original and all of which shall constitute but one and the same instrument. (h) The section and other headings in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of any provision hereof. (i) Nothing herein contained is intended, or shall be construed, as in any way creating or establishing the relationship of co-partners between the parties hereto or as constituting MEGABUS as the agent or representative of COMMISSION for any purpose or in any manner whatsoever. (j) The terms “termination”, “expiration”, “cancellation” and “revocation” may be used herein, interchangeably, and use of one or more of the foregoing terms, and not the other(s), shall not be interpreted to alter of limit any provision hereof. (k) COMMISSION represents and warrants that its Chairman or Executive Director has full authority to execute this Agreement and to bind COMMISSION. 27. Force Majeure. This Agreement and obligation of MEGABUS to pay fees and adjusted fees hereunder and to perform all of the other covenants and agreements hereunder on the part of MEGABUS to be performed shall not be affected, impaired or excused because COMMISSION is unable to supply or is delayed in supplying any service expressly or impliedly to be supplied or is unable to make or is delayed in making any repairs, additions or alterations if COMMISSION is prevented or delayed from so doing by reason of a strike or labor trouble, or governmental preemption in connection with a national emergency or in connection with any rule, order or regulation of any department or subdivision thereof or of any governmental agency, or by reason of the condition of supply and demand which have been or are affected by war or other emergency or by any other condition beyond the control of COMMISSION. 28. Relocation. At any time during the term hereby granted, COMMISSION may elect to relocate the Licensed Premises, either permanently or temporarily, on sixty (60) days' notice to MEGABUS to other similar location. In case of any such relocation, this Agreement shall have no force or effect with respect to the Licensed Premises herein demised, and all the terms, covenants and conditions hereof shall apply to the space in which MEGABUS shall be relocated. 29. Rules and Regulations. MEGABUS agrees to follow the rules and regulations promulgated by COMMISSION as the same may be amended or changed from time to time. COMMISSION rules and regulations shall be deemed incorporated herein by reference and made a part hereof. 30. Termination. (a) Notwithstanding any other provision contained herein, COMMISSION may terminate this Agreement if any one or more of the following events occur: (i). MEGABUS shall become insolvent, or shall seek the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of creditors, 155 17336.00603\7669938.2 17 or file a voluntary petition in bankruptcy or answer seeking its reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under any other law or statute of the United States or of any State thereof, or consent to the appointment of a receiver, trustee; or liquidator of all or substantially all of its property; or (ii). By order or decree of a court, MEGABUS shall be adjudged bankrupt or an order shall be made approving a petition filed by any of its creditors or stockholders, seeking its reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under any law or statute of the United States or of any State thereof, unless any such order or decree shall be vacated within sixty (60) days of entry thereof; or (iii). A petition under any part of the federal bankruptcy laws or an action under any present or future insolvency law or statute shall be filed against MEGABUS and is not dismissed within sixty (60) days after the filing thereof; or (iv). The interest of MEGABUS under this Agreement, except as otherwise provided herein, shall be transferred to, pass to or devolve upon, by operation of law or otherwise, any other corporation, or any person or firm; or (v) By or pursuant to, or under authority of any legislative act, resolution or rule, or any order or decree of any court or governmental board, agency or officer, a receiver, trustee, or liquidator shall take possession or control of all or substantially all of the property of MEGABUS, and such possession or control shall continue in effect for a period of thirty (30) days; or (vi) Any lien shall be filed against the Station for any improvements there at because of any act or omission of MEGABUS and is not removed, contested or bonded within fifteen (15) days. (b) Notwithstanding anything to the contrary contained herein, either party may terminate this Agreement at any time upon thirty (30) days prior written notice to the other party hereto. (c) Notwithstanding anything to the contrary contained herein, and in addition to COMMISSION’s rights to cancel this Agreement for an Event of Default, as provided in Section 16, COMMISSION may terminate this Agreement immediately, upon providing written notice to MEGABUS of such termination and setting forth the effective date thereof, if MEGABUS is in breach of any term or condition of this Agreement and immediate termination is required to protect the Station, the Licensed Premises or the public health, safety or welfare, as determined by COMMISSION in its sole discretion. 31. Personal Immunity. No member, director, officer, agent, employee or representative of the COMMISSION shall be charged personally or held contractually liable by or to the other party under any term or provision of this Agreement or of any supplement, modification or amendment thereto, or because of any breach, actual, alleged or attempted, thereof. 156 17336.00603\7669938.2 18 32. Restoration. Upon the termination or revocation of this Agreement, MEGABUS shall, at its own cost and expense, restore the Licensed Premises to the same condition in which it was prior to MEGABUS’ entry. In case MEGABUS shall fail to restore the Licensed Premises to its prior condition within ten (10) business days after the effective date of the termination, the COMMISSION may proceed with such work at the expense of MEGABUS. 33. Survival of Obligations. All obligations hereunder not fully performed as of the termination, cancellation or expiration of this Agreement in any manner shall survive, including without limitation, all payment obligations with respect to fees and all obligations concerning the condition of the Licensed Premises. 34. Entire Agreement. (a) This Agreement, exhibits, schedules and appendices attached hereto, constitutes the entire agreement of COMMISSION and MEGABUS on the subject matter, and may not be amended, modified, supplemented, discharged or extended except by written instrument duly executed by the parties hereto. (b) The parties agree that there are no representations or warranties existing between them, and that none shall be binding upon either of them except as herein contained. [SIGNATURES ON FOLLOWING PAGE] 157 17336.00603\7669938.2 19 SIGNATURE PAGE TO LICENSE AGREEMENT BETWEEN RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND MEGABUS NORTHEAST LLC IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: ________________________________ Anne Mayer, Executive Director Approved as to form: BEST BEST & KRIEGER LLP ___________________________ General Counsel MEGABUS NORTHEAST LLC By:____________________________ Title: __________________________ ATTEST: By: ___________________________ Its: Secretary 158 17336.00603\7669938.2 EXHIBIT “A” LICENSED PREMISES 159 17336.00603\7669938.2 EXHIBIT “B” INSURANCE REQUIREMENTS INSURANCE PROVISIONS MEGABUS shall obtain, and shall require any consultant, contractor or agent entering the Licensed Premises on its behalf to obtain insurance (or acceptable proof of adequate self insurance) of the types and in the amounts described below and satisfactory to the COMMISSION. A. Commercial General Liability Insurance. MEGABUS shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less then one million dollars ($1,000,000) per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two times the occurrence limit. Such insurance shall: 1. Include the COMMISSION and its officials, officers, employees, agents, and consultants as insureds with respect to the performance of all permitted activities under this Agreement and the use of the Licensed Premises and shall contain no special limitations on the scope of coverage or the protection afforded to these insureds; 2. Be primary with respect to any insurance or self-insurance programs covering the COMMISSION, its officials, officers, employees, agents and consultants; and B. Pollution Liability Insurance. [RESERVED.] C. Automobile Liability. MEGABUS shall acquire and maintain during the period of this Agreement, automobile liability with a combined single limit of ten million dollars ($10,000,000). Coverage shall be at least as broad as the latest version of the following: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto). The 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 MEGABUS or for which MEGABUS 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 MEGABUS’ 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. D. Workers' Compensation Insurance. MEGABUS shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than one million dollars ($1,000,000) each accident. E. All Polices. All policies required hereunder shall comply with the following: 160 17336.00603\7669938.2 1. 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) MEGABUS shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 2. Separation of Insureds; No Special Limitations. All insurance required hereunder shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the COMMISSION, its directors, officials, officers, employees, and agents. 3. 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. F. Certificates of Insurance. MEGABUS, and any consultant, contractor or agent entering the Licensed Premises on its behalf, shall, prior to entering the Licensed Premises, furnish the COMMISSION with properly executed certificates of insurance, and, if requested by the COMMISSION, certified copies of endorsements and policies, which clearly evidence all insurance required under this Agreement and provide that such insurance shall be not canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days' prior written notice to the COMMISSION. Certificates shall be on form satisfactory to the COMMISSION. The certificate shall also evidence the insurer's knowledge of the proximity of the operations of MEGABUS to active railroad tracks. The COMMISSION shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement. 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 approved by the COMMISSION before use by or on behalf of MEGABUS of the Licensed Premises. The COMMISSION reserves the right to require complete, certified copies of all required insurance policies, at any time. G. Coverage Maintenance. MEGABUS shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Agreement. Unless otherwise provided for in this Agreement, MEGABUS shall maintain such insurance from the execution of this Agreement until the performance of the license is complete and the Licensed Premises is fully restored, except as otherwise provided in this Agreement. 161 17336.00603\7669938.2 SCHEDULE 3(a) USE SCHEDULE See attached. Operating Location/Depot LA LA LA LA LA LA LA Route Number M10 M10 M10 M10 M10 M10 M10 Bus Working # 1 1 12 2 2 2 1 Available Seats 81 81 81 81 81 81 81 Days of Operation SaSu Mo-Fr Daily SaSu Mo-Th Fr Daily Riverside, Downtown Metro Station 9:00 9:20 13:15 18:00 17:20 17:30 1:30 Operating Location/Depot LA LA LA LA LA Route Number M10 M10 M10 M10 M10 Bus Working # 2 1 1 12 2 Available Seats 81 81 81 81 81 Days of Operation Daily Mo-Sa Su Daily Daily Riverside, Downtown Metro Station 12:00 19:00 19:30 23:15 4:35 162 17336.00603\7669938.2 SCHEDULE 5(b) ADDITIONAL SERVICE FEE SCHEDULE No. of Entrances Per Day/* Per Entrance Monthly Fee** 1 to 10 $154.50 11 to 20 $128.75 *Additional number of entrances per day/month are at all times subject to the prior approval of COMMISSION. **Subject to adjustment from time to time upon the mutual agreement of MEGABUS and COMMISSION. 163 AGENDA ITEM 6I Agenda Item 6I RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County Transportation Commission FROM: Budget and Implementation Committee Jillian Guizado, Senior Legislative Affairs Analyst Aaron Hake, External Affairs Director THROUGH: Anne Mayer, Executive Director SUBJECT: Agreements for State and Federal Legislative Advocacy Services BUDGET AND IMPLEMENTATION COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Award the following agreements to provide state and federal legislative advocacy services for a four-year term, and two two-year options to extend the agreements, for up to an eight-year period of performance, as follows: a) Agreement No. 17-14-009-00 with Smith, Watts & Hartmann, in an amount not to exceed $524,000; b) Agreement No. 17-14-010-00 with Ruffalo and Associates, LLC, in an amount not to exceed $720,000; c) Agreement No. 17-14-011-00 with Cliff Madison Government Relations, in an amount not to exceed $530,000; 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: In keeping with the Commission’s enabling legislation to have a small but effective staff, the Commission historically retains legislative advocates in Sacramento and Washington, D.C. These advocates’ roles and responsibilities include, but not limited to: maintaining and elevating the Commission’s policy agenda, shepherding grant and loan applications, fostering important working relationships with legislators and their staffs, and providing invaluable insight on legislative matters in both capitols. The Commission’s current state legislative advocate is Smith, Watts & Hartmann. Mark Watts has extensive experience working in and with state government, making him a great asset to the Commission’s legislative efforts in the state Capitol. Mark Watts held positions on the Assembly Ways and Means Committee staff, in the Caltrans District 7 Director’s office, and under the Wilson Administration as the Transportation Undersecretary. Mark Watts has been instrumental in the Commission’s various legislative successes from attaining tolling and design-build authorization for the State Route 91 Corridor Improvement Project (91 Project), tolling authority 164 Agenda Item 6I for the Interstate 15 Express Lanes project, to most recently attaining authority for the Commission’s contractors to enforce parking regulations at our Metrolink stations. He has also been instrumental in placing the Commission in a leadership role in the state Capitol among transportation stakeholders, including ensuring the Commission has the opportunity to testify at key committee hearings, and has an audience with committee chairpersons and legislative leaders. One of the Commission’s current federal legislative advocates is Ruffalo and Associates, LLC. For several years, Kathy Ruffalo has been representing the Commission in Washington, D.C. Kathy Ruffalo’s résumé includes being appointed by Congress to serve on national policy commissions on transportation infrastructure. She has a highly-technical knowledge base of federal transportation policy, including intimate knowledge of federal surface transportation authorization bills like the Fixing America’s Surface Transportation (FAST) Act. Kathy Ruffalo has forged and maintained close relationships with authorizing committees in both the House and the Senate. The Commission’s other current federal legislative advocate is Cliff Madison Government Relations. For more than a decade, the Commission has been represented by Cliff Madison, a former staffer to the House Transportation and Infrastructure (T&I) Committee and long-time Capitol Hill lobbyist. Cliff Madison maintains close relationships with members of Riverside County’s House of Representatives delegation and the office of Senator Dianne Feinstein. Cliff Madison also specializes in maintaining the Commission’s relationship with chairpersons of the House T&I Committee. Cliff Madison and Kathy Ruffalo were key team members in securing the $421 million Transportation Infrastructure Finance and Innovation Act (TIFIA) loan for the 91 Project and are currently working to support the Commission’s effort to secure another TIFIA loan for the I-15 Express Lanes project. Both Cliff Madison and Kathy Ruffalo assisted in the Commission receiving grants for the Coachella Valley-San Gorgonio Pass Rail Corridor Study and the Blythe Wellness Express from the Federal Railroad Administration and Federal Transit Administration, respectively. Cliff Madison initiated the Commission’s effort to receive $75 million of Small Starts funding for the Perris Valley Line. Kathy Ruffalo assisted in drafting amendments to federal law to address Commission priorities pertaining to goods movement funding and policy. Procurement Process The Commission’s current contracts for both state and federal advocacy services expire on December 31, 2016, necessitating a competitive bidding process to ensure the highest-quality advocates are acquired by the Commission. As such, two separate requests for proposals (RFP) for state (RFP No. 17-14-009-00) and federal (RFP No. 17-14-010-00) advocacy services were released by staff on August 26, 2016. Staff determined the weighted factor method of source selection to be the most appropriate for these procurements, as it allows the Commission to identify the most advantageous proposal(s) with price and other factors considered. Non-price factors include elements such as 165 Agenda Item 6I qualifications of firm, personnel, and the approach, understanding, and ability to respond to the Commission’s needs for the services as set forth under the terms of the RFPs. A public notice was advertised in the Press Enterprise, and the RFPs were posted on the Commission’s PlanetBids website, which is accessible through the Commission’s website. Utilizing PlanetBids, emails were sent to 41 firms for the state advocacy RFP and 40 firms for the federal advocacy RFP. Through the PlanetBids site, 10 firms downloaded the state advocacy RFP, while 13 firms downloaded the federal advocacy RFP; 1 of these firms is located in Riverside County. Staff responded to all questions submitted by potential proposers prior to the September 8 clarification deadline date. One proposal for state advocacy services was received – Smith, Watts & Hartmann (Sacramento) – and two proposals for federal advocacy services were received – Ruffalo and Associates, LLC (Washington D.C.) and Cliff Madison Government Relations (Washington D.C.) – by the September 22 submittal deadline. All three of the firms submitted responsive and responsible proposals. In addition, all three firms are currently providing state and federal advocacy services for the Commission. Utilizing the previously described evaluation criteria set forth in the RFPs, the proposals were evaluated and scored by evaluation committees comprised of Commission staff and outside panelists with expertise in either state or federal legislative affairs pertaining to surface transportation issues in California. In an attempt to understand why only existing contractors submitted proposals for these RFPs, staff reached out to firms that downloaded one or both of the RFP documents but did not submit a proposal. Four of the firms that downloaded the documents responded and provided the following reasons for not submitting proposals: • Independent assessment of the Commission’s use of and satisfaction with the incumbent firms; • Consensus among the firm not to propose; and • Too many potential conflicts of interest. The labor rates submitted are considered fair and reasonable based on existing and previous rates for identical services. All three contracts consist of a monthly retainer fee, recognizing the flexibility required in the ebb and flow of legislative activity. Smith, Watts & Hartmann’s rate for the initial four-year term decreased 16.6 percent from its current monthly retainer fee. It proposes an 8 percent decrease from its current rate for the first two-year option and return to its current rate for the second two-year option. Ruffalo and Associates, LLC’s rate continues to remain flat, as it has in previous years, and it stays flat for the full eight years available under this contract. Cliff Madison Government Relations’ rate is flat for the initial four-year term, increases 7.7 percent for the first two-year option, but then decreases by 71.4 percent for the second two-year option. This rate from Cliff Madison Government Relations reflects a total contract value decrease of $74,800 as a result of the firm providing a best and final offer during the selection process. These three firms’ rates are competitive in comparison to what transportation commissions of a similar size pay for state and federal advocacy services. Table 1 indicates the 166 Agenda Item 6I previous, current, and proposed monthly rates for advocacy services. Table 2 indicates the monthly rates submitted by the three proposing firms. Table 1 State Federal A Federal B Previous Advocacy Firm Rates $5,000 $15,000 $6,500 Current Advocacy Firm Rates $6,000 $7,500 $6,500 Proposed Advocacy Firm Rates for Initial Term $5,000 $7,500 $6,500 Table 2 State (Smith, Watts & Hartmann) Federal (Ruffalo and Associates, LLC) Federal (Cliff Madison Government Relations) Initial 4-Year Term $5,000 $7,500 $6,500 First 2-Year Term $5,500 $7,500 $7,000 Second 2-Year Term $6,000 $7,500 $2,000 Based on the evaluation committee’s assessment of the written proposals and pursuant to the terms of the RFPs, staff recommends following the evaluation committee’s recommendations to award agreements to Smith, Watts & Hartmann; Ruffalo and Associates, LLC; and Cliff Madison Government Relations for four-year initial terms with two two-year options, plus reimbursable travel expenses of $8,000 for Smith, Watts & Hartmann and $2,000 for Cliff Madison Government Relations. Staff anticipates there may be a need for Kathy Ruffalo and/or Cliff Madison to travel to California for Commission purposes, and reasonable travel expenses are not included in the monthly rates. Financial Information In Fiscal Year Budget: Yes N/A Year: FY 2016/17 FY 2017/18+ Amount: $ 114,750 $1,659,250 Source of Funds: Measure A, Local Transportation Fund, Freeway Service Patrol, Service Authority Freeway Emergencies, and Transportation Uniform Mitigation Fee Budget Adjustment: No N/A GL/Project Accounting No.: 001001 65506 00000 0000 101 14 65520 Fiscal Procedures Approved: Date: 10/14/2016 Attachments: 1) Draft Agreement No. 17-14-009-00 2) Draft Agreement No. 17-14-010-00 3) Draft Agreement No. 17-14-011-00 167 17336.00000\8752982.2 Agreement No. 17-14-009-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR STATE LEGISLATIVE ADVOCACY SERVICES WITH SMITH, WATTS AND HAR TMANN 1.PARTIES AND DATE. This Agreement is made and entered into this day of 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and SMITH, WATTS AND HARTMANN ("Consultant"), a limited liability corporation. 2.RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing state legislative advocacy services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the state legislative interests of the Commission ("Project") as set forth herein. 3.TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to December 30, 2020, unless earlier terminated as provided herein. The Commission, at its sole discretion, may extend this Agreement for two (2) additional two- ATTACHMENT 1 168 2 17336.00000\8752982.2 year terms. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. 169 3 17336.00000\8752982.2 Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 170 4 17336.00000\8752982.2 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising 171 5 17336.00000\8752982.2 Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. 172 6 17336.00000\8752982.2 (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 173 7 17336.00000\8752982.2 (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may 174 8 17336.00000\8752982.2 approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under 175 9 17336.00000\8752982.2 this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 176 10 17336.00000\8752982.2 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. 177 11 17336.00000\8752982.2 All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and 178 12 17336.00000\8752982.2 volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 179 13 17336.00000\8752982.2 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 180 14 17336.00000\8752982.2 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. Effective March 1, 2015, if the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. If applicable, Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 181 15 17336.00000\8752982.2 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight- Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 182 16 17336.00000\8752982.2 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 183 17 17336.00000\8752982.2 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR STATE LEGISLATIVE ADVOCACY SERVICES WITH [___CONSULTANT___] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONSULTANT TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT] By: _________________________ By: ____________________________ Scott Matas Signature Chair __________________________ Name [NOT NEEDED IF APPROVED BY COMMISSION] __________________________ Title By: ____________________________ Anne Mayer Executive Director Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 184 EXHIBITS -1 17336.00000\8752982.2 EXHIBIT "A" - SCOPE OF SERVICES [ TO BE INSERTED] EXHIBIT "B" - SCHEDULE OF SERVICES [ TO BE INSERTED] EXHIBIT "C" – COMPENSATION [ TO BE INSERTED] 185 17336.00000\8752982.2 Agreement No. 17-14-010-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES WITH RUFFALO AND ASSOCIATES, LLC 1.PARTIES AND DATE. This Agreement is made and entered into this day of , 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and [___NAME OF FIRM___] ("Consultant"), a [___LEGAL STATUS OF CONSULTANT e.g., CORPORATION___]. 2.RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing federal legislative advocacy services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the federal legislative interests of the Commission ("Project") as set forth herein. 3.TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to December 30, 2020, unless earlier terminated as provided herein. The ATTACHMENT 2 186 2 17336.00000\8752982.2 Commission, at its sole discretion, may extend this Agreement for two (2) additional two- year terms. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. 187 3 17336.00000\8752982.2 Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 188 4 17336.00000\8752982.2 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising 189 5 17336.00000\8752982.2 Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. 190 6 17336.00000\8752982.2 (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 191 7 17336.00000\8752982.2 (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may 192 8 17336.00000\8752982.2 approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under 193 9 17336.00000\8752982.2 this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 194 10 17336.00000\8752982.2 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. 195 11 17336.00000\8752982.2 All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and 196 12 17336.00000\8752982.2 volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 197 13 17336.00000\8752982.2 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 198 14 17336.00000\8752982.2 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. Effective March 1, 2015, if the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. If applicable, Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 199 15 17336.00000\8752982.2 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight- Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 200 16 17336.00000\8752982.2 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 201 17 17336.00000\8752982.2 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES WITH [___CONSULTANT___] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONSULTANT TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT] By: _________________________ By: ____________________________ Scott Matas Signature Chair __________________________ Name [NOT NEEDED IF APPROVED BY COMMISSION] __________________________ Title By: ____________________________ Anne Mayer Executive Director Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 202 EXHIBITS -1 17336.00000\8752982.2 EXHIBIT "A" - SCOPE OF SERVICES [ TO BE INSERTED] EXHIBIT "B" - SCHEDULE OF SERVICES [ TO BE INSERTED] EXHIBIT "C" – COMPENSATION [ TO BE INSERTED] 203 17336.00000\8752982.2 Agreement No. 17-14-011-00 RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES WITH CLIFF MADISON GOVERNMENT RELATIONS 1.PARTIES AND DATE. This Agreement is made and entered into this day of , 2016, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("the Co- mmission") and [___NAME OF FIRM___] ("Consultant"), a [___LEGAL STATUS OF CONSULTANT e.g., CORPORATION___]. 2.RECITALS. 2.1 Consultant desires to perform and assume responsibility for the provision of certain professional consulting services required by Commission on the terms and conditions set forth in this Agreement. Consultant represents that it is a professional consultant, experienced in providing federal legislative advocacy services to public clients, is licensed in the State of California, and is familiar with the plans of Commission. 2.2 Commission desires to engage Consultant to render certain consulting services for the federal legislative interests of the Commission ("Project") as set forth herein. 3.TERMS. 3.1 General Scope of Services. Consultant promises and agrees to furnish to Commission all labor materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately provide professional consulting services and advice on various issues affecting the decisions of Commission regarding the Project and on other programs and matters affecting Commission, hereinafter referred to as "Services". The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state, and federal laws, rules and regulations. 3.2 Term. The term of this Agreement shall be from the date first specified above to December 30, 2020, unless earlier terminated as provided herein. The ATTACHMENT 3 204 2 17336.00000\8752982.2 Commission, at its sole discretion, may extend this Agreement for two (2) additional two- year terms. Consultant shall complete the Services within the term of this Agreement and shall meet any other established schedules and deadlines. 3.3 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, the Commission shall respond to Consultant's submittals in a timely manner. Upon request of the Commission, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.4 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant under its supervision. Consultant will determine the means, method and details of performing the Services subject to the requirements of this Agreement. Commission retains Consultant on an independent contractor basis and Consultant is not an employee of Commission. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall not be employees of Commission and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance. 3.5 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Commission. 3.6 Substitution of Key Personnel. Consultant has represented to Commission that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence and experience upon written approval of Commission. In the event that Commission and Consultant cannot agree as to the substitution of key personnel, Commission shall be entitled to terminate this Agreement for cause, pursuant to provisions of Section 3.16 of this Agreement. The key personnel for performance of this Agreement are as follows: __________________________________. 3.7 Commission’s Representative. Commission hereby designates Executive Director, or his or her designee, to act as its representative for the performance of this Agreement ("Commission’s Representative"). Commission's representative shall have the power to act on behalf of Commission for all purposes under this Agreement. 205 3 17336.00000\8752982.2 Consultant shall not accept direction from any person other than Commission's Representative or his or her designee. 3.8 Consultant’s Representative. Consultant hereby designates [___INSERT NAME OR TITLE___], or his or her designee, to act as its representative for the performance of this Agreement ("Consultant’s Representative"). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his or her best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.9 Coordination of Services. Consultant agrees to work closely with Commission staff in the performance of Services and shall be available to Commission's staff, consultants and other staff at all reasonable times. 3.10 Standard of Care; Licenses. Consultant shall perform the Services under this Agreement in a skillful and competent manner, consistent with the standard generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from Commission, any Services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein, and shall be fully responsible to the Commission for all damages and other liabilities provided for in the indemnification provisions of this Agreement arising from the Consultant’s errors and omissions. 3.11 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to Commission, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold Commission, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 206 4 17336.00000\8752982.2 3.12 Insurance. 3.12.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Commission that it has secured all insurance required under this section, in a form and with insurance companies acceptable to the Commission. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. 3.12.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) if Consultant has an employees, Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Practices Liability limits of $1,000,000 per accident. 3.12.3 [Reserved] 3.12.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Commission to add the following provisions to the insurance policies: (A) General Liability. (i) Commercial General Liability Insurance must include coverage for (1) bodily Injury and property damage; (2) personal Injury/advertising 207 5 17336.00000\8752982.2 Injury; (3) premises/operations liability; (4) products/completed operations liability; (5) aggregate limits that apply per Project; (6) explosion, collapse and underground (UCX) exclusion deleted; (7) contractual liability with respect to this Agreement; (8) broad form property damage; and (9) independent consultants coverage. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to this Agreement. (iii) The policy shall give the Commission, its directors, officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional insured coverage under the policy shall be “primary and non-contributory” and will not seek contribution from the Commission’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the Commission, its directors, officials, officers, employees and agents shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the Commission, its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Commission, its directors, officials, officers, employees and agents shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability Coverage. (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) The insurer shall agree to waive all rights of subrogation against the Commission, its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. 208 6 17336.00000\8752982.2 (i) Defense costs shall be payable in addition to the limits set forth hereunder. (ii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits set forth herein shall be available to the Commission, its directors, officials, officers, employees and agents as additional insureds under said policies. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the Commission (if agreed to in a written contract or agreement) before the Commission’s own insurance or self-insurance shall be called upon to protect it as a named insured. The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies). (iv) Consultant shall provide the Commission at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Commission at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims- made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Commission, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 209 7 17336.00000\8752982.2 (vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Commission has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Commission will be promptly reimbursed by Consultant or Commission will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Commission may cancel this Agreement. The Commission may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither the Commission nor any of its directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. Each insurance policy required by this Agreement shall be endorsed to state that: 3.12.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Commission. If the Commission does not approve the deductibles or self-insured retentions as presented, Consultant shall guarantee that, at the option of the Commission, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Commission, its directors, officials, officers, employees and agents; or, (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.12.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the Commission. 3.12.7 Verification of Coverage. Consultant shall furnish Commission with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the Commission. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the Commission before work commences. The Commission reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.12.8 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Commission that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the Commission as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, the Commission may 210 8 17336.00000\8752982.2 approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 3.13 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.14 Fees and Payment. 3.14.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto. The total compensation shall not exceed [___INSERT WRITTEN DOLLAR AMOUNT___] ($[___INSERT NUMERICAL DOLLAR AMOUNT___]) without written approval of Commission's Executive Director (“Total Compensation”). Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.14.2 Payment of Compensation. Consultant shall submit to Commission a monthly statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. Commission shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon. 3.14.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Commission. 3.14.4 Extra Work. At any time during the term of this Agreement, Commission may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Commission to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from Commission's Executive Director. 3.15 Accounting Records. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred and fees charged under 211 9 17336.00000\8752982.2 this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Commission during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.16 Termination of Agreement. 3.16.1 Grounds for Termination. Commission may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Upon termination, Consultant shall be compensated only for those services which have been fully and adequately rendered to Commission through the effective date of the termination, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.16.2 Effect of Termination. If this Agreement is terminated as provided herein, Commission may require Consultant to provide all finished or unfinished Documents and Data, as defined below, and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.16.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Commission may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.17 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: CONSULTANT: COMMISSION: ______________________ Riverside County ______________________ Transportation Commission ______________________ 4080 Lemon Street, 3rd Floor _____________________ Riverside, CA 92501 Attn: ________________ Attn: Executive Director Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.18 Ownership of Materials/Confidentiality. 212 10 17336.00000\8752982.2 3.18.1 Documents & Data. This Agreement creates an exclusive and perpetual license for Commission to copy, use, modify, reuse, or sub-license any and all copyrights and designs embodied in plans, specifications, studies, drawings, estimates, materials, data and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that Commission is granted an exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to grant the exclusive and perpetual license for all such Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Commission. Commission shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Commission’s sole risk. 3.18.2 Intellectual Property. In addition, Commission shall have and retain all right, title and interest (including copyright, patent, trade secret and other proprietary rights) in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents, and any and all works of authorship fixed in any tangible medium or expression, including but not limited to, physical drawings or other data magnetically or otherwise recorded on computer media (“Intellectual Property”) prepared or developed by or on behalf of Consultant under this Agreement as well as any other such Intellectual Property prepared or developed by or on behalf of Consultant under this Agreement. The Commission shall have and retain all right, title and interest in Intellectual Property developed or modified under this Agreement whether or not paid for wholly or in part by Commission, whether or not developed in conjunction with Consultant, and whether or not developed by Consultant. Consultant will execute separate written assignments of any and all rights to the above referenced Intellectual Property upon request of Commission. Consultant shall also be responsible to obtain in writing separate written assignments from any subcontractors or agents of Consultant of any and all right to the above referenced Intellectual Property. Should Consultant, either during or following termination of this Agreement, desire to use any of the above-referenced Intellectual Property, it shall first obtain the written approval of the Commission. 213 11 17336.00000\8752982.2 All materials and documents which were developed or prepared by the Consultant for general use prior to the execution of this Agreement and which are not the copyright of any other party or publicly available and any other computer applications, shall continue to be the property of the Consultant. However, unless otherwise identified and stated prior to execution of this Agreement, Consultant represents and warrants that it has the right to grant the exclusive and perpetual license for all such Intellectual Property as provided herein. Commission further is granted by Consultant a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional, or supplemental work created under this Agreement. 3.18.3 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Commission, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Commission's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Commission. 3.18.4 Infringement Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Commission of the Documents & Data, including any method, process, product, or concept specified or depicted. 3.19 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.20 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of such actions. 3.21 Indemnification. Consultant shall defend, indemnify and hold the Commission, its directors, officials, officers, agents, consultants, employees and 214 12 17336.00000\8752982.2 volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of the Consultant, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the Commission, its directors, officials, officers, agents, consultants, employees and volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the Commission or its directors, officials, officers, agents, consultants, employees and volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse the Commission and its directors, officials, officers, agents, consultants, employees and volunteers, for any and all legal expenses and costs, including reasonable attorney’s fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnity shall not be restricted to insurance proceeds, if any, received by the Commission or its directors, officials, officers, agents, consultants, employees and volunteers. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. This Section 3.21 shall survive any expiration or termination of this Agreement. 3.22 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be supplemented, amended, or modified by a writing signed by both parties. 3.23 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Commission's Right to Employ Other Consultants. The Commission reserves the right to employ other consultants in connection with this Project. 3.26 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of Commission. 3.27 Prohibited Interests and Conflicts. 215 13 17336.00000\8752982.2 3.27.1 Solicitation. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Commission shall have the right to rescind this Agreement without liability. 3.27.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of Commission, during the term of his or her service with Commission, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.27.3 Conflict of Employment. Employment by the Consultant of personnel currently on the payroll of the Commission shall not be permitted in the performance of this Agreement, even though such employment may occur outside of the employee’s regular working hours or on weekends, holidays or vacation time. Further, the employment by the Consultant of personnel who have been on the Commission payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Consultant securing this or related Agreements with the Commission, is prohibited. 3.27.4 Employment Adverse to the Commission. Consultant shall notify the Commission, and shall obtain the Commission’s written consent, prior to accepting work to assist with or participate in a third-party lawsuit or other legal or administrative proceeding against the Commission during the term of this Agreement. 3.28 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Commission's Disadvantaged Business Enterprise program, Affirmative Action Plan or other related Commission programs or guidelines currently in effect or hereinafter enacted. 3.29 Subcontracting. Consultant shall not subcontract any portion of the work or Services required by this Agreement, except as expressly stated herein, without prior written approval of the Commission. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 3.30 Prevailing Wages. By its execution of this Agreement, Consultant certified that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 216 14 17336.00000\8752982.2 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. The Commission shall provide Consultant with a copy of the prevailing rate of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the Commission, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.30.1 DIR Registration. Effective March 1, 2015, if the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations. If applicable, Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. 3.31 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered. If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a certificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub-consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder. The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant. 217 15 17336.00000\8752982.2 3.32 No Waiver. Failure of Commission to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 3.33 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day's work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day ("Eight-Hour Law"), unless Consultant or the Services are not subject to the Eight-Hour Law. Consultant shall forfeit to Commission as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is required or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight- Hour Law. 3.34 Subpoenas or Court Orders. Should Consultant receive a subpoena or court order related to this Agreement, the Services or the Project, Consultant shall immediately provide written notice of the subpoena or court order to the Commission. Consultant shall not respond to any such subpoena or court order until notice to the Commission is provided as required herein, and shall cooperate with the Commission in responding to the subpoena or court order. 3.35 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification and confidentiality obligations, and the obligations related to receipt of subpoenas or court orders, shall survive any such expiration or termination. 3.36 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.37 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.38 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 218 16 17336.00000\8752982.2 3.39 Incorporation of Recitals. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 3.40 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.41 Conflicting Provisions. In the event that provisions of any attached exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties’ understanding concerning the performance of the Services. 3.42 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.43 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein, without the prior written consent of the Commission. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.44 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. [SIGNATURES ON FOLLOWING PAGE] 219 17 17336.00000\8752982.2 SIGNATURE PAGE TO RIVERSIDE COUNTY TRANSPORTATION COMMISSION AGREEMENT FOR FEDERAL LEGISLATIVE ADVOCACY SERVICES WITH [___CONSULTANT___] IN WITNESS WHEREOF, this Agreement was executed on the date first written above. RIVERSIDE COUNTY CONSULTANT TRANSPORTATION COMMISSION [INSERT NAME OF CONSULTANT] By: _________________________ By: ____________________________ Scott Matas Signature Chair __________________________ Name [NOT NEEDED IF APPROVED BY COMMISSION] __________________________ Title By: ____________________________ Anne Mayer Executive Director Approved as to Form: Attest: By: ____________________________ By: ________________________ Best Best & Krieger LLP Its: Secretary General Counsel 220 EXHIBITS -1 17336.00000\8752982.2 EXHIBIT "A" - SCOPE OF SERVICES [ TO BE INSERTED] EXHIBIT "B" - SCHEDULE OF SERVICES [ TO BE INSERTED] EXHIBIT "C" – COMPENSATION [ TO BE INSERTED] 221 AGENDA ITEM 7 Agenda Item 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: November 9, 2016 TO: Riverside County transportation Commission FROM: Budget and Implementation Committee Theresia Trevino, Chief Financial Officer Michael Blomquist, Toll Program Director Shirley Medina, Planning and Programming Director THROUGH: Anne Mayer, Executive Director SUBJECT: Interstate 15 Express Lanes Project Plan of Finance BUDGET AND IMPLEMENTATION COMMITTEE AND STAFF RECOMMENDATION: This item is for the Commission to: 1) Provide input and direct staff regarding the preliminary funding plan for the Interstate 15 Express Lanes project (Project); and 2) Approve an additional $50 million in federal Congestion Mitigation and Air Quality (CMAQ) and/or Surface Transportation Block Grant (STBG) funds for a total amount of $110 million in CMAQ and/or STBG funds for design-build costs related to the Project and direct staff to program the funding in the 2017 Federal Transportation Improvement Program (FTIP). BACKGROUND INFORMATION: The Project will construct two tolled express lanes in each direction between the I-15/Cajalco Road interchange and the 15/60 interchange. All proposed improvements are anticipated to be constructed within existing Caltrans right of way with the majority of the improvements occurring within the existing I-15 median. Right of way impacts will be limited, and some soundwalls will be built. With tolled express lanes, users benefit from reduced travel times achieved through congestion pricing. Tolls to be charged will vary by time of day based on congestion levels. The I-15 Express Lanes will provide many travel choices including carpooling, vanpooling, express bus, and single occupant vehicle travel. A completely electronic toll collection system will be used, and all vehicles in the tolled express lanes will be required to have a FasTrak transponder. Environmental approval via a finding of no significant impact was obtained in May 2016, and the Commission adopted the environmental document at its July 2016 meeting. A project and construction management (PCM) team has been in place since April 2015. The investment grade traffic and revenue (T&R) study was adopted by the Commission in June 2016. The Project 222 Agenda Item 7 finance team, including a financial advisor and underwriters, is in place and financial close is expected by mid-2017. Once financial close occurs, construction will begin. The projected Project opening is mid-2020. Preliminary Funding Plan In November 2015, staff presented to the Commission a preliminary funding plan for the Project that anticipates use of toll revenue bonds, a federal loan through the Transportation Infrastructure Finance and Innovation Act (TIFIA) program, Measure A sales tax bonds, Measure A sales tax revenues, and federal CMAQ and/or Surface Transportation Program (STP) grant funds. As a result of the passage of the Fixing America’s Surface Transportation Act (FAST Act), in December 2015, the STP was renamed as the STBG program. The toll revenue bonds and TIFIA loan are to be paid back by future tolls generated from express lane users. That preliminary funding plan was submitted in November 2015, to the TIFIA Joint Programs Office (JPO) in a letter of interest for a federal TIFIA loan. In January 2016, the Commission was notified by the TIFIA JPO the Project was ready to advance to the creditworthiness phase. Based on updated cost estimates, the investment grade T&R study, and continuous financial modeling, staff developed a revised preliminary funding plan that was submitted to the TIFIA JPO in September for creditworthiness review. The revised plan currently reflects a significant decrease in toll revenue bonds and TIFIA loan offset by a significant increase in sales tax revenue bonds and Commission contribution. The significant change between toll revenue-supported debt and sales tax revenue-supported debt is based on the effects of applying more restrictive rating agency criteria in order to obtain preliminary investment grade ratings for the toll revenue- supported debt. A comparison of the preliminary funding plans as of November 2015 and November 2016, is presented in the following table: 2015 2016 Sources: Toll revenue bonds, including premium 143,576,000$ 18,406,000$ TIFIA loan 151,754,000 123,176,000 Sales tax revenue bonds, including premium 95,734,000 197,301,000 Investment earnings 3,054,000 1,142,000 CMAQ/STBG funds 60,000,000 110,000,000 RCTC contribution, including predevelopment costs 8,243,000 46,786,000 462,361,000$ 496,811,000$ Uses: Commission and financing costs 164,016,000$ 200,035,000$ Design-Build and Toll Collection System costs 298,345,000 296,776,000 462,361,000$ 496,811,000$ November 223 Agenda Item 7 The current preliminary funding plan also includes a Commission equity loan of approximately $21.2 million from sales tax revenues to fund a TIFIA debt service reserve of $18 million and toll debt service. The loan is anticipated to be repaid with interest from available surplus revenues. The Project finance team continues to evaluate rating agency criteria and implement financial modeling concepts in order to decrease the level of sales tax revenues and increase the level of toll-supported debt. The current preliminary funding plan is expected to change as the Commission progresses through the project financing work, including the TIFIA creditworthiness process. The final funding plan expected in spring 2017, will support the Commission as it negotiates a federal TIFIA loan, markets and sells toll revenue and sales tax bonds, and generally works to obtain financial close. Federal Funds CMAQ funds are available for transportation projects and programs that help meet the requirements of the Clean Air Act. STBG funds are flexible and can be used for various types of transportation improvements. The Commission is responsible for programming these funds and previously allocated CMAQ and STP funds directly to support Measure A projects, or through a call for projects. Given the high cost of the Project and the desire to minimize debt financing, the Commission approved an allocation of $60 million of CMAQ and/or STBG funds for this project in November 2015. CMAQ funding is not available for capacity increasing projects for single occupancy vehicles, but it is available for managed lane projects such as the Project that fall under the air quality category of Transportation Control Measures and is categorized in the Southern California Association of Governments’ Regional Transportation Plan/Sustainable Communities Strategy as a Transportation Demand Management strategy. In Riverside County, CMAQ funds are primarily apportioned to two air basins in Riverside County– South Coast Air Basin (SCAB) and Salton Sea Air Basin (SSAB). The Commission allocates funds for the SCAB or Western Riverside County, and the Coachella Valley Association of Governments (CVAG) allocates SSAB CMAQ funds in Eastern Riverside County. The $60 million previously programmed is comprised of three years of SCAB CMAQ apportionment levels, as the current annual apportionment level is approximately $26 million and would be programmed in the FTIP in FYs 2017/18 through 2019/20. As a result, CMAQ funds would be substantially maximized during these years. STBG funds are apportioned based on population across the county. Project categories eligible for STBG funds include, but are not limited to: capacity enhancements, high occupancy vehicle lanes, safety, road rehabilitation, active transportation, and intersection improvements. Annual apportionment levels are approximately $29 million, and staff recommends Commission approval for the programming of an aggregate amount of $50 million of STP funds in FYs 2017/18 through 2019/20. 224 Agenda Item 7 Financial Information In Fiscal Year Budget: N/A Year: FY 2017/18+ Amount: $496,811,000 Source of Funds: 2009 Measure A sales tax receipts and sales tax revenue bonds; toll revenue bonds; TIFIA loan; federal CMAQ and/or STBG funds Budget Adjustment: N/A GL/Project Accounting No.: 003027 000 59102 262 31 59102 (sales tax/toll revenue bonds) 003027 000 59102 262 31 59102 (TIFIA loan) 003027 414 41403 262 31 41401 (CMAQ/STBG funds) Fiscal Procedures Approved: Date: 10/19/2016 225 1 Presentation to the Riverside County Transportation Commission November 9, 2016 Preliminary Plan of Finance I-15 Express Lanes Project 2 Las Vegas LA/ Orange County I-15 Express Lanes Project (I-15 ELP) 3 Las Vegas LA/ Orange County Project Features 4 Corridor length in miles 14.6 Number of toll lanes Generally 2 lanes in each direction Lane construction Most lane construction will be in the existing median Structures No new bridges –structures will be widened Retaining and sound walls will be built Environmental Initial Study/Environmental Assessment as significant environmental impacts not anticipated Number of jurisdictions 5 (Corona, Norco, Eastvale, Jurupa Valley and County) Right of way impacts Very limited Connectivity Standalone, new facility with more than 2 mile overlap of 91 Express Lanes Project Financing Objectives 5 Minimize Measure A sales tax funds required –the “Prime Directive” Assure sufficient funds for timely start and completion Achieve lowest overall borrowing cost Retain future debt management flexibility Minimize financial execution risk Achieve RCTC’s desired risk exposure Project Financing Overview 6 Costs1: $496 Million Planned Financing Sources Toll Revenue Bonds & TIFIA Loan Federal Grant Funds (CMAQ/STBG) ($110 M) RCTC Measure A Sales Tax Design-Build/Toll Collection System •$297 million RCTC Financing & Project Management •$162 million Environmental/ Prelim. Engineering •$37 million 1Estimated cost in year of expenditure dollars and reflects 2016 analysis Amounts are preliminary and subject to change Finance Plan 7 Measure A •Pay-as-you-go, bonds, and RCTC loans •Debt limit raised by voters via Measure K from $500 million to $975 million TIFIA •LOI submitted November 2015 •Advanced to creditworthiness January 2016 •Anticipate invitation to submit application February 2017 Toll Revenue Bonds •Non-recourse, project financing •Current Interest Bonds (CIBs) and Capital Appreciation Bonds (CABs) Other •Federal grant funds •Congestion Mitigation and Air Quality (CMAQ) •Surface Transportation Block Grant (STBG) Program Financing Schedule 8 2015 •Develop Financial Model •Submit TIFIA letter of interest 2016 •Complete T&R study •Update project costs •Obtain TIFIA preliminary rating assessment •TIFIA presentation Winter/Spring 2017 •Submit TIFIA application •Negotiate TIFIA loan •Rating agency meetings Summer 2017 •FINANCIAL CLOSE! QuestionsProject ScheduleNext Steps 9 Staff Recommendations •Provide input and direct staff regarding preliminary funding plan for I-15 ELP •Approve additional $50 million in CMAQ and/or STBG funds for total $110 million in federal funds for I-15 ELP •Direct staff to program funding in 2017 Federal Transportation Improvement Program AGENDA ITEM 8 PRESENTATION RCTC’s 40 th Anniversary Spotlight Transportation Sales Taxes Throughout California November 9, 2016 Sales Taxes and Transportation •1969: BART •1971: TDA •1976: Santa Clara County •1978: Santa Cruz County •1980: Los Angeles County •1982: San Mateo County The Self-Help Era •1984: Santa Clara County •1986: Alameda, Fresno •1988: Contra Costa, Sacramento, San Diego San Mateo, and Riverside •1990: Los Angeles, Imperial, Orange, San Bernardino, and San Francisco Law Requires Detailed Plans Initially, Majority Vote Needed to Pass Supermajority Requirement •Proposition 13 specified a two-thirds vote for special taxes •Proposition 62 in 1986 strengthened the two-thirds language •Guardino decision struck down a tax measure in Santa Clara County •In early 2000’s many counties received two-thirds approval for new taxes or extensions Riverside County and Measure A •Voters Have Approved Sales Taxes in Riverside Twice Half-cent levy on taxable sales Return -to-source provision in three geographic areas of the county TUMF participation required of local jurisdictions Generated $2.7 Billion since 1989 2016: A New Wave of Sales Tax Elections and Implications •Temporary state sales tax set to expire •Riverside County’s current rate is 8 percent and will decline to 7.75 percent •State law places a cap on local sales taxes •Many cities are seeking general fund sales taxes •14 Counties have transportation sales taxes on the ballot •Results From Yesterday’s Self-Help Elections Los Angeles County •Measure M •Extends existing measure and imposes an additional ½ cent •Evergreen measure without an expiration •Generates $860 million per year •Would hike overall sales tax rate to 9.25 percent San Diego County •Measure A •Imposes an additional half-cent sales tax to existing program •40-Year Duration •Would result in an overall tax rate of 8.25 percent Santa Clara County •Measure B •Imposes an additional half-cent sales tax •30-Year Duration •Would result in an overall tax rate of 9 percent Sacramento County •Measure B •Imposes additional half-cent sales tax to existing program •Expires in 30 years •Would result in an overall tax rate of 8.25 percent Contra Costa County •Measure X •Imposes additional half-cent sales tax to existing program •Expires in 30 years •Would result in an overall tax rate of 8.75 percent City and County of San Francisco •Measures J and K •Measure J is an advisory measure to fund homelessness and transportation programs •Measure K ups sales tax by .75 percent for 25 years •Would result in an overall tax rate of 9.25 percent Ventura County •Measure AA •Imposes new half-cent sales tax •Expires in 30 years •Would result in an overall tax rate of 7.75 percent Placer County •Measure M •Imposes new half-cent sales tax •Expires in 30 years •Would result in an overall tax rate of 7.75 percent Monterey County •Measure X •Imposes additional 3/8 cent tax to existing program •Expires in 30 years •Would result in an overall tax rate of 7.75 percent Stanislaus County •Measure L •Imposes new 1/2 cent tax to existing program •Expires in 25 years •Would result in an overall tax rate of 8.125 percent San Luis Obispo County •Measure J •Imposes new half-cent sales tax •Expires in 9 years •Would result in an overall tax rate of 7.75 percent Santa Cruz County •Measure D •Imposes additional 1/2 cent tax to existing program •Expires in 30 years •Would result in an overall tax rate of 8.5 percent Merced County •Measure V •Imposes new 1/2 cent tax •Expires in 30 years •Would result in an overall tax rate of 7.75 percent Humboldt County •Measure U •Imposes new 1/2 cent tax Expires in 20 years •Would result in an overall tax rate of 8.25 percent Future Issues and Concerns •Capacity needs to continue to grow and operations and maintenance cannot be ignored; •Transportation agencies will continue to rely on local sales taxes ; •Cities are increasingly reliant on the same funding source ;and •State and federal requirements will limit options in the future. Questions Thank you